Lehigh Valley Bone, Muscle & Joint Group LLC v. Puccio

75 Pa. D. & C.4th 176, 2005 Pa. Dist. & Cnty. Dec. LEXIS 76
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedAugust 12, 2005
Docketno. 2004-C-1317
StatusPublished

This text of 75 Pa. D. & C.4th 176 (Lehigh Valley Bone, Muscle & Joint Group LLC v. Puccio) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lehigh Valley Bone, Muscle & Joint Group LLC v. Puccio, 75 Pa. D. & C.4th 176, 2005 Pa. Dist. & Cnty. Dec. LEXIS 76 (Pa. Super. Ct. 2005).

Opinion

McGINLEY, J,

Before this court are cross motions for summary judgment with relation to a restrictive covenant in an employment contract between the parties. Plaintiff seeks to enjoin defendant from working at St. Luke’s Hospital and to recover liquidated damages based on a restrictive covenant contained in an employment agreement between the parties. Defendant seeks to dismiss plaintiff’s claim.

FACTS

Plaintiff, Lehigh Valley Bone, Muscle and Joint Group L.L.C. (LVBMJ) provides services in the field of ortho[178]*178pedic medicine at their office at 2597 Schoenersville Road, Bethlehem, Pennsylvania. In July 2001, defendant, Steven Puccio D.O., entered into an employment contract with LVBMJ. The employment agreement states at paragraph 11:

“Puccio agrees that during the term of this agreement and for a period of 24 months or two years after termination of Puccio’s employment with LVBMJ, Puccio shall not, directly or indirectly, as owner, principal, agent stockholder, director, manager, representative, employee, counselor, partner, lender, participant or any other capacity whatsoever, engage in the practice of orthopedic medicine within 25 miles from any office of LVBMJ.”

Paragraph 12 of the employment agreement states:

“Liquidated damages: In the event that Puccio violates the provisions of section 11 or any of its subsections, the actual damages sustained by LVBMJ because of such conduct of Puccio will be uncertain and difficult to ascertain, and it is agreed that the reasonable foreseeable damage to LVBMJ would be the sum of $100,000, therefore, Puccio shall pay as liquidated damages to LVBMJ said sum for his breach of the provisions set forth above in section 11.”

Puccio commenced employment for LVBMJ on September 4,2001, and received $ 180,000 in compensation for his first year of services and $200,000 for his second year of services.1 Pursuant to paragraph 1 of the agreement, Puccio renewed his employment for an additional two-year term in September 2003.

[179]*179In addition to the private practice services provided, LVBMJ physicians held privileges to perform elective operative procedures at St. Luke’s Hospital, located at 801 Ostrum Street, Bethlehem, Pennsylvania. During Puccio’s employment, LVBMJ physicians also provided orthopedic consultation and on-call services to St. Luke’s emergency room and trauma unit.2

At that time, LVBMJ physicians provided 50 percent of the on-call orthopedic services to St. Luke’s emergency room and trauma unit.3

On or about November 12,2003, LVBMJ advised St. Luke’s that it did not have the manpower to continue to participate in the on-call program. LVBMJ proposed that St. Luke’s purchase the LVBMJ practice.4 St. Luke’s declined to purchase LVBMJ,5 but offered to pay an increased fee for LVBMJ to provide services to its emergency room and trauma unit.6 LVBMJ refused this offer and ceased providing emergency room and trauma unit services as of January 1,2004.

At approximately the same time in November 2003, Puccio advised LVBMJ of his intent to terminate his employment effective February 2004. Puccio left LVBMJ’s employ on or about February 29,2004. On or about March 9, 2004, Puccio began employment with [180]*180St. Luke’s Hospital on a locum tennis basis.7 Puccio agreed to provide one weekend per month of orthopedic services to St. Luke’s emergency room and trauma unit. Puccio provides only emergency, hospital-based service and does not provide routine orthopedic care, elective procedures or other non-emergent care for St. Luke’s.8

Plaintiff’s office is at 2597 Schoenersville Road, Bethlehem, Pennsylvania. St. Luke’s Hospital facility is at 801 Ostrom Street, Bethlehem, Pennsylvania and is located within 25 miles of the plaintiff’s office.

PROCEDURAL HISTORY

Plaintiff filed a complaint on May 19, 2004, seeking to enjoin defendant from working for St. Luke’s Hospital based on the restrictive covenant in the employment agreement between the parties. On June 28, 2004, defendant filed an answer and new matter. Plaintiff filed an answer to defendant’s new matter on August 31,2004.

On April 1,2005, plaintiff filed the instant motion for summary judgment. On the same date, defendant filed his motion for summary judgment.

Argument on the cross motions for summary judgment was heard before this court on July 11, 2005.

DISCUSSION

Both plaintiff and defendant seek summary judgment based upon a restrictive covenant contained in an employment contract between the parties.

[181]*181A motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Heil v. Brown, 443 Pa. Super. 502, 505, 662 A.2d 669, 671 (1995). In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the non-moving party and must resolve all doubts against the moving party. Id.

Once the moving party has met its burden, the non-moving party must produce sufficient evidence regarding material issues of his case, and on which he bears the burden of proof, such that a jury could return a verdict in his favor. Failure to show such evidence establishes that the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 544 Pa. 93, 102, 674 A.2d 1038, 1042 (1996).

Restrictive Covenant

Plaintiff argues that defendant violated this restrictive covenant and that they are therefore entitled to judgment as a matter of law. Defendant cross moves for summary judgment arguing that, despite any violation, plaintiff has failed to establish that the restrictive covenant protects a legitimate business interest and that the covenant is therefore unenforceable.

The employment agreement between the parties clearly states that Puccio “agrees that ... for a period of 24 months or two years after termination of Puccio’s em[182]*182ployment with LVBMJ, Puccio shall not, directly or indirectly, as owner, principal, agent stockholder, director, manager, representative, employee, counselor, partner, lender, participant or any other capacity whatsoever, engage in the practice of orthopedic medicine within 25 miles from any office of LVBMJ.”

Defendant began working as an orthopedist for St. Luke’s Hospital within one month of the termination of his employment with LVBMJ. St. Luke’s Hospital is less than 25 miles from LVBMJ’s Bethlehem office.

Restrictive covenants are generally enforceable in Pennsylvania if they are incident to an employment relationship between the parties; the restrictions imposed by the covenant are reasonably necessary for the protection of the employer; and the restrictions imposed are reasonably limited in duration and geographic extent. Hess v.

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Bluebook (online)
75 Pa. D. & C.4th 176, 2005 Pa. Dist. & Cnty. Dec. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lehigh-valley-bone-muscle-joint-group-llc-v-puccio-pactcompllehigh-2005.