Three County Services, Inc. v. Philadelphia Inquirer
Three County Services, Inc. v. Philadelphia Inquirer
Opinion of the Court
This is an appeal from an order granting appellee’s petition for a preliminary injunction. Appellant makes several arguments that we need not address because we agree with appellant’s argument that appellee did not prove that the preliminary injunction was necessary to prevent immediate and irreparable harm. We therefore vacate the trial court’s order and remand for further proceedings.
Appellee’s complaint and petition for preliminary injunction were filed on April 20, 1981. Hearings on the petition
In its opinion the trial court stated the facts as follows:
1. In 1972, the Petitioner [appellee] entered into an oral agreement to deliver newspapers for the Respondent [appellant];
2. The Petitioner did not pay for the route, nor for his customer list;
3. The Petitioner purchased additional customer lists from other deliverymen and eventually “rounded out” his delivery area;
4. The Petitioner was originally titled as a “special adult” which provided him with a travel allowance;
5. The Petitioner, due to a large number of bad credit risks, instituted a prepayment plan;
6. The Respondent was aware of the prepayment plan, but took no action except to eliminate the Petitioner’s travel allowance;
7. The Petitioner continued to operate his delivery route with no interference from the Respondent;
8. In November, 1980, Petitioner instituted a $1.00 price for the Thanksgiving Day edition of the newspaper;
9. Respondent’s Circulation Director, Carlton Rosen-burgh, was a customer of the Petitioner;
10. When Mr. Rosenburgh learned of the delivery charge, he decided that the Petitioner was price gouging and as such, he decided to start an alternate delivery system;
11. In setting up an alternate delivery system, the Respondent hired Donnelly Associates to solicit business;
12. Donnelly Associates, as agent for the Respondent, called on Petitioner’s customers;
14. The Respondent’s agent led the Petitioner’s customers to believe that Petitioner would be out of business by January, 1981;
15. The Respondent ceased all solicitations in the Petitioner’s area as of January, 1981.
Trial Court Opinion at 1-3.
The trial court’s order provided:
1. The Petitioner is entitled to a Preliminary Injunction;
2. The Respondent is enjoined from soliciting Petitioner’s customers;
3. The Respondent is to return to the Petitioner those customers obtained through its solicitation of Petitioner’s customers;
4. The Respondent is to refer all new customers in Petitioner’s geographic area to the Petitioner;
5. The Petitioner shall re-list this matter for the determination of damages.
The trial court recognized that one of the prerequisites of a preliminary injunction is proof that the injunction is necessary to prevent immediate and irreparable harm. In explaining that it was satisfied that there was such proof, the court stated:
[W]e find that the injury here is immediate and the harm is irreparable. The Petitioner has suffered a loss of business which was immediate not only in lost customers but also in having his name ‘smeared’ by the agent of the Respondent. The irreparable harm was done when Don-nelly, agent for the Inquirer, began to solicit customers of the Petitioner and when he told these customers that the Petitioner would be out of business by the end of January, 1981.
The question of whether greater harm would result from refusing the injunction must be answered in the positive.*245 Clearly the Respondent’s failure to turn new customers over to the Petitioner is causing a continuing harm. Further, while no more solicitations have taken place, should the Respondent attempt to further solicit the Petitioner’s customers, a far greater harm would result. Trial Court Opinion at 4-5.
The Court further stated, at the end of its opinion:
Injury to reputation or good will is not easily measurable in monetary terms and is irreparable.
Where the economic loss is so great as to threaten the existence of a business, an injunction will issue even though the amount of direct financial harm is ascertainable.
Trial Court Opinion at 14.
As we have mentioned, appellant argues nevertheless that appellee did not prove immediate irreparable harm. More specifically, appellant argues that appellee did not prove any serious threat to its business, and that such harm as appellee did prove is compensable by money damages.
When reviewing an order entering a preliminary injunction, we do not inquire into the merits of the controversy but examine the record only to determine if there were any apparently reasonable grounds for the action of the trial court. Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973); Zebra v. School District of City of Pittsburgh, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972). In making this determination, we are controlled by well-settled principles establishing the purpose of a preliminary injunction and the petitioner’s burden of proof.
The purpose of a preliminary injunction is to preserve the status quo as it exists or existed before the acts complained of, and the injunction should not go beyond preserving the status quo. Naus & Newlyn, Inc. v. Mason, 295 Pa.Super. 208, 441 A.2d 422 (1982). Since a preliminary injunction operates until the final adjudication on the merits of the controversy, the court must decide whether the
In applying the principles just recited, we may start with the observation that the trial court found that irreparable harm was done and that appellee has suffered immediate loss when appellant smeared appellee’s name and solicited appellee’s customers. The harm thus referred to by the court is past harm. The court found, and there was no
The only continuing, as distinguished from past, harm referred to by the trial court is the loss of business that appellee continued to sustain as a result of appellant’s continuing refusal to turn over new customers to appellee, and as a result of appellant’s past solicitation of appellee’s customers.
With respect to appellant’s refusal to turn over new customers to appellee: It is far from clear that this practice was continuing at the time of the hearings, let alone that it was continuing in August 1982, when the preliminary injunction was entered. Appellee’s principal, Mr. Greentree, testified on May 28, 1981, that although he did not get any referrals from appellant from December 1980 through March 1981, since that time appellant had referred three or four customers. N.T. v.l at 55. Moreover, even if appel
With respect to appellant’s past solicitation of appellee’s customers: It is not clear, either what was the extent of the loss caused by appellant’s actions, or that the loss was so serious as to be an immediate threat to the existence of appellee’s business. There was evidence that appellee’s net income before Mr. Greentree’s draw was $34,000 in 1977, $32,000 in 1978, $34,000 in 1979, $11,978 for January through September 1980, and $12,851 for October 1980 through June 1981. N.T. v. 3 at 26, 49, 50, 185. Appellant’s special solicitation of business in appellee’s area continued from November 1980 to January 1981. Thus, appel-lee did prove loss. However, it was uncontroverted that some of the decline in appellee’s circulation and net profit after 1979 was due to customer dissatisfaction with actions taken by appellee. In January 1979 appellee introduced a new advance billing program. N.T. v.l at 37-38, 107-112. In June 1980 appellee introduced a new requirement that a customer must give three days’ notice of a request to stop delivery of the newspaper during the customer’s vacation. N.T. v.l at 115-119; In November 1980 appellee introduced a new $1.00 charge for the Thanksgiving day edition of the newspaper. N.T. v.l at 41-42, 125-29. These new policies resulted in a decline in circulation and net profit. N.T. v.3 at 186, 188. The trial court characterized the decline in circulation as “temporary,” Trial Court Opinion at 12, Finding 15, but the court made no finding as to whether, or to what extent, the decline had ceased prior to appellant’s special solicitation in appellee’s area. It is therefore unclear to what extent appellee’s decline in net profit was caused by the new policies implemented by appellee and to what extent it was caused by appellant’s actions. Cf
Moreover, if we assume that appellee did establish that appellant’s actions caused it to suffer some loss of business, still, appellee was only entitled to a preliminary injunction if the loss that would be incurred pending final adjudication would not be compensable by an award of money damages. See In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137 (3d Cir. 1982) (preliminary injunction vacated where loss can be fully compensated by monetary damages awarded at final judgment). Only when there is proof that the threatened monetary loss is so great as to threaten the existence of the business is a preliminary injunction properly granted.
The order of the trial court is vacated and the case remanded for further proceedings. Jurisdiction is relinquished.
. We note in this regard that the “irreparable harm" alleged by appellee is solely monetary. Ordinarily, since such a loss is fully compensable in a later action for damages, the equitable remedy of a preliminary injunction is not appropriate; it is only where a threatened monetary loss is of such a magnitude as to render an action for damages inadequate as a remedy, as where the loss threatens the existence of a business, that a preliminary injunction may be appropriate. Where, however, the irreparable harm claimed is not solely monetary, and therefore not subsequently fully compensable in damages, the plaintiff need not prove a threat to the existence of his business, but simply that the damage remedy is not adequate. That was the situation in the cases cited in the concurring opinion. See John G. Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977); Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 445 A.2d 1288 (1982).
. As noted in discussing our scope of review, see text supra at-, we express no view on the merits of the controversy or, if the trial court on final adjudication should rule on the merits in appellee’s favor, on appellee’s entitlement to permanent injunctive relief. See Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., supra. Our holding is limited to the conclusion that appellee did not establish that it was entitled to a preliminary injunction pending final adjudication on the merits. Cf. Straup v. Times Herald, 283 Pa.Super. 58, 423 A.2d 713 (1980), where the trial court ruled on the merits of the controversy and denied permanent injunctive relief.
Concurring Opinion
concurring:
I agree with the majority’s conclusion that the instant appellee has failed to prove immediate and irreparable harm and therefore is not entitled to a preliminary injunction.
However, I write separately because I believe that despite the explanation of irreparable harm contained in the majority’s first footnote, the majority’s opinion may be read as implying an overly restrictive construction of irreparable harm in a business setting. In the body of its opinion the majority maintains that “[ojnly when there is proof that the threatened monetary loss is so great as to threaten the existence of the business is a preliminary injunction properly granted.” (Emphasis added). Thus, the majority’s definition of irreparable harm appears to preclude relief where a plaintiff’s business will be severely circumscribed, but not completely destroyed, by a defendant’s conduct or where a
For this reason, I write to emphasize that to which the majority alludes in its first footnote. Now, as previously, a plaintiff may establish the irreparable harm prerequisite for a preliminary injunction by proving the likelihood of a loss that is not entirely ascertainable and compensable by money damages. John G. Bryant Co. v. Sling Testing and Repair, Inc., 471 Pa. 1, 369 A.2d 1164 (1977).
In commercial contexts, Pennsylvania courts have repeatedly issued preliminary injunctions upon proof of impending loss of business opportunities or market advantages, i.e., upon a showing of irreparable harm that did not endanger the plaintiff’s entire corporate existence. For example, in Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 56, 445 A.2d 1288, 1296 (1982), three plaintiff newspapers asserted that they “would suffer irreparable injury by being deprived of an extremely popular feature [‘Peanuts’ comic strip], hampering their effort to compete” for the prior customers of a defunct newspaper. The defendant newspaper claimed that the plaintiffs had not evidenced irreparable harm because “the plaintiff newspapers would not cease to exist if deprived of ‘Peanuts.’ ” Id., 300 Pa.Superior Ct. at 56, 445 A.2d at 1296. Reasoning that “[p]laintiffs [were] required to show irreparable harm, not annihilation,” id., 300 Pa.Superior Ct. at 56, 445 A.2d at 1296, we held that the plaintiffs had carried their burden of proof by establishing the “superior value of ‘Peanuts’ in the competition for former ... subscribers” of the defunct newspaper, id., 300 Pa.Superior Ct. at 56, 445 A.2d at 1296, and the incalculable worth of “Peanuts” whose “drawing power ... [did] not stand on its own, but only in combination with other features.” Id., 300 Pa.Superior Ct. at 57, 445 A.2d at 1297 (footnote deleted). That is, plaintiffs demonstrated the probability of their suffering a loss that was unascertainable and not compensable by money damages.
covenant seeks to prevent more than just the sales that might result by the prohibited contact but also the covenant is designed to prevent a disturbance in the relationship that has been established between appellees and their accounts 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 ...
... [SJome customers may be persuaded, or even be very willing, to abandon the employer should the employee move to a competing organization or leave to set up a business of his own____
Id., 471 Pa. at 8-9, 369 A.2d at 1167-68 (emphasis added); see also Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 189 A.2d 180 (1963) (supreme court sustained a preliminary injunction forbidding dissemination of trade secrets and violation of anticompetition covenant without proof that the plaintiff business would cease to exist in the absence of an injunction).
Accordingly, I would hold that irreparable harm in a business setting need not be premised upon proof that the plaintiff business will be destroyed if the defendant’s actions are permitted to continue. Rather, I would remain with the traditional definition of irreparable harm which requires a showing that the injury likely to be incurred by the plaintiff business is “unascertainable and not capable of being fully compensated by money damages.” John G. Bryant Co., 471 Pa. at 8, 369 A.2d at 1167.
Reference
- Full Case Name
- THREE COUNTY SERVICES, INC., Trading as Tri-County News Service v. the PHILADELPHIA INQUIRER, Appellant
- Cited By
- 19 cases
- Status
- Published