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HERMAN v. DIXON (05/26/58)

May 26, 1958

HERMAN
v.
DIXON, APPELLANT.



Appeal, No. 202, Jan. T., 1958, from decree of Court of Common Pleas of Schuylkill County, March T., 1958, No. 1, in equity, in case of Frederick W. Herman, M.D. v. Robert Dixon, M.D. Decree reversed.

COUNSEL

Calvin J. Friedberg, with him Joseph A. McKenna, and Hicks, Williamson, Friedberg & Jones, for appellant.

Henry Houck, with him Alexander E. Lipkin, and James P. Bohorad, for appellee.

Before Jones, C.j., Musmanno, Jones and Cohen, JJ.

Author: Cohen

[ 393 Pa. Page 35]

OPINION BY MR. JUSTICE COHEN

This appeal is from the grant of a preliminary injunction restraining the defendant from practicing medicine or maintaining a medical office within a radius of 15 miles from the City of Pottsville, Pennsylvania.

Plaintiff is specialist in obstetrics and gynecology practicing in Pottsville. In the spring of 1957 he offered the defendant, who was then completing his residency in this specialty at a Pittsburgh hospital, a position in his office as an associate with the possibility that they would become partners. Defendant accepted this offer and on July 5, 1957, entered into a written agreement of employment whereby he was to perform for the plaintiff such functions and duties as the plaintiff should prescribe and for which he was to receive a salary for the first year and an increasing percentage of plaintiff's net income for the next four years. Both parties were given the right to terminate the agreement, and in the event of such termination the defendant agreed that he would not engage in the practice of medicine in the City of Pottsville or within 15 miles thereof for a period of three years from the date of termination.

[ 393 Pa. Page 36]

Within three months after the inauguration of their association defendant severed his relations with the plaintiff and thereupon opened his own office in Pottsville for the practice of obstetrics and gynecology. Three months thereafter, on January 20, 1958, plaintiff filed a complaint in equity to enjoin Dixon from engaging in the practice of medicine within the proscribed area; and until the determination of the action on its merits, he prayed for the issuance of a preliminary injunction. After a hearing the chancellor granted the preliminary injunction, and this appeal followed.

The limits of our review of the action of a chancellor in issuing a preliminary injunction are established in Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-344, 123 A.2d 626 (1956), where we stated: "Our uniform rule is that, on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable. ..."

Basically a preliminary injunction requires the party against whom it is granted to maintain his status until the matters in dispute shall be determined. It also seeks to compel a wrongdoer to give up the status he appropriated before an action could have been instituted against him.

Since a preliminary injunction is somewhat like a judgment and execution before trial, it will only issue where there is an urgent necessity to avoid injury which cannot be compensated for by damages and should never be awarded except when the rights of ...


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