HomeMy WebLinkAbout96-05581
R.HOADS B SINON LLP
ATTORNEYS AT LAW
PETER. .... HONAMAN
ROBERT A. LONCO
I', NOklll UM[ ., rRF.[T
.M WEST 5TJEGEl. STREET
MANHEIM, rA 1/'.4')
; 717, GG5 ?'?G2
LANCASTER, PA 17G02
M. LUCilE SEAMAN
JESSE Ro. R.UHL
KIMBERLY ALBRIGHT NOEl
DEAN F. PIER-MATTEI
TELEPHONE:. 717. 397-5127
fAX'7l?,3<]7.5207
410 MAIN 5TR.t:E r
LANDI5VlllE.. PA l7538
i 717',898-2<-119
November 12, 1996
Hon. Kevin A. Hess
CUMBERLAND COUNTY COURTHOUSE
1 Courthouse Square
Carlisle PA 17013-3387
RE: F&L FITTINGS COMPANY vs C. RANDALL DISSINGER
NO. 96 - 5581 - IN EQUITY
Dear Judge Hess:
At the close of testimony at the hearing held on Friday I
November 8, 1996, Your Honor requested that I provide case law
in support of my position that a preliminary injunction should
not be entered against C. Randall Dissinger in the above-
referenced matter.
I believe that Plaintiff, F&L Fluid components, is not
entitled to a preliminary injunction for two reasons: (1)
Plaintiff has not established those elements necessary for the
grant of a preliminary injunction; and (2) the underlying
covenant, "Employment Contract" (Exhibit 1 at hearing), is not
enforceable.
1. PRELIMINARY INJUNCTION. "The fundamental law is
rather clear that a court may grant a preliminary
injunction only where the moving party establishes the
following elements: (1) that relief is necessary to
prevent immediate and irreparable harm which cannot be
compensated by damages; (2) that greater injury will
occur from refusing the injunction than from granting it;
(3) that the injunction will restore the parties to the
status quo as it existed immediately before the alleged
wrongful conduct; (4) that the alleged wrong is manifest,
and the injunction is reasonably suited to abate it; and
(5) that the plaintiff's right to relief is clear."
Lewis v. city of Harrisburq, 631 A2d 807 (pa. Cmwlth.
1993) .
HARRISBURG OFFICE:
DAUPHIN BANK RUllD1NC,I?Tll fLOOR,ONt SOUTH MARKET SQUAR[., P.O. BOX II,tG,HARRISBURC,PA 17108.II<lG
TELEPHONE 17171233-5731, FAX (717) 232-1<159
YORK OFFICE:
119 EAST M^,U;'tT STRtE.T, YOIlI~, PA 17401, TELEPHONE (7171 843-89(18, FAX (7171 843.5GG4
AfFllIATtD OFfiCE:
SUITE 301, 209 W. CAMINO CARDENS Bl.VD., BOCA RATON, rl. 3343?, Ttl.tPflONE (4071 305'5595, FAX 1407\ 305'9497
Hon. Kevin A. Hess
November 12, 1996
Page 2
I submit that Plaintiff offered no testimony that even tended
to show that he would suffer immediate and irreparable harm in
the absence of the relief he seeks. Perhaps, if given the
opportunity, Plaintiff could show immediate and irreparable
harm at a later hearing, but he failed to show such harm at
the hearing for a preliminary injunction. Nor did Plaintiff
show that greater injury will occur from refusing the
injunction than from granting it. There was some testimony
that Defendant would have a "competitive edge" if allowed to
continue to compete with Plaintiff, but there was an absence
of specific evidence as to what harm Plaintiff has suffered.
Further, Plaintiff did not, nor COUld he, show that the
injunction will restore the parties to the status quo as it
existed immediately before the alleged wrongful conduct. Mr.
Dissinger has been employed by Dees FlUid Power, a competitor
of Plaintiff, since he terminated his employment with
Plaintiff several months ago. Plaintiff introduced the letter
of resignation submitted to Plaintiff by Defendant, which
letter is dated July 24, 1996. Nor has Plaintiff shown that
the alleged wrongful conduct, i.e., Defendant's engaging in
conduct being pursued by thirty or thirty-five other competing
salesmen, is manifest, and that an injunction is reasonably
suited to abate it. In light of the above, Plaintiff's right
to immediate injunctive relief is anything but clear.
The Superior Court recognized this principle in Insulation
Corporation of America v. Brobston, 667 A2d 729 (Pa. Super
1995) by stating: "We also emphasize. , . that a preliminary
injunction is an extraordinary remedy to be utilized only
where the Plaintiff has established a clear right to relief ,II
2. ENFORCEABILITY OF THE RESTRICTIVE COVENANT.
Insulation Corporation of America case also sets
the requirements for enforceability of a
competition" covenant:
The
forth
II non-
"More specifically, where a restrictive covenant has been
entered into between an employer and its employee, our
courts have permitted the enforcement of post-employment
restraints only where they are ancillary to an employment
relationship between the parties, the restrictions are
reasonably necessary to protect the employer, and the
restrictions are reasonably limited in duration and
geographic extent." 667 A2d 729 @ p. 733.
Hon. Kevin A. Hess
November 12, 1996
Page 3
It is the requirement that the restrictions be
"reasonably necessary to protect the employer" that makes
this covenant unenforceable. Although Plaintiff alleges,
in his complaint, that Defendant was privy to plaintiff'S
confidential information, and that such information is
"competitively sensitive," when asked on cross-
examination to specify why it is important to keep this
information conf idential, Defendant could only respond
that "our customers are the onlY thing we have" and that
it would be easier for Defendant to compete with F&L
because he knows customers names, the type of product
Plaintiff is selling, and the brand names they are
selling, On the other hand, Defendant testified,
supported by a disinterested third party, Steve Transue,
actually a competitor of both Plaintiff and Defendant,
that the information that Plaintiff claims is
confidential is known, or easily obtainable, by any
number of competing salesmen in the industry.
"The salient issue for our determination is whether
enforcement of the "non-competition" covenant under these
circumstances is reasonable. post-employment restrictive
covenants are subject to a more stringent test of
reasonableness than covenants ancillary to the sale of a
business. This heightened scrutiny stems from a
historical reluctance on the part of our courts to
enforce any contracts in restraint of free trade,
partiCUlarly whe:ce they restrain an individual from
earning a living at his trade. This close scrutiny also
stems from our recognition of the inherently unequal
bargaining positions of employer and employee when
entering into such agreements." Insulation corporation
of America, @ 733.
Thermo-Guard. Inc. v. Cochran, 596 A2d 188, (Pa. super
1991) also sets forth this additional requirement for
enforceability: "Although most cases dealing with the
enforceability of restrictive covenants focus on whether
the covenant provides reasonable temporal and geographic
limits, there is an additional requirement for
enforceability of such covenants. That is, such
covenants must serve to protect a legitimate, i. e. a
legally protectible, interest of the employer. (p. 193)
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SAIDIS, GUIDO,
SHUFF &
MASLAND
26 W, High Street
CArlisle, PA
5.
Said
was
"Employment
Contract"
entered
into
and
executed by
the
parties
in Camp
Hill,
Cumberland
County,
Pennsylvania.
6. Defendant began work for Plaintiff pursuant to the
terms of
the aforesaid "Employment Contract" and continued
working for Plaintiff until JUly 24, 1996.
7. On or about JUly 24, 1996 Defendant vOluntarily left
the employment of Plaintiff.
8. Paragraph 5 of the 'Employment Contract" provides as
follows:
Employee recognizes ~nd acknowledges that the list of the company customers, the
names of its subcontractors and the names of its employees, as they may exh.t from time to
time, are vaLuabLe, speciaL and unique assets of the company's business. Employee \oJ; Lt
not, during or after the term of his employment, disclose the list of the company's
customers or any part thereof I the names of its subcontractor or the names of its
employees, to any person, firm, corporation, association, or other entity for any reason
or purpose whatsoever. In the event of a breach or a threatened breach by the employee of
this provisions of this paragraph, company shall be entitled to an injunction restraining
the employee from disclosing, in whole or in part, the list of the company's customers or
names ~f its employees, or from rendering any services to any person, firm, corporation,
association, or other entity to whom such list, in whole or in part, has been disclosed or
is threatened to be disclosed. Nothing herein shall be construed as prohibiting the
company from pursuing any other remedies avai lable to company for such breach or threatened
brea~h, including the recovery of damages from employee,
9. Paragraph 6 of the "Employment Contract" provides as
follows:
Employee further acknowledges that he will receive or has received, at company's
expense, training, materials, advice and assistance; that he has been and wi II be brought
into contact with the company's agents, suppliers and customers; and that he will have
access to the company's trade secrets, confidential information, processes, operating
techniques, and customer and suppl ier information, and that such are important and unique
property of the company which the employee recognizes and agrees is reasonable 8nd
necessary for the protection of company's business interest, and that employee agrees not
to compete with the company during his employment and for a reasonable and limited period
thereafter in the manner described hereinafter.
WHEREFORE, employee agrees that, for a period of two years following the
tp.rmination of his employment, whether his employment is terminated by him voluntarily or
by the company for cause as defined in Paragraph 9 herein, he will not solicit any of the
customers of company who were customers of company at the time of the termination of his
employment for any other company or business in competition with company without fi rst
hiJ.Ii'lg obt~;rlect the writ'.en censcnt of company. In the e'Ient of an actual or threatened
orec){.h of employee of the provisions of this paragraph, company shall be entitled to an ex
part~ injunction and an interlocutory injunction restraining employee from violating the
provisions of this paragraph prior to the determination by a court of competent
juri~oiction of company's right to a final injunction, Company shalt, in addition to the
above, be entitled to pursue any other remedies avai lable to it, ine;luding .'ecovery of
damages from employee.
2
'AIIlIS. GUIIlO
& MASLANIl
;!109 Markel SIre!.'l
Camp Hill. PA
employment, disclose the list of the company's customers or any
part thereof, the names of its subcontractor or the names of
its employees, to any person, firm, corporation, association,
or other entity for any reason or purpose whatsoever. In the
event of a breach or a threatened breach by the employee of
this provisions of this paragraph, company shall be entitled to
an injunction restraining the employee from disclosing, in
whOle or in part, the list of the company's customers or names
of its employees, or from rendering'any services to any person,
firm, corporation, association, or other entity to whom such
list, in whole or in part, has been disclosed or is threatened
to be disClosed. Nothing herein shall be construed as pro-
hibiting the company from pursuing any other remedies available
to company for such breach or threatened breach, including the
recovery of damages from employee.
6. Employee further acknowledges that he will receive
or has received, at company's expense, training, materials,
advice and assistance; that he has been and will be brought
into contact with the company's agents, suppliers and
customers; and that he will have access to the company's trade
secrets, confidential information, processes, operating
techniques, and customer and supplier information, and that
such are important and unique property of the company which the
employee recognizes and agrees is reasonable and necessary for
the protection of company's business interest, and that
SAIDIS, GUIDO,
SHUFF &
MASLAND
26 w. High Street
Carli.'lle,PA
F&L FITTINGS COMPANY t/d/b/a
F&L FLUID COMPONENTS,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 96- ..';-;]'/
EQUITY TERM
C. RANDALL DISSINGER,
Defendant
IN EQUITY
MOTION FOR PRELIMINARY INJUNCTION
NOW, comes the Plaintiff, F&L Fittings Company t/d/b/a F&L
Fluid Components by its counsel, Edward E. Guido, Esquire and
moves the Court to set a hearing date on this Motion for a
Preliminary Injunction and, after hearing, to enter a preliminary
injunction in the form attached hereto against Defendant C.
Randall
Dissinger
("Dissi.nger" )
and
in support
thereof
incorporates the factual averments of the verified Complaint of
Plai.ntiff filed in this matter by reference.
WHEREFORE, Plaintiff requests the Court to enter an Order
setting a hearing date on this Motion for Preliminary Injunction
and, after hearing, to enter a preliminary injunction in the form
attached to this Motion and grant such other and further relief
as may be appropriate.
Date: /011(1"
Respectfully submitted,
SAIDIS, GUIDO,
F & MASLAND
By:
Edward E. Guido, Esquire
Supreme Ct. I.D. # 21206
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Attorney for Plaintiff
SAIDIS, GUIDO,
SHUFF &
MASLAND
~6 W High Slrccl
Carlisle, PA
5.
Said
entered
into
and
"Employment
Contract"
was
executed by
the parties
Hill,
Cumberland County,
in Camp
Pennsylvania.
6. Defendant begun work for plaintiff pursuant to the
terms of the
aforesaid "Employment Contract"
and continued
working for Plaintiff until July 24, 1996.
7. On or about July 24, 1996 Defendant voluntarily left
the employment of Plaintiff.
8. Paragraph 5 of the "Employment Contract" provides as
follows:
Employee recognizes and acknowLedges that the list of the company customers, the
names of its subcontractors and the names of its employees, as they may exist from time to
time, are valuabLe, special and unlque assets of the company's business. Employee ....ill
not, during or after the term of his employment, disclose the list of the company'S
customers or any part thereof, the names of its subcontractor or the names of ltS
employees, to any person, firm, corporation, association, or other entity for any reason
or purpose whatsoever. In the event of a breach or a threatened breach by the employee of
this provisions of this paragraph, company shall be entitled to an injunction restraining
the employee from disclosing, in whole or in part, the list of the company' S customers or
names of its employees, or from rendering any services to any person, firm, corporation,
assoc1ation, or other entity to whom such list, in whole or in part, has been disclosed or
is threatened to be discl05ed, Nothing herein shall be construed as prohibiting the
company from pursuing any other remedies avai lable to company for such breach or threatened
breach, including the recovery of damages from employee.
9. Paragraph 6 of the "Employment Contract" provides as
follows:
Employee further acknowledges that he will receive or has received, at company's
expense, training, materials, advice and assistance; that he has been and wi II be brought
into contact wHh the company's agents, suppliers and customers; and that he will have
access to the company's trade secrets, confidential information, processes, operating
techniques, and customer and supplier information, and that such are important and unique
property of the company which the employee recognizes and agrees is reasonable and
necessary for the protection of company's business interest, and that employee agrees not
to compete with the company during his employment and for a reasonable and limited period
thereafter in the manner described hereinafter.
I,
'I
II
I
UHEREFORE, employee agrees that, for a period of two years following the
termInation of his employment, whether his employment ;s terminated by him voluntarily or
by the ~ompany for cause as defined in Paragraph 9 herein, he will not solicit any of the
customers of company who were customers of company at the time of the termination of his
employment for any other company or business in compe.~ition with compo'lny "Without first
r.""i~'1<; ob:.:t;ned the wri~f.en c('nsent of r.ompar:y. In the e',ent of an actuill or threatened
oredr.h of employee of the provislons of this paragraph, company shalt be entltled to an ex
partE: injUnctlon and an interlocutory injunction restr'aining employee from violating the
pro\/lsions of th15 paragraph prlor to the determination by a court of competent
JurlSolctiQn of company's rIght to a final In]unction. Company shall, In additlon to the
ilbove, be entitled to pursue any other remedies available to it, inc.luding r'ecovery of
damages from employee.
2
10. During the term of his employment with Plaintiff,
Defendant received the training and access to Plaintiff's
confidential information as described above.
]]. All of the information and items set forth above were,
and were known by Defendant to be, competitively sensitive
information which Plaintiff treated as confidential, proprietary
information, inasmuch as the disclosure of such information and
items would operate to the detriment of Plaintiff and to the
commercial advantage of Plaintiff's competitors.
12. Defendant was employed in a position of confidence and
trust with Plaintiff, and in such a position, he knew or should
have known the confidential and proprietary nature of the
aforesaid items and information.
13. During the term of Defendant's employment with
:1
Plaintiff, Defendant was Plaintiff's representative in dealing
with various of Plaintiff's customers.
14. Shortly after leaving his employment with Plaintiff,
Defendant accepted a position with Dee's Hydraulics, a division
of Bearings, Inc., a direct competitor of Plaintiff.
15. Defendant has contacted all of Plaintiff's salesmen and
attempted to entice one of them to work for his current employer.
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 w. Uigh Slrccl
Carlisle,I'A
16. Defendant has and continues to deal with many of
Plaintiff's customers with whom he dealt with as an employee of
Plai.ntiff in connection with his business dealings with his
current employer.
Those customers include, but are not limited
3
,.,\IIlIS. GUIIlO
,~ MASLANIl
!109 Markel Screel
Camp Hill. P^
.'
'-
employment, disclose the list of the company's customers or any
part thereof, the names of its subcontractor or the names of
its employees, to any person, firm, corporation, association,
or other entity for any reason or pur.pose whatsoever.
In the
event of a breach or a threatened breach by the employee of
this provisions of this paragraph, company shall be entitled to
an injunction restraining the employee from disclosing, in
whole or in part, the list of the company's customers or names
of its employees, or from rendering'any services to any person,
firm, corporation, association, or other entity to whom such
list, in whole or in part, has been disclosed or is threatened
to be disclosed. Nothing herein shall be construed as pro-
hi biting the company from pursuing any other remedies available
to company for such breach or threatened breach, including the
recovery of damages from employee.
6. Employee further acknowledges that he will receive
or has received, at company's expense, training, materials,
advice and assistance; that he has been and will be brought
into contact with the company's agents, suppliers and
customers; and that he will have access to the company's trade
secrets, confidential information, processes, operating
techniques, and customer and supplier information, and that
such are important and unique property of the company which the
employee recognizes and agrees is reasonable and necessary for
the protection of company's business interest, and that
employee agrees not to compete with the company during his
employment and for a reasonable and limited period thereafter
in the manner described hereinafter.
MIEREFORE. employee agrees that, for a period of two
years following the termination of his employment, whether his
employment is terminated by him voluntarily or by the company
for cause as defined in Paragraph 9 herein, he will not sOlicit
any of the customers of company who were customers of company
at the time of the termination of his employment for any other
company or business in competition with company without first
having obtained the written consent of company. In the event
of an actual or threatened breach by employee of the provisions
of this paragraph, company shall be entitled to an ex parte
injunction and an interlocutory injunction restraining employee
from violating the provisions of this paragraph prior to the
determination by a court of competent jurisdiction of company's
right to a final injunction. Company shall, in addition to the
above, be entitled to pursue any other remedies available to
it, including recovery of damages from employee. '
\ 1I115. GUIDO
,\ MASLANO
7. Employee is entitled to incur reasonable expenses
for promoting the business of company provided that such expen-
ilf'l,\larlr.cl Slreet
(":llnp Hill. PA
ses are approved by the company's president; and he is entitled
to reimbursement for such expenses upon presentation of prop-
erly itemized accounts.
S,\IIl1S. GUIIJO
,~ MASI.ANIl
21(l<,1l\lark~1 SHeel
Camp flill. PA
11. This agreement supercedes all previous agreements,
if any, between company and employee, an it contains the entire
agreement between them. No representations, promises or under-
standings, either expressed or implied, other than herein set
forth shall be binding upon either compar,y or employee; and
none of the provisions of this agreement shall be waived,
altered or amended, except by a writing signed by company and
employee. In the event that any of the provisions of this
agreement may be declared void or unenforceable, such provis-
ions shall be deemed separate and distinct from the other
provisions of this agreement, which shall remain in full force
and effect. Waiver by the company of employee's failure to
comply with any portion of this agreement shall not be con-
strued as a waiver of any subsequent breach by employee.
12. In the event that employee may undertake different
duties for the company than those described above, all other
terms and provisions of this agreement shall continue to remain
in full force and effect so long as employee is employed in any
capacity by company.
13. Employee represents and warrants to company that
his employment by company is not an actionable breach or
violation of any contract of employment or no-compete
provisions which employee has with a prior employer and
'AIllIS, GUmO
& MASLANI>
~1U9 Markel Slreel
Camp Hill. PA
employee agrees to hold the company harmless on account of any
suit or claims instituted in relation to a prior contract of
employment to which employee was a party.
14. EMPLOYEE ACKNOWLEDGES THAT HE HAS READ AND FULLY
UNDERSTANDS EACH AND EVERY PROVISION OF THIS DOCUMENT, AND HE
DOES IIEREBY ACCEP'I' AND AGREE TO TilE SAME.
IN WITNESS WHEREOF, the parties hereto have set their hands
and seals the day and year first above appearing.
ATTEST:
F & L FITTINGS COMPANY
Secretary
~~R
(J .H " r 0,,.1r...
President
WITNESS:
0.!LJlv Ahnd
.
(SEAL)
"
SHER~(F's...oFFICl::.. "
50 NORTH DUKE STREET LANCASTER. I-'~SYlVAN1A 17602. (717) 299-8200
,
I INSTRUCTIONS FOA SERVICE OF PROCESS on !lIe r...or58 ollho last (No.
~) COpy vI this torm Pleas. lype or pf'nl lflgJoly 00 not dotach any tOpIRS.
I.. .._...._.~ ._____._._..____
i'2 COUnT NUMHEfl
'96-5581 Equity Term
;.l TYPEuOF Wflt r QH COMPLAINT
I
c. Randall Dissinger I COmplaint ______..__
SE..RVE {- 5 NAMr OF INDIVIDUAl, COMPAN'( (,(JHf'llltATIOf'j Ere TQBE:;SE:fM:D :i::
C. Randall Dissinger _
fj ADDRESS (Stmot or RFD ^p.H1ITIt'1\1 n, c'ly litHO Twp Sldl.) ;lrlll ZIfJ Crill."
AT _l~L!:Iorth...CharlQ.tte.. SL ,._t-1_"l}tL~im,_PA ___ n
7 INDICATE ..~.~~UAl SERVICE _ ~~~_~.?~__?_~_r'~X DfI'UTIlI OTHER...c:.um ber 1 and ,_ .___..,_".. . . __ -------=.-~===--J
Now, .D.cL_..lO__ . .. 199.6.._, I, SHERIFF OFXICI'llOIlSrER COUNTy.~A.. d ~bli.lfeput,ze the S~')8' >-l
ha-A-Ga&t-e-E---~-~---',-,--'----'-'------~--- County to execute this W -'0 ""~e~" n' ~
to law. This d~putatlon b~l~g~~~_~._~!..t_h~_~~u~_st and risk of t~~ plalnt.lff, ..,"H'''' '~~"iI')':,i-!ll(:(~';:;"_' 7'~ ------====-__LO
8. SPEC'AlINSTRUCTI,j"NS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE: -
'"
?l
SHERIFF SERVICE
PROCESS RECEIPT, and AFFIDAVIT OF RETURN
PLAINTIFFISI
F&L Fitt.:ings Company
3. DEFENDANT/51
tjd/b/ iJ
1'&1.
I'luid
Components
l::~j:-(_;.~.
w
I
. ------.-------.----.-- .-..--.-.------.---------
~OTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN - Any (]"P,)ly ',Iu!ntl lev'jlflg upon or attile/lIng any prop'~rly ulIder
"n Writ may leavIJ same wlthQllt il watchman, In cuslody 01 ....~lorn()VL'r I~; !ound 111 pr,S~ic~;s,on, alter n',t:ly,rHJ IJf'rSOfl of I('vy or attilc~mcn!, Wllhout Ilablllty on
, of such deputy or It,D sheriff to any plillnllll hf'fl)'n IOf ,trl'{ 10',', dw;!rLJcrlon or rernov;oI 01 any such pfOP'Jf!Y hefOfQ S~lQflfrs saiD thereof
..ifURE0I'AfiORNEY"~r"othc; O-RiOINATOR i '-0 TEIEPHONE-NUMBER------ j 11 DATE------~-~~
Cu'1BE:F\.~Al'f.O"'_CQ..~ERIE'E'....P[)_I\DV. COSTsm______1 243-E2_~2____ ___ ___Ul-9-9J;
12. SEND NOTICE OF SERVICE COPY TO NAME AND ADDRESS BELOW: (This area musl be completed jf notice is 10 be mailed)
EDWARD E GUIDO, ESQ. AT 26 W HIGH ST., CARLISLE, PA 17013
SPACE BELOW FOR US'E OF SHERIFF ONLY - Do' NOT WRITE BELOW THIS LINE
'. } NAME CJIAuthorr'.~(1 LC.S 0 Deputy Of Clerk. 114, OatD Received 15 E)(piratronlHeanng dale
13. I acknowedge receipt of lhe writ
or complaint as Indlc:ated above. ;_nv<"OY-MORRI-S-- _______ ---~---295_3609__ 10-15-96 11- _
16. I hereby CERTIFY and RETURN that I ~a~~ pl!fsonally serve(j, Ililve logal eVidence of 50rv,w a~ ~ho\\ln In -Remarks", have executed <is shown In
"Romi1lks". the wnl or complaint described on rhe indiVidual, company, C:Ofpora!lon, erc" at tho address shown above or on the IndiVidual, company, cor.
porallon. otc. a! lhe address Insoned below by handing a TRUE and ATTESTED COPY therool.
17. I t1ereby certify and return a NOT FOUND because I_~l~_~~~~_ro loc~_~~~t~~.:!.i~~~~I.~I:,.I~"~_~(J~_r~~~n. etc, named above. (See remarks bf!low)
18. Name and title of IndiVidual served (If not shown abovel {Rnl;l!lon&lllilIODdendaflt} 19 A pmson at su,t.lbl<l d\le '-lIld dIscretIon
thun ms'don(l. In Ihedn!end,tnfS usual
placeotabode
20, Address at where served (complote only It dIHelCnl'.thilll5ho-;';;11;11;(;;el(Slr-Cf;lo-r.n-F'-D~ Ap;;-ri"molllN-O.-Clty, BOfO. Twp
State and ZiP COdB)
21. Dale 01 SOrvlW 22. Timo
-
PM
EST
.....
//- .r-7'c 3-;zS'
23, ATTEMPTS
24 Advanco Costs
Dcp 'n~~glfl~Ttl~~~~:I;~l~dJK~Jr~~l;~~ ~n' //_?
ServlcoCo&rS [26 ~ ~47 Md."g,e"'"q"NF 928 }""'C,," 29
30.50 __h.n ![-.:3.LlJQ ____J_lfJ....L50
R87687 100.00
30. REMARKS:
S.TA:
31. AFFIRMED and subscribed 10 belore m() lhis ___Ll=,~4'--:J-~----l.n. ____n_
:3::)j~J:~ (h "0.--~~:t .
prnlhonot;liV~'~r-;-,.;;;-.n- -~---- -~----- - .
MY C MMISS10N EXPIRES ~
38. I ACKNOWLEDGE RECEIPT OF THE SHERIFFS RETURN SIGNATURE}
OF AUTHORIZED ISSUING AUTHORITY AND TITLE.
.----..----.--..-......- .______.___._n._.
3.1 [);llf!
'/-?-fG
"'1)2-1-1 tp
~nI'CI'IVf'd
SAIDIS, GUIDO,
SHUFF &
MASLAND
26 W. High Street
Cnrlisle, PA
CERTIFICATE OF SERVICE
On this 13th day of November, 1996, I, Edward E. Guido,
Esquire, hereby certify that I served a true and correct copy of
the foregoing Memorandum upon counsel for all parties of record
via United States Mail, postage prepaid, addressed as follows:
Robert A. Longo, Esquire
RHOADS & SINON
15 North Lime Street
Lancaster, PA 17602
DATED: 11/13/96
"'''', ~:
By: ~
Edward E. Guido,
& MASLAND
Esquire
\
2. Employee will perform the duties of sales manager,
as well as such reasonable duties as may be required in the
,
best interest of the company's business.
3. For all services rendered by employee as a salesman
under this agreement, company will pay to employee a (salary;
(wages) of $ 77".77
per ~-rA:-
, for the six months,
together with such bonuses and fringe benefits as may from time
to time be decided upon by the company for the benefit of its
employees. At the conclusion of the six-month period, company
will provide employee with a compensation arrangement which is
a combination of salary and commissions on sales.
4. Employee shall devote his full normal work time,
attention and energy to the business of the company and shall
not, during the term of this agreement, be engaged in any other
activity which shall interfere materially with his duties
hereunder.
\IIlIS. GlIlIJO
.~ MASJ.ANl>
'If}<) Markel Streel
Camr Hill. PA
5. Employee recognizes and acknowledges that the list
of the company customers, the names of its subcontractors and
the names of its employees, as they may exist from time to
time, are valuable, special and unique assets of the company's
business. Employee will not, during or after the term of his
'AIIlIS_ (;\I11l0
& MAS1.ANIl
210'1 MM~CI Street
Camp Hill. PA
employment, disclose the list of the company's customers or any
part thereof, the names of its subcontractor or the names of
its employees, to any person, firm, corporation, association,
or other entity for any reason or purpose whatsoever. In the
event of a breach or a threatened breach by the employee of
this provisions of this paragraph, company shall be entitled to
an injunction restraining the employee from disclosing, in
whole or in part, the list of the company's customers or names
of its employees, or from rendering-any services to any person,
firm, corporation. association, or other entity to whom such
list, in whole or in part, has been disclosed or is threatened
to be disclosed. Nothing herein shall be construed as pro-
hibiting the company from pursuing any other remedies available
to company for such breach or threatened breach, including the
recovery of damages from employee.
6. Employee further acknowledges that he will receive
or has received, at company's expense, training, materials,
advice and assistance; that he has been and will be brought
into contact with the company's agents, suppliers and
customers; and that he will have access to the company's trade
secrets, confidential information, processes, operating
techniques, and t"u:;tomer and :~lJpplier infonnCltion, and ~hat
such are important and unique property of the company which the
employee recognizes and agrees is reasonable and necessary for
the protection of company's business interest, and that
\ IIlIS. GUmO
.\ MASLAND
;1)'1 Markc:(Streel
Camp Hill. PA
. - ~.....
employee agrees not to compete with the company during his
employment and for a reasonable and limited period thereafter
in the manner described hereinafter.
WHEREFORE, employee agrees that, for a period of two
I
years following the termination of his employment, whether his
employment is terminated by him voluntarily or by the company
for cause as defined in Paragraph 9 herein, he will not solicit
any of the customers of company who were customers of company
at the time of the termination of his employment for any other
company or business in competition with company without first
having obtained the written consent of company. In the event
of an actual or threatened breach by employee of the provisions
of this paragraph, company shall be entitled to an ex parte
injunction and an interlocutory injunction restraining employee
from violating the provisions of this paragraph prior to the
determination by a court of competent jurisdiction of company's
right to a final injunction. Company shall, in addition to the
above, be entitled to pursue any other remedies available to
it, including recovery of damages from employee. .
7. Employee is entitled to incur reasonable expenses
for promoting the business of company provided that such expen-
ses are approved by the company's president; and he is entitled
to reimbursement for such expenses upon presentation of prop-
erly itemized accounts.
. --..
F & L FITTINGS COMPANY
l/d/b/a F & L FLUID
COMPONENTS,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
96.5581 EQUITY TERM
VS.
C. RANDALL DISSINGER,
Defendant
IN EQUITY
IN RE: MOTION FOR PRELIMINARY INJUNCTION
DECREE NISI
AND NOW, this
3~
day of December, 1996, following hearing, the motion of
the plaintiff, F & L Fittings Company t/d/b/a F & L Fluid Components, for preliminary
injunction is DENIED.
Edward E. Guido, Esquire
For the Plaintiff
BY THE COURT,
r.~,.,..'r~~/J./31r;(".
- ,-,u .J P.
Robert A. Longo, Esquire
For the Defendant
:rlm
..... -......
.-
...
<)6-5581 EQUITY TERM
reports, and a VIP customer sales analysis; so-called because it was available only to important
persons in the company. The sales analysis included a list of products which were sold to each
customer as well as information on the company's profit margin. The identity of potential
customers is, however, well known throughout the trading world of which F & L Fittings
Company is a part. In addition, Mr. Dissinger, having been a salesman in the same business for
many years, gained no particular insights into salesmanship by virtue of his employment with F &
L Fittings.
On or about July 24, 1996, Mr. Dissinger submitted his letter of resignation to F & L
Fluid Components. He has since gone to work for Dees Corporation. Dees sells only three or
four of the twenty-eight products which Fluid sells. The companies arc, otherwise, not
competitors, as one deals primarily with pneumatic parts and the other with hydraulics. While it
appears that Mr. Dissinger has called on some customers of the plaintiff, there is no evidence
that he has attempted to elicit orders for products marketed by F & L.
The requirements for the grant of a preliminary injunction arc now well established.
They include findings that: (I) Relief is necessary to prevent immediate and irreparable harm
which cannot be compensated by damages; (2) greater injury will occur from refusing the
injunction than from granting it; (3) the injunction will restore the parties to the status quo as it
existed immediately before the alleged wrongful conduct; (4) the alleged wrong is manifest, and
the injunction is reasonably suited to abate it; and (5) the plaintiffs right to relief is clear. Lewis
v. City of Harrisburg. 158 Pa.Cmmwlth. 318, 631 A.2d 807 (1993). In this case, at least two of
the foregoing criteria have not been met.
First, the factual record before us docs not support a conclusion that the plaintiff is about
to suffer immediate and irreparable harm. As we have noted above, the competition between F
2
...
%-5581 EQUITY TERM
& L Fittings Company and Mr. Dissinger's new employer is only with respect to a handful of
products. In addition, there is no evidence as yet adduced that Mr. Dissinger is attempting to
market F & L's products.
Second, we arc not satisfied that the plaintiffs right to relief is clear. In order for a "non-
competition" clause to be enforceable it must, among other things, be reasonably limited in both
time and territory.
More specifically, where a restrictive covenant has
been entered into between an employer and its
employee. our courts have permitted the
enforcement of post-employment restraints only
where they arc ancillary to an employment
relationship between the parties, the restrictions arc
reasonably necessary to protect the employer, and
the restrictions arc reasonably limited in duration
and geographic extent.
Insulation Coro. of America v. Brobston, 446 Pa.Super. 520, 667 A.2d 729, 733 (1995).
In Brobston, the employment contract, as in the instant case, contained a covenant that
the employee would not disclose the identity of the employers customers or other information of
a confidential nature developed by the employer in carrying out the employer's business. Other
than having gained some insight into ICA's interworkings, Brobston had acquired no skill or
knowledge by virtue of his employment relationship. The court went on to note:
... [W]e arc of the opinion that injunctive
enforcement of the "nondisclosure" clause provides
the relief necessary to protect ICA's legitimate
business interests. In Morgan's Home Equipment
Coro. v. Martucci [390 Pa. 618, 136 A.2d 838
(1957)1 supra at 632, 136 A.2d at 846-47, our
Supreme Court concluded that although former
employees had obtained confidential information,
the employer was adequately protected by a decree
enjoining disclosure of the information, thereby
preventing the former employees from benefiting
3