J-A20015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LAURIE A. JOSEPH IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JOHN B. O’LAUGHLIN,

Appellant No. 1706 WDA 2015

Appeal from the Order September 30, 2015

In the Court of Common Pleas of Fayette County

Civil Division at No(s): 1691 of 2015 G.D.

BEFORE: BOWES, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 22, 2017

John B. O’Laughlin (“O’Laughlin”) appeals from the trial court’s Order 

permanently enjoining O’Laughlin from engaging in activities related to the 

future operation of a veterinary clinic within a fifty mile radius of the Grace 

Veterinary Clinic, Inc. (“Grace Veterinary Clinic”),1 which is owned by Laurie 

Joseph (“Joseph”). We affirm.

On December 23, 2014, O’Laughlin and Joseph executed an asset 

transfer agreement (“the Agreement”) outlining Joseph’s purchase of the 

Grace Veterinary Clinic. The Agreement included the following restrictive 

covenant:

[O’Laughlin] acknowledges and agrees that he will not be 

involved in any of the following activities at any location within 

fifty (50) miles of the veterinary clinic (“Geographic Area”). 

[O’Laughlin] covenants and agrees that for a period of five (5) 

____________________________________________

1 Grace Veterinary Clinic is located at 1565 Route 31 in Westmoreland 

County, Pennsylvania.
J-A20015-16

- 2 -

years following the execution of this Agreement, he shall not 

directly or indirectly, as an employer, employee, principal, agent, 

consultant, partner, stockholder, creditor or in any other 

capacity, engage or participate in any business or practice within 

the Geographic Area that is in competition in any manner 

whatsoever with the Buyer. Further, [O’Laughlin] shall not 

contact, solicit, or engage in any activity to contact or solicit, 

indirectly or directly, any client, past, present, or future, during 

that five (5) year period. 

Agreement, 12/24/14, ¶ 3 (at unnumbered page 3). The restrictive 

covenant, which expires on December 24, 2019, comprised $17,973.50 of 

the $750,000 sale price.2 Id. at ¶ 4. 

Approximately six months later, on July 2, 2015, O’Laughlin filed a 

Petition for Special Exemption with the Fayette County Zoning Hearing 

Board, wherein he requested permissive use to operate a veterinary clinic at 

114 Eannotti Road, Dawson Pennsylvania, which is approximately eight 

miles from the Grace Veterinary Clinic. The zoning hearing was scheduled 

for August 26, 2015. Meanwhile, O’Laughlin formed a limited liability 

company (O’Laughlin Veterinary Services), created a Facebook page of the 

same name, and purchased equipment. The Facebook page included a link 

that advised followers that the clinic was, “coming soon,” and when 

activated, the link directed users to the business’s location on a map. 

____________________________________________

2 Each of the remaining intangible assets involved in the sale, i.e., goodwill, 

use of the brand name for six months, and customer base, were also valued 

at $17,973.50. See Agreement, ¶ 3 (at unnumbered page 3). 
J-A20015-16

- 3 -

On August 25, 2015, Joseph filed an action for injunctive relief, 

seeking to enforce the Agreement’s restrictive covenant. Specifically, 

Joseph sought to permanently enjoin O’Laughlin from operating a veterinary 

clinic and prohibit him from seeking the zoning variance that was scheduled 

for a hearing the following day. On the same date, Joseph filed a self-styled 

Motion for Preliminary/Permanent Injunction requesting the identical relief. 

On August 27, 2015, the trial court entered a preliminary injunction 

against O’Laughlin, ordering him to “cease and desist any veterinary 

operations at ... 114 Eannotti Road,” and suspending the zoning hearing 

pending disposition of the permanent injunction action. Thereafter, following 

an evidentiary hearing, the trial court entered the permanent injunction at 

issue in this appeal. Specifically, the court prohibited O’Laughlin from 

operating a veterinary clinic within fifty miles of Grace Veterinary Clinic, 

canceled the zoning hearing, dismissed O’Laughlin’s petition for a special 

exemption, directed O’Laughlin to cease operations at the 114 Eannotti Road 

facility, and enjoined O’Laughlin “from engaging in any activity that would 

violate the [] Agreement[.]” Trial Court Order, 9/30/15, at 2. Thereafter, 

O’Laughlin filed the instant timely appeal, followed by a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.3 

____________________________________________

3 O’Laughlin initially leveled three claims; however, he filed an Amended 

Concise Statement, which included an additional claim.
J-A20015-16

- 4 -

O’Laughlin presents the following claims for our review: 

1. Did the [trial] court err in entering the permanent 

injunction order in favor of [Joseph] by citing to and relying upon 

as precedential authority in its opinion an unpublished 

memorandum decision of the Pennsylvania Superior Court.

2. Did the [trial] court err in entering the permanent 

injunction order when the prerequisite legal elements for the 

issuance of such an injunction [were never established]?

3. Did the [trial] court err in entering the permanent 

injunction order in favor of [Joseph,] based on proof of 

[O’Laughlin’s] preliminary actions in preparing to compete 

against [Joseph] at a future point in time?

4. Did the [trial] court err in entering the permanent 

injunction order in favor of [Joseph] as the order exceeded the 

scope of the proof advanced by [Joseph] at the permanent 

injunction hearing?

Brief of Appellant at 4 (issues renumbered for ease of disposition).

O’Laughlin first claims that the trial court erred in relying upon this 

Court’s unpublished decision in Atkinson & Mullen Travel, Inc., et al. v. 

O’Brien, et al, 2944 EDA 2012 (Pa. Super. filed May 5, 2014) (unpublished 

memorandum), as authoritative precedent in rendering its decision. In that 

case, we inferred a need, in light of that appellant’s past litigiousness, for a 

permanent injunction to prevent the appellant from engaging in serial 

litigation against a defendant, even though no lawsuit was pending. 

Presently, the trial court relied upon our discussion in the unpublished 

memorandum to support its analogous rationale that O’Laughlin’s 

preparations violated the restrictive covenant because “it [was] improbable 

that [O’Laughlin] took all of the aforementioned actions so that he could be 
J-A20015-16

- 5 -

ready to compete on December 24th, 2019, and not before.” Trial Court 

Opinion, 9/30/15, at 5. 

As O’Laughlin accurately observes, Superior Court Internal Operating 

Procedure § 65.37 precludes any court or party from citing or relying upon 

an unpublished memorandum decision except in limited situations that are 

not implicated in this case. Specifically, the proviso states,

A. An unpublished memorandum decision shall not be relied 

upon or cited by a Court or a party in any other action or 

proceeding, except that such a memorandum decision may be 

relied upon or cited (1) when it is relevant under the doctrine of 

law of the case, res judicata, or collateral estoppel, and (2) when 

the memorandum is relevant to a criminal action or proceeding 

because it recites issues raised and reasons for a decision 

affecting the same defendant in a prior action or proceeding. 

When an unpublished memorandum is relied upon pursuant to 

this rule, a copy of the memorandum must be furnished to the 

other party to the Court.

Superior Court IOP § 65.37(A). 

Here, the trial court relied upon our legal analysis in the unrelated 

unpublished memorandum in order to draw the inference that O’Laughlin’s 

preparations threatened Joseph with a substantial injury. Accordingly, we 

agree with O’Laughlin that the trial court erred in relying upon that analysis 

as having any precedential value.4 However, we reject O’Laughlin’s 

____________________________________________

4 We observe that our Supreme Court is currently considering a proposal 

from the Appellate Court Procedural Rules Committee that would permit 

citation to unpublished memorandum as persuasive authority. Nevertheless, 

as of the date of this Opinion, our Supreme Court has not endorsed the 

(Footnote Continued Next Page)
J-A20015-16

- 6 -

concomitant assertion that the misstep is tantamount to reversible error. To 

the contrary, for the reasons explained infra, we conclude that the certified 

record supports the trial court’s imposition of a permanent injunction. 

We review an order granting permanent injunctive relief de novo and 

our scope of review is plenary. Kuznik v. Westmoreland County Bd. of 

Comm’rs, 902 A.2d 476, 489 (Pa. 2006). “To justify the award of a 

permanent injunction, the party seeking relief must establish that his right 

to relief is clear, that an injunction is necessary to avoid an injury that 

cannot be compensated by damages, and that greater injury will result from 

refusing rather than granting the relief requested.” Id. (citations and 

internal quotation marks omitted). Additionally, “[u]nlike a preliminary 

injunction, a permanent injunction does not require proof of immediate 

irreparable harm.” Liberty Place Retail Assocs., L.P. v. Israelite School 

of Universal Practical Knowledge, 102 A.3d 501, 506 (Pa. Super. 2014). 

We address O’Laughlin’s next two claims together. First, O’Laughlin 

challenges the trial court’s determination that Joseph established the three 

components of a permanent injunction. Brief for Appellant at 11. 

Specifically, he asserts that at the hearing, Joseph did not adduce evidence 

establishing a clear right to relief, insofar as O’Laughlin’s actions did not 

constitute a violation of the restrictive covenant. Id. at 12. The crux of this 

(Footnote Continued) _______________________

proposed rule or promulgated an amendment that would sanction the trial 

court’s citation to our unpublished memorandum decision in this situation. 
J-A20015-16

- 7 -

contention is that O’Laughlin’s activities did not constitute engaging in a 

competing business or soliciting potential clients. Id. at 12-13.

O’Laughlin highlights that he did not operate a veterinary clinic within 

the prohibited area, and asserts that the only evidence of his alleged 

violation was the creation of the Facebook page, and the petition he filed 

with the zoning board for a special exemption to operate a veterinary 

facility. Id. at 13. Framing these actions as merely “preparatory,” 

O’Laughlin contends that no evidence exists of his present intention of 

opening a veterinary clinic on the site in violations of the restrictive 

covenant. Id. O’Laughlin continues, “even if he had such present intention 

it would be several years before that intention would manifest itself in actual 

competition . . . with Joseph.” Id. Hence, he concludes that the record 

does not sustain the trial court’s finding of a clear right to relief. Id. at 13-

14.

The second aspect of this argument assails the portion of the trial 

court’s rationale that anticipates a breach of the restrictive covenant based 

upon O’Laughlin’s “very preliminary efforts” to compete with Joseph at some 

undisclosed point in the future. Id. at 15. O’Laughlin relies upon a mixture 

of persuasive authority, including the Restatement (Second) of Agency, and 

cases from various sister jurisdictions that address an employee’s duty of 

loyalty to his employer in the absence of a restrictive covenant. O’Laughlin 

highlights that, in those fact-sensitive cases, the various jurisdictions have 
J-A20015-16

- 8 -

determined that incorporating a business, registering a trademark, 

purchasing equipment, and obtaining office space, bank account, and 

telephone listings were permissible preparatory measures. Id. at 16. 

In contrast to covenants not to compete in employment contracts, a 

restrictive covenant included in an agreement for the sale of an established 

business are intended to temporarily limit a seller’s competition with a 

purchaser, in order for the purchaser to establish its own cliental:

General covenants not to compete which are ancillary to the sale 

of a business serve a useful economic function; they protect the 

asset known as ‘good will’ which the purchaser has bought. 

Indeed, in many businesses it is the name, reputation for 

service, reliability, and the trade secrets of the seller rather than 

the physical assets which constitute the inducements for a sale. 

Were the seller free to re-enter the market, the buyer would be 

left holding the proverbial empty poke. 

Id. Consistent with our Supreme Court’s perspective, we review the 

restrictive covenant in the present case with an eye toward ensuring that 

both sides to the asset transfer agreement obtain the benefit of their 

bargain. 

In the instant case, the specific language of the Agreement provided 

that O’Laughlin

shall not directly or indirectly, as an employer, employee, 

principal, agent, consultant, partner, stockholder, creditor or in 

any other capacity, engage or participate in any business or 

practice within the Geographic Area that is in competition ... 

with the Buyer. Further, [O’Laughlin] shall not contract, solicit, 

or engage in any activity to contact or solicit, indirectly or 

directly, any client, past present, or future, during that five (5) 

year period.
J-A20015-16

- 9 -

Agreement, ¶ 3 (emphasis added). The trial court determined O’Laughlin 

was “preparing to violate the non-compete [A]greement],” when he 

1. Created a limited liability company with the name “O’ Laughlin 

Veterinary Services;”

2. Purchased Equipment;

3. Created, or had created on his behalf, a Facebook page with 

the name “O’ Laughlin Veterinary Services;”

4. Indicated on the Facebook page that the clinic was “Coming 

Soon;”

5. Applied for a special exception permit;

6. Stated that the intended use of his property was for a 

“veterinary clinic;” and

7. Proposed to locate said veterinary clinic less than nine (9) 

miles from Grace Veterinary Clinic, well within the fifty (50) mile 

prohibited radius.

Trial Court Opinion, 9/30/15, at 4. Consequently, the trial court concluded 

that Joseph had satisfied the threshold element of a permanent injunction, 

i.e. a clear right to relief. See id.

Our review of the record discloses that the restrictive covenant at 

issue was not limited to O’Laughlin’s practice of veterinary medicine. By its 

plain language, the restrictive covenant barred O’Laughlin from, “directly or 

indirectly” “engag[ing] or participat[ing] in any business” in 

competition with Appellee’s business within the Geographic Area. 

Agreement, ¶ 3 (emphasis added). O’Laughlin’s creation of a limited liability 

company, purchasing equipment, and seeking a special exception zoning 
J-A20015-16

- 10 -

permit are all integral parts of “engag[ing] or participat[ing]” in the business 

of operating a competing veterinary clinic, within the Geographic area. See 

id. As such, they were patently prohibited by the Agreement’s restrictive 

covenant. 

O’Laughlin’s reliance upon case law regarding an employee’s duty of 

loyalty to an employer is not particularly helpful.5 Generally, covenants not 

to compete, which are ancillary to employment contracts, are subjected to a 

higher scrutiny than their counterparts that supplement the sale of a 

business. Morgan’s Home Equipment Corp. v. Marticci, 136 A.2d 838, 

846 (Pa. 1957). In Spring Steels, Inc. v. Molloy, 162 A.2d 370 (Pa. 

1960), our Supreme Court observed that, absent a restrictive agreement, an 

employee may make preparations to compete before the end of his 

employment, and not breach his/her fiduciary duty of loyalty. Id. at 375. 

Other jurisdictions have similarly recognized that preparations to compete 

may violate an employee’s duty of loyalty, where there exists a restrictive 

covenant. 

For example, the United States Court for the Eastern District of 

Pennsylvania has explained that,

where an employee, bound by a restrictive covenant, makes 

preparations to compete with his current employer, the 

____________________________________________

5 We reject O’Laughlin’s reference to agency law summarily, as those tenets 

are entirely inapplicable to the case at bar. 
J-A20015-16

- 11 -

employee could be said to have breached his duty of loyalty by 

seeking employment with admitted competitors of the employer 

while still employed because the results of the employees’ 

activities could be construed as contrary to the express interests 

of employer.

Synthes, Inc. v. Emerge Med., Inc., 25 F. Supp. 3d 617, 667-68 (E.D. Pa. 

2014) (emphasis added). See also Mattern & Assocs., L.L.C. v. Seidel, 

678 F. Supp. 2d 256, 268 n.10 (D. Del. 2010) (noting that preparations to 

compete, which would not be actionable under a breach of fiduciary duty 

theory, may be actionable where an employee is bound by a restrictive 

covenant); Sales & Mktg., Inc. v. Menaged, No. Civ.A.97-4966, 1998 U.S. 

Dist. LEXIS 14008, 1998 WL 575270, at *7 (E.D. Pa. Sept. 9, 1998) 

(recognizing that “Defendants were at-will employees and were not subject 

to any covenants not to compete with Plaintiff once they left the company, 

so their formation of a competing company, and even the steps they took to 

form the company while still employed by L&N, was not illegal.”) (emphasis 

added). Thus, preparations to compete may be barred by an employee’s 

duty of loyalty, where there exists a restrictive covenant. As a result, we 

are not persuaded by O’Laughlin’s reliance upon employment cases. 

O’Laughlin also directs our attention to Berardi’s Fresh Roast, Inc.

v. PMD Enter., Inc. 2008 Ohio App. Lexis 4618 (Ohio Ct. App. 2008), a 

case from a sister jurisdiction, as support for his position that his 
J-A20015-16

- 12 -

preparatory measures did not breach the sales agreement.6 In Berardi’s 

Fresh Roast, the seller had “entered into a noncompetition agreement 

which prevented him from re-entering the coffee industry for three years.”7 

Id. at *3. The Ohio appellate court determined that the seller did not 

violate the noncompetition agreement when he organized a new coffee 

roasting enterprise, investigated finance options, leased warehouse space, 

hired employees, and ordered equipment and supplies prior to the expiration 

of the noncompetition agreement. Id. at *13. In so holding, the Ohio court 

distinguished between preparing to compete, and actual competition. Id. at 

*13-*14. We cannot conclude that this case is supportive of O’Laughlin’s 

position, where the restrictive covenant at issue is not set forth in the 

decision.

In this case, the record reflects that O’Laughlin formed a limited 

liability company styled, “O’Laughlin Veterinary Services,” acquired medical 

____________________________________________

6

 The Court of Appeals for Ohio permits citation to and reliance upon its 

unpublished cases filed after May 1, Specifically, the Ohio Supreme Court 

Rules for the Reporting of Opinions provides that

[a]ll opinions of the courts of appeals issued after May 1, 2002 

may be cited as legal authority and weighted as deemed 

appropriate by the courts without regard to whether the opinion 

was published or in what form it was published.

Rep.Op.R. 3.4.

7 The text of the noncompetition agreement is not set forth in the Court of 

Appeals’ decision.
J-A20015-16

- 13 -

equipment, purchased real estate, and applied for a special use zoning 

exception that would permit him to build and use a facility as a veterinary 

clinic. By these actions, O’Laughlin “directly or indirectly” “engag[ed] or 

participat[ed] in any business” in competition with Joseph’s business, 

within the Geographic Area. See Agreement, ¶ 3. These actions were a 

clear violation of the restrictive covenant, and evince a clear right to relief as 

to that aspect of a permanent injunction. 

We next address O’Laughlin’s solicitation of customers through social 

media. As the trial court observed, O’Laughlin created a Facebook page 

under the name O’Laughlin Veterinary Services and maintained contact with 

former clients of Grace Veterinary Clinic. Trial Court Opinion, 9/30/15, at 2-

3. We conclude that O’Laughlin’s action in this regard violated the 

restrictive covenant set forth in the Agreement.

As noted supra, the final proviso in the non-compete clause stated that 

“[O’Laughlin] shall not contact, solicit, or engage in any activity to contact or 

solicit, indirectly or directly, any client, past, present, or future, during [the] 

five (5) year period.” Asset Transfer Agreement, ¶ 3; Appellee’s Exhibit A. 

O’Laughlin operated a Facebook page under the name O’Laughlin Veterinary 

Services. Joseph testified that she visited the Facebook page after a client 

informed her about O’Laughlin’s then-pending zoning petition. Joseph 

described the page and explained how the “Coming Soon” banner directed 

her to a website that provided a map and written driving directions from a 
J-A20015-16

- 14 -

given point to O’Laughlin Veterinary Services at the address identified in the 

zoning petition. N.T., 9/24/15, at 60-61, 66. 

The O’Laughlin Veterinary Services page on Facebook utilized the URL 

https://www.facebook.com/DrOlaughlin and indicated that it was affiliated 

with the American Veterinary Medical Association. The home page invited 

viewers “to connect with O’Laughlin Veterinary Services.” See Appellee’s 

Exhibit G (O’Laughlin’s Facebook posts between 7/16/15 and 9/23/15). 

Through the social media page, O’Laughlin shared various animal-related 

links, images, and posts with former clients, other practitioners, and entities 

involved in pet care and animal nutrition. As it relates to the present issue, 

O’Laughlin’s interactions with some of his former clients require further 

examination. 

On September 5, 2015, Kay Clark, a former client who was active on 

the Facebook page, commented that O’Laughlin was the “[o]nly vet I have 

ever taken my [pets] to” and “hopefully [he is] back soon.” Exhibit G at 28. 

Approximately two weeks later, O’Laughlin posed the cryptic query, “Guess 

who else will be text updating [sic] owners??? ... It starts with an O’[.]” Id. 

at 17. Three days later, on September 20, 2015, another client expressed, 

“[O’Laughlin] is a supper [sic] great Vet” and “[Can’t] wait for the new 

clinic to open.” Id. at 18 (emphasis added). Thus, nine months from the 

date the parties executed the Agreement, and more than four years and 

three months before the restrictive convenient expired, O’Laughlin was 
J-A20015-16

- 15 -

actively contacting former clients and indirectly soliciting their business in 

anticipation of opening his new clinic. 

We reject O’Laughlin’s assertion that Joseph conceded “that the 

Facebook page in no way constituted an advertisement for veterinary 

services or a solicitation of veterinary services customers by O’Laughlin.” 

Brief of Appellant at 13. The contention is factually inaccurate. In reality, to 

the extent that Joseph offered any concessions, it was that the Facebook 

page did not indicate that O’Laughlin was registering new patients or 

accepting clients. See N.T., 9/24/15, at 79. Thus, O’Laughlin’s perception 

of the purported concession is skewed. More importantly, notwithstanding 

O’Laughlin’s mischaracterization, the fifty-six page exhibit that memorialized 

the three months of entries on the O’Laughlin Veterinary Services Facebook 

page speaks for itself. 

Upon review of that document, it is obvious that, collectively, the 

posts, “coming soon” announcement, and map directions, are tantamount to 

a solicitation of past or future clients in contravention of the non-compete 

clause. The resounding purpose of the Facebook page, and the attendant 

communications therein, was to inform the followers of the page, including 

former clients, that he intended to open a new clinic and to keep them 

apprised of his progress. There is but one reason for O’Laughlin to create 

the O’Laughlin Veterinary Services Facebook page and maintain contact with 

former clients: to solicit their business 
J-A20015-16

- 16 -

Further, despite O’Laughlin’s protestations to the contrary, the fact 

that Joseph only rented use of the brand name for six months does not alter 

our analysis. As enumerated in the agreement, the temporary use of the 

brand name is a distinct component of the agreement with consideration 

separate and apart from the restrictive covenant. Although Joseph’s 

exclusive use of the brand name expired during June 2015, O’Laughlin’s 

contractual obligations and the remaining intangible assets endured. Thus, 

O’Laughlin’s argument that the expiration of the six months somehow 

affected his contractual obligation to abstain from solicitation pursuant to the 

restrictive covenant is unpersuasive. 

As O’Laughlin’s continued public discourse with his former clients 

under the banner of O’Laughlin Veterinary Services is an express violation of 

the restrictive covenant, we conclude that Joseph demonstrated a clear right 

to relief in this regard and, on this basis, we affirm the portion of the trial 

court’s permanent injunction relating to O’Laughlin’s operation of the 

O’Laughlin Veterinary Services’ Facebook page. See Braun v. Wal-Mart 

Stores, Inc., 24 A.3d 875, 892 (Pa. Super. 2011) (Superior Court may 

affirm on any basis supported by the record). 

Having found a clear right to relief, we address the remaining 

elements of Joseph’s request for a permanent injunction, i.e., (1) the 

absence of an adequate remedy at law; and (2) that the greater injury will 

result from refusing injunctive relief. Beyond the conclusory statement that, 
J-A20015-16

- 17 -

“the Lower Court erred in its conclusion that the recited elements for a 

permanent injunction [regarding an actual and substantial injury] had been 

established through the record proof,” O’Laughlin does not challenge the 

second element of the decision to grant a permanent injunction. Brief of 

Appellant at 12. O’Laughlin’s argument relating to the final element of 

Joseph’s claim is only slightly more developed. In sum, O’Laughlin contends 

that the trial court failed to balance the respective harms to the parties. Id.

at 14.

In light of O’Laughlin’s failure to level comprehensive legal arguments 

addressing either of these components, both assertions are waived. See In 

re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (quoting In re A.C., 991 

A.2d 884, 897 (Pa. Super. 2010), and stating that, “where an appellate brief 

fails to provide any discussion of a claim with citation to relevant authority 

or fails to develop the issue in any other meaningful fashion capable of 

review, that claim is waived.”). Moreover, even assuming that O’Laughlin’s 

cursory arguments are reviewable, no relief is due. 

O’Laughlin’s bare claims not only are wholly insufficient, but they also 

mischaracterize the record. In order to establish this aspect of her request 

for a permanent injunction, Joseph was required to demonstrate that “actual 

and substantial injury is likely in the future.” Peugeot Motors of 

America, Inc. v. Stout, 456 A.2d 1002, 1008 (Pa.Super. 1983) (emphasis 

added). Notwithstanding O’Laughlin’s contention, the certified record 
J-A20015-16

- 18 -

demonstrates that Joseph is likely to be harmed by O’Laughlin’s 

unobstructed actions and solicitation of her clients, whether direct or 

indirect. Recall that Joseph had a bargained-for-expectation of those clients 

because she paid O’Laughlin $53,920.50 to acquire the goodwill and client 

list for Grace Veterinary Clinic, and for O’Laughlin’s promise to forego 

contacting or soliciting past, present, and future clients. Thus, having 

received compensation for his noninterference with his former customers, it 

would be incongruous to permit O’Laughlin to spend the ensuing five years 

soliciting those clients on Facebook in anticipation of opening a rival clinic 

after the restrictive covenant expired. In sum, Joseph demonstrated that 

substantial injury is likely if O’Laughlin is not enjoined from directly or 

indirectly soliciting clients. 

For a similar reason, we reject O’Laughlin’s complaint that the trial 

court did not weigh the respective injuries associated with granting and 

denying the requested relief. In addition to being waived as woefully 

underdeveloped, see In re W.H., supra, at 339 n.3, we observe that the 

greater injury to Joseph in the absence of injunctive relief is obvious. Unlike 

O’Laughlin’s purely preparatory measures that we outlined supra, competent 

evidence exists in the certified record to establish O’Laughlin’s solicitation of 

the former clients of Grace Veterinary Clinic. The sample of the comments 

posted on the O’Laughlin Veterinary Clinic Facebook page by O’Laughlin’s 

former clients are revealing. The clients affirmed their allegiance to 
J-A20015-16

- 19 -

O’Laughlin notwithstanding his absence by stating “hopefully [he is] back 

soon” and declaring “[Cant’] wait for the new clinic to open.” Exhibit G at 

18, 28. Moreover, O’Laughlin further enticed his former clients with his own 

esoteric post referencing an anticipated text message that he intended to 

send to pet owners about an unsaid event. Id. at 17. In contrast to 

O’Laughlin’s benign measures to ready a prospective business, his pervasive 

contact with former clients on social media since July 2015 and his indirect 

solicitation of those clients had a direct impact of Joseph’s clientele, i.e., 

their resolve to renew their commitment to O’Laughlin and follow him to his 

new practice when it opened in 2019. Again, still mindful of the premium 

that Joseph paid O’Laughlin for the clinic’s goodwill and an unhindered 

opportunity to retain its customers, the greater injury resulting from a denial 

of injunctive relief is patent. See Morgan’s Home Equipment Corp, 

supra at 846. (“covenants not to compete which are ancillary to the sale of 

a business serve a useful economic function . . . [w]ere the seller free to reenter the market, the buyer would be left holding the proverbial empty 

poke”). 

For all of the foregoing reasons, we affirm the Order granting the 

permanent injunction. 

Order affirmed. 

Judge Stabile joins the memorandum.

Judge Bowes files a concurring and dissenting memorandum.
J-A20015-16

- 20 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/22/2017