J-A20015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LAURIE A. JOSEPH                                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

JOHN B. O’LAUGHLIN,

                            Appellant                 No. 1706 WDA 2015

                   Appeal from the Order September 30, 2015
                In the Court of Common Pleas of Fayette County
                    Civil Division at No(s): 1691 of 2015 G.D.

BEFORE: BOWES, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED AUGUST 22, 2017

       John B. O’Laughlin (“O’Laughlin”) appeals from the trial court’s Order

permanently enjoining O’Laughlin from engaging in activities related to the

future operation of a veterinary clinic within a fifty mile radius of the Grace

Veterinary Clinic, Inc. (“Grace Veterinary Clinic”),1 which is owned by Laurie

Joseph (“Joseph”). We affirm.

       On December 23, 2014, O’Laughlin and Joseph executed an asset

transfer agreement (“the Agreement”) outlining Joseph’s purchase of the

Grace Veterinary Clinic.       The Agreement included the following restrictive

covenant:

       [O’Laughlin] acknowledges and agrees that he will not be
       involved in any of the following activities at any location within
       fifty (50) miles of the veterinary clinic (“Geographic Area”).
       [O’Laughlin] covenants and agrees that for a period of five (5)
____________________________________________


1
  Grace Veterinary Clinic is located at 1565 Route 31 in Westmoreland
County, Pennsylvania.
J-A20015-16


       years following the execution of this Agreement, he shall not
       directly or indirectly, as an employer, employee, principal, agent,
       consultant, partner, stockholder, creditor or in any other
       capacity, engage or participate in any business or practice within
       the Geographic Area that is in competition in any manner
       whatsoever with the Buyer. Further, [O’Laughlin] shall not
       contact, solicit, or engage in any activity to contact or solicit,
       indirectly or directly, any client, past, present, or future, during
       that five (5) year period.

Agreement, 12/24/14, ¶ 3 (at unnumbered page 3).                 The restrictive

covenant, which expires on December 24, 2019, comprised $17,973.50 of

the $750,000 sale price.2 Id. at ¶ 4.

       Approximately six months later, on July 2, 2015, O’Laughlin filed a

Petition for Special Exemption with the Fayette County Zoning Hearing

Board, wherein he requested permissive use to operate a veterinary clinic at

114 Eannotti Road, Dawson Pennsylvania, which is approximately eight

miles from the Grace Veterinary Clinic. The zoning hearing was scheduled

for August 26, 2015.           Meanwhile, O’Laughlin formed a limited liability

company (O’Laughlin Veterinary Services), created a Facebook page of the

same name, and purchased equipment. The Facebook page included a link

that advised followers that the clinic was, “coming soon,” and when

activated, the link directed users to the business’s location on a map.



____________________________________________


2
  Each of the remaining intangible assets involved in the sale, i.e., goodwill,
use of the brand name for six months, and customer base, were also valued
at $17,973.50. See Agreement, ¶ 3 (at unnumbered page 3).



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       On August 25, 2015, Joseph filed an action for injunctive relief,

seeking to enforce the Agreement’s restrictive covenant.           Specifically,

Joseph sought to permanently enjoin O’Laughlin from operating a veterinary

clinic and prohibit him from seeking the zoning variance that was scheduled

for a hearing the following day. On the same date, Joseph filed a self-styled

Motion for Preliminary/Permanent Injunction requesting the identical relief.

       On August 27, 2015, the trial court entered a preliminary injunction

against O’Laughlin, ordering him to “cease and desist any veterinary

operations at … 114 Eannotti Road,” and suspending the zoning hearing

pending disposition of the permanent injunction action. Thereafter, following

an evidentiary hearing, the trial court entered the permanent injunction at

issue in this appeal.        Specifically, the court prohibited O’Laughlin from

operating a veterinary clinic within fifty miles of Grace Veterinary Clinic,

canceled the zoning hearing, dismissed O’Laughlin’s petition for a special

exemption, directed O’Laughlin to cease operations at the 114 Eannotti Road

facility, and enjoined O’Laughlin “from engaging in any activity that would

violate the [] Agreement[.]” Trial Court Order, 9/30/15, at 2. Thereafter,

O’Laughlin filed the instant timely appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.3

____________________________________________


3
  O’Laughlin initially leveled three claims; however, he filed an Amended
Concise Statement, which included an additional claim.




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      O’Laughlin presents the following claims for our review:

      1.    Did the [trial] court err in entering the permanent
      injunction order in favor of [Joseph] by citing to and relying upon
      as precedential authority in its opinion an unpublished
      memorandum decision of the Pennsylvania Superior Court.

      2.    Did the [trial] court err in entering the permanent
      injunction order when the prerequisite legal elements for the
      issuance of such an injunction [were never established]?

      3.    Did the [trial] court err in entering the permanent
      injunction order in favor of [Joseph,] based on proof of
      [O’Laughlin’s] preliminary actions in preparing to compete
      against [Joseph] at a future point in time?

      4.    Did     the [trial] court err in entering the permanent
      injunction   order in favor of [Joseph] as the order exceeded the
      scope of     the proof advanced by [Joseph] at the permanent
      injunction   hearing?

Brief of Appellant at 4 (issues renumbered for ease of disposition).

      O’Laughlin first claims that the trial court erred in relying upon this

Court’s unpublished decision in Atkinson & Mullen Travel, Inc., et al. v.

O’Brien, et al, 2944 EDA 2012 (Pa. Super. filed May 5, 2014) (unpublished

memorandum), as authoritative precedent in rendering its decision. In that

case, we inferred a need, in light of that appellant’s past litigiousness, for a

permanent injunction to prevent the appellant from engaging in serial

litigation against a defendant, even though no lawsuit was pending.

Presently, the trial court relied upon our discussion in the unpublished

memorandum         to   support   its   analogous   rationale   that   O’Laughlin’s

preparations violated the restrictive covenant because “it [was] improbable

that [O’Laughlin] took all of the aforementioned actions so that he could be

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J-A20015-16


ready to compete on December 24th, 2019, and not before.”             Trial Court

Opinion, 9/30/15, at 5.

       As O’Laughlin accurately observes, Superior Court Internal Operating

Procedure § 65.37 precludes any court or party from citing or relying upon

an unpublished memorandum decision except in limited situations that are

not implicated in this case. Specifically, the proviso states,

       A. An unpublished memorandum decision shall not be relied
       upon or cited by a Court or a party in any other action or
       proceeding, except that such a memorandum decision may be
       relied upon or cited (1) when it is relevant under the doctrine of
       law of the case, res judicata, or collateral estoppel, and (2) when
       the memorandum is relevant to a criminal action or proceeding
       because it recites issues raised and reasons for a decision
       affecting the same defendant in a prior action or proceeding.
       When an unpublished memorandum is relied upon pursuant to
       this rule, a copy of the memorandum must be furnished to the
       other party to the Court.

Superior Court IOP § 65.37(A).

       Here, the trial court relied upon our legal analysis in the unrelated

unpublished memorandum in order to draw the inference that O’Laughlin’s

preparations threatened Joseph with a substantial injury.        Accordingly, we

agree with O’Laughlin that the trial court erred in relying upon that analysis

as having any precedential value.4               However, we reject O’Laughlin’s


____________________________________________


4
   We observe that our Supreme Court is currently considering a proposal
from the Appellate Court Procedural Rules Committee that would permit
citation to unpublished memorandum as persuasive authority. Nevertheless,
as of the date of this Opinion, our Supreme Court has not endorsed the
(Footnote Continued Next Page)


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concomitant assertion that the misstep is tantamount to reversible error. To

the contrary, for the reasons explained infra, we conclude that the certified

record supports the trial court’s imposition of a permanent injunction.

      We review an order granting permanent injunctive relief de novo and

our scope of review is plenary. Kuznik v. Westmoreland County Bd. of

Comm’rs, 902 A.2d 476, 489 (Pa. 2006).                   “To justify the award of a

permanent injunction, the party seeking relief must establish that his right

to relief is clear, that an injunction is necessary to avoid an injury that

cannot be compensated by damages, and that greater injury will result from

refusing rather than granting the relief requested.”               Id. (citations and

internal quotation marks omitted).               Additionally, “[u]nlike a preliminary

injunction, a permanent injunction does not require proof of immediate

irreparable harm.” Liberty Place Retail Assocs., L.P. v. Israelite School

of Universal Practical Knowledge, 102 A.3d 501, 506 (Pa. Super. 2014).

      We address O’Laughlin’s next two claims together.              First, O’Laughlin

challenges the trial court’s determination that Joseph established the three

components of a permanent injunction.                    Brief for Appellant at 11.

Specifically, he asserts that at the hearing, Joseph did not adduce evidence

establishing a clear right to relief, insofar as O’Laughlin’s actions did not

constitute a violation of the restrictive covenant. Id. at 12. The crux of this
                       _______________________
(Footnote Continued)

proposed rule or promulgated an amendment that would sanction the trial
court’s citation to our unpublished memorandum decision in this situation.



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contention is that O’Laughlin’s activities did not constitute engaging in a

competing business or soliciting potential clients. Id. at 12-13.

       O’Laughlin highlights that he did not operate a veterinary clinic within

the prohibited area, and asserts that the only evidence of his alleged

violation was the creation of the Facebook page, and the petition he filed

with the zoning board for a special exemption to operate a veterinary

facility.   Id. at 13.    Framing these actions as merely “preparatory,”

O’Laughlin contends that no evidence exists of his present intention of

opening a veterinary clinic on the site in violations of the restrictive

covenant. Id. O’Laughlin continues, “even if he had such present intention

it would be several years before that intention would manifest itself in actual

competition . . . with Joseph.”    Id.   Hence, he concludes that the record

does not sustain the trial court’s finding of a clear right to relief. Id. at 13-

14.

       The second aspect of this argument assails the portion of the trial

court’s rationale that anticipates a breach of the restrictive covenant based

upon O’Laughlin’s “very preliminary efforts” to compete with Joseph at some

undisclosed point in the future. Id. at 15. O’Laughlin relies upon a mixture

of persuasive authority, including the Restatement (Second) of Agency, and

cases from various sister jurisdictions that address an employee’s duty of

loyalty to his employer in the absence of a restrictive covenant. O’Laughlin

highlights that, in those fact-sensitive cases, the various jurisdictions have


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J-A20015-16


determined    that   incorporating   a    business,   registering   a   trademark,

purchasing equipment, and obtaining office space, bank account, and

telephone listings were permissible preparatory measures. Id. at 16.

In contrast to covenants not to compete in employment contracts, a

restrictive covenant included in an agreement for the sale of an established

business are intended to temporarily limit a seller’s competition with a

purchaser, in order for the purchaser to establish its own cliental:

      General covenants not to compete which are ancillary to the sale
      of a business serve a useful economic function; they protect the
      asset known as ‘good will’ which the purchaser has bought.
      Indeed, in many businesses it is the name, reputation for
      service, reliability, and the trade secrets of the seller rather than
      the physical assets which constitute the inducements for a sale.
      Were the seller free to re-enter the market, the buyer would be
      left holding the proverbial empty poke.

Id.   Consistent with our Supreme Court’s perspective, we review the

restrictive covenant in the present case with an eye toward ensuring that

both sides to the asset transfer agreement obtain the benefit of their

bargain.

      In the instant case, the specific language of the Agreement provided

that O’Laughlin

      shall not directly or indirectly, as an employer, employee,
      principal, agent, consultant, partner, stockholder, creditor or in
      any other capacity, engage or participate in any business or
      practice within the Geographic Area that is in competition …
      with the Buyer. Further, [O’Laughlin] shall not contract, solicit,
      or engage in any activity to contact or solicit, indirectly or
      directly, any client, past present, or future, during that five (5)
      year period.


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J-A20015-16


Agreement, ¶ 3 (emphasis added).         The trial court determined O’Laughlin

was “preparing to violate the non-compete [A]greement],” when he

      1. Created a limited liability company with the name “O’ Laughlin
      Veterinary Services;”

      2. Purchased Equipment;

      3. Created, or had created on his behalf, a Facebook page with
      the name “O’ Laughlin Veterinary Services;”

      4. Indicated on the Facebook page that the clinic was “Coming
      Soon;”

      5. Applied for a special exception permit;

      6. Stated that the intended use of his property was for a
      “veterinary clinic;” and

      7. Proposed to locate said veterinary clinic less than nine (9)
      miles from Grace Veterinary Clinic, well within the fifty (50) mile
      prohibited radius.

Trial Court Opinion, 9/30/15, at 4. Consequently, the trial court concluded

that Joseph had satisfied the threshold element of a permanent injunction,

i.e. a clear right to relief. See id.

      Our review of the record discloses that the restrictive covenant at

issue was not limited to O’Laughlin’s practice of veterinary medicine. By its

plain language, the restrictive covenant barred O’Laughlin from, “directly or

indirectly”   “engag[ing]      or   participat[ing]     in    any   business”   in

competition    with   Appellee’s    business   within   the    Geographic   Area.

Agreement, ¶ 3 (emphasis added). O’Laughlin’s creation of a limited liability

company, purchasing equipment, and seeking a special exception zoning


                                        -9-
J-A20015-16


permit are all integral parts of “engag[ing] or participat[ing]” in the business

of operating a competing veterinary clinic, within the Geographic area. See

id.   As such, they were patently prohibited by the Agreement’s restrictive

covenant.

       O’Laughlin’s reliance upon case law regarding an employee’s duty of

loyalty to an employer is not particularly helpful.5 Generally, covenants not

to compete, which are ancillary to employment contracts, are subjected to a

higher scrutiny than their counterparts that supplement the sale of a

business. Morgan’s Home Equipment Corp. v. Marticci, 136 A.2d 838,

846 (Pa. 1957).       In Spring Steels, Inc. v. Molloy, 162 A.2d 370 (Pa.

1960), our Supreme Court observed that, absent a restrictive agreement, an

employee may make preparations to compete before the end of his

employment, and not breach his/her fiduciary duty of loyalty.       Id. at 375.

Other jurisdictions have similarly recognized that preparations to compete

may violate an employee’s duty of loyalty, where there exists a restrictive

covenant.

       For example, the United States Court for the Eastern District of

Pennsylvania has explained that,

       where an employee, bound by a restrictive covenant, makes
       preparations to compete with his current employer, the
____________________________________________


5
  We reject O’Laughlin’s reference to agency law summarily, as those tenets
are entirely inapplicable to the case at bar.




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J-A20015-16


     employee could be said to have breached his duty of loyalty by
     seeking employment with admitted competitors of the employer
     while still employed because the results of the employees’
     activities could be construed as contrary to the express interests
     of employer.

Synthes, Inc. v. Emerge Med., Inc., 25 F. Supp. 3d 617, 667-68 (E.D. Pa.

2014) (emphasis added). See also Mattern & Assocs., L.L.C. v. Seidel,

678 F. Supp. 2d 256, 268 n.10 (D. Del. 2010) (noting that preparations to

compete, which would not be actionable under a breach of fiduciary duty

theory, may be actionable where an employee is bound by a restrictive

covenant); Sales & Mktg., Inc. v. Menaged, No. Civ.A.97-4966, 1998 U.S.

Dist. LEXIS 14008, 1998 WL 575270, at *7 (E.D. Pa. Sept. 9, 1998)

(recognizing that “Defendants were at-will employees and were not subject

to any covenants not to compete with Plaintiff once they left the company,

so their formation of a competing company, and even the steps they took to

form the company while still employed by L&N, was not illegal.”) (emphasis

added).   Thus, preparations to compete may be barred by an employee’s

duty of loyalty, where there exists a restrictive covenant.   As a result, we

are not persuaded by O’Laughlin’s reliance upon employment cases.

      O’Laughlin also directs our attention to Berardi’s Fresh Roast, Inc.

v. PMD Enter., Inc. 2008 Ohio App. Lexis 4618 (Ohio Ct. App. 2008), a

case from a sister jurisdiction, as support for his position that his




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J-A20015-16


preparatory measures did not breach the sales agreement.6      In Berardi’s

Fresh Roast, the seller had “entered into a noncompetition agreement

which prevented him from re-entering the coffee industry for three years.”7

Id. at *3.     The Ohio appellate court determined that the seller did not

violate the noncompetition agreement when he organized a new coffee

roasting enterprise, investigated finance options, leased warehouse space,

hired employees, and ordered equipment and supplies prior to the expiration

of the noncompetition agreement. Id. at *13. In so holding, the Ohio court

distinguished between preparing to compete, and actual competition. Id. at

*13-*14.     We cannot conclude that this case is supportive of O’Laughlin’s

position, where the restrictive covenant at issue is not set forth in the

decision.

       In this case, the record reflects that O’Laughlin formed a limited

liability company styled, “O’Laughlin Veterinary Services,” acquired medical

____________________________________________


6
   The Court of Appeals for Ohio permits citation to and reliance upon its
unpublished cases filed after May 1, Specifically, the Ohio Supreme Court
Rules for the Reporting of Opinions provides that

       [a]ll opinions of the courts of appeals issued after May 1, 2002
       may be cited as legal authority and weighted as deemed
       appropriate by the courts without regard to whether the opinion
       was published or in what form it was published.

Rep.Op.R. 3.4.
7
 The text of the noncompetition agreement is not set forth in the Court of
Appeals’ decision.



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J-A20015-16


equipment, purchased real estate, and applied for a special use zoning

exception that would permit him to build and use a facility as a veterinary

clinic. By these actions, O’Laughlin “directly or indirectly” “engag[ed] or

participat[ed] in any business” in competition with Joseph’s business,

within the Geographic Area. See Agreement, ¶ 3. These actions were a

clear violation of the restrictive covenant, and evince a clear right to relief as

to that aspect of a permanent injunction.

      We next address O’Laughlin’s solicitation of customers through social

media.   As the trial court observed, O’Laughlin created a Facebook page

under the name O’Laughlin Veterinary Services and maintained contact with

former clients of Grace Veterinary Clinic. Trial Court Opinion, 9/30/15, at 2-

3.     We conclude that O’Laughlin’s action in this regard violated the

restrictive covenant set forth in the Agreement.

      As noted supra, the final proviso in the non-compete clause stated that

“[O’Laughlin] shall not contact, solicit, or engage in any activity to contact or

solicit, indirectly or directly, any client, past, present, or future, during [the]

five (5) year period.” Asset Transfer Agreement, ¶ 3; Appellee’s Exhibit A.

O’Laughlin operated a Facebook page under the name O’Laughlin Veterinary

Services. Joseph testified that she visited the Facebook page after a client

informed her about O’Laughlin’s then-pending zoning petition.              Joseph

described the page and explained how the “Coming Soon” banner directed

her to a website that provided a map and written driving directions from a


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J-A20015-16


given point to O’Laughlin Veterinary Services at the address identified in the

zoning petition. N.T., 9/24/15, at 60-61, 66.

      The O’Laughlin Veterinary Services page on Facebook utilized the URL

https://www.facebook.com/DrOlaughlin and indicated that it was affiliated

with the American Veterinary Medical Association.     The home page invited

viewers “to connect with O’Laughlin Veterinary Services.”      See Appellee’s

Exhibit G (O’Laughlin’s Facebook posts between 7/16/15 and 9/23/15).

Through the social media page, O’Laughlin shared various animal-related

links, images, and posts with former clients, other practitioners, and entities

involved in pet care and animal nutrition. As it relates to the present issue,

O’Laughlin’s interactions with some of his former clients require further

examination.

      On September 5, 2015, Kay Clark, a former client who was active on

the Facebook page, commented that O’Laughlin was the “[o]nly vet I have

ever taken my [pets] to” and “hopefully [he is] back soon.” Exhibit G at 28.

Approximately two weeks later, O’Laughlin posed the cryptic query, “Guess

who else will be text updating [sic] owners??? … It starts with an O’[.]” Id.

at 17. Three days later, on September 20, 2015, another client expressed,

“[O’Laughlin] is a supper [sic] great Vet” and “[Can’t] wait for the new

clinic to open.” Id. at 18 (emphasis added). Thus, nine months from the

date the parties executed the Agreement, and more than four years and

three months before the restrictive convenient expired, O’Laughlin was


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J-A20015-16


actively contacting former clients and indirectly soliciting their business in

anticipation of opening his new clinic.

      We reject O’Laughlin’s assertion that Joseph conceded “that the

Facebook page in no way constituted an advertisement for veterinary

services or a solicitation of veterinary services customers by O’Laughlin.”

Brief of Appellant at 13. The contention is factually inaccurate. In reality, to

the extent that Joseph offered any concessions, it was that the Facebook

page did not indicate that O’Laughlin was registering new patients or

accepting clients. See N.T., 9/24/15, at 79. Thus, O’Laughlin’s perception

of the purported concession is skewed. More importantly, notwithstanding

O’Laughlin’s mischaracterization, the fifty-six page exhibit that memorialized

the three months of entries on the O’Laughlin Veterinary Services Facebook

page speaks for itself.

      Upon review of that document, it is obvious that, collectively, the

posts, “coming soon” announcement, and map directions, are tantamount to

a solicitation of past or future clients in contravention of the non-compete

clause.   The resounding purpose of the Facebook page, and the attendant

communications therein, was to inform the followers of the page, including

former clients, that he intended to open a new clinic and to keep them

apprised of his progress. There is but one reason for O’Laughlin to create

the O’Laughlin Veterinary Services Facebook page and maintain contact with

former clients: to solicit their business


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J-A20015-16


      Further, despite O’Laughlin’s protestations to the contrary, the fact

that Joseph only rented use of the brand name for six months does not alter

our analysis.   As enumerated in the agreement, the temporary use of the

brand name is a distinct component of the agreement with consideration

separate and apart from the restrictive covenant.           Although Joseph’s

exclusive use of the brand name expired during June 2015, O’Laughlin’s

contractual obligations and the remaining intangible assets endured. Thus,

O’Laughlin’s argument that the expiration of the six months somehow

affected his contractual obligation to abstain from solicitation pursuant to the

restrictive covenant is unpersuasive.

      As O’Laughlin’s continued public discourse with his former clients

under the banner of O’Laughlin Veterinary Services is an express violation of

the restrictive covenant, we conclude that Joseph demonstrated a clear right

to relief in this regard and, on this basis, we affirm the portion of the trial

court’s permanent injunction relating to O’Laughlin’s operation of the

O’Laughlin Veterinary Services’ Facebook page.       See Braun v. Wal-Mart

Stores, Inc., 24 A.3d 875, 892 (Pa. Super. 2011) (Superior Court may

affirm on any basis supported by the record).

      Having found a clear right to relief, we address the remaining

elements of Joseph’s request for a permanent injunction, i.e., (1) the

absence of an adequate remedy at law; and (2) that the greater injury will

result from refusing injunctive relief. Beyond the conclusory statement that,


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J-A20015-16


“the Lower Court erred in its conclusion that the recited elements for a

permanent injunction [regarding an actual and substantial injury] had been

established through the record proof,” O’Laughlin does not challenge the

second element of the decision to grant a permanent injunction.          Brief of

Appellant at 12.      O’Laughlin’s argument relating to the final element of

Joseph’s claim is only slightly more developed. In sum, O’Laughlin contends

that the trial court failed to balance the respective harms to the parties. Id.

at 14.

         In light of O’Laughlin’s failure to level comprehensive legal arguments

addressing either of these components, both assertions are waived. See In

re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (quoting In re A.C., 991

A.2d 884, 897 (Pa. Super. 2010), and stating that, “where an appellate brief

fails to provide any discussion of a claim with citation to relevant authority

or fails to develop the issue in any other meaningful fashion capable of

review, that claim is waived.”). Moreover, even assuming that O’Laughlin’s

cursory arguments are reviewable, no relief is due.

         O’Laughlin’s bare claims not only are wholly insufficient, but they also

mischaracterize the record. In order to establish this aspect of her request

for a permanent injunction, Joseph was required to demonstrate that “actual

and substantial injury is likely in the future.”          Peugeot Motors of

America, Inc. v. Stout, 456 A.2d 1002, 1008 (Pa.Super. 1983) (emphasis

added).       Notwithstanding O’Laughlin’s contention, the certified record


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demonstrates      that   Joseph   is   likely    to   be   harmed   by    O’Laughlin’s

unobstructed actions and solicitation of her clients, whether direct or

indirect. Recall that Joseph had a bargained-for-expectation of those clients

because she paid O’Laughlin $53,920.50 to acquire the goodwill and client

list for Grace Veterinary Clinic, and for O’Laughlin’s promise to forego

contacting or soliciting past, present, and future clients.              Thus, having

received compensation for his noninterference with his former customers, it

would be incongruous to permit O’Laughlin to spend the ensuing five years

soliciting those clients on Facebook in anticipation of opening a rival clinic

after the restrictive covenant expired.         In sum, Joseph demonstrated that

substantial injury is likely if O’Laughlin is not enjoined from directly or

indirectly soliciting clients.

      For a similar reason, we reject O’Laughlin’s complaint that the trial

court did not weigh the respective injuries associated with granting and

denying the requested relief.          In addition to being waived as woefully

underdeveloped, see In re W.H., supra, at 339 n.3, we observe that the

greater injury to Joseph in the absence of injunctive relief is obvious. Unlike

O’Laughlin’s purely preparatory measures that we outlined supra, competent

evidence exists in the certified record to establish O’Laughlin’s solicitation of

the former clients of Grace Veterinary Clinic. The sample of the comments

posted on the O’Laughlin Veterinary Clinic Facebook page by O’Laughlin’s

former clients are revealing.          The clients affirmed their allegiance to


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O’Laughlin notwithstanding his absence by stating “hopefully [he is] back

soon” and declaring “[Cant’] wait for the new clinic to open.” Exhibit G at

18, 28. Moreover, O’Laughlin further enticed his former clients with his own

esoteric post referencing an anticipated text message that he intended to

send to pet owners about an unsaid event.         Id. at 17.    In contrast to

O’Laughlin’s benign measures to ready a prospective business, his pervasive

contact with former clients on social media since July 2015 and his indirect

solicitation of those clients had a direct impact of Joseph’s clientele, i.e.,

their resolve to renew their commitment to O’Laughlin and follow him to his

new practice when it opened in 2019. Again, still mindful of the premium

that Joseph paid O’Laughlin for the clinic’s goodwill and an unhindered

opportunity to retain its customers, the greater injury resulting from a denial

of injunctive relief is patent.   See Morgan’s Home Equipment Corp,

supra at 846. (“covenants not to compete which are ancillary to the sale of

a business serve a useful economic function . . . [w]ere the seller free to re-

enter the market, the buyer would be left holding the proverbial empty

poke”).

      For all of the foregoing reasons, we affirm the Order granting the

permanent injunction.

      Order affirmed.

      Judge Stabile joins the memorandum.

      Judge Bowes files a concurring and dissenting memorandum.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2017




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