HomeMy WebLinkAbout2008-6484 Civil
SOVEREIGN BENEFITS : IN THE COURT OF COMMON PLEAS OF
CONSULTING, INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION
:
WILLIAM HILLER, JR., :
DANIEL SOMMA, and :
CAPITAL INSURANCE :
ADVISORS, LLC, :
Defendants : No. 08-6484 CIVIL TERM
IN RE: PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., February 4, 2009.
In this civil action arising out of an alleged breach of a restrictive covenant
incident to employment, a former employer has sued two former employees and
1
their present company for “equitable, injunctive and monetary relief.” For
2
disposition at this time is Plaintiff’s Motion for a Preliminary Injunction.
A hearing was held on the motion on December 5, 2008. For the reasons
stated in this opinion, the motion will be granted.
STATEMENT OF FACTS
Plaintiff’s complaint alleges that the individual defendants entered into
employee confidentiality and non-solicitation agreements with Plaintiff in October
34
of 2006, that they resigned their positions with Plaintiff in September of 2007,
that they proceeded to form the limited liability company constituting the third
1
Plaintiff’s Complaint for Equitable, Injunctive and Monetary Relief, filed October 31, 2008
(hereinafter Plaintiff’s Complaint).
2
Plaintiff’s Motion for a Preliminary Injunction, filed October 31, 2008 (hereinafter Plaintiff’s
Motion for a Preliminary Injunction).
3
Plaintiff’s Complaint, paras. 3, 7.
4
Plaintiff’s Complaint, paras. 4, 8.
5
defendant herein, and that through the new entity the individual defendants
“contacted, solicited, and [took] away business from [Plaintiff]” in violation of
6
their covenants. The complaint consists of a count against the individual
7
defendants seeking specific performance, and counts against the limited liability
8
company defendant seeking an accounting and seeking money damages for
9
tortious interference with contractual relations.
Defendant has also filed the request for a preliminary injunction sub
10
judice. In this motion, Plaintiff accuses the individual defendants of “operating a
business competitive with Plaintiff . . . and . . . soliciting [Plaintiff’s] clients and
11
‘taking away’ certain business from [Plaintiff]” and of “utilizing, at least in part,
confidential information and trade secrets obtained through their affiliation with
12
Plaintiff.” The motion maintains that “[t]here is no adequate legal remedy for the
harm which results from [their] ongoing breaches of the non-solicitation covenant,
and there is no way to calculate the loss of good will and loss of business
13
opportunities represented by this unlawful solicitation of Plaintiff’s customers.”
The evidence at the hearing on Plaintiff’s request for a preliminary
injunction may be summarized as follows. Witnesses called on behalf of Plaintiff
were William R. Hartz, senior vice-president of Plaintiff and Defendant Daniel
Somma; witnesses called on behalf of Defendants were the aforesaid William R.
Hartz, Defendant Daniel Somma, and Defendant William Hiller, Jr. The evidence
5
Plaintiff’s Complaint, para. 16.
6
Plaintiff’s Complaint, para. 17, 21.
7
Plaintiff’s Complaint, Count I.
8
Plaintiff’s Complaint, Count II.
9
Plaintiff’s Complaint, Count III.
10
Plaintiff’s Motion for a Preliminary Injunction.
11
Plaintiff’s Motion for a Preliminary Injunction, para. 5.
12
Plaintiff’s Motion for a Preliminary Injunction, para. 6.
13
Plaintiff’s Motion for a Preliminary Injunction, para. 7.
2
at the hearing, which was not significantly conflicting, may be summarized as
follows:
Plaintiff Sovereign Benefits Consulting, Inc., is a business corporation that
provides consultation services to employers with regard to employee insurance
and benefit programs and it brokers agreements between insurers and employers in
relation thereto, in return for premium-related commissions payable by the
14
employers. On October 1, 2006, Plaintiff purchased the assets of a similar
15
company, known as the Hartz Consulting Group, LLC.
In connection with the purchase, Plaintiff offered employment to certain
16
former employees of the Hartz Consulting Group, LLC. In particular, letters on
behalf of Plaintiff, dated October 24, 2006, were sent to Defendants William
14
N.T. 5-6, Hearing December 5, 2008 (morning session). The senior vice-president of Plaintiff
described the business of Plaintiff as follows:
We provide consulting and brokerage services on the insurance side
specifically dealing with today’s health insurance pieces of a couple of our
clients. That would involve all the day-to-day services, phone calls from
the clients, resolving employee issues, employee enrollments, negotiations
with insurance carriers, executive level negotiation workings, planned
designed consulting, financial consulting.
N.T. [5-6], Hearing, December 5, 2008 (morning session).
This witness described the business further in the following exchange:
Q Can you give the Court a sense of the customer base that you
serve, what is your typical client if there is one?
A The typical client in the Pittsburgh office is—well, a larger
employer, we have a lot of school districts, manufacturers. Most of them
would range from 4 to 500 employees to 2,000 employees located all
throughout the state.
Q Can you give us a sense of the approximate number of clients
that Sovereign Benefits Consulting has?
A 140.
Q Is this a competitive business in your view?
A Yes.
N.T. 6, Hearing, December 5, 2008 (morning session).
15
N.T. 10-11, 15, Hearing, December 5, 2008 (morning session).
16
N.T. 12, Hearing, December 5, 2008 (morning session).
3
Hiller, Jr., and Daniel Somma, offering employment as “consulting account
executive[s]” and providing for acceptance of the employment “during
17
orientation.”
Each letter, in its entirety, read as follows:
Dear [name]:
I am pleased to confirm an offer of employment to you with Sovereign
Benefits Consulting. The terms of employment are as follows:
Position & Start Date:
A full time Sovereign Benefits Consulting Account Executive III
position in the 100 First Ave, Pittsburgh office. You will report
directly to William Hartz.
Your start date will be Friday, October 27, 2006. Please report to
the, Pittsburgh location, located at 100 First Ave, Pittsburgh, PA
on Friday, October 27, 2006 at 9:00 AM for orientation.
PLEASE BE SURE TO BRING THE REQUESTED FORMS
OF IDENTIFICATION (see attached), and a copy of your
signed offer letter to orientation. Please retain the original for
your records.
Compensation/Performance Management
Your salary will be $4,038.47 paid bi-weekly. This is an annual
salary of $105,000.22
Your salary grade is 10.
Sovereign will evaluate team member’s performance on a
periodic basis. Once a year, each team member will be
considered for merit increases.
Benefits:
Beginning December 1, 2006, you will become eligible for 14
hours of Paid Time Off (PTO) for the calendar year of 2006.
Details will be provided at orientation.
In addition to your bi-weekly salary, you will be eligible to
participate in our Comprehensive Benefits Program. The
program includes a Flexible Benefits Plan, (options such as
medical, dental, vision, life, etc.), that is effective the first of the
month after completion of 30 days of employment. You will
receive an enrollment notification within 30 days from your first
day of employment. Along with this notification you will be
provided with an internet web address to access Sovereign’s On-
Line Enrollment System, as well as your enrollment deadline.
The On-Line Enrollment System will provide you with your
enrollment options as well as details on each program available.
17
N.T. 33-36, Hearing, December 5, 2008 (afternoon session)
4
It is important that you enroll by your deadline. Failure to enroll
by the deadline will result in no coverage for you and your
eligible dependent(s). Depending on the chosen options, you
may be required to contribute to the cost of your benefits through
bi-weekly payroll deductions.
Information on Sovereign’s other benefit programs including but
not limited to 401(k) Savings Plan, Employee Stock Ownership
Plan (ESOP), and Employee Stock Purchase Plan (ESPP) will be
provided to you at orientation.
Sovereign reserves the right to change, end, or alter plans and
eligibility dates at any time.
This offer of employment is made contingent upon successful
completion of the following:
1. Your ability to provide proof of your identity and legal rights
to work in the United States, as specified by the Immigration and
The attached list of documents
Reform Control Act of 1986.
outlines the proof we can accept as dictated by the U.S.
Department of Justice. PLEASE BRING THE REQUIRED
FORMS WITH YOU TO ORIENTATION.
2. Completion of reference checks satisfactory to Sovereign
Bank.
3. Successful completion of the background checks as well as
the pre-employment drug screening which must occur within 48
hours following acceptance of the job offer.
4. Completion of Sovereign Bank employment application.
5. Satisfactory completion of training program(s) with
Sovereign standards.
This offer letter shall not be construed as an agreement, either expressed or
implied, to employ you for any stated term, and shall in no way alter the
Bank’s policy of employment at-will, pursuant to which both you and the
Bank remain free to terminate the employment relationship, with or
without cause, at any time, with or without notice. Similarly, nothing in
this letter shall be construed as an agreement, either express or implied, to
pay you any compensation or grant you any benefits beyond the end of
your employment with the Bank.
If you need clarification of any items mentioned above, please feel free to
call me at 717-771-9469. We look forward to you joining our team.
Sincerely,
Debra Zeiders
Team Member Services Recruitment Representative III
Team Member Services
Enclosures
5
Please confirm your acceptance by signing the copy of the offer letter
and returning it during orientation.
Offer accepted as outlined above:
18
_____________________ _________________
[Name] Date
The orientation session occurred on Friday, October 27, 2006, commencing
19
at 9:00 a.m. and concluding at 11:00 a.m. At the session, Defendants Hiller and
Somma submitted their signed acceptances and executed documents relating to
20
matters like health insurance and restrictive covenants. Chronologically, the
submission of the acceptances preceded the execution and submission of the
21
restrictive covenants, which occurred toward the end of the session. The first
working day for Defendants Hiller and Somma with Plaintiff was the following
22
Monday.
The document executed by Defendants Hiller and Somma containing
restrictive covenants was entitled “Employee Confidentiality and Non-Solicitation
Agreement,” contained “intending-to-be-legally-bound” language, and read, in
part, as follows:
3. Non-Solicitation of Customers and Employees of SBC.
While Employee is employed by Sovereign and for a period of two
(2) years after the termination or cessation of such employment for any
reasons (whether by SBC or Employee), Employee will not directly or
indirectly:
(a) either alone or in association with others, solicit, divert, or take
away or attempt to solicit, divert or take away, the business or patronage of
any account, client or customer, with whom SBC has conducted any
18
Defendants’ Ex. 1, Hearing, December 5, 2008.
19
N.T. 63, Hearing, December 5, 2008 (afternoon session).
20
N.T. 46, Hearing, December 5, 2008 (afternoon session). Such items were also referred to in
the hearing as “human resources, payroll and other documents.” N.T. [12], Hearing, December 5,
2008 (morning session).
21
N.T. 46, 51, Hearing, December 5, 2008 (afternoon session).
22
N.T. 52, Hearing, December 5, 2008 (afternoon session).
6
business or for whom SBC has performed any services during the period
of Employee’s employment by SBC.
(b) either alone or in association with others, solicit, divert, or take
away or attempt to solicit, divert or take away, the business or patronage of
any prospective account, client or customer (whether a person, firm,
corporation, partnership, association or other entity), pursued by SBC, its
subsidiary or affiliate, within a one (1) year period immediately preceding
the date of expiration of Employee’s employment with SBC, as evidenced
by telephonic, written or fact-to-face communications with such prospects,
or a pending business or similar report.
(c) either alone or in association with others (i) solicit, or permit any
organizations directly or indirectly to solicit, any employee of SBC to
leave employ of SBC, (ii) solicit for employment, hire or engage as an
independent contractor, or permit any organization directly or indirectly to
solicit for employment, hire or engage as an independent contractor, any
person who is employed by SBC at any time during the term of
Employee’s employment with SBC; provided that this clause (iii) shall not
apply to any individual whose employment with SBC has been terminated
for a period of six months or longer.
The periods set forth in this Section 3 shall be extended by the time of
any (i) breach by Employee of any terms thereof, or (ii) litigation
involving Employee and Sovereign with respect to any of the provisions
thereof (whether by Employee seeking relief from the terms thereof or by
23
Sovereign seeking to enforce the terms thereof or otherwise).
Each of the Employee Confidentiality and Non-Solicitation Agreements
also contained this provision:
Employee Acknowledgement and Equitable Remedies. Employee
hereby acknowledges and agrees that the covenants and restrictions in this
Agreement are necessary to protect the legitimate business interests of
Sovereign, including, without limitation, customer information and
goodwill, and considers the restrictions to be reasonable for such purpose.
Employee acknowledges that any breach by Employee of the obligations
set forth in Sections 2 and 3 above would substantially and materially
impair and irreparably harm Sovereign’s business and good will; that such
impairment and harm would be difficult to measure; and, therefore, total
compensation in solely monetary terms would be inadequate.
Consequently, in the event of any breach or any threatened breach by
Employee of any of the provisions of Sections 2 and 3 above, Employee
agrees that Sovereign, in addition to monetary damages or such other
remedies which may be available, shall be entitled to specific performance
and other equitable relief, including temporary or permanent restraining
orders and/or other injunctive relief without the necessity of proving actual
damages and/or posting a bond, as well as any equitable accounting of all
earnings, profits or other benefits arising from any violation hereof, and to
the payment by Employee of all costs and expenses incurred by Sovereign
23
Plaintiff’s Exs. 2-3, Hearing, December 5, 2008.
7
in enforcing the provision thereof against Employee, including attorneys’
fees incurred by Sovereign. The existence of any claims or cause of action
by Employee against Sovereign, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Sovereign
24
of such obligations.
Plaintiff’s business generates revenue of approximately 5.2 million dollars
25
per year. During the period of the individual defendants’ employment with
Plaintiff, Plaintiff was the broker-of-record for a company known as Southwestern
Pennsylvania Human Services, Inc., the gross income from which per year was
26
$100,000 and the net income from which was $50,000 per year. Another client
of Plaintiff during this period was the Capital Area Intermediate Unit, an
27
educational service agency with almost 600 employees. A third such client was
28
the Diocese of Pittsburgh.
On August 21, 2007, Defendants Hiller and Somma resigned their positions
29
with Plaintiff, effective shortly thereafter. By letter dated September 5, 2007, the
President of Plaintiff reminded them of their obligations under the Employee
30
Confidentiality and Non-Solicitation Agreement.
Defendants Hiller and Somma promptly formed Defendant Capital
3132
Insurance Advisors, LLC, a business similar to that of Plaintiff. The new
business aggressively solicited a workers’ compensation insurance/claims
33
management account from the Capital Area Intermediate Unit and “discussed
24
Plaintiff’s Exs. 2-3, para. 6(f), Hearing, December 5, 2008.
25
N.T. 8, Hearing, December 5, 2008 (afternoon session).
26
N.T. 7, 8, 30, 31, 32, Hearing, December 5, 2008 (afternoon session).
27
Plaintiff’s Ex. 10, Hearing, December 5, 2008.
28
N.T. 66, 67, Hearing, December 5, 2008 (afternoon session).
29
Plaintiff’s Exs. 4, 6, Hearing, December 5, 2008.
30
Plaintiff’s Ex. 7, 8, Hearing, December 5, 2008.
31
N.T. 21, 22, 23, Hearing, December 5, 2008 (afternoon session).
32
N.T. 12-13, Hearing, December 5, 2008 (afternoon session).
33
Plaintiff’s Ex. 10, Hearing, December 5, 2008.
8
34
business transactions” with a representative of the Diocese of Pittsburgh. In
addition, as of October 13, 2008, Defendants’ business had actually taken over the
35
Southwestern Pennsylvania Human Services, Inc., account from Plaintiff.
With respect to the Capital Area Intermediate Unit, the business director of
that organization stated in an affidavit that
7. I became acquainted with Daniel Somma during calendar year
2007. Mr. Somma had been involved in SBC’s provision of services to
CAIU for several years, and I met him in that capacity.
8. I subsequently learned that he and a business colleague, William
Hiller, had left SBC’s employment and started their own company—
Capital Insurance Advisors, Inc. (CIA).
9. On multiple occasions since he resigned from SBC, Mr. Somma
contacted me at my office by telephone and email and on a few occasions
met in my office and for lunch. During these contacts, Mr. Somma did
discuss the services provided by CIA and the desire to have the CAIU
enter into an agreement for services with his firm in the area of Workers’
Compensation administration and claims management.
10. It is my understanding that the services that Mr. Somma has
suggested are services SBC also offers.
11. Mr. Somma’s contacts with me, in my mind, clearly were to
36
solicit business from the CAIU.
While not denying such contacts with this client of Plaintiff, Defendant Somma
noted that the particular type of insurance solicited was not among those that
37
Plaintiff serviced for the Capital Area Intermediate Unit.
With respect to the Diocese of Pittsburgh, Defendant Miller was somewhat
circumspect in his testimony:
Q The Diocese of Pittsburgh [is] a former Sovereign Benefits
Consultant client?
A Yes, it was.
Q And is it your testimony under oath that you have not
approached or attempted to secure business with the Diocese of Pittsburgh
at any time since leaving Sovereign Benefits Consulting”
34
N.t. 66, 67, Hearing, December 5, 2008 (afternoon session).
35
Plaintiff’s Ex. 9, Hearing, December 5, 2008; N.T. 18-19, Hearing December 5, 2008 (morning
session).
36
Plaintiff’s Ex. 10, Hearing, December 5, 2008.
37
N.T. 56, Hearing, December 5, 2008 (afternoon session).
9
A I have not solicited them.
Q Let me ask the question again, and be as specific as I can. Are
you testifying under oath that you have not contacted the Diocese of
Pittsburgh since leaving Sovereign Benefits Consulting in an attempt to
secure business?
A No, I’ve not solicited the Diocese of Pittsburgh.
Q Have you been in contact with them?
A With who?
Q Individuals of the Diocese of Pittsburgh?
A Every time I go to church within the Diocese of Pittsburgh,
yes.
Q Have you discussed any business transactions with Dave
Stewart at the Diocese?
A Yes.
Q Since leaving Sovereign Benefits Consulting?
A Yes.
* * * *
Q . . . Who initiated . . . that discussion with the member of the
Diocese?
A Dave Stewart.
Q He called you?
A Yes.
Q And . . . did he call you asking you about doing business with
you?
A Yes.
Q Did you do any business with him?
38
A No.
The circumstances concerning the acquisition of the Southwestern
Pennsylvania Human Services, Inc., account by Defendant Capital Insurance
Advisors, LLC, were described by Defendant Somma as follows:
Q Did you solicit any business from Southwest?
A No.
Q Did you contact anyone at Southwest and ask them to give
you business?
A No.
38
N.T. 66-68, Hearing, December 5, 2008 (afternoon session).
10
Q How did it come to be that someone from Southwest
contacted you?
A I have a—I developed a personal relationship with the CEO,
Jeff Brooks Mascara, and as a result I stayed in touch with him, and he had
asked me to take over as his benefits.
Q You said you stayed in touch with him. Any of those
conversations before he asked you to take over, did you ask him to give
you any benefits or any work?
A No.
Q Did he tell you why he wanted to leave Sovereign Benefits?
A He wasn’t happy.
Q Did he explain to you why he wasn’t happy?
39
A Not in any great detail or any detail.
DISCUSSION
Statement of law. Several principles of law are of importance in the present
matter. First, with respect to preliminary injunctions, the Pennsylvania Supreme
Court has stated as follows:
Three criteria have been established for the granting of a preliminary
injunction . . . They are: (1) the preliminary injunction must be necessary
to prevent immediate and irreparable harm which could not be
compensated for by damages; (2) greater injury would result from the
denial of the preliminary injunction than from the granting of it; and (3) it
would operate to restore the parties to the status quo as it existed prior to
the alleged wrongful conduct. In addition to meeting all three criteria, the
court must be convinced that [the plaintiff’s] right to a preliminary
injunction is clear . . . and general equity jurisdiction must be warranted.
Committee of Seventy v. Albert, 33 Pa. Commw. 44, 49, 381 A.2d 188, 190 (1977).
Second, “[c]ourts of equity will enforce restrictive covenants [made by
employees]. . . when they are (1) incident to an employment relationship between
the employer and employee; (2) reasonably necessary for the protection of the
employer; and (3) reasonably limited in duration and geographic extent. . . . When
restrictive covenants meet this three-prong test, they are prima facie enforceable.”
The Wood Co., Inc. v. Hickey, 40 Cumberland L.J. 511, 514 (1990) (Hess, J.)
(citations omitted). In this regard, the legitimacy of a provision in an employment
39
N.T. 54, Hearing, December 5, 2008 (afternoon session).
11
agreement in the nature of a covenant not to compete has been related by the
Pennsylvania Supreme Court as follows:
In almost all commercial enterprises contact with customers or
clientele is a particularly sensitive aspect of the business. In most
businesses as the size of the operation increases, selling and servicing
activities must be at least in part decentralized and entrusted to employees
whose financial interest in the business is limited to their compensation.
The employer’s sole or major contact with buyers is through these agents
and the sole or major contact with buyers is through these agents and the
success or failure of the firm depends in part on their effectiveness. The
possibility is present that the customer will regard, or come to regard, the
attributes of the employee as more important in his business dealings than
any special qualities of the product or service of the employer, especially if
the product is not greatly differentiated from others which are available.
Thus, some customers may be persuaded, or even be very willing, to
abandon the employer should the employee move to a competing
organization or leave to set up a business of his own.
The employer’s point of view is that the company’s clientele is an
asset of value which has been acquired by virtue of effort and expenditures
over a period of time, and which should be protected as a form of property.
Certainly, the argument goes, the employee should have no equity in the
custom which the business had developed before he was employed.
Similarly, under traditional agency concept, any new business or
improvement in customer relations attributable to him during his
employment is for the sole benefit of the principal. This is what he is being
paid to do. When he leaves the company he should no more be permitted
to divert to his own benefit the product of his employment than to abscond
with the company’s cashbox.
Sidco Paper Co., v. Aaron, 465 Pa. 586, 593-94, 351 A.2d 250, 253-54 (attribution
omitted).
Third, such restrictive covenants are enforceable notwithstanding that the
employment in question is at-will. See generally, National Staroh & Chemical
Corp. v. Snyder, 34 Pa. D & C.2d 533, 536-37, 1964 WL 6397, 3.
However, it is also the rule that [w]hen [a] restrictive covenant is added
to an existing employment relationship, . . . it is only enforceable when
the employee who restricts himself or herself receives a corresponding
benefit or change in status. An employee’s continued employment is not
sufficient consideration for a covenant not to compete which the
employee sign[s] after the inception of his employment, where the
employer makes no promise of continued employment for a definite
term.
Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 333, 314 A.2d 279, 282-83
(1974) (Jones, C.J., concurring).
12
Fourth, an assessment of irreparable harm in the context of breach of a
restrictive covenant incident to employment is to be made with an understanding
that “[i]t is not the initial breach of [the] covenant which necessarily establishes
the existence of irreparable harm but rather the threat of the unbridled continuation
of the violation and the resultant incalculable damage to the former employer’s
business . . . .” John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1,
7, 369 A.2d 1164, 1167 (1977).
Fifth, the fact that monetary losses to a former employer from a breach of a
restrictive covenant may be quantified to some extent by an accounting does not
mean that an adequate remedy at law exists for such a breach. As the Pennsylvania
Supreme Court has stated:
[Such covenants] seek[] to prevent more than just the sales that might
result by the prohibited contact but also [they are] designed to prevent a
disturbance in the relationship that has been established between [the
employer] and [its] accounts through prior dealings. It is the possible
consequences of this unwarranted interference with customer relationships
that is unascertainable and not capable of being fully compensated by
40
money damages.
Application of law. In the present case, the evidence tended to show (a) that
the individual defendants executed a restrictive covenant contemporaneously, for
practical purposes, with their commencement of employment with Plaintiff, (b)
that upon terminating that employment they formed a business similar to that of
Plaintiff, and (c) that during the period of the restrictive covenant’s term they
discussed with one of Plaintiff’s clients the acquisition of its business, had
aggressively solicited another of Plaintiff’s clients, and had actually succeeded in
acquiring the account of a third client of Plaintiff. Under these circumstances, and
based upon the foregoing principles of law, it appears to the court (a) that the
restrictive covenant in question was incident to an employment relationship
between Plaintiff and the individual defendants, was reasonably necessary for the
40
John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 8, 359 A.2d 1164, 1167
(1977).
13
protection of the employer, and was reasonably limited, (b) that it is highly
probable that Defendants will be found at trial to have violated the covenant, (c)
that the basic requisites for a preliminary injunction as outlined in Committee of
Seventy v. Albert, supra, have been shown, and (d) that Plaintiff’s right to a
preliminary injunction is clear. Accordingly, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 4 day of February, 2009, upon consideration of
Plaintiff’s Motion for a Preliminary Injunction, following a hearing held on
December 5, 2008, and for the reasons stated in the accompanying opinion, it is
ordered and decreed as follows:
1. Defendants are preliminarily enjoined in general from
future breaches of the terms of the Employment Agreement
and Non-Solicitation Agreement constituting Plaintiff’s
Exhibits 2 and 3, and in particular from soliciting, diverting or
taking away the business or patronage of any prospective
account, client or customer with whom Plaintiff conducted any
business or for whom Plaintiff performed any services during
the period of the individual defendants’ employment with
Plaintiff;
2. Within 30 days of the date of this order, Defendants
shall provide to Plaintiff an accounting of receipts by
Defendant Capital Insurance Advisors, LLC, from Plaintiff’s
former client, Southwestern Pennsylvania Human Services,
Inc.;
3. Pursuant to Pennsylvania Rule of Civil Procedure
1531(b), this preliminary injunction is conditioned upon
Plaintiff’s deposit with the prothonotary of cash, or filing with
the prothonotary of a bond with corporate surety acceptable to
the court, in the amount of $50,000.00, conditioned that, if the
14
injunction is dissolved because improperly granted or for
failure to hold a hearing, Plaintiff shall pay to any person
injured all damages sustained by reason of granting the
injunction and all legally taxable costs and fees; and
4. Failure to make the deposit or filing referred to in
paragraph 3 within 20 days of the date of this order shall result
in an automatic dissolution of the preliminary injunction
without further order of court.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Mark D. Bradshaw, Esq.
STEVENS & LEE
16th Floor
17 North Second Street
Harrisburg, PA 17101
Attorney for Plaintiff
Michael P. Robic, II, Esq.
METZ LEWIS LLC
18th Floor
11 Stanwix Street
Pittsburgh, PA 15222
Attorney for Defendants
15
16
SOVEREIGN BENEFITS : IN THE COURT OF COMMON PLEAS OF
CONSULTING, INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION
:
WILLIAM HILLER, JR., :
DANIEL SOMMA, and :
CAPITAL INSURANCE :
ADVISORS, LLC, :
Defendants : No. 08-6484 CIVIL TERM
IN RE: PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
BEFORE OLER, J.
ORDER OF COURT
th
AND NOW, this 4 day of February, 2009, upon consideration of
Plaintiff’s Motion for a Preliminary Injunction, following a hearing held on
December 5, 2008, and for the reasons stated in the accompanying opinion, it is
ordered and decreed as follows:
1. Defendants are preliminarily enjoined in general from
future breaches of the terms of the Employment Agreement
and Non-Solicitation Agreement constituting Plaintiff’s
Exhibits 2 and 3, and in particular from soliciting, diverting or
taking away the business or patronage of any prospective
account, client or customer with whom Plaintiff conducted any
business or for whom Plaintiff performed any services during
the period of the individual defendants’ employment with
Plaintiff;
2. Within 30 days of the date of this order, Defendants
shall provide to Plaintiff an accounting of receipts by
Defendant Capital Insurance Advisors, LLC, from Plaintiff’s
former client, Southwestern Pennsylvania Human Services,
Inc.;
3. Pursuant to Pennsylvania Rule of Civil Procedure
1531(b), this preliminary injunction is conditioned upon
Plaintiff’s deposit with the prothonotary of cash, or filing with
the prothonotary of a bond with corporate surety acceptable to
the court, in the amount of $50,000.00, conditioned that, if the
injunction is dissolved because improperly granted or for
failure to hold a hearing, Plaintiff shall pay to any person
injured all damages sustained by reason of granting the
injunction and all legally taxable costs and fees; and
4. Failure to make the deposit or filing referred to in
paragraph 3 within 20 days of the date of this order shall result
in an automatic dissolution of the preliminary injunction
without further order of court.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Mark D. Bradshaw, Esq.
STEVENS & LEE
16th Floor
17 North Second Street
Harrisburg, PA 17101
Attorney for Plaintiff
Michael P. Robic, II, Esq.
METZ LEWIS LLC
18th Floor
11 Stanwix Street
Pittsburgh, PA 15222
Attorney for Defendants