West Chester Capital Advisors Inc. v. Marra

39 Pa. D. & C.5th 377
CourtPennsylvania Court of Common Pleas, Chester County
DecidedJuly 11, 2014
DocketNo. 2014-00682
StatusPublished

This text of 39 Pa. D. & C.5th 377 (West Chester Capital Advisors Inc. v. Marra) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West Chester Capital Advisors Inc. v. Marra, 39 Pa. D. & C.5th 377 (Pa. Super. Ct. 2014).

Opinion

TUNNELL, J.,

Appellants, Bruce L. Marra and West Chester Asset Management, Inc. (hereinafter referred to simply as “Marra”), filed a timely appeal from the decision and orders of this court entered May 15, 2014, which granted preliminary injunctive relief to appellee, West Chester Capital Advisors, Inc. (“WCCA”), and found appellants in contempt of the court’s January 31, 2014 injunctive order. The orders followed evidentiary hearings held April 1, 2, 8, 9 and 23 and May 1, 2014 and briefing by the parties thereafter.

The court entered an order directing appellants to file a concise statement of the errors complained of on appeal. They did so.

DISCUSSION

Appellants assert twelve alleged errors on appeal. More than half of the errors (¶¶ 1,3,4,7,9,11 and 10) challenge the factual determinations made by the court after it heard extensive testimony over the course of multiple hearing days. The remainder of the errors complained of (¶¶ 2, 5, 6, 8 and 12) challenge the legal conclusions which supported the court’s decision to enforce the restrictive covenant to which Mr. Marra agreed in his employment agreement with appellee.

The court rendered a decision of 26 pages containing detailed findings of fact, conclusions of law and a discussion of authorities, dated May 14, 2014, upon which the order for preliminary injunction rests. After review, the court believes that its prior decision fully sets forth the court’s reasoning for granting appellee’s request for injunctive relief and addresses the majority of errors asserted in the concise statement. The court, nonetheless, will address [380]*380further some of the points raised in appellants’ concise statement of errors as they relate to the (1) civil contempt order and (2) preliminary injunction order.

Before doing so, it is important to mention certain unique issues present in this appeal.

The concise statement of errors complained of filed by Marra groups the errors under the headings of “JNOV” and “new trial.” Judgment Notwithstanding the Verdict (JNOV) is warranted only in two situations: (1) the movant is entitled to judgment as a matter of law, or (2) the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Walker v. Drexel Univ., 2009 Pa. Super. 80, 971 A.2d 521 (2009). On the first ground, a court reviews the record and concludes that even with all the factual inferences decided adverse to the movant, the law nonetheless requires a verdict in the movant’s favor. On the second basis, a court reviews the evidentiary record and concludes the evidence is such that a verdict for the movant is beyond per adventure. Betz v. Erie Ins. Ex., 2008 Pa. Super. 21, 957 A.2d 1244 (2008). If there is any basis upon which the jury could have properly made its award, a denial of a motion for JNOV must be affirmed. Sewak v. Lockhart, 699 A.2d 755 (Pa. Super. 1997).

Inasmuch as this appeal lies from the entry of a preliminary injunction, there is no “verdict”, nor any similar final order. Thus, any argument for the failure to enter JNOV makes no sense. In order to preserve the right to request a JNOV post-trial, a litigant must first request a binding charge to the jury or move for a directed verdict at trial. See Pa.R.C.P. 227.1(b)(1); Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818 A.2d [381]*3811287, 1291, n. 4 (Pa. Super. 2003). Appellants did not do so.

Another problem with this appeal is that although Marra requested that a transcript be prepared, he has failed to pay for it so that the record is incomplete and cannot be reviewed consistent with the foregoing standards. The court is thus mightily hampered in furnishing a detailed opinion with citations to a certified transcript. Cf. Pa.R.J.A. 5000.11(b).

Nevertheless, it will do its best to address the errors raised by Marra.

A. Appellants’ Challenges to the Civil Contempt Order

Appellate review of a finding of contempt is limited to deciding whether the trial court abused its discretion. McMahon v. McMahon, 706 A.2d 350, 356 (Pa. Super. 1998). See also Sinaiko v. Sinaiko, 445 Pa. Super. 56, 63, 664 A.2d 1005, 1009 (1995) (review of finding of civil contempt limited to determining whether trial court committed “clear” abuse of discretion). Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super. 2000). Great reliance is placed on the sound discretion of the trial judge when reviewing an order of contempt. Sinaiko, 445 Pa. Super. 56, 63, 664 A.2d at 1009.

1. The court properly concluded that Marra’s so-called “volunteers” were acting under his control and at his direction.

[382]*382a. Concise Statement — Error 1

In arguing that it was error for the court to hold him in indirect civil contempt, Marra asserts that “as a matter of law” neither he nor his company are responsible for the actions of non-parties “who were not employed” by either Marra or WCAM, and who acted on their own, independently, “as volunteers.”

The evidence revealed, and the court found, that two long-time former employees, a Mrs. Moffett and a Ms. Founds, were in fact hard at work for Marra in no way distinguishable from what they used to do. In fact, Mr. Marra could not operate an investment advisory business at all without them because, as an older gentleman, he did not do his own typing, did not send emails, and could not operate the portfolio management software necessary to record trades, prepare invoices and perform other tasks. In short, he was helpless without them.

As findings of fact, the court found that Ms. Founds continued to operate the portfolio management software which she had copied onto her personal laptop, and performed services for Marra. (Finding of fact no. 63). Ms. Founds worked approximately 20-30 hours per week for Marra and his new company, three days a week from her home in Chester County, and two days in the Philadelphia office. (Finding of fact no. 62). Ms. Founds also prepared a significant number of the client advisory contracts for Marra, and other client account forms. Marra could not do so. Insofar as she did so, she necessarily used confidential information that belonged to WCCA, (Finding of fact no. 65), as will be further discussed.

Marra asserts that because these individuals worked only part-time, and worked without pay, they were necessarily “volunteers.”

[383]*383The court saw it differently.

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Bluebook (online)
39 Pa. D. & C.5th 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-chester-capital-advisors-inc-v-marra-pactcomplcheste-2014.