J-A25005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PFB MEMBERS’ SERVICE CORPORATION             IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    TODD A. ECKENROAD

                             Appellant               No. 801 MDA 2019


                  Appeal from the Order Entered April 23, 2019
              In the Court of Common Pleas of Cumberland County
                        Civil Division at No: 2019-02114

BEFORE: STABILE, J., MCLAUGHLIN, J., AND MUSMANNO, J.

MEMORANDUM BY STABILE, J.                            FILED APRIL 23, 2020

        Appellant, Todd A. Eckenroad, an accountant, appeals from an order

granting Appellee, PFB Members’ Service Corporation, a preliminary injunction

enforcing a noncompete covenant1 in Appellant’s employment agreement.

The injunction decreed that for two years following Appellant’s resignation

from Appellee, he could not provide accounting services to clients of Appellee

whom he served during his final two years of employment, whether or not

they continue to remain Appellee’s clients. The injunction was not limited to

any geographic area. We hold that the court abused its discretion by imposing

these terms in its order, and we vacate the preliminary injunction and remand

this case for further proceedings.

____________________________________________


1 Pennsylvania courts use the terms “noncompete covenant” and “restrictive
covenant” interchangeably. We will use “noncompete covenant” in this
opinion.
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       On November 30, 2018, Appellant resigned from his position as an

accountant for Appellee.        On March 4, 2019, Appellee filed a civil action

alleging that Appellant breached the noncompete covenant in his employment

agreement. Two days later, Appellee filed a petition seeking a preliminary

injunction against Appellant. On April 2, 2019, the trial court convened an

evidentiary hearing on Appellee’s petition for injunctive relief.

       On April 23, 2019, the trial court issued an opinion and order granting

Appellee a preliminary injunction. The court found the following facts:

       [Appellee] is a business organization with its principal office in
       Camp Hill, Cumberland County, Pennsylvania, that provides
       business services, primarily to Pennsylvania farmers, including
       accounting, payroll, and tax services.[2] [Appellant] is an adult
       individual residing in New Enterprise, Bedford County,
       Pennsylvania. From August 1, 2003, until November 30, 2018,
       when he left his employment with the title of senior account
       supervisor, [Appellant] was an at-will employee of [Appellee], and
       in the two years preceding his departure his assigned geographic
       territory was Bedford and Fulton Counties, Pennsylvania.

       As an account supervisor, [Appellant]’s duties consisted of
       providing business and accounting services, including payroll and
       tax preparation services, to [Appellee]’s clients. Prior to his
       departure, he had been servicing 104 such clients, which was in
       excess of the average clientele of 75 serviced by the remaining 34
       account supervisors.      Toward the end of 2018, [Appellee]
       announced an increase in fees for its services, as well as a
       reduction in compensation to its account supervisors, effective
____________________________________________


2 Appellee is not simply an accounting firm or tax preparer. It is a general
farm membership organization that provides an array of services to its
members. For an annual membership fee, members can access discounts on
rental cars, hotels, supplies, as well as access to Appellee’s warehouse facility,
which sells agricultural products. For an additional fee, members can
purchase accounting services (including tax preparation) and business
analysis. N.T., 4/2/19, at 33-34.

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       January 1, 2019. The increase in fees precipitated a termination
       of their relationship with [Appellee] by a number of clients. By a
       letter dated November 16, 2018, [Appellant] advised [Appellee]
       of his intention to leave his employment, indicating:

              Because of the recent changes the company has
              decided to make, I can no longer continue my
              employment . . . . My last day will be November 30,
              2018. There is just no way my family and I can make
              it with the future loss of income that will be a result of
              the changes that have been made with the fee
              schedule and employee compensation package. I
              have already had clients leave and others that are
              planning to leave next year due to the fee increase. .
              ..

              Please know that I was not considering this until I was
              put in a position of needing to make this very difficult
              decision for the welfare of my family. I want to part
              on good terms.

       In leaving his position with [Appellee], [Appellant] did not advise
       any of [Appellee]’s clients in advance of his decision to do so.
       However, as of the hearing herein[,] 48 of the 104 clients he had
       been servicing had either cancelled or not renewed their
       relationship with [Appellee].3

       Shortly after leaving [Appellee]’s employment, [Appellant]
       opened “Eckenroad Accounting Services,” which he operates out
       of his home in Bedford County, Pennsylvania, and which is
       “dedicated to providing accounting services to small businesses
       and individuals in the area.” Services offered include personal tax
       preparation, partnership tax preparation, corporate tax
       preparation, tax planning visits, payroll quarterlies preparation,
       W-2 & 1099 preparation, and a free initial consultation.



____________________________________________


3 This appears to be a minor misstatement. Based on our review of the
preliminary injunction hearing transcript, we think the trial court meant to say
that the number of Appellee’s clients in Bedford and Fulton Counties dropped
from 104 to 48 after Appellant’s resignation. Thus, 56 of Appellee’s clients
cancelled or declined to renew their memberships, not 48.

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     In assembling a clientele for his new business, which appears to
     be largely oriented toward preparation of tax returns and does not
     provide business consulting services, [Appellant] did not solicit or
     accept any clients of [Appellee] who remained with [Appellee].
     However, he did accept about 20 former clients who had chosen
     to terminate their relationship with [Appellee].

     The [July 22,] 2003 employment agreement executed by the
     parties    contemplated    [Appellant]’s   provision   of    “farm
     management counseling and tax reporting services to clients of
     [Appellee] in accordance with the procedures established from
     time to time by [Appellee] and under the supervision and direction
     of [Appellee].”      It indicated that [Appellant] would “be
     compensated in accordance with an Incentive Wage Program as
     established and amended from time to time by [Appellee] which
     [was to] be based upon, but not limited to, factors such as length
     of service, net gross revenue produced from accounts served, and
     other performance based upon standards to be determined by
     [Appellee].”

     The noncompete provision contained in [paragraph 6 of] the
     employment agreement provided, in pertinent part, as follows:

           B. Employee hereby provisions and agrees with
           Employer that, during the “Noncompete Period” and
           within the “Noncompete Area,” Employee shall not
           directly or indirectly, either as an employee,
           employer, consultant, agent, principal, partner,
           stockholder, corporate officer, director, or in any other
           individual or representative capacity, engage in or
           participate in any business which provides any goods
           or services competitive in any way with the goods and
           services provided by Employee for Employer under
           this Agreement nor shall Employee, directly or
           indirectly,   solicit   the     business       of    any
           customers/clients of the Employer or perform
           for such customers or clients, nor solicit the
           performance, neither in person nor through any other
           entity with which he/she is associated, any of the
           services of the nature of those performed by
           Employee for Employer.

           C. The “Noncompete Period” shall commence on the
           date hereof and terminate two (2) years after

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            expiration or termination of Employee’s employment
            with Employer under this Agreement.            The
            “Noncompete Area” shall be the geographic
            territory or territories assigned to Employee in
            the last two (2) years of his/her employment
            with Employer and shall be limited only to PFB
            members in said territory or territories . . .

Trial Court Opinion, 4/23/19, at 1-3 (emphasis added).

      The trial court did not mention another provision in the noncompete

covenant. Paragraph 6(E) states:

            E. All parties hereto acknowledge the necessity of
            protection against the competition of the Employee
            and that the nature and scope of such protection has
            been carefully considered by the parties.           Any
            geographic area covered is expressly acknowledged
            and agreed to be fair, reasonable and necessary. In
            the event any covenant in this paragraph . . . is held
            to be illegal, invalid or unenforceable because of the .
            . . geographic area covered thereby, or otherwise, the
            parties agree that the tribunal making such
            determination shall have the power to reduce . . . the
            area and/or other provisions of any such covenant to
            the maximum permissible and to include as much of
            its nature and scope as to render it enforceable, and
            in its reduced form said covenant shall be valid, legal
            and enforceable.

Employment Agreement, ¶ 6(E).

      Appellee’s Human Resource Director, Kerri Zeigler, testified that

Appellant serviced clients in Blair County as well as Bedford and Fulton

Counties, and subsequent to Appellant’s resignation, Appellee’s clientele in

Bedford, Fulton and Blair Counties fell from 104 to 48. Notes of Testimony,

Hearing (“N.T.”), 4/2/19, at 21. Zeigler asserted that a fifty percent reduction

in clients was unusual, and anything more than a ten percent reduction in

                                     -5-
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clients following an employee’s departure “would stand out.” Id. at 28. The

loss of clients, said Zeigler, cost Appellee $87,985.00 in fees and $21,446.82

in refunds. Id. at 23-24. In January 2019, Zeigler learned that Appellant

went into business for himself and had his own website. Id. at 28. Appellant

did not dispute that he had his own website when counsel for Appellee referred

to it during his testimony. Id. at 57.

      Appellant testified that his assigned territory for Appellee included

Bedford and Fulton Counties, but not Blair County. Id. at 73. The trial court

accepted Appellant’s testimony on this point as true.     Trial Court Opinion,

4/23/19, at 1. Appellant admitting preparing tax returns for seventeen of

Appellee’s former clients after he left Appellee. N.T., 4/2/19, at 58-71.

      The noncompete covenant, Appellant argued, prohibits him only from

soliciting or servicing persons who continue to remain Appellee’s clients, but

it did not bar him from servicing persons who are no longer clients of Appellee

and who approached him after he left Appellee. Appellant’s Brief in Opposition

to Appellee’s Petition for Preliminary Injunction, 4/17/19, at 8-9. Appellant

testified that (1) none of the twenty or so clients in question are currently

clients of Appellee; (2) he never approached them about becoming his clients;

(3) before leaving Appellee, he never told any of his clients that he was

leaving; (4) after leaving, he did not solicit business from any client of

Appellee; (5) the first question he asks anyone who approaches him is

whether he is a current client of Appellee; and (6) if the person answers


                                     -6-
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affirmatively, he responds that he cannot serve him for two years.             N.T.,

4/2/19, at 73-75.

      On April 23, 2019, the court held that the noncompete covenant was

enforceable in part, stating:

      [A] number of factors militate against a full application of the
      restrictive covenant as drafted against [Appellant] at this
      preliminary stage of the case when [Appellee]’s evidence is tested
      by the prerequisites for a preliminary injunction, including the
      likelihood of ultimate success. First, [Appellant]’s termination of
      employment was arguably involuntary and without fault on his
      part, in the sense that it resulted from policy changes made by
      [Appellee]    which    rendered    his   continued     employment
      economically unfeasible.

      Second, while [Appellant]’s accounting business is in part
      competitive, with [Appellee]’s operation, it appears to be more of
      a typical small tax preparation service than a multi-service
      business consultant for agricultural enterprises. Third, the effect
      of a two year proscription on [Appellant]’s participation in his
      home county “in any business which provides any . . . services
      competitive in any way with the . . . services provided” under the
      agreement, however minuscule the degree of competition, would
      dramatically affect [Appellant]’s ability to practice his profession
      without a proportional benefit to [Appellee].

      On the other hand, it does appear to the court that [Appellee] is
      likely to prevail on the issue of whether [Appellant]’s covenant of
      accounting services to clients of [Appellee] he served in the last
      two years of his employment is enjoinable pursuant to a
      reasonable application of the covenant not to compete. In this
      regard, the loss of these clients is not insignificant to [Appellee],
      and it is not unreasonable to attribute it in part to the availability
      of [Appellant]’s accounting practice in the prohibited geographic
      area.


Trial Court Opinion, 4/23/19, at 6. The court entered a preliminary injunction

prohibiting Appellant “from providing accounting services to clients he served


                                      -7-
J-A25005-19


on behalf of [Appellee] during the last two years of his employment with

[Appellee], for the period prescribed in the parties’ employment agreement

dated July 22, 2003.” Id. at 6-7.

     Appellant timely appealed to this Court pursuant to Pa.R.A.P. 311(a)(4),

which permits automatic appeals from orders granting injunctions except in

circumstances not relevant here. Both Appellant and the trial court complied

with Pa.R.A.P. 1925. The trial court wrote in its Rule 1925 opinion:

     To the extent that [Appellant] . . . maintains that the court
     expanded the restrictive covenant at issue beyond its terms by
     disregarding the non-compete area and including clients who were
     not currently clients of [Appellee], the court would suggest that
     the preliminary injunction issued was far narrower than the
     covenant authorized. The evidence at the hearing tended to show
     that [Appellant] was operating an accounting business in Bedford
     County, Pennsylvania, which was in the non-compete area and
     was providing goods and services “competitive in any way with
     the goods and services provided” by him under the employment
     agreement. The first portion of the covenant not to compete
     contained an absolute prohibition on such a business, but the
     preliminary injunction issued limited its effect to service by the
     business of [Appellant]’s former clients within the prescribed
     period.

Pa.R.A.P. 1925 Opinion, 5/23/19, at 2.

     Appellant raises three issues in this appeal:

     1. The noncompete [covenant] in this case is limited to certain
     counties and only applies to active members of PFB in those
     counties. Should this Court dissolve a preliminary injunction that
     enjoins [Appellant] from earning a living by serving former clients
     regardless of his geographic location, the former clients’
     geographic location, and the former clients’ membership status
     with Appellee?

     2. The noncompete [covenant] in this case is limited to only “PFB
     members.” There is no evidence that [Appellant] has ever served

                                    -8-
J-A25005-19


      a client that was a PFB member at the time. Should this Court
      reverse the trial court and dissolve the preliminary injunction?

      3. Under Pennsylvania law, noncompete contracts are construed
      strictly and against the employer. To the extent the phrase “PFB
      members” in the noncompete [covenant] is ambiguous as to
      whether it includes only current members or also former
      members, should that ambiguity be resolved in [Appellant]’s
      favor?

Appellant’s Brief at 5. We agree with Appellant that the trial court abused its

discretion by omitting any geographical restriction from the injunction and by

prohibiting Appellant from representing Appellee’s former clients.

      The purpose of a preliminary injunction is to preserve the status quo

that existed before the acts complained of and thereby prevent irreparable

injury. Santoro v. Morse, 781 A.2d 1220, 1229 (Pa. Super. 2001).            The

moving party must satisfy six requisites in order to obtain a preliminary

injunction: (1) an injunction is necessary to prevent immediate and

irreparable harm that cannot be adequately compensated by damages;

(2) greater injury would result from refusing an injunction than from granting

it, and, concomitantly, issuance of an injunction will not substantially harm

other interested parties in the proceedings; (3) a preliminary injunction will

properly restore the parties to their status as it existed immediately prior to

the alleged wrongful conduct; (4) the moving party is likely to prevail on the

merits; (5) the injunction is reasonably suited to abate the offending activity;

and (6) an injunction will not harm the public interest.      Summit Towne

Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa.


                                     -9-
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2003).   We review orders granting preliminary injunctions for abuse of

discretion. Id. at 1000. “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.” Id. “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

[trial court].” Id. This standard of review is “highly deferential.” Duquesne

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

      Contract interpretation is a question of law, so our review of the trial

court’s construction of contract language is de novo and our scope of review

is plenary. Maisano v. Avery, 204 A.3d 515, 520 (Pa. Super. 2019). The

fundamental rule in construing a contract is to ascertain and give effect to the

intent of the contracting parties. Id.

      When interpreting agreements containing clear and unambiguous
      terms, we need only examine the writing itself to give effect to
      the parties’ intent. The language of a contract is unambiguous if
      we can determine its meaning without any guide other than a
      knowledge of the simple facts on which, from the nature of the
      language in general, its meaning depends. When terms in a
      contract are not defined, we must construe the words in
      accordance with their natural, plain, and ordinary meaning. As
      the parties have the right to make their own contract, we will not
      modify the plain meaning of the words under the guise of
      interpretation or give the language a construction in conflict with
      the accepted meaning of the language used.

Profit Wize Marketing v. Wiest, 812 A.2d 1270, 1274-75 (Pa. Super.

2002). Moreover, “clauses in a contract should not be read as independent

agreements thrown together without consideration of their combined effects.

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Terms in one section of the contract, therefore, should never be interpreted

in a manner which nullifies other terms in the same agreement.” Dominic’s,

Inc. v. Tony’s Famous Tomato Pie Bar & Restaurant, Inc., 219 A.3d 259,

269 (Pa. Super. 2019).

      Contract principles apply to employment agreements, Profit Wize, 812

A.2d at 1274-75, and, more particularly, to noncompete covenants within

employment agreements. Missett v. Hub Inter. Pennsylvania, LLC, 6 A.3d

530, 541 (Pa. Super. 2010). In construing a noncompete covenant, “[c]ourts

do not assume that a contract’s language was chosen carelessly, nor do they

assume that the parties were ignorant of the meaning of the language they

employed.    When a writing is clear and unequivocal, its meaning must be

determined by its contents alone.” Synthes USA Sales, LLC v. Harrison,

83 A.3d 242, 250 (Pa. Super. 2013). “[I]t is not the function of this Court to

re-write it, or to give it a construction in conflict with . . . the accepted and

plain meaning of the language used.” Id. at 250-51.

      Noncompete covenants in employment agreements allow employers to

prevent employees and agents from learning their business practices and then

moving into competition with them. Hess v. Gebhard & Co., 808 A.2d 912,

918 (Pa. 2002). This enables employers to protect their legitimate business

interests, client base, good will and investments in employees. WellSpan

Health v. Bayliss, 869 A.2d 990, 996 (Pa. Super. 2005). If an employee’s

conduct falls within the four corners of a noncompete covenant, several other


                                     - 11 -
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conditions must be satisfied for that covenant to be enforceable. Specifically,

the covenant must be (1) ancillary to the employment relationship,

(2) reasonably necessary for the protection of the employer, and (3)

reasonable in duration and geographic reach. Missett, 6 A.3d at 538. The

covenant is reasonably limited if it is “within such territory and during such

time as may be reasonably necessary for the protection of the employer . . .

without imposing undue hardship on the employee.”            Morgan’s Home

Equipment Corp. v. Martucci, 136 A.2d 838, 844 (Pa. 1957).                   Post-

employment restrictive covenants

      are subject to a more stringent test of reasonableness . . . . This
      heightened scrutiny stems from a historical reluctance on the part
      of our courts to enforce any contracts in restraint of free trade,
      particularly where they restrain an individual from earning a living
      at his trade. This close scrutiny also stems from our recognition
      of the inherently unequal bargaining positions of employer and
      employee when entering into such agreements.                    The
      determination of whether a post-employment restrictive covenant
      is reasonable, and therefore enforceable, is a factual one which
      requires the court to consider all the facts and circumstances. A
      restrictive covenant found to be reasonable in one case may be
      unreasonable in others.

Insulation Corp. of America v. Brobston, 667 A.2d 729, 733–34 (Pa.

Super. 1995).

      The first issue raised by Appellant is whether the trial court abused its

discretion by refusing to include any geographic limitation in the injunction.

We hold that it did, because the plain language of the noncompete covenant

did not authorize an injunction without any geographic limitation against




                                     - 12 -
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Appellant. Such an injunction not only was far broader than was necessary to

protect Appellee’s interests, but it also was overly harmful to Appellant.

      The plain language of the noncompete covenant compels this outcome.

Paragraph 6B of the noncompete provision prohibits Appellant from competing

with Appellee during the “Noncompete Period” and within the “Noncompete

Area”. The “Noncompete Area” is defined as the geographic area assigned to

Appellant in the last two (2) years of employment, id., a limitation that the

parties “expressly acknowledged and agreed to be fair, reasonable and

necessary”, Employment Agreement, ¶ 6(E). The court credited Appellant’s

testimony that his assigned territory during his final two years of employment

was Bedford and Fulton Counties. Under the plain language of paragraphs

6(B), (C) and (E), the court should have limited any injunction to these

counties. Synthes USA Sales, LLC, 83 A.3d at 250. The covenant did not

authorize the court to impose an injunction without any geographic limitation.

Id. In addition, the geographic scope of the injunction was improper because

it was far broader than necessary to protect Appellee’s interests, Missett, 6

A.3d at 538, and posed an undue hardship on Appellant’s ability to earn a

living. Morgan’s Home Equipment Corp., 136 A.2d at 844. Stated in terms

of the six-part Summit Towne Centre test, Appellee is not likely to prevail

on the merits of this issue (prong 4), an injunction without any geographic

limitation is not reasonably tailored to abate any offending activity (prong 5),




                                     - 13 -
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and such an injunction will substantially harm Appellant’s interests (prong 2).

Id., 828 A.2d at 1001.

      Next, Appellant argues that the trial court abused its discretion by

prohibiting him from servicing individuals and entities who no longer are

clients of Appellee. We agree, based on our review of paragraphs 6(B) and

(C) of the noncompete covenant and the evidence of record.

      Paragraph 6(B) provides that for two years following the end of

employment, Appellant cannot solicit the business or perform services for

Appellee’s “customers/clients” within the “Noncompete Area” that are “of the

nature” of the services he performed for Appellee. Paragraph 6(C) provides

that the Noncompete Area shall be limited to “PFB members.” Construing

these provisions in combination, as the law requires us to do, Dominic’s,

Inc., 219 A.3d at 269, we think it clear that “customers/clients” is

synonymous with “PFB members.” Moreover, the plain meaning of the terms

“clients,” “customers” and “members” is current, existing clients, customers

and members. Without the modifier “former”, these terms do not encompass

past clients, customers or members. Had the parties intended to extend these

terms to former clients, customers, or members, they would have expressly

included “former” in the text.      Stated more simply, one cannot be a

customer/client of Appellee if they no longer are PFB members.           Thus,

Appellant is free to provide services to former customers, clients or members




                                    - 14 -
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of Appellee, i.e., customers, clients or members who left Appellee while

Appellant was still employed by Appellee.4

       Appellant’s unrebutted testimony shows that he complied with the

noncompete covenant by not soliciting or performing services for Appellee’s

current clients or customers that are PFB members within his formerly

assigned territory after leaving Appellee. After leaving Appellee, Appellant did

not solicit business from Appellee’s clients or customers, and he only accepted

business from Appellee’s former clients or customers who decided, on their

own, to approach him following his departure from Appellee. Before accepting

their business, he made sure they were not current clients or customers of

Appellee.

       Therefore, the injunction against representing former clients and

customers violates both prong 4 of the Summit Towne Centre test, since

Appellee is not likely to prevail on this issue in later proceedings, and prong

5, since it is not reasonably tailored to abate any offending activity.

       The trial court attempted to justify issuance of its preliminary injunction

against servicing former clients of Appellee without any geographic limitation



____________________________________________


4 Although we cannot locate any Pennsylvania decision on point, multiple other
jurisdictions have held that noncompete covenants that purport to apply to all
past clients are unreasonable because they are “so broad[] as to prohibit
seemingly harmless conduct.” Seach v. Richards, Dieterle & Co., 439
N.E.2d 208, 214 (Ind. App. 1982); Leon M. Reimer & Co., P.C. v. Cipolla,
929 F. Supp. 154, 159 (S.D.N.Y. 1996) (collecting cases).


                                          - 15 -
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by “suggest[ing] that the preliminary injunction issued was far narrower than

the covenant authorized.”          Pa.R.A.P. 1925 Opinion, 5/23/19, at 2.   We

disagree, because the covenant did not authorize the terms of the injunction.

The law requires that when the meaning of a noncompete covenant is clear,

the court must assume that the parties mean what they say and enforce the

covenant in accordance with its plain meaning. Synthes USA Sales, LLC, 83

A.3d at 250-51. In this case, the plain meaning of the noncompete covenant

limited its reach for two (2) years after Appellant left Appellee’s employment

to current clients of Appellee within Fulton and Bedford Counties. The court

abused its discretion by disregarding the plain meaning of the noncompete

covenant and enjoining Appellant from servicing Appellee’s former clients

without geographic limitation.

       Accordingly, we reverse the order below and remand for further

proceedings.5

       Order reversed. Case remanded for further proceedings in accordance

with this memorandum. Jurisdiction relinquished.




____________________________________________


5 In his third argument, Appellant requests that we construe any ambiguity in
the noncompete covenant in his favor. We need not address this argument
because we have determined that the pertinent provisions of the noncompete
covenant are clear and unambiguous.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/2020




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