J-A08010-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO INSURANCE 

SERVICES USA, INC. 

Appellant

v.

EDGEWOOD PARTNERS INSURANCE 

CENTER, SEAN ANDREAS, ZACHARY 

MENDELSON, CHARLES YORIO, 

PHILLIP WAKIN, JANICE ZEWE, 

SALLY KRAUSS, KURT KARSTENS 

AND PETER KOSTORICK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 612 WDA 2018

Appeal from the Order Entered April 3, 2018

In the Court of Common Pleas of Allegheny County 

Civil Division at No(s): No. GD-17-14022

BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 25, 2019

Wells Fargo Insurance Services USA, Inc., (hereinafter “WFIS”) appeals 

from the order entered on April 3, 2018, in the Allegheny County Court of 

Common Pleas denying its petition for special and preliminary injunction.1

Specifically, WFIS contends the trial court erred in failing to enforce restrictive 

covenants, including non-compete provisions, that Appellees Sean Andreas, 

Zachary Mendelson, Charles Yorio, Phillip Wakin, Janice Zewe, Sally Krauss, 

Kurt Karstens and Peter Kostorick (“Individual Appellees”) signed while they 

were employed by various companies. After thorough review, we affirm.

____________________________________________

1 This is an interlocutory appeal as of right. See Pa.R.A.P. 311(a)(4).
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The relevant facts and procedural history, as best can be discerned from 

the record, are as follows. WFIS is a national commercial insurance brokerage 

business. WFIS’s business is predicated on fostering close relationships 

between it and its employees as well as its employees and its clients. 

WFIS is a wholly owned subsidiary of ACO Brokerage Holdings 

Corporation (“ACO”). In turn, until November 30, 2017, Wells Fargo held all 

of the shares of ACO. Wells Fargo then sold its shares of ACO to USI. As a 

result, WFIS became a wholly owned subsidiary of USI. WFIS has since legally 

changed its name to USI Insurance Services National. 

The Individual Appellees were all high-level employees of WFIS. The 

Individual Appellees resigned from their employer throughout September and 

October of 2017. Immediately thereafter, they went to work for Edgewood 

Partners Insurance Center (“EPIC”), which, as a full-service national 

commercial insurance brokerage firm, is in a similar if not identical business 

to WFIS. Around the time the Individual Appellees began working for EPIC, 

they sent e-mail announcements to customers and brokers of their former 

employer, which included, inter alia, marketing material for EPIC, new contact 

information, and identification of their new employment at EPIC. Upon receipt 

of these e-mails, if there was a follow-up question directed at the Individual 

Appellees, they would provide an answer to that question.

Several carriers or clients that received information from the Individual 

Appellees initiated broker of record (“BOR”) letters, identifying that they were 

moving their business from WFIS to EPIC. Those letters stated that the 
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carriers and clients had not been solicited nor induced by the individual 

Appellees.

On October 13, 2017, WFIS filed a complaint asserting that Individual 

Appellees had violated various restrictive covenants that governed their 

behavior after their employment with WFIS ended. WFIS also sought to enjoin 

the Individual Appellees from allegedly continuing to violate the restrictive 

covenants.

The trial court entered a temporary restraining order, directing 

Individual Defendants from soliciting WFIS’s employees or clients. This order 

remained in effect until the trial court was able to hold a hearing on WFIS’s 

request for a preliminary injunction. After a two day hearing, held in 

November 2017, the trial court ultimately denied WFIS’s application for a 

preliminary injunction. After the trial court denied its motion for 

reconsideration, WFIS filed this timely appeal.

WFIS raises the following four issues:

1) Did the trial court abuse its discretion or misapply the law in 

holding that WFIS did not have a protectable business in enforcing 

the restrictive covenants contained in the Individual Appellees’ 

employment agreements because WFIS’s former parent company, 

Wells Fargo & Company, sold its ownership interest in WFIS to USI 

Insurance Services, LLC, where WFIS continued to operate in the 

commercial insurance brokerage business? 

2) Did the trial court abuse its discretion or misapply the law in 

holding that multiple communications sent by the Individual 

Appellees to current WFIS clients, which included, among other 

things, marketing materials touting their new employer, EPIC, did 

not amount to client solicitation in violation of their respective 
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employment agreements and that WFIS did not suffer irreparable 

harm as a result of said solicitation?

3) Did the trial court abuse its discretion or misapply the law in 

refusing to enforce the non-accept provisions of the Individual 

Appellees’ employment agreements?

4) Did the trial court abuse its discretion in not addressing WFIS’s 

claim that EPIC and Individual Appellees improperly solicited 

WFIS’s employees in violation of their employment agreements?

See Appellant’s Brief, at 3-5.

We review the denial of a preliminary injunction for an abuse of 

discretion. See Duquesne Light Company v. Longue Vue Club, 63 A.3d 

270, 275 (Pa. Super. 2013) (citation omitted). 

The standard of review applicable to preliminary injunction 

matters 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 or the action of the court below.”

Id. (citation omitted) (formatting altered). Conversely, 

we will interfere with the trial court’s decisions regarding a 

preliminary injunction only if there exist no grounds in the record 

to support the decree, or the rule of law relied upon was palpably 

erroneous or misapplied. It must be stressed that our review of 

a decision regarding a preliminary injunction does not reach the 

merits of the controversy.

Santoro v. Morse, 781 A.2d 1220, 1225 (Pa. Super. 2001).

To establish a right to a preliminary injunction, a party must 

demonstrate six “essential prerequisites”:

1) that the injunction is necessary to prevent immediate and 

irreparable harm that cannot be adequately compensated by 

damages;
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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.

Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. 2004) (quotation marks 

and citation omitted). “The burden is on the party who requested preliminary 

injunctive relief.” Id., at 47. Further, a trial court has apparently reasonable 

grounds for its denial of injunctive relief where it finds that the petitioner has 

not satisfied any one of the “essential prerequisites.” Id., at 46. Therefore, 

we may affirm if the trial court was correct in concluding that WFIS failed to 

establish any one of the six prerequisites. 

We focus on the trial court’s analysis of the fourth prerequisite, whether 

WFIS established a clear right to relief, as it is controlling. The trial court 

concluded, inter alia, that WFIS failed to demonstrate that EPIC or the 

Individual Appellees solicited WFIS’s employees or clients in violation of their 

non-solicitation agreements. See Trial Court Opinion, 10/02/18, at 6 (non-
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paginated opinion). The trial court found this to be a “close question.” Id., at 

7.

Despite this disposition, the court found that “WFIS solely relied on 

emails sent by the [Individual Appellees] to clients to inform the clients that 

they were moving to a new company.” Id., at 6-7. The court ascertained 

that “these emails sent by the [Individual Appellees] informing clients of their 

impending move do not rise to the level that would be deemed solicitation.” 

Id., at 7. “This is especially true when the contract entered into ... did not 

specifically define the term ‘solicitation.’” Id. Further, as to the “nonacceptance” provisions, the court found that such clauses, as contained within 

the Individual Appellees’ agreements, were “overbroad and therefore an 

unreasonable restraint on trade.” Id., at 7-8.

Essentially, the trial court found that WFIS had failed to establish that 

the Individual Appellees had breached non-solicitation covenants. Contract 

interpretation is a question of law; therefore, this Court is not bound by the 

trial court’s interpretation. See Kraisinger v. Kraisinger, 928 A.2d 333, 339 

(Pa. Super. 2007). “In construing a contract, the intention of the parties is 

paramount and the court will adopt an interpretation which under all 

circumstances ascribes the most reasonable, probable, and natural conduct of 

the parties, bearing in mind the objects manifestly to be accomplished.” 

Charles D. Stein Revocable Trust v. General Felt Industries, Inc., 749 

A.2d 978, 980 (Pa. Super. 2000) (citation omitted). 
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In determining the intent of the parties to a written agreement, 

the court looks to what they have clearly expressed, for the law 

does not assume that the language of the contract was chosen 

carelessly. 

When interpreting agreements containing clear and unambiguous 

terms, we need only examine the writing itself to give effect to 

the parties’ intent. The language of a contract is unambiguous if 

we can determine its meaning without any guide other than a 

knowledge of the simple facts on which, from the nature of the 

language in general, its meaning depends. When terms in a 

contract are not defined, we must construe the words in 

accordance with their natural, plain, and ordinary meaning. As the 

parties have the right to make their own contract, we will not 

modify the plain meaning of the words under the guise of 

interpretation or give the language a construction in conflict with 

the accepted meaning of the language used. 

On the contrary, the terms of a contract are ambiguous if the 

terms are reasonably or fairly susceptible of different 

constructions and are capable of being understood in more than 

one sense. Additionally, we will determine that the language is 

ambiguous if the language is obscure in meaning through 

indefiniteness of expression or has a double meaning. Where the 

language of the contract is ambiguous, the provision is to be 

construed against the drafter.

In re Jerome Markowitz Trust, 71 A.3d 289, 301 (Pa. Super. 2013) 

(citation omitted). 

When a contract is found to be ambiguous, “extrinsic or parol evidence 

may be considered to determine the intent of the parties.” Z & L Lumber Co. 

of Atlasburg v. Nordquist, 502 A.2d 697, 700 (Pa. Super. 1985) (citations 

omitted). “While unambiguous contracts are interpreted by the court as a 

matter of law, ambiguous writings are interpreted by the finder of fact.” Kripp 

v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citation omitted).
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In relevant part, the non-solicitation clause contained within the “Wells 

Fargo company” agreement prohibits an employee, for a period of two years 

following termination for any reason, from soliciting, participating in, or 

promoting the solicitation of any of the company’s clients, customers, or 

prospective customers with whom he or she had material contact for the 

purpose of providing products or services that are in competition with the 

company’s products or services. See, e.g., Wells Fargo Non-Solicitation 

Agreement, at 2 (non-paginated). However, none of the agreements in the 

record define “solicitation.”

Solicitation is defined as “[t]he act of asking for or trying to obtain 

something from someone.” www.lexico.com/en/definition/solicitation, last 

accessed 9/24/19. The most relevant of five definitions provided by Black’s 

Law Dictionary (8th Ed. 2004) is “[a]n attempt or effort to gain business.” In 

contrast, WFIS contends that the Individual Appellees’ e-mails were actions 

that were taken “to awake or incite to action, or conduct [that was] intended 

to and calculated to incite the desired act.” Meyer-Chatfield v. Century 

Business Servicing, Inc., 732 F.Supp.2d 514, 522 (E.D. Pa. 2010) (internal 

quotation marks omitted).

We conclude that, as it is used in the relevant covenants, the term 

“solicitation” is not ambiguous. When used with other employees as the 

object, the agreements clearly prohibit the Individual Appellees from obtaining 

the other employees’ services for a competing business concern. Similarly, 
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when used with clients or customers as the object, the agreements clearly 

prohibit the Individual Appellees from attempting to gain their business for a 

competing business concern.

It is important to note that all of these definitions require a specific state 

of mind. Pursuant to these definitions, a person cannot solicit without 

intending to obtain something from the other person. As a result, to determine 

that a person has engaged in solicitation, the finder of fact must find that the 

person intentionally acted in a manner that they believed would result in 

obtaining something from the other person.

Here, the trial court did not explicitly define solicitation. Instead, it 

merely noted that the agreements at issue do not explicitly define solicitation. 

However, nothing in the court’s analysis establishes that it used a definition 

contrary to our conclusion above. We therefore conclude that the trial court 

did not commit an error of law.

We turn to the trial court’s application of the law to the evidence of 

record. As noted above, we apply a highly deferential review of the court’s 

factual findings. See Duquesne Light Company, 63 A.3d at 275. The court 

found that WFIS had failed to present sufficient evidence to support a finding 

that either the Individual Appellees or EPIC had solicited or continue to solicit 

employees or clients. See Trial Court Opinion, 10/2/18, at 6-7. This finding is 

explicitly a finding of a lack of evidence, not a finding that Individual Appellees 

had established a lack of solicitation. As petitioner, WFIS bore the burden of 
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proving every prerequisite for a preliminary injunction. See Warehime, 860 

A.2d at 66.

Turning to the record, we note that it is uncontested that the Individual 

Appellees sent e-mail communications to clients that were utilizing WFIS’s 

services. Those e-mails varied, with some merely describing that the sender 

was moving on to employment with EPIC and providing new contact 

information, others described in detail EPIC’s business operations and 

website’s URL, while a few even included EPIC’s marketing materials. Many 

of the e-mails suggested contacting the individual sender if the recipient had 

any further questions. It is further uncontested that some of WFIS’s clients 

transferred their business to EPIC and signed BOR letters stating they had not 

been solicited and were moving their business voluntarily.

While the court is not explicit as to its exact reasoning, applying our 

highly deferential standard of review we conclude that the court could have 

reasonably found that the e-mails sent by the Individual Appellees to clients 

were not intended to obtain the clients’ business. As WFIS repeatedly asserts, 

the insurance industry is an industry heavily reliant on relationships. See, 

e.g., Appellant’s Brief at 7; see also Complaint, 10/13/17, at ¶ 1. It is not 

unreasonable to find that 1) the Individual Appellees had relationships with 

the clients they sent e-mails to; 2) the e-mails were intended to alert these 

clients of the Individual Appellees’ change in contact information; and 3) the 

e-mails were intended to serve the social function of informing social 
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relationships of a significant change in life circumstances. We therefore 

conclude there is an apparently reasonable basis for the trial court’s 

conclusion.

WFIS cites to a series of federal cases, most of which were adjudicated 

outside of the state of Pennsylvania, in support of its argument to the contrary.

However, it only cites to two non-precedential decisions from our Court. In 

both decisions, we affirmed orders granting preliminary injunctions. As such, 

in both cases our standard of review required us to apply the highly deferential 

standard of review in favor of the petitioner.

Turning to the issue of soliciting employees from WFIS, the trial court 

found that WFIS has failed to present sufficient evidence on this point as well. 

WFIS suggests that the Individual Appellees “admitted to meeting with, 

discussing, and conferencing with one another about the opportunity at 

EPIC[;] this conduct was intended to incite action and cause the employees to 

join the new EPIC team.” Appellant’s Brief, at 46. 

However, WFIS does not point to any specific evidence indicating that 

one employee solicited another. Instead, WFIS summarily concludes that the 

Individual Appellees “admitted to meeting with, discussing, and conferencing 

with one another about the opportunity at EPIC, and this conduct was intended 

to incite action and cause the employees to join the new EPIC team.” Id., at 

44. WFIS cites to testimony that one Appellee had meetings and conference 

calls with other Individual Appellees about a potential move to EPIC. See 
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N.T., 11/17/17, at 183-85. Eventually that same Appellee made an individual 

decision to move to EPIC and “discuss[ed] that decision and the facts that 

contributed to that decision with [other Individual Appellees.]” Id., at 184. 

However, by that point, the Individual Appellees, already cognizant of EPIC’s 

interest, had met with EPIC, and even did so a group, coming to be “known 

as the group of seven.” Id., at 183. Therefore, given the chronology, we 

cannot say that the trial court’s analysis was unreasonable. 

On the question of the non-accept provisions, the trial court held, inter 

alia, that the specific clauses were an “unreasonable restraint on trade.” Trial 

Court Opinion, 10/02/18, at 8 (citation omitted). WFIS claims that the 

Diodato case relied upon by the trial court is distinguishable from the present 

case because: 1) the plaintiff in Diodato was terminated; 2) that plaintiff was 

greatly impacted by the restrictive covenant’s ability for him to earn a living; 

3) the third parties in that case (i.e., the former clients) unilaterally sought 

the plaintiff’s services. See Diodato v. Wells Fargo Insurance Services, 

USA, Inc., 44 F.Supp.3d 541 (M.D. Pa. 2014).

WFIS does not present a convincing reason to disregard the trial court’s 

reliance on Diodato. First, WFIS, again, cites to no controlling case law on 

this issue. Second, the “termination” present in Diodato is hardly distinct 

from the affidavits indicating that Mark Susco, then senior vice president and 

managing director of WFIS, told the Individual Appellees to have a “Plan B” 

regarding employment when the effective sale of WFIS was being 
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contemplated. See, e.g., Affidavit of Sean K. Andreas, at 3. Third, while the 

possible impact of an individual’s ability to earn a living is a relevant 

consideration in a restrictive covenant analysis, we reiterate that the trial 

court found the Individual Appellees’ actions were not solicitations. Therefore, 

the non-accept provisions effectively bar WFIS’s clients from doing business 

with the Individual Appellees under any circumstance. As a result, we agree 

that the non-accept clauses “more broadly restrain[] free trade. By its express 

terms, the provision purports to restrict the liberty of third parties who, of 

their own volition, unilaterally seek” the Individual Appellees’ services. 

Diodato, 44 F.Supp.3d at 570. 

Accordingly, we are of the opinion that WFIS “has not shown an interest 

so compelling as to warrant a blanket prohibition on [the Individual Appellees’] 

acceptance of unsolicited business from former customers, restricting ... the 

free will of the businesses that [they] formerly serviced.” Id. (emphasis in 

original). Our highly deferential standard of review leads us to the conclusion 

that the trial court has not abused its discretion, and we affirm the trial court’s 

finding to not enforce the non-accept provisions.

Although the trial court found several bases in its conclusion that WFIS 

was not entitled to a preliminary injunction, we affirm its decision and 

conclude that WFIS has failed at least one of the “essential prerequisites” 

necessary for a preliminary injunction. In accordance with the specific 

restrictive covenants binding the Individual Appellees coupled with the facts 
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of this case and given the Individual Appellees’ behavior not constituting 

“solicitation” as well as the overbroad scope of the non-acceptance provision, 

the activity WFIS seeks to restrain is not actionable, and WFIS has not 

demonstrated that its right to relief is clear. See Warehime, 860 A.2d at 46-

47. Thus, the trial court did not err in denying WFIS’s petition for a preliminary 

injunction.

Order affirmed.

Judge McLaughlin joins the memorandum.

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2019