Lico, Inc. v. Dougal, A. v. Lichtenstein, S. ( 2019 )

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2019 PA Super 238
LICO, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ADAM DOUGAL D/B/A PATRIOT No. 1335 WDA 2018
SUPPLY
v.
SAMUEL LICHTENSTEIN
Appeal from the Order Entered August 22, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 17-11735
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.: FILED AUGUST 9, 2019
In this appeal, Appellant, Lico, Inc., appeals from the trial court's August
22, 2018 Order denying Appellant's Motion for Special and Preliminary
Injunction in which it sought to enforce its non -compete agreement with
Appellee, Adam Douga1.1 For the reasons discussed below, we dismiss this
appeal as moot.
The facts and procedural history, as gleaned from the record, are as
follows. Appellant, located in McKeesport, manufactures, sells, and distributes
janitorial and paper good supplies. In June 2006, Appellant hired Appellee to
1 An order denying a preliminary injunction is interlocutory appealable as of
right. Pa.R.A.P. 311(a)(4).
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work as a salesman in the McKeesport area. Appellee's compensation package
consisted of a straight salary plus an additional 10% commission if he reached
$250,000 in sales.
Five years later, in 2011, Appellant received information that Appellee
had begun working for a competitor on the side. Instead of terminating
Appellee's employment, Appellant allowed Appellee to remain employed in
exchange for Appellee signing a non -compete agreement. The non -compete
agreement had a two-year term beginning when his employment terminated
and restricted Appellee from working within a 100 -mile radius of McKeesport
during that two-year period. Appellee signed the non -compete agreement on
March 24, 2011.
Appellee remained employed by Appellant until he resigned on July 3,
2017. Following Appellee's resignation, Appellant contacted Appellee's
customers to inform them that Appellee had resigned. Appellant then learned
that Appellee had continued to service Appellant's customers by starting a
new company.
On August 22, 2017, Appellant filed a Complaint raising claims of
Tortious Interference with Business Relations and Unfair Competition.
Appellee filed an Answer with New Matter and a Counterclaim on November
22, 2017. On February 27, 2018, Appellant filed the instant Motion for Special
Relief and Preliminary Injunction.
After a one -day hearing, the trial court denied Appellant's Motion on
April 11, 2018. Appellant requested, and the court granted reconsideration of
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its Order. Following an additional hearing, on August 22, 2018, the trial court
confirmed its April 11, 2018 Order denying Appellant injunctive relief.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Assuming as the lower [c]ourt did[] that the increase in
[Appellee's] compensation and commission package in 2011
was valid consideration for the non -compete agreement, did
the [t]rial [c]ourt err in determining that the compensation
package was materially changed before [Appellee's] separation
from [Appellant,] thus causing the consideration to fail?
2. Did the lower [c]ourt err in determining that [Appellant's]
change in [Appellee's] compensation package to a straight
commission with a retraction of health benefits was a material
change in [Appellee's] terms of employment thus voiding the
non -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. Appellant appealed
only from the denial of his Motion for injunctive relief, a motion he based on
the non -compete agreement. Because the non -compete agreement expired
on July 3, 2019, this appeal is moot.
An issue can become moot during the pendency of an appeal due
to an intervening change in the facts of the case or due to an
intervening change in the applicable law[.] In that case, an
opinion of this Court is rendered advisory in nature. An issue
before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.
* * *
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Nevertheless, this Court will decide questions that otherwise have
been rendered moot when one or more of the following exceptions
to the mootness doctrine apply: 1) the case involves a question of
great public importance, 2) the question presented is capable of
repetition and apt to elude appellate review, or 3) a party to the
controversy will suffer some detriment due to the decision of the
trial court.
In re R.D., 44 A.3d 657, 680 (Pa. Super. 2012) (citations omitted).
The instant appeal arises from the trial court's determination that the
non -compete agreement is not enforceable. By its own terms, the agreement
was enforceable for two years after Appellee left Appellant's employment.
Appellee resigned from Appellant on July 3, 2017. Therefore, the non -
compete agreement expired on July 3, 2019. Accordingly, Appellant's
challenge to the denial of injunctive relief that was based only on the
enforceability of the non -compete agreement is moot. See, e.g., Gordon v.
Phil. County Dem. Exec. Comm., 80 A.3d 464, 473 (Pa. Super. 2013)
(finding third -party challenges to use of particular rule to remove committee
member moot where committee reinstated member); R.D., supra at 680
(finding a challenge to a juvenile court judge's remarks at dispositional hearing
moot where juvenile was no longer in placement); Scranton School Dist. v.
Scranton Fed'n of Teachers, 282 A.2d 235 (Pa. 1971) (finding appeal from
order granting preliminary injunction prohibiting a teachers' strike moot after
the parties executed a collective bargaining agreement resolving the
controversy).
Our review of the record demonstrates that none of the exceptions
applies. See In re R.D., supra at 680. This matter is a private dispute
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revolving around the enforcement of a non -compete agreement in the contract
of a single former employee. It involves no issue of public importance. Cf. In
re Estate of Border, 68 A.3d 946, 954 (Pa. Super. 2013) (finding that appeal
from denial of preliminary injunction staying order removing guardian was
technically moot following death of patient, but holding it concerned matter of
public importance, the removal of life support from incapacitated patient).
Moreover, because Appellant no longer employs Appellee, the question of the
enforceability of a clause in the employment contract between them will not
arise again. See Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super.
1983) (internal quotation marks and citations omitted) (explaining that "a
case is capable of repetition, yet evading review when (1) the challenged
action [is] in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there [is] a reasonable expectation that the same
complaining party [will] be subjected to the same action again").
Lastly, Appellant will not suffer any detriment without this Court's
decision. Appellant sought injunctive relief to enforce the non -compete
agreement, and that agreement has now expired; Appellant cannot enforce
the clause now.
This Court has observed, "[a]n issue before a court is moot if in ruling
upon the issue the court cannot enter an order that has any legal force or
effect." Rivera v. Pa. Dept. of Corr., 837 A.2d 525, 527 (Pa. Super. 2003)
(citation omitted). Appellant sought to enforce a non -compete agreement
that has since expired. Thus, any ruling by this Court would have no force or
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effect. See Gordon, supra at 473; R.D., supra at 680. The issue herein is
moot, and we, thus, dismiss the appeal.
Appeal dismissed.
Judgment Entered.
r 1
Joseph D. Seletyn, (Of
Prothonotary
Date: 8/9/2019
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