NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-554

DONNA M. PERELLA

vs.

UNITED SITE SERVICES NORTHEAST, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The employer, United Site Services Northeast, Inc., appeals 

from an order of a Superior Court judge granting the former 

employee, Donna M. Perella, a preliminary injunction, enjoining 

the employer from enforcing a noncompete provision in an 

employment agreement. Concluding that the former employee met

the requirements under the declaratory judgment act and that the 

motion judge acted within her discretion in granting a 

preliminary injunction, we affirm.

1. Actual controversy. A plaintiff seeking a declaratory 

judgment pursuant to the declaratory judgment act, G. L. 

c. 231A, § 1, must "demonstrate the existence of an actual 

controversy, as well as 'the requisite legal standing to secure 

its resolution.'" Kligler v. Attorney Gen., 491 Mass. 38, 44 

(2022), quoting Entergy Nuclear Generation Co. v. Department of 
2

Envtl. Protection, 459 Mass. 319, 326 (2011). A party 

demonstrates the existence of an actual controversy by showing 

that there is:

"a real dispute caused by the assertion by one party of a 

legal relation, status or right in which [that party] has a 

definite interest, and the denial of such assertion by 

another party also having a definite interest in the 

subject matter, where the circumstances attending the 

dispute plainly indicate that unless the matter is adjusted 

such antagonistic claims will almost immediately and 

inevitably lead to litigation."

John Moriarty & Assocs., Inc. v. Zurich Am. Ins. Co., 102 Mass. 

App. Ct. 474, 484-485 (2023), quoting Gay & Lesbian Advocates & 

Defenders v. Attorney Gen., 436 Mass. 132, 134-135 (2002). "To 

have standing in any capacity, a [plaintiff] must show that the 

challenged action has caused the [plaintiff] injury." Sudbury

v. Massachusetts Bay Transp. Auth., 485 Mass. 774, 779 (2020), 

quoting Slama v. Attorney Gen., 384 Mass. 620, 624 (1981). 

"[B]oth requirements are liberally construed." Doe No. 1 v. 

Secretary of Educ., 479 Mass. 375, 385 (2018).

Here, the former employee "desires to return to the 

industry of servicing temporary site services." She "intend[s]

to form [her] own company that would engage in sales of portable 

sanitary units such as what [she] sold at United Site Services." 

Pursuant to the noncompete provision of her employment 

agreement, she must obtain "prior written consent of the Company 

and the Company's parent corporation" before competing with the 
3

company or "engag[ing] in the business of leasing, renting, 

selling or servicing of portable restrooms and sanitation 

facilities or storage facilities or any other business related 

thereto, within any county in the States of Massachusetts,

Connecticut, Rhode Island, Vermont, New Hampshire, Maine or New 

York, or in any other state in which the Company conducts 

business from time to time, or within any other territory in 

which Employee performs any duties hereunder." She attempted to 

get written permission by sending the employer a letter, 

requesting a reply within fourteen days of receipt, but she 

received no response.

These facts establish an actual controversy and standing. 

There is an actual controversy because the former employee 

intends to start a business in clear violation of the noncompete 

provision, and the employer refused to waive the contractual 

provision. See John Moriarty & Assocs., Inc., 102 Mass. App. 

Ct. at 485 (actual controversy exists where insured "must weigh 

the vigorousness of its defense against the possibility that it 

ultimately will have to reimburse [insurer] for the entire cost 

of that defense"). She has standing to challenge the noncompete 

provision because its existence is injuring her by preventing 

her from starting a business. See Entergy Nuclear Generation 

Co., 459 Mass. at 327 (standing where controversy "affects the 

party's primary conduct"). The former employee was not required 
4

to breach the noncompete provision before litigating its 

enforceability. See Oxford v. Oxford Water Co., 391 Mass. 581, 

584 (1984) ("It is not necessary that the parties be irrevocably 

bound to a course of action before a court can afford 

declaratory relief"). Accord Kligler, 491 Mass. at 46, quoting 

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 

(1979) ("'When contesting the constitutionality of a criminal 

statute, "it is not necessary that [the plaintiff] first expose 

himself to actual arrest or prosecution"' in order to present an 

actual controversy"). Therefore, the case presented an actual 

controversy properly before the Superior Court.

2. Preliminary injunction. a. Standard of review. "[A] 

party seeking a preliminary injunction must show '(1) a 

likelihood of success on the merits; (2) that irreparable harm 

will result from denial of the injunction; and (3) that, in 

light of the [moving party's] likelihood of success on the 

merits, the risk of irreparable harm to the [moving party] 

outweighs the potential harm to the [nonmoving party] in 

granting the injunction.'" Boston Firefighters Union, Local 

718, Int'l Ass'n of Fire Fighters, AFL-CIO v. Boston, 491 Mass. 

556, 562 (2023), quoting Garcia v. Department of Hous. & 

Community Dev., 480 Mass. 736, 747 (2018). "We review the grant 

or denial of a preliminary injunction to determine whether the 

judge abused [her] discretion, that is, whether the judge 
5

applied proper legal standards and whether there was reasonable 

support for [her] evaluation of factual questions." Children's 

Health Rights of Mass., Inc. v. Belmont Pub. Sch. Dist., 102 

Mass. App. Ct. 747, 748 (2023), quoting Lieber v. President & 

Fellows of Harvard College (No. 2), 488 Mass. 816, 821 (2022).

b. Likelihood of success on the merits. "A covenant not 

to compete is enforceable only if it is necessary to protect a 

legitimate business interest, reasonably limited in time and 

space, and consonant with the public interest." Boulanger v. 

Dunkin' Donuts, Inc., 442 Mass. 635, 639 (2004), cert. denied, 

544 U.S. 922 (2005). Legitimate business interests "include the 

protection of trade secrets, confidential information, and good 

will." Oxford Global Resources, LLC v. Hernandez, 480 Mass. 

462, 470 (2018). "A former employer is not entitled by contract 

to restrain ordinary competition." All Stainless, Inc. v.

Colby, 364 Mass. 773, 779 (1974).

Here, the noncompete provision is not reasonable. It bars 

the employee from "engag[ing] in the business of leasing, 

renting, selling or servicing of portable restrooms and 

sanitation facilities or storage facilities or any other 

business related thereto" at all for three years in seven named 

States, as well as "any other state in which the Company 

conducts business from time to time, or within any other 

territory in which Employee performs any duties hereunder." 
6

This scope extends far beyond protecting the employer's 

legitimate business interests, temporally and geographically.

The employer advances no argument that the noncompete 

provision is enforceable as written. Instead, the employer 

argues that the motion judge was required to narrow the 

noncompete provision to its maximal enforceable scope.1 The 

employer did not raise this argument in its written opposition 

to the motion judge. At the motion hearing, the employer 

briefly suggested in response to the judge's inquiry that the 

judge could limit the provision's duration to "two years, twelve 

months, [or] eighteen months," or reduce its geographical scope.2

Although the motion judge had the authority to narrow the 

noncompete provision, see Automile Holdings, LLC v. McGovern, 

483 Mass. 797, 808-809 (2020), the employer could not delegate 

to the judge its duty to present options for the judge's 

consideration. To put it another way, the employer cannot argue 

on appeal that the judge erred by not ruling in a way that the 

employer did not suggest at the trial court. See ProQuip Ltd.

v. Northmark Bank, 103 Mass. App. Ct. 133, 137 n.3 (2023) 

1 The employment agreement specifically allows courts to 

narrow its provisions.

2 The employer suggested hypothetically that the judge allow 

the former employee to do business in upstate New York. At the 

hearing, the former employee's attorney represented that the 

former employee wanted to start a business in Bristol County, 

Massachusetts.
7

("Where this argument was not raised below, it is waived"). The 

temporal limitations suggested by the employer would be 

insufficient to make the noncompete provision enforceable, as 

would the employer's suggestion that the geographical scope be 

limited to allow the former employee to work in upstate New 

York. The motion judge was not required to invent her own 

geographical limitations unsuggested by the parties. The motion 

judge, therefore, acted within her discretion in finding that 

the former employee had a likelihood of success on the merits.

c. Irreparable harm and balancing of the interests. The 

former employee put forward specific facts that show she will be 

irreparably harmed without the preliminary injunction. The 

former employee "intend[s] to form [her] own company that would 

engage in sales of portable sanitary units such as what [she] 

sold at United Site Services." It is unlikely that she could 

accurately prove damages caused by delaying starting a business 

until the noncompete provision expires.

The employer, on the other hand, put forward no evidence 

that it would be harmed if the noncompete provision is not 

enforced. Instead, the employer argued that the former employee 

could benefit from the employer's good will with clients and 

that she has confidential information.3 The employer, however, 

3 The employer also argued that it is harmed per se because 

the employment agreement says so. The terms of the agreement do 
8

failed to put forward any evidentiary support for these claims, 

and the employer cannot show harm based on unsupported

assertions. See Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 

569, 590 (2012) ("an allegation that is supported on 

'information and belief' does not supply an adequate factual 

basis for the granting of a preliminary injunction"). In any 

event, we discern no error in the judge's finding that the harm 

to the employee from the unenforceable noncompete agreement 

outweighs the potential harm to the employer.4

In light of the former employee's strong likelihood of 

success on the merits and proven risk of irreparable harm, the 

not control a dispute over whether that agreement is 

enforceable.

4 In light of our decision, we need not consider whether the 

recently announced -- and pending -- addition of 16 C.F.R. 

§ 910.2 (2024) would bar enforcement of the noncompete 

provision.
9

motion judge acted within her discretion in granting the 

preliminary injunction.5

Order granting preliminary 

injunction affirmed.

By the Court (Rubin, 

Ditkoff & Grant, JJ.6),

Assistant Clerk

Entered: May 9, 2024.

5 The employer's request for attorney's fees and costs is 

denied.

6 The panelists are listed in order of seniority.