J-A11034-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHELLE PRIN AND JOANNE BAST 

PARTNERS, LLC, MICHELLE PRIN, 

JOANNE S. BAST AND WILLIAM PRIN

v.

BOB'S BEER AND SODA, INC. AND 

ROBERT E. SHAFFER

APPEAL OF: JOANNE BAST

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

 No. 1190 MDA 2017

Appeal from the Order Entered September 26, 2017

in the Court of Common Pleas of Adams County 

Civil Division at No.: 12-S-1176

MICHELLE PRIN AND JOANNE BAST 

PARTNERS, LLC, MICHELLE PRIN, 

JOANNE S. BAST AND WILLIAM PRIN

v.

BOB'S BEER AND SODA, INC. AND 

ROBERT E. SHAFFER

APPEAL OF: BOB’S BEER AND 

SODA, INC. AND ROBERT E. 

SHAFFER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

 No. 1230 MDA 2017

Appeal from the Order Entered September 26, 2017

in the Court of Common Pleas of Adams County 

Civil Division at No.: 12-S-1176

BEFORE: STABILE, J., NICHOLS, J., and PLATT*, J.
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MEMORANDUM BY PLATT, J.: FILED AUGUST 31, 2018

In these consolidated cross-appeals, the buyer and the seller of a beer 

distributorship challenge various elements of the trial court’s grant, after a 

bench trial, of injunctive relief, and attorney fees, but not monetary damages, 

in the enforcement of a covenant not to compete.1 Appellant, Joanne S. Bast, 

claims injunctive relief was not necessary at all, and in any case, the court 

should not have extended its duration.2 She also challenges the court’s award 

of attorney fees to Appellees, Bob’s Beer and Soda, Inc. and its president, 

Robert E. Shaffer, claiming they were not the prevailing parties. Appellees 

assert that the court should have awarded them monetary damages as well 

____________________________________________

1 Appellant purports to appeal from the order filed June 29, 2017, denying 

motions for post-trial relief. (See Notice of Appeal, 7/28/17; see also

Appellant’s Brief, at 2). However, the appeal properly lies from the final order. 

See Commonwealth v. Harris, 32 A.3d 243, 248 (Pa.2011); see also

Pa.R.A.P. 341(a). Here, the Prothonotary entered judgment on September 

26, 2017. (See Rule 36 Notice of Entry of Judgment, 9/26/17). In spite of 

the premature filing, we may review this matter because a final order has 

been entered. See Commonwealth v. Tillery, 611 A.2d 1245, 1247 (Pa.

Super. 1992), appeal denied, 616 A.2d 984 (Pa.1992) (reviewing premature

appeal where final order entered thereafter); see also Pa.R.A.P. 905(a)(5) 

(“A notice of appeal filed after the announcement of a determination but 

before the entry of an appealable order shall be treated as filed after such 

entry and on the day thereof.”). We have amended the caption accordingly.

2 Although the caption of the appeal includes Michelle Prin and Joanne Bast 

Partners, LLC, Michelle Prin and William Prin, as additional Appellants, the trial 

court essentially decided in favor of the other named Appellants (plaintiffs in 

the underlying declaratory judgment action). In fact, only Ms. Bast appealed. 

(See Appellant’s Brief, at 9 n.2). However, Appellees included all of the 

original plaintiffs in their answer and counterclaim. 
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as injunctive relief. They claim error in the trial court’s refusal to enforce the 

restrictive covenant against other presumptively interested parties who were 

not signers of the Purchase Agreement at issue. Finally, they assert error in 

the trial court’s refusal to award the entire amount of attorney fees requested. 

We affirm. 

The underlying facts are not in substantial dispute. On or about May 5, 

2008, Joanne Bast signed the Purchase Agreement by which Yingling’s Thrifty 

Dutch Beverage, Inc. sold the assets of its beer distributorship (including the 

real estate and fixtures, plus goodwill and license) to Appellee Robert E. 

Shaffer for $1,500,000.00. 

Appellant Joanne S. Bast owned 50% of the shares of the corporation. 

Patricia Prin owned the other 50%. Patricia Prin is the former wife of Dr. 

William Prin. They divorced in 2005 (or 2006).

3

 By virtue of a marital 

settlement agreement, Dr. Prin had a residual interest in half of the proceeds 

to Patricia of the sale of Yingling Thrifty Dutch Beverage. 

The sole signatory to the Purchase Agreement for Seller was Joanne S. 

Bast. Ms. Bast initialed each page of the agreement and signed at the end as 

the designated “Seller.” The real estate agent involved in the transaction 

____________________________________________

3 Both years are given in the record. However, there is no dispute that the 

Prins were divorced by the time of the sale, and their respective rights to share 

in the proceeds of the sale were based on the marital settlement agreement. 

Therefore, the exact year is not critical to the issues on appeal, or our 

disposition. 
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testified that he provided the Purchase Agreement based on a standard form 

used in his employer’s real estate firm. The Sellers received their full asking 

price. (See N.T. Trial, 10/27/15, at 82).

Notably, for the issues raised on appeal, the Agreement contained a 

covenant not to compete, which prohibited the Seller from competing “directly 

or indirectly” with “Buyer,” Appellees, within a ten-mile radius of the existing 

business location for a period of ten years from the date of settlement of the 

sale.

4

 

In short order, Shaffer re-named the business “Bob’s Beer,” dismissed

the previous manager, repainted and made other changes in décor, and began 

____________________________________________

4

It deserves mention that counsel for Defendants/Appellees apologized at trial 

for the “poor quality” of the copy of the Agreement. (N.T. Trial, 10/27/15, at 

9). In fact, all of the copies provided are in deplorable condition and nearly 

illegible. However, as there is no dispute about the specific text of the 

covenant, our review is not impeded. The covenant not to compete, in the 

form agreed-on by the parties, states in pertinent part:

6.) Other terms and Conditions:

* * *

(vii) Seller agrees that from the date of settlement, Seller 

shall not compete directly or indirectly in the same or similar 

type of business with Buyer within a ten (10) mile radius of 

the existing business for a period of ten (10) years. This 

provision shall not apply to the existing business known as 

HBO, Inc. located at 1307 Baltimore Pike, Hanover, PA 

17331. 

(Purchase Agreement, 5/05/08, at 2 ¶ 6(vii); see also Appellant’s Brief, at 

11; Appellees’ Brief, at 3). The exception refers to a separate beer 

distributorship owned by Dr. Prin. 
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operating in the same location. On March 13, 2012, Ms. Bast, in partnership 

with Michelle Prin, (the succeeding wife of Dr. Prin), as “Michelle Prin and 

Joanne Bast Partners, LLC,” purchased “Beer Express” and eventually opened 

a beer distributorship about three miles (3.6 miles) west of the original Thrifty

Dutch Beverage−now Bob’s Beer−location. They renamed the Beer Express,

the “RT 116 Beer Xpress.” 

Shaffer asserted a violation of the covenant not to compete, and 

threatened a lawsuit unless they stopped operating RT 116. Instead, 

plaintiffs, Michelle Prin and Joanne Bast partners, LLC, Michelle Prin, Joanne 

S. Bast and Dr. William Prin, brought the declaratory judgment action

underlying this appeal, claiming the covenant not to compete was illegal, and 

seeking to have the court declare it unenforceable. (See Complaint for 

Declaratory Judgment, 8/03/12, at 8). Appellees answered and 

counterclaimed for injunctive relief, alleging that the remaining parties 

“conspired” with Ms. Bast to violate the non-competition provision, and 

asserting that “a remedy at law for damages is not adequate.” (Appellees’

Answer and New Matter, 9/05/12, at ¶ 66; see also ¶¶ 64-65). 

At trial, and on appeal, Ms. Bast maintained that she was an artist, not 

a businessperson, and that her role in both of the beer distributorships at issue 

was essentially that of a passive investor. She acknowledged signing the 

Purchase Agreement, but testified that she understood the agreement to be 

in the nature of a working draft, as part of an ongoing negotiation. (See N.T. 
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Trial, 10/27/15, at 80-81). The trial court found her explanation “insufficiently 

credible.” (Trial Ct. Op., at 4). 

Moreover, our review of the record reveals that despite Appellant’s 

claimed reliance on the assurances of the real estate agent, there are several 

references to counsel, and no indication that Ms. Bast could not have consulted

counsel before signing, had she chosen to, on the questions she now raises 

on appeal. 

Shaffer testified that he would not have purchased the beer 

distributorship without the restrictive covenant. The trial court found him 

credible. (See id. at 6). 

After the bench trial, the court found in favor of all plaintiffs, except Ms. 

Bast. The trial court decided that Ms. Bast, the sole signer for Thrifty Dutch 

Beverage in the sale of that beer distributorship to Shaffer, had violated the 

covenant not to compete by going into partnership with Ms. Michelle Prin in 

opening RT 116. Additionally, the court found that Appellees had established 

a causal connection between the violation of the non-compete agreement by 

Ms. Bast, and drops in Appellees’ business, sufficient to support injunctive 

relief. 

Nevertheless, the court further found that Appellees, despite “a noble 

effort” to prove actual damages, could only provide anecdotal information 

about the ebb and flow of business. (Id. at 11). Tax returns and related 

business records showed fluctuations (both up and down) in revenue and 
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profit which did not directly correlate with the opening and operation of RT 

116. The court decided that the anecdotal evidence of loss based on Ms. 

Bast’s involvement with RT 116 was too speculative and insufficient to 

establish a claim to economic damages requested by Appellees. (See id. at 

12). The court also noted that in their request for injunctive relief, the 

Appellees averred that “a remedy at law for damages is not adequate.” 

(Appellees’ Answer and New Matter, at ¶ 66; see also Trial Ct. Op., at 11). 

Accordingly, the court declined to award monetary damages. However, it 

enjoined Appellant from violating the covenant not to compete clause for a 

new term of ten years beginning with the date of the court order. 

The court also granted Appellees’ attorney fees, but in the amount of 

$16,853.90, less than the $27,000 requested. Both parties dispute the court’s 

award of attorney fees. Appellees claim that the trial court improperly reduced 

the amount of their fee award. Appellant complains that on her comparison 

of relief sought to relief granted, Appellees were not the “prevailing party,” 

and therefore should get no award for attorney fees at all. 

The agreement of sale included the following pertinent provision:

33. Attorneys’ Fees. In any litigation, arbitration or other 

legal proceeding, which may arise between any of the parties 

hereto, including Agent, the prevailing party shall be entitled to 

recover its costs, including [illegible] costs, costs of arbitration, 

[illegible] reasonable attorney’s (sic) fees in addition to any other 

relief in which such party may be entitled. 

(Purchase Agreement, at 5 of 7). 
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Ms. Bast timely appealed, following the denial of post-trial motions. 

Appellees cross-appealed. Both parties filed a Rule 1925(b) statement of 

errors.5 The trial court filed its opinion on October 30, 2017. See Pa.R.A.P. 

1925. 

Appellant presents three questions for our review:

A. Did the trial court err in granting the Appellees’ claim for 

injunctive relief against Joanne Bast where the Appellees did not 

prove the injunction is reasonably necessary to prevent harm to 

their legitimate business interests?

B. Did the trial court err in granting a ten-year injunction 

from the date of the order where the length of the injunction is 

not reasonably necessary to protect a legitimate business interest 

and the contract did not include a tolling provision?

C. Did the trial court err in awarding attorneys’ fees to the 

Appellees where they were not the prevailing parties in the 

litigation?

(Appellant’s Brief, at 4).

Appellees also present three questions: 

D. Did the [t]rial [c]ourt err in dismissing Appellees’ claim 

for economic damages against the Appellants, as there was 

sufficient evidence in the record to support that claim?

E. Did the [t]rial [c]ourt err in not enforcing the restrictive 

covenant against Appellants William Prin and Michelle Prin as coconspirators as there was sufficient evidence in the record to 

prove that both of them knew of the covenant not to compete, yet 

aided and assisted Appellant Joanne Bast in her willful and 

intentional violation of the covenant?

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5

It bears noting that Appellant’s statement of errors raised twelve issues, 

framed as four questions with multiple sub-parts. (See Rule 1925(b) 

Statement of Matters Complained of on Appeal, 8/24/17). 
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F Did the [t]rial [c]ourt err in not awarding Appellees all of 

the counsel fees requested?

(Cross-Appellants’ [Appellees’] Brief, at 2).

The legal principles applicable to the parties’ claims are well-settled.

Our scope of review in a non-jury trial is limited to whether 

findings of fact are supported by competent evidence and whether 

the trial court committed an error of law. With respect to factual 

conclusions, this Court may reverse the trial court if its findings of 

fact are predicated on an error of law or are unsupported by 

competent evidence in the record. 

Szymanski v. Dotey, 52 A.3d 289, 292 (Pa. Super. 2012) (citations and 

internal quotation marks omitted).

In reviewing the factual determinations of the trial court 

sitting as finder of fact, we must attribute to them the same force 

and effect as a jury’s verdict. Accordingly, we view the evidence 

and all reasonable inferences therefrom in the light most favorable 

to the . . . verdict winners. We will only upset the findings if there 

is insufficient evidence, or if the trial court committed an error of 

law. In reviewing the findings, the test is not whether we would 

have reached the conclusion of the trial court, but rather whether 

we reasonably could have reached the same result. We will not 

substitute our judgment for that of the trial court.

Rizzo v. Haines, 555 A.2d 58, 61 (Pa. 1989) (citations omitted). 

The determination of damages is a factual question to be 

decided by the fact-finder. This duty of assessing damages is 

within the province of the fact-finder and should not be interfered 

with unless it clearly appears that the amount awarded resulted 

from partiality, caprice, prejudice, corruption or some other 

improper influence. The fact-finder must assess the worth of the 

testimony, by weighing the evidence and determining its 

credibility, and by accepting or rejecting the estimates of the 

damages given by the witnesses. In reviewing the award of 

damages, the appellate courts should give deference to the 

decisions of the trier of fact who is usually in a superior position 

to appraise and weigh the evidence. 
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Delahanty v. First Pennsylvania Bank, N.A., 464 A.2d 1243, 1257 (Pa. 

Super. 1983) (citations omitted). 

“Under the American Rule, applicable in Pennsylvania, a litigant cannot 

recover counsel fees from an adverse party unless there is express statutory 

authorization, a clear agreement of the parties, or some other established 

exception.” Trizechahn Gateway LLC v. Titus, 601 Pa. 637, 652, 976 A.2d 

474, 482–83 (Pa. 2009). 

“By now it is hornbook law that the reasonableness of the fee is a matter 

for the sound discretion of the lower Court and will be changed by an appellate 

Court only when there is a clear abuse of discretion.” In re LaRocca's Trust 

Estate, 246 A.2d 337, 339 (Pa. 1968) (citations and footnote omitted). This 

Court has further explained:

We have a limited power of review of court awarded fees. 

As the Supreme Court has so frequently stated, the responsibility 

for setting such fees lies primarily with the trial court and we have 

the power to reverse its exercise of discretion only where there is 

plain error. Plain error is found where the award is based either 

on factual findings for which there is no evidentiary support or on 

legal factors other than those that are relevant to such an award. 

The rationale behind this limited scope of review is sound. It is 

the trial court that has the best opportunity to judge the attorney’s 

skills, the effort that was required and actually put forth in the 

matter at hand, and the value of that effort at the time and place 

involved.

Gilmore by Gilmore v. Dondero, 582 A.2d 1106, 1108–09 (Pa. Super. 

1990) (citations omitted). 

Here, in Appellant’s first claim, she challenges the trial court’s grant of 

injunctive relief. She maintains that Appellees did not prove the injunction is 
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reasonably necessary to prevent harm to their legitimate business interests. 

We disagree. 

Preliminarily, we note that many of the cases cited by Appellant in

support of her argument actually involve enforcement of covenants not to 

compete in the context of an employment relationship. (See, e.g.,

Appellant’s Brief, at 18-19) (citing WellSpan Health v. Bayliss, 869 A.2d 

990, 993 (Pa. Super. 2005) (physician ex-employee); Hess v. Gebhard & 

Co. Inc., 808 A.2d 912, 914 (Pa. 2002) (insurance agent employee); Scobell 

Inc. v. Schade, 688 A.2d 715, 716 (Pa. Super. 1997) (sheet metal shop 

employee for HVAC firm). Appellant would have us employ the wrong test. 

As nominally acknowledged by Appellant, (see Appellant’s Brief, at 19), 

Pennsylvania law has long recognized a distinction between the greater 

hardship imposed by a restrictive covenant on an employee, or former 

employee, and enforcement of a covenant in the sale of a business context. 

See Morgan's Home Equip. Corp. v. Martucci, 136 A.2d 838, 846 (Pa. 

1957) (sales employees). 

Our Supreme Court noted that the “mobility of capital” enables a

business investor to make use of investment funds more easily “in other 

localities and in other industries.” Id. 

In view of this greater hardship imposed on an employee, general 

covenants not to compete ancillary to employment are subject to a more 
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stringent test of reasonableness than is applied to restrictive covenants 

ancillary to the sale of a business. See id. 

The standard of review for a restrictive covenant ancillary to the sale of 

a business is as follows:

The law in this Commonwealth for more than a century has 

been that in order to be enforceable a restrictive covenant must 

satisfy three requirements; (1) the covenant must relate to either 

a contract for the sale of goodwill or other subject property or to 

a contract for employment; (2) the covenant must be supported 

by adequate consideration; and (3) the application of the 

covenant must be reasonably limited in both time and territory.

Piercing Pagoda, Inc. v. Hoffner, 351 A.2d 207, 210 (Pa. 1976) (citations 

omitted). 

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. When restrictive covenants 

are limited to the area of potential competition with the purchaser 

and limited in time to the period required for the purchaser to 

establish his own customer following, then they are [enforceable]

although a partial restraint upon the free exercise of trade.

Morgan's Home Equip., supra at 846. 

Here, the covenant relates to the sale of goodwill ancillary to the 

purchase of a business, satisfying the first requirement. See Piercing 

Pagoda, supra at 210. Secondly, the covenant was supported by adequate 

consideration. The parties allocated almost $775,000 to good will and license. 

(See Trial Ct. Op., at 6). 
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Therefore, the sole remaining requirement is that the covenant must be 

reasonably limited in both time and territory. The trial court found here that 

both limitations were reasonable. (See id. at 7). Specifically, the court found 

that in a small, rural marketing area such as Hanover, Pennsylvania, a tenmile radius was not unreasonable, and a ten-year effectiveness period gave 

the purchaser a reasonable time to re-coup his investment. (See id.). On 

independent review, we discern no basis on which to disturb the findings of 

the trial court. 

In fact, Appellant fails to develop a specific argument to challenge the 

order for injunctive relief as not reasonably limited with respect to time and 

territory. Instead, she focuses on her lack of special skills or trade secrets 

relating to the retail sale-of-beer business, and concludes that Appellees have 

failed to prove that the restrictive covenant protects customer relationships or 

good will. (See Appellant’s Brief, at 23). Appellant’s argument is 

unresponsive, unpersuasive, and does not merit relief. 

While trade secrets or special skills could provide an independent basis 

for a restrictive covenant (especially in an employment context), their absence 

here does not preclude Appellees’ legitimate interest in seeking to maintain 
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the goodwill for which they had already provided ample consideration.6 See

Piercing Pagoda, supra at 210. Appellant’s first claim fails. 

In Appellant’s second claim, she argues that the ten-year injunction 

from the date of the trial court’s order was not reasonably necessary to protect 

a legitimate business interest, echoing the theme of her first claim. 

The trial court confirms that Appellant failed to develop this claim during 

post-trial proceedings. (See Trial Ct. Op., at 10). In her brief, Appellant 

provides nothing more than a blanket citation asserting that all issues raised 

in the appeal were preserved in the post-trial motion. (See Appellant’s Brief, 

at 16). This Court is not required to scour the record to find evidence to 

support Appellant’s arguments. We conclude that the trial court properly 

found that Appellant’s second claim is waived. See Pa.R.A.P. 302(a). 

In her third and final claim, Appellant requests that we reverse the order 

of the trial court awarding attorneys’ fees to Appellees. She asserts that the 

court erred in awarding any attorney fees to Appellees, on the ground that 

____________________________________________

6 Appellant correctly notes that Appellees chose to differentiate themselves 

from Thrifty Dutch Beverage by change of name, décor, etc. However, 

whatever the wisdom of these changes as a business decision, these acts 

alone do not preclude Appellees from enforcing the restrictive covenant. 

Appellees would still have had a right to enforce the restrictive covenant if 

Thrifty Dutch had attempted to re-open, say, next door. Beyond that, the 

reasonableness of the restrictive covenant is simply a matter of the 

reasonableness of breadth and duration of the covenant, as discussed in the 

text and in the trial court opinion. 
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they were not the prevailing parties in this litigation. (See Appellant’s Brief, 

at 4). We disagree.

“Our review of a trial court’s award of attorney’s fees is limited. We may 

only consider whether the court palpably abused its discretion in making a fee 

award.” Oliver v. Irvello, 165 A.3d 981, 985 (Pa. Super. 2017) (citation and 

internal quotation marks omitted). As we have already noted, we have the 

power to reverse the trial court’s exercise of discretion in the award of attorney 

fees only where there is plain error. See Gilmore by Gilmore, supra at 

1108–09.

Here, Appellant maintains that Appellees “were successful on only a 

small sliver of the relief they sought.” (Appellant’s Brief, at 43). Relying 

principally on an unpublished per curiam federal case from the Third Circuit, 

not binding on this Court, Appellant endeavors to compare “the relief sought” 

to “the relief each litigant actually received.” (Id. at 42) (citing PPG Indus., 

Inc. v. Zurawin, 52 F. App’x 570, 580 (3d Cir. 2002)). 

We do not disagree with the “common sense comparison” approach 

adopted in Zurawin. However, we do find Appellant’s application of it to be 

deficient and unpersuasive. Appellees did not initiate the instant action, even 

if they had threatened one. Instead, they sought relief in response to the 

action for declaratory judgment bought by Appellant and her co-plaintiffs. 

Appellant’s list of six “results” is not only highly subjective but also

unduly repetitive, e.g., citing “the failure to obtain money damages” four 
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separate times in four separate ways out of the six results identified. 

(Appellant’s Brief, at 41, 42). We find more pertinent (and binding) authority 

in Oliver, supra at 985: (“The plain meaning of ‘prevailing part[y]’ is the 

party who wins the lawsuit.”).

“[P]revailing party,” is commonly defined as “a party in whose 

favor a judgment is rendered, regardless of the amount of 

damages awarded.” While this definition encompasses those 

situations where a party receives less relief than was sought or 

even nominal relief, its application is still limited to those 

circumstances where the fact finder declares a winner and the 

court enters judgment in that party’s favor. . . .

Profit Wize Mktg. v. Wiest, 812 A.2d 1270, 1275–76 (Pa. Super. 2002)

(citation omitted). 

Here, Appellant and the other plaintiffs brought an action for declaratory 

judgment. The other plaintiffs, who were not a party to the Purchase 

Agreement, which included the restrictive covenant, “won.” They did not 

appeal. 

Appellant, who did sign, “lost.” Whether Appellant signed (or intended 

to sign) in her personal capacity, as a 50% shareholder, or simply with 

apparent authority to sign on behalf of the corporation, is of reduced 

significance, as the language is not ambiguous. 

Appellant did not dispute that she signed the document, and the trial 

court found her later, exculpatory explanations less than credible. The terms 

of the agreement speak for themselves. On the over-arching issue, Appellees 

plainly prevailed. Appellant sought to have the restrictive covenant declared 
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unenforceable. The trial court found that it was enforceable, as to Appellant. 

Appellant’s third issue does not merit relief. 

We now turn to Appellees’ three issues. Appellees’ first issue claims 

there was sufficient evidence for monetary damages. Applying our standard 

of review, we disagree. 

As already noted, we attribute the same force and effect to the trial 

court’s factual findings as to a jury verdict. See Rizzo, supra at 61. Here, 

the trial court found that Appellees failed to establish a direct causal effect 

from Appellant’s violation of the covenant not to compete to ascertainable 

monetary damages. (See Trial Ct. Op., at 9) (“The inability to itemize such 

loss through a causal connection between the breach and the damage is 

obvious in the trial testimony.”). On independent review, we discern no basis 

to disturb the findings of the trial court. 

Most conspicuously, Appellees offer only their own fluctuating sales 

results (as documented in tax returns) for proof of damages. Apparently, 

Appellees offered no expert analysis. They presented only minimal analysis 

of the impact of other competing beer distributors, and none concerning 

general economic conditions. 

Without more, attributing 100% of the drop in sales at Bob’s Beer to RT 

116 is a classic exercise of the fallacious logic of “post hoc, ergo propter 

hoc,” (“after this, therefore because of this”). See, e.g., Haney v. 

Pagnanelli, 830 A.2d 978, 987 (Pa. Super. 2003) (Bender, J., dissenting). 
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Post hoc describes “the fallacy of assuming causality from temporal sequence; 

confusing sequence with consequence.” (Id.) (citation omitted). Assuming 

that something which comes after a prior event is caused by the prior event, 

does not prove a causal connection, it merely assumes it. Appellees’ first 

claim does not merit relief. 

Appellees’ second claim asserts there was sufficient evidence for the 

trial court to enforce the covenant not to compete against non-signers, namely 

Dr. Prin and Michelle Prin. (See Appellees’ Brief, at 2). Appellees argue that 

Dr. and Mrs. Prin were “co-conspirators” with Ms. Bast. (Appellees’ Brief, at 

14). We disagree.

Our standard of review is well-settled. The Pennsylvania Supreme Court 

set forth the elements of civil conspiracy in Thompson Coal Co. v. Pike Coal 

Co., 412 A.2d 466, 472 (Pa. 1979): (“[It] must be shown that two or 

more persons combined or agreed with intent to do an unlawful act or 

to do an otherwise lawful act by unlawful means.”). Id. (emphasis 

added). Proof of malice, i.e., an intent to injure is an essential part of a 

conspiracy cause of action; this unlawful intent must also be without 

justification. See id. Furthermore, a conspiracy is not actionable until “some 

overt act is done in pursuance of the common purpose or design . . . and 

actual legal damages result.” Baker v. Rangos, 324 A.2d 498, 506 (Pa. 

Super. 1974) (citations omitted). 
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Here, Appellees fail to establish the elements of a conspiracy. Appellees 

argue that both Dr. Prin and Michelle Prin “were aware of the covenant signed 

by Joanne Bast.” (Appellees’ Brief, at 14). But mere awareness, even if 

conceded for the sake of the argument, does not establish the required 

elements of a conspiracy. 

The only Pennsylvania authority Appellees offer in support of their claim 

is Sklaroff v. Sklaroff, 106 A. 793 (Pa. 1919). (See Appellees’ Brief, at 15). 

Appellees’ reliance on that venerable but rarely cited case is misplaced. In 

Sklaroff, our Supreme Court affirmed a decision finding restraint of trade in 

an alleged scheme to monopolize a fish smoking and wholesale business which 

grew out of a family firm. It apparently involved surreptitious funding of a 

nominally independent competitor by one of the competing family factions. 

See Sklaroff, supra at 794. 

Here, Appellees fail to develop an argument establishing any meaningful 

connection between the abbreviated facts given in Sklaroff and their own

allegation of a general conspiracy in the case before us. In fact, in Sklaroff, 

neither “conspiracy” nor “conspire” is even mentioned. Appellees fail to 

establish that a conspiracy occurred in this case. Their second claim does not 

merit relief. 

In their third and final claim, Appellees challenge the trial court’s 

decision to award less counsel fees than the full amount requested. As already 
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noted, under controlling authority, we have only a limited power of review of 

court awarded fees. See Gilmore by Gilmore, supra at 1108–09. 

Here, the trial court explained that it reduced the attorneys fee 

requested in recognition of the reality that Appellees had not prevailed against 

all parties. (See Trial Ct. Op., at 16-17). Appellees’ minimal argument is 

made expressly contingent on prevailing as to the issues of monetary 

damages, and conspiracy liability for Dr. and Mrs. Prin. (See Appellees’ Brief, 

at 16). However, Appellees did not prevail on either of these claims. The 

claim for additional counsel fees is moot. 

As previously noted, the test on review is not whether we would have 

reached the conclusion of the trial court, but rather whether we reasonably 

could have reached the same result. See Rizzo, supra at 61. On 

independent review, we conclude that we reasonably could have reached the 

same result as the trial court. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/31/2018