Appeal, No. 242, Jan. T., 1963, from decree of Court of Common Pleas of Lancaster County, Equity Docket No. 12, p. 186, in case of Sol Hoffman, trading and doing business as Tri-State Music Company, v. Harold Rittenhouse and Independent Music Co. Decree affirmed.
Howard Gittis, with him James P. Coho, Herbert W. Yanowitz, Thomas D. McBride, and Wolf, Block, Schorr and Solis-Cohen, for appellant.
W. Hensel Brown, with him Brown & Zimmerman, for appellees.
Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE O'BRIEN
Plaintiff-appellant, Sol Hoffman, trading and doing business as Tri-State Music Company, appeals from a final decree in equity, dismissing his complaint,
which sought to enforce a restrictive covenant against appellees, Harold Rittenhouse and his present employer, Independent Music Company. Harold Rittenhouse had been employed by Albert Rosman, doing business as Penn State Music Company, for many years, as manager of the business engaged in distributing coin-operated music machines and coin-operated amusement devices. Appellant acquired the Penn State Music Company, including music machines, amusement devices, good will and rights in many locations in which the equipment had been placed.
On May 13, 1960, when Tri-State acquired Penn State, Harold Rittenhouse, Victor Rittenhouse (not a party herein), Sol Hoffman, trading and doing business as Tri-State Music Company, and Albert S. Rosman, trading and doing business as Penn State Music Company, entered into a written agreement which, inter alia, provided as follows: "NOW, THEREFORE, BE IT AGREED that for and in consideration of the sum of $1.00 and other valuable consideration [$1,000] paid to the said HAROLD RITTENHOUSE and VICTOR RITTENHOUSE, by ALBERT ROSMAN aforesaid, receipt whereof is hereby acknowledged by HAROLD RITTENHOUSE and VICTOR RITTENHOUSE, they, the said HAROLD RITTENHOUSE and VICTOR RITTENHOUSE, do hereby agree and stipulate that for and during the period of five years from the date of the execution of this contract that they will not solicit any of the aforesaid business sites conveyed by PENN STATE MUSIC COMPANY to the TRI-STATE MUSIC COMPANY or any of the aforesaid sites now serviced by TRI-STATE MUSIC COMPANY with commercial music coin operated music machines or coin operated amusement devices so long as the aforesaid sites are so supplied and serviced by either of the aforesaid companies directly or indirectly for themselves, for any employers or any employees or any associates of any kind including now existing or to be formed. This prohibition
against soliciting however, shall not*fn1 be limited to the soliciting of the aforesaid sites as locations for commercial music coin operated music machines or coin operated amusement devices [sic] and shall not be meant to limit solicitation of the aforesaid places for any other category of sales or services."
Harold Rittenhouse became employed by Independent Music Company, the other appellee, a few weeks after the formation of that Corporation by Pryor Neuber, sometime in March, 1961. Harold Rittenhouse owned no stock or interest in the Independent Music Company. All the stock of the corporation was owned by Mr. and Mrs. Pryor Neuber. The Independent Music Company is engaged in the distribution of coin operated music machines and coin operated amusement ...