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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37

FULTON FINANCIAL CORPORATION,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                   Appellee

                      v.

JOHN E. FRICK,

                   Appellant                      No. 2026 MDA 2018

                Appeal from the Order Dated November 26, 2018
               in the Court of Common Pleas of Lancaster County
                        Civil Division at No(s): 18-08910

BEFORE:       BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:             FILED: JULY 24, 2019

        John E. Frick appeals from the order dated November 26, 2018, which

denied Frick's motion to dissolve a preliminary injunction.' Upon review, we

remand with instructions.

        We set forth the factual and procedural history of this case as follows.

Frick began employment with Fulton Financial Corporation (Fulton) as a
financial advisor on March 2, 2009.     His position was eliminated on June 5,

2018.     At the time of his leaving, the parties negotiated a separation
agreement (Separation Agreement).        During the course of that negotiation,

Frick formed and began to work for New Era Wealth Management as an

investment manager. Fulton and Frick signed the Separation Agreement on

' An order refusing to dissolve a preliminary injunction is an interlocutory
order appealable as of right pursuant to Pa.R.A.P. 311(a)(4).


*Retired Senior Judge assigned to the Superior Court.
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July 31, 2018, which became effective on August 7, 2018. The Separation

Agreement provided certain benefits to Frick, including severance pay, in

exchange for Frick, inter a/ia, not contacting certain customers of Fulton or

interfering with Fulton's business.

      "[I]n late August 2018, Fulton learned that Frick had been directly
contacting customers of Fulton   ...   in an effort to solicit and encourage those

customers to do business with him and/or New Era Wealth rather than
Fulton." Complaint, 10/16/2018, at ¶ 30. On October 16, 2018, Fulton filed

a complaint against Frick for breach of contract and misappropriation of
trade secrets in violation of the Pennsylvania Uniform Trade Secrets Act, 12

Pa.C.S. §§ 5301-5308.     Contemporaneous with the filing of its complaint,

Fulton also filed a motion for preliminary injunction seeking enforcement of

the post -employment restrictions set forth in the Separation Agreement.

             Specifically, Fulton sought an injunction prohibiting Frick
      from: (1) calling upon and/or soliciting customers and/or
      prospective customers of Fulton not identified in Exhibit "B" to
      the [Separation] Agreement with whom he had material contact
      and/or about whom he received confidential information while
      employed by Fulton; (2) interfering in any way with the
      relationship between Fulton and any customer or prospective
      customer of Fulton; (3) requesting or encouraging any customer
      or prospective customer of Fulton to not purchase products or
      services from Fulton or to curtail or cease business with Fulton;
      and (4) using and/or disclosing any of Fulton's trade secrets
      and/or confidential business information, including, without
      limitation, any information regarding Fulton's existing or
      prospective customers.

Trial Court Opinion, 1/22/2019, at 2.



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     When Frick received actual notice of Fulton's motion for preliminary

injunction is the subject of some dispute.        Fulton's motion for preliminary

injunction was sent to Frick via United Parcel Service (UPS) and was
delivered to his home on Thursday, October 18, 2018. Frick averred he was

away from home with his family from Thursday, October 18 to Sunday,
October 21. Frick averred that he "opened the envelope on the morning of

[Monday,] October 22," when he learned for the first time that there "was a

hearing at the Lancaster County Courthouse at 8:45 a.m." Affidavit of Frick,

11/7/2018.       According to Frick, he went to the courthouse that morning,
where he learned that the hearing had already occurred.

      It   is   not at   all   clear from the record what actually happened on
Monday, October 22. There is no transcript in the certified record, although

the trial court states that "Fulton's motion for preliminary injunction was
presented to [the court] on Monday, October 22, 2018." Trial Court Opinion,

1/22/2019, at 2. The trial court further explained that "the requested relief

was granted on the basis of the averments in the complaint, the motion, and

the affidavit of Michael George, President of Brokerage Services for Fulton."

Id. The trial court entered the preliminary injunction in favor of Fulton on
Tuesday, October 23, 2018. Order, 10/23/2018. That order provided, inter

alia, that Frick "is enjoined and restrained for a period of one [] year from
calling upon and/or soliciting business from [certain] customers," that Fulton




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could seek attorney's fees and costs, and that Fulton was to post a $2,500

bond. Id.

      Counsel for Frick entered an appearance on October 30, 2018.          On

November 8, 2018, Frick filed       a   motion to dissolve the preliminary

injunction, arguing essentially that Frick did not have adequate notice of the

October 22 proceedings. Fulton filed a response to this motion on November

20, 2018.      Concluding that Frick had adequate notice of the October 22
proceedings, the trial court denied Frick's motion to dissolve the preliminary

injunction. Frick timely filed a notice of appeal from that order.   Both Frick

and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Frick argues, inter alia, that the trial court erred by (1)
refusing to dissolve the preliminary injunction because Frick did not have

adequate notice of its presentation, (2) by entering an order when there was

no finding that Fulton would sustain immediate and irreparable injury, and

(3) by failing to schedule a subsequent hearing. Frick's Brief at 17-27.

     The rules governing the issuance of a preliminary injunction are clear.

      (a) A court shall issue a preliminary or special injunction only
     after written notice and hearing unless it appears to the
     satisfaction of the court that immediate and irreparable
     injury will be sustained before notice can be given or a
      hearing held, in which case the court may issue a preliminary
      or special injunction without a hearing or without notice. In
     determining whether a preliminary or special injunction should
     be granted and whether notice or a hearing should be required,
     the court may act on the basis of the averments of the pleadings
     or petition and may consider affidavits of parties or third persons
     or any other proof which the court may require.


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Pa.R.C.P. 1531(a) (emphasis added). As this Court has stated,

      a court will ordinarily issue a preliminary injunction only after
      written notice and hearing. A preliminary injunction may be
      granted without notice and a hearing only when there exists a
      need for unusual haste so that a clear right may be protected
      from immediate and irreparable injury. In that event, the court
      must make a finding that relief is necessary and must be
      awarded before the defendant can be notified. If the court then
      fails to conduct a hearing within five days, the injunction      is
      deemed dissolved.

WPNT Inc. v. Secret Commc'n Inc., 661 A.2d 409, 410-11 (Pa Super.
1995) (citations omitted).

      In considering this rule as it applies to this case, we will assume
arguendo that Frick was indeed provided adequate written notice of the
hearing.2 However, it is evident that no hearing occurred. As the trial court

pointed out, it relied upon "the averments of the complaint, the motion, and

the affidavit of Michael George, President of Brokerage Services for Fulton,

as permitted by [Pa.R.C.P.] 1531(a)." Trial Court Opinion, 1/22/2019, at 2.




2 As discussed supra, there is no transcript from the proceedings that
occurred on October 22, 2018. Thus, this Court has no record of what, if
any, efforts were made by either Fulton or the trial court to get in touch with
Frick prior to conducting whatever proceedings may have occurred.

       Moreover, we point out that if Frick did not have notice, the injunction
issued by the trial court on October 22, 2018, would have expired on its own
terms five days later. See Pa.R.C.P 1531(d) ("An injunction granted without
notice to the defendant shall be deemed dissolved unless a hearing on the
continuance of the injunction is held within five days after the granting of
the injunction or within such other time as the parties may agree or as the
court upon cause shown shall direct.").


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     This court has acknowledged that there is no absolute right to a
     hearing on a preliminary injunction. Nevertheless, our rules and
     our case law clearly indicate that a hearing is the preferred
     procedure. It is the rare preliminary injunction that can correctly
     be denied without a hearing and no preliminary injunction
     can be granted and continued without a hearing, whether
     before or after the initial grant.

            In [Pubusky v. D.M.F. Inc., 239 A.2d 335 (Pa. 1968),]
     the trial court initiated a hearing on the requested preliminary
     injunction. Interrupting defendant's cross-examination of plaintiff
     and preventing defendant from presenting any evidence or
     testimony on his own behalf, the lower court discontinued the
     hearing and granted plaintiff a preliminary injunction. [Our]
     Supreme Court vacated the decree and remanded the case for
     an evidentiary hearing after concluding that "[i]t is ...
     fundamental that all of the parties are entitled to a hearing
     before [a preliminary] injunction should issue." Id. [] at 336-37.
     The [C]ourt in Pubusky further noted that even when
     circumstances support the issuance of an ex parte injunction, a
     hearing is not excused, but merely delayed for a limited time.
     Id. at [] 337 n.1. See also Ogontz Controls Co. v. Pirkle, []
     477 A.2d 876,879 ([Pa. Super.] 1984), appeal after remand, H
     499 A.2d 593 ([Pa. Super.] 1985) (although the trial court
     conducted a hearing within five days of issuing an ex parte
     injunction, it erred by continuing the preliminary injunction
     without allowing the objecting party to present evidence at the
     abbreviated hearing).

WPNT Inc., 661 A.2d at 411 (some citations omitted; emphasis added)

     Furthermore, in order for the injunction to issue with written notice,
but without a hearing, the trial court had to determine "that immediate and

irreparable injury will be sustained before   ...   a hearing [can be] held."
Pa.R.C.P. 1531(a). No such finding appears in the order entered on October

23, 2018, or in the trial court opinion filed on January 22, 2019. See
Rosenzweig v. Factor, 327 A.2d 36, 38 (Pa. 1974) ("The fundamental
defect in the proceeding below was that a preliminary injunction issued

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without notice and without a hearing, although the record is devoid of any

showing that immediate and irreparable injury would be sustained if such

action were not taken.").

      Based on the foregoing, without evidence of the occurrence of a
hearing or a finding by the trial court that immediate and irreparable injury

would have been sustained before a hearing could have been held, we
conclude the trial court fundamentally erred in granting the preliminary
injunction. Accordingly, we remand this case to the trial court to conduct a

hearing in conformance with Pa.R.C.P. 1531.

      Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/24/2019




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