No. 02615 Phl 83, Appeal from the order of the Court of Common Pleas of Chester County, Civil Division, at No. 152 of 1983.
Thomas B. Kenworthy, Philadelphia, for appellant.
Fred T. Cadmus, III, West Chester, for appellee.
Spaeth, President Judge, and Beck and Hoffman, JJ.
Appellant contends that the lower court improperly issued a preliminary injunction without granting him a hearing as required by Pa.R.Civ.P. 1531(d). Because we find procedural defects in the proceedings below, we vacate the lower court order continuing the preliminary injunction.
On September 19, 1983, appellee, Ogontz Controls Company, filed a complaint in equity against appellant, Frederick L. Pirkle, alleging that Pirkle, a former Ogontz employee, had violated his employment contract by unfairly using confidential information and trade secrets to compete with Ogontz. On the same day, upon appellee's motion, and without a hearing or notice to appellant, the lower court entered an ex parte preliminary injunction against appellant, subject to a $5,000 surety bond.*fn1 The court also set a
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date for a hearing on the continuance of the injunction for September 23, 1983. The hearing was held on September 23, 27, and 28, during which time appellee presented the testimony of several witnesses. On the afternoon of September 28, during appellant's cross-examination of appellee's president, the lower court, noting that it was almost quarter to 5:00, called for an off-the-record conference in chambers. (N.T. September 28, 1983 at 161). On September 29, the court heard oral argument by counsel and, upon appellant's request, agreed to hear his offer of proof as to the testimony he proposed to produce on the preliminary injunction. On September 30, appellant presented his offer of proof and also moved for a supersedeas and to increase the bond to $1,000,000. The court denied the motions and stated: "I'm going to enter an order on Monday continuing the preliminary injunction and fix bond in the amount of $20,000, and I will prepare that order and have it filed by yesterday. You are certainly free to appeal." (N.T. September 30, 1983 at 16). The lower court then expressed its intention to set a final hearing date and ascertained from counsel how much time each party would need to conclude their cases.*fn2 The order continuing the preliminary injunction
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until the final hearing was dated September 29, 1983.*fn3 This appeal followed.
Appellant alleges specifically that there was no "hearing" held as required by Pa.R.Civ.P. 1531(d) because he was not given the opportunity to present evidence on his own behalf. Generally, the court can issue a preliminary injunction only after written notice and hearing; however, an exception is made when "immediate and irreparable injury" will result before notice can be given or a hearing held. Pa.R.Civ.P. 1531(a). Rule 1531(d) provides that:
An injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five (5) days after the granting of the injunction or within such other time as the ...