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HomeMy WebLinkAbout2012-1137 JOHN W. GASPARINI, INC., : IN THE COURT OF COMMON PLEAS OF d/b/a MARK’S PLUMBING : CUMBERLAND COUNTY, PENNSYLVANIA PARTS, : Plaintiff : CIVIL ACTION – LAW : NO. 12-1137 CIVIL vs. : : KEVIN HART and COLT : PLUMBING COMPANY, d/b/a : COLT PLUMBING SPECIALTIES, : Defendants : IN RE: PRELIMINARY INJUNCTION MEMORANDUM AND ORDER The Defendant, Kevin Hart, left the employment of Plaintiff, Mark’s Plumbing, in February of 2011. A condition of his employment had been that, for a period of one year after the termination of his employment, Hart could not “engage or participate in the promotion, sale and/or distribution of plumbing parts, plumbing repair parts, and plumbing specialty items, and commercial supply products to customers or clients of the company that [he] called on, or was assigned to the employee.” Plaintiff in this case contends that Defendant Hart and his current employer, Colt Plumbing, have violated this covenant not to compete. They have filed a motion for preliminary injunction which would have the effect of extending the covenant not to compete for an additional year. Questions in this case, therefore, involve not only whether there has been a violation of the covenant not to compete, but whether an extension for a year, under the circumstances, is reasonable. See Hess v. Gebhard and Company, Inc., 769 A.2d 1186 (Pa.Super. 2001). In this case, the evidence suggests that during the year following his termination from Mark’s, Mr. Hart had contact with a former customer, a Mr. Pflegger, a plumber for Evangelical Hospital. Mr. Pflegger testified that he had bought plumbing parts from Mr. Hart when he was employed by Mark’s. He knew, from a business card, that Mr. Hart was now employed by Colt. He could not remember his conversation with Mr. Hart but did indicate that he had never purchased plumbing parts from the Colt Plumbing Company. There is no evidence that in the course of Mr. Hart’s meeting with Mr. Pflegger that he promoted plumbing parts let alone sold any. The only other testimony concerning a violation of the covenant not to compete was to the effect that Mr. Hart had had contact with one or two former customers indicating that he would be calling upon them in the future. The “future” presumably meant after the period of his covenant not to compete with Mark’s Plumbing had expired. Two well-established legal principles compel the entry of an order denying the preliminary injunction in this case. First, restrictive covenants constitute a restraint on the employee’s trade and are, therefore, strictly construed against the employer. In a related vein, any ambiguities in the covenant are construed against the drafter of the contract who, in this case, was the Plaintiff and former employer. Second, a request for a preliminary injunction is an extraordinary remedy. The plaintiff must prove, inter alia, that relief is necessary to avoid immediate and irreparable harm. In this case, there has been no showing that any harm, whatsoever, has been caused or is imminent. Most importantly, in order to obtain a preliminary injunction the plaintiff must establish that its right to relief is clear. Kehly v. City of Pittsburgh, 687 A.2d 41 (Pa.Cmwlth. 1996). Accordingly, a court will not grant injunctive relief in doubtful or uncertain cases. Id. 2 In short, whether there has been a violation of the covenant not to compete in this case is far from clear. Even assuming there was a violation, whether the period of non-compete ought to be extended for an additional twelve months is, at best, uncertain. ORDER th AND NOW, this 30 day of March, 2012, the motion of the Plaintiff for Preliminary Injunction is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Schaun D. Henry, Esquire For the Plaintiff Wade Manley, Esquire For DefendantKevin Hart Hubert X. Gilroy, Esquire For Defendant Colt Plumbing Company :rlm 3 JOHN W. GASPARINI, INC., : IN THE COURT OF COMMON PLEAS OF d/b/a MARK’S PLUMBING : CUMBERLAND COUNTY, PENNSYLVANIA PARTS, : Plaintiff : CIVIL ACTION – LAW : NO. 12-1137 CIVIL vs. : : KEVIN HART and COLT : PLUMBING COMPANY, d/b/a : COLT PLUMBING SPECIALTIES, : Defendants : IN RE: PRELIMINARY INJUNCTION ORDER th AND NOW, this 30 day of March, 2012, the motion of the Plaintiff for Preliminary Injunction is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Schaun D. Henry, Esquire For the Plaintiff Wade Manley, Esquire For DefendantKevin Hart Hubert X. Gilroy, Esquire For Defendant Colt Plumbing Company :rlm