Appeal from decree of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1964, No. 442, in case of Thomas A. Hayes v. Theodore L. Altman.
Ronald J. Bua, with him DeCello, Bua & Manifesto, for appellant.
Clyde E. Donaldson, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen concurs in the result.
Appellant, Dr. Theodore L. Altman, a young and relatively inexperienced optometrist, went to work as an assistant to Dr. Thomas A. Hayes, the appellee, on January 1, 1959, under a written agreement for a term of five years. The agreement contained a restrictive covenant by the terms of which appellant agreed not to compete with appellee by engaging in the practice of optometry in the Borough of Monroeville or within a radius of six miles of Dr. Hayes' office for a period of three years from the termination of this contract.
At the expiration of the agreement on December 31, 1963, Dr. Altman continued to work for Dr. Hayes, who wanted another written agreement. On March 13, 1964, when Dr. Altman refused to execute a new employment agreement, he was discharged by Dr. Hayes.
Within a few months thereafter, Dr. Altman opened an office for the practice of optometry in the Borough of Monroeville.
Dr. Hayes, relying on the restrictive covenant contained in the contract of employment, filed an action in equity at No. 442 July Term, 1964, in the Court of Common Pleas of Allegheny County, seeking an injunction forbidding Dr. Altman from practicing optometry in Monroeville.
The court below found that the restrictive covenant was not reasonably necessary for the protection of Dr. Hayes, the employer, and, therefore, unenforceable. Dr. Hayes filed exceptions but the court en banc sustained the chancellor's position.
However, we reversed, holding that the restrictive covenant was reasonable as to duration of time and geographical extent and was reasonably necessary for the protection of the employer. Hayes v. Altman, 424 Pa. 23, 225 A.2d 670 (1967).
After our opinion was filed on January 20, 1967, Dr. Hayes was granted a rule requiring Dr. Altman to show cause why a decree of specific performance of the three-year covenant should not be issued. On January 24, 1968, the chancellor signed an order refusing the injunction and dismissing the rule granted on the defendant-appellant to show cause why an appropriate decree of specific performance ...