text:
    Alexander Nissan Inc. v. Maritz LLC

      C.P. of Lycoming County,
    No. CV-14-02,003

      Dean F. Piermattei and Stephen Moniak, for plaintiff.

      Alexander Nemiroff, for defendant Maritz, LLC.

      Robert E. Chernicoff, for defendant Northwoods Nissan.
    May 29, 2015
   GRAY, J.,

Before the Court are two sets of preliminary objections to Plaintiff’s complaint. The following opinion is provided in support of this Court’s rulings.

Factual Background

On August 4, 2014, Alexander Nissan, Inc. (“Alexander Nissan”) filed a complaint against Maritz, LLC (“Maritz”) and Northwoods Auto, Inc. d/b/a Northwoods Nissan (collectively, “NorthwoodsNissan”). The complaint contains ten counts related to the alleged wrongful disclosure and/or access by Defendants of Alexander Nissan’s valuable customer list. On August 20, 2014, Maritz filed a notice of removal to federal court. On January 28, 2015, the United States District Court for the Middle District of Pennsylvania (“District Court”) remanded the case back to the Lycoming County Court of Common Pleas after concluding that Alexander Nissan presented a colorable claim against Northwoods, a non-diverse defendant. On February 3, 2015, Maritz filed preliminary objections in the nature of a demurrer to Count 2, the claim for breach of fiduciary duty, and Count 5, the claim for intentional interference with the dealer agreement between Alexander Nissan and Nissan. On February 19, 2015, Northwoods Nissan filed a preliminary objection in the nature of a demurrer to Count 10 of the complaint. Count 10 seeks relief under the Declaratory Judgment Act, 42 Pa.C.S.A. ¶ 7532, and is the only count against Northwoods Nissan. Argument on all of the preliminary objections was held on March 24, 2015.

The allegations in the complaint provide the following. This matter involves the sales promotion known as Nissan’s One-To-One Rewards Program (“rewards program”). This program allows customer “to earn incentive points toward future service, parts and accessory purchases at Alexander Nissan.” Complaint, ¶ 13. Maritz “is a national sales and marketing services company that contracts with Nissan to manage One-To-One Rewards Programs offered by individual Nissan dealers and/or other advertising and marketing initiatives offered by Nissan.” Alexander Nissan provided a dealer code and password to Maritz to upload their customer list, which included over 2,500 customers in their rewards program. “Alexander Nissan’s highly confidential and proprietary customer list is of unique and particular value to its business, and constitutes competitive value to Alexander Nissan and Defendant Maritz was aware of the confidential and competitive nature of this information.” Complaint, ¶ 9.

“Alexander Nissan safeguards its customer list and does not permit disclosure if its customer information to any third party, outside of Nissan and its agents for the limited purpose of fulfilling its responsibilities under its dealer agreement with Nissan.” Complaint, ¶ 10. “Alexander Nissan and Maritz had a confidential relationship such that sensitive and highly confidential information, including Alexander Nissan’s customer list, was to remain strictly confidential and protected from disclosure to third parties.” Complaint, ¶ 52. On or about September 26,2013, without knowledge or consent, Maritz disclosed and provided the customer list to Northwoods. Complaint, ¶ 24. Maritz ultimately acknowledged that it improperly enrolled at least 857 of Alexander Nissan’s customers in Northwoods rewards program. Complaint, ¶ 35. Alexander Nissan believes its customer list is now in the public domain and has become valueless.

The District Court summarized the factual allegations in the complaint against Northwoods as follows. Alexander Nissan alleges that a Maritz representative, serving both Alexander Nissan and Northwoods, provided Alexander Nissan’s confidential customer list to Northwoods. The list included about 2,500 customers’ names and contact information. Northwoods used the list to enroll all of the customers into Northwoods’ one-to-one rewards program. Northwoods refuses to destroy the list or to refrain from using the list to solicit more business.

Legal Standards

Preliminary Objections

A party may file preliminary objections based on the legal sufficiency or insufficiency of a pleading (demurrer) pursuant to Pa. R.C.P. 1028(a)(4). A demurrer tests the legal sufficiency of the complaint. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 714 (Pa.Super. 2005). When reviewing preliminary objections in the nature of a demurrer, the court must “accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Thierfelder v. Wolfert, 52 A.3d 1251, 1253 (Pa. 2012), citing, Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007). In deciding a demurrer “it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.” Melon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) (citations omitted). “Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.” Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992)(emphasis added).

Breach of Fiduciary Duty

To recover for breach of fiduciary duty, the Plaintiff must establish that a fiduciary or confidential relationship existed between the parties creating a duty of care. See, e.g., PTSI, Inc. v. Haley, 2013 PA Super 130, 71 A.3d 304 (Pa. Super. 2013) Pennsylvania Courts have explained what constitutes the requisite fiduciary or confidential relationship.

[A] confidential relationship “appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible” (emphasis added)). Leedom itself recognized the difficulty in precisely defining a confidential relationship, see id. (“No precise language can define the limits of the relation[.]”); accordingly, it is unhelpful to sharply deconstruct the generalized guidance it attempted to provide. Moreover, the term “overmastering influence” itself implies a relational aspect — particularly in terms of social phenomena such as mass advertising, what may be couched as “overmastering” as to one individual will not have the same impact on others. Finally, the Court has maintained this relational focus in other of its descriptions of a confidential relationship. See, e.g, Estate of Scott, 455 Pa. at 432, 316 A.2d at 885 (explaining that “[t]he essence of such a relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other”). Simply put, in the absence of actual coercion, overmastering influence does not exist in the abstract. Basile v. H& R Block, Inc., 617 Pa. 212 at 225, 52 A.3d 1202 at 1210 (Pa. 2012), citing and quoting Leedom [v. Palmer], 274 Pa. [22] at 25, 117 A. [410] at 411 (1922) (other citation omitted).

The Pennsylvania Supreme Court explained that the confidential relationship can be established by a legal presumption or, in the absence of such presumption, by a fact specific inquiry as to the nature of the relationship. Basile, supra, 52 A.3d at 1210.

Intentional Interference With The Dealer Agreement

The Pennsylvania Supreme Court has adopted Section 766 of the Restatement (Second) of Torts (1979). See, e.g., Walnut St. Assocs. v. Brokerage Concepts, Inc., 610 Pa. 371, 20 A.3d 468 (Pa. 2011), referencing, Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 470 (Pa. 1979). In its present form, Section 766 provides that “[o]ne who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.” RESTAT 2D OF TORTS, § 766. A claim for intentional interference with performance of a contract requires four elements: “(1) the existence of a contractual relationship;^) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship;^) the absence of a privilege or justification for such interference; and(4) damages resulting from the defendant’s conduct.” Hennessy v. Santiago, 708 A.2d 1269, 1278 (Pa. Super. 1998)(citations omitted)

Generally, it appears that the interfering conduct must interfere with the performance of the contract or cause a third party to refrain from entering a contractual relationship. See, e.g. Walnut St. Assocs., supra, Hennessy. “The gravamen of this tort is the lost pecuniary benefits flowing from the contract itself; other losses, such as emotional distress and loss of reputation, are consequential harms.” Shiner v. Moriarty, 706 A.2d 1228 at 1239 (Pa. Super. 1998), quoting, Pelagatti v. Cohen, 370 Pa. Super. 422, 536 A.2d 1337, 1343 (Pa.Super. 1987).

Declaratory Judgment Act

“The purpose of the Declaratory Judgments Act is to afford relief from uncertainty and insecurity with respect to legal rights, status and other relations.” Keystone Aerial Surveys, Inc. v. Pa. Prop. & Cas. Ins. Guar. Ass’n., 2001 PA Super 139, 777 A.2d 84, 88 (Pa. Super. 2001), citing, Juban v. Schermer, 2000 PA Super 142, 751 A.2d 1190, 1193 (Pa. Super. 2000) (citation omitted). “Under the Declaratory Judgments Act, the trial court is empowered to declare the rights and obligations of the parties, even if no other relief is sought.” Id. Specifically, the Declaratory Judgments Act, 42 Pa.C.S § 7532, provides the following.

Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

Discussion

The Court will discuss Maritz’s demurrers followed by Northwoods’ demurrer. Maritz’s first objection is a demurrer to the breach of fiduciary duty claim on the grounds that no fiduciary or confidential relationship has been properly alleged in the complaint. As there is no legal presumption of a fiduciary relationship between an advertiser and client, the specific facts alleged must be reviewed to determine whether they are sufficient to constitute a confidential relationship. See, e.g., Basile, supra, 52 A.3d at 1210. In Basil, supra, the Court discussed that the fact inquiry needed to be individualized because factors such as whether the individual was on equal footing with the purported fiduciary was at issue. The cases cited by Alexander Nissan in support of its contention that justifiable trust alone is sufficient to establish the requisite confidential relationship almost all involved, whether a gift or transaction, should be voided for upon undue influence pressed upon a party in a weakened mental state or dependence of a party. Plaintiff’s Brief at 7; See, In re Estate of Clark, 461 Pa. 628, 359 A.2d 777 (Pa. 1976)(weakened mental state or dependence); similarly see, Frowen v. Blank, 425 A.2d 412 (Pa. 1981)(age and infirmities); In re Estate of Scott, 316 A.2d 883, 885 (Pa. 1974)(no confidential relationship where no significant infirmities established); Biddle v. Johnsonbaugh, 664 A.2d 159, 162 (Pa. Super. 1995) (no confidential relationship where lack of significant infirmities established). In another case cited by Alexander Nisson, the court dismissed the breach of fiduciary duty claims with respect to landlord/tenant and parishioner/ clergy relationships in that case. Gaines v. Krawczyk, 354 F.Supp.2d 573, 580 (W.D.Pa. 2004). The final case cited by Alexander Nissan, Basil, supra, and all of the cases cited by Alexander Nissan involved one party taking advantage of another party for personal gain. In Basil, supra, the basis for claiming a fiduciary relationship was that each of the 600,000 individual class members sought tax “assistance from a position of pronounced intellectual and economic weakness” and were targeted for “high-interest refund anticipation loan programs.” See, e.g, Basile, supra, 52 A.3d at 1206, 1211.

In the present case, Alexander Nissan relies on ¶¶9,10 and 52 of their complaint to support its claim of a fiduciary or confidential relationship. In essence, Alexander Nissan focuses on the confidential nature of its list and the limited purpose for which Maritz had access to the list. Alexander Nissan alleges that the confidential relationship arises from the highly sensitive and strictly confidential nature of the information and the concomitant high level of trust surrounding the limited disclosure to Maritz. Complaint, ¶¶ 9, 10 and 52. Alexander Nissan does not allege infirmities or significant disparities in capacities between itself and Maritz. Nor does Alexander Nissan allege that Maritz took advantage of Alexander Nissan for a personal advantage to Maritz. The Court is not convinced that entrusting confidential proprietary information alone suffices to establish the requisite relationship. As such, the Court will allow Plaintiff the opportunity to amend its complaint to allege any additional factors in support of the requisite relationship that may exist.

As to Maritz’s second demurrer, the Court agrees that the Alexander Nissan failed to make out a prima facie case for intentional interference with the dealer agreement. As noted above, “The gravamen of this tort is the lost pecuniary benefits flowing from the contract itself; other losses, such as emotional distress and loss of reputation, are consequential harms.” Shiner v. Moriarty, 706 A.2d 1228 at 1239 (Pa. Super. 1998), quoting, Pelagatti v. Cohen, 370 Pa. Super. 422, 536 A.2d 1337, 1343 (Pa.Super. 1987). In the present case, Alexander Nissan fails to allege how use of its customer list to solicit customers for Northwoods, another dealer with Nissan, harmed Alexander Nissan’s dealership contract with Nissan. Alexander Nissan alleges it suffered the loss of the value of its customer list and lost profits but does not factually tie those losses to an interference with the dealership contract. There was no allegation that the dealership contract was modified or terminated as a result of Maritz’s actions or that Alexander Nissan suffered pecuniary loss derived from a modification to the dealership contract.

Finally, as to Northwoods demurrer, this Court, like the District Court, concludes that Alexander Nissan presents a colorable claim against Northwoods for a judicial declaration related to the possession and use of Alexander Nissan’s confidential customer list. “Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” 42 Pa.C.S § 7532. Such relief may resolve a controversy between the parties as to rights with respect to the customer list. As such, the demurrer is overruled.

ORDER

AND NOW this 29th day of May, 2015, it is ORDERED and DIRECTED as follows.

1. The Maritz Defendant’s demurrer to Count 2 is OVERRULED in part and SUSTAINED in part. Plaintiff Plaintiffs shall file an Amended Complaint within 20 days alleging facts to support its claim of a confidential relationship between Alexander Nissan and Maritz.
2. The Maritz Defendant’s demurrer to Count 5 is SUSTAINED. Count 5 is stricken from the Complaint.
3. Northwood Nisan’s demurrer to Count 10 is OVERRULED.
4. This matter is placed on the Court’s April 2016 Trial Term. A separate scheduling Order will be issued this date.

      . Maritz also objected to the complaint on the grounds that it was improperly verified by counsel. As Alexander Nissan filed a praecipe to substitute verification on March 9,2015, the Court deems this objection moot.

      . The Court notes that both parties cited these same four elements in their briefs.

      . The Court disagrees that the relief requested is unlawful under the Unfair Trade Practices and Consumer Protection Law, 73, P.S. §201-1, et. seq. (UTPCPL) The UTPCPL provides a private cause of action to “[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes.” 73 P.S. § 201-9.2. It protects household consumers from unfair business practices but does not protect car dealerships from each other’s business practices.


source: Caselaw Access Project

author: MINORA, /.,

license: Public Domain

text:
    Krutulis v. Community Medical Center

      C.P. of Lackawanna County,
    No. 2009 CIV 1474

      Peter G. Loftus, for plaintiff.

      James C. Oschal and Rieran M. Casey, for defendant.
    June 4, 2015
   MINORA, /.,

I. INTRODUCTION

Before the Court is the Motion for Summary Judgment of Defendant, Community Medical Center (“CMC”). By agreement of the parties, this matter was submitted to the Court to be decided on the briefs without oral argument. For reasons more fully articulated herein, of Defendant CMC’s Motion for Summary Judgment is HEREBY GRANTED and Plaintiff’s Complaint is HEREBY DISMISSED with prejudice.

II. FACTUAL/ PROCEDURAL HISTORY

Plaintiff Michelle Czachor Krutulis (“Krutulis”) instituted this action by Complaint filed on March 3, 2009, advancing a claim for Wrongful Discharge from her employment with Defendant CMC. Plaintiff alleges that she was terminated following accusations she made against CMC and for contact with a Scranton Times newspaper reporter following the death of a patient at CMC. Plaintiff was hired by Defendant CMC in 1983 as a Staff Nurse in the Psychiatric Ward of the hospital and held various positions with CMC between 1983 and 2006. (Compl. ¶¶ 3,6). In 2005, Plaintiff was working as a full-time nurse in CMC’s Psychiatric Unit. (Krutulis Depo. at 60). On June 20, 2005, a patient admitted to the Psychiatric Unit died while in restraints. (Compl. ¶ 8).

According to Plaintiff, subsequent the patient’s death in June of 2005, CMC’s Director of Nursing asked Plaintiff and other Psychiatric Unit nurses whether they had received training regarding the proper care of patients in restraints. After Plaintiff and the other nurses responded that they had not received training, the Director of Nursing produced a document that purported to be the signatures of all the Psychiatric Unit nurses as evidence that training had, in fact, been received. Plaintiff alleges that upon reviewing the document, she stated that her purported signature had been forged and, after discussion with the other nursing staff members, that Plaintiff believed all of the signatures on the training document were forged. (Krutulis Depo. at 83-90).

Also subsequent to the patient’s death, Plaintiff alleges that the Scranton Times newspaper ran an article which reported the death and portrayed CMC and the Psychiatric Unit nurses in a negative light. (Compl. ¶ 15). Plaintiff states that the nurses asked CMC’s management to inform the Scranton Times about the “bad reporting and the forged documents.” Id. Plaintiff alleges that CMC did not act on this request, so Plaintiff herself called the Scranton Times and spoke to a reporter “concerning the corruption.” (Id. at ¶ 16).

In March of2006, nine months after the patient’s death, Plaintiff voluntarily resigned from her employment at CMC to accept a nursing position at Lackawanna County Long Term Care Center. (Compl. ¶ 18). However, soon thereafter in May of 2006, Plaintiff returned to work at CMC as the Admission andDischarge RN in the Psychiatric Unit. (Id. at ¶ 19; Krutulis Depo. at 63). This new position was substantially similar to Krutulis’ previous position at CMC since it was also a full time nursing position in the Psychiatric Unit, the same unit in which Krutulis had previously worked. Plaintiff alleges that she was asked by CMC to return to work for them, taking this new job where Plaintiff would not have any weekend, holiday, or flexible hours. Based on these promises, Plaintiff “returned thus leaving a secure position and giving substantial consideration for the new position.” (Compl. ¶ 19).

In February of 2007, Plaintiff alleges that she was asked to return to her old position in the Psychiatric Unit and that, after she declined, her employment was adversely affected. Plaintiff states that she was required to begin working on weekends and that her Monday through Friday work shifts were changed without notice from “9:30 to 6:00 to 7:00 to 3:00.” (Id at ¶¶ 20-24). Plaintiff’s employment was later terminated on March 15,2007.

Plaintiff’s Complaint advances a single count of “Wrongful Discharge,” but advances two theories of recovery: (1) that Plaintiff’s termination in 2007 violates public policy, and (2) that Plaintiff provided Defendant CMC with “substantial consideration” when she returned to work at CMC in May of 2006 (presumably arguing that Plaintiff’s employment was no longer terminable at-will).

Defendant argues in its Motion for Summary Judgment that Plaintiff was not terminated in violation of public policy and that Plaintiff is an at-will employee because she did not give “substantial consideration” to return to work for CMC.

III. ISSUES

A. WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER PLAINTIFF WAS ALLEGEDLY TERMINATED IN VIOLATION OF PUBLIC POLICY.

B. WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER PLAINTIFF’S EMPLOYMENT WAS TERMINABLE AT-WILL.

IV. STANDARD OF REVIEW

According to Pa. R.Civ.P. 1035.2, after the pleadings are closed, any party may move for summary judgment when (1) there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if after the completion of discovery, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.

Summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. The record will be viewed in a light most favorable to the non-moving party, and any doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. McDonald v. Whitewater Challengers, Inc., — A.3d —, 2015 WL 1955379 (Pa. Super. 2015). Determinations of credibility are for the fact finder. Janis v. AMP, Inc., 856 A.2d 140 (Pa. Super. 2004).

V. DISCUSSION

“Pennsylvania law holds that employees are at-will, absent a contract, and may be terminated at any time, for any reason or for no reason.” Guerra v. Redevelopment Authority of City of Philadelphia, 27 A.3d 1284, 1289 (Pa. Super. 2011) citing Werner v. Zazyczny, 681 A.2d 1331, 1335 (Pa. 1996). As a general rule, no common law cause of action exists against an employer for termination of an at-will employment relationship. “In order to rebut the presumption of at-will employment, a party must establish one of the following: (1) an agreement for a definite duration; (2) an agreement specifying that the employee will be discharged for just cause only; (3) sufficient additional consideration; or (4) an applicable recognized public policy exception.” Janis v. AMP, Inc., 856 A.2d 140, 144 (Pa. Super. 2004) citing Rapagnani v. The Judas Company, 736 A.2d 666, 669 (Pa. Super. 1999).

A. WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER PLAINTIFF WAS ALLEGEDLY TERMINATED IN VIOLATION OF PUBLIC POLICY.

Plaintiff alleges that her employment was terminated in violation of public policy in two respects. First, Plaintiff argues that she “had complained to management about the forged document which was an effort to hide the cause of the patient’s death and refused to participate in an illegal act.” (Compl. ¶ 31). Second, Plaintiff “called the Scranton Times Reporter to advise him of the illegal and improper actions that had taken place thus performing an important public act and exercising a Constitutional Right under the First Amendment.” (Id. at ¶32).

Conversely, Defendant argues in its Motion for Summary Judgment that Plaintiff was not terminated in violation of public policy because Plaintiff has not provided any evidence to support her contention that she was fired in relation to either the alleged forged training document or the telephone call to the Scranton Times reporter.

1. No genuine issue of material fact exists because Plaintiff has failed to provide evidence that her termination was related to her statements regarding the 2005 patient death.

As an initial matter, we find that Plaintiff has not provided any evidence that her termination in March of 2007 was related to Plaintiff’s statements made in the summer of2005, nearly two years earlier. In sofinding, it is important to remember that Plaintiff voluntarily resigned from her position in March of 2006, over 9 months after the patient’s death occurred, and then was rehired by Defendant CMC again in May 2006.

First, Plaintiff has not provided any evidence to show that she was terminated due to the statements she made about the training documents allegedly being forged by Defendant CMC. Plaintiff testified in her deposition that the conversation with the Director of Nursing over the alleged forged training document occurred a “few weeks” after the patient’s death. (Krutulis Depo. at 84, 86). To the best of Plaintiff s knowledge, there were no further discussions on this topic and no other management employee ever spoke with Plaintiff regarding the document again. (Id. at 92). Other than the initial conversation Plaintiff had with the Director of Nursing in the summer of2005, there is no evidence of any other related activity occurring concerning these statements until the time that Plaintiff voluntarily resigned her position in March 2006.

Furthermore, Plaintiff has not provided any evidence to show that she was terminated due to the telephone call she made to the Scranton Times reporter because she has not shown that Defendant CMC was even aware that she had made the call. Between the time of the patient’s death in June of 2005 and Plaintiff’s resignation in March of 2006, CMC administrators held meetings with the nurses in the Psychiatric Unit in which the nurses expressed their displeasure with the newspaper articles surrounding the patient death in which the nurses were negatively depicted. (Id. at 122, 93). However, Plaintiff testified that she did not recall personally raising any concern with any member of Defendant CMC’s management, either in staff meetings or individually, regarding the accuracy of the newspaper articles. (Id. at 113-114). Plaintiff testified that she conducted the telephone call to the Scranton Times reporter in the presence of two other Psychiatric Unit nurses and told the reporter that the nurses were not being “adequately represented” in the articles pertaining to the patient death. (Id. at 115-16). Subsequently, Plaintiff and the other two nurses decided that “it wasn’t worth it” to pursue the matter further and no additional communication with the reporter occurred. (Id. at 117).

However, Plaintiff testified that she never informed any managerial employee of Defendant CMC that the telephone call to the Scranton Times occurred and that she has no knowledge that either of the other two nurses who were present made any managerial employee aware of the call. Id. Furthermore, Plaintiff testified that she had no knowledge that any managerial member of Defendant CMC even knew that the phone call occurred. (Id. at 121). Plaintiff did not recall the specific date on which the telephone call took place but stated that it occurred during the summer of 2005.

As the above statements illustrate, Plaintiff has failed to provide any evidence that Defendant CMC had any knowledge whatsoever about the telephone call to the Scranton Times reporter. Additionally, though Plaintiff claims that she made statements to the Director of Nursing about the alleged forged training documents, she has not provided any evidence of any adverse employment action between the time the statements were made in the summer of 2005 and the time of her voluntary resignation in March of2006.

2. No genuine issue of material fact exists because Plaintiff has failed to provide evidence that her termination constituted a violation of public policy.

Even though this Court has already found that Plaintiff has not provided any evidence that her termination in March of 2007 was related to Plaintiff’s statements made in the summer of 2005, We further find that Plaintiff’s statements are not protected under the public policy exception. Plaintiff has failed to meet any of the recognized exceptions to merit such protection.

An employee may bring a cause of action for a termination of an at-will employment relationship only in the most limited circumstances, where the termination implicates a clear mandate of public policy. Mikhail v. Pennsylvania Organization for Women in Early Recovery, 63 A.3d 313, 316 (Pa. Super. 2013) citing Weaver v. Harpster, 975 A.2d 555, 562 (Pa. 2009). “An employer (1) cannot require an employee to commit a crime, (2) cannot prevent an employee from complying with a statutorily imposed duty, and (3) cannot discharge an employee when [specifically] prohibited from doing so by statute.” Id. at 317, citing Donahue v. Federal Exp. Corp., 753 A.2d 238, 244 (Pa. Super. 2000).

The power of the courts to declare pronouncements of public policy is sharply restricted. Rather, it is for the legislature to formulate the public policies of the Commonwealth. The right of a court to declare what is or is not in accord with public policy exists only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it. Only in the clearest of cases may a court make public policy the basis of its decision. Mikhail, 63 A.23 at 316-317, citing Weaver, 975 A.2d at 563.

Applying this standard, Pennsylvania courts have found actionable exceptions where the employee was terminated for filing a claim for worker’s compensation benefits, Shick v. Shirey, 116 A.2d 1231 (Pa. 1998); for filing a claim for unemployment benefits, Highhouse v. Avery Transportation, 660 A.2d 1374 (Pa. Super. 1995); for failing to submit to a polygraph test where a statute prohibited employers from so requiring, Kroen v. Bedway Security Agency, Inc., 633 A.2d 628 (Pa. Super. 1993); for complying with a statutory duty to report violations to the Nuclear Regulatory Commission, Field v. Philadelphia Electric Co., 565 A.2d 1170 (Pa. Super. 1989); and for serving jury duty, Reuther v. Fowler & Williams, Inc., 386 A.2d 119 (Pa. Super. 1978).

However, courts have found that no public policy exception exists where the employee was terminated as a result of sexual discrimination by an employer not covered by the Pennsylvania Human Relations Act, Weaver, supra', for complaining about violations of the Occupational Safety and Health Act, McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000); for expressing concerns that the employer’s product was unsafe, Geary v. U.S. Steel Corporation, 319 A.2d 174 (Pa. 1974); for disengaging an illegal surveillance system, Hineline v. Stroudsburg Electric Supply Co., 559 A.2d 566 (Pa. Super. 1989), app. denied 514 A.2d 70 (Pa. 1989); or for complaining about the waste of taxpayer money, Rossi v. Pennsylvania State University, 489 A.2d 828 (Pa. Super. 1985).

Furthermore, where a cause of action “involves a violation of public policy for which a remedy already exists by statute,” Pennsylvania courts have held that “a common law cause of action will not be recognized.” Ade v. KidsPeace Corp., 698 F.Supp.2d 501, 521 (E.D.Pa. 2010). In the instant case, Plaintiff Krutulis’ claim is also statutorily preempted by the Medical Care Availability and Reduction of Errors Act (“MCARE”), 40 P.S. § 1303.101, et seq. MCARE Section 1303.308, entitled “Reporting and notification,” states as follows:

(c) Liability. — A health care worker who reports the occurrence of a serious event or incident in accordance with subsection (a) or (b) shall not be subject to any retaliatory action for reporting the serious event or incident and shall have the protections and remedies set forth in the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law.

40 P.S. § 1303.308(c). Since Plaintiff’s Complaint only raised a common law claim of wrongful termination and since Plaintiff never pursued any potentially available statutory remedies, the statute of limitations would have already expired on any potential statutory claim Plaintiff may or may not have had.

Finally, Plaintiff’s claim that her statements are protected under the First Amendment of the United States Constitution does not constitute a recognized public policy exception. Pennsylvania Courts have declined to look to the First Amendment as a source of public policy when there is no state action involved. Fraser v. Nationwide Mut. Ins. Co, 352 F.3d 107, 112-113 (3d Cir. 2003); Martin v. Capital Cities Media, Inc., 511A.2d 830, 844 (Pa. Super. 1986); Cisco v. United parcel Servs., Inc., 476 A.2d 1340 (Pa. Super. 1984); Borse v. Pierce Goods Shop, Inc., 963 F.2d 611, 619 (3d Cir. 1992).

Accordingly, we find that Plaintiff’s termination does not meet any of the exceptions to qualify for the public policy exception to termination of an at-will employment relationship and that no genuine issue of material fact exists on this issue.

B. WHETHER A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER PLAINTIFF’S EMPLOYMENT WAS TERMINABLE AT-WILL.

Plaintiff also argues that she was not an at-will employee and that her termination was improper. After voluntarily resigning her employment with CMC in March of 2006, Plaintiff returned to work at CMC in May of 2006 as the Admission and Discharge RN in the Psychiatric Unit. Plaintiff alleges that she was asked by CMC to return to work for them, taking this new job where Plaintiff would not have any weekend, holiday, or flexible hours. Based on these promises, Plaintiff left her job at Lackawanna County Long Term Care Center and “returned thus leaving a secure position and giving substantial consideration for the new position.” (Compl. ¶¶ 19, 33-34).

Conversely, Defendant argues in its Motion for Summary Judgment that Plaintiff was an at-will employee because she did not give “substantial consideration” to return to work for CMC. Defendant CMC argues that Plaintiff Krutulis acknowledged that she left her employment with the Lackawanna County Long Term Care Center because she was dissatisfied with the type of work required by that employment. Plaintiff Krutulis indicated that working at the Lackawanna County Long Term Care Center was “very convenient” for her and resulted in a decreased commute to work as compared to her commute to work at CMC. (Krutulis Depo. at 65). Furthermore, her work at the Lackawanna County Long Term Care Center provided her with comparable compensation to her earnings at CMC, the opportunity to receive “better” benefits than those received at CMC, and the opportunity to work a better shift. (Id. at 66-68). However, approximately four to five weeks into her employment at the Lackawanna County Long Term Care Center, Plaintiff Krutulis realized that she did not enjoy long-term care nursing and therefore determined that she did not wish to continue her employment there. (Id. at 69, 72-73)(emphasis added). As Krutulis was still in touch with her former colleagues at CMC, she eventually returned to work at CMC. Id.

The burden of overcoming the presumption of at-will employment “rests squarely” upon the employee. Lewis v. Gettysburg Diagnostic Imaging, P.C., 2004 WL 2252832, 67 Pa. D. & C. 4th 148, 155 (C.P. Adams Co. 2004) citing Rutherfoord v. Presbyterian-University Hospital, 612 A.2d 500, 503 (Pa. 1992). An employee can defeat an at-will presumption by establishing that the employee gave his employer “additional consideration” other than the services for which he was hired. Ciardi v. Laurel Media Inc., 2012 WL 70656 (W.D.Pa. 2012); Jams v. AMP, Inc., 856 A.2d 140, 144 (Pa. Super. 2004). A definition of what constitutes sufficient additional consideration was set forth in Darlington v. General Electric, 504 A.2d 306, 315 (Pa. Super. 1986), when the court explained as follows:

Thus, a court will find “additional consideration” when an employee affords his employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform. If the circumstances are such that a termination of the relation by one party will result in a great hardship or loss to the other, as they must have known it would when they made the contract, this is a fact of great weight in inducing a holding that the parties agreed upon a special period.’ (citing 3 A. Corbin, Corbin on Contracts §684 (I960)).

Lewis, 61 Pa. D. & C.4th at 157-158 citing Darlington. “A court may rule on the issue of whether or not additional consideration is present when that issue ‘is so clear that no reasonable [person] would determine the issue before the court in any way but one.’” Darlington, supra.

One factor useful in determining whether additional consideration was present is to inquire whether “a termination of the relation by one party will result in great hardship or loss to the other, as they must have known it would when they made the contract.” Darlington, supra. The primary factor upon which the courts tend to focus is relocation, particularly relocation of a family. Gentzler v. Graham Packaging Co., L.P, 2014 WL 6682452 (Pa. Super. 2014) citing Donahue v. Fed. Express Corp., 753 A.2d 238, 245 (Pa. Super. 2000). For example, an employee who, upon imploring by his employer, sold his house and moved his pregnant wife and young child from Virginia to Pittsburgh and was fired only sixteen days after the move had granted the employer sufficient additional consideration. Ciardi, 2012 WL 70656 at *4-5 citing Cashdollar v. Mercy Hosp., 595 A.2d 70, 72 (Pa. Super. 1991).

However, courts have found insufficient additional consideration where an employee has suffered detriments, in the course of his or her employment, that are “commensurate with those incurred by all manner of salaried professionals.” Ciardi, 2012 WL 70656 at *5. As the Ciardi court summarized:

For example, in Veno v. Meredith, 357 Pa.Super. 85, 515 A.2d 571 (1986), the state appellate court upheld the trial court’s determination that there was insufficient evidence to overcome the employment at-will presumption where the plaintiff was fired after eight years even though the employee had given up a job with a newspaper and moved his family from New Jersey to Pennsylvania, and had throughout the years refused other employment opportunities); Quint v. Thar Process, Inc., 2011 WL 4345925, *9 (W.D.Pa. Sept 15, 2011) (J. Standish) (court granted motion to dismiss claim of employee who was terminated after working for eleven months where employee had commuted between Michigan and Pennsylvania for first six months of employment but did so as part of the parties’ original agreement and seemingly had received compensation for these travel expenses, employee had listed his house in Michigan for sale but had not sold it, and his wife had relocated her employment to Pittsburgh); Pinderski v. Commonwealth Telephone Enterprises. Inc., 2006 WL 2085996 (E.D.Pa. July 25, 2006) (court granted motion to dismiss plaintiff’s breach of contract claim on the basis that the employee, who had been terminated less than one month after he began employment with defendant employer, had not alleged “sufficient additional consideration;” plaintiff had alleged that at the time defendant offered him the job, he resided in Illinois with his wife and children, that in order to accept the job, plaintiff and his family would have had to eventually move to Pennsylvania and he had incurred expenses in preparing to move to Pennsylvania, and that when plaintiff accepted the job offer, his wife resigned from a well-paying job); Shaffer v. BNP/Cooper Neff Inc., 1998 WL 575135, *7 (E.D.Pa. Sept.4, 1998) (court granted motion for summary judgment where employee was terminated approximately six months after transferring to Singapore where transfer had originally been employee’s idea, he neither sold a house or relocated family, and the transfer provided employee with additional significant benefits); Shriver v. Cichelli, 1992 WL 350226, *5-6 (E.D.Pa. November 19, 1992) (court granted summary judgment on breach of implied contract claim where plaintiff, who was terminated after being employed for four months, had been unemployed prior to accepting the position and relocating from New Hampshire to Pennsylvania, was willing to relocate, did not have to sell his home or move children and family, and the relocation was not related to a demand by a then current employer).

Ciardi, 2012 WL 70656 at *6.

As the record indicates, Plaintiff Krutulis chose to voluntarily leave her employment at CMC and commence work at Lackawanna County Long Term Care Center for reasons of personal and work preferences. However, approximately four to five weeks into her employment at the Lackawanna County Long Term Care Center, Plaintiff Krutulis realized that she did not enjoy long-term care nursing and therefore determined that she did not wish to continue her employment there and CMC rehired her. She then voluntarily returned to CMC for the opportunity to resume the work she preferred. Plaintiff did not have to relocate, sell her home, or undergo any specific hardships whatsoever when she voluntarily left her job at the Lackawanna County Long Term Care Center. Instead, the evidence demonstrates that she left the Lackawanna County Long Term Care Center of her own choice based on her specific preference to return to a different type of nursing work.

As a result, we find that no reasonable person would find that Plaintiff Krutulis provided Defendant CMC with any additional consideration when she returned to work for CMC in May of 2006 since her earlier pre-2005 nursing position and her later 2006 nursing position upon being re-hired were substantially similar, both providing nursing services in the psychiatric unit. Accordingly, Plaintiff’s employment was terminable at-will and there is no genuine issue of material fact regarding this issue.

Since the Court finds Plaintiff has failed to meet the two needed prerequisites required to file suit, there exists no need to analyze the disputed facts constituting the ostensible reasons for her discharge from CMC. Plaintiff never established the public policy exceptions or the additional substantial consideration exceptions that are essential to overcoming her status as an at-will employee. Finally, this Plaintiff is found to be an at-will employee dischargeable at any time for any reason or for no reason. Guerra, 27 A.3d at 1289.

An appropriate Order follows.

ORDER

AND NO W this 4th day of June 2015, upon consideration of Defendant’s Motion for Summary Judgment, briefs in support of and in opposition thereto, it is HEREBY ORDERED AND DECREED that Defendant’s Motion for Summary Judgment is HEREBY GRANTED and Plaintiff’s Complaint is HEREBY DISMISSED with prejudice.

      . Defendant CMC filed its Motion for Summary Judgment on November 8,2013. After various extensions of time were granted by the Court and/or agreed upon by the parties, Plaintiff submitted her Brief in Opposition to Summary Judgment on June 27, 2014 and, on March 23, 2015, the parties ultimately informed the Court that the matter would be submitted solely on the briefs without oral argument for decision.


author: WILLIAMSON, J,

text:
    GEICO v. Russ

      C.P. of Monroe County,
    No. 7312 CIVIL 2013

      Lucille Marsh, for plaintiff.

      Joseph R. Meiss, for defendant.
    March 6, 2015
   WILLIAMSON, J,

This matter comes before us on a Motion for Summary Judgment filed by Wade Tyler Russ (hereafter “Defendant”) on January 6, 2015. Government Employees Insurance Company (GEICO) (hereafter “Plaintiff’) filed an Answer to Defendant’s Motion for Summary Judgment on January 26, 2015.

Background

On January 3, 2013, at approximately 7:39 a.m., Adrianna Rondinella (hereafter “Insured”), was operating her vehicle in Tunkhannock Township, Monroe County, Pennsylvania, when Defendant, traveling in the opposite direction, crossed the center line and collided head-on with Insured’s vehicle.

At all relevant times, Plaintiff insured the 2008 Infinity EX35 which was owned and being operated by Insured at the time of the accident. As a result of Defendant’s alleged negligence, the vehicle insured by Plaintiff was damaged to the amount of $28,892.51, plus towing and storage in the amount of $673.00, less the salvage value of $2,023.00.

On January 25, 2013, Insured executed a full release agreement, releasing Defendant from any and all claims arising out of the accident on January 3, 2013. Plaintiff argues that this release agreement contained consideration of $15,000 paid to Insured from Defendant’s insurance company, Progressive Insurance, and that $15,000 is also the amount of Defendant’s bodily injury liability limit pursuant to their Progressive Policy. Plaintiff seeks to recover the amount of money it paid out for property damage to the vehicle and argues that the release agreement is for personal injury claims and that this is a separate claim to recover the money paid out for property damage to the vehicle. Defendant contends the release signed by the Insured releases any and all claims including Plaintiff’s claim for subrogation for property damage.

Argument

Defendant argues that summary judgment should be granted as to Plaintiff’s claim pursuant to the release agreement executed between Defendant and Insured. Summary Judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary Judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa.Super. 1995).

Summary Judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa.Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa.Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

Here, the Defendant argues the general release signed by the insured was for all claims. Defendant further contends that Plaintiff steps into the shoes of the Insured on a subrogation claim. Therefore, the release would bar the claim.

Plaintiff argues that summary judgment should not be granted because Defendant failed to plead the affirmative defense of release as new matter, and that there is a genuine issue of material fact as to whether the release agreement bars Plaintiff’s claim in subrogation for property damage paid under its policy with the Insured.

Waiver of Affirmative Defense

Plaintiff’s first argument against summary judgment is that Defendant waived the affirmative defense of release by not pleading it as a new matter. Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading “New Matter”. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. Pa.R.C.P. No. 1030.

The Superior Court of Pennsylvania has held that, if release is not pled as a new matter, the right to assert the defense has been waived. Blumenstock v. Gibson, 2002 PA Super 339, ¶ 28, 811 A.2d 1029, 1039 (2002). Nevertheless, our Rules of Civil Procedure must be liberally construed so that actions are resolved in a just, speedy and inexpensive manner consistent with Rule 126. Id.

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. Pa.R.C.P. 126. Where the rights of the plaintiff have not been prejudiced through the defendant’s failure to plead the defense of release prior to filing a motion for summary judgment, the trial court is not required to strictly enforce Rule 1030. Blumenstock v. Gibson, 2002 PA Super 339, ¶ 28, 811 A.2d 1029, 1039 (2002).

Thus, an affirmative defense such as release is generally deemed waived if not pled as new matter. Here, Defendant has only pled the affirmative defense of release in this instant Motion for Summary Judgment. It is within the trial court’s discretion to decide whether the failure to plead the affirmative defense as new matter constitutes a waiver of that affirmative defense for Defendant. In this case, Defendant had proper notice of the release agreement prior to filing their Answer and New Matter to plead the affirmative defense of release as part of the new matter. At this stage of the proceedings, the Plaintiff would be prejudiced if the defect was waived. Defendant failed to plead the affirmative defense of release as new matter and it is deemed waived.

State Farm’s Subrogation Claim for Property Damage

Plaintiff’s second argument against granting Defendant’s motion for summary judgment is that there is a genuine issue of material fact as to whether the release agreement between Defendant and Insured bars Plaintiff’s claim for property damage paid under its policy.

In State Farm Mut. Auto. Ins. Co. v. Ware's Van Storage, the Superior Court of Pennsylvania held that the “unity and identity of the interests” of State Farm and its insured ceased to exist after State Farm paid its insured’s claim for property damage. The court found that State Farm had no interest in its insured’s personal injury action and, thus, no particular motivation to pursue recovery on such a claim. Moreover, the court found that State Farm’s insured, once reimbursed for its property damage under the terms of the insurance policy, had no further interest in pursuing that claim. However, State Farm’s right to recovery was limited to the right its insured might have asserted had it not been compensated under the insurance policy; “that premise is the defining tenet of subrogation.” State Farm Mut. Auto. Ins. Co. v. Ware’s Van Storage, 2008 PA Super 134, ¶ 12, 953 A.2d 568, 573 (2008). Here, Plaintiff paid the insured for property damage; the Insured settled her claims with the Defendant for the maximum under the policy while appearing to have a significant bodily injury claim alone; and the timing of which appeared questionable with regard to any intention by the Insured to also seek property damage from the Defendant as part of the settlement.

In Melendez v. Pa. Assigned Claims Plan, the Superior Court of Pennsylvania held that, when dealing with both contractual and statutory insurance subrogation issues, it is clear that where an injured party extinguishes an insurer’s subrogation rights by settling and releasing an alleged tortfeasor, the injured party loses his right to recover from the insurer. Protecting the insurer’s subrogation rights is necessary to further the Commonwealth’s public policy against double recovery. Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa. Super. 48, 53, 557 A.2d 767, 769 (1989). There certainly would be a public policy concern here, where the Defendant caused significant personal injury, significant property damage, and had the minimum insurance for bodily injury claims, to not allow a property damage claim by Plaintiff for expenses Plaintiff had to pay to the Insured for Defendant’s negligence.

Defendant cites Republic Ins. Co. v. Paul Davis Sys. of Pittsburgh S., Inc. in their brief in support of their motion for summary judgment. In that case, the Pennsylvania Supreme Court affirmed a ruling upholding the terms of a release agreement on the premise that an insurer does not have more rights than the insured. In the footnotes to the opinion, the court stated that they found “no merit in Republic’s argument that the insured did not have power to release claims in which Republic held an interest as subrogee. Republic, having prepared the release and directed the insured to sign it, will not now be heard to assert that the release was unauthorized.” That case is distinguishable because it does not involve separate causes of action for personal injury claims and property damage claims. Also, the insurance company plaintiff in that case had prepared the release agreement at issue and had an opportunity to seek subrogation, or another course of action before directing its insured to sign the release. Republic Ins. Co. v. Paul Davis Sys. of Pittsburgh S., Inc., 543 Pa. 186, 190, 670A.2d 614, 616 (1995). Here, Plaintiff had no control over the release signed by the Insured. The fact that Defendant’s carrier made a quick settlement and had the Insured sign a general release, of which Plaintiff had no control over, is suspect, and does not evidence a waiver of subrogation by the Plaintiff.

In their brief in support of their motion for summary judgment, Defendant also cites Kiker v. Pa. Fin. Responsibility Assigned Claims Plan. In that case, the Superior Court of Pennsylvania held that, through subrogation, the insurer is granted the right “to stand in the shoes of the claimant and assert the claimant’s rights against the tortfeasor. Exercising these rights helps preserve the ACP fund and prevents double recovery by a claimant. Thus, extinguishing a subrogee’s statutory right to be reimbursed is generally disfavored. However, the insurer, as subrogee, can only recover damages when his subrogor has a legally cognizable cause of action against a third party. Kiker v. Pennsylvania Fin. Responsibility Assigned Claims Plan, 742 A.2d 1082, 1086 (Pa. Super. Ct. 1999). While that case does state that the insurer “stands in the shoes of the claimant,” it does not hold that a release agreement by the insured and a third party bars all recovery rights for the insurance company. The court in that case specifically supported the notion that extinguishing a subrogee’s statutory right to be reimbursed is generally disfavored. It would be unfair to waive a subrogee’s statutory right to be reimbursed for property damage where a Defendant has the minimum insurance, the Insured has significant bodily injury claims, and where the subrogee has no control over the sequence of events leading to the signing of a release by its insured.

We find that in addition to waiving the defense of release, the Defendant also is not entitled to summary judgment based upon the cases set forth and the facts of this case.

ORDER

AND NOW, this 6th day of March, 2015, upon consideration of the Motion of Defendant Wade Tyler Russ for Summary Judgment, the Motion for Summary Judgment is DENIED.


author: WILLIAMSON, J.,

text:
    Molinari v. Canale

      C.P. of Monroe County,
    No. 9634 CIVIL 2013

      Jorge M. Pereira, for plaintiff.

      Anthony Roberti, for defendant.

      March 11, 2015
   WILLIAMSON, J.,

This matter comes before us on a Motion for Summary Judgment filed by Dominic J. Molinari, as Executor of the Estate of Charles G. Molinari (hereafter “Plaintiff’), on December 17, 2014. Eva M. Canale (hereafter “Defendant”) filed a Response to Plaintiff’s Motion for Summary Judgment on January 15, 2015.

Background

On November 15, 2013, Plaintiff filed a Complaint against Defendant alleging that the real property at 608 Thomas Street, Stroudsburg, PA (“real property”), was solely owned by Charles G. Molinari (hereafter “Decedent”) at his death and should be part of Decedent’s estate. Decedent died on January 3, 2012. At the time of Decedent’s death, Defendant was residing at the real property. Defendant and Decedent had been involved in a romantic relationship and Defendant avers the property was gifted to her by the Decedent prior to his death.

On or about July 2, 2012, Plaintiff as Executor of Decedent’s Estate, sent a letter to Defendant, advising Defendant of his intentions with regards to the real property and offering Defendant the option to either rent the real property from the Estate for $1,500 per month, or purchase the real property at the price of $250,000, Defendant claims right to the real property because of a deed which is dated June 11, 2002, but which was not recorded until August 8, 2012. Defendant states that on June 11, 2002, she received delivery of the executed and notarized deed with instructions to complete the deed by typing her own name and the name of Charles J. Molinari, as joint tenants with the right of survivorship as the grantees, and inserting the metes and bounds description for the real property at issue. Defendant alleges she completed the deed as authorized by Decedent after visiting with Decedent in the hospital, just prior to his death. Defendant alleges Decedent instructed her not to immediately file the deed in 2002, because there was a mortgage against the property and Decedent did not want to create a default on it.

Plaintiff alleges that Decedent did not authorize this transfer of the real property and that is the reason why Defendant did not record the deed until after Plaintiff sent a letter regarding his intentions with regard to the real property. Plaintiff also claims that the June 11, 2002 deed is a forgery. The Defendant disputes this in her Response to Plaintiff’s Motion for Summary Judgment.

Argument

Plaintiff argues for Summary Judgment against Defendant for the following four counts: Fraudulent Conveyance, Quiet Title, Ejectment, and Unjust Enrichment. Summary Judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466,468-69 (Pa. 1979). Summary Judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa.Super. 1995).

Summary Judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa.Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut, Cos., 440 A.2d 616 (Pa.Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa.Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

As the chief factor in the determination of the question whether a legal delivery of a deed has been effected is the intention of the donor to transfer title to the donee, as manifested by his words and actions and by the circumstances surrounding the transaction, it is evident that each case must depend largely upon its own facts. In re Rynier’s Estate, 3A1 Pa. 471, 475, 32 A.2d 736, 738 (1943). A claim against the estate of a decedent for an inter vivos gift must be supported by clear and convincing evidence. In re Martella’s Estate, 390 Pa. 255, 258, 135 A.2d 372, 373 (1957). To constitute a valid inter vivos gift, two essential elements are required: 1) An intention to make an immediate gift, and 2) such an actual or constructive delivery to the donee either (a) to divest the donor of all dominion and control, or (b) if a joint tenancy is created, as to invest in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein. Id. At this time, there appear to be factual questions with regard to the deed that are in dispute as follows:

Fraudulent Conveyance

Plaintiff is seeking relief for a fraudulent conveyance. To prove a civil fraud claim, a plaintiff is required to prove the following elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Weissberger v. Myers, 2014 PA Super 80, 90 A.3d 730 (2014).

Plaintiff alleges that Defendant has admitted the deed was a forgery, that the Monroe County Recorder of Deeds relied upon this fraudulent deed, and this deprived Plaintiff of the real property. However, Defendant has denied that the deed was a forgery and continues to maintain that Decedent expressly intended to transfer the deed to Defendant. There is no apparent dispute that the deed presented was signed by the Decedent. The description and grantees were admittedly inserted on the deed close in time to the Decedent’s death, and not in 2002 when the deed was signed. Whether or not the Defendant had authority to do so depends on facts that are in dispute concerning the Decedent’s intentions. This is a genuine issue of material fact since whether the deed is a forgery is the basis for the count of fraudulent conveyance. Therefore, a Motion for Summary Judgment as to fraudulent conveyance is not warranted at this time.

We also note that Plaintiff cited in his Brief that the affidavit of Charleen Bush supported the assertion that the Decedent often notarized deeds in blank like the one in question. In review of that affidavit, attached as Exh. H of Plaintiff s Motion for Summary Judgment, no such statement was made by Ms. Bush. The affidavit states at paragraph 5 that Ms. Bush worked in the office building with Decedent and Eva Canale for many years and “often notarized Indentures/Deeds for Mr. Molinari.” There is no mention that she often notarized blank deeds for the Decedent.

As to Plaintiff’s argument against a parol gift of land, Plaintiff overlooks that Defendant had resided at the real property for ten (10) years prior to the execution of the blank deed and that Defendant possessed the deed prior to Decedent’s death. The issue of valuable improvements to the property is a question of fact. Therefore, to dismiss the matter for failure to show a parol gift would also be premature.

Quiet Title and Ejectment

It is procedurally improper to simultaneously commence both an action in ejectment and an action to quiet title regarding the same parcel of real estate. Ordinarily, the plaintiff in an action to quiet title must be in possession of the land in controversy; if he is out of possession, his sole remedy is an action in ejectment. Grossman v. Hill, 384 Pa. 590, 593,122 A.2d 69, 71 (1956). An action to quiet title maybe brought only where an action in ejectment will not lie. Id. at 594,122 A.2d at 71; Pa.R.C.P. No. 1061 (b)(2). Ejectment, being a possessory action, can be maintained if the plaintiff has a right to immediate possession with the concomitant right to demand that the defendant vacate the land. Plauchak v. Boling, 439 Pa. Super. 156, 162, 653 A.2d 671, 674(1995).

The Plaintiffs’ burden in an action in ejectment at law is clear: they must establish the right to immediate exclusive possession. Recovery can be had only on the strength of their own title, not the weakness of the defendant’s title. The crux of an ejectment action, therefore, rests with the plaintiff’s’ ability to identify, by a preponderance of the evidence, the boundaries of a parcel of land to which they are out of possession but for which they maintain paramount title. Id.

Since Plaintiff is not in possession of the real property at issue, the proper action here is ejectment. Plaintiff’s argument is that Defendant has admitted the deed is a forgery, and thus, Plaintiff’s right to title is paramount. However, Defendant has denied that the deed was a forgery and continues to maintain that Decedent expressly intended to transfer the deed to Defendant. The issue of receipt of the deed, intentions regarding the description and grantees, and the timing of the matter are all factual issues in question. Therefore, there is a genuine issue of material fact whether or not the deed is in fact a forgery, and therefore, summary judgment cannot be entered on the basis of ejectment or quiet title.

Unjust Enrichment

The elements of unjust enrichment are benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Whether the doctrine applies depends on the unique factual circumstances of each case. In determining if the doctrine applies, we focus not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. Moreover, the most significant element of the doctrine is whether the enrichment of the defendant is unjust. The doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff. StoeckinRer v. Presidential Fin. Corp. of Delaware Valley, 948 A.2d 828,833 (Pa. 2008).

Plaintiff’s argument is that Defendant has, without having good title to the real property, continued to reside at the real property at issue without payment of any rent, taxes, mortgage, or insurance on the real property. However, Defendant alleges that she does have good title to the real property because the deed was executed and delivered to her by Decedent with the intent to transfer the real property to Defendant. There is a genuine issue of material fact regarding the circumstances upon which the deed was signed and the intentions surrounding same that summary judgment cannot be granted at this time.

Conclusion

Plaintiff’s Motion for Summary Judgment is denied because there is a material dispute as to the validity of the deed to the real property in question. Since every count in the Motion for Summary Judgment is dependent on the validity of the deed, and that fact is in dispute, a Motion for Summary Judgment is not proper at this time.

ORDER

AND NOW, this 11th day of March, 2015, upon consideration of the Motion of Plaintiff Dominic J. Molinari, as Executor of the Estate of Charles G. Molinari, for Summary Judgment, the Motion for Summary Judgment is DENIED.


author: MINORA, J.,

text:
    iDropped Inc. v. Summo

      C.P. of Lackawanna County,
    No. 2015 CIV 1714

      Kevin J. Cummings, for plaintiff.

      Craig A. Hoenie, for defendant.
    May 7, 2015
   MINORA, J.,

I. INTRODUCTION

Before the Court is Plaintiff iDropped, Inc.’s (“iDropped”) Request for a Permanent Injunction against Defendant Timothy Summo (“Summo”). Plaintiff iDropped filed its request for a preliminary injunction on February 24, 2015, which was denied without prejudice by the Court. A hearing for permanent injunctive relief was then held on March 3, 2015 before the undersigned Judge. After leaving the record open for the preparation of transcripts and the presentation of proposed findings of fact and conclusions of law, the matter is now ripe for decision. For reasons more fully articulated herein, Plaintiff’s request for permanent injunctive relief is HEREBY DENIED and DISMISSED.

II. FINDINGS OF FACT

Plaintiff iDropped is a Pennsylvania corporation with its principal place of business address at 208 North State Street in Clarks Summit, Pennsylvania. (Pet. for Prelim. Inj. ¶ 1). Plaintiff’s business specializes in the repair of Apple electronic products (including iPods, iPads, and iPhones), Samsung Galaxy smartphones, and computers. Charles Hibble is the founder and CEO of iDropped. (Joint Stipulation ¶¶2-3). iDropped opened its first location at the Steamtown Mall in Scranton in 2012 and has since expanded to additional locations in the Wyoming Valley Mall in Wilkes-Barre, PA, as well as the Plymouth Meeting Mall outside of Philadelphia, PA, the Viewmont Mall in Dickson City, PA, and the Stroud Mall in Stroudsburg, PA. Additionally, a franchise location in Edwardsville, PA also exists {Id. at ¶¶ 4-6) and Plaintiff is currently in the process of opening other franchises locations, as well. (N.T. 5).

In December of 2012, iDropped hired Defendant Summo as a technician at Plaintiff’s Steamtown Mall location. (Joint Stip. ¶ 5). Summo is currently twenty-two years old and worked for Plaintiff from 2012 to 2014. (Defendant’s brief at 1). At the time he was hired, Summo was in his first semester of college and worked part time in that position at a rate of ten dollars an hour. (N.T. 47). In 2013, Summo was then promoted to assistant manager of Plaintiff’s kiosk in the Wyoming Valley Mall. {Id.; Joint Stip. ¶8). At the time of his promotion to assistant manager, he became a full-time salaried employee and made the equivalent of roughly eleven dollars per hour. (N.T. 47-48).

Summo testified that he was a self-taught repair technician, learning most of his skills from the internet. {Id. at 50-51). Mr. Hibble, the company’s owner, testified that he was also self-taught prior to starting the company and that he had learned to repair devices through online videos. (Id. at 30-31). Summo stated that he observed one of the managers at iDropped do some soldering work so that he “could get a better handle on soldering work,” but otherwise he and the manager would use the internet to troubleshoot problems. Otherwise, Summo testified that the only other training he received from iDropped was how to use their computer system to “ring people out,” input customer information, and use the “point of sale” (POS) system to access pricing information. (Id. at 50-51). When Summo was promoted to assistant manager of the mall kiosk, he had the additional responsibilities of resolving issues between employees, opening and closing the store, making deposits, making schedules for the staff, and maintaining relationships with other stores in the mall by providing them with pizza and donuts. (Id. at 36, 52-55, 58).

Mr. Hibble testified that Summo had access to vendor information, pricing systems, customer information through the POS system, marketing plans, and future growth plans. (Id. at 7, 14, 36-37). However, Summo stated that he was not integrally involved in any of the business planning, pricing, product design, or marketing. (Id. at 55-56). Although he attended a few manager meetings, Summo was not aware of having been privy to any inventions or proprietary information maintained by iDropped and further stated that he was not sure what would even be classified as proprietary information because “there is nothing new under the sun in repair. It’s all been done a thousand times over.” (Id. at 56). Furthermore, the electronics industry and corresponding repair market substantially changes every 6-8 months as technology changes. (Id. at 32).

As a condition of his employment, Summo executed a Noncompete Agreement and a Confidentiality Agreement. (Joint Stip. ¶ 6-7). The Noncompete Agreement reads as follows:

Throughout Employee’s employment with iDropped and for a period of five (5) years after Employee’s employment with iDropped ends, Employee shall not directly or indirectly engage in any business that competes with iDropped. This covenant shall apply to the geographical area of Scranton, Pennsylvania as well as a 100 mile radius.

{See Plaintiff’s Exhibit B at |l)(emphasis added). The NonCompete Agreement is attached hereto as “Exhibit A.”

In July of 2014, Summo was terminated from his employment for disciplinary reasons. (Joint Stip. ¶ 9; N.T. 21,17). Subsequently, he began working as a part-time repair technician at FixAll Smartphones, a business located at 269 Scranton Carbondale Highway, Dickson City. (Joint Stip. ¶ 10). FixAll Smartphones is a general electronic repair company that repairs all electronic products. FixAll Smartphones does not specifically target the iPhones market because they fix everything else. (N.T. 5 7). Though the company does fix iPhones, Summo himself does not work on Apple products at FixAll Smartphones. {Id. at 54). Instead, his work encompasses virus removal, work on all smartphones such as HTC, LG, and generic brand tablets, and specialty order parts. {Id. at 52-53). Summo did not bring any customer lists from iDropped, has never seen a customer at FixAll Smartphones that he tended to while at iDropped, and does not have the means or ability to contacts iDropped’s customers through his employment at FixAll Smartphones. (Id. at 68).

Summo also made the following statements concerning the lack of overlap between his two positions:

Q. ...Did you learn any information through your employment [at iDropped] that would have been encompassed by the confidentiality agreement?
A. Possibly.
Q. What would be an example?
A. I suppose, you know, knowing what devices we fix might have been encompassed by that and, I mean, there were no really specialized techniques]. As far as I know or if there were that I wasn’t — they weren’t known to me. But I mean, I was at the manager meetings so I did learn, you know, a bit that they wanted to do the franchising and stuff, but specifics I really didn’t know or really can’t recall. I think I knew who the vendor was that they went through, although, I can’t recall that at this point.
Q. Do you feel that you have abided by the confidentiality agreement that you signed with iDropped?
A. Well, yes, absolutely. I don’t talk about anything that I knew from iDropped, I fix phones where I am. I don’t ask — I have nothing to do with part supply. I have no idea where we get the Apple parts that we have from and everything else is gotten from random distributors not any one parts supplier.

(Id. at 53-55).

Regarding possible damages potentially suffered by iDropped, Mr. Hibble stated that he does not have any evidence that iDropped has lost any business and could not say whether Summo took any customers with him when he was terminated. Furthermore, Mr. Hibble is not aware of iDropped having suffered any pecuniary loss from the date of Summo’s termination to the present. (Id. at 24-28).

III. STANDARD OF REVIEW

In order to obtain permanent injunctive relief, a party must establish the following elements relative to his or her claims: (1) the right to relief is clear; (2) the injunction is necessary to avoid an injury that cannot be compensated by damages; and (3) that greater injury will result if the court does not grant the injunction than if it does. Doe v. Zappala, 987 A.2d 190, fn 2 (Pa. Commw. 2009). “An injunction is a court order that can prohibit or command virtually any type of action. It is an extraordinary remedy that should be issued with caution and ‘only where the rights and equity of the plaintiff are clear and free from doubt, and where the harm to be remedied is great and irreparable.’” Big Bass Lake Community Ass ’n v. Warren, 950 A.2d 1137, 1144-45, citing 15 Standard Pennsylvania Practice 2d, § 83:2 (2005). Even where the essential prerequisites of an injunction are satisfied, the court must narrowly tailor its remedy to abate the injury. Id.

IV. CONCLUSIONS OF LAW

A review of the above-stated criteria reveals that Plaintiff iDropped has not met its burden in demonstrating the need for permanent injunctive relief.

1. The right to relief is not clear, therefore Petitioner fails to meet the first element for permanent injunctive relief articulated in Doe v. Zappala, supra.

The first element for a claimant to prove when seeking a permanent injunction requires a showing of a clear right to relief. As the Superior Court explained in Synthes USA Sales, LLC v. Harrison, 83 A.3d 242 (Pa. Super. 2013), to establish a clear right to relief on a claim for breach of restrictive covenants of an employment contract, a party must demonstrate the following:

In Pennsylvania, restrictive covenants are enforceable if they are incident to an employment relationship between the parties; the restrictions imposed by the covenant are reasonably necessary for the protection of the employer; and the restrictions imposed are reasonably limited in duration and geographic extent. Our law permits equitable enforcement of employee covenants not to compete only so far as reasonably necessary for the protection of the employer. However, restrictive covenants are not favored in Pennsylvania and have been historically viewed as a trade restraint that prevents a former employee from earning a living.

Synthes, 83 A.3d at 250, citing Hess v. Gebhard & Co., 808 A.2d 912, 917 (Pa. 2002); All-Pak, Inc. v. Johnston, 694 A.2d 347, 350 (Pa. Super. 1997) (noting restrictive covenants are strictly construed against employer). “Pennsylvania cases have recognized that trade secrets of an employer, customer goodwill and specialized training and skills acquired from the employer are all legitimate interests protect[a]ble through a general restrictive covenant.” Synthes, supra, citing Thermo-Guard, Inc. v. Cochran, 596 A.2d 188, 193-94 (Pa. Super. 1991). In essence, the court must examine and balance the employer’s legitimate business interest, the “individual’s right to work, the public’s right to unrestrained competition, and the right to contract... in determining whether to enforce a restrictive covenant.” Synthes, 83 A.3d at 250.

In the instant case, Plaintiff’s Noncompete Agreement is unenforceable because (1) the restrictions imposed by the covenant are not reasonably necessary for the protection of the employer, (2) the restrictions imposed are not reasonably limited in duration and geographic extent and are improperly vague, and (3) the restrictions are an overly burdensome trade restraint that prevents the former employee from earning a living.

First, the restrictions imposed in the covenant are not reasonably necessary for the protection of the employer. The type of interests that have been recognized in the context of a non-competition covenant include trade secrets or confidential information, unique or extraordinary skills, customer good will, and investments in an employee specialized training program. WellSpan Health v. Bayliss, 869 A.2d 990, 996 (Pa. Super. 2005); citing Hess v. Gebhard & Co., Inc., 808 A.2d 912, 920 (Pa. 2002). In contrast, a post-employment covenant that merely seeks to eliminate competition per se to give the employer an economic advantage is generally not enforceable. Id. A trade secret may include “a compilation of information which is used in one’s business” that gives one “an opportunity to obtain an advantage over competitors.” A trade secret does not include an employee’s aptitude, skill, dexterity, manual and mental ability, or other subjective knowledge. In addition, if a competitor could obtain the information by legitimate means, it will not be given injunctive protection as a trade secret. Id. at 997.

The record indicates that Summo was not in possession of confidential business information because he was not integrally involved in any of the business planning, pricing, product design, or marketing. Although he attended a few manager meetings, Summo was not aware of having been privy to any inventions or proprietary information maintained by iDropped. Summo stated that his electronics repairs skills were mostly self-taught from publicly-accessible internet tutorial videos, and that he received little training from Plaintiff.

Second, the restrictions imposed in the Noncompete Agreement are not reasonably limited in duration and geographic extent. The temporal and geographical restrictions imposed on the ex-employee must be reasonably limited. WellSpan Health v. Bayliss, 869 A.2d at 999. “The determination of reasonableness is a factual one, requiring consideration of all the facts and circumstances, with the party claiming unreasonableness as a defense against enforcement of the covenant bearing the burden of proof. An unreasonable covenant will not be enforced.” Id. (citations omitted). The Noncompete Agreement seeks to prevent Summo from engaging in any business that directly or indirectly competes with iDropped, the scope of said restriction lasting for 5 years from the end of Summo’s employment and applying “to the geographical area of Scranton, Pennsylvania as well as a 100 mile radius.” {See Plaintiffs Exhibit B at ^)(emphasis added). The electronics industry and the related repair market for such products are constantly evolving with the industry changing every 6-8 months. The time period that has passed since Defendant Summo’s termination in July of 2014 is already in excess of the 6-8 months. Due to the rapid nature of changes in technology in the electronic repair industry, a 5 year restriction that prevents Summo from performing any work for any company that competes either directly or indirectly with Plaintiff is unduly restrictive, burdensome, and unreasonable for the industry. Furthermore, the geographic restriction is improperly vague and undefined. The restriction “to the geographical area of Scranton, Pennsylvania as well as a 100 mile radius” does not define a location from which to measure a radius of 100 miles. Plaintiff’s principal place of business is in Clarks Summit and Plaintiff has stores in nearby locations in both Scranton and Dickson City. Any of these areas could potentially fall within the purview of the “geographical area of Scranton, Pennsylvania.” Without a defined location from which to measure a 100 mile radius, the Court would have to speculate as to the meaning of the Noncompete Agreement before it could potentially be enforced.

Finally, the time and scope restrictions in the Noncompete Agreement are also overly burdensome on Defendant Summo’s ability to earn a living. “Restrictive covenants are not favored in Pennsylvania and have been historically viewed as a trade restraint that prevents a former employee from earning a living.” Synthes, 83 A.3d at 250, citing Hess, 808 A.2d at 917. “If the potential harms to others exceed the potential benefits to the moving party, injunctive relief should generally be denied.” McCahon v. Pennsylvania Turnpike Com’n, 491 F.Supp.2d 522,527 (M.D. Pa. 2007). Defendant Summo testified that the electronics repair industry is the industry for which he has training and can seek gainful employment. (N.T. 48-50). To prevent Summo from seeking employment in the industry in which he can work to earn a living to support himself for a period of 5 years and within a 100 mile radius is unduly burdensome. Furthermore, the Noncompete Agreement specifies that Defendant Summo is an at-will employee and that the Agreement “does not create any term or duration of employment between [Summo] and iDropped.” (See Plaintiff’s Exhibit B at ¶ 8). The combination of the 5 year/100 mile restriction and the at-will employee status that the Noncompete Agreement purports to impose is unduly restrictive because it allows for the possibility of abuse by the employer. If enforceable, Plaintiff as the employer could fire an employee for any reason or no reason at all and then prevent an employee from working in the industry for a 5 year period of time and within a 100 mile radius. Such capability would allow an employer to manipulate the employ er/employee relationship unfairly. Accordingly, the provisions contained within the Noncompete Agreement are unduly restrictive and the Noncompete Agreement is unenforceable.

2. The injunction is not necessary to avoid an injury that cannot be compensated by damages, therefore Petitioner fails to meet the second element for permanent injunctive relief articulated in Doe v. Zappala, supra.

The second element for a claimant to prove when seeking a permanent injunction requires a showing that the injunction is necessary to avoid an injury that cannot be compensated by damages. Irreparable injury is harm of such an irreversible character that prospective judgment following trial would be inadequate to make the moving party whole. The mere risk of injury is not sufficient to meet this standard. Rather, the moving party must establish that the harm is imminent and probable. McCahon v. Pennsylvania Turnpike Com’n, 491 F.Supp.2d 522, 527 (M.D. Pa. 2007)(citations omitted).

Though Defendant Summo left his employment in July of 2014 and went to work at another electronics repair company, Plaintiff iDropped has not been able to present any evidence that its business has been adversely impacted. Mr. Hibble testified that he does not have any evidence that iDropped has lost any business and could not say whether Summo took any customers with him when he was terminated. Defendant Summo testified that he did not bring any customers with him from iDropped to FixAll Smartphones, did not have a list of iDropped’s customers, and would have no way of contacting said customers. Furthermore, Summo has stated that he has never seen any of iDropped’s customers through his work at FixAll Smartphones. Finally, Mr. Hibble is not aware of iDropped having suffered any pecuniary loss from the date of Summo’s termination to the present. Further, Mr. Hibble never testified to a slower growth rate or any other negative consequences that he could attribute to Defendant Summo’s departure.

3. Greater injury will not result if the Court does not grant the injunction, therefore Petitioner fails to meet the third element for permanent injunctive relief articulated in Doe v. Zappala, supra.

The third element for a claimant to prove when seeking a permanent injunction requires a showing that greater injury will result if the Court does not grant the injunction than if it does. As stated above, iDropped has not presented any evidence that its business has suffered any damage in loss of customers, financial loss, or a slower growth rate from Summo’s employment at FixAll Smartphones. Furthermore, Summo has testified that he was not integrally involved in any of the business planning, pricing, product design, or marketing such that he could cause any quantifiable harm to iDropped. Summo’s work at FixAll Smartphones encompasses a broad range of electronic repair devices and differs from his work at iDropped, where he focused on Apple products. Summo testified that he does not work on Apple products at FixAll Smartphones. Finally, Summo stated that he has nothing to do with part supply at his new job and does not know from which supplier FixAll Smartphones receives Apple parts.

Accordingly, this Court finds that Plaintiff iDropped has failed to advance sufficient evidence to demonstrate that a permanent injunction is merited against Defendant Summo. Furthermore, We find Plaintiff iDropped’s Noncompete Agreement to be unenforceable for the following reasons: (1) the restrictions imposed by the covenant are not reasonably necessary for the protection of the employer, (2) the restrictions imposed are not reasonably limited in duration and geographic extent and are improperly vague, and (3) the restrictions are an overly burdensome trade restraint that prevents the former employee from earning a living.

An appropriate Order follows.

ORDER

AND NOW this 7th day of May 2015, upon consideration of Plaintiff iDropped, Inc.’s Request for a Permanent Injunction, the credible evidence of record, and the briefs submitted by the parties, it is HEREBY ORDERED AND DECREED that Plaintiffs request for injunctive relief is HEREBY DENIED and DISMISSED.


author: YATRON, P.J.,

text:
    Commonwealth v. Godbolt

      C.P. of Berks County,
    No. CP-06-CR-0001135-2015

      Adam A. McNaughton, for Commonwealth.

      Christopher M. Price, for defendant.
    May 8, 2015
   YATRON, P.J.,

Milton Godbolt (“Defendant”) is charged in the above-captioned case with possession with intent to deliver a controlled substance and possession of a controlled substance. On April 21, 2015, Defendant filed an omnibus pretrial motion in the nature of a motion for suppression of evidence. Hearing was held April 29,2015, and both counsel submitted memoranda on May 6,2015. The matter is now ripe for disposition.

FINDINGS OF FACT

1. Criminal Investigator Darren Smith works in the Vice Unit of the Reading City Police Department.

2. On February 10, 2015, Smith received information from a confidential source that Defendant was selling crack cocaine inside Daniel’s Bar at 946 Penn Street in the City of Reading.

3. Daniel’s Bar is well known to be a hub of violence and drug activity.

4. The confidential source specifically indicated that Defendant had a pill bottle containing crack cocaine. He also stated that Defendant was sitting on the fifth stool from the front door, next to a white female.

5. Smith and three other criminal investigators went to the bar to locate Defendant.

6. Defendant was immediately patted down for weapons. Smith had not seen any weapon, nor had he received any information about Defendant possessing a weapon.

7. Smith felt a pill bottle in Defendant’s pocket. Smith removed the bottle, which contained forty (40) bags of crack cocaine.

CONCLUSIONS OF LAW

Defendant’s motion argues that the evidence in this case was obtained after an unlawful pat down, thus requiring its suppression as fruit of the poisonous tree. OMNIBUS PRETRIAL MOTION at ¶14. For the reasons discussed herein, we agree with Defendant that the evidence must be suppressed.

“The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals against unreasonable searches and seizures.” Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014) (citations omitted). The scope of protection provided by these constitutional provisions is well-established:

Warrantless searches and seizures ... are unreasonable per se, unless conducted pursuant to specifically established and well-delineated exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception, the Terry “stop and frisk,” permits a police officer to briefly detain a citizen for investigatory purposes if the officer “observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.” Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 666 A.2d 323, 325 (1995); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011). An investigatory stop requires that the police have reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 30. Courts must analyze the totality of the circumstances to determine whether the police had reasonable suspicion. See U.S. v. Cortez, 449 U.S. 411, 417-18 (1981) (“Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity”). The Commonwealth bears the burden in a suppression motion. See Pa.R.Crim.P. 323(h); Simmons, 17 A.3d at 402 (citations omitted)(“Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible”).

“If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect’s outer garments for weapons.” Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999). “In order to establish reasonable suspicion, the police officer must articulate specific facts from which he could reasonably infer that the individual was armed and dangerous. When assessing the validity of a Terry stop, we examine the totality of the circumstances . . . giving due consideration to the reasonable inferences that the officer can draw from the facts in light of his experience, while disregarding any unparticularized suspicion or hunch.” Commonwealth v. Wilson, 927 A.2d 279, 284 (Pa. Super. 2007) (citations omitted).

In the instant case, the Commonwealth failed to introduce any evidence with regards to the confidential source. The only evidence presented was that Criminal Investigator Smith received information from the source on Februaiy 10, 2015. We otherwise know nothing about the source’s reliability. As noted supra, the Commonwealth bears the burden in a suppression motion, and the omission of this information necessarily affects our analysis of the totality of the circumstances.

With this background in mind, we conclude that Criminal Investigator Smith had no reason to suspect that Defendant was carrying a weapon. The confidential source made no mention of a weapon, nor did Smith make any observation suggesting that Defendant was armed and dangerous. Smith emphasized that Daniel’s Bar is a problematic establishment where crime is rampant. We do not doubt the accuracy of this characterization, but our jurisprudence does not allow pat downs without individualized suspicion premised on specific and articulable facts. There being no such justification in the instant case, we are bound to conclude that the pat down of Defendant was unconstitutional, and that all evidence seized therefrom must be suppressed.

We further note that Defendant’s pill bottle was unconstitutionally seized. Our jurisprudence allows “the seizure of non-threatening contraband detected by an officer’s ‘plain feel’ during a pat-down for weapons if the officer is lawfully in a position to detect the presence of contraband, the incriminating nature of the contraband is immediately apparent and the officer has a lawful right of access to the object.” Commonwealth v. Guillespie, 745 A.2d 654, 657 (Pa. Super. 2000) (quoting Commonwealth v. Fink, 700 A.2d 447 (Pa. Super. 1997)). “[T]he plain feel doctrine is only applicable where the officer conducting the frisk feels an object whose mass or contour makes its criminal character immediately apparent. Immediately apparent means that the officer readily perceives, without further exploration or searching, that what he is feeling is contraband.” Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000) (citations omitted).

Pennsylvania courts have recognized the obvious fact that a pill bottle is not itself contraband. See Hudson, 92 A.3d at 1242 (noting that “a pill bottle by itself is not contraband”); Stevenson, 744 A.2d at 1267 (stating that a pill bottle is not “by its nature contraband”); Guillespie, 745 A.2d at 659 (explaining that “any innocuous small object(s) could have been contained within the pill bottles”). Accordingly, Criminal Investigator Smith lacked probable cause under the plain feel doctrine to seize the pill bottle from Defendant’s pocket.

Based upon the Findings of Fact and Conclusions of Law contained herein, we believe that the Commonwealth has failed to demonstrate that the challenged evidence is admissible. Therefore, Defendant’s Motion for Suppression of Evidence is GRANTED.

      . 35 P.S. § 780-113(a)(30).

      .35P.S. § 780-113(a)(16).