J-A07040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EQT PRODUCTION COMPANY                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

ROBERT M. BOCHTER, II; MATTHEW
PASQUINELLI; VENTURE ENERGY
SOLUTIONS, LLC; AND CONFLUENCE
ENERGY CONSULTANTS, LLC

                         Appellee                   No. 1405 WDA 2014


              Appeal from the Order Entered August 4, 2014
            In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): 11-005691


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                              FILED JULY 24, 2015

      Appellant, EQT Production Company (EQT), appeals from the August 4,

2014 order denying its motion for preliminary injunctive relief, seeking to

enjoin Appellees Robert M. Bochter, II, Matthew Pasquinelli, Venture Energy

Solutions, LLC, and Confluence Energy Consultants, LLC (collectively,

Appellees) from competing with EQT for two years, and to create a

constructive trust relative to certain disputed proceeds, among other relief.

After careful review, we affirm in part, reverse in part and remand.

      The trial court aptly summarized the factual history of this case as

follows.

                 [] EQT is a large and well-established
            corporation engaged in natural gas production. As a
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          necessary part of this business, EQT engages in the
          lease and, occasionally, purchase of mineral rights
          for exploration and development. The primary face
          of the company in these efforts, when dealing with
          landowners, are EQT’s landmen.

                In 2014[,] Defendants Robert M. Bochter and
          Matthew Pasquinelli[,] were among those landmen.
          They were, to all appearances, successful and well-
          compensated employees of EQT. In January of that
          year, along with another partner not party to this
          action, they formed two companies, Venture Energy
          Solutions, LLC (Venture) and Confluence Energy
          Consultants, LLC (Confluence).    At least one of
          these, like EQT, was in the business of acquiring
          mineral rights. Bochter and Pasquinelli continued
          their employment with EQT notwithstanding their
          new status as competitors.

                 Soon after, [Bochter and Pasquinelli], through
          Venture, entered into a deal to acquire an option to
          purchase mineral rights from Carl and Alice Hildreth
          (the Hildreth deal). They used EQT’s Geographic
          Information System (GIS), a tool owned by EQT and
          used by their landmen to organize both public and
          proprietary information for use in acquiring mineral
          rights.    [Bochter and Pasquinelli] also saved
          spreadsheets of public information produced using
          the GIS to a Google Drive. The evidence does not
          indicate that they also extracted and retained
          proprietary information from the GIS, although
          Bochter admitted to looking at non-public EQT
          information regarding the Hildreth property. Venture
          quickly resold the option to purchase, making a
          significant profit.   Bochter and Pasquinelli were
          thereafter suspended then fired by EQT.

                Venture also engaged in a transaction for
          mineral rights with Charles and Eileen Schilling, but
          this deal was not established by evidence to be
          related in any way to proprietary EQT information.

               EQT is now seeking monetary damages for
          Bochter and Pasquinelli’s actions. In advance of its

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J-A07040-15


              damage case, EQT is seeking Preliminary Injunctive
              relief from th[e trial c]ourt, demanding that
              [Appellees] be enjoined from doing business in
              particular geographic areas and that a constructive
              trust be established to hold the proceeds of the
              Hildreth deal.

Trial Court Opinion, 10/23/14, at 3-4 (footnote omitted).

        On April 1, 2014, EQT filed a complaint against Appellees seeking

damages and equitable relief for violation of the Pennsylvania Uniform Trade

Secrets Act,1 tortious interference with contract and prospective business

relations, tortious interference with prospective economic advantage, breach

of fiduciary duty/duty of loyalty, civil conspiracy, conversion, unjust

enrichment, and unfair competition. Contemporaneously with its complaint,

EQT filed a motion for an order to preserve documents, an order for

expedited discovery, and a motion for a special preliminary injunction. On

April 8, 2014, the trial court granted EQT’s motion for an order to preserve

documents, and separately ordered the parties to agree to a discovery

schedule.     On April 15, 2014, EQT filed a renewed motion for a special

preliminary injunction. Following motions to compel certain discovery, EQT

filed a motion for adverse inferences based on Appellees’ lack of compliance

with discovery requests and orders. A hearing on EQT’s renewed motion for

preliminary injunction was held on June 5, 6, 10, and 16, 2014. On August

4, 2014, the trial court denied EQT’s renewed motion for adverse inferences

____________________________________________
1
    12 Pa.C.S.A. §§ 5301-5308.


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and its motion for preliminary injunction. EQT filed a timely notice of appeal

on August 28, 2014.2

       On appeal, EQT raises the following issues for our review.

              [1]: Did the trial court err in entering an [o]rder
              denying [EQT’S] motion for adverse inferences, when
              adverse    inferences    are   warranted    because
              [Appellees] spoliated evidence, withheld or failed to
              produce evidence, and violated court orders
              regarding preserving and producing evidence?

              [2]: Did the trial court err in entering an [o]rder
              denying [EQT’S] motion for a preliminary injunction
              without considering whether a stolen compilation of
              information was a trade secret?

              [3]: Did the trial court err in entering an [o]rder
              denying [EQT’S] motion for a preliminary injunction
              imposing a constructive trust on all revenues that
              [Appellees] received improperly, when an injunction
              is necessary to preserve the status quo by
              preventing [Appellees] from depleting the improperly
              received revenues?

              [4]: Did the trial court err in entering an [o]rder
              denying [EQT’S] motion for a preliminary injunction
              without addressing [EQT’S] other requests for
              relief—enjoining [Appellees] from continuing to
              possess or use EQT’s property, requiring [Appellees]
              to immediately return EQT’s property, and requiring
              [Appellees] to provide an accounting of revenues
              received improperly—when these forms of relief were
              appropriately raised before the trial court?

EQT’s Brief at 3-4.




____________________________________________
2
  EQT and the trial court have complied with Pennsylvania Rule of Appellate
Procedure 1925.


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     EQT’s first allegation of error faults the trial court for denying its

motion for adverse inferences due to Appellees’ discovery violations and

spoliation of evidence, and failing to apply those inferences in its

determination of EQT’s motion for a preliminary injunction.           Id. at 30.

Before addressing the merits of EQT’s claim, we note the following principles

guiding our review.

           “Spoliation of evidence” is the failure to preserve or
           the significant alteration of evidence for pending or
           future litigation. Pyeritz v. Commonwealth, 613
           Pa. 80, 32 A.3d 687, 692 (2011). “When a party to
           a suit has been charged with spoliating evidence in
           that suit (sometimes called “first-party spoliation”),
           we have allowed trial courts to exercise their
           discretion to impose a range of sanctions against the
           spoliator.”        Id.     (citing   Schroeder      v.
           Commonwealth, Department of Transportation,
           551 Pa. 243, 710 A.2d 23, 27 (1998)) (footnotes
           omitted). This Court has stated:

                 “When reviewing a court’s decision to grant or
                 deny a spoliation sanction, we must determine
                 whether the court abused its discretion.”
                 Mount Olivet Tabernacle Church v. Edwin
                 L. Wiegand Division, 781 A.2d 1263, 1269
                 (Pa. Super. 2001) (citing Croydon Plastics
                 Co. v. Lower Bucks Cooling & Heating, 698
                 A.2d 625, 629 (Pa. Super. 1997) (recognizing
                 that “[t]he decision whether to sanction a
                 party, and if so the severity of such sanction, is
                 vested in the sound discretion of the trial
                 court”)).   Such sanctions arise out of “the
                 common sense observation that a party who
                 has notice that evidence is relevant to litigation
                 and who proceeds to destroy evidence is more
                 likely to have been threatened by that
                 evidence than is a party in the same position
                 who does not destroy the evidence.” Mount
                 Olivet, 781 A.2d at 1269 (quoting Nation–

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                 Wide      Check     Corp.   v.   Forest    Hills
                 Distributors, Inc., 692 F.2d 214, 218 (1st
                 Cir. 1982)). Our courts have recognized
                 accordingly that one potential remedy for the
                 loss or destruction of evidence by the party
                 controlling it is to allow the jury to apply its
                 common sense and draw an “adverse
                 inference” against that party. See Schroeder
                 v. Commonwealth of Pa., Dep’t of Transp.,
                 551 Pa. 243, 710 A.2d 23, 28 (1998). …

                       To determine the appropriate sanction
                 for spoliation, the trial court must weigh three
                 factors:

                       (1) the degree of fault of the party who
                       altered or destroyed the evidence; (2)
                       the degree of prejudice suffered by the
                       opposing party; and (3) whether there is
                       a lesser sanction that will avoid
                       substantial unfairness to the opposing
                       party and, where the offending party is
                       seriously at fault, will serve to deter such
                       conduct by others in the future.

                 Mount Olivet, 781 A.2d at 1269–70 (quoting
                 Schmid v. Milwaukee Elec. Tool Corp., 13
                 F.3d 76, 79 (3d Cir.1994)). …

           Creazzo v. Medtronic, Inc., 903 A.2d 24, 28–29
           (Pa. Super. 2006).

Parr v. Ford Motor Co., 109 A.3d 682, 701-702 (Pa. Super. 2014) (en

banc) (footnote omitted), appeal denied, --- A.3d ---, 2015 WL --------, No.

46 EAL 2015 (Pa. 2015) (per curiam).

           Evidentiary rulings are committed to the sound
           discretion of the trial court, and will not be overruled
           absent an abuse of discretion or error of law. In
           order to find that the trial court’s evidentiary rulings
           constituted reversible error, such rulings must not
           only have been erroneous but must also have been

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J-A07040-15


              harmful to the complaining party. Appellant must
              therefore show error in the evidentiary ruling and
              resulting prejudice, thus constituting an abuse of
              discretion by the lower court.

Whitaker v. Frankford Hosp. of City of Phila., 984 A.2d 512, 521-522

(Pa. Super. 2009) (internal quotation marks and citations omitted).

       EQT specifically challenges the trial court’s determination that it did

not prove spoliation occurred. EQT’s Brief at 31-33. “The trial court denied

EQT’s motion for adverse inferences because it inexplicably held that EQT

did not demonstrate spoliation of evidence. The court never explained how

it arrived at that conclusion and it is impossible to see how it could have.”

Id. at 31. EQT recounts the evidence of Appellees’ non-compliance with the

trial court’s discovery orders and testimony tending to establish that

Appellees deleted information from computers that were provided. Id. EQT

concludes “[t]he deletion of computer files is undeniably spoliation of

evidence for which an adverse inference should be granted.       …    The trial

court’s failure to acknowledge these admitted deletions as spoliation is

reversible error.” Id. at 32-33.3

____________________________________________
3
   Implicit in EQT’s argument is the contention the trial court should have
determined that discovery was complete for the purposes of its preliminary
injunction motion so that Appellees’ alleged violations of discovery orders
could lead to the conclusion of spoliation of the evidence and to the
imposition of sanctions. It is apparent the trial court declined to do so. In
its October 23, 2014 opinion, the trial court noted that the underlying case
was in its “early stages,” and discovery was an “ongoing process”. Trial
Court Opinion, 10/23/14, at 5. The trial court offered EQT additional time to
seek compliance of the discovery orders. Id. “[EQT] presented two Motions
(Footnote Continued Next Page)

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      The trial court found, however, that EQT did not establish that

spoliation in fact occurred. Trial Court Opinion, 10/23/14, at 6.

             The essential argument of [EQT] in its Motion for
             Adverse Inference seems to be that [Appellees] must
             have spoliated evidence because [EQT] failed to find
             the proprietary information it expected to appear
             upon discovery, or that the [Appellees] had not thus
             far in the early stages of this litigation fully produced
             all information requested by [EQT]. This is not, and
             cannot be, sufficient for an adverse inference.

Id. at 5. Based on our review of the record, we conclude the trial court’s

factual findings in this regard are supported and its evidentiary ruling in

refusing to accept adverse inferences at this stage of the proceedings was

not an abuse of its discretion.

      EQT’s remaining issues on appeal contain various allegations of trial

court error in denying its motion for preliminary injunction. We recount the

                       _______________________
(Footnote Continued)
to Compel discovery in advance of the hearing on their Motion for
Preliminary Injunction. EQT was offered an opportunity by this [c]ourt to
delay the hearing until its discovery requests had been fully answered. It
chose to go forward without [Appellees’] full compliance.” Id.

       “[I]n general, discovery orders are not final, and are therefore
unappealable.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super.
2008), quoting Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004).
“Discovery sanction orders are interlocutory and not appealable until final
judgment in the underlying action.” Baranowski v. Am. Multi-Cinema,
Inc., 688 A.2d 207, 208 n.1 (Pa. Super. 1997) (citation omitted), appeal
denied, 704 A.2d 633 (Pa. 1997). Accordingly, to the extent EQT challenges
the trial court’s underlying discovery and sanction orders, as opposed to the
trial court’s evidentiary decisions based on the then current status of
discovery at the preliminary injunction hearing, we are without jurisdiction to
address such claims. Id.; see also Pa.R.A.P 311, 341.



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following principles directing our review of these issues.    “[T]he scope of

review in preliminary injunction matters is plenary.”          Warehime v.

Warehime, 860 A.2d 41, 46 n.7 (Pa. 2004)

                  [O]ur review of a trial court’s order granting or
           denying preliminary injunctive relief 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. We will find that a trial
           court had apparently reasonable grounds for its
           denial of injunctive relief where the trial court has
           properly found that any one of the following essential
           prerequisites for a preliminary injunction is not
           satisfied.

                  There are six essential prerequisites that a
           party must establish prior to obtaining preliminary
           injunctive relief. The party must show: 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, 6) that a preliminary injunction will not
           adversely affect the public interest. The burden is on
           the party who requested preliminary injunctive
           relief[].




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Id. at 46-47 (internal quotation marks, citations and footnotes omitted).

“We may interfere with the chancellor’s decision only if the certified record

reveals that no grounds exist to support the decree, or that the rule of law

upon which the court relied was palpably erroneous or misapplied.”            W.

Penn Specialty MSO, Inc. v. Nolan, 737 A.2d 295, 298 (Pa. Super. 1999)

(citation omitted).

      EQT first claims the trial court erred in failing to determine if the public

information component of its GIS compilation, obtained and used by

Appellees, qualified as a trade secret. EQT’s Brief at 41. “The trial court []

erred by not analyzing whether EQT’s GIS compilation is entitled to trade

secret protection.” Id. EQT argues that compilations of public information

are included in the definition of trade secrets under common law and the

Pennsylvania Uniform Trade Secrets Act. Id. at 42-43, citing 12 Pa.C.S.A.

§ 5302. EQT then develops an argument for why trade secret status applies

to the GIS compilation in this case.       Id. at 43-49.      We conclude this

argument misses the point of the trial court’s ruling.

      The trial court in fact allowed for the possibility that the GIS

compilation deserved trade secret protection.       “[The trial court does] not

doubt that the GIS is a valuable tool for EQT, or that it, used as a tool for

the manipulation of data to achieve particular ends, is worthy of protection

as a trade secret.” Trial Court Opinion, 10/23/14, at 7. However, the trial

court determined that this fact did not excuse the lack of an evidentiary


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showing that Appellees continued to possess or have access to the GIS tool.

Id.

            Without access to [the GIS], and without any
            evidence that they retain any other proprietary
            information which belongs to EQT, as distinguished
            from public information also manipulable by the GIS,
            there is no indication that any further harm will
            ensue from their continued business operation, apart
            from the simple fact of competition, from which EQT
            has no protection.

Id.   Consequently, the trial court determined that the sixth prerequisite

enumerated by Warehime was not established.            “The offending activity

here is in the past. [Appellees] have no access to EQT’s GIS database, and

thus no ability, even if inclination, to repeat it.    Estopping their future

business dealings will not change this, for good or ill….” Id.

      Upon review of the record, we conclude the findings of the trial court

are supported. Absent EQT’s sought-after adverse inferences, the trial court

was within its discretion as evaluator of credibility and finder of fact to

conclude the evidence of Appellees’ continued ability to use proprietary

information was lacking.     Accordingly, we conclude the trial court had

“apparently reasonable grounds” for its decision to deny preliminary

injunctive relief. See Warehime, supra.

      EQT next faults the trial court for failing to grant the portion of its

preliminary injunction motion seeking to impose a temporary constructive




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trust on Appellees, relative to the proceeds from the Hildreth deal.4 EQT’s

Brief at 50.        Specifically, EQT argues, “[t]he [trial] court expressly

____________________________________________
4
  We recognize that it may not be appropriate to use the term “constructive
trust” by a party seeking the temporary freezing or sequestering of assets as
a form of preliminary injunctive relief.

              A constructive trust arises when a person holding
              title to property is subject to an equitable duty to
              convey it to another on the ground he would be
              unjustly enriched if he were permitted to retain it. …
              The controlling factor in determining whether a
              constructive trust should be imposed is whether it is
              necessary to prevent unjust enrichment.

Santoro v. Morse, 781 A.2d 1220, 1231 (Pa. Super. 2001) (citations
omitted, emphasis added). Thus, a constructive trust is a final equitable
remedy, because preliminary limitations on an asset would not require its
conveyance to another. Based on this understanding, this Court has held
that a trial court’s grant of a constructive trust, purportedly as a preliminary
injunction, was in fact a final order. Robbins v. Kristofic, 643 A.2d 1079,
1082 (Pa. Super. 1994), appeal denied, 651 A.2d 541 (Pa. 1994). In
Robbins, the trial court entered an order as follows. “[I]t is hereby
ORDERED that a preliminary injunction issue requiring that [the holder of a
fund in Defendant’s name] be imposed with a constructive trust in favor of
Plaintiff and may not be withdrawn without further order of court.” Id. at
1081-1082. In rejecting the appellant’s challenge to the trial court’s grant of
the preliminary injunction, this Court held that the trial court’s imposition of
the constructive trust was a final order granting a permanent remedy upon a
determination of the merits, rendering the preliminary injunction portion of
the trial court’s order moot. Id. at 1082. Notwithstanding Robbins, this
Court in Santoro upheld “the trial court in the exercise of its broad equity
powers [to] order the temporary imposition of a constructive trust so
as to preserve the assets of [Defendant,] pending trial.” Santoro, supra at
1231 (emphasis added). Still other cases address this type of preliminary
injunctive relief without any reference to the term “constructive trust”. See,
e.g., Citizens Bank of Pa. v. Meyers, 872 A.2d 827 (Pa. Super. 2005).
Instantly, the relief sought by Appellant, i.e., to prevent dissipation of the
Hildreth deal proceeds pending the litigation, was clear regardless of
whether such relief is properly termed a temporary “constructive trust”, and
we proceed with this understanding in mind.


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recognized that EQT could be harmed by Defendants’ dissipation of the

Hildreth proceeds, but it concluded the harm of denying Defendants access

to their ill-gotten gains was higher. The [trial] court’s analysis was wrong as

a matter of law.” Id. at 53.

       In assessing the evidence supporting EQT’s request for preliminary

injunctive relief in this regard against the six Warehime factors, the trial

court did acknowledge the first factor, immediate and irreparable harm to

EQT, was shown. Trial Court Opinion, 10/23/14, at 7-8. “EQT faces the risk

that allegedly profligate opposing parties will spend all proceeds of the

Hildreth deal and any subsequent business, thus reducing EQT’s ability to

collect any future judgments.”          Id.    Indeed, we conclude that finding is

supported by the record, as Appellee Bochter testified that $525,000 of the

$950,000 made from the Hildreth deal was already disbursed. N.T., 6/5-6,

10/14, at 165-166.5        However, the trial court determined the second and

third factors, i.e., the preliminary injunction will not substantially harm

Appellees, and any relief will restore the parties to their respective positions,

were not met. Id.

              [Appellees] would be denied access to a significant
              sum of money made in the exercise of that
              profession until such a time as the underlying action
              here is resolved. These are very serious harms for
____________________________________________
5
  Notwithstanding this testimony, Appellees assert that EQT presented no
evidence of dissipation or likelihood of dissipation. Appellees’ Brief at 15.
However, as noted infra, the trial court did determine Appellees would likely
need to access those funds for further capital investment.


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             small operators in a dynamic business that requires
             significant capital investments to be made on short
             notice.

Id. at 8.

      We agree with EQT that the trial court misapplied the Warehime

factors.    In Ambrogi v. Reber, 932 A.2d 969 (Pa. Super. 2007), appeal

denied, 952 A.2d 673 (Pa. Super. 2008), the defendants made an argument,

similar to the trial court’s position here, that restrictions on certain assets

would interfere with its ability to conduct its business.

      [Defendants/Appellants] contend that the preliminary
      injunction entered by the trial court in this case imposes
      an unfair and intolerable burden by preventing them from
      running their business in the accustomed manner. They
      also complain that the preliminary injunction changes,
      rather than preserves, the status quo between the parties
      because it places Appellees in a better position than they
      occupied before the injunction.

Id. at 978-979.

      In response, the Ambrogi Court noted that because the goal of a

preliminary injunction was to preserve the status quo prior to the wrongful

act, the inability to use assets generated by the wrongful act cannot be

considered a hardship to the defendants.          Id. at 979.   “The relevant

standard requires that an injunction must address the status quo as it

existed between the parties before the event that gave rise to the lawsuit,

not to the situation as it existed after the alleged wrongful act but before

entry of the injunction.” Id. The Court held “that Pennsylvania law does not

preclude a trial court from granting a preliminary injunction to prevent

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dissipation of assets,” and affirmed the trial court’s preliminary injunction.

Id. at 975.

       Like the defendants position in Ambrogi, the trial court here focuses

on the status quo at the time the preliminary injunction would have taken

effect rather than the status quo prior to alleged improper conduct by

Appellees in securing the Hildreth deal. See Trial Court Opinion, 10/23/14,

at 7-8. Viewed from the proper timeframe, we conclude Appellees are not

subject to a greater harm by an inability to use the disputed funds in their

ongoing business, because such allegedly ill-gotten funds would not have

been available to them then.           See Ambrogi, supra at 975.        Thus, we

conclude the trial court’s denial of preliminary injunctive relief limiting the

dissipation of the Hildreth deal proceeds involved a “rule of law upon which

the court relied[, which] was palpably erroneous or misapplied.” W. Penn

Specialty MSO, Inc., supra.

       The trial court also deems the fifth Warehime factor, the relief is

suited to abate the harm, is unmet.6           Trial Court Opinion, 10/23/14, at 8.

____________________________________________
6
  The trial court, in its October 23, 2014 opinion, did not specifically address
the remaining Warehime factors in connection with its denial of preliminary
injunctive relief in restricting further dissipation of the Hildreth deal
proceeds. We conclude, based on our review of the record, that these do
not present an impediment to relief. The trial court has acknowledged
generally that EQT’s right to relief is likely. “[Appellees] use of EQT’s GIS
led to one deal for a discrete and known amount of money.” Trial Court
Opinion, 10/23/14, at 7. “To establish a clear right to relief, the party
seeking an injunction need not prove the merits of the underlying claim, but
need only demonstrate that substantial legal questions must be resolved to
(Footnote Continued Next Page)

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EQT asserts the trial court “erred by holding that a constructive trust would

not abate Defendants’ past competition using EQT’s proprietary information.”

EQT’S Brief at 54. The trial court held as follows. “The offending activity

here is in the past. [Appellees] have no access to EQT’s GIS database, and

thus no ability… to repeat it.        Estopping their future business dealings will

not change this, for good or ill, nor will placing the proceeds of the

Hildreth deal into trust.” Trial Court Opinion, 10/23/14, at 8 (emphasis

added).

      Again, we agree with EQT that the trial court relied on an erroneous

application of the law.        The trial court conflates the harm intended to be

abated by EQT’s distinct requests for injunctive relief.        EQT’s first request

sought to restrict Appellees from competing through continued use of EQT’s

proprietary information.        EQT’s Complaint, 4/1/14, at 33.    Contrary to the

trial court’s conclusion, this was not the harm sought to be abated by its

request for injunctive relief to restrict the dissipation of the Hildreth deal

proceeds. Id. at 34. Clearly, prohibiting dissipation will not prevent future

use of proprietary information, but that is not the targeted harm in EQT’s

request for this relief, which was to prevent Appellees from contriving to

become judgment-proof. EQT’s Brief at 51; see also Ambrogi, supra at

                       _______________________
(Footnote Continued)
determine the rights of the parties.”       SEIU Healthcare Pa. v.
Commonwealth, 104 A.3d 495, 506 (Pa. 2014) (citation omitted).
Additionally, we discern no adverse impact to the public interest. See
generally Warehime, supra.


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975.     Consequently, we conclude that the trial court misapplied the law and

the Warehime factors to the facts of this case and unreasonably denied

EQT’s request to restrict the dissipation of the Hildreth deal proceeds.

Accordingly, we reverse that aspect of the trial court’s August 4, 2014 order

and remand for further proceedings consistent with this memorandum.

        In its final issue, EQT faults the trial court for failing to rule on its

remaining requests for relief, including enjoining Appellees from continued

possession of EQT’s property, compelling return of any such property, and

providing an accounting. EQT’s Brief at 54-55. Relative to these requests

the trial court noted as follows. “[EQT] request[s] other forms of possible

injunctive relief, including a number of points which would be properly raised

in a Motion to Compel, but as those were never argued or briefed, they will

not be addressed.” Trial Court Opinion, 10/23/14, at 4 n.1. We discern no

error. While EQT insists it consistently argued for these bases of relief, we

note the first two share the same infirmity of proof denoted by the trial court

relative to its denial of preliminary injunctive relief connected to the

requested restriction on competition by Appellees.          We agree also the

request for an accounting is more properly seen as a motion to compel but

the trial court is free to address that request in light of our remand of this

case.

        Based on all the preceding, we affirm the trial court’s evidentiary

ruling refusing to apply adverse inferences to its determination of the merits


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of EQT’s request for a preliminary injunction. Additionally, to the extent EQT

challenges the trial court’s discovery rulings, the same are interlocutory and

not subject to our review. We further affirm that portion of the trial court’s

August 4, 2014 order denying EQT’s request for a preliminary injunction

relative to its request to restrict Appellees’ competition with EQT. However,

because the trial court misapplied the law and the Warehime factors to

EQT’s request for preliminary injunctive relief in the form of a restriction on

Appellees from dissipation of the Hildreth deal proceeds, we reverse that

aspect of the trial court’s August 4, 2014 order and remand for further

proceedings consistent with this memorandum.7

       Order affirmed in part and reversed in part. Case remanded. Motion

to Strike granted. Jurisdiction relinquished.




____________________________________________
7
  On January 12, 2015, Appellees filed with this Court a motion to strike
Hearing Exhibit 3 from EQT’s Amended Designation of record, because it is
not contained in the certified record. A review of the record reveals that, at
the conclusion of the third day of the hearing on the preliminary injunction,
the trial court directed the parties to submit a stipulation and or objections
relative to the admission of exhibits. N.T., 6/5-6,10/14, at 471. No such
stipulation or copy of the exhibits is contained in the record certified to this
Court. Accordingly, Appellee’s motion is granted and the exhibit was not
considered in our disposal of the merits of this appeal. See PHH Mortg.
Corp. v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014) (noting “this Court
may consider only the facts that have been duly certified in the record when
deciding an appeal,” and striking attachments to a brief that did not appear
in the certified record).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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