No. 265 PITTSBURGH, 1982, Appeal from an Order in the Court of Common Pleas, Civil Division, of Erie County, No. 15 Equity, 1977.
Allan Joseph Opsitnick, Pittsburgh, for appellants.
Bruce L. Getsinger, Erie, for appellee.
Rowley, Wieand and Hester, JJ.
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Appellee sought and received an injunction prohibiting appellants Shannon Optical Company, Inc., (hereinafter Shannon) and David Gallaway from engaging in any business which was directly or indirectly competitive with appellee. It is from this injunction and from damages assessed against Shannon and Gallaway individually that appellants have filed this appeal.
Appellee purchased appellants' business in northwestern Pennsylvania on October 29, 1976. The agreement was executed by Gallaway as President of Shannon and, in exchange for additional consideration, included a covenant by Shannon and by Gallaway individually not to compete with appellee in Erie and eight adjacent counties for a period of five years. Shortly thereafter, appellee discovered that appellants continued to solicit and procure business orders in the aforesaid areas. After repeated requests to appellants to discontinue their business in the restricted locales, appellee filed a complaint in equity seeking to enjoin appellants from further operations. On February 9, 1981, the chancellor entered a decree nisi enjoining Shannon from violating the covenant not to compete and assessing damages against it. Following the dismissal of exceptions, the order was finalized on November 23, 1981. On February 3, 1982, the court en banc entered an order, affirming the decree nisi and amending the final order to award appellee additional damages in the amount of $4,052.46 against Gallaway individually. Appellants thereafter filed this timely appeal.
Initially, appellants assert that the lower court did not have jurisdiction to amend its order of November 23, 1981. Specifically, they contend that the order was amended beyond
[ 326 Pa. Super. Page 174]
the allowable time period as permitted by 42 Pa.C.S.A. § 5505. This provision states:
"Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed."
Appellants argue that the above-cited language required any amendment to the order of November 23, 1981, to be made prior to December 23, 1981, that is, 30 days after the entry of the original order. Thus, appellants continue, the lower court lacked jurisdiction to enter an order on February 3, 1982.
Appellants misapprehend the facts. Appellee filed a petition for clarification of the November 23, 1981, order on December 7, 1981; said petition was granted that day. At the same time, the lower court entered an order whereby it stayed all proceedings and specifically tolled all relevant time limitations. Consequently, the ...