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MARTIN INDUSTRIAL SUPPLY CORP. v. JAMES RIFFERT AND LINDLEY SUPPLY CO. (08/31/87)

filed: August 31, 1987.

MARTIN INDUSTRIAL SUPPLY CORP., APPELLANT.
v.
JAMES RIFFERT AND LINDLEY SUPPLY CO.



Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4609 SEPT TERM 1986.

COUNSEL

Steven R. Williams, Philadelphia, for appellant.

Cary L. Flitter, Bala Cynwyd, for appellees.

Cirillo, President Judge, and McEwen and Tamilia, JJ.

Author: Tamilia

[ 366 Pa. Super. Page 90]

On June 4, 1985, plaintiff/appellant hired defendant/appellee, James Riffert, to be a "cold call" salesman in its business of selling various products and supplies for use in the maintenance of commercial properties. At first, Riffert's chief duty was to promote appellant's business by locating new accounts. Within a short period of time, appellant decided to give Riffert established accounts in addition to any new accounts he might locate. In conjunction with turning over the established accounts, Riffert signed a boilerplate "employee non-compete" agreement with appellant on July 9, 1985. Subsequently, on September 19, 1986, Riffert gave notice of his intention to quit

[ 366 Pa. Super. Page 91]

    appellant and to work for co-defendant, Lindley Supply Company, a competitor of appellant.

Appellant commenced an action on September 24, 1986 by the filing of a complaint in equity seeking to enforce the "employee non-compete" agreement. Also, appellant filed a motion for a preliminary injunction to enjoin Riffert from violating the agreement. On December 15, 1986, after a hearing on the motion, the trial court issued findings of fact, conclusions of law and a decree nisi denying appellant's request for a preliminary injunction. Appellant then filed a notice of appeal from the decree nisi to our Court on January 5, 1987.

Contrary to the trial court's Opinion, we find the instant appeal properly before us despite appellant's failure to file exceptions to the trial court's entry of a decree nisi. Our Opinion in Agra Enterprises Inc. v. Brunozzi, 302 Pa. Super. 166, 448 A.2d 579 (1982), is controlling. In Agra Enterprises, we held that Pa.R.A.P. 311(a)(4) specifically permits a direct appeal to be taken "as of right" from a decree nisi refusing an injunction to enforce a covenant not to compete, without first filing exceptions to the decree. See Pa.R.A.P. 311(a); Bolus v. Ryder Truck Rental, Inc., 358 Pa. Super. 387, 517 A.2d 995 (1986); Commonwealth ex rel. Lewis v. Allouwill Realty Corporation, 330 Pa. Super. 32, 478 A.2d 1334 (1984); Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, 303 Pa. Super. 420, 449 A.2d 1389 (1982). Therefore, the matter is properly before us.

As we recently restated in Soja v. Factoryville Sportsmen's Club, 361 Pa. Super. 473, 477, 522 A.2d 1129, 1131 (1987):

The purposes of a preliminary injunction are to preserve the status quo and prevent imminent and irreparable harm which might occur before the merits of the case can be heard and determined. Township of Clinton v. Carmat, Inc., 288 Pa. Super. 433, 436, 432 A.2d 238, 239 (1981). It is considered an ...


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