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BLAIR DESIGN AND CONSTRUCTION CO. v. MICHAEL J. KALIMON (09/08/87)

filed: September 8, 1987.

BLAIR DESIGN AND CONSTRUCTION CO., INC.,
v.
MICHAEL J. KALIMON, APPELLANT



Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. 85-20976.

COUNSEL

Kurt A. Miller, Pittsburgh, for appellant.

John W. Murtagh, Jr., Pittsburgh, for appellee.

Brosky, Del Sole and Cercone, JJ. Brosky, J., files a dissenting opinion.

Author: Del Sole

[ 366 Pa. Super. Page 196]

Before us is an appeal from the Order entered May 2, 1986. The Order consisted of a preliminary injunction prohibiting Appellant from conducting business in violation of a restrictive covenant he entered into with Appellee pursuant to an employment contract.

By his brief, Appellant raises the following issues:

1. Can a restrictive covenant which specifically prohibits a former employee only from dealing with customers named on a list attached to the employment agreement be construed to prohibit the former employee from dealing with customers not named on the list?;

2. Is the non-competition covenant involved in this action unenforceable because, as interpreted and enforced by the court below, its prohibitions are broader than necessary to protect the former employee's interests?;

[ 366 Pa. Super. Page 1973]

. Is the non-competition covenant involved in this action unenforceable because it is not reasonably limited in duration?; and,

4. Is the injunction issued by the lower court overbroad and indefinite?

The underlying facts of this case may be briefly summarized as follows. Appellee is in the business of retail store construction and remodeling. In December of 1983, Appellant was hired by Appellee to work as a project manager. Subsequent to commencement of work, Appellant signed an employment agreement which contained the following provisions:

DISCLOSURE OF INFORMATION: The Employee recognizes and acknowledges that the list of the Employee's [sic] customers which is attached hereto, and made a part hereof and designated Exhibit "A", and any new customers obtained during his employment with Employer, constitute a valuable, special and unique assets [sic] of the Employer's business. The Employer [sic] further recognizes and acknowledges that the Employer's customers are not located in any single geographical area but are situated throughout the entire United States of America. The Employee will not, during or after the terms of his employment, disclose the list of the Employer's customers or any part thereof to any person, firm, corporation, association or other entity for any reason or purpose whatsoever. In the event of a breach or threaten to breach of the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining the employee from disclosing, in whole or part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed as prohibiting the Employer from pursuing any other remedies available to the Employer from such breach or threatened breach, including the recovery of damages from the Employee. RESTRICTIVE COVENANT: For a period of three (3) years after the termination of this Agreement for any reason, the Employee will not directly or indirectly, own,

[ 366 Pa. Super. Page 198]

    manage, operate, control, by [sic] employed by, participate in, or be connected in any manner with the ownership management, operation or control of any business similar to the type of business conducted by the Employer at the time of termination of this Agreement, which deals in any manner or solicits any business from customers named on the list referred to in the immediately preceding paragraph. In the event of any actual or threatened breach by the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining the Employee from owning, managing, operating, controlling, being employed by, participating in, or being in any so connected with any business similar to the type of business conducted by the Employer at the time of termination. Nothing herein stated shall be construed as prohibiting the Employer from prusuing [sic] any other remedies available to the employer including the recovery of the damages from the employee. (Emphasis supplied).

In February of 1985, Appellant terminated his employment with Appellee so that he could pursue a career in the painting business. However, this plan did not transpire; therefore, Appellant entered the remodeling business as an independent contractor. Appellant proceeded to either bid upon, or perform construction work on, certain Corn Dog, Hot Sam Pretzel, and Original Cookie stores. Although these companies had been customers of Appellee, they did not appear on the customer list designated as Exhibit "A" in the employment contract. Likewise, they were not new customers obtained during Appellant's tenure with Appellee. Despite protests received by Appellee, Appellant continued to conduct business with these clients.

Appellee thereafter filed a complaint in equity requesting preliminary and permanent injunctive relief. On February 25, 1986, following a hearing on this matter, the Honorable Maurice Louik denied Appellee's request for a preliminary injunction. Upon receiving information that Appellant had performed work for, and was ...


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