Nairn v. Bartusiak

29 Pa. D. & C.4th 373, 1995 Pa. Dist. & Cnty. Dec. LEXIS 57
CourtPennsylvania Court of Common Pleas, Washington County
DecidedOctober 24, 1995
Docketno. 95-4003
StatusPublished

This text of 29 Pa. D. & C.4th 373 (Nairn v. Bartusiak) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Washington County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nairn v. Bartusiak, 29 Pa. D. & C.4th 373, 1995 Pa. Dist. & Cnty. Dec. LEXIS 57 (Pa. Super. Ct. 1995).

Opinion

WOLFE, S.J.,

ADJUDICATION

Plaintiffs have brought this action in equity with a petition for preliminary injunction against defendant, raising an issue of breach of contract by defendant and conversion by defendant.

Defendant has filed an answer to the complaint and an answer to the petition for preliminary injunction.

The deposition of the plaintiff John P. Naim, D.M.D., was taken September 22, 1995, and the deposition of defendant Barry F. Bartusiak, D.M.D., was taken September 21, 1995.

Plaintiffs have filed their brief in support of the petition for preliminary injunction, and defendant has filed his brief in opposition to the grant of preliminary injunction. Plaintiffs have filed a reply brief in support [375]*375of plaintiffs’ preliminary injunction, and defendant has filed a reply to plaintiffs’ brief.1

ISSUES

(1) Are plaintiffs entitled to an enjoining injunction against defendant per the terms of the parties’ employment agreement under paragraph 9, thereof?

(2) Is the issue of defendant’s alleged conversion of plaintiffs’ property for disposition at this time?

STATEMENT OF FACTS

Issue no. 2 can be summarily resolved in that the parties have stipulated the petition for injunction may not be resolved under the current pleadings.

Addressing the issue of the alleged breach of contract by defendant, the basic facts are not essentially in dispute. Plaintiffs are a professional dental firm practicing dentistry in the city of Washington, Pennsylvania. The two individual plaintiffs have an aggregate dental practice of 60 years.

The defendant is a doctor of dentistry who was previously practicing in Washington County prior to joining the plaintiff’s practice under the terms of a written agreement executed by the parties on September 1, 1993.

The applicable terms of the parties’ written contract executed on September 1, 1993, provided an initial period of time of employment of defendant, from September 1,1993, to August 31,1994, except if terminated under section 8 of the agreement. Subsequently, the parties entered into a first amendment to the employment [376]*376agreement extending the terms thereof, in point of time, of employment of defendant to October 31, 1994, with all of the provisions of the employment agreement to remain in full force and effect.

Defendant’s employment continued after the expiration period of the initial term, and the extension thereof, without benefit of a written contract. In May 1995, defendant was informed by plaintiffs2 that his employment would be terminated August 31, 1995, by reason that plaintiffs were seeking another junior dentist to plaintiffs’ practice; defendant was also informed that his compensation would be changed for the ensuing three months from May of 1995, to date of August 31, 1995, from a base salary to a percentage of revenue that defendant’s work generated. Subsequently, defendant was informed by plaintiffs that his termination date would be moved back to July 31, 1995.

On July 21, 1995, defendant left the practice with plaintiffs without notice to plaintiffs, and set up his own dental practice.

The crucial terms of the parties’ initial agreement, as extended for the two month period, are in paragraph 8(a) and paragraph 9.

Paragraph 8 addresses termination of agreement, providing the parties’ agreement may be terminated as follows:

“(a) Dentist, defendant, or senior dentists, plaintiffs, may voluntarily elect to terminate this agreement at any time after the effective date, provided that the party electing to terminate must deliver to the other party, written notice of such intention to terminate, not less than 180 days prior to the date upon which such termination is desired.”

[377]*377Paragraph 9 of the agreement addresses non-compete agreement:

“If dentist’s, defendant, employment with senior dentists, plaintiffs, is terminated by dentist, except with cause, under section 8(c), or if dentist’s employment with senior dentists is terminated by senior dentists, with cause, under section 8(b) during the term of this agreement, dentist shall not, for a period of two years, from the date of termination, (i) engage in the practice of dentistry either individually or in association with others, within a 20 mile radius of senior dentists’ principle [sic] office in Washington, Pennsylvania; or (ii) provide dental service for any patient for whom dental services were provided by senior dentists, including dentist, during the term of this agreement. The foregoing restrictions shall not apply to the dental practice offices, presently occupied by dentists, located in Hickory, McMurray, and any other office in Peters Township, no closer than Waterdam Plaza. Should dentist breach the provision of this section 10, (sic) senior dentists shall be entitled to an injunction or other such relief as may be appropriate.” (emphasis added)

After July 21, 1995, defendant immediately commenced the practice of dentistry at the Washington Mall, located less than two miles from office of plaintiffs; additionally, defendant advertised his new practice in the local paper indicating his former relationship with plaintiffs.

PLAINTIFFS’ ARGUMENT

Plaintiffs contend the non-compete clause is valid and enforceable against defendant, notwithstanding the parties’ written contract, and the two months written extension, thereof, expired before defendant’s termination of his employment with plaintiffs. Plaintiffs argue the two year restrictive covenant, not to compete, was [378]*378triggered by defendant on July 21,1995 when defendant abruptly and without notice, left plaintiffs’ employment.

Plaintiffs contend, notwithstanding the expiration of the written agreement, containing the non-compete restriction on defendant, and extension thereof, did not abrogate the restrictive covenant and the non-compete clause continued and was enforceable against defendant at any time thereafter, irrespective if under a written contract, or employee at will. In this regard, plaintiffs argue that the covenant need not be “related to” or “ancillary to” any written contract of employment; in short, plaintiffs contend the restrictive covenant against the defendant may stand alone without a written contract, once defendant entered into the written agreement with the knowledge and consent of the restriction against him.

DEFENDANT’S POSITION

Defendant contends plaintiffs have not met the rigid criteria to receive equitable injunctive relief, under the monetary circumstances, as plaintiffs have not been irreparably injured, and if indeed any injury was sustained, plaintiffs have an adequate remedy at law for any monetary damages sustained.

Defendant contends the non-compete clause is inextricably structured in the one year written contract and the agreed two month extension thereof, and therefore, after August 31, 1994, when defendant became an employee at will, the non-compete clause is unenforceable against him. Stated otherwise, defendant contends the two year time period to non-compete operated from September 1,1993 through August 31,1994, and if defendant terminated his employment during that time frame, clearly he would be bound by the covenant.

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Cite This Page — Counsel Stack

Bluebook (online)
29 Pa. D. & C.4th 373, 1995 Pa. Dist. & Cnty. Dec. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nairn-v-bartusiak-pactcomplwashin-1995.