PHILADELPHIA – A Chester County massage clinic which may be facing the closing of its doors, is seeking a preliminary injunction to prevent itself from going out of business permanently.

On April 10, Spa Dogs, LLC filed an emergency ex parte petition for injunctive relief versus Massage Envy Franchising, LLC. The plaintiff, Spa Dogs, is a franchisee of the defendant, operating under the name “Massage Envy West Chester”.

Spa Dogs’ relationship with Massage Envy, its franchisor, is governed by a Franchise Agreement, originally executed by Massage Envy and Rick O’Brien on March 21, 2007, and assigned to Kate Diffenderfer and Spa Dogs on or about May 17, 2011, per the lawsuit.

“On or about Sept. 26, 2013, Lynn Weston, a client of Hanrahan’s, contacted Spa Dogs and complained that Hanrahan had kissed her during a massage. When questioned, Hanrahan claimed that it was possible his face had grazed the client’s cheek, but that he had not intended to kiss her. As a result of this admission, Spa Dogs terminated Hanrahan on Sept. 27, 2013,” the motion reads.

Spa Dogs added it reported this incident to the defendant, who allegedly took no action.

The lawsuit further included incidents involving another Spa Dogs employee and massage therapist, James Deiter, who was a highly-trained and positively-reviewed therapist, according to the plaintiff.

Deiter was accused of making inappropriate contact with a trio of Spa Dogs clients, Sylvia Angelini, Dawn Chiofolo and Susan Weideman, in three separate incidents reported over a period of three months in 2015.

In the case of Weideman, she followed up with both Spa Dogs and police authorities, who arrived to Spa Dogs’ premises to investigate a case of criminal sexual assault against Deiter.

Spa Dogs says it reported the serious incident the exact same day and Massage Envy took no action, despite the nature of the allegations leveled against Deiter.

On May 26, 2016, Deiter entered a negotiated plea to three counts of aggravated indecent assault and six counts of indecent assault. He was sentenced to an aggregate term of imprisonment of 78 to 156 months, followed by a three-year period of probation.

Subsequently, Angelini, Chiofolo Weideman and six other women would file civil litigation against Spa Dogs, leading Massage Envy to serve the plaintiff with a notice of default on June 24, 2016, over nine months after the filing of the womens’ lawsuits.

“The Notice of Default alleged two separate incidents of default; a. That the Hanrahan incident, discussed above, was not reported to Massage Envy; and b. That the Chiofolo incident, discussed above, was not reported to Massage Envy. The Notice of Default alleges that these purported failures are violations of the Operations Manual’s Code of Conduct regarding ‘Handling and Reporting’ and is a violation of Section 8. J of the Franchise Agreement, ‘Compliance with System Standards,” the motion reads.

Spa Dogs contends it did in fact report the Hanrahan incident to the defendant when it transpired, and reported the Chiofolo incident once it received the Notice of Default – but stipulated Massage Envy was on notice of Deiter’s misconduct after the Angelini incident, which was timely reported.

On Sept. 12, 2016, Massage Envy served Spa Dogs with a letter titled “Notice of Right to Terminate”, which asserts that Massage Envy is permitted to terminate Spa Dogs’ Franchise Agreement pursuant that document – but Spa Dogs claims the notice of right for termination contains false information on if and when it reported the aforementioned incidents.

“On March 24, 2017, Massage Envy served on Spa Dogs a Notice of Termination. The Notice of Termination makes false claims that are substantially identical to the Notice of Right to Terminate and, again, wrongly asserts that Massage Envy Franchising has a right to terminate under Section 14.J of the Franchise Agreement. The Notice of Termination demands that Spa Dogs cease operating “within thirty (30) days following delivery of this Notice” and confirm its cessation of business to Massage Envy,” the motion reads.

Spa Dogs said these notices contained false information, yet were signed Massage Envy’s general counsel, Melanie Hansen. Spa Dogs further argued it will be subject to immediate and irreparable harm if its emergency petition is not granted, including the permanent closing of its business.

Further, Spa Dogs argued Franchise Agreement provides a cure period of 30 days for failures to comply with system standards, including reporting client complaints; that Massage Envy’s claim that Spa Dogs failed to report the Hanrahan incident is false and its claim that Spa Dogs failed to report the Chiofolo incident as “technically true”, but added Spa Dogs remedied that within the Franchise Agreement’s time limit.

On April 10, Massage Envy filed to remove the case from state court to federal court, in the U.S. District Court for the Eastern District of Pennsylvania.

According to court records, this was done because the amount in controversy will exceed the established threshold of $75,000 through declaratory and injunctive relief, and because the parties are from different states: Spa Dogs is principally based in Pennsylvania, whereas Massage Envy is principally based in Arizona.

Spa Dogs is seeking the court to grant its emergency petition for injunctive relief and thereafter, a permanent order for injunctive relief.

The plaintiff is represented by John E.D. Larkin of Gawthrop Greenwood, in West Chester.

The defendant is represented by Matthew Aaron Goldberg of DLA Piper Rudnick Gray Cary US, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-01623

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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