J-A11042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LETTERLE & ASSOCIATES, INC.                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEVEN J. TRESCHOW, AN                     :
    INDIVIDUAL, AND P. JOSEPH                  :
    LEHMAN, INC.                               :   No. 1178 MDA 2016
                                               :
                       Appellants              :

                     Appeal from the Order Entered June 14, 2016
                    In the Court of Common Pleas of Centre County
                           Civil Division at No(s): 2015-988


BEFORE:      SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JULY 06, 2017

        Steven J. Treschow (“Mr. Treschow”) and Joseph Lehman, Inc.

(“Lehman”) (collectively “Appellants”) appeal from the June 14, 2016, order,

which granted, in part, and denied, in part, the petition for a preliminary

injunction filed by Letterle & Associates, Inc. (“Letterle”).1    After a careful

review, we affirm, in part, and reverse, in part.

____________________________________________



1
  This is an interlocutory appeal pursuant to Pennsylvania Rule of Appellate
Procedure 311(a)(4), which permits immediate appeal for “[a]n order that
grants or denies, modifies or refuses to modify, continues or refuses to
continue, or dissolves or refuses to dissolve an injunction[.]” Pa.R.A.P.
311(a)(4).
*
    Former Justice specially assigned to the Superior Court.
J-A11042-17


         The relevant facts and procedural history are as follows: Mr. Treschow

was originally an employee of Chambers Environmental Group, Inc.

(“Chambers”); however, on September 12, 2011, Letterle, a company which

provides environmental consulting, purchased the assets of Chambers. By

letter    dated    September    30,   2011,   Letterle   offered   Mr.   Treschow

employment, with the condition that he execute a confidentiality, non-

solicitation, and intellectual property agreement (“Letterle Agreement”),

which Mr. Treschow did on that same date.

         In relevant part, the Letterle Agreement provided that Mr. Treschow,

while employed by the company and for a period of two (2) years after

termination of his employment, would not “[s]olicit or induce, or attempt to

solicit or induce, any customer or prospective customer of the company with

which     [Mr.    Treschow]    communicated   with   while   employed     by   the

company[.]” Letterle Agreement, 9/30/11, at 2 ¶4(a). Further, the Letterle

Agreement provided that:

         [Mr. Treschow] agrees to hold and safeguard for the benefit of
         the company all confidential information acquired or developed
         by him during the employment relationship. [Mr. Treschow] will
         not...during the term hereof or thereafter, misappropriate, use
         for [Mr. Treschow’s] own advantage, disclose or otherwise make
         available confidential information to any person, except in the
         good faith performance of [Mr. Treschow’s] job duties while
         employed by the company to persons having a need to know
         such information for the benefit of the company or its business.

Id. at 3 ¶5(a).

         The Letterle Agreement defined “confidential information” as follows:


                                       -2-
J-A11042-17


      Confidential Information means any materials or information
      (whether in written, printed, graphic, video, audio, electronically
      stored, disk or other format) regarding the company which (i) is
      not generally known to the public or within the industry; (ii) was
      acquired or learned by [Mr. Treschow] as a result of and during
      employment with the company; and (iii) relates to the business
      and affairs of the company and/or their respective customers.
      Without limiting the generality of the term, it includes existing
      and planned methods of operation, processes, programs,
      product formulas, designs, marketing activities, research,
      business expansion or divestiture plans; customer lists; the
      identities of key personnel and the requirements of the
      customers [of] the company; supply contracts or arrangements;
      the identities, special skills and compensation arrangements of
      key employees of the company; business plans and strategies;
      financing arrangements; and any other non-public information
      relating to the business and affairs of the company.

Id. at 1-2 ¶3(a) (italics in original).

      On   November      13,   2014,      Mr.   Treschow   voluntarily   ended   his

employment with Letterle and commenced employment with Lehman, which

provides, in part, similar environmental services as those offered by Letterle.

      Thereafter, one of Letterle’s clients, Raymond J. Avent of the Marmon

Group, LLC (“Marmon”), informed Letterle it had acquired the services of

another consultant.      Another client, the Mount Union Fire Department,

informed Letterle that James Prohonic of Lehman had solicited its business.

      Consequently, on January 12, 2015, Letterle sent a letter to Mr.

Treschow reminding him of his obligations under the Letterle Agreement and

requesting that he cease and desist from contacting Letterle’s clients.          On

January 12, 2015, Mr. Treschow replied via a letter drafted by his counsel.

Therein, Mr. Treschow denied breaching the Letterle Agreement, disclosing


                                          -3-
J-A11042-17


any of Letterle’s confidential information, or soliciting any of Letterle’s

customers or employees.          See Mr. Treschow’s Letter, dated 1/16/15.    Mr.

Treschow indicated that any contact he “had with Letterle customers [was]

initiated by the customer and/or was of a personal nature.             And, any

information that [he]...shared is generally known and/or is otherwise not

protect[ed] under Pennsylvania law.” Id.

       In response, on March 6, 2015, Letterle filed a complaint in equity

seeking to enjoin Mr. Treschow from disclosing confidential information, as

well as from soliciting Letterle’s clients.      See Letterle’s Complaint, filed

3/6/15, at 9.2      On June 12, 2015, Appellants filed an answer with new

matter, and on July 1, 2015, Letterle filed a response to Appellants’ new

matter.

       During the course of discovery, on May 18, 2016, Letterle took the

depositions of Mr. Treschow and Martin T. Malone (“Mr. Malone”), who was a

Lehman employee. Thereafter, on May 20, 2016, Letterle filed a petition for

a preliminary injunction, indicating that the depositions “revealed certain

information making it necessary for [Letterle] to file the...petition.”      See

Letterle’s Petition for Preliminary Injunction, filed 5/20/16, at 1. Specifically,

Letterle averred, in relevant part, the following:
____________________________________________


2
  In the complaint, Letterle also requested the trial court enjoin Mr.
Treschow from working for Lehman, as well as requested the trial court
enjoin Lehman from engaging in unfair competition and interfering with the
contractual relationship between Letterle and Mr. Treschow.



                                           -4-
J-A11042-17


      4. At the deposition,...[Mr.] Treschow admitted being in contact
      with some of [Letterle’s] current clients as recent as last week.
      5. [Mr.] Treschow further acknowledged ongoing work with some
      of [Letterle’s] clients, said clients which are specifically
      enumerated in [Letterle’s] client/customer lists.
      6. [Mr.] Treschow testified that he looked at the Letterle
      Agreement again after being put on notice by [Letterle’s] letter
      of January 12, 2015. [Mr.] Treschow acknowledged he breached
      the agreement by soliciting a prospective client of
      [Letterle]....Said breach of [Appellants] is supported by an
      Affidavit of Thomas Emero and produced to [Appellants][.]
      7. [Mr.] Treschow testified he provided lists of prospective
      clients to [Mr.] Malone on a weekly basis to be utilized in a
      weekly marketing meeting at [Lehman].
                                     ***
      9. Based on testimony of [Mr.] Martin...[Lehman] was not aware
      of the restrictions placed on [Mr.] Treschow until they received
      [Lehman’s] letter of January 12, 2015. However, since January
      12, 2015, [Lehman] has not changed their pattern of behavior
      with respect to solicitation of [Lehman’s] clients/customers.
      10. [Letterle] will continue to suffer irreparable harm to its
      reputation and business if [Appellants] are not enjoined, pending
      a final hearing in this matter, from interfering with [Letterle’s]
      customer relations, using or disclosing [Letterle’s] confidential
      information and soliciting work from [Letterle’s] clients.

Id. at 1-3.

      Accordingly, Letterle requested the following relief:

      (a) [Appellants] are forthwith enjoined from working for or
      soliciting in any form any of [Letterle’s] clients/customers; and
      (b) [Appellants] are forthwith enjoined from using or disclosing
      to any third party, [Letterle’s] confidential, proprietary or trade
      secret information, including [Letterle’s] client/customer data
      and files, and client/customer lists.

Id. at 3-4.




                                     -5-
J-A11042-17


      On May 24, 2016, Appellants filed an answer to Letterle’s petition for a

preliminary injunction. With regard to Letterle’s request to enjoin Appellants

from soliciting customers, Appellants denied that Mr. Treschow had solicited

clients and “Mr. Treschow has refrained from soliciting any Letterle

customers and/or prospective customers with which he had contact while

employed by Letterle.” See Appellants’ Answer, filed 5/24/16, at 3.

      With regard to Letterle’s request to enjoin Appellants from using or

disclosing to any third party Letterle’s confidential, proprietary or trade

secret information, Appellants admitted that Mr. Treschow provides a weekly

list of prospective customers to Mr. Malone; however, Appellants “specifically

denied that Mr. Treschow provide[s] a list of Letterle customers to Mr.

Malone.” Id.    Appellants also denied that Mr. Treschow has “any ‘customer

list’ (list of Letterle customers) other than the customer list that [Letterle]

produced to [Appellants] in connection with [the] litigation.” Id. at 2.

Moreover, Appellants noted that Letterle’s “customers are well known and a

matter of public record[,]” and Mr. Treschow is “aware of these customers

through his own personal knowledge and memory, the information is not

protected.” Id. at 4, 7.

      On May 24, 2016, the trial court held oral argument on the matter,

and on June 14, 2016, the trial court entered the following order:

            [Letterle’s] petition for preliminary injunction is DENIED in
      part and GRANTED in part. [Mr.] Treschow is enjoined from
      using or disclosing to any third party [Letterle’s] confidential,


                                     -6-
J-A11042-17


       proprietary or trade secret information, including [Letterle’s]
       client/customer data and files, and client/customer lists.

Trial Court Order, filed 6/14/16.

       In its accompanying opinion, the trial court clarified that it was

denying Letterle’s request to enjoin Mr. Treschow from soliciting Letterle’s

existing or prospective clients since Letterle failed to show that such relief

was necessary to prevent immediate and irreparable harm that could not be

adequately compensated by damages.3 See Trial Court Opinion, filed

6/14/16, at 3. Moreover, the trial court found that, although Mr. Treschow

may have solicited Letterle’s clients prior to the January 12, 2015, letter,

there was no evidence the conduct was ongoing or likely to cause immediate

harm. Id. at 3-5.

       In granting Letterle’s request to enjoin Mr. Treschow from using or

disclosing Letterle’s confidential, proprietary, or trade secret information, the

trial court clarified it was granting Letterle’s request to enjoin Mr. Treschow

from using or disclosing Letterle’s customer lists, as well as Letterle’s clients’

data and files, as such constituted information not generally known to the

public or within the industry, was acquired by Mr. Treschow during his

employment, and related to the business affairs of Letterle. Accordingly, the

trial court found Letterle’s customer lists and client information met the
____________________________________________


3
  As to Lehman, the trial court denied Letterle’s request to enjoin it from
soliciting Letterle’s clients since Lehman was not a party to the Letterle
Agreement. Trial Court Opinion, filed 6/14/16, at 3.



                                           -7-
J-A11042-17


definition of “confidential information” under the Letterle Agreement.

Further, the trial court concluded the information at issue constituted a trade

secret. Id. at 5-8.

       In support of its conclusions, the trial court pointed to the following

factual findings: (1) When Mr. Treschow left Letterle, he had customer

contact information, including phone numbers, on his personal phone; 4 Id.

at 6; (2) Mr. Treschow forwarded information to his personal email account

shortly before his employment with Letterle ended, Id.;        (3) Mr. Malone

testified that he maintains a customer list of “hot prospects,” and Mr.

Treschow attends the weekly meeting where the “hot prospects” are

discussed, Id.; (4) Mr. Treschow provided the name and personal cell phone

number of Terry Morder, Jr. of the Mount Union Fire Department to a

Lehman employee; Id. at 6-7, and (5) “While customer lists are not always

confidential, the [Letterle Agreement] specifically includes customer lists as

an example of confidential information[,]” Id. at 8.     Accordingly, the trial

court concluded that Mr. Treschow had in his possession Letterle client

information and such information constituted legally protected confidential,

proprietary, or trade secret information of Letterle, which Mr. Treschow



____________________________________________


4
  The trial court noted in its opinion that Mr. Treschow testified the phone
containing this information was destroyed in the washing machine. Id. at 6
n.1.



                                           -8-
J-A11042-17


should be enjoined from using or disclosing to third parties, including

Lehman. Id. at 8.

       This appeal followed on July 14, 2016,5 and all Pa.R.A.P. 1925

requirements have been met.

       On appeal, Appellants claim the trial court erred in granting Letterle’s

preliminary injunction enjoining Mr. Treschow from using or disclosing

Letterle’s customer data, files, and lists. In this regard, Appellants initially

claim that the activity Letterle seeks to restrain (the use and disclosure of

confidential,    proprietary,    trade    secret   customer   information)   is   not

actionable in this specific case.        Specifically, Appellants allege (1) Letterle

failed to prove Mr. Treschow was in possession of customer data, files, or

lists; (2) any customer data, files, or lists in Mr. Treschow’s possession did

not constitute confidential information under the Letterle Agreement as such

information was generally known to the public or within the industry; and



____________________________________________


5
  On June 24, 2016, Appellants filed a motion for post-trial relief and/or
reconsideration. Generally, “[a] motion for post-trial relief may not be filed
to orders...relating to...proceedings which do not constitute a trial.”
Pa.R.Civ.P. 227.1 (c), Note. Thus, the motion at issue is more properly
considered under 42 Pa.C.S.A. § 5505, pertaining to motions for
reconsideration. See Jarl Investments, L.P. v. Fleck, 937 A.2d 1113
(Pa.Super. 2007) (holding pre-trial evidentiary order for preliminary
injunction immediately appealable without post-trial motions). Consequently,
absent an appeal, the trial court had thirty days in which to rule on the
motion. See 42 Pa.C.S.A. § 5505. Since the trial court did not rule on the
motion, Appellants properly filed a timely notice of appeal on July 14, 2016.



                                           -9-
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(3) any customer data, files, or lists in Mr. Treschow’s possession did not

qualify for protection as a trade secret.

      In reviewing preliminary injunction orders, “an appellate court is to

conduct a searching inquiry of the record. Accordingly,...the scope of review

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

580 Pa. 201, 860 A.2d 41, 46 n.7 (2004).

      With regard to the standard of review, appellate review of a trial

court’s order granting or denying preliminary injunctive relief is “highly

deferential.”   Summit Towne Centre, Inc. v. Shoe Show of Rocky

Mount Inc., 573 Pa. 637, 828 A.2d 995, 1000 (2003).              This “highly

deferential” standard of review requires that:

      [I]n reviewing a trial court’s grant or refusal of a preliminary
      injunction, an appellate court does not inquire into the merits of
      the controversy, but rather examines 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 misapplication of
      law.

Warehime, 580 Pa. at 209, 860 A.2d at 46 (quotation marks, quotations,

and footnotes omitted).

      Further, a preliminary injunction will not be granted unless the party

seeking the injunction establishes six essential elements. Id. Specifically,

that party has the burden of proving:

      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

                                     - 10 -
J-A11042-17


      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.

Id. at 209-10, 860 A.2d at 46–47 (quotation marks and quotation omitted).

      With regard to the fourth prong (whether the activity Letterle seeks to

restrain is actionable and Letterle’s right to relief is clear), we note the kinds

of business interests that are considered legitimate and protectable include

confidential information and trade secrets. Shepherd v. Pittsburgh Glass

Works, LLC, 25 A.3d 1233, 1244-45 (Pa.Super. 2011).              In the case sub

judice, the trial court ruled that Letterle’s customer data, files, and lists were

protected as confidential information under the definition provided in the

Letterle Agreement. See Letterle Agreement, 9/30/11, at 1-2 ¶3(a).

Additionally, the trial court concluded that Letterle’s customer data, files,

and lists were entitled to protection as trade secrets.

      Regarding the latter, we note “under certain circumstances, customer

lists and customer data may be entitled to protection as trade secrets.”

Iron Age Corp. v. Dvorak, 880 A.2d 657, 663 (Pa.Super. 2005) (citing

Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d

838 (1957)).




                                      - 11 -
J-A11042-17


     Whether such information is protected depends upon the
     circumstances of its creation. We have previously held that:
             “[i]n many businesses, permanent and exclusive
             relationships are established between customers and
             salesmen. The customer lists and customer
             information which have been compiled by such firms
             represent a material investment of employers’ time
             and money. This information is highly confidential
             and constitutes a valuable asset. Such data has
             been held to be property in the nature of a ‘trade
             secret’ for which an employer is entitled to
             protection,   independent     of  a   non-disclosure
             contract.”
     Robinson Electonic Supervisory Co. v. Johnson, [397 Pa.
     268], 154 A.2d 494, 496 (1959) (emphasis added); see also
     Bell Fuel Corp. [v. Cattolico], 544 A.2d [450], 460 [(Pa.Super.
     1988)] (stating that “[w]here the information is not a particular
     secret belonging to the employer, developed through its efforts
     or investment, and of value to the continuation of the employer’s
     business, no protection is afforded”).

A.M. Skier Agency, Inc. v. Gold, 747 A.2d 936, 940 (Pa.Super. 2000)

(emphasis in original) (internal citation omitted). See Shepherd, 25 A.3d

at 1244 (“A trade secret does not include an employee’s...skill,...mental

ability, or other subjective knowledge.”) (quotation and quotation marks

omitted)); Iron Age Corp., 880 A.2d at 663-64 (“[I]information will not be

given injunctive protection as a trade secret if it can be obtained through

legitimate means by a competitor....[T]o be classified as a trade secret,

information must be an employer’s actual secret and not comprise mere

‘general trade practices.’”) (quotation marks, quotations, and citations

omitted)).




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     With these legal precepts in mind, we turn to an examination of the

record to determine whether there are “any apparently reasonable grounds”

for the trial court’s preliminary injunction enjoining Mr. Treschow from using

or disclosing Letterle’s customer data, files, and lists. See Warehime,

supra; Summit Town Centre, Inc., supra.

     With regard to the trial court’s finding that Mr. Treschow stored

Letterle’s customer information on his personal cell phone, the following

transpired upon questioning of Mr. Treschow by Letterle’s counsel during the

deposition:

     Q: Did you use the same cell phone that you had at the time you
     were employed by Letterle as when you were employed by
     Lehman?
     A: Yeah, it was my personal cell phone.
     Q: It was your personal cell phone?
     A: Yeah.
     Q: Did it have business contacts on it?
     A: Not contacts. If clients chose to call me on that phone, which
     actually they’re no longer stored on there because my phone
     went through our washer at home, and—so I had to get a new
     phone a couple of months ago. So a lot of those contacts are no
     longer there.
                                     ***
     Q: Is it possible Terry Morder’s information resided on your cell
     phone?
     A: It’s possible, yes.
     Q: Okay.     Is it possible other people’s contact information
     resided on that cell phone?
     A: It’s possible, yes.
     Q: Okay. When did that cell phone go through the washing
     machine?


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J-A11042-17


      A: Somewhere like four to six months ago.

Steven Treschow Deposition, 5/18/16, at 64-65, 150-51.

      With regard to the trial court’s factual finding that Mr. Treschow

forwarded Letterle’s clients’ email addresses and/or had possession of a

customer list, Mr. Treschow testified as follows upon questioning by

Letterle’s counsel:

      Q: Okay. When you left Letterle, did you take any kind of
      customer list with you?
      A: No.
      Q: Any printed list?
      A: No
      Q: Anything off a computer?
      A: No.
      Q: Okay. Did you retain business cards of any contacts that you
      may have made while you were at Letterle?
      A: I don’t know.
      Q: Okay. Did you—some people, as a regular course of business,
      maintain a business card file or a folder of some sort. Do you do
      that?
      A: I have one, but in all honesty, with the electronic age, not too
      many people carry business cards anymore.
      Q: Okay. Did you have any kind of, whether it’s the actual cards
      or any kind of indexing on the computer, did you maintain, in
      electronic or paper format, those business contacts?
      A: I did not.
      Q: So when you went to work at Lehman, you had no
      information regarding customer contacts you had while you were
      at Letterle—is that accurate?
      A: No.
      Q: You did not have any of those contacts?
      A: I did not.


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J-A11042-17


     Q: Okay. Did you have Terry Morder’s cell phone number?
     A: Not to my knowledge.
     Q: Did you download on any kind of drive, external drive or flash
     drive or USB port, your contact listing off of your computer from
     Letterle?
     A: No.
     Q: Did you forward any emails from your Letterle account to
     your personal email account?
     A: I don’t remember.
     Q: Okay. Did you maintain a personal email account?
     A: I have one, yes.
     Q: Okay. Is it the Hotmail account we saw?
     A: Yeah.
                                    ***
     Q: Okay. Do you know how Jim Prohonic would have gotten
     Terry Morder’s personal cell phone number?
     A: I don’t know.
     Q: Okay. Do you recall giving that phone number to Jim
     Prohonic?
     A: I don’t.
     Q: Do you recall Jim asking you for his phone number?
     A: No.
                                    ***
     Q: This is an affidavit that Mr. Morder provided to us.
                                    ***
     A: Yes.
                                    ***
     Q: Paragraph 11, [states] [o]n or around December 9th, I
     received a phone call on my personal cell phone from Jim
     Prohonic, who said he obtained my name and cell number from
     [Mr. Treschow].
           Would you agree with that?
     A: No.



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J-A11042-17


       Q: Okay.     So your testimony is you did not provide that
       information to Jim?
       A: I probably....I likely provided the name, but I did not provide
       the cell phone number.

Id. at 87-89, 95.

       Further, during discovery, Letterle asked Mr. Treschow to produce any

emails he had sent to Letterle’s customers or prospective customers after he

was hired by Lehman.       Id. at 126-27.     During the deposition, Letterle’s

counsel asked Mr. Treschow how he examined his email to comply with the

discovery request, and Mr. Treschow indicated that he conducted a “broad

search for certain names, not a specific list, but just certain names.” Id. at

128.   Moreover, with regard to Mr. Treschow forwarding emails from his

Letterle work account to his personal Hotmail account, Mr. Treschow

admitted that, while working for Letterle, he forwarded an email from Mr.

Emero to his personal Hotmail account, but he could not remember whether

he had forwarded any other client contact emails. Id. at 148-49.

       With regard to the trial court’s finding that Mr. Treschow provided Mr.

Malone of Lehman with “hot prospects,” Mr. Treschow testified as follows at

his deposition upon questioning by Letterle’s counsel:

       Q: Okay. [Marty] Malone described weekly staff meetings with
       the directors at Lehman.
       A: Yes.
                                      ***
       Q: Do you attend those meetings?
       A: Sometimes.


                                     - 16 -
J-A11042-17


     Q: Okay. Do you provide prospect lists during those meetings?
     A: We usually provide weekly prospects to Marty, and Marty
     handles all the prospects.
     Q: Okay. How do you provide Marty a prospect list?
     A: Usually by Excel spreadsheet.
     Q: Okay. Is it a running list, meaning you just add to it, or do
     you provide him a new spreadsheet weekly?
     A: Usually a new spreadsheet.
     Q: Okay. Do you retain copies of those?
     A: I don’t. I just overwrite one from one week to the other.
     Q: Do you know if Marty maintains those?
     A: I don’t know.
     Q: Okay.   What do you do at the meetings with that prospect
     list?
     A: You really only discuss new prospects. And really all we do is
     say, Okay. Here’s a new prospect.
     Q: Okay. Did you ever include the Marmon Group as one of your
     new prospects?
     A: No.
     Q: Did you ever discuss Marmon at any of those meetings?
     A: Marmon was discussed, yes.
     Q: Okay. In what context was Marmon discussed?
     A: Marmon was discussed after they became a client of Lehman.
     Q: Okay. How did they become a client of Lehman?
     A: Mr. Ray Avent, who is [the] environmental manager for
     Marmon, called me shortly after my employment with Lehman
     and wanted to retain my services.
     Q: Okay. How did Mr. Avent find you?
     A: We are associates on LinkedIn, and Mr. Avent has my
     personal cell phone number and knows where I live and knows
     my wife and, so....
                                     ***
     Q: You made no contact with him—well, let me ask this. Did you
     make any contact with him when you left Letterle?


                                  - 17 -
J-A11042-17


     A: I believe I may have sent the same email I sent to a lot of
     people, just saying, I’m leaving Letterle. The person taking over
     your project will be Jed Hill, and that’s it. So I believe that’s
     what I sent him.
                                       ***
     Q: Okay. Did you send that email to a specific list of people?
     A: Not really, just people that [Letterle], obviously, did work for
     or were in the process of doing work for, that I wanted to make
     sure there was some kind of transition, that they knew that I
     was going, but that they would be taken care of.
     Q: Okay.
     A: But there was no specific list.
                                       ***
     Q: Okay. Did you feel sharing the name Terry Morder with Jim
     Prohonic was a violation of the nonsolicitation agreement?
     A: No.
     Q: Okay. And why not?
     A: That information can be readily obtained.
                                       ***
     Q: Okay. But you did not feel that their actual customer list was
     confidential; is that accurate?
     A: That’s accurate.
     Q: So you felt you could share the customer list with Lehman; is
     that accurate?
     A: No. I never shared a customer list with Lehman.

Id. at 92-95, 99, 101-02, 118.

     With     regard   to   the   instance   involving   the   Mount   Union   Fire

Department, as the trial court indicated, Mr. Treschow admitted that an

employee of Lehman, James Prohonic, asked Mr. Treschow for the name of

the contact at the Mount Union Fire Department. Id. at 63. Mr. Treschow

testified he gave Mr. Prohonic the name of the fire chief, but he did not


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provide him with a phone number. Id. at 64. Mr. Treschow noted that Mr.

Prohonic was independently aware that the Mount Union Fire Department

was a customer of Letterle’s as he had driven by the fire hall when Letterle

employees were performing work at the site. Id. at 63-64.

      Further, it bears mentioning that Mr. Treschow denied providing

Lehman with the client contact information for Worley & Obetz, Trican Well

Services, or Jeld-Wen, who were clients of Letterle. Id. at 121-23, 136. He

also denied including their names, as well as many other business names, on

any prospective client list, which he provided to Mr. Malone during his

employment with Lehman. Id. at 140-144, 147.            He confirmed that the

Mount Union Fire Department was the only former client of Letterle about

which Mr. Prohonic asked. Id. at 148. Mr. Treschow noted that he did not

have a client list from Letterle; however, even if he did, it would have been

of little value since “a lot of the work that [Letterle] had was at the final

stages of the project life, and there was very little work left.” Id. at 152.

      Martin Malone testified at his deposition that, prior to Lehman hiring

Mr. Treschow, Mr. Malone met with Mr. Treschow to determine whether he

would “fit in” with Lehman.      Martin Malone Deposition, 5/18/16, at 15.

During the meeting, the men did not discuss Letterle’s client base or discuss

any specific clients.   Id. at 16, 26.   Mr. Malone noted that, upon Lehman

hiring Mr. Treschow, Lehman issued a press release to the industry, but it

was not sent to any specific clients. Id. at 37-38.


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      Mr. Malone indicated that Lehman has weekly marketing meetings at

which prospective clients are reviewed. Id. at 40.      Mr. Malone referred to

these as “hot prospects.” Id. He testified that Mr. Treschow attends these

meetings and presents “a list of prospects[.]” Id. at 41. Letterle’s counsel

asked Mr. Malone whether any of the following clients were placed on the list

by Mr. Treschow as possible “hot prospects:” Marmon, United Refining

Company, PWI, Inc., Worley & Obetz, and Trican Well Services. Id. at 42-

44.   With regard to each business, Mr. Malone testified either that he could

not remember whether they were presented as prospective clients or that he

did not believe they had been presented as such. Id. Mr. Malone testified

the only client he could remember Mr. Treschow presenting was Sheetz. Id.

at 44. However, Mr. Malone indicated that he remembered Marmon being

discussed at one of the weekly meetings, although he could not remember in

what capacity.    Id. at 47.      He did not remember Mr. Treschow providing

anyone with a contact name for Marmon, and he was unaware of any

meetings that Lehman had with Mr. Avent of Marmon. Id. at 47-48.

      Upon questioning by Letterle’s counsel, Mr. Malone testified as follows

regarding Mr. Treschow’s possession of a client list:

      Q: Okay. Did you ever see a list from [Mr. Treschow] of clients?
      Did you ever see any kind of list generated by [Mr. Treschow], or
      did he ever provide a list of clients.
      A: A list of our clients?
      Q: A list of clients in any form. Did you ever see a list of clients
      from him when he first became employed?
      A: Not that I remember.

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J-A11042-17


      Q: Okay. Do you recall at any of those meetings whether he
      was ever able to provide a list?
      A: Would you ask me that again, please?
      Q: Sure. At the Monday or Friday meeting, did he ever come
      with a list of clients?
      A: Not that I recall, no.

Id. at 50-51.

      In addition to the depositions of Mr. Treschow and Mr. Malone, the

record contains the sworn affidavits of Terry Morder, Jr., dated February 20,

2015, and Thomas D. Emero, dated November 4, 2015.

      Mr. Morder, of the Mount Union Fire Department, confirmed in his

affidavit that he was Mr. Treschow’s contact when he worked for Letterle.

See Affidavit of Terry Morder, Jr., dated 2/2/15. Mr. Morder indicated that,

after Mr. Treschow left Letterle, he received a telephone call on his personal

cell phone from Mr. Prohonic of Lehman, who indicated “he obtained [Mr.

Morder’s] name and cell phone number from [Mr.] Treschow.” Id. at 2. He

indicated the purpose of Mr. Prohonic’s call was to solicit him as a client for

Lehman.

      Mr. Emero, of the Clinton County Economic Partnership, confirmed in

his affidavit that he met with Mr. Treschow when he was employed at

Letterle for the purposes of discussing a proposal. See Affidavit of Thomas

D. Emero, dated 11/4/15.      Mr. Emero indicated that, just prior to leaving

Letterle, Mr. Treschow solicited him in an attempt to gain business for

Lehman. Id. at 2.


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J-A11042-17


      Upon conducting an extensive review of the record, we conclude there

are   no   “apparently   reasonable   grounds”    for   the   trial   court’s   order

preliminarily enjoining Appellants from “using or disclosing to any third party

[Letterle’s] confidential, proprietary or trade secret information, including

[Letterle’s] client/customer data and files, and client/customer lists.”        Trial

Court Order, filed 6/14/16. See Warehime, supra.

      With regard to Letterle’s customer files and lists, the evidence reveals

that, aside from a list of customers provided by Letterle during the litigation,

Mr. Treschow did not have in his possession any customer files or lists.

While Mr. Malone maintained such a list for Lehman, there is no evidence Mr.

Treschow had such a list of Letterle customers.

      Moreover, as to whether Mr. Treschow had in his possession any

Letterle customer data, the evidence reveals that Mr. Treschow had a

personal cell phone on which the numbers of Letterle customers were

captured when they telephoned Mr. Treschow; while he was working for

Letterle, Mr. Treschow forwarded an email from Mr. Emero to his personal

Hotmail email; and Mr. Treschow had the name and cell phone number of

the fire chief of the Mount Union Fire Department, Mr. Morder, who was a

Letterle customer.

      However, inasmuch as this customer data was developed in the

normal course of business, was not compiled by Letterle, and could have

been obtained through legitimate means, we agree with Appellants that the


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trial court abused its discretion in ruling such customer data to be a Letterle

trade secret. See Iron Age Corp., 880 A.2d at 663 (indicating there is no

legal incentive to protect customer data compiled in the normal course of

business); A.M. Skier Agency, Inc., supra (holding where customer

lists/data is not compiled by employers, may be obtained through legitimate

means, and is no particular secret of the employer it is not entitled to

protection as a trade secret).    Additionally, we agree with Appellants that

such customer data is of the type “generally known to the public or within

the industry” such that it does not meet the requirements of “confidential

information” under the Letterle Agreement. See Letterle Agreement,

9/30/11, at 1-2 ¶3(a). Accordingly, the trial court abused its discretion in

concluding such customer data required protection from disclosure or use by

Mr. Treschow.

      In conclusion, there are no “apparently reasonable” grounds for the

trial court’s conclusion that the activity Letterle sought to restrain (Mr.

Treschow’s use and disclosure of customer data, files, and lists in his

possession) was actionable.      See Warehime, supra.       Thus, we conclude

the trial court erred in granting Letterle’s request for the preliminary

injunction in this regard, and we reverse this portion of the trial court’s June




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14, 2016, order.6 As no party has challenged the trial court’s denial of the

preliminary    injunction    as    to   Letterle’s   request   to   enjoin   Appellants’

solicitation of Letterle customers, we affirm this portion of the trial court’s

June 14, 2016, order.

       Affirmed, in part; Reversed, in part; Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2017




____________________________________________


6
  In light of the foregoing, it is unnecessary to address Appellants’ remaining
issues (i.e., that Letterle did not meet the remaining prongs necessary for
the issuance of a preliminary injunction; the trial court erred in failing to
consider three affidavits submitted by Appellants after oral argument; and
the trial court erred in failing to grant Appellants’ motion for
reconsideration).



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