Dimaio v. Commonwealth

636 S.E.2d 456 (2006)

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Nature of the Case

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Facts

D was employed as the director of human resources for S&M Brands, Inc., trading as Bailey's Cigarettes. In July 2003, S&M Brands made a loan of $6,500 to D, memorialized in a written loan agreement signed by D and Stephen Bailey, president of S&M Brands. DiMaio agreed that repayment for the loan, both principal and interest, would be by fixed deduction from his payroll checks commencing in January 2004. D informed S&M Brands on April 7, 2004, that he planned to resign as director of human resources effective April 23, 2004. Bailey then learned that d had contacted an employee in the company's payroll department and directed her to refrain from deducting loan payments from his payroll checks and that she had complied with his request. D was required to repay the balance due on the loan within five days from the date of resignation or termination of his employment. Bailey agreed to extend the period provided D gave S&M Brands the proceeds from his final payroll check and return a check that had been issued to D for his unused vacation time. D agreed but simply ignored the new agreement. When Bailey learned that D had failed to honor the new agreement, he fired d and asked him to leave the company's premises immediately. It was then discovered that certain files that had been located on the computer that S&M Brands had issued to D were missing. S&M Brands' entire human resource directory, including business forms and templates, had been removed from the computer. Approximately 829 personnel files were missing. Signed covenants not to compete that S&M Brands had executed with its employees had been physically removed from S&M Brands' premises. D said he had transferred the computer documents to an off-site server and that he would be 'willing to provide the files to the company under the right circumstances.' D expressed some interest in establishing an agreement to return the files in exchange for forgiveness of the debt that he had personally with S&M Brands. Police executed a search warrant at D's home. They located data that D had taken from S&M Brands. The police officers found the original covenants not to compete, hidden in D's kitchen. At trial, Snell, who had experience in evaluating companies and properties, qualified as an expert witness, without objection, and was permitted to render opinions regarding the market value of the 829 personnel files. He testified that the fair market value of the files exceeded $10,000. 'In-house counsel' for S&M Brands, testified, without objection, that the fair market value of just the computer files were around $3,790 . . . for a HR software package that would cover a sliver of the forms that we had.' He also testified, without objection, that the value of the covenants not to compete exceeded $5,000 because they reflected the researched in ten states where S&M Brands has employees and that the covenants not to compete were created to comply with the employment laws of those states. D was convicted and appealed. D argues that P failed to establish the value of the computer records