Complaint Against Albert Whitehead

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Supreme Court of Pennsylvania

Court of Common Pleas

Civil Cover Sheet

LUZERNE

For Prothonotary Use Only:

Docket No:

County

The information collected on this form is used solely for court administration purposes. This form does not

supplement or replace thefding and service ofpleadings or other papers as required by law or rules ofcourt.

Commencement of Action:

S Complaint Q Writ of SummonsO Transfer from Another Jurisdiction

? PetitionQ Declaration of Taking

Lead Plaintiffs Name:

Sundance Vacations, Inc.

Lead Defendant's Name:

Albert Whitehead

Are money damages requested? til Yes D NoDollar Amount Requested: Owithin arbitration limits

(check one) [x] outside arbitration limits

Is this a Class Action Suit? Q Yes H No Is this an MDJAppeal? Q Yes 0 No

Name of Plaintiff/Appellant's Attorney: Donnna A. Walsh, Esquire

D Check here if you have no attorney (are a Self-Represented [Pro Sej Litigant)

Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your

PRIMARY CASE. If you are making more than one type of claim, check the one that

you consider most important.

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TORT {do not include Mass Tori)

D IntentionalD Malicious ProsecutionQ Motor Vehicle

I"! NuisanceQ Premises Liabilityn Product Liability (does not include

mass tort)

D Slander/Libel/ Defamation? Other:

MASS TORT

Q Asbestos? Tobacco

n Toxic Tort - DESQ Toxic Tort - ImplantQ Toxic Wasten Other:

CONTRACT (do not include Judgments)

O Buyer PlaintiffD Debt Collection: Credit Card? Debt Collection: Other

PI Employment Dispute:Discrimination

Q Employment Dispute: Other

Other:Breach of Settlement

Agreement

CIVIL APPEALS

Administrative Agencies

Q Board of AssessmentO Board of ElectionsO Dept. ofTransportationD Statutory Appeal: Other

Q Zoning Board

D Other:

CJ

PROFESSIONAL LIABLITY

O DentalO LegalO Medicalf~J Other Professional:

REAL PROPERTY

D EjectmentD Eminent Domain/CondemnationD Ground RentD Landlord/Tenant DisputeCI Mortgage Foreclosure: ResidentialD Mortgage Foreclosure: CommercialQ Partition? Quiet Title? Other:

COMISCELLANEOUS

Q Common Law/Statutasy ArbitrationQ Declaratory Judgment|j] Mandamus

Q Non-Domestic RelationsRestraining Order

D Quo WarrantoD ReplevinD Other:

Updated 1/1/2011

IN THE COURT OF COMMON PLEAS

OF LUZERNE COUNTY

SUNDANCE VACATIONS, INC.,

Plaintiff,

v.

CASE NO.

ALBERT WHITEHEAD,

Defendant.

NOTICE TO DEFEND

You have been sued in Court. If you wish to defend against the

claims set forth in the following pages, you must take action within twenty (20)

days after this Complaint and notice are served, by entering a written appearance

personally or by attorney and filing in writing with the Court your defenses or

objections to the claims set forth against you. You are warned that if you fail to do

so the case may proceed without you and a judgment may be entered against you

by the Court without further notice for any money claimed in the Complaint or for

any other claim or relief requested by the Plaintiff. You may lose money or

property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT

ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,

GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT

WHERE YOU CAN GET LEGAL HELP.

r

Wilkes-Barre Law Library Association

(570) 822-6712 =

Northeastern Pennsylvania Legal Services, Inc.

15 Public Square -

Wilkes-Barre, Pennsylvania 18701 ^

(570) 825-8567 £

00044150

IN THE COURT OF COMMON PLEAS

OF LUZERNE COUNTY

SUNDANCE VACATIONS, INC.,

Plaintiff,

v.

ALBERT WHITEHEAD,

Defendant.

CASE NO.

COMPLAINTCO

Plaintiff Sundance Vacations, Inc. states the following as its

Complaint against Defendant Albert Whitehead in the above-captioned matter:

PARTIES

1 . Plaintiff Sundance Vacations, Inc. ("Sundance Vacations") is a

corporation organized and existing under the laws of the Commonwealth of

Pennsylvania and is engaged in selling travel packages to customers through direct

sales presentations. The economic harm that Sundance Vacations suffered and

continues to suffer as a result of the unlawful acts described herein occurred at

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Sundance Vacations' principal place of business at 264 Highland Park Boulevard,

Wilkes-Barre, Pennsylvania.

2. Defendant Albert Whitehead is an adult individual residing at

842 N. 27th Street, Philadelphia, Pennsylvania.

FACTUAL BACKGROUND

3. On or about September 2004, Whitehead applied for a position

as a salesman with Sundance Vacations.

4. When he was not selected for the position, Whitehead filed an

administrative charge and thereafter brought an action against, inter alia, Sundance

Vacations in the United States District Court for the Eastern District of

Pennsylvania alleging age discrimination.

5. Sundance Vacations, inter alia, filed a counterclaim against

Whitehead seeking to recover damages resulting from defamatory postings that

Whitehead made on various internet sites using a variety of screen names.

6. The litigation in the Eastern District was resolved by means of

a Settlement Agreement dated February 6, 2007, a copy of which is attached

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hereto as Exhibit "A."1

7. As a material part of the settlement, Whitehead agreed that he

would not post any messages in any public forum that in any way reference, inter

alia. Sundance Vacations. The Settlement Agreement states in pertinent part:

Whitehead agrees that he will not write, construct or

post, or cause, assist or encourage others to write,

construct or post, any e-mails, correspondence or

electronic messages on any website, message board,

forum, chat room or other viewable form on the World

Wide Web, Usenet, e-mail list server or other area of the

internet which mentions directly or indirectly, or by

inference, parody or play on words, Sundance Vacations

.... Whitehead further covenants and agrees that the

obligations set forth in this paragraph and the Affidavit

attached hereto as Exhibit "A" are a material inducement

for Sundance Vacations ... to enter into this Agreement

and are intended to become part of the consideration for

this Agreement. In the event of any breach by

Whitehead of any of the obligations set forth in this

paragraph or the Affidavit attached hereto as Exhibit

"A," the offended party may seek to enforce this

Agreement and recover damages caused by the breach . .

. or may institute a separate legal proceeding to recover

damages and other appropriate relief. . . .

(See Settlement Agreement f 1 .)

1 While the Settlement Agreement was expressly made confidential, the United StatesDistrict Court for the Eastern District of Pennsylvania issued a Notice dated January 31, 2012

advising that the Settlement Agreement would no longer be placed under seal unless a party filed

a written objection to the proposed unsealing. No objections were filed and therefore the

Settlement Agreement is now part of the public court record.

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8. Pursuant to the Settlement Agreement, Whitehead further

agreed that he would not in any way disparage, inter alia. Sundance Vacations:

Whitehead further agrees not to make any comments or

statements, orally or in writing, in any medium, to any

third parties, or to take any other action which might be

deemed retaliatory or which could reasonably be

construed to adversely affect and/or disparage the

personal and/or business reputation of Sundance

Vacations ... or any of their employees, agents,

representatives or affiliates ....

(See Settlement Agreement f 9.)

COUNT I

BREACH OF CONTRACT

9. Paragraphs 1 through 8 of this Complaint are incorporated by

reference as if set forth fully herein.

10. Pursuant to the Settlement Agreement, Whitehead is

contractually obligated to refrain from posting any messages in any public forum

that mention Sundance Vacations. (See Settlement Agreement ^j 1.) Whitehead is

also contractually obligated to refrain from making any comment or statement in

any medium which could reasonably be construed to adversely affect and/or

disparage the business reputation of Sundance Vacations. (Id ^ 9.)

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1 1 . Whitehead has breached and continues to breach his

obligations under the Settlement Agreement by posting disparaging comments

concerning Sundance Vacations on the Facebook page that he is believed to

administer, "Boycott Sundance Vacations," and through other means, including,

but not limited to, sending disparaging communications to regulators and business

partners of Sundance Vacations.

12. These breaches by Whitehead have caused and continue to

cause Sundance Vacations to suffer substantial damages for which Whitehead is

liable, including, but not limited to, lost sales and damage to existing and

prospective customer relationships.

WHEREFORE, Sundance Vacations demands judgment in its favor

and against Whitehead, together with an award of compensatory damages as well

as injunctive relief to prevent further breaches, and such other and further relief as

the Court deems appropriate under the circumstances.

00044150

COUNT II

TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS

13. Paragraphs 1 through 12 of this Complaint are incorporated by

reference as if set forth fully herein.

14. Sundance Vacations has had contractual relationships with

business partners and customers and has a reasonable expectation of entering into

contractual relationships with members of the public interested in purchasing

travel packages.

15. Whitehead has published and continues to publish disparaging

statements and comments on Facebook and elsewhere with the intent to harm

existing contractual relationships between Sundance Vacations and its business

partners and customers and also to prevent prospective customers from doing

business with Sundance Vacations.

16. In addition, Whitehead, acting alone and also in concert with

others, including the Gainey & McKenna firm, has encouraged and caused

customers of Sundance Vacations to discontinue doing business with Sundance

Vacations.

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1 7. There is no privilege or justification for Whitehead' s tortious

acts.

18. As a result of Whitehead' s tortious interference, Sundance

Vacations has suffered and continues to suffer substantial damages for which

Whitehead is liable, including, but not limited to, lost sales and damage to existing

business partners and customer relationships. In addition, Sundance Vacations has

suffered and continues to suffer loss of prospective contractual relationships with

customers which were reasonably likely to have occurred but for Whitehead's

tortious acts.

19. In interfering with Sundance Vacations' existing and

prospective contractual relations, Whitehead acted intentionally, willfully,

wantonly, recklessly and in bad faith and consequently Sundance Vacations is

entitled to an award ofpunitive damages.

WHEREFORE, Sundance Vacations demands judgment in its favor

and against Whitehead, together with an award of compensatory and punitive

00044150

damages as well as injunctive relief to prevent further tortious acts, and such other

and further relief as the Court deems appropriate under the circumstances.

Respectfully submitted,

Daniel T. Brier

Donna A. Walsh

Attorneys for Plaintiff,

Sundance Vacations, Inc.

MYERS, BRIER & KELLY, L.L.P.

Suite 200, 425 Spruce Street

Scranton,PA 18503

(570)342-6100

Date: April 25, 2012

00044150

VERIFICATION

I, John Dowd, President and CEO of Sundance Vacations, Inc.,

hereby certify that the facts contained in the foregoing Complaint are true and

correct and are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to

unsworn falsification to authorities.

Date

John Dowd

00044150

Exhibit A

SETTLEMENT AGREEMENT

THIS SETTLEMENT AGREEMENT (hereinafter "the Agreement") is made and

entered into on this 6? day ofgqmmba.,"20Q6,-by and between Albert Whitehead

("Whitehead"), an adult individual residing in Philadelphia, Pennsylvania; Sundance Vacations, Inc.

("Sundance Vacations"), a corporation organized and existing under the laws of the Commonwealth

of Pennsylvania with a place of business in King of Prussia, Pennsylvania; Dowd Marketing, Inc.

("Dowd Marketing"), a corporation organized and existing under the laws of the Commonwealth of

Pennsylvania with a place of business in Wilkes-Barre, Pennsylvania; John Dowd ('T>owd"), an adult

individual with a place of business in Wilkes-Barre, Pennsylvania; and Jerry Sisk ("Sisk"), an adult

individual with a place of business in King of Prussia, Pennsylvania.

WHEREAS, on August 11, 2005, Whitehead commenced an action against

Sundance Vacation, Dowd Marketing, Dowd and Sisk in the United States District Court for the

Eastern District of Pennsylvania docketed at No. 05-CV-4193 (hereinafter "the Action") alleging

that he was subject to discrimination on the basis of his age when he applied for a position at

Sundance Vacations;

WHEREAS, on February 16, 2006, Sundance Vacations and Sisk asserted a

counterclaim against Whitehead alleging that he posted numerous false, defamatory and disparaging

comments on the internet concerning Sundance Vacations and Sisk;

WHEREAS, on July 27, 2006 and August 21, 2006, Judge Legrome D. Davis of the

United States District Court for the Eastern District ofPennsylvania Ordered Whitehead to allow

his produce his computer equipment for inspection by Sundance Vacations, Dowd Marketing,

Dowd and Sisk;

WHEREAS, Whitehead produced his computet for inspection on August 28, 2006;

Page 1 of 9

WHEREAS, Whitehead has identified himself as the poster of various statements on

the internet concerning, inter alia. Sundance Vacations and has agreed not to construct, write or post

or cause, assist or encourage others to construct, write or post any messages in any viewable form

on the Wodd Wide Web or other area of the internet concerning Sundance Vacations, Dowd

Marketing, Dowd or Sisk, as more fully set forth in the Affidavit attached hereto as Exhibit "A" and

expressly made a part hereof; and

WHEREAS, the parties desire to settle ail causes of action and claims raised in the

Action, thus discharging each other of and from all liability and responsibility as fully set forth in this

Agreement;

NOW THEREFORE, the foregoing being incorporated herein by reference and

expressly made a part hereof, and intending to be legally bound, the parties agree as follows:

1. Agreement Not To Post Messages. Whitehead agrees that he will not write,

construct or post, or cause, assist or encourage others to write, construct or post, any e-mails,

correspondence or electronic messages on any website, message board, forum, chat room or other

viewable form on the World Wide Web, Usenet, e-mail list server or other area of the internet which

mentions directly or indirecdy, or by inference, parody or play on words, Sundance Vacations,

Dowd Marketing, Dowd or Sisk. Whitehead further covenants and agrees that the obligations set

forth in this paragraph and the Affidavit attached hereto as Exhibit "A" are a material inducement

for Sundance Vacations, Dowd Marketing, Dowd and Sisk to enter into this Agreement and are

intended to become part of the consideration for this Agreement. In the event of any breach by

Whitehead of any of the obligations set forth in this paragraph or the Affidavit attached hereto as

Exhibit "A," the offended party may seek to enforce this Agreement and recover datnages caused by

the breach (subject to the restrictions and limitations set forth in Paragraph 5 hereof) or may

institute a separate legal proceeding to recover damages and other appropriate relief. Furthermore,

in the event of any breach by Whitehead of any of obligations set forth in this paragraph or the

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Affidavit attached hereto as Exhibit "A," the release set forth in Paragraph 3 hereof shall be null and

void and of no legal effect whatsoever and the offended party shaE be permitted to bring suit to

recover damages for any and all claims that were the subject of the release, including any claims for

damages resulting from the internet postings that are identified in the Affidavit attached hereto as

Exhibit "A." Finally, Whitehead acknowledges and agrees that the Affidavit attached hereto as

Exhibit "A" and any electronic data retrieved from his computer may be used in any enforcement

proceeding or any subsequent action filed as a consequence of a breach of this Agreement.

2. General Release. Whitehead, for himself and on behalf of his heirs,

executors, administrators, successors, assigns, attorneys, agents, representatives, and any persons

acting by or through him, does hereby release, remise, and forever discharge Sundance Vacations,

Dowd Marketing, Dowd and Sisk, and all past, present and future officers, directors, agents,

servants, employees, representatives, attorneys, insurers, subsidiaries, affiliates, and any and all other

persons, firms, or corporations with whom any of the former have been, are now, or may hereafter

be affiliated, of and from any and all causes of action, claims, demands, obligations, damages, costs,

expenses, and compensation of any nature whatsoever, liabilities, suits of any kind, whether based

on a tort, contract or other theory of recovery, which Whitehead now has, or which may hereafter

accrue or otherwise be acquired on account ofall injuries or damages, known or unknown, which

have been or may in the future be sustained by Whitehead as a result of any act, event, matter, cause

or thing up to and including the date of this Agreement, and particularly, but without limitation, any

claims arising from or related in any way to any application for employment and any claims that

were alleged or might have been alleged in the Action, including, but not limited to, any claims

arising under the United States or Pennsylvania Constitutions, 42 U.S.C. § 1983, Title VII of the

Civil Rights Act of 19<54, as amended, the Age Discrimination in Employment Act, the Pennsylvania

Human Relations Act, or any other federal, state or local statute or regulation, and any common law,

tort or contract claims, and any claims for attorneys' fees or costs. This release on the part of

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Whitehead shall be a fully binding and complete settlement between the parties and all parties

represented by or claiming through them,

3. General Release. Sundance Vacations, Dowd Marketing, Dowd and Sisk, for

themselves and on behalf of their heirs, executors, administrators, successors, assigns, attorneys,

agents, employees, representatives and any person or entity acting by or through any of them, do

hereby release, remise, and forever discharge Whitehead of and from any and all causes of action,

claims, demands, obligations, damages, costs, expenses, and compensation of any nature

whatsoever, liabilities, suits of any kind, whether based on a tort, contract or other theory of

recovery, which any of them now have, or which may hereafter accrue or otherwise be acquired on

account of all injuries or damages, known or unknown, which have been or may in the future be

sustained by him or it as a result of any postings or statements published by Whitehead on any

internet site, including, but not limited to, the internet postings specifically identified in the Affidavit

attached hereto as Exhibit "A."

4. Dismissal of Luzerne County Action. The parties further agree that the writ

of summons filed in the Court of Common Pleas of Luzerne County at No. 7021-CV-06 shall be

marked withdrawn and dismissed without prejudice to the right of the named plaintiffs to file a new

action for relief if warranted in the future.

5. Enforcement Proceedings. The parties acknowledge and agree that, in the

event of a suspected breach by Whitehead of his obligations under this Agreement, the offended

party may file a motion to seek enforcement of the terms of this Agreement together with other

appropriate relief. In the event such a violation is established, the offended party shall be entided to

recover from Whitehead liquidated damages in the amount of f5000.00 for each proven violation of

the terms of this Agreement, plus recovery of the attorneys' fees and costs incurred in seeking relief.

In the event a violation is not proven, the filing party shall be obligated to reimburse Whitehead in

the amount of $1 000.00, plus attorneys' fees and costs. Nothing contained herein, however, shall

Page 4 of 9

preclude any party from commencing a new action in an appropriate forum to seek relief for

conduct occurring in the future and the terms set forth herein shall not apply to any new action.

6. No Further Applicationis for Employment. Whitehead agrees that Sundance

Vacations and Dowd Marketing have no obligation whatsoever to hire or employ him at any time in

the future and further agrees not to seek employment with Sundance Vacations or Dowd Marketing

or any affiliated entity.

7. Attorneys' Fees. Each party hereto shall bear all attorneys' fees and costs

arising from his or its actions or the actions of his or its counsel in connection with the Action, this

Agreement, the matters and documents referred to herein and all related matters.

8. Discontinuance of the Action. It is expressly agreed and understood that

the Action shall be marked setded, discontinued and ended with prejudice. Accordingly, counsel for

the parties will, contemporaneous with the execution of this Agreement, execute a Stipulation of

Dismissal With Prejudice for the Action docketed at No. 05-CV-4193 in the United States District

Court for the Eastern District of Pennsylvania, subject to the rights of either party to enforce this

Agreement or the obligations set forth in the Affidavit attached hereto as Exhibit "A."

9. Non-Disparagement. Whitehead further agrees not to make any comments

or statements, orally or in writing, in any medium, to any third parties, or to take any other action

which might be deemed retaliatory or which could reasonably be construed to adversely affect

and/or disparage the personal and/or business reputation of Sundance Vacations, Dowd Marketing,

Dowd or Sisk or any of their employees, agents, representatives or affiliates, including Travel

Advantage Network or "TAN." Further, Dowd, Sisk, Sundance Vacations and Dowd Marketing

agree that neither they nor any of their officers or shareholders shall make any comments or

statements, orally or in writing, in any medium, to any third parties, or take any other action which

might be deemed retaliatory or which could reasonably be construed to adversely affect and/or

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disparage the personal and/or business reputation of Whitehead and that they will take appropriate

steps to ensure that Ed Coppinger refrains from making any disparaging comments or postings

concerning Whitehead on any internet site. ,111, 1, 1 c Qvt\r*k out Park/ TfO** ''^f'Tyi^

qQ AMU* m M Am*"-*" 'T U + Y J i LZ10. Confidentiality, ft is understood and agreed by and between die parties that

the terms of this Agreement and the consideration mentioned in this Agreement are and shall

remain confidential. It is expressly understood and agreed, however, that Sundance Vacations,

Dowd Marketing, Dowd and Sisk shall have the right to publish, reprint and make use of the

Affidavit attached hereto as Exhibit "A" for any purpose, including, but not limited to, in seeking to

remove Whitehead's postings from any internet site.

1 1 . Knowing and Voluntary Waiver of Claims. Whitehead acknowledges and

agrees that, in full compliance with the Older Workers Benefit Protection Act of 1990, 29 U.S.C. §

621 et seq.:

(i) He has read the terms of this Agreement, and he understands its

terms and effects, including the fact that he has agreed to release and forever discharge Sundance

Vacations, Dowd Marketing, Dowd and Sisk and their agents, employees and representatives from

any liability for any claim relating to any application for employment;

(ii) He has signed this Agreement voluntarily and knowingly in exchange

for the consideration described herein, which he acknowledges as adequate and satisfactory to him;

(iii) He has been advised through this document to consult with an

attorney prior to signing this Agreement and has done so;

(iv) He has been provided with the opportunity to consider for at least

twenty-one (21) days whether to sign this Agreement, and he has signed on the date indicated below

after concluding that this Agreement is satisfactory to him;

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(v) He acknowledges that he has the right to revoke this Agreement for a

period of seven (7) days following the execution hereof by giving written notice to defense counsel

of record by fax or hand delivery. Exercise of this right of revocation shall constitute a revocation

of this Agreement and will void the entire Agreement between the parties;

(vi) Neither Sundance Vacations, Dowd Marketing, Dowd or Sisk nor

any of their agents, representatives or attorneys have made any representations to him concerning

the terms or effects of this Agreement other than those contained herein; and

(vii) He agrees that he has been afforded reasonable time to consider this

Agreement, to raise concerns, ask questions and seek explanations regarding this Agreement and to

consult with legal counsel or other persons of his choosing regarding the legal, financial and other

consequences of executing this Agreement and he further acknowledges and agrees that, he is

voluntarily, knowingly and willfully executing this Agreement.

12. Jurisdiction. The parties agree that jurisdiction over this matter is to be

retained by the Honorable Legrome D. Davis of the United States District Court for the Eastern

District of Pennsylvania for a period of eighteen (18) months from the date hereof for purposes of

enabling any party to apply to the Court at any time for such direction or further decree as may be

appropriate for die enforcement of this Agreement or for such additional rehef as may be

appropriate.

13. Non-Assignment Neither this Agreement nor any of the parties'

respective interests, rights or obligations shall be assignable by any party hereto, and Whitehead and

his attorneys affirm that he has not assigned or transferred any of his respective interests, rights or

obligations hereunder to any third party.

14. Entire Agreement. This Agreement contains the entire agreement between

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the parties with regard to the matters set forth in it and shall be binding upon and inure to the

benefit of the successors and assigns of each. There are no other understandings or agreements,

verbal or otherwise, between the parties except as expressly set forth in this Agreement.

15. Legal Advice. In entering into this Agreement, each of the parties

represents that he, she or it has relied upon the legal advice of his, her or its attorneys. The parties

further represent that the terms of this Agreement have been completely reviewed by them and that

these terms are fully understood and voluntarily accepted.

16. Applicable Law. The parties hereto enter into this Agreement

in the Commonwealth of Pennsylvania, and this Agreement shall be construed and interpreted in

accordance with its laws.

17. Construcdon. Whitehead represents and warrants that he and his attorneys

have reviewed this Agreement and the Affidavit attached hereto as Exhibit "A," that they have had

the opportunity to revise this Agreement and that the normal rule of construction to the effect that

any ambiguities are to be resolved against the drafting party shall not be employed in the

interpretation of this Agreement.

IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties

hereby execute this Agreement on the Jk=> day ofSeptember 30Q6.

ALBERT WHITEHEAD

SUNDANCE VACATIONS, INC.

WITNESS BY:

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4-C f^

TITLE:

DOWD MARKETING, INC.

Rk^c^WITNESS

O*-——' L- £%/BY:TITLE:

JOHN DOWD

Tfi^e^WITNESS

[p^^LWITNESS

JERRY SISK

Page 9 of 9

ij/XIllDlt /\

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALBERT WHITEHEAD,

Plaintiff,

v.

SUNDANCE VACATIONS, INC.,

DOWD MARKETING, INC.,

JOHN DOWD and JERRY SISK,

Defendants.

NO. 05-CV-04193

JUDGE DAVIS

DECLARATION OF ALBERT WHITEHEAD

I, Albert Whitehead, make this Declaration pursuant to 28 U.S.C, Section 1746,

and say that:

1. My name is Albert Whitehead and I currently reside in Philadelphia, PA.

2. In or about 1995, I established an account with AOL under the master

screen name " novnog." As a member of AOL, I was able to utilize up to seven other screen

names or pseudonyms at a time to browse and post messages on the internet. I selected and

changed pseudonyms on a frequent basis to protect and ensure my privacy while guarding against

hackers.

3. I published a number of postings concerning Sundance Vacations, Inc. and

Dowd Marketing, Inc. using different pseudonyms on a website called Scam.com. I recall using

the pseudonym Columbo, and I may have used the pseudonyms Compliance and NoNotMe.

This is my best recollection of the pseudonyms that I used.

4. The postings that I made include statements that are accurate, and

statements that are inaccurate.

5 . I was never employed by Sundance Vacations, Inc., never had a membership

in Sundance Vacations, Inc. and never attended a sales presentation at Sundance Vacations, Inc.

I therefore have no personal knowledge concerning the sales presentations at Sundance Vacations,

Inc. which were the subject of my postings. Nor do I have personal knowledge or information

suggesting that Sundance Vacations, Inc. has engaged in or is engaging in fraudulent, misleading,

deceptive or pressure-filled sales presentations.

6. I have personally sold vacations packages (Travel Advantage Network) for

Vacation Savers, a company with whom Dowd Marketing was conducting business, and I have

based my personal opinion and beliefs on my first-hand knowledge of that experience, selling that

particular product.

7. I agree that I will not in the future construct, write or post, or knowingly

cause, assist or encourage others to construct, write or post, any messages on any message boards

or websites concerning Sundance Vacations, Inc., Dowd Marketing, Inc., John Dowd or Jerry

Sisk using any screen name or pseudonym.

8. I agree that I will not write, construct or post, or knowingly cause, assist

or encourage others to write, construct or post, any e-mails, correspondence or electronic

messages on any website, message board, forum, chat room or other viewable form on the World

Wide Web, Usenet, e-mail listserver or other area of the Internet which mentions, directly or

indirectly, or by inference, parody or play on words, Sundance Vactions, Inc., Dowd Marketing,

Inc., John Dowd or Jerry Sisk or any related entity, including Travel Advantage Network or

"TAN."

9. I also agree to take all reasonable and necessary steps in my power to delete

the above-referenced messages that I posted on Scam.com.

10. I acquiesce to the entry of an order reflecting the terms and conditions of

this Declaration, including the retention by the Court of jurisdiction for the purpose of entering

injunctive relief for any violations of the agreements contained herein.

11 . I understand the above-captioned lawsuit will be dismissed, subject to my

agreements contained herein, and that this Declaration may be reprinted and published by

Sundance Vacations, Inc., Dowd Marketing, Inc., John Dowd and Jerry Sisk if they so elect, as

follows:

(a) To Scam.com, in its entirety, in order to facilitate the removal of postings

that I made on that website; and

(b) To any other person or entity, without any information identifying me as

the declarant, including ray name, address, and the case number, in order

to respond to or address the content of statements for which Defendants

have a reasonable, articulable, and good-faith belief are attributable to me,

12. This Declaration is a result of civil litigation, instituted by me, naming

Sundance Vacations, Inc., et al. as Defendants. I have considered the advice of counsel before

signing this Declaration, which I have signed of my own free will.

13. I declare under penalty of perjury that the foregoing is true and correct.

Albert Whitehead

Executed on:

c2- G~ 2^ooy