Lico, Inc. v. Dougal, A. v. Lichtenstein, S.Lico, Inc. v. Dougal, A. v. Lichtenstein, S.
Case Information
PA Super 238 LICO, INC. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v. ADAM DOUGAL D/B/A PATRIOT No. WDA 2018 SUPPLY
v.
SAMUEL LICHTENSTEIN
Appeal from the Order Entered August 2018 In the Court of Common Pleas Allegheny County Civil Division at No(s): GD 17-11735
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
FILED AUGUST OPINION BY DUBOW, J.: In this appeal, Appellant, Lico, Inc., appeals from the trial court's August 2018 Order denying Appellant's Special and Preliminary Injunction which it sought enforce its non -compete agreement with Appellee, Adam Douga1.1 For reasons discussed below, we dismiss this as moot. facts procedural history, as gleaned the record, are as follows. Appellant, located McKeesport, manufactures, sells, distributes janitorial paper good supplies. June 2006, Appellant hired to An denying preliminary injunction interlocutory appealable right. Pa.R.A.P. 311(a)(4).
work a salesman the McKeesport area. Appellee's compensation package consisted a straight salary plus an additional 10% commission if he reached $250,000 sales.
Five years later, 2011, Appellant received information Appellee had begun working for a competitor side. Instead terminating Appellee's employment, Appellant allowed Appellee remain employed in exchange Appellee signing -compete agreement. -compete had two-year term beginning when his employment terminated and restricted Appellee from working within 100 -mile radius of McKeesport during that two-year period. Appellee signed on March 24, 2011.
Appellee remained employed by Appellant until he resigned 3, 2017. Following Appellee's resignation, Appellant contacted Appellee's customers inform them Appellee had resigned. Appellant then learned Appellee had continued to service Appellant's customers by starting a new company.
On August 22, 2017, filed Complaint raising claims of Tortious Interference with Business Relations and Unfair Competition. filed Answer with New Matter Counterclaim November On February 2018, Appellant filed instant Motion for Special Relief Preliminary Injunction.
After one -day hearing, the trial denied Appellant's on April requested, court granted reconsideration of
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its Order. Following an additional hearing, August 2018, the trial court confirmed its April 2018 Order denying Appellant injunctive relief.
This timely appeal followed. Both Appellant the trial court complied with Pa.R.A.P. 1925. raises the following two issues appeal: Assuming the lower [c]ourt did[] that the increase in
[Appellee's] compensation commission package in was valid consideration the non -compete agreement, did the [t]rial [c]ourt err in determining that the compensation package was materially changed before [Appellee's] separation [Appellant,] thus causing the consideration to fail? Did the lower [c]ourt err in determining [Appellant's] change in [Appellee's] compensation package straight commission with retraction of health benefits was material change in [Appellee's] terms of employment thus voiding the -compete agreement? Appellant's Brief at 3.
Before we address the merits of Appellant's claims, we must first determine whether these issues are properly before us. appealed only from the denial of his for injunctive relief, motion he based on -compete agreement. Because the expired 2019, this is moot.
An issue can become moot during the pendency of an appeal due an intervening change in the facts of the or due to an intervening change the applicable law[.] case, an opinion of this Court rendered advisory nature. An issue before if ruling upon court cannot enter has any legal force or effect.
* * *
Nevertheless, this Court will decide questions otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) involves question of great public importance, 2) the question presented is capable repetition apt to elude appellate review, or 3) party to the controversy will suffer some detriment due to decision of the trial court.
In re R.D., 44 A.3d 657, (Pa. Super. 2012) (citations omitted). instant appeal arises from the trial court's determination the -compete agreement is not enforceable. By its own terms, agreement was enforceable two years after left Appellant's employment. Appellee resigned from Appellant July Therefore, the - compete agreement expired Accordingly, Appellant's challenge to denial of injunctive relief was based only the enforceability of the moot. See, e.g., Gordon v. Phil. County Dem. Exec. Comm., A.3d (Pa. Super. 2013) (finding third -party challenges use particular rule to remove committee member where committee reinstated member); R.D., supra at 680 (finding challenge a juvenile court judge's remarks at dispositional hearing moot where juvenile was no longer placement); Scranton School Dist. v. Scranton Fed'n Teachers, 282 A.2d 235 (Pa. 1971) (finding from order granting preliminary injunction prohibiting teachers' strike moot after the parties executed collective bargaining resolving the controversy).
Our review of the record demonstrates none of the exceptions applies. See re R.D., supra at 680. This matter private dispute revolving around the enforcement of -compete agreement in contract of single former employee. It involves no issue of public importance. Cf. In re Estate of Border, A.3d 946, 954 (Pa. Super. 2013) (finding appeal denial of preliminary injunction staying order removing guardian was technically moot following death of patient, but holding it concerned matter public importance, the removal of life support from incapacitated patient). Moreover, because no longer employs Appellee, the question of the enforceability of clause the employment contract between them will not arise again. See Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super. 1983) (internal quotation marks citations omitted) (explaining that "a capable repetition, yet evading review when (1) the challenged action [is] its duration too short to be fully litigated prior to its cessation or expiration, (2) there [is] reasonable expectation that the same complaining party [will] be subjected to the same action again").
Lastly, will not suffer any detriment without this Court's decision. Appellant sought injunctive relief enforce the -compete agreement, has now expired; Appellant cannot enforce clause now.
This Court has observed, "[a]n issue before court if ruling upon cannot enter has any legal force or effect." Rivera v. Pa. Dept. Corr., 837 A.2d 525, (Pa. Super. 2003) (citation omitted). Appellant sought enforce -compete agreement has since expired. Thus, any ruling by this Court would have no force or
- - effect. See Gordon, supra at 473; R.D., supra at 680. herein is moot, we, thus, dismiss the appeal.
Appeal dismissed.
Judgment Entered.
r D.
Joseph Seletyn, (Of
Prothonotary
Date: 8/9/2019