J-E03007-18


                                   2019 PA Super 13

    PITTSBURGH LOGISTICS SYSTEMS,              :   IN THE SUPERIOR COURT OF
    INC.                                       :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 134 WDA 2017
    BEEMAC TRUCKING, LLC AND                   :
    BEEMAC LOGISTICS, LLC                      :

                  Appeal from the Order December 22, 2016
    In the Court of Common Pleas of Beaver County Civil Division at No(s):
                              No. 11571-2016


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,

            LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.

DISSENTING OPINION BY BOWES, J.:                      FILED JANUARY 11, 2019

       I respectfully dissent. As I would hold that the no-hire provision at issue

is enforceable under Pennsylvania law, I would reverse the trial court’s order

denying the petition for a preliminary injunction filed by Pittsburgh Logistics

Systems, Inc. (“PLS”) against BeeMac Trucking, LLC, and BeeMac Logistics,

LLC (“BeeMac”).1


____________________________________________


1 The record contains reference to a company named Hybrid Global Logistics
(“Hybrid”), which is not a party to this suit. Hybrid purportedly hired two of
the disputed employees, and is supposedly owned by one of those employees
and BeeMac Trucking, LLC. These allegations raise questions of fact not
decided by the trial court, and thus, the question of Hybrid’s affiliation with
BeeMac and PLS is not presently before us.
J-E03007-18


       At the outset, I observe that, of the six elements a party must establish

to obtain a preliminary injunction,2 the only one at issue herein is the fourth

prong. PLS was required to establish that the activity that it sought to restrain

was actionable, that its right to relief was clear, and that the wrong was

manifest, or, in other words, show that it was likely to prevail on the merits.

Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004).                   Hence, my

analysis is limited to a discussion of the fourth prong as it relates to the no-

hire provision.

____________________________________________



2   The six elements are:

       1) that the injunction is necessary to prevent immediate and
       irreparable harm that cannot be adequately compensated by
       damages; 2) that greater injury would result from refusing an
       injunction than from granting it, and, concomitantly, that issuance
       of an injunction will not substantially harm other interested parties
       in the proceedings; 3) that a preliminary injunction will properly
       restore the parties to their status as it existed immediately prior
       to the alleged wrongful conduct; 4) that the activity that its seeks
       to restrain is actionable, that its right to relief is clear, and that
       the wrong is manifest, or, in other words, must show that it is
       likely to prevail on the merits; 5) that the injunction it seeks is
       reasonably suited to abate the offending activity; and, 6) that a
       preliminary injunction will not adversely affect the public interest.

Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004) (cleaned up). That
the trial court found that PLS established the other five prongs is confirmed
by its decision to grant a preliminary injunction as to the non-solicitation
provision contained in PLS’s contract with BeeMac, thus preventing BeeMac
from soliciting PLS customers. The difference in the trial court’s decisions
appears to have turned upon its which determination that the non-solicitation
provision was a reasonable restraint on trade, while the no-hire clause was
not. Trial Court Opinion, 12/22/16, at 11-12.



                                           -2-
J-E03007-18


        It is undisputed that the laws of this Commonwealth are silent as to the

enforceability of a no-hire provision, such as the condition provided in § 14.6

of BeeMac’s contract with PLS (“MCSC”).3           Notwithstanding the lack of

authority on point, I would hold that PLS has established a likelihood of

success on the merits because I am persuaded that the no-hire provision is

valid and enforceable.

        “The legal effect or enforceability of a contract provision presents a

question of law accorded full appellate review and is not limited to an abuse

of discretion standard.” Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d

614, 624 (Pa.Super. 2013). As such, our scope of review of the question is

plenary. Mace v. Atl. Ref. Mktg. Corp., 785 A.2d 491, 494 n.5 (Pa. 2001).

        Generally speaking, Pennsylvania law favors contracts entered into at

arm’s length between sophisticated parties. John B. Conomos, Inc. v. Sun

Co., Inc. (R&M), 831 A.2d 696, 708 (Pa.Super. 2003) (“Absent fraud or


____________________________________________


3   Section 14.6 provides as follows:

        [BeeMac] agrees that, during the term of this Contract and for a
        period two (2) years after the termination of this Contract, neither
        [BeeMac] nor any of its employees, agents, independent
        contractors or other persons performing services for or on behalf
        of [BeeMac] in connection with [BeeMac’s] obligations under this
        Contract will, directly or indirectly, hire, solicit for employment,
        induce or attempt to induce any employees of PLS or any of its
        Affiliates to leave their employment with PLS or any Affiliate for
        any reason.

MCSC, 8/30/10, at § 14.6.


                                           -3-
J-E03007-18


unconscionability, courts should not set aside terms on which sophisticated

parties agreed.”). Here, the record suggests that PLS and BeeMac engaged

in arm’s length negotiations and exchanged valuable consideration in arriving

at the agreement set forth in the MCSC. The record is devoid of allegations

that PLS perpetrated a fraud or that the terms of the MCSC were

unconscionable.   Rather, the record reflects that BeeMac appreciated the

consequences of entering into the MCSC with PLS, including its promise to

refrain from hiring any PLS employee during the term of the contract, and for

two years following its termination. Accordingly, Pennsylvania law generally

supports a finding that the agreement is enforceable on its face.

      The question thus becomes whether § 14.6 is unenforceable as contrary

to another aspect of Pennsylvania law. In resolving the issue, this Court must

examine the provision actually before us, namely, BeeMac’s agreement not to

hire PLS’s employees during the performance of the contract or for two years

afterwards. This is a no-hire provision that binds BeeMac, not a non-compete

clause binding PLS’s employees. In my view, the majority errs in conflating

the two, as there is no basis in Pennsylvania law for treating a no-hire

provision as a restrictive covenant between an employer and an employee.

      By way of background, in a separate action not implicated in this appeal,

PLS   sued   former   employees    for   alleged   violations   of   non-compete

agreements. The trial court held the provisions to be unenforceable as overly-

broad, as they were unlimited in geographic scope. See Trial Court Opinion,


                                     -4-
J-E03007-18


12/22/16, at 8, 10. Further, the trial court declined to modify the scope of

the provisions, concluding that PLS had unclean hands, as the overbreadth

evidenced an intent to oppress the employees. Id. at 6-8.

      The majority seizes upon these holdings to find that “[i]t would be

incongruous to strike the employees’ restrictive covenant, finding PLS to have

unclean hands, yet allow PLS to achieve the same result via a contract

between companies.” Majority Opinion at 9. The majority opines that the no-

hire provision “is similarly overbroad, preventing any PLS employee from

working for any PLS customer.” Id. The majority further confuses the issues

by relying upon a New Mexico federal district court’s discussion of a Texas

court’s invalidation of an agreement between the buyer and seller of a

company that included a provision purporting to prevent employees of the

company from participating in a competing business, although the employees

were not parties to the contract.    Id. at 10 (quoting Richards Energy

Compression, LLC v. Dick Glover, Inc., 2013 WL 12147626 (D.N.M. Sept.

16, 2013) (discussing Texas Shop Towel v. Haire, 246 S.W.2d 482, 484

(Tex.Civ.App.-San Antonio 1952)).

      PLS’s non-compete agreements with its individual employees have

absolutely no relevance in determining the enforceability of BeeMac’s

contractual obligation not to hire PLS employees.      The provisions are in

separate agreements, with distinct rights and responsibilities, made by

different parties for different purposes. This is not at all akin to the Texas


                                    -5-
J-E03007-18


case above in which a company made an agreement to bind individuals who

were not parties to the contract.       Further, the no-hire provision does not

prevent any PLS employee from working for any PLS customer as the majority

suggests; rather, it prevents only the hire of PLS employees by BeeMac, and

thus is far narrower in scope than the non-compete agreements included in

the employees’ contracts. The majority’s apparent assumption that such no-

hire provisions are contained in every agreement PLS reaches with a new

customer is simply not supported by the record, and is not a proper basis for

consideration of the issue before us.

      Accordingly, it is inappropriate to construe § 14.6 at issue as a back-

door restrictive covenant through which an employer signs away rights of its

employees without supplying consideration. The no-hire provision does not

restrict the employees’ actions, but rather is a concession from BeeMac that,

in exchange for its access to PLS’s specialized industry knowledge and

contacts through PLS’s employees, BeeMac would not thereafter appropriate

those employees and obviate the need for PLS’s services. BeeMac’s contract

with PLS does nothing to restrict PLS’s employees from seeking employment

with any other company.

      The proper analysis of the issue in this appeal is whether the no-hire

provision in the PLS-BeeMac contract is a reasonable restraint upon trade.

No-hire agreements have been upheld under such scrutiny in other

jurisdictions.   See, e.g., Ex parte Howell Engineering and Surveying,


                                        -6-
J-E03007-18


Inc., 981 So.2d 413 (Ala. 2006), and H & M Commercial Driver Leasing,

Inc. v. Fox Valley Containers, Inc., 805 N.E.2d 1177 (Ill. 2004)).

       I find particularly persuasive the reasoning of the United States District

Court for the Middle District of Pennsylvania’s decision in GeoDecisions v.

Data Transfer Solutions, LLC, 2010 WL 5014514 (M.D.Pa. December 3,

2010).4    In that case, the district court applied Pennsylvania state law in

granting a motion for a preliminary injunction after upholding the validity of a

no-hire provision. The language of that agreement, in a contract between

competitors who teamed up for a project, was as follows: “For a period of two

(2) years from the date of this Agreement, neither party shall solicit for

employment or employ any person employed by the other party, or otherwise

encourage any person to terminate employment with such party.” Id. at *2.

The defendant opposed the motion for a preliminary injunction, inter alia, on

the basis that the plaintiff was unlikely to proceed on the merits because the

no-hire provision was invalid. Id. at *3.

       In considering the arguments, the court began by noting that

       [o]ther courts considering the issue have found that although such
       no-hire provisions do impact an employee’s ability to obtain future
       employment, they are not properly characterized as covenants not
       to compete or restrictive covenants between employer and
       employee. Rather, agreements containing such provisions are
       construed as contracts in restraint of trade.
____________________________________________


4 Although the decisions of the federal district courts are not binding on this
Court, we may “utilize the analysis in those cases to the extent we find them
persuasive.” Umbelina v. Adams, 34 A.3d 151, 159 n.2 (Pa.Super. 2011)
(citation omitted).

                                           -7-
J-E03007-18



Id. (citations omitted). The court then acknowledged that restraints on trade

are generally void as against public policy; however, such an agreement will

be deemed valid under Pennsylvania law if “(1) it is ancillary to the main

purpose of a lawful transaction; (2) it is necessary to protect a party’s

legitimate interest; (3) is supported by adequate consideration; and (4) it is

reasonably limited in both time and territory.” Id. at *4 (citing Volunteer

Firemen’s Ins. Servs., Inc. v. CIGNA Prop. & Cas. Ins. Agency, 693 A.2d

1330, 1337 (Pa.Super. 1997)).

      The court held that the no-hire provision was ancillary to a lawful

agreement, as “the purpose of the Agreement was not to restrict a

corporation’s ability to hire a competitor’s employees. Rather, the purpose of

the arrangement was to ensure a productive temporary cooperative

relationship.” Id. at *5. The court next determined that the restriction was

necessary to protect a legitimate interest, as “corporations have a legitimate

interest in ensuring that they are not treated as an involuntary and unpaid

employment agency for competitors to whom they have exposed themselves

and their personnel.” Id. (internal quotation marks omitted). Consideration

was present, in that “[b]oth parties promised that as they engaged in the

development of a mutually beneficial relationship they would bind themselves

by limiting the use of any information obtained in the course of the discussions

and by prohibiting the hiring of one another’s employees.” Id. at *6 (internal

quotation marks omitted). Finally, the court held that the two-year restriction

                                     -8-
J-E03007-18


was not overbroad despite its lack of geographical limitation, reasoning as

follows:

             The agreement is quite limited as to the parties here. The
      Agreement only prohibits the hiring individuals of one corporation.
      Neither party has put forward convincing evidence that the
      inability to hire the other’s employees has impaired its ability to
      fill open positions. . . . In addition, it cannot be said that the
      provision interferes with the right of the parties’ employees from
      seeking work, as they are only prohibited from being employed by
      one firm. . . . Where the parties are both sophisticated and in
      equal bargaining positions, where the provision is clear and
      mutually binding, and where the provision does not impose an
      overly broad restraint, the Court is unwilling to declare the
      provision unreasonable because one party determines ex ante
      that the bargain struck was not desirable.

Id. at *7 (citation omitted).

      The only relevant distinction I discern between the no-hire provision at

issue in GeoDecisions and that of the instant case is that the one in

GeoDecisions was mutually-applicable while the instant provision was not.

However, that difference does not warrant a different result. I would hold that

the restraint on trade presented in § 14.6 of the MCSC is a reasonable, and

thus valid and enforceable, restraint upon trade for the reasons discussed by

the court in GeoDecisions.

      I further disagree with the majority’s conclusion that the no-hire

provision violates public policy. Our Supreme Court has cautioned against

finding a contract violates public policy unless that violation is clear:

      [p]ublic policy is to be ascertained by reference to the laws and
      legal precedents and not from general considerations of supposed
      public interest. As the term “public policy” is vague, there must
      be found definite indications in the law of the sovereignty to justify

                                      -9-
J-E03007-18


      the invalidation of a contract as contrary to that policy . . . . Only
      dominant public policy would justify such action. In the absence
      of a plain indication of that policy through long governmental
      practice or statutory enactments, or of violations of obvious
      ethical or moral standards, the Court should not assume to declare
      contracts . . . contrary to public policy. The courts must be
      content to await legislative action.

Safe Auto Ins. Co. v. Oriental-Guillermo, 170 A.3d 1170, 1175 (Pa.Super.

2017) (citing Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)).

      The majority agrees with the trial court’s determination that the no-hire

provision violated public policy since it “prevented non-signatories, PLS

employees, from exploring alternate work opportunities in a similar business.”

Majority Opinion at 11.     However, as discussed above, BeeMac received

valuable consideration for its promise not to hire PLS employees, thereby

limiting its own pool of applicants from which it could hire.      Although this

agreement had an indirect effect on those PLS employees seeking

employment away from PLS, that effect, insofar as the MCSC is concerned,

prohibited those employees only from seeking employment with BeeMac and

its affiliates who deal with PLS. I discern no strong public policy against such

a limitation, and I suggest that the dearth of Pennsylvania statutory or case

law invalidating such an agreement supports the conclusion that it does not

violate “dominant public policy.” Id.

      We have long held that the purpose of injunctive relief is “to prevent

irreparable injury or gross injustice by preserving the status quo as it exists

or as it previously existed before the acts complained of in the complaint.


                                     - 10 -
J-E03007-18


Ambrogi v. Reber, 932 A.2d 969, 974 (Pa.Super. 2007) (citation omitted).

Here, PLS made a showing of irreparable harm caused by BeeMac allegedly

hiring its former employees, which PLS trained and developed. By denying

PLS’s petition for injunctive relief, the trial court effectively permitted BeeMac

to enjoy the benefit of its purported breach while the issue proceeded through

litigation. In the interim, BeeMac is free to leverage the specialized knowledge

that PLS’s former employees acquired while under its employment. Even if

PLS were to succeed on the merits following trial, BeeMac still gained a

competitive advantage. Such an outcome fails to maintain the status quo,

and falls far short of satisfying the spirit of fairness underlying the doctrine.

      Therefore, I respectfully dissent.

      Judge Mary Murray joins this dissenting opinion.




                                      - 11 -
