J-A19010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TYCO FIRE PRODUCTS, L.P. D/B/A “TYCO 

FIRE PROTECTION PRODUCTS” AND 

TYCO INTERNATIONAL MANAGEMENT 

COMPANY, LLC,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RALPH M. FUCHS,

Appellant No. 20 EDA 2017

Appeal from the Order Entered November 21, 2016

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2016-07384

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 17, 2017

Appellant, Ralph M. Fuchs, appeals from the November 21, 2016 order 

which granted a petition for a preliminary injunction filed by Appellee, TYCO 

Fire Products, L.P., d/b/a TYCO Fire Protection Products and TYCO 

International Management Company, LLC (“TYCO”).1 After careful review, 

we affirm. 

The trial court summarized the relevant facts and procedural history of 

this case in its Pa.R.A.P. 1925(a) opinion, as follows: 

TYCO is a worldwide company which designs, 

manufactures and distributes chemical, water and mechanical 

____________________________________________

1 An order granting a preliminary injunction is immediately appealable 

pursuant to Pa.R.A.P. 311(a)(4). 
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products for the fire protection and building products businesses. 

[Appellant] was employed by TYCO, first as a sales manager and 

then as a senior sales manager, from February 27, 2006 through 

January 6, 2016. [Appellant’s] sales territory as a senior sales 

manager was the Northeast region, consisting of Pennsylvania, 

West Virginia, Delaware, New York, New Jersey, Maine, 

Massachusetts, New Hampshire, Vermont, Rhode Island and 

Maryland. 

On February 17, 2006, prior to beginning his job at TYCO, 

[Appellant] signed an Employee Confidentiality Agreement and a 

Non-Competition Agreement (hereinafter “NCA”). The NCA

contains a Confidentiality Clause ... and a Non-Competition 

Clause[.] The Non-Competition Clause provides[:] “I agree, 

subject to the conditions stated, that I will not within twelve 

months after leaving [TYCO] employ, engage or enter into 

employment by, or self-employment or gainful occupations, a 

Competing Business or act directly or indirectly as an adviser, 

consultant or agent or representative for a Competing Business.” 

The NCA expressly provides for the entry of injunctive relief in 

the event of any breach of the agreement by [Appellant]. In 

2015, [Appellant] signed another employment agreement which 

contained a non-competition restriction and provided for 

injunctive relief [(“2015 Agreement”)]. 

[Appellant] testified that he read and signed these three 

Agreements in connection with his employment with TYCO. He 

further testified that he understood that two of these 

Agreements contained non-compete provisions and nonsolicitation provisions. He understood that the third Agreement 

he signed was a confidentiality agreement that provided for the 

protection of TYCO’s confidential information and trade secret 

information. [Appellant] testified at his deposition that he was 

provided with access to TYCO’s Salesforce Customer Relations 

Management Software, “which is a database of all the accounts 

TYCO had information about.” 

In January of 2016, [Appellant] resigned from his position 

at TYCO and went to work at [Reliable Automatic Sprinkler 

Company, Inc. (“Reliable”)]. Reliable is in the same type of 

business and is a competitor of TYCO. After his resignation from 

TYCO, [Appellant] received a letter from counsel for TYCO 

reminding him of his legal obligations under the NCA.1 The letter 

also informed [Appellant] that TYCO believed that by accepting 
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employment with Reliable, [Appellant] was in violation of his 

contract.2 

1 The evidence presented showed that both [Appellant] and 

Reliable were well aware of the issues raised by 

[Appellant’s] employment with Reliable....

2 After receipt of this letter, and after similar 

correspondence was sent to Reliable, [Appellant] was 

moved to work on an “internal project” by Reliable. 

[Appellant] testified that there was nothing “physically 

preventing” him from continuing to work on this internal 

project for a year. In addition, [Appellant] testified that he 

was aware that there were four other Reliable sales 

regions in addition to the Northeast territory and even 

states in the Northeast territory where he could legally 

work if the injunction were entered. 

While working for Reliable, [Appellant] accompanied other 

Reliable employees to see customers in places located in the 

states covered by his restrictive covenant. Several of these 

customers [Appellant] visited were TYCO customers, and 

although he testified he personally was not soliciting business 

while on these sales calls, [Appellant] agreed that the purpose of 

these visits was to sell Reliable products. In addition, 

[Appellant] testified that he met with several of his former TYCO 

customers while working at Reliable. [Appellant] also 

acknowledged an e-mail exchange he had with a friend who, 

when told by [Appellant] that he was taking a job with Reliable, 

asked, “what about the non-compete?” [Appellant] responded, 

“yea, going to be rolling the dice somewhat, but there is a 

backup plan.” 

Trial Court Order (“TCO”), 1/26/17, at 2-4 (citations to record omitted). 

On April 13, 2016, TYCO filed a complaint in the Court of Common 

Pleas of Montgomery County, seeking a preliminary injunction to restrain 

Appellant from working in the eleven (11) states which make up his former 

TYCO sales territory, for any company engaged in the same business as 

TYCO, including Appellant’s current employer, Reliable. Id. at 1. TYCO then 
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filed a motion for a preliminary injunction, and a hearing was held on the 

matter on November 1, 2016. Id. Based on the evidence presented at the 

hearing, Appellant’s testimony, and the testimony of TYCO and Reliable

customer, Carlos Antonia Fleming (“Mr. Fleming”), the trial court entered an 

order on November 21, 2016, granting the preliminary injunction. The order 

provided, in relevant part: 

1. [Appellant] is hereby enjoined from employment with, or 

providing services in any sales capacity, including 

management of a sales team, either directly or indirectly to 

[Reliable] or any of its affiliates, parents, subsidiaries, or 

employees, in Pennsylvania, West Virginia, Delaware, New 

York, New Jersey, Massachusetts, Maine, New Hampshire, 

Vermont, Rhode Island, Ohio or Maryland (“TYCO Sales 

Territory”) for a [o]ne[-y]ear time period from the date of this 

Order. 

2. [Appellant] is hereby enjoined from soliciting or inducing any 

TYCO [c]ustomer, either directly or indirectly, to purchase the 

goods and/or services of any other person or entity that is 

engaged in the same or similar lines of business as TYCO for 

a two[-]year period of time from the date of the Order. 

3. [Appellant] is hereby enjoined from misappropriating, using 

and/or disclosing TYCO’s [c]onfidential [i]nformation or 

[t]rade [s]ecrets; 

4. [Appellant] is hereby enjoined from seeking or accepting 

employment with, or from providing services either directly or 

indirectly to, any other person or entity that is engaged in the 

same or similar business as TYCO in his former TYCO Sales 

Territory for a one[-]year time period from the date of this 

Order. 

5. [Appellant] shall return to TYCO any and all[] information, 

documents, software, materials, work product[,] or 

equipment provided to him by TYCO or taken by him from 

TYCO or relating to TYCO, whether in printed or electronic 

form or otherwise. 
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Id. at 4-5. 

On December 17, 2016, Appellant filed a timely notice of appeal and 

now presents the following issues for our review: 

1. Did [TYCO] prove that, in order to protect [TYCO] from 

irreparable future harm, it was reasonably necessary to 

preliminarily enjoin [Appellant], for a period of one year, from 

acting in any sales capacity for [Reliable] in [Appellant’s] 

former [TYCO] sales territory?

2. Did [TYCO] prove that, in order to protect [TYCO] from 

irreparable future harm, it was reasonably necessary to 

preliminarily enjoin [Appellant], for a period of two years and 

anywhere in the world, from directly or indirectly seeking to 

sell or selling products to any [TYCO] customer, regardless of 

whether [Appellant] had any contact with or knowledge of 

those customers during his employment at [TYCO]?

3. Did the trial court abuse its discretion by ordering that the 

periods of prohibition under its injunction would commence 

running on the date the order was entered, rather [than] on 

the contractually specified termination date of [Appellant’s] 

employment at TYCO, thus expanding the injunctive 

provisions by a period of almost a year? 

Appellant’s Brief at 4-5. 

In reviewing the grant of a preliminary injunction, we are guided by 

the following principles: 

As a preliminary consideration, we recognize that on an 

appeal from the grant or denial of a preliminary injunction, 

we do not inquire into the merits of the controversy, but 

only examine the record to determine if there were any 

apparently reasonable grounds for the action of the court 

below. Only if it is plain that no grounds exist to support 

the decree or that the rule of law relied upon was palpably 

erroneous or misapplied will we interfere with the decision 

of the [court]. 
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Allegheny Anesthesiology Associates, Inc. v. Allegheny General 

Hosp., 826 A.2d 886, 891 (Pa. Super. 2003) (quoting Shanaman v. 

Yellow Cab Co. of Philadelphia, 421 A.2d 664, 666 (Pa. 1980)). 

We have also established that: 

To obtain a preliminary injunction, a petitioner must establish 

that: (1) relief is necessary to prevent immediate and irreparable 

harm that cannot be adequately compensated by money 

damages; (2) greater injury will occur from refusing to grant the 

injunction than from granting it; (3) the injunction will restore 

the parties to their status quo as it existed before the alleged 

wrongful conduct; (4) the petitioner is likely to prevail on the 

merits; (5) the injunction is reasonably suited to abate the 

offending activity; and (6) the public interest will not be harmed 

if the injunction is granted. 

Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1241 (Pa. 

Super. 2011). “In Pennsylvania, restrictive covenants are enforceable if 

they are incident to an employment relationship between the parties; the 

restrictions imposed by the covenant are reasonably necessary for the 

protection of the employer; and the restrictions imposed are reasonably 

limited in duration and geographic extent.” Id. at 1244. 

Here, Appellant argues that the preliminary injunction entered by the 

trial court was an abuse of discretion on the grounds that “TYCO failed to 

demonstrate that it would suffer immediate and irreparable harm if the 

injunction was not entered.” Appellant’s Brief at 16. Appellant suggests 

that rather than provide actual proof of irreparable harm, TYCO inadequately

presented mere speculation about the remote possibility of future harm. Id.

at 22. Moreover, Appellant asserts that the restrictions imposed by the 
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preliminary injunction were “neither reasonably necessary for TYCO’s 

protection nor reasonably limited in duration and geographic reach.” Id. at 

17. After careful review, we deem Appellant’s claims to be meritless. 

In support of its decision to grant the preliminary injunction against 

Appellant, the trial court provided the following thorough and well-reasoned 

explanation: 

TYCO has established its right to enforcement of the 

restrictive covenants [Appellant] signed. TYCO is likely to 

succeed in its claim against [Appellant] for breach of his 

agreement because[:] (1) the non-compete agreement is valid 

and enforceable; and (2) [Appellant] signed the agreement and 

admitted in his testimony and pleadings that he was aware of 

the agreement and its requirements and that it was a condition 

of his employment; (3) [Appellant] breached his obligations 

under his respective agreements by working for Reliable, which 

is a competitor of TYCO; and [Appellant] was making calls on 

TYCO customers while working for Reliable in the territory where 

he [had] worked for TYCO, which is the area covered by the NCO

[sic]. The evidence in this case, including [Appellant’s] own 

testimony[,] shows that the covenants which are at issue were 

incident to [Appellant’s] employment with TYCO. [Appellant] 

clearly executed his agreement as a condition of full-time 

employment, making it incident to this employment and 

supported by adequate consideration. 

Second, the restrictive covenants in the non-compete 

agreements are reasonably necessary for the protection of 

TYCO’s legitimate business interests. The evidence shows that 

TYCO and Reliable, [Appellant’s] new employer, compete for the 

same business. Further[,] [Appellant] has testified that after he 

began working for Reliable[,] he visited customers that he had 

visited while working for TYCO. 

Third, the time duration and geographic range of the 

restrictions are reasonable. [The] Agreement in this case 

restricts [Appellant’s] employment for one year. Non-compete 

restrictions longer than one year are routinely upheld as 

reasonable in Pennsylvania. See Worldwide Auditing Serv’s, 
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Inc. v. Richter, 587 A.2d 772 (Pa. Super. [] 1991) (upholding 

two-year restriction); see also John G. Bryant Co., Inc. v. 

Sling Testing & Repair, Inc., 369 A.2d 1164 (Pa. 1977) 

(upholding three-year restriction). Furthermore, the restriction’s 

geographical scope is the territory in which [Appellant] acted as 

TYCO’s sales manager immediately before leaving TYCO. This 

restriction is reasonable based on the nature of the work done 

by [Appellant] at TYCO, visiting customers in these geographic 

areas. The testimony shows that Reliable has five sales 

territories, and [Appellant] is only precluded from working in one 

of these territories. Accordingly, for all of the above reasons,

TYCO is likely to prevail on the merits. 

TYCO will suffer immediate and irreparable harm if 

[Appellant] is not enjoined because violating a restrictive 

covenant such as this clearly constitutes irreparable harm. As 

the Pennsylvania Supreme Court has specifically explained in 

[Sling Testing], 369 A.2d [at] 1167 ... [,]

[i]t is not the initial breach of a covenant which necessarily 

establishes the existence of irreparable harm but rather 

the threat of the unbridled continuation of the violation 

and the resultant incalculable damage to the former 

employer’s business that constitutes the justification for 

equitable intervention.[2]

____________________________________________

2 Appellant avers that the trial court misapplied Sling Testing to the instant 

matter, and suggests that our Supreme Court clarified in New Castle 

Orthopedic Assocs. v. Burns, 392 A.2d 1383, 1387 (Pa. 1978), that it is 

an error for a trial court to merely presume irreparable injury from the 

nature of the business and the breach of the covenant. Appellant’s Brief at 

20. Appellant’s conclusion ignores, however, the following portion of the 

Sling Testing opinion which is quoted by the New Castle Court:

The 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. It is for this reason ... that where a covenant 

(Footnote Continued Next Page)
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Here, TYCO has a significant interest in protecting its 

customer base, and in protecting the confidentiality of its 

business and pricing information. [Appellant] has already visited 

some of TYCO’s customers with Reliable employees. This could 

certainly lead to harm to TYCO were these customers, some of 

whom have become friends of [Appellant], to give business to 

Reliable, rather than TYCO. The facts in this case lead to the 

conclusion that the threat of continuous violation of the [NCA]

constitutes immediate and irreparable harm to TYCO. 

TCO at 7-9.

In response to Appellant’s assertion that the two-year non-solicitation 

restriction set forth in the 2015 Agreement is broader than necessary to 

protect TYCO’s interests, we note that this covenant is governed by New 

(Footnote Continued) _______________________

of this type meets the test of reasonableness, it is prima facie

enforceable in equity.

New Castle, 392 A.2d at 1386 (quoting Sling Testing, 369 A.2d at 1167).

The New Castle Court further explained that Sling Testing does not 

conflict with the threshold evidentiary requirement that actual proof of 

irreparable harm must be met before granting a preliminary injunction; 

rather, Sling Testing supplements this threshold requirement in those 

cases where the plaintiff’s proof of injury “foreshadows the disruption of 

established business relations which would result in incalculable damage 

should the competition continue in violation of the covenant.” Id. at 1387. 

Moreover, New Castle is clearly distinguishable from the instant case, as it 

is a non-compete case involving a specialist physician in an under-served 

rural area, rather than a salesman. See id. (stating “[t]his is quite unlike 

the normal commercial situation in which there are only a limited number of 

prospective clients and the alleged breach significantly affects the share of 

the former employer. Here, the potential pool of clients far exceeds the 

appellee’s ability to serve them. Under these circumstances it is difficult to 

find any irreparable injury wrought upon the appellee by the appellant”). 

 
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Jersey law.

3 Appellant, however, erroneously cites to inapposite

Pennsylvania case law, in an attempt to support his challenge to the 

geographic scope of this restriction.4

“New Jersey courts recognize protecting confidential business and 

protecting customer relationships as legitimate employer interests. In cases 

where the employer’s interests are strong, such as cases involving trade 

secrets or confidential information, a court will enforce a restrictive 

covenant.” Trico Equipment, Inc. v. Manor, No. 08-5561, 2009 WL 

1687391, at *7 (D.N.J. June 15, 2009). Similar to Pennsylvania courts, 

“[a]s to undue hardship, [New Jersey] courts will consider ‘the nature of the 

profession, the duration of the restriction, the geographic area of the 

restriction and the type of restriction.’” Id. (quoting Maw v. Advanced 

Clinical Communications, Inc., 359 N.J. Super. 420, 820 A.2d 105, 115 

(N.J. Super. Ct. App. Div. 2003)). A two-year period has been found to be 

____________________________________________

3

In the “Governing Law” section of the 2015 Agreement, the parties 

expressly agreed that the contract “shall be governed by the laws of the 

state of New Jersey without reference to principles of conflicts of laws that 

would direct the application of the law of any other jurisdiction.” See 2015 

Agreement. “Choice of law provisions in contracts will generally be given 

effect.” Smith v. Commonwealth Nat. Bank, 557 A.2d 775, 777 (Pa. 

Super. 1989).

4 Even if Pennsylvania law applied, a two-year restraint on solicitation of 

former customers has been held to be reasonable and enforceable. See 

Worldwide Auditing Services, Inc. v. Richter, 587 A.2d 772, 776 (Pa. 

Super. 1991) (upholding covenant restricting solicitation of Worldwide’s 

former customers “wherever located” for a period of two years). 

 
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reasonable for both non-compete and non-solicitation provisions. Id.5 For 

the foregoing reasons, we conclude that “apparently reasonable grounds” 

existed for the injunctive relief entered by the trial court. 

Finally, Appellant claims that the trial court abused its discretion by 

ordering that the periods of restriction imposed by the injunction run from 

the date of the order, rather than from the date of Appellant’s resignation. 

Appellant’s Brief at 35. Again, we deem Appellant’s claim to be without 

merit. The trial court’s actions were entirely appropriate, considering 

____________________________________________

5

In Trico, the district court upheld a non-solicitation provision, which barred 

the former employee from soliciting “any entity that was a customer, 

supplier, contractor, or subcontractor of Trico, for two years,” reasoning:

In A.T. Hudson & Co. v. Donovan, 216 N.J. Super. 426, 524 

A.2d 412, 416 (N.J. Super. Ct. App. Div. 1987), the New Jersey 

court upheld a similar provision. While New Jersey courts seem 

to require geographic limits for non-compete clauses, geographic 

limitations do not appear necessary for non-solicitation 

provisions. See Platinum Management, Inc. v. Dahms, 285 

N.J. Super. 274, 666 A.2d 1028, 1040 (N.J. Super. Ct. Law Div. 

1995); Mailman, Ross, Toyes & Shapiro v. Edelson, 183 N.J. 

Super. 434, 444 A.2d 75, 79 (N.J. Super. Ct. Ch. Div. 1982) (“To 

impose a geographical limitation on a covenant which seeks to 

protect an established clientele instead of an area of noncompetition would not make the burden imposed on the 

employee by a covenant ‘reasonable’ but would merely mandate 

an unwarranted change in the nature of the interest protected.”)

Trico, 2009 WL 1687391, at *7.
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Appellant failed to abide by the terms of the non-compete agreements after 

his resignation from TYCO.6 

Although not binding on this Court, we are persuaded by Jackson 

Hewitt Inc. v. Childress, 2008 WL 834386, at *10-11 (D.N.J. March 27, 

2008), in which a former franchisee was enjoined from competing with the 

former franchisor for a period of twenty-four (24) months, beginning from 

the date of the former franchisee’s compliance with the non-compete 

covenant, rather than the date that it abandoned the franchise. The

Jackson Hewitt court reasoned that the extension of the restrictive period 

was justified, as the defendant would otherwise “wrongfully benefit from his 

refusal to comply with his contractual obligations.” Id. at *11. 

Appellant cites, to no avail, two Pennsylvania cases in which the 

Courts refused to enforce a restrictive covenant by means of an injunction. 

See Davis v. Buckham, 421 A.2d 427 (Pa. Super. 1980); see also Hayes 

v. Altman, 266 A.2d 269, 271 (Pa. 1970) (holding “[a]n injunction will not 

be granted to enforce a restrictive covenant when the restrictive period has 

by its terms expired”). Both of those cases are distinguishable from the 

present matter, as in each of those cases, the court emphasized the fact that 

____________________________________________

6 As stated supra, the trial court found that Appellant breached the NCA and 

the 2015 Agreement by working for Reliable and by making calls, while 

working for Reliable, to TYCO customers located in his former TYCO sales 

territory. TCO at 7. 
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the period of the restrictive covenant had expired.7 We determine Davis

and Hayes do not control in this case, where the restrictive covenants had

not yet expired at the time the injunction was ordered.

Moreover, the Hayes Court indicated that fraud or unnecessary delay 

by the appellant may serve as a basis for an extension. Hayes, 266 A.2d at 

272. The record in the instant matter reveals that Appellant has caused 

unnecessary delay in the litigation of the validity and enforceability of the 

non-compete and non-solicitation agreements.8 Appellant should not be 

permitted to benefit from such actions and to avoid the restrictions set forth 

in the covenants to which he knowingly agreed. It seems only appropriate 

that the trial court refused to credit Appellant for time that had passed since

his resignation from TYCO, as such time was spent in non-compliance. 

Equity demands that the period of restrictions runs from the date of the 

preliminary injunction order. 

Accordingly, we conclude that the trial court did not err in granting 

TYCO’s petition for a preliminary injunction against Appellant, and we affirm 

the November 21, 2016 order. 

____________________________________________

7 The Davis court acknowledged that a case may arise where a court would 

be justified in extending a period of a restrictive covenant, but that this was 

not that case, due to the fact that the restrictive period had expired. Davis, 

421 A.2d at 431. 

8 The trial court granted a motion for sanctions against Appellant on January 

12, 2017, for failure to produce court-ordered discovery documents. 
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2017