                             [J-40-2015] [MO: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


DAVID M. SOCKO,                               No. 142 MAP 2014

                     Appellee                 Appeal from the Order of the Superior
                                              Court at No. 1223 MDA 2013, dated May
                                              13, 2014, reconsideration denied July 8,
              v.                              2014, Affirming the Order of the Court of
                                              Common Pleas of York County dated
                                              October 15, 2012 at No. 2012-SU-001608-
MID-ATLANTIC SYSTEMS OF CPA, INC.,            44

                     Appellant                ARGUED: May 6, 2015


                                  DISSENTING OPINION


MR. JUSTICE EAKIN                                      DECIDED: November 18, 2015
       The Majority concludes the Uniform Written Obligations Act (UWOA) serves as a

substitute for consideration, but finds the UWOA inapplicable to an employment

agreement containing a restrictive covenant not to compete. Because I disagree with

both points, I respectfully dissent.

       The Majority likens the UWOA’s “legally bound” language to a seal, which

imports consideration into an agreement. See Majority Slip Op., at 17-18. However,

contracts under seal have their origin in the common law, which evolves through case

law.   See Flagiello v. Pa. Hosp., 208 A.2d 193, 206 (Pa. 1965) (stating when rule

offends against reason, courts not only possess inherent authority to repudiate rule, but

are required to do so). In contrast, the “legally bound” language is a creature of statute,

which may not be rewritten by the courts. See 1 Pa.C.S. § 1921(b) (“When the words of

a statute are clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.”). The UWOA’s plain language states a written
promise “shall not be invalid or unenforceable for lack of consideration” if the document

contains an expression of the signer’s intent to be legally bound. 33 P.S. § 6. In other

words, a written promise lacking consideration is valid and enforceable if the signer

includes the requisite language; the Act does not say “a written promise shall be

deemed to be supported by consideration” if the requisite language is there.        See

McGuire v. Schneider, Inc., 534 A.2d 115, 118 (Pa. Super. 1987) (holding under

UWOA, statement of intent to be legally bound removes lack of consideration as ground

for avoiding contract). Furthermore, the UWOA contains no language exempting certain

types of agreements from it, such as employment agreements containing covenants not

to compete. Accordingly, as the UWOA’s language is clear and unambiguous, it is thus

applicable to the agreement Socko signed.

      I would hold the UWOA does not disturb the long-standing requirement for

valuable consideration when an employee enters into an employment agreement

containing a non-competition provision after the commencement of employment,1 see

Pulse Technologies, Inc. v. Notaro, 67 A.3d 778, 781-82 (Pa. 2013); rather, the Act


1  Tangentially, I question the notion that continued employment is not valuable
consideration. See George W. Kistler, Inc. v. O’Brien, 347 A.2d 311, 316 (Pa. 1975)
(plurality) (“[W]e have stated that continuation of the employment relationship at the
time the written contract was signed was not sufficient consideration for the covenant
despite the fact that the employment relationship was terminable at the will of either
party.”) (citing Maint. Specialties, Inc. v. Gottus, 314 A.2d 279, 282-83 (Pa. 1974)
(Jones, C.J., concurring)). It seems, in an “at-will employment” jurisdiction, the
assurance of not losing one’s job provides the proverbial “peppercorn” of consideration
required for a valid contract. See Chappell & Co., Ltd. v. Nestle Co., Ltd., [1960] AC 87
(“A peppercorn does not cease to be good consideration if it is established that the
promisee does not like pepper and will throw away the corn.”).




                             [J-40-2015] [MO: Todd, J.] - 2
simply prevents a signer who expresses the intent to be legally bound from later

challenging the agreement for lack of consideration; the signer forfeits his right to this

remedy. Accordingly, I would hold Socko, by signing the agreement containing the

restrictive covenant and the express provision that he intended to be legally bound,

forfeited his right to later challenge the agreement on the basis of lack of consideration,

based on the UWOA’s clear language. Whether or not Socko’s continued employment

was valuable consideration, he was precluded from arguing there was no consideration.

Therefore, I dissent.




                              [J-40-2015] [MO: Todd, J.] - 3
