Jarvie v. Cumulus Media, Inc.

43 Pa. D. & C.5th 438
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJanuary 22, 2015
DocketNo. 14-20186
StatusPublished

This text of 43 Pa. D. & C.5th 438 (Jarvie v. Cumulus Media, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jarvie v. Cumulus Media, Inc., 43 Pa. D. & C.5th 438 (Pa. Super. Ct. 2015).

Opinion

SPRECHER, J.,

— Defendant appeals the order dated October 21, 2014, which granted plaintiff’s petition for preliminary injunction to enjoin and preclude defendant from enforcing non-competition and non-solicitation provisions of plaintiff’s employment agreement with defendant. This opinion is filed pursuant to Pa. R.A.P. 1925 and supplements the opinion which accompanied the order of October 21,2014.

FACTS

In 2003, plaintiff, Michael A. Jarvie, worked for Citadel Broadcasting Company (Citadel) in Wilkes-Barre, Pennsylvania. On May 7,2007, Citadel hired plaintiff as a General Sales Manager for its radio stations WQXA-FM, WMHX-FM, WCAT-FM, WIOV-FM, and WIOV-AM in Harrisburg, Lancaster, Reading, and York, Pennsylvania. Plaintiff’s duties included supervising the sales efforts through the sale of advertising time, supervising and developing account executives and assistants, attending station meetings, working with the programming and [441]*441promotions departments to maximize sales opportunities, and manage the budgets of the stations’ sales departments. The general manager supervised him. Plaintiff’s salary was $45,000.00 per year with the potential for bonuses. From 2007 to 2010, plaintiff typically earned $85,000.00 to $99,000.00 per year, including bonuses.

Prior to plaintiff’s employment as the sales manager with Citadel, plaintiff executed a sales manager standard agreement (agreement). This agreement contained, inter alia, the following provisions which are the subject of this dispute:

9. (b) You will not enter into any employment or other agreement to perform services as an account executive or sales manager or perform any other services set forth in paragraph 1 hereof for any radio station with a transmission tower located within fifty (50) miles of the transmission tower of station for a period of one (1) year after the termination of your employment with company.
9. (c) You will not have any contact with and will not solicit clients or customers of station for a period of one (1) year after the termination of your employment with station for the purpose of selling airtime for any radio or television broadcaster.

(Exhibit No. 1).

In 2011, Citadel entered into an agreement to merge with defendant, Cumulus Media, Inc. The merger was completed by September 2011. Plaintiff was paid a $20,000.00 retention bonus to stay during the transition period from September 20, 2011 through March 20, 2012. He signed a separate agreement for this bonus. This agreement does not contain a non-solicitation or non-competition clause.

[442]*442In November 2011, defendant began changing the terms and conditions of plaintiff’s employment. Plaintiff was demoted to account manager with a concomitant reduction in salary and duties. Plaintiff was no longer in charge of inventory or helping with pricing or doing anything in a managerial capacity. He was not eligible to receive bonuses. He no longer had a base salary and received his compensation based entirely on commissions. When the merger was completed and plaintiff became an employee of defendant, plaintiff had to give some of his clients to other salespeople because the clients had been clients of both Citadel and defendant before the merger.

In February 2014, defendant’s new regional manager assumed the supervision of the York-Lancaster cluster. He took all managerial responsibility and privileges away from plaintiff. In May 2014, the marketing manager determined that plaintiff was earning too much money and took away some of plaintiff’s existing billing accounts. Although other employees who were demoted or had changes in compensation signed new agreements with new restrictive covenants, defendant never requested plaintiff to execute a new agreement.

On October 1, 2014, plaintiff accepted a position with IHeartMedia as a Local Sales Manager. This radio station is in one of defendant’s markets. His responsibilities are to supervise, develop, and grow a team for its radio stations in Berks County, Pennsylvania. Plaintiff will also help price the inventory and work on projects to help increase the profitability of the station.

On October 1, 2014, plaintiff gave defendant his required two weeks’ notice of intent to resign. On October 2, 2014, defendant notified plaintiff that his resignation was accepted and asked him to leave immediately. Defendant then contacted IHeartMedia and indicated that [443]*443it would seek to enforce the non-competition and non-solicitation provisions of the agreement if IHeartMedia permitted plaintiff to work for it. Plaintiff filed this action for declaratory judgment and sought a preliminary injunction to preclude defendant from interfering with his ability to obtain new employment and to procure business.

Ron Giovanniello is the regional vice president in Pennsylvania for defendant. He is responsible for all of defendant’s operations in the markets of Harrisburg, York, Lancaster, Reading, Allentown, and Wilkes-Barre/ Scranton, Pennsylvania. IHeartMedia is defendant’s biggest direct competitor in the business. The specific station where plaintiff worked for defendant was a country station. The IHeartMedia station where plaintiff sought employment is a contemporary hit station. Mr. Giovanniello testified that the only reason that defendant has an interest in plaintiff is that he can transfer accounts that will affect defendant’s revenue. Mr. Giovanniello does not have a non-compete agreement with defendant.

Based on the foregoing evidence, this court granted plaintiff’s motion for a preliminary injunction. Defendant filed a timely appeal.

ISSUES

Defendant raises the following issues in its concise statement of errors complained of on appeal.

1. Whether this court erred in finding that plaintiff met his burden of proof for injunctive relief because plaintiff failed to establish all of the requisite elements for a preliminary injunction.

2. Whether this court erred in finding that plaintiff met his burden of proof for injunctive relief because plaintiff failed to prove “irreparable harm” as his claim is [444]*444compensable by money damages.

3. Whether this court erred in granting plaintiff’s request for injunctive relief because greater injury resulted from granting the injunction, and the issuance of an injunction substantially harmed defendant.

4. Whether this court erred in granting plaintiff’s request for injunctive relief because the preliminary injunction did not properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.

5. Whether this court erred in granting plaintiff’s request for injunctive relief because plaintiff did not prove that he is likely to prevail on the merits.

6. The injunction issued by this court is null and void because this court failed to require plaintiff to post a bond which would cover damages that are reasonably foreseeable.

7. This court erred by ruling that the restrictive covenants are not binding on plaintiff because this finding was the ultimate issue plaintiff sought to have determined through the declaratory judgment action, and the matter is properly the subject of arbitration.

8.

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Bluebook (online)
43 Pa. D. & C.5th 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jarvie-v-cumulus-media-inc-pactcomplberks-2015.