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05/20/97 ALL-PAK v. BARRY JOHNSTON

May 20, 1997

ALL-PAK, INC., A PENNSYLVANIA CORPORATION, APPELLANT
v.
BARRY JOHNSTON, AN INDIVIDUAL AND EXAKT TECHNOLOGIES, INC., AN OKLAHOMA CORPORATION, APPELLEES; ALL-PAK, INC., A PENNSYLVANIA CORPORATION, APPELLEE V. BARRY JOHNSTON, AN INDIVIDUAL AND EXAKT TECHNOLOGIES, INC., AN OKLAHOMA CORPORATION, APPELLANTS



Appeal from the ORDER DATED June 10, 1996 Docketed June 11, 1996 In the Court of Common Pleas of ALLEGHENY County, CIVIL, No. NO. GD 96-003873.

Appeal from the ORDER DATED June 10, 1996 In the Court of Common Pleas of ALLEGHENY County, CIVIL, No. NO. GD 96-003873. Before FARINO, J.

Before: Tamilia, Saylor, And Schiller, JJ. Opinion By: Schiller, J. Saylor, J. concurs in the result.

The opinion of the court was delivered by: Schiller

OPINION BY: SCHILLER, J.

FILED: MAY 20, 1997

In these cross-appeals, appellant All-Pak, Inc. [appellant at No. 1269 PGH 1996, appellee at No. 1343 PGH 1996] and appellees Barry Johnston and Exakt Technologies, Inc. [appellees at No. 1269 PGH 1996, appellants at No. 1343 PGH 1996] appeal the order entered by the Court of Common Pleas of Allegheny County denying appellant's petition for a preliminary injunction and appellees' motion for judgment on the pleadings. We affirm the appeal at No. 1269 PGH 1996 and quash the appeal at No. 1343 PGH 1996.

FACTS:

On December 28, 1987, Barry Johnston [Johnston] was hired by All-Pak, Inc. to be a marketing and sales representative. All-Pak, Inc. was a corporation owned by P. Kenneth Simon that was in the business of manufacturing and selling packaging material for various products. At the time he began his employment, Johnston entered into an employment contract with All-Pak, Inc. that contained the following nondisclosure and restrictive covenant provisions:

1. Should employment of said Employee be terminated for whatever reason, the Employee agrees not to engage or associate with another firm, individual or corporation in the packaging or container business or silkscreen decorating business for a period of two years within the trading area All-Pak now considers its prime market or the area intended to be developed in conjunction with the employment of the said Employee.

3. The said Employee, upon leaving the employment of the Company, further agrees not to take or disclose to any person any of the lists of prices, competitors, customers, supplier specifications, forms, memoranda, studies, drawings or any documents or papers or things used by him or the Company during his employment with the Company, and will respect the right of private information of the Company and will communicate the same to any competitors.

Exhibit A to Complaint.

On May 21, 1990, All-Pak, Inc. entered into an Asset Sale Agreement with an investment group operating under the name Total-Pak, Inc. Total-Pak, Inc. purchased all the assets of All-Pak, Inc., which included the company's name: thereafter Total-Pak, Inc. changed its name to All-Pak, Inc. Johnston continued working for the new All-Pak, Inc., until May 26, 1995, when his employment was terminated. On October 1, 1995, Johnston became employed with Exakt Technologies, Inc. [Exakt], a company also engaged in the business of producing and selling packaging material.

The new All-Pak, Inc, [hereinafter appellant] *fn1 filed suit against Johnston and Exakt, seeking legal and equitable relief. At the same time, appellant filed a petition for a preliminary injunction, alleging that Johnston was in breach of the restrictive covenant contained in his employment agreement. Johnston and Exakt then filed a motion for judgment on the pleadings, pursuant to Pa.R.Civ.P. 1034. On June 10, 1996, the trial court denied appellant's petition for a ...


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