Goodies Olde Fashion Fudge Co. v. Kuiros

597 A.2d 141, 408 Pa. Super. 495, 1991 Pa. Super. LEXIS 2996
CourtSuperior Court of Pennsylvania
DecidedSeptember 27, 1991
StatusPublished
Cited by10 cases

This text of 597 A.2d 141 (Goodies Olde Fashion Fudge Co. v. Kuiros) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goodies Olde Fashion Fudge Co. v. Kuiros, 597 A.2d 141, 408 Pa. Super. 495, 1991 Pa. Super. LEXIS 2996 (Pa. Ct. App. 1991).

Opinion

OLSZEWSKI, Judge.

This is an appeal from an order granting a preliminary injunction. Peter Kuiros, Lisa Kuiros, and Kenneth Kuiros, t/d/b/a Kopper Kettle Fudge Factory, and Jeffrey Kuiros (collectively, the Kuiros defendants) were ordered to cease using the secret formula, receipts, methods and techniques of Goodies Olde Fashion Fudge Co. (Goodies) and to refrain from soliciting or contacting Goodies’ customers. The Kuiros defendants appeal, claiming that the preliminary injunction is defective because Goodies has failed to post a bond as required by Pa.R.Civ.P. 1531(b). Alternatively, the Kuiros defendants argue that the covenant not to compete which is the foundation of the injunction is unenforceable because it is unrestricted as to time and area, or it lacks consideration as it was not executed ancillary to the inception of employment. The Kuiros defendants also challenge the sufficiency of Goodies’ evidence of irreparable harm. In a last-ditch effort to partially vacate the injunction, the Kuiros defendants claim that the injunction should only apply to Peter Kuiros as he was the only defendant employed by Goodies and, consequently, the only defendant to sign a covenant not to compete.

[497]*497Goodies requests that we quash this appeal as interlocutory. The essence of Goodies’ argument is that the injunction, by its express terms, does not become effective until the bond has been posted. As Goodies has not posted the bond, the injunction does not yet exist. Thus, Goodies argues that there is no final order before this Court. Having reviewed the arguments of the parties, we vacate the injunction, as it has been granted without the posting of the bond required by Pa.R.Civ.P. 1531(b).

The substance of the order at issue here provides as follows:

AND NOW, to-wit, this 2nd day of November, 1990, the defendants are hereby enjoined from:
1. Using the secret formula, receipts, methods, and techniques in the manufacturing of fudge and related candy products; and
2. Soliciting or otherwise contacting any of plaintiff’s customers whose identity or business relationship with plaintiff became known to the defendants through any one of the defendants employment relationship with the plaintiff.
This injunction to take effect upon the plaintiff posting a bond in the sum of twenty thousand dollars ($20,000.00), sec. leg. et sec. reg.

It is undisputed that Goodies has not posted the bond as required by the order.

Initially, we examine Goodies’ argument that the failure to post the bond renders this order unappealable. We note that by statute and rule, preliminary injunctions, while interlocutory, are appealable as of right. See, Pa.R.A.P. 311(a)(4), 42 Pa.C.S.A., implementing 42 Pa.C.S.A. § 5105(c). In recognition of these provisions, Goodies argues that the order in question is not, in and of itself, a preliminary injunction, because it provides that injunction will take effect upon posting of the bond. While enjoying the semantical sophistry presented by this argument, we cannot agree.

[498]*498Goodies relies upon Zeigenfuse v. Boltz, 401 Pa. 365, 164 A.2d 663 (1960), and Terrizzi Beverage Co. v. Local Union 830, 408 Pa. 380, 184 A.2d 243 (1962), as supporting its argument that the order at issue is not appealable. We find both cases distinguishable. Goodies cites us to the following passage in Zeigenfuse:

... where, as here, the court does no more than make absolute a rule for a preliminary injunction and directs that such injunction shall issue, it is the carrying out of the order by the issuance of the injunction that becomes appealable.

(Appellee’s brief at 10, quoting Zeigenfuse, supra, 401 Pa. at 371, 164 A.2d at 666). We believe the more relevant portions of the Zeigenfuse opinion are as follows:

[following argument on preliminary objections to the complaint] ... the court ... entered the following order: “The preliminary objections are dismissed; the rule is made absolute. The preliminary injunction shall issue.”
Ordinarily, the decree of a court awarding the injunction delineates and defines the enjoining mandate, and, thus, constitutes the injunction which is required to be secured by bond.

Id. This language, which precedes the passage quoted by Goodies, dooms the argument that this order is not a preliminary injunction.

Rather than merely making absolute the rule for the preliminary objection, the order at issue here, as quoted above, clearly enumerates which activities are prohibited and states that “the defendants are hereby enjoined.” Thus, it delineates and defines the enjoining mandate. More importantly, no further order of the trial court is necessary. Goodies need not return to the trial court after posting the bond and request that the language of the order at issue here be repeated in a subsequent order. This order is self-executing upon posting of the bond and constitutes a preliminary injunction. Therefore, it is appealable under [499]*499Pa.R.A.P., Rule 311(a)(4).1 See, Rose Uniforms, Inc. v. Lobel, 408 Pa. 421, 424, 184 A.2d 261, 263 (1962) (distinguishing the order declared unappealable in Zeigenfuse from an order which purports to grant a preliminary injunction).

We also find Terrizzi distinguishable. There our Supreme Court found that the trial court did not have jurisdiction in the dispute due to the exclusive jurisdiction of the National Labor Relations Board under the Taft-Hartley Act of 1947. Terrizzi, supra, 408 Pa. at 383, 184 A.2d at 245. Absent jurisdiction, the trial court could not enter a valid order. Our Supreme Court noted that the order at issue also dismissed the defendants’ preliminary objections; such an order is appealable. Thus, any discussion of the appealability of the injunctive portion of that order is dicta.

The Kuiros defendants argue that a preliminary injunction issued without the posting of a bond is a nullity. “The failure of the trial court to require the posting of a bond to secure a preliminary injunction as required by Pa. R.Civ.P. 1531(b) is a fatal defect requiring an appellate court to vacate the injunction.” Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 478, 522 A.2d 1129, 1131 (1987) (emphasis added). Such relief must be granted even if the injunction is otherwise proper. Id. See also, Lawrence County v. Brenner, 135 Pa.Cmwlth. 619, 630, 582 A.2d 79, 84 (1990); Christo v. Tuscany Inc., 308 Pa.Super. 564, 567, 454 A.2d 1042, 1044 (1982); Rosenzweig v. [500]*500Factor, 457 Pa. 492, 494, 327 A.2d 36, 38 (1974); Surco Products, Inc. v. Kieszek, 367 Pa. 516, 519, 80 A.2d 842, 844 (1951).

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Bluebook (online)
597 A.2d 141, 408 Pa. Super. 495, 1991 Pa. Super. LEXIS 2996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodies-olde-fashion-fudge-co-v-kuiros-pasuperct-1991.