J-A25038-17


                                     2018 PA Super 315

    AMQUIP CRANE RENTAL,                LLC    AND             IN THE SUPERIOR COURT
    MAXIM CRANE WORKS, L.P.                                       OF PENNSYLVANIA

                                 Appellees

                           v.

    CRANE & RIG SERVICES, LLC; A CRANE
    RENTAL, LLC; HARVEY RAY GRAHAM;
    KRISTIAN B. BRUU; ROBBIN O. RAINEY;
    AND THOMAS NEWELL

                                 Appellants                      No. 871 EDA 2017


                  Appeal from the Order Entered February 10, 2017
                   In the Court of Common Pleas of Bucks County
                           Civil Division at No: 2016-06632

BEFORE: OTT, J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.:                                    FILED NOVEMBER 27, 2018

         Appellants Harvey Ray Graham, Kristian B. Bruu, Robbin O. Rainey, and

Thomas Newell (collectively “the Individuals”), along with Appellants Crane &

Rig Services, LLC (“C&R”) and A Crane Rental, LLC (“ACrane”), appeal from a

preliminary injunction prohibiting the Individuals from (1) working in the crane

rental industry in limited geographic areas, (2) soliciting customers of

Appellees Amquip Crane Rental, LLC (“AmQuip”) and Maxim Crane Works, L.P.

(“Maxim”), and (3) using AmQuip’s confidential information.                    AmQuip

employed the Individuals prior to their respective separations from that



*
    Former Justice specially assigned to the Superior Court.
A-25038-17

employment. The Individuals joined a rival crane rental company, ACrane,

until they were terminated concurrent with the entry of the preliminary

injunction. In this appeal, the Individuals challenge the preliminary injunction

on the grounds that (1) Newell did not breach his duty of loyalty to AmQuip;

(2) the trial court made erroneous factual rulings; and (3) the court abused

its discretion in enforcing noncompetition covenants that Graham, Bruu and

Rainey entered into with AmQuip. We affirm.1

      Appellees AmQuip and Maxim were acquired by a third party in July

2016 and are in the process of a formal operational merger.     Together, they

represent one of the largest crane companies in the world. AmQuip-Maxim2

is a global crane rental company with approximately $700 million in annual

revenue. It operates forty to fifty branch locations; employs more than 2,500

individuals; serves over 6,600 customers; has a fleet of over 1,200 cranes;

and boasts the largest production crane in the world, which can lift

approximately 3,100 tons. AmQuip is valued at roughly $1.4 billion.    AmQuip




1 Although C&R and ACrane have joined in this appeal, the trial court entered
the preliminary injunction against the Individuals, not against either LLC.
Accordingly, we affirm against C&R and ACrane on the ground that they lack
standing to appeal. See Pa.R.A.P. 501 (only aggrieved parties may appeal);
In Re McCune, 705 A.2d 861, 864 (Pa. Super. 1997) (to be “aggrieved party”
entitled to appeal, party’s interest in litigation must be adversely affected in
manner which is both direct and immediate).

2 For the sake of brevity, unless context requires greater specificity, we will
refer to these entities together as “Amquip.”


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and Maxim maintain principal places of business in Trevose, Pennsylvania and

Bridgeville, Pennsylvania, respectively.

      In contrast, ACrane is a startup crane rental company with only 45

cranes. C&R is a crane financing company. Both companies are owned in

equal shares by Christopher Anderson and William McCabe.

      The Individuals, who range in age from their mid-fifties to mid-

seventies, joined AmQuip between 2008 and 2013 and worked at AmQuip’s

Atlanta branch office. Graham was the branch manager of the Atlanta office,

and Bruu, Rainey and Newell were salesmen. As a condition of employment,

Graham, Bruu, and Rainey each signed noncompetition, nonsolicitation and

confidentiality covenants with AmQuip. These covenants prohibited Graham,

Bruu, and Rainey from competing with AmQuip and soliciting AmQuip

customers or employees for two years after their employment with AmQuip.

Newell did not sign any noncompetion, nonsolicitation or confidentiality

covenants.    All four Individuals, however, signed an AmQuip Employee

Handbook that set forth a company confidentiality policy.

      AmQuip’s Atlanta branch was successful during the Individuals’ tenure,

and Newell, Bruu, and Rainey were outstanding salesmen.         During the

injunction hearing, there was ample evidence that AmQuip’s resources and

processes enabled the Individuals’ to obtain new customers and increase

revenue from customer relationships they had prior to joining AmQuip. Newell

admitted that he gained new customers while at AmQuip through use of



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AmQuip’s resources. N.T., 1/25/17, at 45. AmQuip acquired two of its largest

customers, Ansco and SAC Wireless, after Newell joined AmQuip in 2008; they

did not come with him to AmQuip. Likewise, Rainey testified that “it was a

good many customers that [he] began selling to for the first time after [he]

began [his] employment with AmQuip[.]” N.T., 1/26/17, at 6-7.

     The Individuals had access to confidential Amquip information, such as

customer lists, customer order histories, vendor lists, pricing formulas, and

branch financial information.   Graham testified that he had access to the

following information classified as confidential in AmQuip’s Code of Business

Conduct and Ethics: customer lists, customer usage histories, customer

requirements, customer contact information, confidential pricing information,

price quotations and bids made to specific customers and the customers’

responses to those quotations and bids, pricing strategies, pricing and

discount information unique to specific customers, information concerning the

prospective crane rental needs of specific customers, business leads,

confidential contractual rental terms, marketing strategies, business plans,

information concerning equipment availability and allocation, information

concerning employee compensation and incentives, financial information, and

cost information.   N.T., 1/24/17, at 66-67, Reproduced Record (“R.R.”) at

191a. Graham admitted that AmQuip considered this information confidential

and would not provide this information to competitors. N.T., 1/24/17, at 67.

He also conceded that he “had a pricing formula for the [AmQuip] office” that



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he did not share with anybody outside of AmQuip while he was employed

there.     Id. at 68.   AmQuip’s corporate office developed these pricing

strategies, N.T., 1/26/17, at 94 and provided Graham with a customized

dashboard that allowed Graham to access a range of customer and financial

information for the AmQuip Atlanta branch, all of which Graham factored into

his pricing formula. N.T., 1/27/17, at 5, “R.R.” at 374a; N.T., 1/24/17, at 67-

68.      Graham used AmQuip customer information, supplier information,

marketing plans and strategies, and “[c]orporate, financial and strategic

information” on a daily or weekly basis. N.T., 1/24/17, at 165. Graham also

admitted to having access to AmQuip’s utilization reports, financials, and all

of its client contracts for the Atlanta office.   N.T., 1/24/17, at 165; N.T.,

1/25/17, at 18.

      Likewise, Newell had access to AmQuip’s customer information,

including their names and contact information from billing records, rental

history, and pricing history. N.T., 1/25/17, at 45-47. He also had access to

AmQuip’s pricing information and bids. Id. at 46. Newell admitted that he

had information regarding the prospective crane rental needs of particular

customers and would not divulge such information to competitors. Id. at 46-

47. He also acknowledged that AmQuip’s pricing information “we talked about

in our AmQuip Atlanta office was confidential.” Id. at 50, 52. Bruu testified

that he could access a wide variety of AmQuip’s confidential information on its

AS400 computer systems such as customer names, customer contact



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information,   customer   requirements,   billing   information,   and   product

information.

      In July 2016, AmQuip and Maxim were both acquired by a third party.

Subsequently, they have been merging into one operational entity. On August

11, 2016, Graham left AmQuip. The parties disagreed as to whether AmQuip

terminated Graham or whether he resigned, but the trial court found that he

resigned because he intended to join ACrane.

      In August 2016, Graham met with Anderson and McCabe to discuss

forming ACrane, a new crane rental company, in Atlanta. To set up ACrane,

Anderson needed Graham’s input on crane rental pricing to evaluate the

feasibility of opening a new crane rental company in the Atlanta marketplace,

and Graham admitted providing this information to Anderson. On Sunday,

August 14, 2016, Anderson sent an email to McCabe with an attachment

forecasting ACrane’s opening in September 2016. In the body of the email,

Anderson stated that he needed Graham’s help in utilization, labor rates,

billing rates, fuel cost and permit costs. Graham testified that he provided

Anderson labor and billing rates. The email’s attachment contained a forecast

for branch profit and listed Graham and other persons as employees of the

new company’s Atlanta branch.      On August 16, 2016, Graham met with

Anderson and McCabe in Pittsburgh to make further plans for ACrane’s Atlanta

Office.




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A-25038-17

     Bruu, Rainey and Newell, while still employed by AmQuip, assisted

Graham in setting up the new business. On August 23, 2016, Newell emailed,

from his AmQuip email address to his home email address, a quote template

that AmQuip used. From his home, Newell forwarded the quote template to

Judy Burns, AmQuip’s then-billing manager and ACrane’s future billing

manager, who then emailed it to Bruu. ACrane used a quote form with its

own name and logo on the top but with AmQuip locations, including its Trevose

headquarters location, on the bottom.

     In an email to Anderson and McCabe on Friday, September 2, 2016,

Graham discussed recruitment of AmQuip employees and diversion of AmQuip

customers and discussed how the other Individuals would either provide or

need pickup trucks. More specifically, Graham discussed diverting AmQuip’s

largest customers to ACrane, particularly Service Electric, a significant

customer of AmQuip’s, having recently generated about $250,000 in revenue

for AmQuip’s Atlanta Branch Office with Newell overseeing the account.

Graham also stated that ACrane needed to conduct contract reviews for

Georgia Power and Pike Electric, customers who had recently paid an

aggregate of $514,000 to AmQuip and were two of Rainey’s major accounts.

Graham revealed the Individuals’ intention to hire all employees of AmQuip’s

Atlanta Branch Office and thus take over this office’s customer base.

     At Graham’s invitation, Newell, Bruu and Rainey met McCabe and

Graham at a restaurant in suburban Atlanta to discuss employment at ACrane.



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On September 28, 2016, C&R sent an e-mail to Newell, Bruu and Rainey

attaching new hire paperwork, including direct deposit forms. Within the next

two days, Newell and Bruu completed this paperwork.

     Prior to leaving AmQuip, the Individuals began diverting AmQuip

customers to ACrane. Newell admitted that, while still employed by AmQuip,

he told AmQuip’s customers, including its largest Atlanta customer, Ansco,

that a new crane rental company would be opening, and he offered to assist

them in transferring their business to the new company. In September 2016,

while still employed at AmQuip, Newell made arrangements for a contact he

had at Ansco to introduce him to Lindsay Triplett, Ansco’s vendor manager.

On September 30, 2016, Newell forwarded Triplett an email from Graham

attaching a Certificate of Insurance form and a W-9 form for ACrane,

documents that a crane rental company needs to do business with a customer.

Newell concluded his email by requesting Triplett to send the completed forms

to him so that ACrane could begin servicing Ansco the following Monday.

     On Friday, September 30, 2016, Newell sent an email to Graham, Bruu,

Rainey, Burns, and Shannon Graham with the subject, “[p]roof read this & let

me know bf I send this to everyone.” N.T., 1/25/17, at 96-100. The email

stated:

     Due to the merger of Amquip Crane Service & Maxim Crane I do
     not believe the service you have been accustomed to can be
     sustained {Maxim will be in charge of dispatch}. Effectively
     immediately I will be resigning from Amquip & joining with a new
     crane company along with all my colleagues & most of the
     operators you have become accustomed to working with. With


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A-25038-17


     that being said I know there will be some transition difficulties &
     I assure you we will do this as fast & accurately as possible.

     The name of the company is A Crane & We have at this time 10
     cranes in town & many more coming this way. I do feel like this
     is the only way we can maintain the service we want to provide &
     you want to receive—I do appreciate the work you have in trusted
     to us over these many years & hope you will continue to allow us
     to do the same. We will do everything possible

     ALL our telephone #’s will remain the same but we will have new
     Email addresses. {Effectively today any correspondence via email
     needs to come to our new emails}

R.R. at 76a. Bruu and Rainey, who were still working for AmQuip at that time,

both responded: “Sounds good to me.” N.T., 1/25/17, at 101.

     On Sunday, October 2, 2016, Newell gave notice of his intent to resign

the next day. On October 3, 2016, Newell wrapped up his affairs at AmQuip

and deleted all business information from his AmQuip-issued computer. He

then began sending AmQuip customers a modified version of the email that

the other Individuals had approved. It stated:

     Effective 10/2/16 I will no longer be working with Amquip crane
     service - Maxim Crane will be handling the day to day operation
     of the crane service & Under these circumstances I do not feel you
     will be able to receive the same quality of service that you have
     been receiving & we are used to providing.

     We are in the process of making sure ALL your crane & rigging
     service will be handled to your complete satisfaction. Effective
     IMMEDIATELY any email’s should come to this new address
     tomwnewell@outlook.com My tele.# is the same 770-653-3304.

R.R. 106a.




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A-25038-17

      In just three months of operation during 2016, ACrane generated over

$2,000,000 in sales in Atlanta and was projected to generate $10,000,000 in

sales in its first year of operation.

      On October 26, 2016, AmQuip filed an action against the Individuals

alleging breach of contract, tortious interference with business relations,

breach of common law duty of loyalty and civil conspiracy. Several weeks

later, AmQuip filed a motion for preliminary injunction seeking to enjoin the

Individuals from using confidential AmQuip business information and working

for a competing crane rental company. The trial court held a four-day hearing

on the injunction motion. In an opinion and order entered on February 10,

2017, the court entered the following preliminary injunction against the

Individuals:

      a. [The Individuals] are hereby enjoined from engaging directly or
      indirectly in the crane rental business within the geographic
      territory serviced by the Atlanta, Georgia; Birmingham, Alabama;
      Mobile, Alabama; and Memphis, Tennessee branch offices of
      Amquip and/or Maxim Crane Works, L.P.;

      b. [The Individuals] are hereby enjoined from directly or indirectly
      soliciting, causing any person to solicit, or assisting in (sic) any
      other person in soliciting the employment of any person who is at
      the time of the solicitation, or who was within thirty (30) days of
      such solicitation, an officer or employee of AmQuip’s;

      c. [The Individuals] are hereby enjoined from directly or indirectly
      soliciting, causing any other person to solicit, or assisting any
      other person with soliciting any customer or client of Amquip’s to
      become a customer or client of any other company which directly
      or indirectly competes with Amquip;




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A-25038-17


     d. [The Individuals] are hereby enjoined from utilizing, for any
     purpose, any confidential or proprietary business information of
     Amquip’s or Maxim’s; and

     e. The injunction granted herein is effective immediately and shall
     remain in effect until further Order of Court.

     f. Plaintiffs are directed to post of (sic) bond in the amount of
     $50,000[.00] within ten (10) days of the date of this Order.

Order, 2/10/17.

     The Individuals filed a timely appeal to this Court and filed a timely

statement of matters complained of on appeal. On May 9, 2017, the trial court

issued a Pa.R.A.P. 1925 opinion that relied in part on its February 10, 2017

opinion and added supplemental analysis.

     Appellants raise four issues in this appeal:

     1. Whether the trial court’s entry of a preliminary injunction as to
     [Newell] was proper, when Newell had no effective restrictive
     covenant and had no duty of loyalty to his prior employer that
     could be protected to prevent any resultant irreparable harm?

     2. Whether the trial court was confronted with and fairly
     considered evidence sufficient to support the entry of a
     preliminary injunction as to Graham, Bruu, Rainey and Newell?

     3. Whether the trial court properly entered a preliminary
     injunction against Graham, Bruu, Rainey, and Newell, despite
     decades of Pennsylvania case law suggesting that those parties
     engaged in no conduct justifying such entry?

     4. Whether the trial court properly balanced the hardships of the
     parties in such a manner as to meaningfully consider the rights
     offended by the entry of a preliminary injunction?




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A-25038-17

Appellants’ Brief at 4. Preliminarily, the trial court held that Pennsylvania law

governs all substantive issues between the parties.         Because none of the

parties disputes this ruling, we will apply Pennsylvania law to this appeal.

      To obtain a preliminary injunction, the moving party must prove six

elements:

      1) the injunction is necessary to prevent immediate and
      irreparable harm that cannot be adequately compensated by
      damages; 2) greater injury would result from refusing an
      injunction than from granting it, and, concomitantly, issuance of
      an injunction will not substantially harm other interested parties
      in the proceedings; 3) a preliminary injunction will properly
      restore the parties to their status as it existed immediately prior
      to the alleged wrongful conduct; 4) 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, [it] must show that it is likely to
      prevail on the merits; 5) 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.

Hendricks v. Hendricks, 175 A.3d 323, 330 (Pa. Super. 2017). In reviewing

preliminary injunction orders, this Court must “conduct a searching inquiry of

the record. Accordingly, . . . the scope of review in preliminary injunction

matters is plenary.”   Warehime v. Warehime, 860 A.2d 41, 46 n.7 (Pa.

2004).   Our standard of review is “highly deferential.”        Summit Towne

Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa.

2003).   Under this standard, “[we do] not inquire into the merits of the

controversy, but rather examine[] only the record to ascertain whether any

apparently reasonable grounds existed for the action of the court below. We

may reverse if the trial court’s ruling amounted to an abuse of discretion or a



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misapplication of law.”   Morgan Trailer Mft. Co. v. Hydraroll, Ltd., 759

A.2d 926, 932 (Pa. Super. 2000) (quotation omitted).

                                       I.

      In their first argument, the Individuals assail the entry of a preliminary

injunction against Newell, the only Individual who did not enter into a written

covenant not to compete with AmQuip. We hold that Newell breached his

common law duty of loyalty to AmQuip by diverting AmQuip’s customers to

ACrane while still employed by AmQuip and inducing the other Individuals to

breach the covenants not to compete that they entered into with AmQuip.

Moreover, the trial court properly enjoined Newell from utilizing AmQuip’s

confidential information. We address each of these rulings seriatim.

      Newell’s diversion of customers.      While still employed with AmQuip,

Newell told AmQuip’s customers that a new crane rental company would be

opening, offered to assist them in transferring their business to the new

company, and emailed Ansco, AmQuip’s largest customer, about setting up

the new company as a vendor. Ansco became a customer of ACrane.

      Although Newell never formally entered into a covenant not to compete

with AmQuip, his conduct still constituted a breach of his common law duty of

loyalty. This Court has written:

      “There can be no doubt that an agent owes a duty of loyalty to his
      principal, and in all matters affecting the subject of his agency, he
      must act with the utmost good faith in the furtherance and
      advancement of the interests of his principal.” Sylvester v.
      Beck, [] 178 A.2d 755, 757 ([Pa.] 1962). See also: 1 P.L.E.
      Agency § 32. Every agent “is subject to a duty not to act or to


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A-25038-17


      agree to act during the period of his agency for persons whose
      interests conflict with those of the principal in matters in which
      the agent is employed.” Restatement (Second) of Agency § 394.
      He is “subject to a duty to his principal to act solely for the benefit
      of the principal in all matters connected with his agency.”
      Restatement (Second) of Agency § 387. No man can serve two
      masters. Onorato v. Wissahickon Park, Inc., [] 244 A.2d 22,
      25 ([Pa.] 1968), citing Matthew 6:24. An agent is a fiduciary with
      respect to matters within the scope of his agency and is required
      to act solely for the benefit of his principal in all matters concerned
      with the agency. Onorato v. Wissahickon Park, Inc., supra [],
      244 A.2d at 26; 1 P.L.E. Agency § 32.

SHV Coal, Inc. v. Continental Grain Co., 545 A.2d 917, 920-21 (Pa. 1988),

reversed on other grounds, 587 A.2d 702 (Pa. 1991); see also Restatement

(Second) of Agency, § 393, comment (e) (“After the termination of his agency,

in the absence of a restrictive agreement, the agent can properly compete

with his principal as to matters for which he has been employed. . . . He is

not, however, entitled to solicit customers for such rival business before the

end of his employment”).

      In SHV Coal, while employed by SHV, an employee set out to divert

business, which he was being paid to acquire for SHV, to a competitor with

whom he had agreed to accept employment.               He did this without any

knowledge or consent by SHV, who was not even aware that he was

contemplating other employment. We held that this was “a clear violation of

[the employee’s] duty of loyalty.” Id., 545 A.2d at 921. Similarly, without

AmQuip’s knowledge or consent, and before leaving AmQuip, Newell induced

AmQuip’s customers to move their business to ACrane, a clear violation of his

duty of loyalty.


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      Appellants rely erroneously on PTSI, Inc. v. Haley, 71 A.3d 304 (Pa.

Super. 2013), for the proposition that Newell did not violate his duty of loyalty.

In PTSI, two trainers who worked at a sports training facility (PTSI) decided

to form their own training facility. The employees were at-will and not subject

to any noncompetition, nondisclosure, or nonsolicitation agreements. They

resigned from PTSI, leased space for their own facility, and informed PTSI

clients that they were starting their own business. Soon thereafter, clients of

PTSI began training at the new facility. PTSI filed an action against the former

employees alleging breach of their duty of loyalty to PTSI.       The trial court

entered summary judgment against PTSI, and this Court affirmed. We upheld

the trial court’s conclusion that the trainers did not contact PTSI clients before

they left PTSI. We continued:

      Even if Haley and Piroli did contact PTSI’s clients while still
      employed by PTSI, PTSI presents no evidence that Haley and Piroli
      did so improperly. For example, text messages attached to PTSI’s
      motion for summary judgment demonstrate that Piroli was
      circumspect and cautious in dealing with clients just days before
      resigning from PTSI.

Id. at 310.    By observing that the trainers only sent “circumspect and

cautious” text messages to the employer’s customers prior to their departure,

we implied that the trainers would have violated the duty of loyalty had they

made pre-departure attempts to divert customers to their new company. That

is what Newell did in this case, and that is the crucial distinction between this

case and PTSI.




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      Appellants’ reliance on Socko v. Mid-Atlantic Systems, 126 A.3d

1266 (Pa. 2015), is also misplaced.            Socko held that an employment

agreement containing a covenant not to compete may be challenged for lack

of consideration even though the agreement expressly indicates that the

parties “intend to be legally bound” pursuant to the Uniform Written

Obligations Act—an issue unrelated to the present case.            In passing, the

Socko court mentioned that in the absence of an agreement between an

employer and employee to the contrary, an employee may compete with his

employer after terminating his employment.          Id. at 1273.    Socko did not

address the issue of pre-departure solicitation that is at the center of this case.

      Newell’s   assistance    to   other      Individuals   in   breaching   their

noncompetition covenants. This Court’s analysis in Reading Radio, Inc. v.

Fink, 833 A.2d 199 (Pa. Super. 2003), is instructive on this subject. Kline,

the station manager of a radio broadcasting company (WAGO), gave thirty

days’ notice of his intention to resign his position in order to accept a position

at a rival broadcasting company (WEEU). Kline promised to work diligently

during the thirty-day period to leave WAGO in better shape after he left than

it had been before his departure. During the thirty-day period, however, the

manager transferred a significant car dealership advertising account to

defendant Reading Eagle, and he solicited his two best sales representatives

to leave WAGO and join WEEU. The sales representatives were subject to

noncompetition covenants; Kline was not. The sales representatives tendered



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their resignations to Kline directly, who, although aware of the sales

representatives’ noncompetition covenants, did not attempt to enforce them.

WAGO filed an action against Kline, WEEU, and the sales representatives

alleging breach of their common law duty of loyalty, and the jury returned a

verdict for damages against Kline and WEEU.3 This Court affirmed, reasoning:

     To prevail on a claim of breach of fiduciary duty of loyalty, a
     plaintiff must demonstrate that his agent acted for a person or
     entity whose interests conflicted with the plaintiff. Restatement
     (Second) of Agency § 394 (1958). . . .The facts demonstrate that,
     while still employed by WAGO. . . . Kline actively engaged in
     diverting [the sales representatives] from WAGO to . . . WEEU,
     and he refused to enforce the covenants-not-to-compete to which
     they were bound. . . . Kline’s failure to protect the integrity of the
     covenants-not-to-compete and the sales staff at WAGO were clear
     violations of his duty of loyalty[.]

Id. at 211.

     Like the station manager in Fink, Newell breached his duty of loyalty by

helping other AmQuip employees—Graham, Bruu and Rainey—breach their

own noncompetition covenants by leaving AmQuip and joining ACrane. The

evidence demonstrates that before Bruu and Rainey left AmQuip, they

convened with Newell to meet ACrane’s principals to discuss employment at

AmQuip.       And before leaving AmQuip, Newell forwarded AmQuip’s price

template to an intermediary, who in turn forwarded it to Bruu.

     Newell’s use of and access to AmQuip’s confidential information. The

fourth provision of the preliminary injunction order precluded Newell from


3The parties stipulated to judgment against the sales representatives in the
amount of $1.00, and the claims against them were satisfied.


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utilizing AmQuip’s confidential business information. Appellants argue that

Newell did not steal AmQuip’s trade secrets before or during his departure to

ACrane. We conclude that the court properly entered this provision against

Newell, because there was sufficient evidence that Newell sent some of

AmQuip’s confidential information to ACrane, had access to other confidential

information, and, if left unchecked, would have committed more of the same

acts.

        To obtain protection as confidential business information and/or as a

trade secret, the information “must be the particular secrets of the

complaining employer, not general secrets of the trade in which he is

engaged.” Trial Court Opinion (“T.C.O.”), 5/9/17, at 7. Trade secrets consist

of “any formula, pattern, device, or compilation of information which is used

in one’s business, and which gives him an opportunity to obtain an advantage

over competitors who do not know or use it.” Id. (citing Rohm and Haas

Co. v. Lin, 992 A.2d 132, 154 n.4 (Pa. Super. 2010)). Trade secrets need

not be technical in nature. Air Products and Chemicals, Inc. v. Johnson,

442 A.2d 1114, 1124 (Pa. Super. 1982). Although items like customer lists

do not automatically constitute confidential information, they do constitute

trade secrets where the compilation of that information represents a “material

investment of [the] employer’s time and money.” Colteryahn Dairy, Inc. v.

Schneider Dairy, 203 A.2d 469, 473 (Pa. 1964). Even when the employee

has not entered a noncompetition agreement, the court may enjoin him from



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accepting employment with a competitor when new employment would likely

result in the disclosure of trade secrets. Air Products, 442 A.2d at 1120.

      AmQuip generated its pricing formulas by combining confidential

business information—including crane utilization schedules, market conditions

and operation costs that were unique to AmQuip’s Atlanta location—into what

it called the “AmQuip Bible” of pricing and customer information.        N.T.,

1/26/17, at 93-94. AmQuip provided its salesmen with “extensive financial,

technical, and material support in order to develop customer relationships on

behalf of AmQuip.” T.C.O., 5/9/17, at 8; N.T., 1/26/17, at 89-90. AmQuip

also made significant investments in its salesmen to grow and retain important

customer relationships. T.C.O., 5/9/17, at 8. AmQuip provided Appellants

access to AmQuip’s “customer lists, utilization schedules, rental contracts,

equipment acquisition costs, vendor lists, and pricing models,” all of which

were confidential business information of AmQuip. Id. at 9; N.T., 1/25/17, at

45-46. In particular, the trial court credited testimony that Newell and the

other Individuals had access to AmQuip’s pricing formulas, which were

generated using sensitive information regarding crane utilization schedules,

market conditions, and operation costs that were unique to AmQuip branch

locations. T.C.O., 5/9/17, at 7-8; N.T., 1/26/17, at 94-96.    The trial court

found it important that AmQuip salesmen “relied on AmQuip’s confidential

information to provide service to existing customers and acquire new

business.” T.C.O., 5/9/17, at 8. The court also found persuasive the fact that



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AmQuip protected its confidential information by requiring employees to sign

non-competition agreements and/or confidentiality policies. Id. While Newell

did not sign a noncompetition agreement, he did sign AmQuip’s confidentiality

policy.   The court held that, under the circumstances presented by AmQuip,

“Amquip customer lists, customer rental/usage histories, rental contracts,

pricing formulas, equipment costs, branch financial information, and other

related information is entitled to protection as a trade secret.” Id. at 9.

      AmQuip demonstrated that Newell had access to AmQuip’s trade

secrets, such as names and contact information of customers from billing

records, rental history, and pricing history, AmQuip’s pricing information and

bids, and information regarding prospective crane rental needs of particular

customers.    While still working at AmQuip, Newell appropriated AmQuip’s

quote template by e-mailing it to a private account and ACrane merely put its

letterhead on top of that AmQuip document.          This evidence, along with

Newell’s diversion of customers to ACrane and his assistance to the other

Individuals in breaching their own noncompetition covenants, provided

sufficient grounds for the trial court to enjoin Newell from making further use

of AmQuip’s confidential information.

                                        II.

      The Individuals contend that the trial court made multiple errors in its

factual conclusions. We disagree. First, the Individuals assert that the trial

court overlooked the fact that Rainey and Bruu were intentionally misled into



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believing that they were not subject to any restrictive covenant.     Before

Rainey and Bruu left AmQuip, the Individuals claim, they asked Human

Resources whether there were any noncompetition agreements that applied

to them, and Human Resources responded by sending them unsigned

noncompetition forms.   The evidence shows, however, that Bruu admitted

signing a noncompetition agreement when AmQuip hired him, which

agreement was attached to AmQuip’s complaint. N.T., 1/25/17, at 146-49.

The evidence also shows that Rainey signed a noncompetition agreement

when he joined AmQuip. Id. at 228-30.

      The Individuals contend that they had the right to leave AmQuip for a

competitor because AmQuip’s merger with Maxim in 2016 impaired the quality

of service to AmQuip’s customers.     We know of no caselaw, nor do the

Individuals cite any, that unhappiness with an employer’s merger decisions or

its alleged quality of customer service entitles employees to breach their

noncompetition covenants or (in Newell’s case) their common law duty of

loyalty.

      The Individuals also argue that AmQuip failed to demonstrate

irreparable harm to its business.     This argument lacks merit.     AmQuip

demonstrated that the group of skilled, seasoned Individuals left AmQuip to

join a competitor, ACrane, and diverted some of AmQuip’s largest customers

to ACrane, including its largest customer, Ansco. As a result, in just three

months of operation, ACrane generated over $2,000,000 in sales in Atlanta



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and was projected to generate $10,000,000 in sales in its first year of

operation.   ACrane clearly caused substantial damage to AmQuip’s Atlanta

business and would have caused even more damage absent the trial court’s

intervention.

      The Individuals claim that the trial court erred in determining that

Graham voluntarily resigned from AmQuip, pointing to statements on Human

Resource documents that he was involuntarily terminated.         The trial court

explained on pages 13-15 of its May 9, 2017 opinion that notwithstanding the

Human Resource documents, credible testimony during the preliminary

injunction hearing demonstrated that Graham voluntarily resigned in August

2016 due to his plan to leave AmQuip and join ACrane. Having reviewed the

evidence cited in the trial court’s opinion, we see no reason to disturb this

factual finding.

                                     III-IV.

      In their third and fourth arguments, which we review together, the

Individuals complain at length that the trial court failed to apply the balancing

test articulated by our Supreme Court in Hess v. Gebhard & Co., Inc., 808

A.2d 912 (Pa. 1988), for determining whether to enforce Rainey’s, Bruu’s and

Graham’s noncompetition covenants. This test requires the court to balance

the employer’s protectible interests against the employee’s interests in

earning a living in his chosen occupation and the public interest. Id. at 920-

21. Not only must the employer prevail under this balancing test, but also the



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employer must furnish proof that the noncompetition covenant is supported

by adequate consideration and is reasonably limited in duration and

geographic scope. WMI Group, Inc. v. Fox, 109 A.3d 740, 748 (Pa. Super.

2015).

      The trial court determined, and we agree, that AmQuip met all of these

requisites.   T.C.O., 2/10/17, at 7.    Rainey, Bruu and Graham entered the

noncompetition covenants as a condition of employment at AmQuip. The law

is clear that the taking of employment is sufficient consideration for a

noncompetition covenant. Records Ctr. v. Comprehensive Management,

Inc., 525 A.2d 433, 435 (Pa. 1987).                Appellants do not contest the

reasonableness of the duration or geographic scope of the noncompetition

covenants. In addition, as discussed above, the evidence demonstrated that

the Individuals had access to AmQuip’s confidential business information, the

value of which was shown by ACrane’s exponential growth after the

Individuals joined this fledgling company. Enforcement of the noncompetition

covenants was necessary to prevent additional misuse of this information.

      The Individuals insist that any difficulties incurred by AmQuip are

miniscule compared to the difficulty that the Individuals will face in finding

new   employment     after   working    in   the    crane   industry   for   decades.

Nevertheless, Rainey, Bruu and Graham brought this problem on themselves

by breaching their noncompetition covenants. See Quaker Chemical Corp.

v. Varga, 509 F. Supp. 2d 469, 480 (E.D.Pa. 2007) (applying Pennsylvania



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law) (collecting cases) (“the fact that Varga, by resigning from Quaker and

joining Stuart in spite of knowing about the non-compete covenant, brought

this dispute on himself weighs against him here”).4 To accept the Individuals’

argument would be to frustrate large employers who have substantial

interests in safeguarding against employees who would otherwise betray

them. As the court in Varga reasoned:

      [I]n a case such as this, the harm to the employee almost always
      seems greater than the harm to the company. The employer, as
      a company—in this case, a very successful company, it appears—
      will be able to financially survive an employee’s leaving for a
      competitor. And the employee, as an individual, apparently will
      have a hard time financially surviving if he is out of work. By this
      superficial calculus, the harm to the employee is always greater
      . . . If this were the rule, no restrictive covenant would be enforced
      against a large and successful company.

      But the numerous courts that have specifically enforced non-
      compete covenants against the employee have concluded that,
      regardless of the relative wealth of the employer and employee,
      the harm to the employer trumps the harm to the employee.

Id.   The public also has a substantial interest in the enforcement of

noncompetition    covenants,    for   this     practice   “will   discourage   unfair

competition, the misappropriation and wrongful use of confidential information

and trade secrets, and the disavowal of freely contracted obligations.” Id. at

481 (citing Graphic Mgmt. Assocs. v. Hatt, 1998 WL 159035, at *19

(E.D.Pa. Mar.18, 1998)).




4While decisions from federal district courts are not binding on this Court, we
may rely on them for persuasive authority. EMC Mortgage, LLC v. Biddle,
114 A.3d 1057, 1064 n.6 (Pa. Super. 2015).


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      For these reasons, we conclude that the trial court acted within its

discretion by entering the preliminary injunction against the Individuals. We

direct that copies of the trial court's February 10, 2017 and May 9, 2017

opinions be attached to any future filings in this case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/18




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