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ROLLINS PROTECTIVE SERVICES COMPANY v. DANIEL J. SHAFFER (04/11/89)

filed: April 11, 1989.

ROLLINS PROTECTIVE SERVICES COMPANY, A DIVISION OF ROLLINS, INC., A DELAWARE CORPORATION, APPELLANT,
v.
DANIEL J. SHAFFER, AN INDIVIDUAL. ROLLINS PROTECTIVE SERVICES COMPANY, A DIVISION OF ROLLINS, INC., A DELAWARE CORPORATION, APPELLANT, V. MICHAEL ALUISE, AN INDIVIDUAL



Appeals from the Orders of the Court of Common Pleas, Allegheny County, Civil Division, at Nos. GD 88-03210 and 88-03211.

COUNSEL

John W. Jordan, IV, Pittsburgh, for appellant (at 732 and 733).

Ralph H. German, Pittsburgh, for Shaffer, appellee (at 732) and for Aluise, appellee (at 733).

Brosky, Del Sole and Johnson, JJ. Del Sole, J. files a concurring opinion.

Author: Brosky

[ 383 Pa. Super. Page 599]

These are appeals from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, entered April 28, 1988, denying appellant's petition for preliminary injunction. The question before this court is whether a former employer must suffer irreparable harm from the competition of a former employee before it can enforce a non-competition clause in the former employee's employment agreement. We affirm.

Appellees, Shaffer and Aluise, are former employees of appellant, who as of October 16, 1987 and November 9, 1987, respectively, left the employ of appellant to work for a direct competitor, Westec Securities Systems, Inc. On February 24, 1988, appellant filed suit in equity against each appellee, seeking preliminary and permanent injunctions against their continued employment with Westec, by virtue of covenants not to compete contained within the employment contracts signed by appellees when hired by appellant. Each contract contained a written restrictive covenant requiring the appellees not to engage in employment competitive with appellant for a period of two years within a 50 mile radius of Pittsburgh, Pennsylvania, in the event they left the appellant's employ. It is agreed by all parties that both appellees are working for a direct competitor of appellant and are doing so within the Pittsburgh area.

The Chancellor found that the employment agreements are valid, but denied the motions for preliminary injunctions

[ 383 Pa. Super. Page 600]

    because the appellant not only failed to establish proof of irreparable harm, but failed to establish proof of any harm.

The scope of review with respect to the grant, refusal, or continuance of a preliminary injunction is very limited. We may only determine if there were any apparently reasonable grounds for the actions of the court below. Only if it is plain that no grounds exist to support the decree, or that the rule of law relied upon was palpably erroneous or misapplied, will we interfere with the decision of the chancellor. Blair Design and Construction Co., Inc. v. Kalimon, 366 Pa. Super. 194, 199, 530 A.2d 1357, 1359 (1987).

Appellant contends that the Chancellor applied a palpably erroneous rule of law when he held that appellant's inability to prove actual harm prevented it from obtaining an injunction against appellees' violation of their agreements not to compete with appellant in the Pittsburgh area. Appellant contends that, on the contrary, a former employer need not suffer irreparable harm from the competition of a former employee before it can enforce a non-competition clause in the former employee's employment agreement. In support of its position, appellant cites Bettinger v. Carl Berke Assoc., Inc., 455 Pa. 100, 314 A.2d 296 (1974), in which the court granted the issuance of an injunction to the former employer:

While it is generally true that injunctions will only be issued upon a showing of irreparable harm, we are here dealing with a restrictive covenant in an employment contract. In Jacobson & Co. v. Int. Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967), we stated: '. . . employment contracts containing general covenants by an employee not to compete after the termination of his employment are prima facie enforceable if they are reasonably limited as to duration of time and geographical ...


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