J-A09024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    HEALTHCARE VENTURES GROUP,                 :   IN THE SUPERIOR COURT OF
    LLC PHYSICIANS RX PHARMACY,                :        PENNSYLVANIA
    LLC ITS WHOLLY-OWNED                       :
    SUBSIDARY                                  :
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :   No. 1014 WDA 2017
                                               :
                                               :
    PREMIER PHARMACY, INC., D/B/A              :
    PREMIER PHARMACY SERVICES,                 :
    GOOD HEALTH, INC. D/B/A                    :
    PREMIER PHARMACY SERVICES,                 :
    JOEL YERTON AN INDIVIDUAL;                 :
    TODD WEBER, AN INDIVIDUAL                  :

                   Appeal from the Order Dated June 8, 2017
       In the Court of Common Pleas of Allegheny County Civil Division at
                           No(s): No. GD-16-023951

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY DUBOW, J.:                               FILED OCTOBER 18, 2018

        Appellants, Healthcare Ventures Group, LLC and Physicians RX

Pharmacy, LLC (hereinafter “HVG”),1 appeal from the Order entered June 8,

2017, in the Allegheny County Court of Common Pleas denying their Motion

for Preliminary Injunctive Relief.2 After careful review, we affirm.




____________________________________________


1   Physician’s RX Pharmacy is HVG’s wholly-owned subsidiary.

2   This is an interlocutory appeal as of right. See Pa.R.A.P. 311(a)(4).
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       The relevant facts and procedural history, as gleaned from the record

and the trial court’s Opinion, are as follows.       HVG is a pharmacy services

provider that specializes in Section 340B3 discount prescription drug programs

and provides prescription medications to patients infected with HIV/AIDS

and/or Hepatitis C.

       Appellee Joel A. Yerton was HVG’s Senior Vice President of Sales and

Client Services from August 2015 to August 2016.            On August 28, 2015,

Yerton signed an offer letter from HVG.          The letter specified that Yerton’s

employment was at-will and contained no restrictive covenants.            Yerton’s

responsibilities included acquiring Section 340B covered entities as clients and

overseeing all sales and client service personnel. On or around August 16,

2016, Yerton accepted an offer of employment from Appellee Premier

Pharmacy Services (“Premier”), an HVG competitor.

       HVG hired Appellee Todd Weber around February 1, 2016.4              Weber

reported directly to Yerton. Weber resigned from HVG on September 7, 2016

and, like Yerton, went to work for Premier.

       On December 20, 2016, HVG filed a Complaint and a Motion for a

Preliminary Injunction. HVG sought to: (1) immediately enjoin Weber from

____________________________________________


3 The Section 340B program refers to a section of the Internal Revenue Code
that relates to the program created by the federal government to provide
outpatient drugs to eligible health centers at reduced prices.

4Weber signed HVG’s non-solicitation/non-disclosure agreement on January
15, 2016, prior to the commencement of his employment. HVG did not
execute the agreement.

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soliciting any contacts of HVG’s until September 6, 2018; (2) order Appellees

to immediately disgorge any profits derived from misappropriation of HVG’s

confidential information and any profits derived from soliciting HVG’s contacts;

(3) terminate any contracts made between Appellees and HVG’s past or

present clients; (4) immediately and permanently enjoin Appellees from using

any   confidential     and   proprietary       information   belonging   to   HVG;   (5)

immediately enjoin Appellees from issuing false and disparaging statements

about HVG; and (6) award HVG interest, costs of suit, and reasonable

attorneys’ fees.5

       The trial court held a two-day hearing on HVG’s Motion for a Preliminary

Injunction. On June 8, 2017, the court denied the Motion, finding insufficient

evidence that Appellants’ harm could not be remedied by money damages.

The court also found that HVG failed to prove a likelihood to prevail on the

merits based upon the following unresolved factual issues: (1) whether acting

management decided not to implement or enforce Weber’s non-solicitation

agreement;       (2)    whether      Weber’s      non-solicitation   agreement       was

unenforceable because Appellees’ consideration for the agreement materially

changed; and (3) whether Yerton or Webster took or used any confidential

information. See Order, 6/8/17, at 1-2 (unpaginated).

____________________________________________


5 Appellees filed Preliminary Objections to the Complaint and HVG filed a
Motion to Amend the Complaint. Following a hearing, the court overruled
Appellees’ Preliminary Objections and permitted HVG to file an Amended
Complaint.


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     HVG timely appealed.       Both HVG and the trial court complied with

Pa.R.A.P. 1925.

     HVG raises the following nine issues:

     I. Did the trial court err by determining that [HVG’s] harm could
     be remedied through money damages given that the bulk of
     record testimony revealed that [HVG’s] harm was in the form of
     losing several long-term business opportunities and market
     advantage, which is irreversible, and can only be estimated
     through conjecture without accurate standards[?]

     II. Did the trial court err by failing to preliminarily enjoin Appellees
     upon a finding that Appellants were unlikely to prevail on the
     merits of claims associated with the enforceability of Appellee,
     Todd Weber’s Employee Non-Solicitation and Non-Disclosure
     Agreement (the “Agreement”) based on the trial court’s
     determination that there may have been a “material change” in
     compensation for Todd Weber (“Weber”) notwithstanding the
     existence of record evidence─which at the time of the Appealed
     Order remained uncontested despite Appellees having been
     ordered to produce any contradicting evidence─that Weber was in
     fact paid all compensation due to him prior to his resignation, and
     further despite record evidence that Appellee, Joel Yerton, and
     then-acting Chief Financial Officer, Lisanna Stotts (“Stotts”),
     signed off on and approved final compensation and incentive pay
     to Weber prior to his resignation?

     III. Did the trial court err by finding a potential “material change”
     in Weber’s compensation to erode the enforceability of the
     Agreement even though the record evidence proved that Weber
     resigned on September 7, 2016, and was only entitled to a “Q3
     bridge incentive payable on October 15, 2016” if Weber was, “an
     active Company employee meeting all eligibility requirements on
     the payment date of any applicable incentive payment[?]”

     IV. Did the trial court err in failing to preliminarily enjoin Appellees
     upon deciding that Appellants were unlikely to prevail on the
     merits of claims associated with the enforceability of Weber’s
     Agreement notwithstanding the facts that (i) the Agreement was
     signed by Weber, the party against whom the covenants would be
     enforced; (ii) Weber understood the terms of the Agreement,
     intended to sign the Agreement, did in fact sign the Agreement,


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     and expected to be bound by the covenants in the Agreement;
     (iii) after Weber’s resignation, the Agreement signed by Weber
     was located by [HVG’s] executive assistant, Chris Wakefield[,]
     who found it in [HVG’s] network drive, along with Weber’s other
     personnel information, having been stored there by Stotts; (iv)
     according to Appellee, Joel Yerton, the purported time in which
     “management,” i.e., Stotts, elected not to enforce the Agreement
     was in May, June or July of 2016, more than four (4) months after
     Weber admitted he signed the Agreement?

     V. Did the trial court err in determining that [HVG’s] “acting
     management” decided not to implement Weber’s Agreement
     despite the fact that the only testimony related to an alleged
     decision not to implement the Agreement was that an alleged
     discussion among Appellee Yerton and Stotts occurred more than
     four (4) months after Weber signed the Agreement[?]

     VI. Did the trial court err in relying on alleged “management
     turmoil,” as a basis to erode the enforceability of the Agreement?

     VII. Did the trial court err in deciding that the enforceability of the
     Agreement was eroded by an alleged decision not to enforce or
     implement and/or “management turmoil” despite the plain
     language of the Agreement at Paragraphs 21 and 23, which
     explicitly and respectively provide:

        21. No delay or omission by the Company in exercising any
        right under this Agreement will operate as a waiver of that
        or any other right. A waiver or consent given by the
        Company on any one occasion is effective only in that
        instance and will not be construed as a bar to or waiver of
        any right on any other occasion.

        23. This Agreement may not be modified, changed or
        discharged in whole or in part, except by an agreement in
        writing signed by the Employee and the Company.

     VIII. Did the trial court err in deciding that [HVG’s] “acting
     management” had the authority not to enforce or not to
     implement Weber’s Agreement without inquiry into: (a) Delaware
     law as it pertains to delegation of management authority in limited
     liability companies; (b) [HVG’s] Operating Agreement; and (c)
     despite testimony indicating that no such authority had been
     delegated to Appellee Yerton, nor had it been delegated to
     then─acting Chief Financial Officer, Lisanna Stotts?


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      IX. Did the trial court err in failing to preliminarily enjoin Appellees
      upon a finding that “substantial factual questions persist[ed]” as
      to whether Appellees, Yerton and Weber, took [HVG’s] confidential
      information despite record evidence that: (a) Appellees used and
      accessed [HVG’s] confidential information in order to prepare a
      competitive “Project Plan” while still employed by [HVG]; (b)
      Appellees downloaded [HVG’s] proprietary pharmacy reports with
      specific customers that were not shared with those customers
      (which contained, e.g., formulae, data and calculations for
      proprietary dispensing fees and administrative fees for pharmacy
      services) onto their personal “downloads” section of their
      computers even though all such reports were fully accessible on
      [HVG’s] company drive, and despite testimony that Appellees
      would not have to download such reports to carry out any of their
      job duties; and (c) had regular access to [HVG’s] pharmacy
      services agreements, sublease agreements, and plans for on-site
      pharmacy build-outs for specific customers, including: AIDS
      Connecticut, Inc. (“ACT”), Middletown Community Health Center,
      and Lifelong AIDS Alliance of Seattle, and record evidence
      revealed that within weeks of resigning from [HVG’s]
      employment, Appellees Weber and Yerton sent a PSA to ACT on
      behalf of Appellee-Premier, that was virtually identical to the one
      used by them while employed by [HVG]?

HVG’s Brief at 5-10 (footnotes omitted).

      In the Argument section of its Brief, however, HVG presented only the

following three issues:

      I. [HVG’s] harm-namely, the irreversible loss of three specific
      long-term business relationship constitutes irreparable harm,
      which can only be estimated through conjecture without accurate
      standards.

      II. Appellees used [HVG’s] confidential and proprietary
      information to improperly compete with [HVG], both while still
      employed with [HVG] and after.

      III. The court misapplied the law in several respects as it pertains
      to Todd Weber’s non-solicitation agreement.

Appellants’ Brief at 32, 47, 51.


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      Pa.R.A.P. 2119(a) requires, inter alia, that “[t]he argument shall be

divided into as many parts as there are questions to be argued . . . followed

by such discussion and citation of authorities as are deemed pertinent.”

Pa.R.A.P. 2119(a). “The Rules of Appellate Procedure state unequivocally that

each question an appellant raises is to be supported by discussion and analysis

of pertinent authority. Failure to do so constitutes waiver of the claim.” Giant

Food Stores, LLC v. THF Silver Spring Dev., L.P., 959 A.2d 438, 444 (Pa.

Super. 2008) (citations omitted); Pa.R.A.P. 2119(a) and (b). Where defects

in a brief “impede our ability to conduct meaningful appellate review, we may

dismiss   the   appeal   entirely   or   find   certain   issues   to   be   waived.”

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (citations

omitted); Pa.R.A.P. 2101

      Here, HVG’s failure to adhere to the strictures of Rule 2119(a) has

hampered significantly this Court’s ability to conduct meaningful appellate

review of the issues HVG purports to raise. While the three Argument section

headings may incorporate the lengthy, convoluted issues set forth in HVG’s

Statement of Questions Involved, HVG has failed to cogently set forth its

argument in support of the issues raised therein and “[t]his Court will not

develop arguments on . . . behalf of an appellant[.]” Keller v. Mey, 67 A.3d

1, 7 (Pa. Super. 2013). Moreover, our review of HVG’s Brief reveals that HVG

focused almost exclusively on rearguing its version of the facts that ultimately

pertain to the merits of this case, without addressing—beyond conclusory

statements—how the trial court erred in denying its Motion for a Preliminary

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Injunction.   Notwithstanding these briefing deficiencies, we will proceed to

consider whether the trial court ruled appropriately because it addressed the

basis for denying HVG’s Motion in its Rule 1925(a) Opinion.

      The following principles guide our review of an order denying injunctive

relief: “The standard of review applicable to preliminary injunction matters ...

is highly deferential. This highly deferential standard of review states that in

reviewing the grant or denial of a preliminary injunction, an appellate court is

directed to examine the record to determine if there were any apparently

reasonable grounds for the action of the court below.” Duquesne Light Co.

v. Longue Vue Club, 63 A.3d 270, 275 (Pa. Super. 2013) (citation and

internal quotation marks omitted).

      A party must establish the following six “essential prerequisites” to

obtain injunctive relief:

      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 it 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


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      6. that a preliminary injunction will not adversely affect the public
         interest.

Warehime v. Warehime, 860 A.2d 41, 46–47 (Pa. 2004). A trial court has

apparently reasonable grounds for its denial of injunctive relief where it finds

that the petitioner has not satisfied any one of the “essential prerequisites.”

Id. at 46.

      “We will interfere with the trial court's decisions regarding a preliminary

injunction only if there exist no grounds in the record to support the decree,

or the rule of law relied upon was palpably erroneous or misapplied. It must

be stressed that our review of a decision regarding a preliminary injunction

does not reach the merits of the controversy.” Santoro v. Morse, 781 A.2d

1220, 1225 (Pa. Super. 2001).

      In the first issue HVG raised in its Statement of Questions Involved, HVG

claims that the court erred in concluding that money damages could remedy

its harm, which rendered injunctive relief unnecessary. HVG posits that its

damages “can only be estimated through conjecture without accurate

standards.” HVG’s Brief at 5.

      Contrary to HVG’s claim, at the hearing on the Motion for a Preliminary

Injunction, HVG’s Chief Executive Officer, Jacob Sacks, testified on cross-

examination that he could, in fact, calculate the amount of money HVG lost

as a consequence of Appellees’ alleged conduct. In particular, Sacks testified,

in relevant part, as follows:

      Q: [D]o you know how much money that you are saying you lost?
      You can calculate that figure, can’t you?


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                                       ***

      Q: You can calculate that amount?

      A: You are saying I would be able to calculate?

      Q: Yes.

      A: Generally speaking, if I sat down and worked it out, I would be
      able to, based on my knowledge in the industry and clients, yeah.

      Q: You would be able to come up with a figure of what you would
      call your damages, right?

      A: I would guess so, yes.

N.T., 3/9/17, at 61.

      In its Rule 1925(a) Opinion, the trial court highlighted this testimony

and specifically opined that “to the extent that [HVG] suffered any harm, it is

not irreparable. The CEO of the company testified to his ability to calculate

money damages.” Trial Ct. Op., 10/18/17, at 9 (unpaginated).

      We agree with the trial court that Sacks’s testimony provided grounds

to support its conclusion that HVG failed to establish the first of the “essential

prerequisites” for obtaining a preliminary injunction, i.e., that HVG’s harm

could not be adequately compensated by money damages. Thus, the trial

court did not err in denying HVG’s Motion for a Preliminary Injunction.

      In light of this disposition, we need not address HVG’s remaining issues.

      Order affirmed.

      Judge Murray joins the memorandum.

      Judge Bowes concurs in result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2018




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