J-A26022-15 & J-A26023-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL A. JARVIE,                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CUMULUS MEDIA, INC.,

                            Appellant                No. 1891 MDA 2014


                Appeal from the Order Entered October 24, 2014
                 in the Court of Common Pleas of Berks County
                         Civil Division at No.: 14-20186


MICHAEL A. JARVIE,                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CUMULUS MEDIA, INC.,

                            Appellant                 No. 374 MDA 2015


                Appeal from the Order Entered February 5, 2015
                 in the Court of Common Pleas of Berks County
                         Civil Division at No.: 14-20186


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 08, 2015

        In these two related appeals, Appellant, Cumulus Media, Inc., appeals

from the trial court’s orders of October 24, 2014 granting the motion of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A26022-15 & J-A26023-15


Appellee, Michael A. Jarvie, for a preliminary injunction, and February 5,

2015, directing Appellee to deposit $500.00 in cash in lieu of a bond in this

declaratory judgment action.1 For the reasons discussed below, we dismiss

these appeals as moot.

       We take the underlying facts and procedural history in this matter

from the trial court’s January 23, 2015 and April 1, 2015 opinions and our

independent review of the certified record.

              In 2003, [Appellee] worked for Citadel Broadcasting
       Company (Citadel) in Wilkes-Barre, Pennsylvania. On May 7,
       2007, Citadel hired [Appellee] as a General Sales Manager for its
       radio stations WQXA-FM, WMHX-FM, WCAT-FM, WIOV-FM, and
       WIOV-AM in Harrisburg, Lancaster, Reading, and York,
       Pennsylvania. [Appellee’s] duties included supervising the sales
       efforts through the sale of advertising time, supervising and
       developing account executives and assistants, attending station
       meetings, working with the programming and promotion
       departments to maximize sales opportunities, and [managing]
       the budgets of the stations’ sales departments. The general
       manager supervised him. [Appellee’s] salary was $45,000.00
       per year with the potential for bonuses. From 2007 to 2010,
       [Appellee] typically earned $85,000.00 to $99,000.00 per year,
       including bonuses.

             Prior to [Appellee’s] employment as the sales manager
       with Citadel, [Appellee] executed a Sales Manager Standard
       Agreement (Agreement). This Agreement contained, inter alia,
       the following provisions which are the subject of this dispute:

                    9. (b) You will not enter into any employment
              or other agreement to perform services as an
              account executive or sales manager or perform any
              other services set forth paragraph 1 hereof for any
____________________________________________


1
  These interlocutory orders are appealable as of right.       See Pa.R.A.P.
311(a)(4).



                                           -2-
J-A26022-15 & J-A26023-15


           radio station with a transmission tower located within
           fifty (50) miles of the transmission tower of Station
           for a period of one (1) year after the termination of
           your employment with Company.

                 9. (c) You will not have any contact with and
           will not solicit clients or customers of Station for a
           period of one (1) year after the termination of your
           employment with Station for the purpose of selling
           airtime for any radio or television broadcaster.

     (Exhibit No.1).

            In 2011, Citadel entered into agreement to merge with
     [Appellant], Cumulus Media, Inc. The merger was completed by
     September 2011. [Appellee] was paid a $20,000.00 retention
     bonus to stay during the transition period from September 20,
     2011 through March 20, 2012. He signed a separate agreement
     for this bonus.      This agreement does not contain a non-
     solicitation or non-competition clause.

           In November 2011, [Appellant] began changing the terms
     and conditions of [Appellee’s] employment.       [Appellee] was
     demoted to account manager with a concomitant reduction in
     salary and duties.     [Appellee] was no longer in charge of
     inventory or helping with pricing or doing anything in a
     managerial capacity. He was not eligible to receive bonuses. He
     no longer had a base salary and received his compensation
     based entirely on commissions.        When the merger was
     completed and [Appellee] became an employee of [Appellant],
     [Appellee] had to give some of his clients to other salespeople
     because the clients had been clients of both Citadel and
     [Appellant] before the merger.

           In February 2014, [Appellant’s] new regional manager
     assumed the supervision of the York-Lancaster cluster. He took
     all managerial responsibility and privileges away from
     [Appellee]. In May 2014, the marketing manager determined
     that [Appellee] was earning too much money and took away
     some of [Appellee’s] existing billing accounts. Although other
     employees who were demoted or had changes in compensation
     signed new agreements with new restrictive covenants,
     [Appellant] never requested [Appellee] to execute a new
     agreement.

                                   -3-
J-A26022-15 & J-A26023-15


            On October 1, 2014, [Appellee] accepted a position with
      IHeartMedia as a Local Sales Manager. This radio station is in
      one of [Appellant’s] markets.      His responsibilities are to
      supervise, develop, and grow a team for its radio stations in
      Berks County, Pennsylvania. [Appellee] will also help price the
      inventory and work on projects to help increase the profitability
      of the station.

            On October 1, 2014, [Appellee] gave [Appellant] his
      required two weeks’ notice of intent to resign. On October 2,
      2014, [Appellant] notified [Appellee] that his resignation was
      accepted and asked him to leave immediately. [Appellant] then
      contacted IHeartMedia and indicated that it would seek to
      enforce the non-competition and non-solicitation provisions of
      the Agreement if lHeartMedia permitted [Appellee] to work for it.
      [Appellee] filed this action for declaratory judgment and sought
      a preliminary injunction to preclude [Appellant] from interfering
      with his ability to obtain new employment and to procure
      business.

            Ron Giovanniello is the regional vice president in
      Pennsylvania for [Appellant].      He is responsible for all of
      [Appellant’s] operations the markets of Harrisburg, York,
      Lancaster, Reading, Allentown, and Wilkes-Barre/Scranton,
      Pennsylvania.     lHeartMedia is [Appellant’s] biggest direct
      competitor in the business. The specific station where [Appellee]
      worked for [Appellant] was a country station. The IHeartMedia
      station where [Appellee] sought employment is a contemporary
      hit station. Mr. Giovanniello testified that the only reason that
      [Appellant] has interest in [Appellee] is that he can transfer
      accounts that will affect [Appellant’s] revenue. Mr. Giovanniello
      does not have noncompete agreement with [Appellant].

(Trial Court Opinion, 1/23/15, at 1-4).

      On October 22, 2014, the trial court held a hearing on Appellee’s

request for a preliminary injunction.     On October 24, 2014, the trial court

granted the request and issued a preliminary injunction.     On November 7,

2014, Appellant filed the appeal in case 1891 MDA 2014. On November 12,

2014, the trial court directed Appellant to file a concise statement of errors

                                     -4-
J-A26022-15 & J-A26023-15


complained of on appeal. See Pa.R.A.P. 1925(b). On December 1, 2014,

Appellant filed a timely Rule 1925(b) statement, raising, for the first time,

the issue that the trial court erred by failing to require that Appellee post a

bond as required by Pennsylvania Rule of Civil Procedure 1531(b).           (See

Appellant’s Statement of Errors Complained of on Appeal, 12/01/15, at 2 ¶

6).

      On December 11, 2014, the trial court issued an order scheduling a

hearing with respect to the bond issue. The hearing took place on January

23, 2015. Further, on January 23, 2015, the trial court issued an opinion

with respect to case 1891 MDA 2014. See Pa.R.A.P. 1925(a). On February

5, 2015, the trial court issued an order directing Appellee to pay $500.00

cash in lieu of a bond.   On February 24, 2015, Appellant filed a notice of

appeal.    On February 25, 2015, the trial court ordered Appellant to file a

concise statement of errors complained of on appeal.           See Pa.R.A.P.

1925(b).     On March 16, 2015, Appellant filed a timely Rule 1925(b)

statement.     On April 1, 2015, the trial court issued an opinion.         See

Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review in

case 1891 MDA 2014.

             A. Whether the trial court erred in finding that Appellee
      met his burden of proof for injunctive relief because Appellee
      failed to establish all of the requisite elements for a preliminary
      injunction?




                                     -5-
J-A26022-15 & J-A26023-15


                 1. Whether the trial court erred in granting
           Appellee’s request for injunctive relief because
           Appellee failed to prove “irreparable harm” as his
           claim is compensable by money damages?

                 2. Whether the trial court erred in granting
           Appellee’s request for injunctive relief because
           greater injury resulted from granting the injunction,
           and the issuance of an injunction substantially
           harmed Appellant?

                 3. Whether the trial court erred in granting
           Appellee’s request for injunctive relief because the
           preliminary injunction did not properly restore the
           parties to their status as it existed immediately prior
           to the alleged wrongful conduct?

                 4. Whether the trial court erred in granting
           Appellee’s request for injunctive relief because
           Appellee did not prove that he is likely to prevail on
           the merits?

           B. Whether the injunction issued by the trial court is null
     and void because the trial court failed to require the Appellee to
     post a bond which would cover damages that are reasonably
     foreseeable?

           C. Whether the trial court erred by ruling in its October
     2[4], 2014 order that “the restrictive covenants set forth in the
     sales manager standard agreement, pl. ex. 1, is (sic) not binding
     on [Appellee]” because the finding was the ultimate issue
     Appellee sought to have determined through the declaratory
     judgment action, the matter is properly the subject of
     arbitration, and Appellant did not have a full and fair opportunity
     to conduct discovery and Appellant did not have a full and fair
     opportunity to be heard on that subject?

(Appellant’s Brief, Case 1891 MDA 2014, at 4-5) (unnecessary capitalization

and footnotes omitted).

     On appeal, Appellant raises the following questions for our review in

case 374 MDA 2015.

                                    -6-
J-A26022-15 & J-A26023-15


             A. Whether the trial court erred in entering its [February
      5], 2015 order by imposing a $500.00 cash deposit requirement
      with regard to the injunction issued on October 2[4], 2014,
      because the [February 5], 2015 order did not cure the defect of
      failing to require a bond at the time the injunction was entered,
      rendering the injunction null and void?

            B. Whether the trial court erred in entering its [February
      5], 2015 order by only requiring a $500.00 cash deposit,
      because the order fails to impose a bond in a sufficient amount
      [that] will cover [Appellant’s] damages that are reasonably
      foreseeable?

(Appellant’s Brief, Case 374 MDA 2105, at 4) (unnecessary capitalization

omitted).

      On appeal, Appellant contends that the evidence was insufficient to

support the trial court’s injunction.

      Our standard of review, though nominally characterized as an
      abuse of discretion, is highly deferential:

                   We recognize that on an appeal from the grant
            or denial of a preliminary injunction, we do not
            inquire into the merits of the controversy, but only
            examine the record to determine if there were any
            apparently reasonable grounds for the action of the
            court below. Only if it is plain that no grounds exist
            to support the decree or that the rule of law relied
            upon was palpably erroneous or misapplied will we
            interfere with the decision of the trial court.

           This Court set out the reasons for this highly deferential
      standard of review almost a hundred years ago:

                  It is somewhat embarrassing to an appellate
            court to discuss the reasons for or against a
            preliminary decree, because generally in such an
            issue we are not in full possession of the case either
            as to the law or testimony—hence our almost
            invariable rule is to simply affirm the decree, or if we
            reverse it to give only a brief outline of our reasons,

                                        -7-
J-A26022-15 & J-A26023-15


            reserving further discussion until appeal, should
            there be one, from final judgment or decree in law or
            equity.

Martinez v. Christian Fin. Mgmt. Corp., — A.3d —, 2015 WL 5854144, at

*4 (Pa. Super. filed Oct. 7, 2015) (citations omitted).

      Prior to addressing their merits, we must first resolve whether these

appeals are moot.

             As a general rule, an actual case or controversy must exist
      at all stages of the judicial process, or a case will be dismissed
      as moot. An issue can become moot during the pendency of an
      appeal due to an intervening change in the facts of the case or
      due to an intervening change in the applicable law[.] In that
      case, an opinion of this Court is rendered advisory in nature. An
      issue before a court is moot if in ruling upon the issue the court
      cannot enter an order that has any legal force or effect.

                                     *    *     *

            Nevertheless, this Court will decide questions that
      otherwise have been rendered moot when one or more of the
      following exceptions to the mootness doctrine apply: 1) the
      case involves a question of great public importance, 2) the
      question presented is capable of repetition and apt to elude
      appellate review, or 3) a party to the controversy will suffer
      some detriment due to the decision of the trial court.

In re R.D., 44 A.3d 657, 680 (Pa. Super. 2012), appeal denied, 56 A.3d 398

(Pa. 2012) (citations and quotation marks omitted).

      Here, the dispute centers on the enforceability of a do-not-compete

clause. That clause was enforceable for one year after termination from the

company. (See Trial Ct. Op., 1/23/15 at 2). Appellant terminated Appellee

on October 2, 2014.     (See id. at 3).       Thus, the do-not-compete clause

expired on October 2, 2015.     Therefore, because Appellant can no longer

                                     -8-
J-A26022-15 & J-A26023-15


enforce the clause, the issue is moot. See Gordon v. Phil. County Dem.

Exec. Comm., 80 A.3d 464, 473 (Pa. Super. 2013) (finding third-party

challenges to use of particular rule to remove committee member moot

where committee reinstated member); R.D., supra at 680 (finding

challenge to juvenile court judge’s remarks at dispositional hearing moot

where juvenile was no longer in placement); Phil. Lodge No. 5, Frat.

Order of Police v. Phil. Bd. of Pensions and Ret., 606 A.2d 603, 605-06

(Pa. Cmwlth. 1992), appeal denied, 615 A.3d 1314 (Pa. 1992) (appeal from

denial of preliminary injunction to prevent pension board from buying short-

term loan notes was moot where board had already paid back loans and law

allowing    their   purchase     had    expired);2   Int’l.   Bhd.   of   Teamsters,

Chauffeurs, Warehousemen and Helpers, Gen. Warehousemen and

Employees Union Local v. Borough of West Mifflin, 411 A.2d 261, 262

(Pa. Cmwlth. 1980) (appeal from grant of preliminary injunction restraining

union from continuing strike moot where strike settled during pendency of

appeal).

       Moreover, our review of the record demonstrates that none of the

exceptions applies.      See In re R.D., supra at 680.          With respect to the

important public issue exception, the Pennsylvania Supreme Court has

____________________________________________


2
  While decisions of the Commonwealth Court are not binding on us, they
may serve as persuasive authority. See Commonwealth v. Ortega, 995
A.2d 879, 885 (Pa. Super. 2010), appeal denied, 20 A.3d 1211 (Pa. 2011).



                                           -9-
J-A26022-15 & J-A26023-15


explained that this “exception is generally confined to a narrow category of

cases.”   Bottomer v. Progressive Cas. Ins. Co., 859 A.2d 1282, 1285

(Pa. 2004) (citation omitted) (holding issue of whether declaratory judgment

actions and arbitrations can proceed simultaneously on same subject is not

sufficiently important to escape mootness).

      This   matter   is   an   interpersonal   dispute   revolving   around   the

enforcement of a do-not-compete clause in the contract of a single former

employee.    It involves no issue of public importance. Cf. In re Estate of

Border, 68 A.3d 946, 954 (Pa. Super. 2013), appeal denied, 77 A.3d 637

(Pa. 2013) (finding that appeal from denial of preliminary injunction staying

order removing guardian was technically moot following death of patient, but

holding it concerned matter of public importance, the removal of life support

from incapacitated patient).

      With respect to the repetition exception, we have stated, “Class

actions aside, a case is capable of repetition, yet evading review when (1)

the challenged action [is] in its duration too short to be fully litigated prior to

its cessation or expiration, and (2) there [is] a reasonable expectation that

the same complaining party [will] be subjected to the same action again.”

Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super. 1983)

(internal quotation marks and citations omitted).

      In the instant matter, we see nothing that makes it capable of

repetition and avoiding review.      As noted above, there are no issues of


                                      - 10 -
J-A26022-15 & J-A26023-15


public importance in this matter such that a decision here will have

implications for future actions.        In addition, because Appellant no longer

employs Appellee, the question of the enforceability of a clause in the

employment contract between them will not arise again. While the do-not-

compete clause did contain a time limitation, we see no reason why such a

limitation might prevent future review, particularly given the unique set of

circumstances3 in these cases, which caused multiple proceedings in the trial

court, resulting in two appeals, and given that the decision issued depended

upon the particular facts of Appellee’s case.             See Border, supra at 954

(issue of removal of life support from incapacitated person capable of

repetition yet evading review); see also Harris v. Rendell, 982 A.2d 1030,

1037 (Pa. Cmwlth. 2009), affirmed, 992 A.2d 121 (Pa. 2010) (finding

repetition exception did not apply where appellant did not take advantage of

procedures permitting         immediate        or   expedited review   of preliminary

injunctive relief).

       Lastly, Appellant will not suffer any detriment without this Court’s

decision.     Appellee sought injunctive relief to prevent Appellant from

enforcing the do-not-compete clause, and that clause has now expired;

Appellant cannot enforce the clause now. This matter is simply not the type
____________________________________________


3
  Those circumstances include the fact that Appellant did not draft the do-
not-compete clause in this matter, rather it was part of the contract between
Appellee and Citadel and the record indicates that not all contracts drafted
by Appellant contain a do-not-compete clause. (See Trial Ct. Op., at 1-3).



                                          - 11 -
J-A26022-15 & J-A26023-15


of case where the Pennsylvania courts have found detriment.       See e.g.

Com. Dept. of Envtl. Prot. v. Cromwell Tp., Huntingdon County, 32

A.3d 639, 652 (Pa. 2011) (appeal by township of contempt order sentencing

three township supervisors to jail was not mooted by resignation of two

supervisors and completion of sentence by third because township and any

new supervisors were still subject to underlying enforcement order); Chruby

v. Dept. of Corr., 4 A.3d 764, 771 (Pa. Cmwlth. 2010) (finding appeal of

grant of preliminary injunction requiring Department of Corrections to

transport prisoner for medical treatment technically moot because prisoner

received treatment sought, but holding DOC would suffer harm without

appellate review because prisoner routinely sought and received ex parte

injunctive relief and DOC never had opportunity to respond to prisoner’s

allegations); Haas v. W. Shore School Dist., 915 A.2d 1254, 1258 (Pa.

Cmwlth. 2007) (expelled student would suffer detriment without appellate

review even though expulsion completed because it remained on permanent

record).

     Again, we note that this Court has observed, “An issue before a court

is moot if in ruling upon the issue the court cannot enter an order that has

any legal force or effect.” Rivera v. Pa. Dept. of Corr., 837 A.2d 525, 527

(Pa. Super. 2003), appeal denied, 857 A.2d 680 (Pa. 2004) (citation

omitted).    Appellee sought to prevent enforcement of the do-not-compete

clause.    The clause has since expired, and any ruling by this Court would


                                    - 12 -
J-A26022-15 & J-A26023-15


have no force or effect. See Gordon, supra at 473; R.D., supra at 680.

The issue herein is moot, and the appeals must be dismissed.

     Appeals dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2015




                                  - 13 -
