J-A26021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMPREHENSIVE WOMEN’S HEALTH                        IN THE SUPERIOR COURT OF
SERVICES, P.C.                                            PENNSYLVANIA

                            Appellant

                       v.

TIMOTHY G. GRUBE, D.O.

                            Appellee                     No. 268 MDA 2014


                Appeal from the Order Entered January 31, 2014
               In the Court of Common Pleas of Schuylkill County
                       Civil Division at No(s): S-22-2014


BEFORE:       BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                            FILED DECEMBER 17, 2014

       Appellant,    Comprehensive        Women’s   Health   Services,   P.C.   (the

Corporation), appeals from the January 31, 2014 order denying its motion

for preliminary injunction against Appellee, Timothy G. Grube, D.O. (Dr.

Grube), as a remedy for his breach of the parties’ employment contract.1

After careful review, we affirm.

       The trial court summarized the factual history of this case as follows.

              [Dr. Grube] is employed as a doctor with [the
              Corporation] since July of 2000. The Corporation
              was formed by [Robert M. Zimmerman, Jr., D.O. (Dr.
              Zimmerman)] on May 21, 1993. The Corporation
              employs two other obstetricians/gynecologists and
____________________________________________
1
   Pennsylvania Rule of Appellate Procedure 311(a)(4) provides that “[a]n
order that grants or denies … an injunction,” is subject to an appeal as of
right. Pa.R.A.P. 311(a)(4).
J-A26021-14


          they are [Dr. Zimmerman] and David P. Krewson,
          D.O. (“Dr. Krewson”). Dr. Grube was employed as
          an associate with the Corporation from July 2000 to
          2004.

                  Sometime in 2004[,] Dr. Zimmerman, Dr.
          Krewson, and Dr. Grube (collectively “the doctors”)
          began to look for a larger building to serve the
          expanding business of the Corporation. The doctors
          also agreed in 2004 that Dr. Grube would be a
          shareholder in the Corporation and a one-third
          owner of ZKG Realty. ZKG Realty was a limited
          liability company that was formed by the doctors on
          August 31, 2004 to purchase the real estate and
          lease it to the Corporation. On May 17, 2005, ZKG
          Realty purchased a property known as 171 Red
          Horse Road, Pottsville, Pennsylvania. When ZKG
          purchased the property[,] the doctors borrowed
          approximately 2.9 million dollars for the acquisition
          of the building and for renovations to the building.
          The mortgage on the new building was for 20 years
          and each doctor had to execute personal guarantees.

                 The doctors also entered into an employment
          agreement dated January 1, 2005[,] that outlined
          the terms of each doctor’s employment with the
          Corporation. The employment agreement contained
          a restrictive covenant in paragraph 10(a) and
          10(b)[,] which prohibited any doctor from opening a
          competing obstetric or gynecological practice within
          15 miles of the Corporation for 3 years.         The
          restrictive covenant also prohibited any of the
          doctors from soliciting patients of the Corporation
          and from inducing employees of the Corporation
          from leaving employment with the Corporation.
          Paragraph 10(b) of the restrictive covenant also
          provided that if an employee does not comply with
          the conditions contained in this sub-paragraph 10(b),
          then [the] employee shall not be entitled to receive
          deferred compensation pursuant to paragraph 9, and
          [the] employee shall return to the Corporation any
          amount of deferred compensation paid to the
          employee. [The] Corporation’s right not to pay or to
          discontinue payment of deferred compensation

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J-A26021-14


            pursuant to this sub-paragraph 10(a), and to receive
            back     from   [the]    employee      any    deferred
            compensation paid pursuant to paragraph 9, shall be
            [the] Corporation’s sole remedy for [the] employee’s
            failure to comply with all the conditions contained in
            this sub-paragraph 10(a).

                  On or about August 19, 2013, Dr. Grube gave
            written notice pursuant to paragraph 3(b) of the
            employment agreement that he would be resigning
            from the Corporation effective July 1, 2014. Several
            weeks after his written resignation, Dr. Grube orally
            informed Dr. Zimmerman and Dr. Krewson that his
            last day of work with the Corporation would be
            December 31, 2013. Dr. Grube was aware that his
            employment agreement had a restrictive covenant
            and it prohibited him from practicing within 15 miles
            of the Corporation for 3 years.

                   Dr. Grube purchased an office building at 219
            South Balliet Street, Frackville, Pennsylvania, and
            Dr. Grube testified that he planned to open a new
            business[,] Grube Gynecology[,] at that address.
            The proposed office of Grube Gynecology at 219
            South Balliet Street, Frackville, Pennsylvania, is
            approximately 10 to 12 miles from the Corporation’s
            office and the Pottsville Hospital and would be in
            violation of the restrictive covenant that prohibits a
            practice within 15 miles. Dr. Grube has promised
            employment to at least 3 employees who were
            employed by the Corporation. In January 2014,
            after leaving his employment with the Corporation,
            Dr. Grube placed advertisements for current and
            future patients for Grube Gynecology both online and
            in the Pottsville Republican newspaper. []

Trial Court Opinion, 4/2/14, at 2-4.

      On January 7, 2014, the Corporation filed a complaint, seeking an

injunction against Dr. Grube for breach of contract and breach of fiduciary

duty. Contemporaneously, the Corporation filed a motion for a preliminary


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injunction, “which enforces the restrictive covenant in the [e]mployment

[c]ontract between [t]he Corporation and [Dr. Grube] … for a period of three

years, but at the very least, until July 1, 2014….” The trial court conducted

a hearing on the motion for preliminary injunction on January 14, 2014. On

January 31, 2014, the trial court entered an order denying the Corporation’s

motion for preliminary injunction, together with an opinion containing its

findings of fact and legal conclusions. The Corporation filed a timely notice

of appeal on February 7, 2014.2

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

              A.     Did the trial court commit an abuse of
                     discretion by finding that [Dr.] Grube’s failure
                     to abide by the notice provision of his
                     employment contract did not immediately and
                     irreparably harm the [C]orporation?

              B.     Did the trial court commit an abuse of
                     discretion by not enjoing [sic] [Dr.] Grube’s
                     unlawful competition despite finding that the
                     [C]orporation proved all elements required for
                     a preliminary injunction?

              C.     [Did t]he trial court commit[] an abuse of
                     discretion (1) by finding the employment
                     agreement clear and unambiguous when both
                     [the Corporation] and [Dr. Grube] offered
                     reasonable, contradictory readings of the
                     employment agreement, which rendered the
                     employment agreement ambiguous, thus
                     allowing [the Corporation] to introduce parol
                     evidence    to    prove    the    employment
                     agreement’s terms and meanings and (2) by
____________________________________________
2
  The Corporation and the trial court have complied with Pennsylvania Rule
of Appellate Procedure 1925.


                                           -4-
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                     ignoring the ample extrinsic evidence offered
                     by [the Corporation] to prove the existence of
                     a valid restrictive covenant, which was the
                     most reasonable, probable and natural reading
                     of the employement [sic] agreement, and,
                     therefore, is the preferred reading under
                     Pennsylvania law[?]

Corporation’s Brief at 4.

       Our standard of review of a challenge to a trial court’s order refusing a

preliminary injunction is well settled.

                    [O]n an appeal from the grant or denial of a
              preliminary injunction, we do not inquire into the
              merits of the controversy, but only examine the
              record to determine if there were any apparently
              reasonable grounds for the action of the court below.
              Only if it is plain that no grounds exist to support the
              decree or that the rule of law relied upon was
              palpably erroneous or misapplied will we interfere
              with the decision of the Chancellor.

Brayman Constr. Corp. v. Com., Dep’t of Transp., 13 A.3d 925, 935-

936 (Pa. 2011) (citations omitted).            “The standard of review applicable to

preliminary injunction matters … is highly deferential.” 3         Duquesne Light

____________________________________________
3
  Our level of deference is further dependent on the nature of the
preliminary injunction sought.

              An injunction can be either preventative or
              mandatory in nature.       While the purpose of all
              injunctions is to preserve the status quo, prohibitory
              injunctions do this by forbidding an act or acts while
              mandatory injunctions command the performance of
              some specific act that will maintain the relationship
              between the parties. Thus, preventative injunctions
              maintain the present status of the parties to the
              litigation by barring any action until the litigants’
(Footnote Continued Next Page)

                                           -5-
J-A26021-14


Co. v. Longue Vue Club, 63 A.3d 270, 275 (Pa. Super. 2013) (citation

omitted), appeal denied, 77 A.3d 1260 (Pa. 2013).              “The purpose of a

preliminary injunction is to prevent irreparable injury or gross injustice by

preserving the status quo as it exists or as it previously existed before the

acts complained of in the complaint.”            Ambrogi v. Reber, 932 A.2d 969,

974 (Pa. Super. 2007) (citation omitted), appeal denied, 952 A.2d 673 (Pa.

2008). “Any preliminary injunction is an extraordinary, interim remedy that

should not be issued unless the moving party’s right to relief is clear and the

wrong to be remedied is manifest.” Id.

                    In ruling on a preliminary injunction request, a
             trial court has “apparently reasonable grounds” for
             its denial of relief where it properly finds that any
             one of the following “essential prerequisites” for a
             preliminary injunction is not satisfied.        “For a
             preliminary injunction to issue, every one of the [ ]
             prerequisites must be established; if the petitioner
             fails to establish any one of them, there is no need
             to address the others.” First, a party seeking a
             preliminary injunction must show that an injunction
             is necessary to prevent immediate and irreparable
             harm that cannot be adequately compensated by
             damages. Second, the party must show that greater
             injury would result from refusing an injunction than
                       _______________________
(Footnote Continued)
             rights are adjudicated on the merits. Mandatory
             injunctions require the performance of a positive
             action to preserve the status quo, are subject to
             greater scrutiny, and must be issued more cautiously
             than preventative injunctions.

Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1241 (Pa.
Super. 2011) (internal quotation marks and citations omitted).             The
preliminary injunction sought by the Corporation in this case is prohibitory.



                                            -6-
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            from granting it, and, concomitantly, that issuance of
            an injunction will not substantially harm other
            interested parties in the proceedings. Third, the
            party must show that a preliminary injunction will
            properly restore the parties to their status as it
            existed immediately prior to the alleged wrongful
            conduct. Fourth, the party seeking an injunction
            must show 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. Fifth, the
            party must show that the injunction it seeks is
            reasonably suited to abate the offending activity.
            Sixth and finally, the party seeking an injunction
            must show that a preliminary injunction will not
            adversely affect the public interest.

Eckman v. Erie Ins. Exch., 21 A.3d 1203, 1206-1207 (Pa. Super. 2011)

(emphases omitted), quoting Summit Towne Ctr., Inc. v. Shoe Show of

Rocky Mount, Inc., 828 A.2d 995, 1000–1001 (Pa. 2003) (citations and

footnote omitted, quotation marks in original).

      With these standards in mind, we turn to the issues raised by the

Corporation in this appeal.    In its complaint and motion for preliminary

injunction, the Corporation averred Dr. Grube was in violation of the

employment agreement in two basic respects, from which it suffered

irreparable injury. Motion for Preliminary Injunction, 1/7/14, at 1-3. It first

averred Dr. Grube was in violation of the section 3(b) notice requirement of

his intent to terminate his employment. Complaint, 1/7/14, at 8, ¶¶ 41, 42.

It next averred Dr. Grube violated the section 10 restrictive covenants by

poaching employees and patients, and by establishing a competing practice

within the proscribed temporal and geographical constrictions defined by the

                                     -7-
J-A26021-14


covenant. Id. at 8, ¶¶ 43, 44. The Corporation’s first issue on appeal faults

the trial court’s determination that, relative to the former alleged breach, it

did not establish the above-cited first enumerated prerequisite to a grant of

a preliminary injunction, to wit, “that an injunction is necessary to prevent

immediate and irreparable harm that cannot be adequately compensated by

damages.” Eckman, supra at 1207; see also Corporation’s Brief at 15-16.

        The notice provision at issue provides as follows.

              Either party shall have the right to terminate this
              Agreement for any reason or no reason upon prior
              written notice to the other, as provided in this
              subparagraph (b). … Employee shall have the right
              to terminate this Agreement for any reason or no
              reason upon prior written notice to Corporation not
              later than September 1st of any year for such
              termination to be effective on July 1st of the
              succeeding year.

N.T., 1/14/14, at 164, Plaintiff’s Exhibit 6, Employment Agreement at 2, ¶

3(b).

        The Corporation notes, “[a]s found by the trial court, the undisputed

evidence is that the notice provision was in place for the protection of the

Corporation in the event a doctor needed to be recruited and trained to

replace a departing doctor.” Corporation’s Brief at 16; see also Trial Court

Opinion, 1/31/14, at 9. Relative to this protective purpose, the trial court

found that the Corporation “began negotiating With Dr. Chen in November

2013[,] and she started working with the Corporation on January 2, 2014.

Dr. Chen is a Board Certified obstetrician and gynecologist and will perform


                                       -8-
J-A26021-14


the same duties that Dr. Grube performed.” Trial Court Opinion, 1/31/14, at

9. “Here, the Corporation was able to hire a new doctor relatively quickly.

The violation of paragraph 3(b) does not justify the granting of a preliminary

injunction as requested by the Corporation until July 1, 2014.” Id.

      The Corporation asserts this reasoning was error.

             Anticipating a reasserted argument that the
             Corporation has hired a doctor to replace [Dr.]
             Grube, it is illogical to argue that a new OB/GYN, no
             matter how intelligent and dedicate[d], can replace[]
             a tenured doctor familiar with the Corporation’s staff,
             functions, patients, hospital privileges, etc.[] Time is
             required to help hedge the harm of a departing
             employee, the exact reason the Corporation
             bargained for nine months to replace [Dr.] Grube.

Corporation’s Brief at 18. The Corporation further surmises “the trial court

reasoned that the facts put for [sic] by the Corporation did not satisfy the

first elements of a preliminary injunction: immediate and irreparable harm.”

Id. at 15.    We disagree.     Rather, we conclude the trial court’s analysis

relates to the above-cited fifth prerequisite showing, “that the injunction it

seeks is reasonably suited to abate the offending activity.”      See Eckman,

supra.

      Instantly, the Corporation has not demonstrated how the imposition of

a preliminary injunction, prohibiting Dr. Grube from engaging in activity

violative of the section 10 restrictive covenant, will mitigate the difficulties

encountered by the Corporation in preparing Dr. Chen to be fully productive

within the practice of the Corporation. As noted, the requirement of a nine-


                                      -9-
J-A26021-14


month termination notice was intended to afford the Corporation time to find

and train a replacement for a departing employee. Normally, attendant to

that process would be the continued service of the departing employee to

aid in that transition. While Dr. Grube’s premature departure arguably made

that transition more difficult, the preliminary injunction sought would not

require Dr. Grube to resume his employment. Thus, a preliminary injunction

in this case would not accelerate Dr. Chen’s full integration into the practice

or otherwise ameliorate the effect of Dr. Grube’s early departure. Thus, we

conclude the trial court possessed “reasonable grounds” for its denial of the

Corporation’s motion for a preliminary injunction based on Dr. Grube’s

breach of the employment agreement’s notice provision.         See Brayman

Constr. Corp., supra.

      The Corporation argues that Dr. Grube “did not just leave early,” but

also “stole employees, patients and used his time outside the office to get

together a competing corporation.”           Corporation’s Brief at 18.   This

argument pertains to the Corporation’s claim that a preliminary injunction

against Dr. Grube was warranted for his breach of the employment

contract’s restrictive covenant, which we address infra.

      Thus, we next address the Corporation’s second and third issues

together, which both allege the trial court erred in refusing to grant a

preliminary injunction on the basis of Dr. Grube’s violation of the restrictive




                                    - 10 -
J-A26021-14


covenant in section 10 of the employment agreement.4               That section

provides as follows.

                     10. Restrictive Covenant.

                           (a) While an employee of Corporation,
              and for a period of three (3) years after the
              termination     of    Employee’s    employment     by
              Corporation for any reason or no reason and so long
              as Corporation shall Continue to employ physicians
              for the practice of medicine, Employee shall not
              directly or indirectly induce or attempt to influence
              any employee of Corporation to terminate his or her
____________________________________________
4
    Our Courts have recognized the enforceability of restrictive covenants.

              Restrictive covenants, of which non-disclosure and
              non-competition covenants are the most frequently
              utilized, are commonly relied upon by employers to
              shield their protectable business interests. The non-
              disclosure covenant limits the dissemination of
              proprietary information by a former employee, while
              the non-competition covenant precludes the former
              employee from competing with his prior employer for
              a specified period of time and within a precise
              geographic area.        In Pennsylvania, restrictive
              covenants are enforceable if they are incident to an
              employment relationship between the parties; the
              restrictions imposed by the covenant are reasonably
              necessary for the protection of the employer; and
              the restrictions imposed are reasonably limited in
              duration and geographic extent. Our law permits
              equitable enforcement of employee covenants not to
              compete only so far as reasonably necessary for the
              protection of the employer. However, restrictive
              covenants are not favored in Pennsylvania and have
              been historically viewed as a trade restraint that
              prevents a former employee from earning a living.

Shepherd, supra at 1244 (Pa. Super. 2011) (citation omitted). The
validity of the restrictive covenant at issue in this case is not challenged.



                                          - 11 -
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          employment with Corporation and shall not engage
          in (as a principal, partner, director, officer, agent,
          employee, consultant or otherwise) or be financially
          interested in any medical practice offering obstetric
          or gynecologic cart within fifteen (15) miles of any
          office of Corporation existing on such date or any
          hospitals at which any employees of Corporation
          have staff privileges at the time of termination of
          Employee’s employment (the “Restricted Area”). In
          addition, Employee shall resign all privileges at any
          hospital at, which the Corporation then maintains a
          practice and shall not reapply for such privileges for
          a period of three (3) years after the termination of
          Employee’s employment. Employee acknowledges
          that the restrictions contained in this subparagraph
          10(a), in view of the nature of the practice in which
          Corporation is engaged, are reasonable and
          necessary in order to protect the legitimate interests
          of Corporation and Employee will not challenge such
          restrictions  in    any   court   or    administrative
          proceeding. If Employee does not comply with the
          conditions contained in this subparagraph 10(a),
          then Employee shall not be entitled to receive
          deferred compensation pursuant to Paragraph 9, and
          Employee promptly shall return to Corporation any
          amount of deferred compensation paid to Employee.
          Corporation’s right not to pay, or to discontinue
          payment of, deferred compensation pursuant to this
          subparagraph 10(a), and to receive back from
          Employee any deferred compensation paid pursuant
          to Paragraph 9, shall be Corporation’s sole
          remedy for Employee’s failure to comply with
          all of the conditions contained in this
          subparagraph 10(a).

                      (b) Employee acknowledges that all
          patients are patients of Corporation and that all
          patient charts, lists, records and information are the
          sole and exclusive property of Corporation. Upon the
          termination of Employee’s employment for any
          reason or no reason, Employee agrees not to initiate
          contact or to solicit any patients of Corporation and
          agrees that all such charts, lists, records and
          information shall remain the sole and confidential

                                  - 12 -
J-A26021-14


            property of Corporation. Employee acknowledges
            that the restrictions contained in this subparagraph
            10(b), in view of the nature of the practice in which
            Corporation is engaged, are reasonable and
            necessary in order to protect the legitimate interests
            of Corporation and Employee will not challenge such
            restrictions  in    any   court   or    administrative
            proceeding, If Employee does not comply with the
            conditions contained in this subparagraph 10(b),
            then Employee shall not be entitled to receive
            deferred compensation pursuant to Paragraph 9, and
            Employee promptly shall return to Corporation any
            amount of deferred compensation paid to Employee.
            Corporation’s right not to pay, or to discontinue
            payment of, deferred compensation pursuant to this
            subparagraph 10(a)[sic], and to receive back from
            Employee any deferred compensation paid pursuant
            to Paragraph 9, shall be Corporation’s sole
            remedy for Employee’s failure to comply with
            all of the conditions contained in this
            subparagraph 10(a)[sic].

N.T., 1/14/14, at 164, Plaintiff’s Exhibit 6, Employment Agreement at 10-11,

¶¶ 10(a), 10(b) (emphasis added).             As referenced in paragraph 10,

Paragraph 9 of the employment agreement describes an employee’s

eligibility to receive deferred compensation in pertinent part as follows.

                 9. Deferred Compensation Under Certain
            Circumstances.   Employee shall receive deferred
            compensation, subject to the limitation contained in
            subparagraph 9(g), as hereinafter provided:

                                       …

                       (b) Deferred Compensation in the Event
            of Termination of Employment by Employee. In the
            event that

                           (1) Employee       ceases to    be
            employed by Corporation for any reason other than


                                     - 13 -
J-A26021-14


              (A) for Cause pursuant to the provisions of
              Paragraph 8 hereof; (B) death; or (C) disability; and

                               (2) Employee has provided notice
              of termination in accordance with the terms of
              subparagraph 3(b) hereof, except as otherwise
              provided in subparagraph 9(b)(5), and or more, and

                                (3) Employee has been employed
              by Corporation for twenty (20) years

                                 (4) Employee complies with the
              restrictions set forth in Paragraph 10 hereof, then
              Employee shall be entitled to deferred compensation
              in an amount equal to the Salary Continuation
              Amount.      Such deferred compensation shall be
              payable in accordance with the provisions of
              subparagraph 9(d) hereof.

Id. at 7, ¶ 9(b).

      Based on the evidence adduced at the January 14, 2014 hearing and

the terms of the parties’ employment agreement, the trial court determined

as follows.

                     The [trial] court found that Dr. Grube violated
              the restrictive covenant in the employment
              agreement by opening a competing gynecological
              business within 15 miles of the Corporation,
              influencing employees of the Corporation to
              terminate their employment with the Corporation
              and soliciting patients of the Corporation. However,
              the [trial] court denied the [Corporation’s] request
              for a preliminary injunction because the employment
              agreement clearly stated that the Corporation’s sole
              remedy for [Dr. Grube’s] failure to comply with the
              restrictive covenant was to not pay or to discontinue
              payment of deferred compensation. The [trial] court
              determined that the language of the employment
              agreement was unambiguous and therefore the
              [Corporation] was not likely to succeed on the
              merits.

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J-A26021-14



Trial Court Opinion, 4/2/14, at 4.      Thus, the trial court’s determination,

relative to Dr. Grube’s violation of the restrictive          covenant in the

employment agreement, is premised on the Corporation’s failure to establish

that it is “likely to prevail on the merits,” the above-cited fourth prerequisite

to a grant of a preliminary injunction. See Eckman, supra.

      The Corporation argues that the trial court’s finding that Dr. Grube was

in violation of the restrictive covenant was all that was required to satisfy

this showing. The Corporation argues that given the clear finding that Dr.

Grube was in breach of the restrictive covenant, “it is not a matter of if, but

a matter of when the Corporation will prevail on the merits.”                The

Corporation’s Brief at 22. We disagree.

      The relief sought in the Corporation’s complaint is an injunction.

Complaint, 1/7/14, at 11.        The requirement that a party seeking a

preliminary injunction must first demonstrate a likelihood it will prevail

includes a showing “that the activity it seeks to restrain is actionable, that

its right to relief is clear, and that the wrong is manifest.”         Eckman,

supra (emphasis added). Therefore, it is not enough to establish that Dr.

Grube is in breach of the employment agreement if the right to the relief

sought is not clear.   Accordingly, we discern no abuse of discretion in the

trial court’s determination that the Corporation did not establish a likelihood

it will prevail on the merits based solely on the fact that Dr. Grube was in




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J-A26021-14


breach of the restrictive covenant imposed by the employment agreement.

See Id.

       This leads us to the Corporation’s final issue, alleging the trial court

erred as a matter of law in its interpretation of the parties’ employment

agreement. Corporation’s Brief at 22. Specifically, the Corporation contends

the trial court failed to construe sections 9 and 10 of the employment

agreement together to avoid an unreasonable interpretation. Id. at 25-26.

Alternatively,    the    Corporation      argues,   “[b]ecause   the   Employment

Agreement was ambiguous, the trial court abused its discretion by not

considering the parol evidence introduced by the Corporation to explain the

terms of the Employment Agreement.”5 Id. at 26.

              The interpretation of any contract is a question of
              law and this Court’s scope of review is plenary.
              Moreover, we need not defer to the conclusions of
              the trial court and are free to draw our own
              inferences. In interpreting a contract, the ultimate
              goal is to ascertain and give effect to the intent of
              the parties as reasonably manifested by the
              language of their written agreement.            When
              construing    agreements    involving    clear   and
              unambiguous terms, this Court need only examine
              the writing itself to give effect to the parties’
              understanding.     This Court must construe the
              contract only as written and may not modify the
              plain meaning under the guise of interpretation.

____________________________________________
5
  The trial court permitted the parties to present parol evidence of their
intent with respect to the provisions of the employment agreement in
question, but ultimately did not consider that testimony in light of its
conclusion that the agreement was not ambiguous. See generally N.T.,
1/14/14.


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J-A26021-14


Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 187 (Pa. Super.

2013), quoting, Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 509–

510 (Pa. Super. 2013) appeal denied, 96 A.3d 1029 (Pa. 2014).       “If left

undefined, the words of a contract are to be given their ordinary meaning.”

Lenau v. CoeXprise, Inc., --- A.3d ---, 2014 WL 4696215, *5 (Pa. Super.

2014) (citation omitted).

           When, however, an ambiguity exists, parol evidence
           is admissible to explain or clarify or resolve the
           ambiguity, irrespective of whether the ambiguity is
           patent, created by the language of the instrument,
           or latent, created by extrinsic or collateral
           circumstances.

                With specific reference to what constitutes
           “ambiguity” in the context of contract interpretation,
           our Supreme Court has opined as follows:

           Contractual language is ambiguous if it is reasonably
           susceptible of different constructions and capable of
           being understood in more than one sense. This is
           not a question to be resolved in a vacuum. Rather,
           contractual terms are ambiguous if they are subject
           to more than one reasonable interpretation when
           applied to a particular set of facts. We will not,
           however, distort the meaning of the language or
           resort to a strained contrivance in order to find an
           ambiguity.

                 Additionally, it is axiomatic that contractual
                 clauses must be construed, whenever possible,
                 in a manner that effectuates all of the clauses
                 being considered. It is fundamental that one
                 part of a contract cannot be so interpreted as
                 to annul another part and that writings which
                 comprise an agreement must be interpreted as
                 a whole.

Id. (internal quotation marks and citations omitted).

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      The Corporation argues that the last sentences of sections 10(a) and

10(b) of the employment agreement that define the Corporation’s “sole

remedy” for breach by an employee of the restrictive covenant, should be

read in context with section 9(b), which outlines the rights of an employee,

who   terminates   his   or   her   employment,   to   deferred   compensation.

Corporation’s Brief at 24-25.       The Corporation argues that because an

employee is only eligible for deferred compensation under section 9(b)(3)

after 20 years of employment, the “sole” remedy clauses of section 10(a)

and 10(b) should be interpreted to apply only to employees with 20 years or

more of employment. Id. at 25

            What the trial court found is that an employee of the
            Corporation for less than 20 years has NO restrictive
            covenant, while a tenured, over twenty-year
            employee of the Corporation is slapped with a
            restrictive covenant, penalized by the withholding of
            deferred compensation. This meaning is entirely
            unreasonable, makes no sense, and focuses solely
            on the word “sole” while ignoring the interaction of
            Paragraphs 9 and 10.

Id. at 26 (emphasis in original).

      Thus, under the interpretation urged by the Corporation, an employee

in violation of section 10, who had less than 20 years of employment, would

be subject to a full range of enforcement or damage actions by the

Corporation, while an employee in violation of section 10, who had 20 years

or more of employment, would be subject only to loss of deferred

compensation as a consequence of the violation. The trial court rejected the


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Corporation’s position. “The [trial] court finds that it is the [Corporation’s]

interpretation of the employment agreement that is nonsensical.”          Trial

Court Opinion, 4/2/14, at 11.

            Contrary to [the Corporation’s] argument, however,
            [the trial] court did not find that the restrictive
            covenant only applies after twenty years. The [trial]
            court held that the employment agreement is
            unambiguous that Dr. Grube had a restrictive
            covenant.    The [trial] court also held that the
            employment agreement clearly and unambiguously
            stated what the Corporation’s remedy is if Dr. Grube
            violated the restrictive covenant. The Corporation’s
            sole remedy is that Dr. Grube is not entitled to
            deferred compensation.

Id. at 5.

      We agree with the trial court that section 10 of the employment

agreement is clear and unambiguous in providing a sole remedy to the

Corporation for an employee’s violation of the restrictive covenant.       The

Corporation’s interpretation requires the clause “sole remedy” to be qualified

according to unspecified classes of employees in a manner at odds with the

plain meaning of the language employed.       See Lenau, supra.       That the

Corporation is unsatisfied with the perceived inadequacy of its remedy is not

a ground to find an ambiguity.

            The fact that parties to a contract disagree upon its
            proper interpretation does not necessarily render the
            writing ambiguous. [R]esort to the plain meaning of
            language hinders parties dissatisfied with their
            agreement from creating a myth as to the true
            meaning of the agreement through subsequently
            exposed extrinsic evidence…. In holding that an
            ambiguity is present in an agreement, a court must

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            not rely upon a strained contrivancy to establish
            one; scarcely an agreement could be conceived that
            might not be unreasonably contrived into the
            appearance of ambiguity.

Halpin v. LaSalle Univ., 639 A.2d 37, 39 (Pa. Super. 1994) (internal

quotation marks and citations omitted), appeal denied, 668 A.2d 1133 (Pa.

1995). We therefore conclude that the trial court had “reasonable grounds”

to deny the Corporation’s motion for a preliminary injunction on the basis of

Dr. Grube’s breach of the employment agreement’s restrictive covenant.

See Brayman Const. Corp., supra.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion or commit an error of law in denying the Corporation’s motion for

preliminary injunction. Because reasonable grounds exist for said denial, we

affirm the trial court’s January 31, 2014 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2014




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