J-A31012-14


                              2015 PA Super 95

GEISINGER CLINIC,                              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

MARK M. RADZIEWICZ, D.O.,

                         Appellee                   No. 505 MDA 2014


              Appeal from the Order Entered February 24, 2014
              In the Court of Common Pleas of Montour County
                       Civil Division at No(s): 449-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION BY BOWES, J.:                               FILED APRIL 24, 2015

     Geisinger Clinic (“Geisinger”) appeals from the February 24, 2014

order denying its request for a preliminary and permanent injunction. We

reverse and remand for entry of an order consistent with this adjudication.

     On December 3, 2013, Geisinger instituted this action seeking an

injunction against its former employee, Dr. Mark M. Radziewicz, D.O.

(“Dr. Radziewicz”). It averred the following in its complaint. On January 8,

1998, upon accepting employment at Geisinger, Dr. Radziewicz executed a

practice agreement. The January 8, 1998 accord stated that Dr. Radziewicz

accepted a position as an associate physician practicing family medicine for

Penn State Geisinger Medical Group-Dallas of Penn State Geisinger Clinic

commencing on July 1, 1998. Dr. Radziewicz agreed that “[a]cceptance of

this position” constituted his understanding that, in the event that his
J-A31012-14



employment was terminated, it was his “agreement to restrict my practice of

medicine” and that he could practice in “an area outside of a 15 mile radius”

from his principal site of practice. Complaint, 12/3/13, at Exhibit A p.1. The

restriction lasted for two years following the end of the parties’ employment

relationship.

        Dr. Radziewicz acknowledged that the restrictive covenant was

necessitated by the fact that “considerable effort will be devoted [by] other

Penn State Geisinger Clinic physicians and personnel in assisting me in the

development and maintenance of my practice[.]” Id. Geisinger agreed to

waive    the    covenant   if   Dr.   Radziewicz   paid   either   the   greater    of

Dr. Radziewicz’s annualized base salary or his total compensation during the

year prior to his termination.

        When the January 8, 1998 restrictive covenant was executed,

Dr. Radziewicz planned to practice at the noted Dallas location.           However,

before commencing employment, his practice location was changed to

Mountain Top, Luzerne County.         Accordingly, on April 19, 1998, before he

began to work for Geisinger, Dr. Radziewicz signed an addendum to the

January 8, 1998 agreement. In the April 19, 1998 addendum, the restrictive

covenant was altered to encompass an area that was within fifteen miles

from    Penn    State   Geisinger     Health   System’s    Mountain      Top   office.

Dr. Radziewicz again stated that, by accepting his new position, he agreed to

“restrict my practice of medicine” to outside the noted fifteen-mile radius

and that the restriction applied for two years.           Id. at Exhibit B.        The

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addendum confirms that, “This restriction applies not only to an office I may

seek to establish within the restricted area for my practice but to staff

memberships and the exercise of clinical privileges at any health care

facility” within the denoted area. Id.

      Dr. Radziewicz practiced as a full-time physician from July 1, 1998

through June 22, 2012 at the Mountain Top practice site. Geisinger spent in

excess of $67,000 to promote and build Dr. Radziewicz’s family practice at

that location, and Dr. Radziewicz had access to Geisinger’s marketing and

strategic plan techniques. Geisinger trained Dr. Radziewicz in various areas.

On June 22, 2012, Dr. Radziewicz separated from employment with

Geisinger, and on June 26, 2012, Dr. Radziewicz became an employee of

Advanced   Inpatient   Medicine,   Inc.   (“AIM”).   On   October   7,     2013,

Dr. Radziewicz began to violate his restrictive covenant by starting to

practice medicine with the fifteen-mile radius prohibited by the accord.

      Hearings were held on the matter.      Dr. Radziewicz reported that he

worked for Geisinger as a primary care physician from 1998 until his

termination on June 22, 2012. Dr. Radziewicz acknowledged executing the

January 8, 1998 and April 19, 1998 documents as a condition for his initial

hiring by Geisinger. Dr. Radziewicz also admitted that he was working for




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an AIM hospital approximately eight miles from where he formerly practiced

for Geisinger in Mountain Top.1

       Dr. Radziewicz was asked whether, during his tenure at Geisinger,

Geisinger “spent its resources promoting that clinic site and promoting and

developing at that site,” and Dr. Radziewicz responded, “Correct.”          N.T.

Hearing, 12/17/12, at 21-22.            Dr. Radziewicz also did not dispute that

Geisinger promoted him personally “in newspapers and advertisements,

mailers to [its] patients” and that the advertising payments “came out of

Geisinger’s costs[.]”      Id. at 22.      The witness was asked if he was “the

beneficiary of Geisinger’s practices with respect to developing [his] clinical

skill, chronic disease management, things like that,” and he again

responded, “Correct.” Id. at 23. He also was “privy to” and participated in

“discussions regarding Geisinger’s strategic development and strategic

business plan[.]” Id.

       When he separated from employment with Geisinger on June 22,

2012, Dr. Radziewicz began to work for AIM on June 26, 2012, at Wayne

Memorial Hospital, Honesdale, Wayne County, which was not within the area

covered by the April 19, 1998 restrictive covenant. Dr. Radziewicz worked

there as a hospitalist, a doctor who cares for inpatients admitted to the

hospital.    A hospitalist operates as a primary care physician (“PCP”) for

____________________________________________


1
   The city in question is spelled “Mountain Top” in the complaint, but
“Mountaintop” in the transcript. We have utilized its correct spelling.



                                           -4-
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inpatients in a hospital and treats patients who either do not have a PCP or

whose PCP does not have privileges at the hospital in question. Id. at 52-

53. Upon discharge, if the patient has a PCP, he is referred to that doctor,

but a patient who has no PCP can be referred to a PCP suggested by the

hospitalist.

      On October 7, 2013, AIM transferred Dr. Radziewicz to Wilkes-Barre

General Hospital in Wilkes-Barre, which, as Dr. Radziewicz admitted, was

approximately eight miles away from Mountain Top.           At that location,

Dr. Radziewicz continued to work as a hospitalist. Dr. Radziewicz specifically

agreed that he was not disputing that he may have seen Geisinger patients

at Wilkes-Barre General Hospital, but he had no specific knowledge of having

done so. Id. at 30, 56.

      Geisinger also adduced the following unrebutted proof.         None of

Geisinger’s PCPs has staff privileges at Wilkes-Barre General Hospital.

Concomitantly, any Geisinger patient admitted to that hospital would have to

use a hospitalist. A patient can be admitted through the emergency room,

by a surgeon, or through referral by his or her PCP. While Dr. Radziewicz

had no control over who is admitted to the hospital, another PCP in the area

could be inclined to admit a patient based upon Dr. Radziewicz’s general

reputation in the community for being a good physician.              Thus, if

Dr. Radziewicz had a positive reputation, other PCPs would be more likely to

refer their patients to Wilkes-Barre General Hospital rather than the nearby

Geisinger hospital due to that status.     Id. at 76.    Geisinger submitted

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J-A31012-14



documentary proof that Dr. Radziewicz had treated a Geisinger patient at

Wilkes-Barre General Hospital.

     Additionally, the following was uncontested.     Since 2000, Geisinger

expended about $65,000 promoting and marketing Dr. Radziewicz’s practice.

In addition, during his fourteen-year tenure at Geisinger, Geisinger

developed Dr. Radziewicz’s family practice skills. “The skills of systems of

care that Geisinger” developed related to “transitions from inpatient to

outpatient” and “organized delivery using the electronic health record for

chronic disease and preventative care.” Id. at 86. Geisinger is nationally

known and recognized for methods that it has developed and which

Dr. Radziewicz utilized at that institution.      He gained knowledge of

Geisinger’s “delivery processes, the systems, the organization, the methods

by which you deliver” the clinical skills learned in medical school and

residency programs “in an organized setting taking advantage of the

electronic health record and the group practice.” Id. at 87.

     Based on this evidence, on February 24, 2014, the trial court denied

Geisinger’s petition for a preliminary/permanent injunction.    It concluded

that Geisinger was not likely to prevail on the merits of its position that

Dr. Radziewicz breached the restrictive covenant.    It also found that there

may be an adequate remedy at law in that Geisinger represented that it was

pursuing an action at law for damages in Luzerne County. It also found that

Dr. Radziewicz would suffer more harm than Geisinger since issuance of an




                                    -6-
J-A31012-14



injunction would result in a loss of his livelihood. This appeal followed denial

of relief. Geisinger raises the following contention on appeal:

         Whether the trial court abused its discretion in denying
      Geisinger Clinic’s request for preliminary injunction where no
      reasonable grounds exist in the record to support the trial court’s
      Order and the rule of law relied upon by the trial court was
      erroneous and misapplied?

Appellant’s brief at 2.

      A trial court’s decision to grant or deny a preliminary injunction is

reviewed under an abuse of discretion standard. Brayman Const. Corp. v.

Com., Dept. of Transp., 13 A.3d 925 (Pa 2011). Specifically:

      On 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.

Id. at 935-36 (citations omitted).

      A petition must establish the following six elements in order to obtain

a preliminary injunction:

      (1) relief is necessary to prevent immediate and irreparable
      harm that cannot be adequately compensated by money
      damages; (2) greater injury will occur from refusing to grant the
      injunction than from granting it; (3) the injunction will restore
      the parties to their status quo as it existed before the alleged
      wrongful conduct; (4) the petitioner is likely to prevail on the
      merits; (5) the injunction is reasonably suited to abate the
      offending activity; and (6) the public interest will not be harmed
      if the injunction is granted. See Summit Towne Ctr., Inc. v.
      Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 646–47, 828
      A.2d 995, 1001 (2003).


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J-A31012-14



Id. at 935.

       The trial court concluded that one, two, and four were not satisfied

herein.2 We first address the trial court’s finding that Geisinger would not

suffer irreparable harm that could not be compensated through monetary

damages absent issuance of the injunction.       As we noted in Quaker City

____________________________________________


2
  We note our disagreement with the learned dissent’s conclusion that the
trial court’s credibility resolutions render his ruling in this matter
untouchable on appeal. Specifically, the dissent notes that “the trial court
determined Geisinger had failed to meet elements one, two and four.”
Dissent at 3. The dissent continues that the “trial court’s determinations
were based upon its credibility determinations,” and it insists that we are
therefore bound to accept them. Id. The restrictive covenant is a contract,
and the question of whether a party can enforce a restrictive covenant
through injunctive relief is dependent upon whether it has been breached.
“Because contract interpretation is a question of law, this Court is not bound
by the trial court's interpretation.” Miller v. Poole, 45 A.3d 1143, 1145
(Pa.Super. 2012) (citation omitted); accord Clarke v. MMG Ins. Co., 100
A.3d 271, 275 (Pa.Super. 2014) (“[I]n interpreting a contract, this Court
need not defer to the trial court.”).

     Indeed, the only credibility determinations rendered herein related to
the court’s conclusions that Geisinger’s witnesses exaggerated both the
impact of Dr. Radziewicz’s violation of the restrictive covenant and the
amount of expenditures made to advance his practice. First, the impact on
Geisinger of Dr. Radziewicz’s violation was not a pertinent consideration in
this case. No one contested that the restrictive covenant was enforceable as
reasonable in terms of geographic scope and duration. The sole issue was
whether Dr. Radziewicz violated its terms. If he did, then Geisinger is
entitled to enforce it under controlling Pennsylvania case authority.
Furthermore, since Dr. Radziewicz executed the accord as a condition of
starting employment, it was enforceable, Pulse Technologies, Inc. v.
Notarom, 67 A.3d 778, 781 (Pa. 2013), and the amount expended by
Geisinger to promote his practice was unnecessary to support a finding that
the agreement was valid. Geisinger’s evidence in this respect was merely an
alternative means of establishing consideration for the covenant.



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J-A31012-14



Engine Rebuilders, Inc. v. Toscano, 535 A.2d 1083, 1085 (Pa.Super.

1987) (quoting Bryant Co. v. Sling Testing and Repair, Inc., 369 A.2d

1164, 1167 (Pa. 1977):

           It is not the initial breach of a covenant which necessarily
       establishes the existence of irreparable harm but rather the
       threat of the unbridled continuation of the violation and the
       resultant incalculable damage to the former employer's business
       that constitutes the justification for equitable intervention.

       We observed in that case that a restrictive covenant is designed to

prevent more than just a loss of business, which can be assessed by

calculable damages.         It is also tailored to prevent the potential for a

disturbance in the relationship between the former employer and its clients

and to protect the employer’s client base that has been established through

prior dealings.     “It is the possible consequences of this unwarranted

interference with customer relationships that is unascertainable and not

capable of being fully compensated by money damages.”            Quaker City,

supra at 1086 (quoting Bryant, supra at 1167) (emphasis added). Thus, if

a covenant is reasonable, then it becomes enforceable in equity.3

       The fact that Geisinger potentially will be able to comb its patient base

and determine lost revenues does not mean the injunction is not necessary
____________________________________________


3
  The dissent’s position is that the injunction cannot issue since Geisinger’s
damages can be ascertained. Dissent at 7. This position is contrary to the
recited law. These cases establish that the sole reason for a restrictive
covenant is to prevent the contracting party from competing with the other
party. It is the potential consequences of the competition and possible
disruption of client base that cannot be compensated.



                                           -9-
J-A31012-14



to prevent immediate and irreparable harm. Since a restrictive covenant is

entered in order to prevent a potential rather than actual loss of clients, it

will be given effect even if the former employer could possibly ascertain its

loss of income from the breach. If a party to such an agreement violates its

tenets, then compliance with the accord must be compelled through

injunctive relief.   Otherwise, the agreement is not worth the paper upon

which it is written.   Thus, there were no reasonable grounds for the trial

court’s determination that the first aspect of the test for obtaining an

injunction was not satisfied herein.

      Although not used by either Dr. Radziewicz or the trial court as

grounds for denying Geisinger injunctive relief, the dissent contends that the

inclusion of a purported liquidated damages clause             in the contract

establishes that Geisinger’s harm can be adequately compensated with

monetary damages. The clause in question reads:

            I further understand that Penn State Geisinger Clinic will
      waive this restriction upon receipt of payment, in advance, of a
      sum equal to the greater of (a) my annualized base salary as of
      the date of this Agreement; or(b) my total compensation paid by
      Penn State Geisinger Clinic during the twelve calendar months
      immediately preceding the month in which my termination
      occurs, if I wish to continue my practice within the restricted
      area during the two years following my termination. Because the
      financial burdens Penn State Geisinger Clinic would endure are
      very difficult to ascertain and quantify, I agree that this is a fair
      amount of compensation to pay, as liquidated damages, and not
      as a penalty, in the event that I wish to continue my practice
      within the restricted area within the specified two year period.




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J-A31012-14



        First, the characterization of this clause as a liquidated damages clause

is tenuous. In a liquidated damages clause, the parties agree, in advance of

any breach, that a set amount of damages will be awarded if a breach

occurs.4      Thus, a liquidated damages clause would provide that, if Dr.

Radziewicz breached the contract, then Geisinger could sue and obtain the

damages outlined in the covenant.              This clause is the reverse scenario in

that it permits Dr. Radziewicz to avoid the restrictive covenant if he tenders

an amount to Geisinger characterized as liquidated damages.

        More importantly, the Restatement of Contracts explicitly outlines that

a party can obtain injunctive relief despite the existence of a liquidated

damages clause in the contract.            It states, “Specific performance or an

injunction may be granted to enforce a duty even though there is a provision


____________________________________________


4
    Specifically Restatement (Second) of Contracts § 356(1) provides:

        (1)    Damages for breach by either party may be liquidated in
               the agreement but only at an amount that is reasonable in
               the light of the anticipated or actual loss caused by the
               breach and the difficulties of proof of loss. A term fixing
               unreasonably large liquidated damages is unenforceable
               on grounds of public policy as a penalty.

Comment (a) further delineates, “The parties to a contract may effectively
provide in advance the damages that are to be payable in the event of
breach as long as the provision does not disregard the principle of
compensation. The enforcement of such provisions for liquidated damages
saves the time of courts, juries, parties and witnesses and reduces the
expense of litigation.”




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J-A31012-14



for liquidated damages for breach of that duty.” Restatement (Second) of

Contracts § 361 Comment a provides a rationale for the precept:

          A contract provision for payment of a sum of money as
       damages may not afford an adequate remedy even though it is
       valid as one for liquidated damages and not a penalty (§ 356).
       Merely by providing for liquidated damages, the parties are not
       taken to have fixed a price to be paid for the privilege not to
       perform. The same uncertainty as to the loss caused that argues
       for the enforceability of the provision may also argue for the
       inadequacy of the remedy that it provides. Such a provision does
       not, therefore, preclude the granting of specific performance or
       an injunction if that relief would otherwise be granted.

Accord Roth v. Hartl, 75 A.2d 583, 586 (Pa. 1950) (Presence of a

liquidated damages clause in an agreement for the sale of real estate “will

not restrict the remedy thereto or bar specific performance unless the

language of the part of the agreement in question, or of the entire

agreement, together with other relevant evidence, if any, shows a contrary

intent.”);5 Boulder Medical Center v. Moore, 651 P.2d 464 (Colo.App.
____________________________________________


5
   Other jurisdictions have likewise ruled that the inclusion of a liquidated
damages clause in a contract does not automatically preclude the non-
breaching party from specifically enforcing the contract in question and that
the intent of the parties must be examined. Vacold LLC v. Cerami, 545
F.3d 114, 130-31 (2ndCir. 2008) (emphasis in original) (“Although a
liquidated damages provision precludes a party from recovering lost profits
and other measures of damages . . . it does not prevent a party from
seeking specific performance, absent an express provision to this effect.);
Beery v. Plastridge Agency, Inc., 142 So.2d 332, 334-35 (Fla.App. 1962)
(“A provision for liquidated damages in a contract does not necessarily bar
injunctive relief against its breach. If, however, it appears that the liquidated
damages clause was intended to furnish a party the alternative of
performance or payment or was to be an exclusive remedy, an injunction
will not be issued.”); Albers v. Koch, 1173 N.W.2d 293, 295 (Neb. 1969)
(“The fact that a contract provides for payment of liquidated damages for
(Footnote Continued Next Page)


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J-A31012-14



1982) (medical partnership awarded both liquidated damages and injunctive

relief where physician breached covenant not to compete).         Bradley v.

Health Coalition, Inc., 687 So.2d 329 (Fla.App. 3 Dist. 1997) (rejecting

former employee’s position that a noncompetition agreement could not be

enforced through injunctive relief since the accord contained a liquidated

damages clause thereby providing adequate legal remedy for breach of

covenant).

      Herein, the liquidated damages clause in question supports the

conclusion that injunctive relief should issue.     The clause permitted Dr.

Radziewicz to avoid the effect of the restrictive covenant if he tendered the

stated amount, which Dr. Radziewicz failed to do. Since Dr. Radziewicz did

not proffer the amount outlined in the clause, Geisinger’s ability to enforce


                       _______________________
(Footnote Continued)

breach of promise is not a bar to specific enforcement of the promise. Where
a contract provides for such payment as a true alternative performance, the
promisor's election to pay this price will prevent specific enforcement of the
alternative against him.”); Rubinstein v. Rubinstein, 23 N.Y.2d 293, 298,
244 N.E.2d 49, 52 (1968) (“For there to be a complete bar to equitable relief
there must be something more, such as explicit language in the contract,
that the liquidated damages provision was to be the sole remedy.”);
Simenstad v. Hagen, 126 N.W.2d 529, 535 (Wis. 1964) (“This court has
stated, however, that the remedy of specific performance is not made
unavailable by the fact that the contract contains a provision for the
payment of liquidated damages in case of breach.”); see also Kilsheimer
v. Rose & Moskowitz, 257 F.2d 242 (2ndCir. 1958); Armstrong v.
Stiffler, 56 A.2d 808 (Md. 1948); Randall v. Douglass, 32 N.W.2d 721,
723 (Mi. 1948); Save-Way Drug, Inc. v. Standard Inv. Co., 490 P.2d
1342 (Wash.App. 1971).
.



                                           - 13 -
J-A31012-14



the restrictive covenant is reinforced rather than eroded by the clause in

question.

   We also concur with Geisinger that there are no reasonable grounds for

the trial court’s declaration that greater injury would result to Dr. Radziewicz

by grant of the injunction. In this respect, the trial court decided that Dr.

Radziewicz would lose his ability to earn a living if the injunction were

granted. The evidence presented by Dr. Radziewicz himself precludes such a

finding. Dr. Radziewicz reported that he was gainfully employed at another

AIM facility, Wayne County Hospital, after his employment was terminated,

and he then transferred to the hospital within the zone prohibited by the

restrictive covenant. Dr. Louis O’Boyle, who was called as a witness by Dr.

Radziewicz, owns AIM, which employs Dr. Radziewicz and provides the

hospitalists for Wilkes-Barre General Hospital and Wayne Memorial Hospital.

N.T. Hearing, 2/12/14, at 4. Dr. O’Boyle agreed that there was “nothing to

prevent Dr. Radziewicz from going back to Wayne Memorial Hospital,” and

that his compensation would remain the same. Id. at 253. Thus, the proof

presented by Dr. Radziewicz established that he would not lose his ability to

make a living if the restrictive covenant was enforced and there are no

apparently reasonable grounds for the trial court’s contrary finding.

      Finally, we analyze whether the trial court correctly decided that it is

unlikely that Geisinger will prevail on the merits.       We conclude that the

restrictive   covenant   is   enforceable     and   was   breached   and   that,

concomitantly, there are no apparently reasonable grounds for the trial

                                     - 14 -
J-A31012-14



court’s conclusion that Geisinger is unlikely to prevail on the merits.     “In

order for a ‘non-competition’ covenant to be enforceable, it must relate to a

contract for employment, be supported by adequate consideration and be

reasonably limited in both time and territory.”        Insulation Corp. of

America v. Brobston, 667 A.2d 729, 733 (Pa.Super. 1995).              Although

“Pennsylvania courts have historically been reluctant to enforce contracts

that place restraints on trade or on the ability of an individual to earn a

living,” it is settled that “non-competition covenants are not per se

unreasonable or unenforceable.”      WellSpan Health v. Bayliss, 869 A.2d

990, 996 (Pa.Super. 2005).     A restrictive covenant must be reasonably

related to a legitimate business interest of the employer. Id. “In addition,

the temporal and geographical restrictions imposed on the ex-employee

must be reasonably limited.” Id. at 999.

      The contract in question was related to a contract for employment, as

Dr. Radziewicz admitted that he signed it in order to accept employment

with Geisinger. Additionally, it is supported by adequate consideration. As

our Supreme Court noted in Pulse Technologies, Inc. v. Notarom, 67

A.3d 778, 781 (Pa. 2013) (citation omitted), “In Pennsylvania where a

contract of employment, which is ancillary to the taking of employment,

contains reasonable restrictive covenants that do not constitute illegal

restraints of trade, the restrictive covenants are valid and enforceable.”

Thus, where the covenant was entered as part of the contract establishing a

new   employment     relationship,    the     employment   itself   “constitutes

                                     - 15 -
J-A31012-14



consideration supporting that covenant, as well as all other terms of the

employment contract.” Socko v. Mid-Atlantic Systems of CPA, Inc., 99

A.3d 928, 931-32 (Pa.Super. 2014), appeal granted, 2014 WL 6991669 (Pa.

Dec. 11, 2014).

     In the present case, the restrictive covenant was ancillary to

Dr. Radziewicz’s acceptance of employment at Geisinger and, based upon

that fact alone, supported by consideration.     The agreement additionally

protected a reasonable interest of Geisinger, in that, according to its

unrefuted proof, it promoted Dr. Radziewicz’s nascent practice of medicine

and facilitated his ability to earn a living in the area by advertising and

building a patient base. No one contested that the agreement in question

was geographically and temporally reasonable. Hence, it was enforceable.

     We note that the trial court implicitly concluded that there was no

consideration for the accord.     It found that Geisinger exaggerated its

expenditures to nurture Dr. Radziewicz’s practice. However, given that the

covenant’s consideration was provided by the fact that Dr. Radziewicz

entered it ancillary to his employment, whether Geisinger expended

significant monetary resources to promote the practice does not affect the

enforceability of the covenant.    Moreover, Dr. Radziewicz admitted that

sums were expended to promote his practice and that he learned practices

and policies from Geisinger that enhanced his ability to engage in the

practice of medicine, which he began with that entity.




                                   - 16 -
J-A31012-14



       The trial court also found that the restrictive covenant was not violated

since Dr. Radziewicz was not competing with his former practice.            This

finding was premised upon the fact that Dr. Radziewicz was a hospitalist

rather than a practicing PCP in an outpatient setting. However, the fact that

Dr. Radziewicz was an inpatient PCP rather than clinical PCP is not pertinent

to whether the agreement was violated. Dr. Radziewicz agreed “to restrict

my practice of medicine.” Complaint, 12/3/13, at Exhibit B. The April 19,

1998 addendum confirms that, “This restriction applies not only to an office I

may seek to establish within the restricted area for my practice but to staff

memberships and the exercise of clinical privileges at any health care

facility” within the denoted area.6            Id.   As of October 7, 2013, Dr.

____________________________________________


6
     In light of the contract language, we disagree that the trial court’s ruling
is proper when one understands “Dr. Radziewicz’s duties with both Geisinger
and Advanced Inpatient Medicine[.]” Dissent at 4. The dissent delineates
that Dr. Radziewicz’s duties as a hospitalist for AIM do not compete with the
PCPs at his former practice with Geisinger.

    The language of the contract does not limit the scope of the restrictive
covenant to Dr. Radziewicz’s performance as a PCP. It states that Dr.
Radziewicz agreed not to practice medicine for two years within the covered
area. Similarly, the language covers Dr. Radziewicz’s staff membership and
clinical privileges at any health care facility. Hence, it is irrelevant that Dr.
Radziewicz is a hospitalist for AIM and was a PCP for Geisinger. He is
practicing medicine and has staff membership and clinical privileges at an
AIM health care facility. He initiated that employment within two years of
his separation from service with Geisinger. The facility where he practices
medicine was within the fifteen-mile radius encompassed by the agreement.
He violated the clear and unequivocal language of the agreement, and it
unnecessary to examine his duties as a hospitalist as opposed to a PCP to
determine if the covenant was breached.



                                          - 17 -
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Radziewicz was practicing medicine at Wilkes-Barre General Hospital, N.T.

Hearing, 2/12/14, at 17, regardless of whether he competed with his former

PCP practice with Geisinger. He was exercising clinical privileges at a health

care facility while still subject to the restrictive covenant.      Hence, Dr.

Radziewicz violated the covenant, and there were no apparent reasonable

grounds for the trial court’s conclusion to the contrary.       The restrictive

covenant was valid, and Dr. Radziewicz violated its clear and express terms

when he started to work at Wilkes-Barre General Hospital in October 2013.

       We now consider what relief to grant Geisinger since the restrictive

covenant expired on June 22, 2014, while this appeal was pending.

Geisinger asks that an injunction be issued preventing Dr. Radziewicz from

practicing at Wilkes-Barre General Hospital for “a period of six (6) months

and three (3) weeks, which is the equivalent of the period of time left in the

restrictive covenant when Geisinger filed its Complaint.”     Appellant’s reply

brief at 5. Dr. Radziewicz’s position is that the agreement expired on June

22, 2014, and contains no language permitting the time to be amended.7




____________________________________________


7
    Dr. Radziewicz also suggests that any argument by Geisinger seeking an
extension of the agreement is waived as not raised in the court below.
However, when this action was instituted, when the order denying the
injunction was denied, and when this appeal was filed, the agreement was
still in force. It did not expire until after the pendency of this appeal. There
was no reason to raise that position until the agreement expired. Hence, we
decline to find waiver under these facts.



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     Initially, we observe that we have revised restrictive covenants by

judicial pronouncement.   Specifically, when a restrictive covenant is not

reasonably limited in geographic location, the trial court is permitted to

determine the parameters of the covenant in question. In Davis & Warde,

Inc. v. Tripodi, 616 A.2d 1384, 1388 (Pa.Super. 1992), we outlined:

            The covenant not to compete in the instant case, although
     limited in time, was not limited geographically. This does not
     necessarily impair the validity of the covenant, but any relief
     granted by the trial court must be geographically limited so as
     not to exceed that which is reasonably necessary to provide the
     protection for which appellant contracted. See: Sidco Paper Co.
     v. Aaron, 465 Pa. 586, 594-595, 351 A.2d 250, 254-255 (1976)
     (“where the covenant imposes restrictions broader than
     necessary to protect the employer, we have repeatedly held that
     a court of equity may grant enforcement limited to those portions
     of the restrictions which are reasonably necessary for the
     protection of the employer.”); Bell Fuel Corp. v. Cattolico,
     supra (trial court may define geographic scope of covenant after
     receiving proper evidence upon remand); Quaker City Engine
     Rebuilders, Inc. v. Toscano, 369 Pa.Super. 573, 584-585, 535
     A.2d 1083, 1089 (1987) (“In Pennsylvania, an otherwise valid
     restrictive covenant which is geographically overbroad is ‘divisible
     and enforceable once it has been limited by the court to
     reasonable geographical limits'”; therefore case remanded to trial
     court     to   determine   reasonable    geographic    scope      of
     covenant). . . . On remand, this determination should be made
     by the trial court.

     Herein, the covenant not to compete was breached by Dr. Radziewicz.

We will not hesitate to fashion an appropriate remedy for that breach. He

cannot be allowed to practice in violation of the terms of the restrictive

covenant for the period during which he violated its terms. To do so would

encourage others to prematurely breach valid restrictive covenants in the



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hopes of running out the term during the pendency of legal proceedings.

Hence, this case is remanded for entry of an injunction prohibiting

Dr. Radziewicz from practicing medicine in violation of the restrictive

covenant for the six months and three weeks that he breached its terms.

      The order is reversed.    The case is remanded for entry of an order

consistent with this adjudication. Jurisdiction is relinquished.

      Judge Stabile joins the opinion.

      Judge Ott files a dissenting opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




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