Joseph, L. v. O'Laughlin, J.

J-A20015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAURIE A. JOSEPH IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN B. O’LAUGHLIN,
Appellant No. 1706 WDA 2015
Appeal from the Order September 30, 2015
In the Court of Common Pleas of Fayette County
Civil Division at No(s): 1691 of 2015 G.D.
BEFORE: BOWES, STABILE AND MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 22, 2017
John B. O’Laughlin (“O’Laughlin”) appeals from the trial court’s Order
permanently enjoining O’Laughlin from engaging in activities related to the
future operation of a veterinary clinic within a fifty mile radius of the Grace
Veterinary Clinic, Inc. (“Grace Veterinary Clinic”),1 which is owned by Laurie
Joseph (“Joseph”). We affirm.
On December 23, 2014, O’Laughlin and Joseph executed an asset
transfer agreement (“the Agreement”) outlining Joseph’s purchase of the
Grace Veterinary Clinic. The Agreement included the following restrictive
covenant:
[O’Laughlin] acknowledges and agrees that he will not be
involved in any of the following activities at any location within
fifty (50) miles of the veterinary clinic (“Geographic Area”).
[O’Laughlin] covenants and agrees that for a period of five (5)
____________________________________________
1
Grace Veterinary Clinic is located at 1565 Route 31 in Westmoreland
County, Pennsylvania.
J-A20015-16
years following the execution of this Agreement, he shall not
directly or indirectly, as an employer, employee, principal, agent,
consultant, partner, stockholder, creditor or in any other
capacity, engage or participate in any business or practice within
the Geographic Area that is in competition in any manner
whatsoever with the Buyer. Further, [O’Laughlin] shall not
contact, solicit, or engage in any activity to contact or solicit,
indirectly or directly, any client, past, present, or future, during
that five (5) year period.
Agreement, 12/24/14, ¶ 3 (at unnumbered page 3). The restrictive
covenant, which expires on December 24, 2019, comprised $17,973.50 of
the $750,000 sale price.2 Id. at ¶ 4.
Approximately six months later, on July 2, 2015, O’Laughlin filed a
Petition for Special Exemption with the Fayette County Zoning Hearing
Board, wherein he requested permissive use to operate a veterinary clinic at
114 Eannotti Road, Dawson Pennsylvania, which is approximately eight
miles from the Grace Veterinary Clinic. The zoning hearing was scheduled
for August 26, 2015. Meanwhile, O’Laughlin formed a limited liability
company (O’Laughlin Veterinary Services), created a Facebook page of the
same name, and purchased equipment. The Facebook page included a link
that advised followers that the clinic was, “coming soon,” and when
activated, the link directed users to the business’s location on a map.
____________________________________________
2
Each of the remaining intangible assets involved in the sale, i.e., goodwill,
use of the brand name for six months, and customer base, were also valued
at $17,973.50. See Agreement, ¶ 3 (at unnumbered page 3).
-2-
J-A20015-16
On August 25, 2015, Joseph filed an action for injunctive relief,
seeking to enforce the Agreement’s restrictive covenant. Specifically,
Joseph sought to permanently enjoin O’Laughlin from operating a veterinary
clinic and prohibit him from seeking the zoning variance that was scheduled
for a hearing the following day. On the same date, Joseph filed a self-styled
Motion for Preliminary/Permanent Injunction requesting the identical relief.
On August 27, 2015, the trial court entered a preliminary injunction
against O’Laughlin, ordering him to “cease and desist any veterinary
operations at … 114 Eannotti Road,” and suspending the zoning hearing
pending disposition of the permanent injunction action. Thereafter, following
an evidentiary hearing, the trial court entered the permanent injunction at
issue in this appeal. Specifically, the court prohibited O’Laughlin from
operating a veterinary clinic within fifty miles of Grace Veterinary Clinic,
canceled the zoning hearing, dismissed O’Laughlin’s petition for a special
exemption, directed O’Laughlin to cease operations at the 114 Eannotti Road
facility, and enjoined O’Laughlin “from engaging in any activity that would
violate the [] Agreement[.]” Trial Court Order, 9/30/15, at 2. Thereafter,
O’Laughlin filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.3
____________________________________________
3
O’Laughlin initially leveled three claims; however, he filed an Amended
Concise Statement, which included an additional claim.
-3-
J-A20015-16
O’Laughlin presents the following claims for our review:
1. Did the [trial] court err in entering the permanent
injunction order in favor of [Joseph] by citing to and relying upon
as precedential authority in its opinion an unpublished
memorandum decision of the Pennsylvania Superior Court.
2. Did the [trial] court err in entering the permanent
injunction order when the prerequisite legal elements for the
issuance of such an injunction [were never established]?
3. Did the [trial] court err in entering the permanent
injunction order in favor of [Joseph,] based on proof of
[O’Laughlin’s] preliminary actions in preparing to compete
against [Joseph] at a future point in time?
4. Did the [trial] court err in entering the permanent
injunction order in favor of [Joseph] as the order exceeded the
scope of the proof advanced by [Joseph] at the permanent
injunction hearing?
Brief of Appellant at 4 (issues renumbered for ease of disposition).
O’Laughlin first claims that the trial court erred in relying upon this
Court’s unpublished decision in Atkinson & Mullen Travel, Inc., et al. v.
O’Brien, et al, 2944 EDA 2012 (Pa. Super. filed May 5, 2014) (unpublished
memorandum), as authoritative precedent in rendering its decision. In that
case, we inferred a need, in light of that appellant’s past litigiousness, for a
permanent injunction to prevent the appellant from engaging in serial
litigation against a defendant, even though no lawsuit was pending.
Presently, the trial court relied upon our discussion in the unpublished
memorandum to support its analogous rationale that O’Laughlin’s
preparations violated the restrictive covenant because “it [was] improbable
that [O’Laughlin] took all of the aforementioned actions so that he could be
-4-
J-A20015-16
ready to compete on December 24th, 2019, and not before.” Trial Court
Opinion, 9/30/15, at 5.
As O’Laughlin accurately observes, Superior Court Internal Operating
Procedure § 65.37 precludes any court or party from citing or relying upon
an unpublished memorandum decision except in limited situations that are
not implicated in this case. Specifically, the proviso states,
A. An unpublished memorandum decision shall not be relied
upon or cited by a Court or a party in any other action or
proceeding, except that such a memorandum decision may be
relied upon or cited (1) when it is relevant under the doctrine of
law of the case, res judicata, or collateral estoppel, and (2) when
the memorandum is relevant to a criminal action or proceeding
because it recites issues raised and reasons for a decision
affecting the same defendant in a prior action or proceeding.
When an unpublished memorandum is relied upon pursuant to
this rule, a copy of the memorandum must be furnished to the
other party to the Court.
Superior Court IOP § 65.37(A).
Here, the trial court relied upon our legal analysis in the unrelated
unpublished memorandum in order to draw the inference that O’Laughlin’s
preparations threatened Joseph with a substantial injury. Accordingly, we
agree with O’Laughlin that the trial court erred in relying upon that analysis
as having any precedential value.4 However, we reject O’Laughlin’s
____________________________________________
4
We observe that our Supreme Court is currently considering a proposal
from the Appellate Court Procedural Rules Committee that would permit
citation to unpublished memorandum as persuasive authority. Nevertheless,
as of the date of this Opinion, our Supreme Court has not endorsed the
(Footnote Continued Next Page)
-5-
J-A20015-16
concomitant assertion that the misstep is tantamount to reversible error. To
the contrary, for the reasons explained infra, we conclude that the certified
record supports the trial court’s imposition of a permanent injunction.
We review an order granting permanent injunctive relief de novo and
our scope of review is plenary. Kuznik v. Westmoreland County Bd. of
Comm’rs, 902 A.2d 476, 489 (Pa. 2006). “To justify the award of a
permanent injunction, the party seeking relief must establish that his right
to relief is clear, that an injunction is necessary to avoid an injury that
cannot be compensated by damages, and that greater injury will result from
refusing rather than granting the relief requested.” Id. (citations and
internal quotation marks omitted). Additionally, “[u]nlike a preliminary
injunction, a permanent injunction does not require proof of immediate
irreparable harm.” Liberty Place Retail Assocs., L.P. v. Israelite School
of Universal Practical Knowledge, 102 A.3d 501, 506 (Pa. Super. 2014).
We address O’Laughlin’s next two claims together. First, O’Laughlin
challenges the trial court’s determination that Joseph established the three
components of a permanent injunction. Brief for Appellant at 11.
Specifically, he asserts that at the hearing, Joseph did not adduce evidence
establishing a clear right to relief, insofar as O’Laughlin’s actions did not
constitute a violation of the restrictive covenant. Id. at 12. The crux of this
_______________________
(Footnote Continued)
proposed rule or promulgated an amendment that would sanction the trial
court’s citation to our unpublished memorandum decision in this situation.
-6-
J-A20015-16
contention is that O’Laughlin’s activities did not constitute engaging in a
competing business or soliciting potential clients. Id. at 12-13.
O’Laughlin highlights that he did not operate a veterinary clinic within
the prohibited area, and asserts that the only evidence of his alleged
violation was the creation of the Facebook page, and the petition he filed
with the zoning board for a special exemption to operate a veterinary
facility. Id. at 13. Framing these actions as merely “preparatory,”
O’Laughlin contends that no evidence exists of his present intention of
opening a veterinary clinic on the site in violations of the restrictive
covenant. Id. O’Laughlin continues, “even if he had such present intention
it would be several years before that intention would manifest itself in actual
competition . . . with Joseph.” Id. Hence, he concludes that the record
does not sustain the trial court’s finding of a clear right to relief. Id. at 13-
14.
The second aspect of this argument assails the portion of the trial
court’s rationale that anticipates a breach of the restrictive covenant based
upon O’Laughlin’s “very preliminary efforts” to compete with Joseph at some
undisclosed point in the future. Id. at 15. O’Laughlin relies upon a mixture
of persuasive authority, including the Restatement (Second) of Agency, and
cases from various sister jurisdictions that address an employee’s duty of
loyalty to his employer in the absence of a restrictive covenant. O’Laughlin
highlights that, in those fact-sensitive cases, the various jurisdictions have
-7-
J-A20015-16
determined that incorporating a business, registering a trademark,
purchasing equipment, and obtaining office space, bank account, and
telephone listings were permissible preparatory measures. Id. at 16.
In contrast to covenants not to compete in employment contracts, a
restrictive covenant included in an agreement for the sale of an established
business are intended to temporarily limit a seller’s competition with a
purchaser, in order for the purchaser to establish its own cliental:
General covenants not to compete which are ancillary to the sale
of a business serve a useful economic function; they protect the
asset known as ‘good will’ which the purchaser has bought.
Indeed, in many businesses it is the name, reputation for
service, reliability, and the trade secrets of the seller rather than
the physical assets which constitute the inducements for a sale.
Were the seller free to re-enter the market, the buyer would be
left holding the proverbial empty poke.
Id. Consistent with our Supreme Court’s perspective, we review the
restrictive covenant in the present case with an eye toward ensuring that
both sides to the asset transfer agreement obtain the benefit of their
bargain.
In the instant case, the specific language of the Agreement provided
that O’Laughlin
shall not directly or indirectly, as an employer, employee,
principal, agent, consultant, partner, stockholder, creditor or in
any other capacity, engage or participate in any business or
practice within the Geographic Area that is in competition …
with the Buyer. Further, [O’Laughlin] shall not contract, solicit,
or engage in any activity to contact or solicit, indirectly or
directly, any client, past present, or future, during that five (5)
year period.
-8-
J-A20015-16
Agreement, ¶ 3 (emphasis added). The trial court determined O’Laughlin
was “preparing to violate the non-compete [A]greement],” when he
1. Created a limited liability company with the name “O’ Laughlin
Veterinary Services;”
2. Purchased Equipment;
3. Created, or had created on his behalf, a Facebook page with
the name “O’ Laughlin Veterinary Services;”
4. Indicated on the Facebook page that the clinic was “Coming
Soon;”
5. Applied for a special exception permit;
6. Stated that the intended use of his property was for a
“veterinary clinic;” and
7. Proposed to locate said veterinary clinic less than nine (9)
miles from Grace Veterinary Clinic, well within the fifty (50) mile
prohibited radius.
Trial Court Opinion, 9/30/15, at 4. Consequently, the trial court concluded
that Joseph had satisfied the threshold element of a permanent injunction,
i.e. a clear right to relief. See id.
Our review of the record discloses that the restrictive covenant at
issue was not limited to O’Laughlin’s practice of veterinary medicine. By its
plain language, the restrictive covenant barred O’Laughlin from, “directly or
indirectly” “engag[ing] or participat[ing] in any business” in
competition with Appellee’s business within the Geographic Area.
Agreement, ¶ 3 (emphasis added). O’Laughlin’s creation of a limited liability
company, purchasing equipment, and seeking a special exception zoning
-9-
J-A20015-16
permit are all integral parts of “engag[ing] or participat[ing]” in the business
of operating a competing veterinary clinic, within the Geographic area. See
id. As such, they were patently prohibited by the Agreement’s restrictive
covenant.
O’Laughlin’s reliance upon case law regarding an employee’s duty of
loyalty to an employer is not particularly helpful.5 Generally, covenants not
to compete, which are ancillary to employment contracts, are subjected to a
higher scrutiny than their counterparts that supplement the sale of a
business. Morgan’s Home Equipment Corp. v. Marticci, 136 A.2d 838,
846 (Pa. 1957). In Spring Steels, Inc. v. Molloy, 162 A.2d 370 (Pa.
1960), our Supreme Court observed that, absent a restrictive agreement, an
employee may make preparations to compete before the end of his
employment, and not breach his/her fiduciary duty of loyalty. Id. at 375.
Other jurisdictions have similarly recognized that preparations to compete
may violate an employee’s duty of loyalty, where there exists a restrictive
covenant.
For example, the United States Court for the Eastern District of
Pennsylvania has explained that,
where an employee, bound by a restrictive covenant, makes
preparations to compete with his current employer, the
____________________________________________
5
We reject O’Laughlin’s reference to agency law summarily, as those tenets
are entirely inapplicable to the case at bar.
- 10 -
J-A20015-16
employee could be said to have breached his duty of loyalty by
seeking employment with admitted competitors of the employer
while still employed because the results of the employees’
activities could be construed as contrary to the express interests
of employer.
Synthes, Inc. v. Emerge Med., Inc., 25 F. Supp. 3d 617, 667-68 (E.D. Pa.
2014) (emphasis added). See also Mattern & Assocs., L.L.C. v. Seidel,
678 F. Supp. 2d 256, 268 n.10 (D. Del. 2010) (noting that preparations to
compete, which would not be actionable under a breach of fiduciary duty
theory, may be actionable where an employee is bound by a restrictive
covenant); Sales & Mktg., Inc. v. Menaged, No. Civ.A.97-4966, 1998 U.S.
Dist. LEXIS 14008, 1998 WL 575270, at *7 (E.D. Pa. Sept. 9, 1998)
(recognizing that “Defendants were at-will employees and were not subject
to any covenants not to compete with Plaintiff once they left the company,
so their formation of a competing company, and even the steps they took to
form the company while still employed by L&N, was not illegal.”) (emphasis
added). Thus, preparations to compete may be barred by an employee’s
duty of loyalty, where there exists a restrictive covenant. As a result, we
are not persuaded by O’Laughlin’s reliance upon employment cases.
O’Laughlin also directs our attention to Berardi’s Fresh Roast, Inc.
v. PMD Enter., Inc. 2008 Ohio App. Lexis 4618 (Ohio Ct. App. 2008), a
case from a sister jurisdiction, as support for his position that his
- 11 -
J-A20015-16
preparatory measures did not breach the sales agreement.6 In Berardi’s
Fresh Roast, the seller had “entered into a noncompetition agreement
which prevented him from re-entering the coffee industry for three years.”7
Id. at *3. The Ohio appellate court determined that the seller did not
violate the noncompetition agreement when he organized a new coffee
roasting enterprise, investigated finance options, leased warehouse space,
hired employees, and ordered equipment and supplies prior to the expiration
of the noncompetition agreement. Id. at *13. In so holding, the Ohio court
distinguished between preparing to compete, and actual competition. Id. at
*13-*14. We cannot conclude that this case is supportive of O’Laughlin’s
position, where the restrictive covenant at issue is not set forth in the
decision.
In this case, the record reflects that O’Laughlin formed a limited
liability company styled, “O’Laughlin Veterinary Services,” acquired medical
____________________________________________
6
The Court of Appeals for Ohio permits citation to and reliance upon its
unpublished cases filed after May 1, Specifically, the Ohio Supreme Court
Rules for the Reporting of Opinions provides that
[a]ll opinions of the courts of appeals issued after May 1, 2002
may be cited as legal authority and weighted as deemed
appropriate by the courts without regard to whether the opinion
was published or in what form it was published.
Rep.Op.R. 3.4.
7
The text of the noncompetition agreement is not set forth in the Court of
Appeals’ decision.
- 12 -
J-A20015-16
equipment, purchased real estate, and applied for a special use zoning
exception that would permit him to build and use a facility as a veterinary
clinic. By these actions, O’Laughlin “directly or indirectly” “engag[ed] or
participat[ed] in any business” in competition with Joseph’s business,
within the Geographic Area. See Agreement, ¶ 3. These actions were a
clear violation of the restrictive covenant, and evince a clear right to relief as
to that aspect of a permanent injunction.
We next address O’Laughlin’s solicitation of customers through social
media. As the trial court observed, O’Laughlin created a Facebook page
under the name O’Laughlin Veterinary Services and maintained contact with
former clients of Grace Veterinary Clinic. Trial Court Opinion, 9/30/15, at 2-
3. We conclude that O’Laughlin’s action in this regard violated the
restrictive covenant set forth in the Agreement.
As noted supra, the final proviso in the non-compete clause stated that
“[O’Laughlin] shall not contact, solicit, or engage in any activity to contact or
solicit, indirectly or directly, any client, past, present, or future, during [the]
five (5) year period.” Asset Transfer Agreement, ¶ 3; Appellee’s Exhibit A.
O’Laughlin operated a Facebook page under the name O’Laughlin Veterinary
Services. Joseph testified that she visited the Facebook page after a client
informed her about O’Laughlin’s then-pending zoning petition. Joseph
described the page and explained how the “Coming Soon” banner directed
her to a website that provided a map and written driving directions from a
- 13 -
J-A20015-16
given point to O’Laughlin Veterinary Services at the address identified in the
zoning petition. N.T., 9/24/15, at 60-61, 66.
The O’Laughlin Veterinary Services page on Facebook utilized the URL
https://www.facebook.com/DrOlaughlin and indicated that it was affiliated
with the American Veterinary Medical Association. The home page invited
viewers “to connect with O’Laughlin Veterinary Services.” See Appellee’s
Exhibit G (O’Laughlin’s Facebook posts between 7/16/15 and 9/23/15).
Through the social media page, O’Laughlin shared various animal-related
links, images, and posts with former clients, other practitioners, and entities
involved in pet care and animal nutrition. As it relates to the present issue,
O’Laughlin’s interactions with some of his former clients require further
examination.
On September 5, 2015, Kay Clark, a former client who was active on
the Facebook page, commented that O’Laughlin was the “[o]nly vet I have
ever taken my [pets] to” and “hopefully [he is] back soon.” Exhibit G at 28.
Approximately two weeks later, O’Laughlin posed the cryptic query, “Guess
who else will be text updating [sic] owners??? … It starts with an O’[.]” Id.
at 17. Three days later, on September 20, 2015, another client expressed,
“[O’Laughlin] is a supper [sic] great Vet” and “[Can’t] wait for the new
clinic to open.” Id. at 18 (emphasis added). Thus, nine months from the
date the parties executed the Agreement, and more than four years and
three months before the restrictive convenient expired, O’Laughlin was
- 14 -
J-A20015-16
actively contacting former clients and indirectly soliciting their business in
anticipation of opening his new clinic.
We reject O’Laughlin’s assertion that Joseph conceded “that the
Facebook page in no way constituted an advertisement for veterinary
services or a solicitation of veterinary services customers by O’Laughlin.”
Brief of Appellant at 13. The contention is factually inaccurate. In reality, to
the extent that Joseph offered any concessions, it was that the Facebook
page did not indicate that O’Laughlin was registering new patients or
accepting clients. See N.T., 9/24/15, at 79. Thus, O’Laughlin’s perception
of the purported concession is skewed. More importantly, notwithstanding
O’Laughlin’s mischaracterization, the fifty-six page exhibit that memorialized
the three months of entries on the O’Laughlin Veterinary Services Facebook
page speaks for itself.
Upon review of that document, it is obvious that, collectively, the
posts, “coming soon” announcement, and map directions, are tantamount to
a solicitation of past or future clients in contravention of the non-compete
clause. The resounding purpose of the Facebook page, and the attendant
communications therein, was to inform the followers of the page, including
former clients, that he intended to open a new clinic and to keep them
apprised of his progress. There is but one reason for O’Laughlin to create
the O’Laughlin Veterinary Services Facebook page and maintain contact with
former clients: to solicit their business
- 15 -
J-A20015-16
Further, despite O’Laughlin’s protestations to the contrary, the fact
that Joseph only rented use of the brand name for six months does not alter
our analysis. As enumerated in the agreement, the temporary use of the
brand name is a distinct component of the agreement with consideration
separate and apart from the restrictive covenant. Although Joseph’s
exclusive use of the brand name expired during June 2015, O’Laughlin’s
contractual obligations and the remaining intangible assets endured. Thus,
O’Laughlin’s argument that the expiration of the six months somehow
affected his contractual obligation to abstain from solicitation pursuant to the
restrictive covenant is unpersuasive.
As O’Laughlin’s continued public discourse with his former clients
under the banner of O’Laughlin Veterinary Services is an express violation of
the restrictive covenant, we conclude that Joseph demonstrated a clear right
to relief in this regard and, on this basis, we affirm the portion of the trial
court’s permanent injunction relating to O’Laughlin’s operation of the
O’Laughlin Veterinary Services’ Facebook page. See Braun v. Wal-Mart
Stores, Inc., 24 A.3d 875, 892 (Pa. Super. 2011) (Superior Court may
affirm on any basis supported by the record).
Having found a clear right to relief, we address the remaining
elements of Joseph’s request for a permanent injunction, i.e., (1) the
absence of an adequate remedy at law; and (2) that the greater injury will
result from refusing injunctive relief. Beyond the conclusory statement that,
- 16 -
J-A20015-16
“the Lower Court erred in its conclusion that the recited elements for a
permanent injunction [regarding an actual and substantial injury] had been
established through the record proof,” O’Laughlin does not challenge the
second element of the decision to grant a permanent injunction. Brief of
Appellant at 12. O’Laughlin’s argument relating to the final element of
Joseph’s claim is only slightly more developed. In sum, O’Laughlin contends
that the trial court failed to balance the respective harms to the parties. Id.
at 14.
In light of O’Laughlin’s failure to level comprehensive legal arguments
addressing either of these components, both assertions are waived. See In
re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (quoting In re A.C., 991
A.2d 884, 897 (Pa. Super. 2010), and stating that, “where an appellate brief
fails to provide any discussion of a claim with citation to relevant authority
or fails to develop the issue in any other meaningful fashion capable of
review, that claim is waived.”). Moreover, even assuming that O’Laughlin’s
cursory arguments are reviewable, no relief is due.
O’Laughlin’s bare claims not only are wholly insufficient, but they also
mischaracterize the record. In order to establish this aspect of her request
for a permanent injunction, Joseph was required to demonstrate that “actual
and substantial injury is likely in the future.” Peugeot Motors of
America, Inc. v. Stout, 456 A.2d 1002, 1008 (Pa.Super. 1983) (emphasis
added). Notwithstanding O’Laughlin’s contention, the certified record
- 17 -
J-A20015-16
demonstrates that Joseph is likely to be harmed by O’Laughlin’s
unobstructed actions and solicitation of her clients, whether direct or
indirect. Recall that Joseph had a bargained-for-expectation of those clients
because she paid O’Laughlin $53,920.50 to acquire the goodwill and client
list for Grace Veterinary Clinic, and for O’Laughlin’s promise to forego
contacting or soliciting past, present, and future clients. Thus, having
received compensation for his noninterference with his former customers, it
would be incongruous to permit O’Laughlin to spend the ensuing five years
soliciting those clients on Facebook in anticipation of opening a rival clinic
after the restrictive covenant expired. In sum, Joseph demonstrated that
substantial injury is likely if O’Laughlin is not enjoined from directly or
indirectly soliciting clients.
For a similar reason, we reject O’Laughlin’s complaint that the trial
court did not weigh the respective injuries associated with granting and
denying the requested relief. In addition to being waived as woefully
underdeveloped, see In re W.H., supra, at 339 n.3, we observe that the
greater injury to Joseph in the absence of injunctive relief is obvious. Unlike
O’Laughlin’s purely preparatory measures that we outlined supra, competent
evidence exists in the certified record to establish O’Laughlin’s solicitation of
the former clients of Grace Veterinary Clinic. The sample of the comments
posted on the O’Laughlin Veterinary Clinic Facebook page by O’Laughlin’s
former clients are revealing. The clients affirmed their allegiance to
- 18 -
J-A20015-16
O’Laughlin notwithstanding his absence by stating “hopefully [he is] back
soon” and declaring “[Cant’] wait for the new clinic to open.” Exhibit G at
18, 28. Moreover, O’Laughlin further enticed his former clients with his own
esoteric post referencing an anticipated text message that he intended to
send to pet owners about an unsaid event. Id. at 17. In contrast to
O’Laughlin’s benign measures to ready a prospective business, his pervasive
contact with former clients on social media since July 2015 and his indirect
solicitation of those clients had a direct impact of Joseph’s clientele, i.e.,
their resolve to renew their commitment to O’Laughlin and follow him to his
new practice when it opened in 2019. Again, still mindful of the premium
that Joseph paid O’Laughlin for the clinic’s goodwill and an unhindered
opportunity to retain its customers, the greater injury resulting from a denial
of injunctive relief is patent. See Morgan’s Home Equipment Corp,
supra at 846. (“covenants not to compete which are ancillary to the sale of
a business serve a useful economic function . . . [w]ere the seller free to re-
enter the market, the buyer would be left holding the proverbial empty
poke”).
For all of the foregoing reasons, we affirm the Order granting the
permanent injunction.
Order affirmed.
Judge Stabile joins the memorandum.
Judge Bowes files a concurring and dissenting memorandum.
- 19 -
J-A20015-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
- 20 -