Inc., since Kozan's termination by American Mutual, which accounts generated approximately $72,000 annual premium income to American Mutual.
We find that the contracts are reasonable as to time and geographic area. We find the damage to plaintiff from breach to be irreparable injury. We find that the contracts are reasonably necessary for the protection of plaintiff's property interests and good will, and that the harm inflicted upon plaintiff from failure to enforce is greater than the harm imposed on defendant from its enforcement, and that plaintiff has a reasonable probability of success on the merits of its complaint.
Defendant's principal argument is that the contract is not enforceable under Pennsylvania law because the defendant Kozan's employment was involuntarily terminated. They cite a Pennsylvania County Court case to that effect, Judge Associates, Inc. v. Belchen, 71 D & C 2d 112 (Phila. Co. 1975), but the result of that case was due to the fact that the specific language of the non-competing agreement made it applicable only in the event that the employee voluntarily terminated his employment.
Other cases from the Pennsylvania Appellate courts have refused enforcement by an employer where there is a clear breach of the employment contract by the employer, a wrongful discharge. Boldt Machinery & Tools, Inc. v. Wallace, 469 Pa. 504, 366 A.2d 902 (1976), a plurality opinion found the territorial restraint overbroad, the five year period reasonable. There is no holding that involuntary termination of employment makes the clause unenforceable. The injunction was modified in part.
Miles v. Metzger, 316 Pa. 211, 173 A. 285 (1934), has nothing to do with this case, only reciting the general principle that one who breaches a contract cannot take advantage of the breach in enforcement.
Ritz v. Music, Inc., 189 Pa. Super. 106, 150 A.2d 160 (1959), says that where a principal wrongfully discharges an agent prior to the expiration of the term of the contract, the agent is relieved of his covenant not to compete. The action was one in assumpsit for wrongful discharge. The defendant employer pleaded the breach of the covenant not to compete as a counterclaim. The jury found for the plaintiff holding the discharge in violation of the contract and the Superior Court affirmed the judgment, holding that the finding of wrongful discharge relieved the employee of other obligations.
The evidence in this case revealed no wrongful discharge. The employee Kozan knew from prior warnings that he was under probation and acknowledged the discharge as justified at the time of this termination. We find no wrongful breach of the employment contract that would justify refusal to enforce the non-compelling agreement.
NOW, this 5th day of April 1984, after hearing thereon IT IS ORDERED that the temporary restraining order issued on March 12, 1984, and continued after hearing on March 15, 1984 is now continued in effect as a preliminary injunction until a final hearing on this case, unless modified by further order of this court during the pendency of this action. The Bond previously posted shall remain in effect.
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