J-A22025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AIA AMERICAN INSURANCE 

ADMINISTRATORS, LLC 

Appellant

v.

JOSEPH G. BUYAKOWSKI

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 371 MDA 2020

Appeal from the Order Entered February 3, 2020

In the Court of Common Pleas of Cumberland County Civil Division at 

No(s): 2019-09423

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 22, 2021

Appellant, AIA American Insurance Administrators, LLC, appeals from 

the February 3, 2020 order sustaining the preliminary objections of Appellee, 

Joseph G. Buyakowski. After careful review, we quash.

The trial court set forth the following facts:

On October 26, 2010, the parties entered into an agreement 

that (1) [Appellant] would purchase [Appellee’s] business, 

Insurance & Surety, Inc.; and (2) that [Appellee] would begin 

employment with [Appellant]. To facilitate both the purchase of 

[Appellee’s] business and establish the terms of his employment, 

the parties entered into an Asset Purchase Agreement (“Purchase 

Agreement”) and an Employment Agreement. The agreements 

were prepared by [Appellant] and signed by all necessary parties. 

[Appellee] began work for [Appellant] on October 26, 2010, the 

day the agreement was signed and left employment on March 8, 

2019, approximately eight years and four months later. He then 

began working for M&T Bank.

On September 17, 2019, [Appellant] filed [its] complaint, 

alleging four counts: Count I, Breach of Contract of the 
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Employment Agreement; Count II, Conversion of assets acquired 

‘mostly’ through the Purchase Agreement; Count III, 

Misappropriation of Trade Secrets under the Uniform Trade 

Secrets Act, namely client lists, client financial information and 

contact information, and Count IV, Injunctive Relief based on 

restrictive covenants of the Employment Agreement.

On October 22, 2019, [Appellee] filed Preliminary 

Objections averring: (1) Counts I, II, and III should be dismissed 

because [Appellant] failed to follow both an internal dispute 

resolution mechanism pursuant to the Employment Agreement 

and an arbitration mechanism pursuant to the Purchase 

Agreement; (2) Count I must be stricken because the restrictive 

covenant contained in the Employment Agreement no longer 

applies; and, (3) Count II must be stricken because [Appellant] 

did not demand the return of any items, an element essential to 

a conversion claim. 

Trial Court Opinion, 2/3/20, at 1-2 (footnotes omitted).

On February 3, 2020, the trial court sustained Appellee’s preliminary 

objections to Count I, breach of contract, and dismissed the count. The court 

also sustained Appellee’s preliminary objections to Counts II and III and 

referred those counts to the arbitration process outlined in the Purchase 

Agreement. Order of Court In re: Defendant’s Preliminary Objections Before 

Placey and Smith, J.J., 2/3/20, at 1. The court did not specifically address 

Count IV of Appellant’s complaint.

Appellant filed its notice of appeal on February 28, 2020.

1

 By order of 

March 24, 2020, this Court directed Appellant to show cause within thirty days 

____________________________________________

1 The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) Statement of 

Errors Complained of on Appeal on March 2, 2020. Appellant had not filed the 

response by March 30, 2020, and due to the COVID pandemic, the trial court 
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why the appeal should not be quashed as interlocutory because the order did 

not dispose of all claims and an order directing claims to arbitration is not 

final. Order, 3/24/20. Appellant responded on April 22, 2020, averring that 

the appeal was proper under Pa.R.A.P. 341, 311(a)(4), and 313. Appellant’s 

Response to Order of the Superior Court Dated March 24, 2020 to Show Cause 

Why Appeal Should not be Quashed, 4/22/20. Following Appellant’s response, 

this Court discharged the show-cause order, per curiam, on April 23, 2020. 

Order, 4/23/20.

Appellant presents the following questions for our review:

1. Whether the trial court erred and abused its discretion in 

sustaining [Appellee’s] Preliminary Objection and finding that 

the material facts pled in [Appellant’s] claim in Breach of 

Contract (Count I) of the Complaint, together with all 

reasonable inferences deducted therefrom, viewed as a whole, 

and in the light most favorable to [Appellant], did not state a 

claim in Breach of Contract under the Employment Agreement 

for violations of the covenant not to compete upon which relief 

could be granted?

2. Whether the trial court erred in sustaining [Appellee’s] 

Preliminary Objections to [Appellant’s] claim in Breach of 

Contract (Count I) of the Complaint, stating the restrictive 

covenant of the Employment Agreement had expired and thus 

the Employment Agreement did not apply, without any 

discovery to ascertain the parties’ intent related to the 

Employment Agreement?

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sua sponte granted Appellant an additional seven days in which to file its 1925 

Statement. Although Appellant filed its statement on April 6, 2020, the trial 

court had not been served with a copy, but it acknowledged that the 

Cumberland County Court of Common Pleas was operating at a reduced 

capacity and waived service of the statement under Pa.R.A.P. 1925(b)(1). 

Statement in Lieu of Opinion Pursuant to Pa.R.A.P. 1925(a), 4/27/20, at 3.
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3. Whether the trial court erred in sustaining [Appellee’s] 

Preliminary Objections to [Appellee’s] claim in Breach of 

Contract (Count I) of the Complaint by stating the restrictive 

covenant of the Employment Agreement had expired and thus 

determining that the restrictive covenant had run while 

[Appellee] remained in the course of his employment with 

[Appellant], contrary to the sole purposes for which a noncompete is intended?

4. Whether the trial court erred in sustaining [Appellee’s] 

Preliminary Objections to [Appellant’s] claim in Breach of 

Contract [Count I] of the Complaint and dismissing Count I 

without granting an injunction whereby [Appellant] had pled 

facts sufficient to establish a basis for an injunction against 

[Appellee] based on his violations of the restrictive covenant 

under the Employment Agreement?

5. Whether Appellant’s appeal can be determined on its merits by 

this Honorable Court as an appeal of a final order pursuant to 

Pa.R.A.P. 341, or in the alternative, pursuant to Pa.R.A.P. 311 

based on the denial of the request for injunctive relief, or in the 

alternative, pursuant to Pa.R.A.P. 313, as an appeal of a 

collateral order?

Appellant’s Brief at 3-4. 

We initially address Appellant’s final issue because it directly relates to 

our ability to reach the merits of the appeal. McCutcheon v. Philadelphia 

Elec. Co., 788 A.2d 345, 349 (Pa. 2002) (“In this Commonwealth, there are 

few legal principles as well settled as that an appeal lies only from a final 

order, unless otherwise permitted by rule or statute.”). See also Mortgage 

Electronic Registration Systems, Inc. v. Malehorn, 16 A.3d 1138, 1141 

(Pa. Super. 2011) (“Generally an appellate court only has jurisdiction to 

review final orders.”); Davis Supermarkets, Inc. v. United Food and 

Commercial Worker, 533 A.2d 1068, 1070 (Pa. Super. 1987) (stating it is 
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this Court’s responsibility to determine whether an appeal is properly before 

us and noting “it is well settled that, unless otherwise permitted by statute, 

an appeal properly lies only from a final order.”). 

In support of its argument that we may reach the merits in the instant 

case, Appellant relies upon Pa.R.A.P. 341 as standing for the proposition that 

“if the practical effect of an order is to put an appellant out of court by 

precluding him from presenting the merits of his claim, the order is 

appealable.” Appellant’s Brief at 16. Pa.R.A.P. 341 states in relevant part:

(a) General rule.--Except as prescribed in paragraphs (d) and 

(e) of this rule, an appeal may be taken as of right from any 

final order of a government unit or trial court.

(b) Definition of final order.--A final order is any order that:

(1) disposes of all claims and of all parties;[.]

Pa.R.A.P. 341(a), (b)(1). Rule 341 was amended in 1992, and the notes to 

the rule set forth the following distinction between a final order before and 

after the 1992 amendment to the Rule:

The 1992 amendment generally eliminated appeals as of right 

under Pa.R.A.P. 341 from orders that do not end the litigation as 

to all claims and as to all parties. Prior to 1992, there were cases 

that deemed an order final if it had the practical effect of putting 

a party out of court, even if the order did not end the litigation as 

to all claims and all parties.
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Pa.R.A.P. 341, Note.2 See also Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa. 

Super. 2003) (“Generally, only final orders are appealable, and final orders 

are defined as orders disposing of all claims of all parties.”). In support of its 

appeal, Appellant avers that the trial court’s order, which dismissed Count I 

relating to breach of the non-compete agreement, was final as to all of 

Appellant’s claims against Appellee as it related to the Employment 

Agreement. Appellant’s Brief at 17. Appellant further avers that Counts II 

and III arose under the Purchase Agreement and posits that they should 

be treated as a separate claim accordingly, which claims were 

found by the lower court to be arbitrable under the Purchase 

Agreement. However, under the lower court’s Order, [Appellant] 

has no remaining avenue to proceed with its claims against 

[Appellee] under the Employment Agreement and thus has been 

put out of court with regards to the purported violations of the 

covenant not to compete in the Employment Agreement by 

[Appellee]. 

Appellant’s Brief at 17. Thus, Appellant argues that it has been put out of 

court with regard to the alleged violations of the Employment Agreement. Id. 

In its brief, Appellee responds that a grant of some of the preliminary 

objections filed by a party, which dispose of some but not all of the claims, is 

interlocutory and not appealable. Appellee’s Brief at 21 (citing Spuglio, 818 

A.2d at 1287). Appellee further argues that the cases relied upon by Appellant 

were filed before the rule changed in 1992, as discussed supra, when it was 

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2 The cases upon which Appellant relies in its brief were all decided before 

the 1992 amendment to the rule. See Appellant’s Brief at 16.
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sufficient that an order had the “practical effect” of putting a party out of 

court. Appellee also avers that an order requiring the parties to submit to 

arbitration is interlocutory and not appealable. Appellee’s Brief at 21 (citing 

Niemiec v. Allstate Ins. Co., 721 A.2d 807, 808 (Pa. Super. 1998)).

Pursuant to Pa.R.A.P. 341 and relevant case law, we find that the order 

at issue is not a final, appealable order. Indeed, “orders granting preliminary 

objections and disposing of some but not all of the underlying claims are 

interlocutory and unappealable.” Spuglio, 818 A.2d at 1287. Only Count I 

of Appellant’s complaint, relating to breach of the Employment Agreement, 

was sustained and dismissed. Counts II and III were sustained and referred 

to the arbitration process. Order, 2/3/20. “An order directing arbitration, 

whether statutory or common law, is an interlocutory order and is not 

immediately appealable.” Campbell v. Fitzgerald Motors Inc., 707 A.2d 

1167, 1168 (Pa. Super. 1988) (noting that order to arbitrate forces the parties 

into, rather than out of, court). Appellant has failed to show that the order at 

issue was a final order; thus, Pa.R.A.P. 341 does not confer jurisdiction on this 

Court. 

Alternatively, Appellant argues that it should be allowed an appeal as of 

right from an order denying an injunction pursuant to Pa.R.A.P. 311(a)(4).

That rule states, in relevant part, as follows:

(a) General rule.--An appeal may be taken as of right and 

without reference to Pa.R.A.P. 341(c) from:
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(4) Injunctions.--An order that grants or denies, modifies 

or refuses to modify, continues or refuses to continue, 

or dissolves or refuses to dissolve an injunction unless 

the order was entered:

(i) Pursuant to 23 Pa.C.S. §§ 3323(f), 

3505(a); or

(ii) After a trial but before entry of the final 

order. Such order is immediately 

appealable, however, if the order 

enjoins conduct previously permitted or 

mandated or permits or mandates 

conduct not previously mandated or 

permitted, and is effective before entry 

of the final order.

Pa.R.A.P. 311(a)(4)(i-ii). Appellant argues that pursuant to the rule, 

“[d]ismissal of the portion of a complaint requesting injunctive relief but 

leaving for trial a separate request for compensatory damages, constitutes an 

interlocutory order appealable as of right pursuant to Pa.R.A.P. 311(a)(4).” 

Appellant’s Brief at 18 (citing W. Pittsburgh P’ship v. McNeilly, 840 A.2d 

498 (Pa. Cmwlth. 2004)). Appellant further avers that in its claim for breach 

of the Employment Agreement, Count I, it requested injunctive relief 

preventing Appellee from continuing his alleged solicitation of Appellant’s 

clients. Appellant’s Brief at 19. In its prayer for relief in its complaint, 

Appellant seeks a preliminary and permanent injunction, preventing Appellee 

from, inter alia, contacting any previous or current clients of Appellant. 

Complaint, ¶¶ 47. Thus, Appellant asserts that “[b]y dismissing Count I of 

[Appellant’s] Complaint against [Appellee,] which was its sole cause of action 
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under the Employment Agreement, the lower [court] thus denied [Appellee’s] 

request for injunctive relief.” Appellant’s Brief at 19. 

In his brief, Appellee maintains that although Appellant claimed the 

order deprived Appellant of its ability to seek injunctive relief, injunctive relief 

was not addressed by the trial court. Appellee’s Brief at 24. Appellee further 

posits that Pa.R.A.P. 311 does not provide the means for Appellant to appeal 

because Count IV of Appellant’s complaint was the only count seeking 

injunctive relief, and Appellee did not file any objection to that count. Id. at 

24. Appellee further avers that Appellant is still able to seek a hearing on its 

request for an injunction. Id. at 25. 

After review, we find that Appellee did not file a preliminary objection

addressing Count IV, which sought injunctive relief. Moreover, Appellee did

not raise the issue of injunctive relief in his preliminary objections. Similarly, 

other than repeating the request for injunctive relief contained in its prayer 

for relief, Appellant does not discuss its request for a preliminary injunction in 

its responses to Appellee’s preliminary objections. Finally, we note that the 

trial court did not rule on Count IV in its opinion; indeed, the order is similarly 

devoid of any discussion of the preliminary injunction sought by Appellant. 

Order of Court, 2/3/20. Pursuant to Pa.R.A.P. 311(a)(4), an appeal is proper 

where the order “grants or denies or modifies or refuses to modify continues 

or refuses to continue, dissolves or refuses to dissolve an injunction....” 

Pa.R.A.P. 311(a)(4). In the instant appeal, Appellee did not object to Count 
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IV, which sought injunctive relief, and the trial court, therefore, did not issue 

a ruling on Appellant’s request for injunctive relief. Thus, we find the order is 

not one that grants or denies injunctive relief as required by 

Pa.R.A.P.311(a)(4). Thus, we hold the rule does not provide the avenue 

through which Appellant can take an appeal as of right. 

Finally, Appellant argues in the alternative that even if the appeal is not 

proper under Pa.R.A.P. 341 or 311, the appeal is proper under Pa.R.A.P. 313, 

relating to collateral orders. Pa.R.A.P. 313(b) defines a collateral order as “an 

order separable from and collateral to the main causes of action where the

right involved is too important to be denied review and the question presented 

is such that if review is postponed until final judgment in the case, the claim 

will be irreparably lost.” Pa.R.A.P. 313(b). 

In its brief, Appellant contends that it satisfies the requirements of 

Pa.R.A.P. 313 because Count I is separable from and collateral to the main 

cause of action because the remaining causes of action relate to the Purchase 

Agreement and not the Employment Agreement. Appellant’s Brief at 20. 

Appellant posits that the right is too important to be denied review because 

“the restrictive covenant contained therein has far reaching effects.” Id. at 

21. Finally, Appellant avers that its claim will be irreparably lost. Appellant 

argues, without relevant citation, that although it may proceed with its claims 

under the Purchase Agreement via arbitration, “any final decision by an 

arbitrator on said claims will not allow [Appellant] to appeal the dismissal of 
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its claims for breach of the covenant not to complete under the Employment 

Agreement by the lower court.” Id. at 22. 

In response, Appellee avers that Rule 313 is intended to be narrowly 

interpreted and strictly applied to prevent weakening of Pa.R.A.P. 341. 

Appellee’s Brief at 26 (citing Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003)). 

Appellee further argues that Appellant cannot show that Count I is separable 

from and collateral to the main cause of action because the question of 

whether the term at issue ended upon the termination of Appellee’s 

employment or the Employment Agreement, “speaks directly to the merits of 

the claim.” Appellee’s Brief at 27. Appellee also asserts that the right is not 

too important to be denied review noting that restrictive covenants are not 

favored in Pennsylvania and are viewed as a restraint on trade that restrains 

an individual’s right to earn a living. Id. (citing Hess v. Gebhard & Co., 808 

A.2d 912, 916 (Pa. 2002)). Finally, Appellee posits that Appellant cannot 

satisfy the third prong because there is no right that will be irreparably lost if 

review is postponed until final judgment because Appellant has not lost the 

right to seek monetary damages which will continue to accrue. Appellee also 

notes that Appellant’s right to injunctive relief has not been lost as Count IV, 

which seeks injunctive relief, remains viable. Id. at 28. 

It is well established in this Commonwealth that the collateral order 

doctrine and “Rule 313 must be interpreted narrowly, and the requirements 

for an appealable collateral order remain stringent in order to prevent undue 
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corrosion of the final order rule. To that end, each prong of the collateral 

order doctrine must be clearly present before an order may be considered 

collateral.” Kelly Systems, Inc. v. Leonard S. Fiore, Inc., 198 A.3d 1087, 

1091 (Pa. Super. 2018) (quoting Melvin, 836 A.2d at 46-47)). When our 

Supreme Court adopted this narrow construction, it “endeavor[ed] to avoid 

piecemeal determinations and the consequent protraction of litigation. Such 

piecemeal litigation imposes a substantial burden on the orderly 

administration of justice.” Kelly Systems, Inc., 198 A.3d at 1091. Finally, 

we note “every one of its three prongs must be clearly present before collateral 

appellate review is allowed.” Malehorn, 16 A.3d at 1142

Appellant fails to cite any case law in its discussion of the first prong of 

the collateral order rule. Appellant’s Brief at 20-21. Indeed, the discussion is 

limited to its assertion that it has satisfied that prong because “Count I of the 

Complaint (breach of contract under the Employment Agreement) can be 

separable from and collateral to the main cause of action, as the sole 

remaining causes of action arise under the Purchase Agreement between the 

parties and not the Employment Agreement.” Id. at 20. This bald assertion,

without any additional discussion or analysis, is not sufficient to show the 

order is collateral as required by our case law. See Malehorn, 16 A.3d at 

1142.

Moreover, even if we found Appellant satisfied the first prong, it would 

be unable to satisfy the second prong. Appellant posits that the right involved 
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is too important to be denied review because the “restrictive covenant 

contained therein has far reaching effects.” Appellant’s Brief at 21. However, 

Appellant fails to discuss those far-reaching effects and instead relies on the 

trial court’s order:

finding the Employment Agreement terminated while in the course 

of [Appellee’s] employment defeats the sole purposes for which a 

non-compete is intended, by finding the time period of a noncompetition agreement can begin to run while the employee is still

currently employed by that employer, a finding which is contrary 

to the underlying purpose of such non-compete agreements. 

Id. Here, the trial court’s order was based upon the specific language used 

by Appellant in the Employment Agreement and whether the language of the 

Employment Agreement/non-compete was triggered upon the end of the 

employment or the Employment Agreement. Trial Court Opinion, 2/3/20, at 

1-2. Appellant has not explained how this specific finding has far reaching 

effects. 

Moreover, it is clear that “the rights involved must implicate more than 

just the individual parties in the matter, and, instead, must be ‘deeply rooted 

in public policy going beyond the particular litigation at hand.’” K.C. v. L.A., 

128 A.3d 774, 779 (Pa. 2015) (quoting Commonwealth v. Williams, 86 

A.3d 771, 782 (Pa. 2014)). In K.C., our Supreme Court found “that the state’s 

paramount interest in the welfare of children and, as a result, in identifying 

the parties who may participate in child custody proceedings, demonstrates 

that [the a]ppellants’ claimed right to intervene satisfies the importance prong 

of the collateral order doctrine.” K.C., 128 A.3d at 780. Restrictive covenants 
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are not favored in Pennsylvania, “and have historically been viewed as a trade

restraint that prevents a former employee from earning a living.” Hess, 808 

A.2d at 917. Given that Appellant has failed to show any possible far-reaching

effects and the fact that restrictive covenants are not favored in Pennsylvania, 

we find Appellant has also failed to satisfy the second prong of the collateral 

order test. Thus, we hold Appellant has failed to show the order at issue is 

collateral as required by Pa.R.A.P. 313.

Because Appellant has failed to show that the order from which it has 

appealed is a final order or subject to the exceptions found in Pa.R.A.P. 341 

and Pa.R.A.P.313, we are without jurisdiction. Accordingly, we quash. 

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/22/2021