J-A07040-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

EQT PRODUCTION COMPANY IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellant 

v. 

ROBERT M. BOCHTER, II; MATTHEW 

PASQUINELLI; VENTURE ENERGY 

SOLUTIONS, LLC; AND CONFLUENCE 

ENERGY CONSULTANTS, LLC 

 Appellee No. 1405 WDA 2014 

Appeal from the Order Entered August 4, 2014 

In the Court of Common Pleas of Allegheny County 

Civil Division at No(s): 11-005691 

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J. 

MEMORANDUM BY MUNDY, J.: FILED JULY 24, 2015

 Appellant, EQT Production Company (EQT), appeals from the August 4, 

2014 order denying its motion for preliminary injunctive relief, seeking to 

enjoin Appellees Robert M. Bochter, II, Matthew Pasquinelli, Venture Energy 

Solutions, LLC, and Confluence Energy Consultants, LLC (collectively, 

Appellees) from competing with EQT for two years, and to create a 

constructive trust relative to certain disputed proceeds, among other relief. 

After careful review, we affirm in part, reverse in part and remand. 

 The trial court aptly summarized the factual history of this case as 

follows. 

[] EQT is a large and well-established 

corporation engaged in natural gas production. As a 
J-A07040-15 

- 2 - 

necessary part of this business, EQT engages in the

lease and, occasionally, purchase of mineral rights

for exploration and development. The primary face 

of the company in these efforts, when dealing with 

landowners, are EQT’s landmen. 

In 2014[,] Defendants Robert M. Bochter and 

Matthew Pasquinelli[,] were among those landmen. 

They were, to all appearances, successful and wellcompensated employees of EQT. In January of that 

year, along with another partner not party to this 

action, they formed two companies, Venture Energy 

Solutions, LLC (Venture) and Confluence Energy 

Consultants, LLC (Confluence). At least one of 

these, like EQT, was in the business of acquiring 

mineral rights. Bochter and Pasquinelli continued 

their employment with EQT notwithstanding their 

new status as competitors. 

Soon after, [Bochter and Pasquinelli], through 

Venture, entered into a deal to acquire an option to 

purchase mineral rights from Carl and Alice Hildreth 

(the Hildreth deal). They used EQT’s Geographic 

Information System (GIS), a tool owned by EQT and 

used by their landmen to organize both public and 

proprietary information for use in acquiring mineral 

rights. [Bochter and Pasquinelli] also saved 

spreadsheets of public information produced using 

the GIS to a Google Drive. The evidence does not 

indicate that they also extracted and retained 

proprietary information from the GIS, although 

Bochter admitted to looking at non-public EQT 

information regarding the Hildreth property. Venture 

quickly resold the option to purchase, making a 

significant profit. Bochter and Pasquinelli were 

thereafter suspended then fired by EQT. 

Venture also engaged in a transaction for 

mineral rights with Charles and Eileen Schilling, but 

this deal was not established by evidence to be 

related in any way to proprietary EQT information. 

EQT is now seeking monetary damages for 

Bochter and Pasquinelli’s actions. In advance of its 
J-A07040-15 

- 3 - 

damage case, EQT is seeking Preliminary Injunctive 

relief from th[e trial c]ourt, demanding that 

[Appellees] be enjoined from doing business in 

particular geographic areas and that a constructive

trust be established to hold the proceeds of the 

Hildreth deal. 

Trial Court Opinion, 10/23/14, at 3-4 (footnote omitted). 

 On April 1, 2014, EQT filed a complaint against Appellees seeking 

damages and equitable relief for violation of the Pennsylvania Uniform Trade 

Secrets Act,1 tortious interference with contract and prospective business 

relations, tortious interference with prospective economic advantage, breach 

of fiduciary duty/duty of loyalty, civil conspiracy, conversion, unjust 

enrichment, and unfair competition. Contemporaneously with its complaint, 

EQT filed a motion for an order to preserve documents, an order for 

expedited discovery, and a motion for a special preliminary injunction. On 

April 8, 2014, the trial court granted EQT’s motion for an order to preserve 

documents, and separately ordered the parties to agree to a discovery 

schedule. On April 15, 2014, EQT filed a renewed motion for a special 

preliminary injunction. Following motions to compel certain discovery, EQT 

filed a motion for adverse inferences based on Appellees’ lack of compliance 

with discovery requests and orders. A hearing on EQT’s renewed motion for 

preliminary injunction was held on June 5, 6, 10, and 16, 2014. On August 

4, 2014, the trial court denied EQT’s renewed motion for adverse inferences 

____________________________________________ 

1

 12 Pa.C.S.A. §§ 5301-5308. 
J-A07040-15 

- 4 - 

and its motion for preliminary injunction. EQT filed a timely notice of appeal 

on August 28, 2014.2

 On appeal, EQT raises the following issues for our review. 

[1]: Did the trial court err in entering an [o]rder

denying [EQT’S] motion for adverse inferences, when

adverse inferences are warranted because 

[Appellees] spoliated evidence, withheld or failed to 

produce evidence, and violated court orders 

regarding preserving and producing evidence? 

[2]: Did the trial court err in entering an [o]rder 

denying [EQT’S] motion for a preliminary injunction

without considering whether a stolen compilation of

information was a trade secret? 

[3]: Did the trial court err in entering an [o]rder 

denying [EQT’S] motion for a preliminary injunction

imposing a constructive trust on all revenues that 

[Appellees] received improperly, when an injunction

is necessary to preserve the status quo by 

preventing [Appellees] from depleting the improperly 

received revenues? 

[4]: Did the trial court err in entering an [o]rder 

denying [EQT’S] motion for a preliminary injunction

without addressing [EQT’S] other requests for 

relief—enjoining [Appellees] from continuing to 

possess or use EQT’s property, requiring [Appellees] 

to immediately return EQT’s property, and requiring

[Appellees] to provide an accounting of revenues 

received improperly—when these forms of relief were 

appropriately raised before the trial court? 

EQT’s Brief at 3-4. 

____________________________________________ 

2

 EQT and the trial court have complied with Pennsylvania Rule of Appellate 

Procedure 1925. 
J-A07040-15 

- 5 - 

 EQT’s first allegation of error faults the trial court for denying its 

motion for adverse inferences due to Appellees’ discovery violations and 

spoliation of evidence, and failing to apply those inferences in its 

determination of EQT’s motion for a preliminary injunction. Id. at 30. 

Before addressing the merits of EQT’s claim, we note the following principles 

guiding our review. 

“Spoliation of evidence” is the failure to preserve or 

the significant alteration of evidence for pending or 

future litigation. Pyeritz v. Commonwealth, 613 

Pa. 80, 32 A.3d 687, 692 (2011). “When a party to 

a suit has been charged with spoliating evidence in

that suit (sometimes called “first-party spoliation”), 

we have allowed trial courts to exercise their 

discretion to impose a range of sanctions against the 

spoliator.” Id. (citing Schroeder v. 

Commonwealth, Department of Transportation, 

551 Pa. 243, 710 A.2d 23, 27 (1998)) (footnotes 

omitted). This Court has stated: 

“When reviewing a court’s decision to grant or 

deny a spoliation sanction, we must determine 

whether the court abused its discretion.” 

Mount Olivet Tabernacle Church v. Edwin 

L. Wiegand Division, 781 A.2d 1263, 1269 

(Pa. Super. 2001) (citing Croydon Plastics 

Co. v. Lower Bucks Cooling & Heating, 698 

A.2d 625, 629 (Pa. Super. 1997) (recognizing 

that “[t]he decision whether to sanction a 

party, and if so the severity of such sanction, is 

vested in the sound discretion of the trial 

court”)). Such sanctions arise out of “the 

common sense observation that a party who 

has notice that evidence is relevant to litigation 

and who proceeds to destroy evidence is more 

likely to have been threatened by that 

evidence than is a party in the same position 

who does not destroy the evidence.” Mount 

Olivet, 781 A.2d at 1269 (quoting Nation–
J-A07040-15 

- 6 - 

Wide Check Corp. v. Forest Hills 

Distributors, Inc., 692 F.2d 214, 218 (1st 

Cir. 1982)). Our courts have recognized 

accordingly that one potential remedy for the 

loss or destruction of evidence by the party 

controlling it is to allow the jury to apply its 

common sense and draw an “adverse 

inference” against that party. See Schroeder 

v. Commonwealth of Pa., Dep’t of Transp., 

551 Pa. 243, 710 A.2d 23, 28 (1998). ... 

To determine the appropriate sanction 

for spoliation, the trial court must weigh three 

factors:

(1) the degree of fault of the party who 

altered or destroyed the evidence; (2) 

the degree of prejudice suffered by the 

opposing party; and (3) whether there is 

a lesser sanction that will avoid 

substantial unfairness to the opposing 

party and, where the offending party is 

seriously at fault, will serve to deter such 

conduct by others in the future. 

Mount Olivet, 781 A.2d at 1269–70 (quoting 

Schmid v. Milwaukee Elec. Tool Corp., 13 

F.3d 76, 79 (3d Cir.1994)). ... 

Creazzo v. Medtronic, Inc., 903 A.2d 24, 28–29 

(Pa. Super. 2006). 

Parr v. Ford Motor Co., 109 A.3d 682, 701-702 (Pa. Super. 2014) (en 

banc) (footnote omitted), appeal denied, --- A.3d ---, 2015 WL --------, No. 

46 EAL 2015 (Pa. 2015) (per curiam). 

Evidentiary rulings are committed to the sound 

discretion of the trial court, and will not be overruled 

absent an abuse of discretion or error of law. In 

order to find that the trial court’s evidentiary rulings 

constituted reversible error, such rulings must not

only have been erroneous but must also have been 
J-A07040-15 

- 7 - 

harmful to the complaining party. Appellant must 

therefore show error in the evidentiary ruling and 

resulting prejudice, thus constituting an abuse of 

discretion by the lower court. 

Whitaker v. Frankford Hosp. of City of Phila., 984 A.2d 512, 521-522 

(Pa. Super. 2009) (internal quotation marks and citations omitted). 

 EQT specifically challenges the trial court’s determination that it did 

not prove spoliation occurred. EQT’s Brief at 31-33. “The trial court denied 

EQT’s motion for adverse inferences because it inexplicably held that EQT 

did not demonstrate spoliation of evidence. The court never explained how 

it arrived at that conclusion and it is impossible to see how it could have.” 

Id. at 31. EQT recounts the evidence of Appellees’ non-compliance with the 

trial court’s discovery orders and testimony tending to establish that 

Appellees deleted information from computers that were provided. Id. EQT 

concludes “[t]he deletion of computer files is undeniably spoliation of 

evidence for which an adverse inference should be granted. ... The trial 

court’s failure to acknowledge these admitted deletions as spoliation is 

reversible error.” Id. at 32-33.3

____________________________________________ 

3

 Implicit in EQT’s argument is the contention the trial court should have 

determined that discovery was complete for the purposes of its preliminary 

injunction motion so that Appellees’ alleged violations of discovery orders 

could lead to the conclusion of spoliation of the evidence and to the 

imposition of sanctions. It is apparent the trial court declined to do so. In 

its October 23, 2014 opinion, the trial court noted that the underlying case 

was in its “early stages,” and discovery was an “ongoing process”. Trial 

Court Opinion, 10/23/14, at 5. The trial court offered EQT additional time to 

seek compliance of the discovery orders. Id. “[EQT] presented two Motions 

(Footnote Continued Next Page) 
J-A07040-15 

- 8 - 

 The trial court found, however, that EQT did not establish that 

spoliation in fact occurred. Trial Court Opinion, 10/23/14, at 6. 

The essential argument of [EQT] in its Motion for 

Adverse Inference seems to be that [Appellees] must

have spoliated evidence because [EQT] failed to find 

the proprietary information it expected to appear 

upon discovery, or that the [Appellees] had not thus 

far in the early stages of this litigation fully produced 

all information requested by [EQT]. This is not, and 

cannot be, sufficient for an adverse inference. 

Id. at 5. Based on our review of the record, we conclude the trial court’s 

factual findings in this regard are supported and its evidentiary ruling in 

refusing to accept adverse inferences at this stage of the proceedings was 

not an abuse of its discretion. 

EQT’s remaining issues on appeal contain various allegations of trial 

court error in denying its motion for preliminary injunction. We recount the 

(Footnote Continued) _______________________ 

to Compel discovery in advance of the hearing on their Motion for 

Preliminary Injunction. EQT was offered an opportunity by this [c]ourt to 

delay the hearing until its discovery requests had been fully answered. It 

chose to go forward without [Appellees’] full compliance.” Id.

“[I]n general, discovery orders are not final, and are therefore 

unappealable.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super. 

2008), quoting Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004). 

“Discovery sanction orders are interlocutory and not appealable until final 

judgment in the underlying action.” Baranowski v. Am. Multi-Cinema, 

Inc., 688 A.2d 207, 208 n.1 (Pa. Super. 1997) (citation omitted), appeal 

denied, 704 A.2d 633 (Pa. 1997). Accordingly, to the extent EQT challenges 

the trial court’s underlying discovery and sanction orders, as opposed to the 

trial court’s evidentiary decisions based on the then current status of 

discovery at the preliminary injunction hearing, we are without jurisdiction to 

address such claims. Id.; see also Pa.R.A.P 311, 341.
J-A07040-15 

- 9 - 

following principles directing our review of these issues. “[T]he scope of 

review in preliminary injunction matters is plenary.” Warehime v. 

Warehime, 860 A.2d 41, 46 n.7 (Pa. 2004)

[O]ur review of a trial court’s order granting or 

denying preliminary injunctive relief is highly 

deferential. This highly deferential standard of 

review states that in reviewing the grant or denial of 

a preliminary injunction, an appellate court is 

directed to examine the record to determine if there 

were any apparently reasonable grounds for the 

action of the court below. We will find that a trial 

court had apparently reasonable grounds for its 

denial of injunctive relief where the trial court has 

properly found that any one of the following essential 

prerequisites for a preliminary injunction is not 

satisfied. 

There are six essential prerequisites that a 

party must establish prior to obtaining preliminary

injunctive relief. The party must show: 1) that the 

injunction is necessary to prevent immediate and 

irreparable harm that cannot be adequately 

compensated by damages; 2) that greater injury 

would result from refusing an injunction than from 

granting it, and, concomitantly, that issuance of an 

injunction will not substantially harm other 

interested parties in the proceedings; 3) that a 

preliminary injunction will properly restore the 

parties to their status as it existed immediately prior 

to the alleged wrongful conduct; 4) that the activity 

it seeks to restrain is actionable, that its right to 

relief is clear, and that the wrong is manifest, or, in 

other words, must show that it is likely to prevail on 

the merits; 5) that the injunction it seeks is 

reasonably suited to abate the offending activity; 

and, 6) that a preliminary injunction will not 

adversely affect the public interest. The burden is on 

the party who requested preliminary injunctive 

relief[]. 
J-A07040-15 

- 10 - 

Id. at 46-47 (internal quotation marks, citations and footnotes omitted). 

“We may interfere with the chancellor’s decision only if the certified record 

reveals that no grounds exist to support the decree, or that the rule of law 

upon which the court relied was palpably erroneous or misapplied.” W. 

Penn Specialty MSO, Inc. v. Nolan, 737 A.2d 295, 298 (Pa. Super. 1999)

(citation omitted).

 EQT first claims the trial court erred in failing to determine if the public 

information component of its GIS compilation, obtained and used by 

Appellees, qualified as a trade secret. EQT’s Brief at 41. “The trial court [] 

erred by not analyzing whether EQT’s GIS compilation is entitled to trade 

secret protection.” Id. EQT argues that compilations of public information 

are included in the definition of trade secrets under common law and the 

Pennsylvania Uniform Trade Secrets Act. Id. at 42-43, citing 12 Pa.C.S.A. 

§ 5302. EQT then develops an argument for why trade secret status applies 

to the GIS compilation in this case. Id. at 43-49. We conclude this 

argument misses the point of the trial court’s ruling. 

 The trial court in fact allowed for the possibility that the GIS 

compilation deserved trade secret protection. “[The trial court does] not 

doubt that the GIS is a valuable tool for EQT, or that it, used as a tool for 

the manipulation of data to achieve particular ends, is worthy of protection 

as a trade secret.” Trial Court Opinion, 10/23/14, at 7. However, the trial 

court determined that this fact did not excuse the lack of an evidentiary 
J-A07040-15 

- 11 - 

showing that Appellees continued to possess or have access to the GIS tool. 

Id. 

Without access to [the GIS], and without any 

evidence that they retain any other proprietary 

information which belongs to EQT, as distinguished 

from public information also manipulable by the GIS, 

there is no indication that any further harm will 

ensue from their continued business operation, apart 

from the simple fact of competition, from which EQT

has no protection. 

Id. Consequently, the trial court determined that the sixth prerequisite 

enumerated by Warehime was not established. “The offending activity 

here is in the past. [Appellees] have no access to EQT’s GIS database, and 

thus no ability, even if inclination, to repeat it. Estopping their future 

business dealings will not change this, for good or ill....” Id. 

 Upon review of the record, we conclude the findings of the trial court 

are supported. Absent EQT’s sought-after adverse inferences, the trial court 

was within its discretion as evaluator of credibility and finder of fact to 

conclude the evidence of Appellees’ continued ability to use proprietary 

information was lacking. Accordingly, we conclude the trial court had 

“apparently reasonable grounds” for its decision to deny preliminary 

injunctive relief. See Warehime, supra. 

 EQT next faults the trial court for failing to grant the portion of its 

preliminary injunction motion seeking to impose a temporary constructive 
J-A07040-15 

- 12 - 

trust on Appellees, relative to the proceeds from the Hildreth deal.4 EQT’s 

Brief at 50. Specifically, EQT argues, “[t]he [trial] court expressly 

____________________________________________ 

4

 We recognize that it may not be appropriate to use the term “constructive 

trust” by a party seeking the temporary freezing or sequestering of assets as 

a form of preliminary injunctive relief. 

A constructive trust arises when a person holding 

title to property is subject to an equitable duty to 

convey it to another on the ground he would be 

unjustly enriched if he were permitted to retain it. ... 

The controlling factor in determining whether a 

constructive trust should be imposed is whether it is 

necessary to prevent unjust enrichment. 

Santoro v. Morse, 781 A.2d 1220, 1231 (Pa. Super. 2001) (citations 

omitted, emphasis added). Thus, a constructive trust is a final equitable 

remedy, because preliminary limitations on an asset would not require its 

conveyance to another. Based on this understanding, this Court has held 

that a trial court’s grant of a constructive trust, purportedly as a preliminary 

injunction, was in fact a final order. Robbins v. Kristofic, 643 A.2d 1079, 

1082 (Pa. Super. 1994), appeal denied, 651 A.2d 541 (Pa. 1994). In

Robbins, the trial court entered an order as follows. “[I]t is hereby 

ORDERED that a preliminary injunction issue requiring that [the holder of a 

fund in Defendant’s name] be imposed with a constructive trust in favor of 

Plaintiff and may not be withdrawn without further order of court.” Id. at 

1081-1082. In rejecting the appellant’s challenge to the trial court’s grant of 

the preliminary injunction, this Court held that the trial court’s imposition of 

the constructive trust was a final order granting a permanent remedy upon a 

determination of the merits, rendering the preliminary injunction portion of 

the trial court’s order moot. Id. at 1082. Notwithstanding Robbins, this 

Court in Santoro upheld “the trial court in the exercise of its broad equity 

powers [to] order the temporary imposition of a constructive trust so 

as to preserve the assets of [Defendant,] pending trial.” Santoro, supra at 

1231 (emphasis added). Still other cases address this type of preliminary 

injunctive relief without any reference to the term “constructive trust”. See, 

e.g., Citizens Bank of Pa. v. Meyers, 872 A.2d 827 (Pa. Super. 2005). 

Instantly, the relief sought by Appellant, i.e., to prevent dissipation of the 

Hildreth deal proceeds pending the litigation, was clear regardless of 

whether such relief is properly termed a temporary “constructive trust”, and 

we proceed with this understanding in mind. 
J-A07040-15 

- 13 - 

recognized that EQT could be harmed by Defendants’ dissipation of the 

Hildreth proceeds, but it concluded the harm of denying Defendants access 

to their ill-gotten gains was higher. The [trial] court’s analysis was wrong as 

a matter of law.” Id. at 53. 

 In assessing the evidence supporting EQT’s request for preliminary 

injunctive relief in this regard against the six Warehime factors, the trial 

court did acknowledge the first factor, immediate and irreparable harm to 

EQT, was shown. Trial Court Opinion, 10/23/14, at 7-8. “EQT faces the risk 

that allegedly profligate opposing parties will spend all proceeds of the 

Hildreth deal and any subsequent business, thus reducing EQT’s ability to 

collect any future judgments.” Id. Indeed, we conclude that finding is 

supported by the record, as Appellee Bochter testified that $525,000 of the 

$950,000 made from the Hildreth deal was already disbursed. N.T., 6/5-6, 

10/14, at 165-166.5 However, the trial court determined the second and 

third factors, i.e., the preliminary injunction will not substantially harm 

Appellees, and any relief will restore the parties to their respective positions,

were not met. Id. 

[Appellees] would be denied access to a significant

sum of money made in the exercise of that 

profession until such a time as the underlying action 

here is resolved. These are very serious harms for

____________________________________________ 

5

 Notwithstanding this testimony, Appellees assert that EQT presented no 

evidence of dissipation or likelihood of dissipation. Appellees’ Brief at 15. 

However, as noted infra, the trial court did determine Appellees would likely 

need to access those funds for further capital investment. 
J-A07040-15 

- 14 - 

small operators in a dynamic business that requires

significant capital investments to be made on short

notice. 

Id. at 8. 

 We agree with EQT that the trial court misapplied the Warehime

factors. In Ambrogi v. Reber, 932 A.2d 969 (Pa. Super. 2007), appeal 

denied, 952 A.2d 673 (Pa. Super. 2008), the defendants made an argument, 

similar to the trial court’s position here, that restrictions on certain assets 

would interfere with its ability to conduct its business. 

[Defendants/Appellants] contend that the preliminary 

injunction entered by the trial court in this case imposes 

an unfair and intolerable burden by preventing them from 

running their business in the accustomed manner. They 

also complain that the preliminary injunction changes, 

rather than preserves, the status quo between the parties 

because it places Appellees in a better position than they 

occupied before the injunction. 

Id. at 978-979. 

 In response, the Ambrogi Court noted that because the goal of a 

preliminary injunction was to preserve the status quo prior to the wrongful 

act, the inability to use assets generated by the wrongful act cannot be 

considered a hardship to the defendants. Id. at 979. “The relevant 

standard requires that an injunction must address the status quo as it 

existed between the parties before the event that gave rise to the lawsuit, 

not to the situation as it existed after the alleged wrongful act but before 

entry of the injunction.” Id. The Court held “that Pennsylvania law does not 

preclude a trial court from granting a preliminary injunction to prevent 
J-A07040-15 

- 15 - 

dissipation of assets,” and affirmed the trial court’s preliminary injunction. 

Id. at 975. 

 Like the defendants position in Ambrogi, the trial court here focuses 

on the status quo at the time the preliminary injunction would have taken 

effect rather than the status quo prior to alleged improper conduct by 

Appellees in securing the Hildreth deal. See Trial Court Opinion, 10/23/14, 

at 7-8. Viewed from the proper timeframe, we conclude Appellees are not 

subject to a greater harm by an inability to use the disputed funds in their 

ongoing business, because such allegedly ill-gotten funds would not have 

been available to them then. See Ambrogi, supra at 975. Thus, we 

conclude the trial court’s denial of preliminary injunctive relief limiting the 

dissipation of the Hildreth deal proceeds involved a “rule of law upon which 

the court relied[, which] was palpably erroneous or misapplied.” W. Penn 

Specialty MSO, Inc., supra.

The trial court also deems the fifth Warehime factor, the relief is 

suited to abate the harm, is unmet.6 Trial Court Opinion, 10/23/14, at 8. 

____________________________________________ 

6

 The trial court, in its October 23, 2014 opinion, did not specifically address 

the remaining Warehime factors in connection with its denial of preliminary 

injunctive relief in restricting further dissipation of the Hildreth deal 

proceeds. We conclude, based on our review of the record, that these do 

not present an impediment to relief. The trial court has acknowledged 

generally that EQT’s right to relief is likely. “[Appellees] use of EQT’s GIS 

led to one deal for a discrete and known amount of money.” Trial Court 

Opinion, 10/23/14, at 7. “To establish a clear right to relief, the party 

seeking an injunction need not prove the merits of the underlying claim, but 

need only demonstrate that substantial legal questions must be resolved to 

(Footnote Continued Next Page) 
J-A07040-15 

- 16 - 

EQT asserts the trial court “erred by holding that a constructive trust would 

not abate Defendants’ past competition using EQT’s proprietary information.” 

EQT’S Brief at 54. The trial court held as follows. “The offending activity 

here is in the past. [Appellees] have no access to EQT’s GIS database, and 

thus no ability... to repeat it. Estopping their future business dealings will 

not change this, for good or ill, nor will placing the proceeds of the 

Hildreth deal into trust.” Trial Court Opinion, 10/23/14, at 8 (emphasis 

added). 

Again, we agree with EQT that the trial court relied on an erroneous 

application of the law. The trial court conflates the harm intended to be 

abated by EQT’s distinct requests for injunctive relief. EQT’s first request 

sought to restrict Appellees from competing through continued use of EQT’s 

proprietary information. EQT’s Complaint, 4/1/14, at 33. Contrary to the 

trial court’s conclusion, this was not the harm sought to be abated by its 

request for injunctive relief to restrict the dissipation of the Hildreth deal 

proceeds. Id. at 34. Clearly, prohibiting dissipation will not prevent future 

use of proprietary information, but that is not the targeted harm in EQT’s 

request for this relief, which was to prevent Appellees from contriving to 

become judgment-proof. EQT’s Brief at 51; see also Ambrogi, supra at 

(Footnote Continued) _______________________ 

determine the rights of the parties.” SEIU Healthcare Pa. v. 

Commonwealth, 104 A.3d 495, 506 (Pa. 2014) (citation omitted). 

Additionally, we discern no adverse impact to the public interest. See 

generally Warehime, supra. 
J-A07040-15 

- 17 - 

975. Consequently, we conclude that the trial court misapplied the law and 

the Warehime factors to the facts of this case and unreasonably denied 

EQT’s request to restrict the dissipation of the Hildreth deal proceeds. 

Accordingly, we reverse that aspect of the trial court’s August 4, 2014 order 

and remand for further proceedings consistent with this memorandum. 

In its final issue, EQT faults the trial court for failing to rule on its 

remaining requests for relief, including enjoining Appellees from continued 

possession of EQT’s property, compelling return of any such property, and 

providing an accounting. EQT’s Brief at 54-55. Relative to these requests 

the trial court noted as follows. “[EQT] request[s] other forms of possible 

injunctive relief, including a number of points which would be properly raised 

in a Motion to Compel, but as those were never argued or briefed, they will 

not be addressed.” Trial Court Opinion, 10/23/14, at 4 n.1. We discern no 

error. While EQT insists it consistently argued for these bases of relief, we 

note the first two share the same infirmity of proof denoted by the trial court 

relative to its denial of preliminary injunctive relief connected to the 

requested restriction on competition by Appellees. We agree also the 

request for an accounting is more properly seen as a motion to compel but 

the trial court is free to address that request in light of our remand of this 

case. 

Based on all the preceding, we affirm the trial court’s evidentiary 

ruling refusing to apply adverse inferences to its determination of the merits 
J-A07040-15 

- 18 - 

of EQT’s request for a preliminary injunction. Additionally, to the extent EQT 

challenges the trial court’s discovery rulings, the same are interlocutory and 

not subject to our review. We further affirm that portion of the trial court’s 

August 4, 2014 order denying EQT’s request for a preliminary injunction 

relative to its request to restrict Appellees’ competition with EQT. However, 

because the trial court misapplied the law and the Warehime factors to 

EQT’s request for preliminary injunctive relief in the form of a restriction on 

Appellees from dissipation of the Hildreth deal proceeds, we reverse that 

aspect of the trial court’s August 4, 2014 order and remand for further 

proceedings consistent with this memorandum.7

Order affirmed in part and reversed in part. Case remanded. Motion 

to Strike granted. Jurisdiction relinquished. 

____________________________________________ 

7

 On January 12, 2015, Appellees filed with this Court a motion to strike 

Hearing Exhibit 3 from EQT’s Amended Designation of record, because it is 

not contained in the certified record. A review of the record reveals that, at 

the conclusion of the third day of the hearing on the preliminary injunction, 

the trial court directed the parties to submit a stipulation and or objections 

relative to the admission of exhibits. N.T., 6/5-6,10/14, at 471. No such 

stipulation or copy of the exhibits is contained in the record certified to this 

Court. Accordingly, Appellee’s motion is granted and the exhibit was not 

considered in our disposal of the merits of this appeal. See PHH Mortg. 

Corp. v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014) (noting “this Court 

may consider only the facts that have been duly certified in the record when 

deciding an appeal,” and striking attachments to a brief that did not appear 

in the certified record). 
J-A07040-15 

- 19 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/24/2015