Lico, Inc. v. Dougal, A. v. Lichtenstein, S.

2019 Pa. Super. 238, 216 A.3d 1129

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2019
• Docket: 1335 WDA 2018
• Status: Published

Opinion

J -A12024-19 2019 PA Super 238

LICO, INC. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

ADAM DOUGAL D/B/A PATRIOT No. 1335 WDA 2018 SUPPLY v.

SAMUEL LICHTENSTEIN

Appeal from the Order Entered August 22, 2018 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 17-11735

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.: FILED AUGUST 9, 2019

In this appeal, Appellant, Lico, Inc., appeals from the trial court's August

22, 2018 Order denying Appellant's Motion for Special and Preliminary

Injunction in which it sought to enforce its non -compete agreement with

Appellee, Adam Douga1.1 For the reasons discussed below, we dismiss this

appeal as moot.

The facts and procedural history, as gleaned from the record, are as

follows. Appellant, located in McKeesport, manufactures, sells, and distributes

janitorial and paper good supplies. In June 2006, Appellant hired Appellee to

1 An order denying a preliminary injunction is interlocutory appealable as of right. Pa.R.A.P. 311(a)(4). J -A12024-19

work as a salesman in the McKeesport area. Appellee's compensation package

consisted of a straight salary plus an additional 10% commission if he reached

$250,000 in sales.

Five years later, in 2011, Appellant received information that Appellee

had begun working for a competitor on the side. Instead of terminating

Appellee's employment, Appellant allowed Appellee to remain employed in

exchange for Appellee signing a non -compete agreement. The non -compete

agreement had a two-year term beginning when his employment terminated

and restricted Appellee from working within a 100 -mile radius of McKeesport

during that two-year period. Appellee signed the non -compete agreement on

March 24, 2011.

Appellee remained employed by Appellant until he resigned on July 3,

2017. Following Appellee's resignation, Appellant contacted Appellee's

customers to inform them that Appellee had resigned. Appellant then learned

that Appellee had continued to service Appellant's customers by starting a

new company.

On August 22, 2017, Appellant filed a Complaint raising claims of

Tortious Interference with Business Relations and Unfair Competition.

Appellee filed an Answer with New Matter and a Counterclaim on November

22, 2017. On February 27, 2018, Appellant filed the instant Motion for Special

Relief and Preliminary Injunction.

After a one -day hearing, the trial court denied Appellant's Motion on

April 11, 2018. Appellant requested, and the court granted reconsideration of

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its Order. Following an additional hearing, on August 22, 2018, the trial court

confirmed its April 11, 2018 Order denying Appellant injunctive relief.

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal:

1. Assuming as the lower [c]ourt did[] that the increase in [Appellee's] compensation and commission package in 2011 was valid consideration for the non -compete agreement, did the [t]rial [c]ourt err in determining that the compensation package was materially changed before [Appellee's] separation from [Appellant,] thus causing the consideration to fail? 2. Did the lower [c]ourt err in determining that [Appellant's] change in [Appellee's] compensation package to a straight commission with a retraction of health benefits was a material change in [Appellee's] terms of employment thus voiding the non -compete agreement?

Appellant's Brief at 3.

Before we address the merits of Appellant's claims, we must first

determine whether these issues are properly before us. Appellant appealed

only from the denial of his Motion for injunctive relief, a motion he based on

the non -compete agreement. Because the non -compete agreement expired

on July 3, 2019, this appeal is moot.

An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law[.] In that case, an opinion of this Court is rendered advisory in nature. An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect. * * *

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Nevertheless, this Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court. In re R.D., 44 A.3d 657, 680 (Pa. Super. 2012) (citations omitted). The instant appeal arises from the trial court's determination that the

non -compete agreement is not enforceable. By its own terms, the agreement

was enforceable for two years after Appellee left Appellant's employment.

Appellee resigned from Appellant on July 3, 2017. Therefore, the non -

compete agreement expired on July 3, 2019. Accordingly, Appellant's

challenge to the denial of injunctive relief that was based only on the

enforceability of the non -compete agreement is moot. See, e.g., Gordon v.

Phil. County Dem. Exec. Comm., 80 A.3d 464, 473 (Pa. Super. 2013) (finding third -party challenges to use of particular rule to remove committee

member moot where committee reinstated member); R.D., supra at 680

(finding a challenge to a juvenile court judge's remarks at dispositional hearing

moot where juvenile was no longer in placement); Scranton School Dist. v.

Scranton Fed'n of Teachers, 282 A.2d 235 (Pa. 1971) (finding appeal from order granting preliminary injunction prohibiting a teachers' strike moot after

the parties executed a collective bargaining agreement resolving the

controversy).

Our review of the record demonstrates that none of the exceptions

applies. See In re R.D., supra at 680. This matter is a private dispute

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revolving around the enforcement of a non -compete agreement in the contract

of a single former employee. It involves no issue of public importance. Cf. In re Estate of Border, 68 A.3d 946, 954 (Pa. Super. 2013) (finding that appeal from denial of preliminary injunction staying order removing guardian was

technically moot following death of patient, but holding it concerned matter of

public importance, the removal of life support from incapacitated patient).

Moreover, because Appellant no longer employs Appellee, the question of the

enforceability of a clause in the employment contract between them will not

arise again. See Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super.

1983) (internal quotation marks and citations omitted) (explaining that "a

case is capable of repetition, yet evading review when (1) the challenged

action [is] in its duration too short to be fully litigated prior to its cessation or

expiration, and (2) there [is] a reasonable expectation that the same

complaining party [will] be subjected to the same action again").

Lastly, Appellant will not suffer any detriment without this Court's

decision. Appellant sought injunctive relief to enforce the non -compete

agreement, and that agreement has now expired; Appellant cannot enforce

the clause now.

This Court has observed, "[a]n issue before a court is moot if in ruling

upon the issue the court cannot enter an order that has any legal force or

effect." Rivera v. Pa. Dept. of Corr., 837 A.2d 525, 527 (Pa. Super. 2003)

(citation omitted). Appellant sought to enforce a non -compete agreement

that has since expired. Thus, any ruling by this Court would have no force or

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effect. See Gordon, supra at 473; R.D., supra at 680. The issue herein is

moot, and we, thus, dismiss the appeal.

Appeal dismissed.

Judgment Entered.

r 1 Joseph D. Seletyn, (Of Prothonotary

Date: 8/9/2019

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