Blair Design & Construction Co. v. Kalimon

530 A.2d 1357, 366 Pa. Super. 194, 1987 Pa. Super. LEXIS 8973
CourtSupreme Court of Pennsylvania
DecidedSeptember 8, 1987
Docket966
StatusPublished
Cited by11 cases

This text of 530 A.2d 1357 (Blair Design & Construction Co. v. Kalimon) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blair Design & Construction Co. v. Kalimon, 530 A.2d 1357, 366 Pa. Super. 194, 1987 Pa. Super. LEXIS 8973 (Pa. 1987).

Opinions

DEL SOLE, Judge:

Before us is an appeal from the Order entered May 2, 1986. The Order consisted of a preliminary injunction prohibiting Appellant from conducting business in violation of a restrictive covenant he entered into with Appellee pursuant to an employment contract.

By his brief, Appellant raises the following issues:
1. Can a restrictive covenant which specifically prohibits a former employee only from dealing with customers named on a list attached to the employment agreement be construed to prohibit the former employee from dealing with customers not named on the list?;
2. Is the non-competition covenant involved in this action unenforceable because, as interpreted and enforced by the court below, its prohibitions are broader than necessary to protect the former employee’s interests?;
[197]*1973. Is the non-competition covenant involved in this action unenforceable because it is not reasonably limited in duration?; and,
4. Is the injunction issued by the lower court overbroad and indefinite?

The underlying facts of this case may be briefly summarized as follows. Appellee is in the business of retail store construction and remodeling. In December of 1983, Appellant was hired by Appellee to work as a project manager. Subsequent to commencement of work, Appellant signed an employment agreement which contained the following provisions:

DISCLOSURE OF INFORMATION: The Employee recognizes and acknowledges that the list of the Employee’s [sic] customers which is attached hereto, and made a part hereof and designated Exhibit “A”, and any new customers obtained during his employment with Em-. ployer, constitute a valuable, special and unique assets [sic] of the Employer’s business. The Employer [sic] further recognizes and acknowledges that the Employer’s customers are not located in any single geographical area but are situated throughout the entire United States of America. The Employee will not, during or after the terms of his employment, disclose the list of the Employer’s customers or any part thereof to any person, firm, corporation, association or other entity for any reason or purpose whatsoever. In the event of a breach or threaten to breach of the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining the employee from disclosing, in whole or part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed as prohibiting the Employer from pursuing any other remedies available to the Employer from such breach or threatened breach, including the recovery of damages from the Employee. RESTRICTIVE COVENANT: For a period of three (3) years after the termination of this Agreement for any reason, the Employee will not directly or indirectly, own, [198]*198manage,' operate, control, by [sic] employed by, participate in, or be connected in any manner with the ownership management, operation or control of any business similar to the type of business conducted by the Employer at the time of termination of this Agreement, which deals in any manner or solicits any business from customers named on the list referred to in the immediately preceding paragraph. In the event of any actual or threatened breach by the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining the Employee from owning, managing, operating, controlling, being employed by, participating in, or being in any so connected with any business similar to the type of business conducted by the Employer at the time of termination. Nothing herein stated shall be construed as prohibiting the Employer from prusuing [sic] any other remedies available to the employer including the recovery of the damages from the employee. (Emphasis supplied).

In February of 1985, Appellant terminated his employment with Appellee so that he could pursue a career in the painting business. However, this plan did not transpire; therefore, Appellant entered the remodeling business as an independent contractor. Appellant proceeded to either bid upon, or perform construction work on, certain Corn Dog, Hot Sam Pretzel, and Original Cookie stores. Although these companies had been customers of Appellee, they did not appear on the customer list designated as Exhibit “A” in the employment contract. Likewise, they were not new customers obtained during Appellant’s tenure with Appellee. Despite protests received by Appellee, Appellant continued to conduct business with these clients.

Appellee thereafter filed a complaint in equity requesting preliminary and permanent injunctive relief. On February 25, 1986, following a hearing on this matter, the Honorable Maurice Louik denied Appellee’s request for a preliminary injunction. Upon receiving information that Appellant had performed work for, and was continuing to solicit work from, the Original Cookie store chain, Appellee filed anoth[199]*199er complaint in equity. A preliminary injunction hearing was scheduled to be held before the Honorable I. Martin Wekselman on May 2, 1986. Following arguments by both parties, Judge Wekselman granted Appellee’s request for a preliminary injunction. The hearing court fashioned the Order, sub judice, which provides:

Michael J. Kalimon ... is preliminarily enjoined from doing business with customers of the plaintiff Blair Design and Construction Company, Inc. in violation of the restrictive covenants contained in the contract between the parties, or otherwise interfering with the plaintiff’s relationship with plaintiff’s customers in any manner or method whatsoever.

This timely interlocutory appeal follows. See Pa.R.A.P. 311(a)(4) (an appeal may be taken as of right for an order granting an injunction).

Preliminarily, we discuss our appellate scope of review. A preliminary injunction is an extraordinary remedy which should be granted only after careful deliberation by the hearing court has resulted in the conclusion that such relief is a necessity. Beck Computing Services, Inc. v. Anderson, 362 Pa.Super. 505, 508, 524 A.2d 990, 991 (1987). Prior to granting a preliminary injunction, four essential prerequisites of law must be found by the hearing court to coalesce:

immediate and irreparable harm which could not be compensated by damages; the greater injury would result by refusing it than by granting it; that it.would properly restore parties to their status as existing immediately prior to the alleged wrongful conduct; and that the activity sought to be restrained is actionable and that an injunction is reasonably suited to abate such activity.

Id., 362 Pa.Superior Ct. at 508, 524 A.2d at 991-992. See New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 392 A.2d 1383, 1385 (1978).

Our scope of review in these matters is narrowly defined. It is not the function of this court to explore the merits of the controversy. Rather, our examination of the [200]*200record must be confined to whether or not there exists any apparently reasonable grounds for the hearing court’s actions. Ogontz Controls Co. v. Pirkle, 346 Pa.Super.

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Blair Design & Construction Co. v. Kalimon
530 A.2d 1357 (Supreme Court of Pennsylvania, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
530 A.2d 1357, 366 Pa. Super. 194, 1987 Pa. Super. LEXIS 8973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blair-design-construction-co-v-kalimon-pa-1987.