The opinion of the court was delivered by: MARVIN KATZ
AND NOW, this 14th day of September, 1995, upon consideration of plaintiff's Motion for a Preliminary Injunction and Defendant's Motion for Partial Summary Judgment, and following a hearing, it is hereby ORDERED that plaintiff's Motion for Preliminary Injunction and defendant's Motion for Partial Summary Judgment are DENIED.
Defendants Daniel Schafer and Robert Cerminara were both employees of Scott Foodservice Division (the "Division").
After the assets of the Division were acquired by The Fonda Group, Inc. ("Fonda") for $ 30 million, Schafer and Cerminara did not accept employment with Fonda and left Scott's employ. Defendant Erving then hired Schafer and Cerminara for substantially identical positions. Erving directly competes with the Division. Fonda now seeks a preliminary injunction to enforce covenants not to compete which Schafer and Cerminara signed when they worked for Scott.
In order to obtain a preliminary injunction, the plaintiff must demonstrate (1) that there is a reasonable probability of success on the merits, (2) that the plaintiff will be irreparably injured by the denial of the relief, (3) that granting the preliminary injunction will not cause even greater harm to the defendant, and (4) that granting the preliminary injunction is in the public interest. ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987).
Whether the employment contracts at issue in this case are assignable is an open question in Pennsylvania. No Pennsylvania appellate court has ruled on the issue. At least one Pennsylvania trial court
has held that such personal service contracts without language expressly allowing assignments are not assignable. See Armstead v. Miller, 52 Pa. D. & C. 2d 584, 595 (Allegheny Co. 1971). Courts in Vermont and Alabama have not allowed the assignment of restrictive covenants absent a showing of the parties' intent to allow assignment. See Sisco & Jordan v. Empiregas, Inc., 286 Ala. 72, 237 So. 2d 463, 468 (Ala. 1970); Smith, Bell & Hauck, Inc. v. Cullins, 123 Vt. 96, 183 A.2d 528, 532 (Vt. 1962).
Other, distinguishable, cases support assignments of restrictive covenants. Howe v. Anderson, 23 Pa. D. & C. 3d 297, 301 (Adams Co. 1982) (allowing assignment where corporation was owned and operated by the same individual who signed the contract with the defendant); Green's Dairy Inc. v. Chilcoat, 89 Pa. D. & C. 351, 353 (York Co. 1953) (assignment was ratified); Jack Tratenberg, Inc. v. Komoroff, 87 Pa. D. & C. 1, 13 (Phila. Co. 1951) ("Defendant's knowledge of the incorporation of his former employer and his conduct in continuing in plaintiff's employ without objection thereafter constituted assent to the assignment to plaintiff of defendant's employment contract.").
New York and New Jersey courts have allowed the assignment of restrictive covenants. A. Fink & Sons, Inc. v. Goldberg, 101 N.J. Eq. 644, 139 A. 408, 410 (N.J. Ch. 1927); Norman Ellis Corp. v. Lippus, 13 Misc. 2d 432, 176 N.Y.S.2d 5, 6 (N.Y. Sup. Ct. 1955). Whether the restrictive covenants could have been assigned to Fonda thus presents a difficult and close question of law. See Sovereign Order of Saint John v. Messineo, 572 F. Supp. 983, 990 (E.D. Pa. 1983).
Moreover, the Asset Purchase Agreement ("APA") is ambiguous as to whether the employment contracts at issue were assigned. There is a reasonable argument that the most specific reference to "employment . . . agreements" in the APA is Section 3.08(b) and thus if the parties intended to assign Schafer and Cerminara's contracts, the contracts would have been listed, but the relevant Schedule 3.08(b) does not include the two specific restrictive covenants at issue or any others. This interpretation is enhanced by the letter from plaintiff dated May 3, 1995 urging Scott to enforce the restrictive covenants at issue. Def. Exh. 1; see also Def. Exh. 2, 3, 4, and 9. Scott believed it could enforce the restrictive covenants at issue after the closing. Nothing in the contracts at issue suggests that the parties intended or expected the restrictive covenants to be assignable. On the other hand, there is also a reasonable argument that the two restrictive covenants were assigned by the general language in Schedule 3.08 -- "Uniform Employment Agreement with Scott Paper Company."
In view of these two reasonable but conflicting interpretations of the agreements on the issue of whether the two restrictive covenants were, in fact, assigned, there is ambiguity which would allow for the development of extrinsic evidence to determine the intentions of the parties.
However, on the presently sketchy and relatively undeveloped record, I cannot find that plaintiff has met its burden of demonstrating a likelihood of success on the merits on that issue at this stage.
I am not confident that the public interest favors the establishment of a market in bare restrictive covenants.
Moreover, on the present record, the plaintiff has not demonstrated irreparable harm regarding its alleged risk from disclosure of trade secrets or confidential information or any alleged breach of the contract provisions in this regard. The two employees took their management and selling skills, not publicly unavailable technical data or valuable confidences, with them. See Tyson Metal Prods., Inc. v. McCann, 376 Pa. Super. 461, 546 A.2d 119, 122 (Pa. Super. Ct. 1988) ("If the information the plaintiff seeks to keep confidential could be obtained by legitimate means by its competitors, the enjoining of [the defendant] from disseminating the same information makes little sense, either in law or logic.").
Plaintiff has not demonstrated on this record a risk of irreparable harm from loss of technological secrets, secret customer information, pricing secrets (where there has been rapid change), sources of materials (as to which the contract was renegotiated recently), product data, computer databases, sales strategies (influenced largely by the bigger players in the industry rather than by these litigants), and the like by misappropriation of the defendants. There is no credible showing on the present record that the two individual defendants have disclosed or intend to disclose to their present employer such data, whether in the daily production area (in which Erving is not entered), the non-skid "patented" tray area (where the market is eroding), or otherwise. No loss from such disclosure has been demonstrated, nor does the present record demonstrate a serious risk of such loss. It is less than clear that damages would be inadequate to compensate any future loss.
If the restrictive covenant claims should fall, there would not be a viable claim against Erving for interference with a contractual relationship.
The Motion for Partial Summary Judgment is denied because there are genuine issues of material fact. The court will enter an appropriate order for orderly discovery to develop the factual issues ...