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HomeMy WebLinkAbout2018-12418PFB MEMBERS' SERVICE CORPORATION, Plaintiff V. CONNIE DENNISON aka CONNIE RANSOM, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 2018-12418 CIVIL TERM IN RE: PLAINTIFF'S PETITION FOR PRELIMINARY INJUNCTION BEFORE OLER, S.J. OPINION and ORDER OF COURT OLER, S.J., December 27, 2018. In this equity case involving a covenant not to compete, Plaintiff seeks a preliminary injunction enjoining Defendant, a former employee of Plaintiff, from soliciting or serving current or former clients of Plaintiff within a certain geographical area. A hearing on the petition was held on December 14, 2018. For the reasons stated in this opinion, Plaintiff s petition will be denied. STATEMENT OF FACTS The evidence presented at the hearing on Plaintiff's Petition for Preliminary Injunction tended to show the following: Plaintiff is PFB Members' Service Corporation, a business organization with its principal office in Camp Hill, Cumberland County, Pennsylvania, that provides business services, primarily to Pennsylvania farmers, including accounting, payroll, and tax services. Defendant is Connie Dennison, also known as Connie Ransom, an adult individual residing in Donegal, Westmoreland County, Pennsylvania. From September 5, 2000, until August 30, 2018, when she left this employment with the title of account supervisor, Defendant was employed by Plaintiff, and in the two years preceding her departure she served Plaintiffs clients in the Pennsylvania counties of Westmoreland, Fayette, and Somerset. Upon leaving Plaintiff's employment, Defendant began to work for its chief competitor, a company known as AgChoice Farm Credit, and a significant number of her former clients have terminated their contracts with Plaintiff. One such client, in terminating Plaintiffs services, advised Plaintiff that he "only wanted Connie & no one else from Farm Bureau," and another wrote "I'm sure Sarah will do a good job, it's just that Connie has done are books for so long."" Defendant's employment contract with Plaintiff contained the following covenant not to compete: B. Employee hereby covenants and agrees with Employer that, during the "Non - Compete Period" and within the "Non -Compete Area," Employee shall not directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director, or in any other individual or representative capacity, engage in or participate in any business which provides any goods or services competitive in any way with the goods and services provided by Employee for Employer under this Agreement nor shall Employee, directly or indirectly, solicit the business of any customers/clients of the Employer or perform for such customers or clients, nor solicit the performance, neither in person nor through any other entity with which he/she is associated, any of the services of the nature of those performed by Employee for Employer. C. The "Non -Compete Period" shall commence on the date hereof and terminate two (2) years after expiration or termination of Employee's employment with Employer under this Agreement. The "Non -Compete Area" shall be the geographic territory or territories assigned to Employee in the last two (2) years of his/her employment with Employer and shall be limited only to PFB members in said territory or territories.2 In pursuing a preliminary injunction, Plaintiff does not seek to enforce the portion of the covenant prohibiting Defendant from engaging or participating in a competing business. It seeks instead to enforce the second aspect of the provision, relating to her solicitation or servicing of Plaintiffs current or former clients. At the hearing, Defendant categorically denied doing so in testimony elicited by Plaintiff, and the other evidence presented by Plaintiff can not fairly be said to have demonstrated otherwise. STATEMENT OF LA In general, the decision to grant or refuse a request for a preliminary injunction is within the sound discretion of the trial court. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 828 A.2d 995 (2003). "A preliminary injunction is an 1 Plaintiff's Ex. 4, Hearing, December 14, 2018. 2 Plaintiff's Ex. 1, Hearing, December 14, 2018/ K extraordinary remedy and should only be granted where the plaintiff has established a clear right to the relief requested." Hart v. O'Malley, 544 Pa. 315, 3 18 n. 1, 676 A.2d 2211 The essential prerequisites for issuance of a preliminary injunction have been lffl�� MVIIJ-11a, i t.YJUNWI to prevent immediate and irreparable harm that cannot be adequately compensated damaggs. Seemd, the ULaWA must show injunction than from granting it, and, concomitantly, that issuance of an injunction wiffil not substantially harm other interested parties in the proceedings. Third, the party mu show that a preliminary hijunction will properly restore the parties to their status as existed immediately prior to the alleged wrongful conduct. Fourth, the party seeking injunction must show that the activity it seeks to restrain is actionable, that its right relief is clear, and that the wrong is manifest, or, in other words, must show that it likely to prevail on the merits. Fifth, the party must show that the injunction it seeks reasonabtp suited to abate the off—m- injunction must show that a preliminary injunction will not adversely affect the p;b intereSt.3 I 'Tor a preliminary injunction to issue, every one of [the] prerequisites must be established; if the petitioner fails to establish any one of them, there is no need to address the others." County of Allegheny v® Commonwealth, 518 Pa. 556, 560, 544 A.2d 1305, 1307 (1988). DISCUSSION In the present case, Plaintiff has not presented evidence which would warrant a finding that Defendant has been, is, or intends to be, in violation of the portion of the covenant not to compete that Plaintiff seeks to enforce by way of a preliminary injunction. In this sense, Plaintiff has failed to show that injury will result to it from a failure to issue a preliminary injunction or that it is likely to prevail on the merits. In the absence of such evidence of actual, or prospective, misconduct on the part of a defendant, 3 Summit Towne Centre, Inc v Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 646-47, 828 A.2d 995, 1001 (2003) (citations omitted). 3 the issuance of an injunction, preliminary or otherwise, would amount to an advisory opinion.4 Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 27`h day of December, 2018, upon consideration of Plaintiff's Petition for Preliminary Injunction, following a hearing held on December 14, 2018, and for the reasons stated in the accompanying opinion, the petition is denied. BY THE COURT, J esley .: Jr., S.J. Wade D. Manley, Esq. Adam C. Zei, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorneys for Plaintiff Benjamin L. Pratt, Esq. Suite 400 200 Locust Street Harrisburg, PA 17101-1508 Attorney for Defendant 4 Cf. Bliss Excavating Co. v. Luzerne County, 418 Pa. 446,211 A.2d 532 (1965). 4