J-S01045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEHIGH ANESTHESIA ASSOCIATION IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MICHAEL MELLON, CRNA

Appellee No. 1570 EDA 2015

Appeal from the Order May 5, 2015

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2012-C-3692

BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 26, 2016

Appellant, Lehigh Anesthesia Association (“LAA”), appeals from the 

order entered in the Lehigh County Court of Common Pleas, which granted 

summary judgment in favor of Appellee, Michael Mellon, CRNA. We affirm. 

The relevant facts and procedural history of this case are as follows. 

Appellee, a certified nurse anesthetist, began working for LAA in 2001. Both 

parties entered into a written employment agreement (“Agreement”) on 

September 24, 2001. Paragraph 9 of the Agreement contains a restrictive 

covenant, which states in relevant part:

9. Restrictive Covenant

A. In the course of inviting Employee to join 

Employer’s practice of anesthesia, and in his employment, 

he will be introduced to and have made available to him

certain of Employer’s contacts and referring doctor 

relationships, hospital sources, business and professional 
J-S01045-16

- 2 -

relationships and the like. Employee acknowledges that 

because he has not been in a private (fee-for-service) 

practice in anesthesia previously, he has no referring 

doctor or facility following in the area, nor does he have 

any substantial experience in the “business” of a private, 

fee-for-service anesthesia practice. 

Accordingly, Employee recognizes and agrees that 

termination of his employment for any reason followed by 

his entering into a business or practice competitive with 

that of Employer (i.e., the rendering of anesthesia services 

to clients of Employer), as an employee, owner, 

contractor, or otherwise, would allow Employee to take 

many of the sources of the Employer’s success with 

Employee to the ongoing practice’s detriment, for 

Employer would have established the Employee is in a 

situation that makes him a very strong competitor for the 

Employer’s current and potential practice sources. 

Therefore, Employee agrees that he will pay to 

Employer the amount specified below for each “client” of 

“Employer” for whom he, or his subsequent employers(s), 

employee(s), subcontractor(s) or the like, provide, 

services to within the twenty-four (24) months after 

termination of this Agreement. Any amounts payable 

hereunder shall be due in two (2) equal installments 

thirteen (13) and twenty-five (25) months after 

commencement of Employee’s competitive activity. 

For purposes of this Paragraph 9, “Employer” is defined 

to include Lehigh Anesthesia Associates, P.C., and the 

Center for Ambulatory Anesthesia, Inc., and Employer’s 

“clients” are clients of any of those entities. 

* * *

For this purpose, Employer’s clients are clients for 

whom Employer has provided any billable services within 

the forty-eight (48) months preceding Employee’s 

termination of employment. 

* * *

B. For the reasons described above, Employee 
J-S01045-16

- 3 -

further agrees he will not solicit any clients or contractual 

arrangement of the Employer or convert to his possession 

and/or disclose in any manner any contractual 

arrangements, patient lists, addresses or other data about 

the patients, clients, and/or contracts neither before nor 

after termination of his employment hereunder. All such 

information is hereby agreed to be confidential to 

Employer and of essential importance to its ongoing 

practice. All reasonable legal fees and costs incurred by 

Employer in connection with the enforcement of this 

subparagraph upon a breach hereof of Employee shall be 

paid by employee. 

(See Appellee’s Brief in Support of Motion for Summary Judgment, Exhibit D 

at 6-8; R.R. at 25a-27a). LAA subsequently terminated Appellee’s 

employment in May 2012, after receiving numerous complaints from 

patients and clients regarding Appellee’s poor work and behavior. 

Thereafter, Appellee began working for Professional Anesthesia Consultants, 

P.C. (“PAC”) in King of Prussia. While working for PAC, Appellee provided 

anesthetist services for Carlisle Endoscopy Center (“CEC”), one of LAA’s 

clients from 2001 until 2011. 

On September 6, 2012, LAA filed a praecipe for a writ of summons 

against Appellee. LAA filed a complaint on February 28, 2013, against 

Appellee that alleged breach of the Agreement’s restrictive covenant. 

Appellee filed on March 20, 2013, an answer with new matter and 

counterclaims. On April 11, 2013, LAA filed an answer and new matter to 

the counterclaims, to which Appellee replied. Appellee filed, on April 30, 

2014, a motion for summary judgment and a brief in support of his motion. 

LAA filed a response on May 30, 2014, as well as a memo in opposition to 
J-S01045-16

- 4 -

the summary judgment motion. Appellee filed a reply brief on June 10, 

2014. 

The court granted Appellee’s summary judgment motion on September 

2, 2014, as to all of LAA’s claims. Thereafter, Appellee filed a praecipe to 

discontinue his counterclaims. LAA timely filed a notice of appeal on May 

29, 2015. The court ordered LAA on June 5, 2015, to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

and LAA timely complied on June 25, 2015. 

LAA raises the following issues for our review:

DID THE TRIAL COURT ERR AS A MATTER OF LAW AND/OR 

ABUSE ITS DISCRETION IN HOLDING THAT BECAUSE 

[LAA] HAD TERMINATED [APPELLEE]—REGARDLESS OF 

THE REASON—THEN AS A MATTER OF LAW, [LAA] 

FORFEITED THE RIGHT TO ENFORCE THE CLIENTSPECIFIC RESTRICTIVE COVENANT IN [APPELLEE’S] 

EMPLOYMENT AGREEMENT, AND IN RELYING ON 

INSULATION CORP. OF AMERICA V. BROBSTON, 667 

A.2D 729 (Pa.Super. 1995) FOR THAT PROPOSITION? 

DID THE TRIAL COURT ERR AS A MATTER OF LAW AND/OR 

ABUSE ITS DISCRETION IN GRANTING [APPELLEE’S] 

SUMMARY JUDGMENT MOTION, AND REFUSING TO 

ENFORCE THE CLIENT-SPECIFIC RESTRICTIVE COVENANT 

IN [LAA’S] EMPLOYMENT AGREEMENT, ON THE BASIS 

THAT THE COVENANT WAS AIMED AT RESTRAINING 

[APPELLEE] “FROM THE EXERCISE OF HIS PROFESSION 

WITHIN CERTAIN GEOGRAPHIC...BOUNDS” WHEN THE 

COVENANT CLEARLY WAS NOT BASED ON ANY 

GEOGRAPHIC LIMITATION? 

DID THE TRIAL COURT ERR AS A MATTER OF LAW AND/OR 

ABUSE ITS DISCRETION IN GRANTING [APPELLEE’S] 

SUMMARY JUDGMENT MOTION AND REFUSING TO 

ENFORCE THE RESTRICTIVE COVENANT IN HIS 

EMPLOYMENT AGREEMENT ON THE BASIS THAT THERE 
J-S01045-16

- 5 -

WAS NO GENUINE ISSUE ON THE MATERIAL FACT AS TO 

WHETHER [LAA] HAD TERMINATED [APPELLEE] FOR POOR 

JOB PERFORMANCE? 

(LAA’s Brief at 5). 

In the issues combined, LAA argues the restrictive covenant at issue 

should be enforced. LAA claims the court’s reliance on Brobston, supra is 

misplaced in light of more recent case law that confirms LAA’s termination of 

Appellee does not automatically prohibit LAA as a matter of law from 

enforcing a restrictive covenant against Appellee. LAA also alleges the 

restrictive covenant did not prohibit Appellee from practicing his profession 

within a particular geographic area upon termination; the covenant allowed 

Appellee to provide anesthesia services at any facility so long as it was not 

one of the 40+/− medical offices or facilities in eastern and central 

Pennsylvania under contract with LAA or which had been under contract with 

LAA during the four-year period before Appellee’s termination. LAA claims 

Appellee violated these terms of the restrictive covenant when, after his 

termination in 2012, Appellee took a position with PAC in King of Prussia. 

While working for PAC, Appellee provided anesthesia services for CEC, one of 

LAA’s clients from 2001 until 2011. LAA asserts the court in this case 

misperceived there was some “geographic extent” to the restrictive 

covenant, as Appellee could have worked for any employer that did not meet 

the restrictive covenant definition of a “client.” LAA states it had a particular 

interest to protect and Appellee’s termination did not affect his ability to 
J-S01045-16

- 6 -

earn a living. LAA maintains there are genuine issues of material fact which 

barred summary judgment. LAA concludes this Court should reverse the 

order granting summary judgment and remand for further proceedings. We 

do not agree. 

Initially, we observe:

Our scope of review of an order granting summary 

judgment is plenary. [W]e apply the same standard as the 

trial court, reviewing all the evidence of record to 

determine whether there exists a genuine issue of material 

fact. We view the record in the light most favorable to the 

non-moving party, and all doubts as to the existence of a 

genuine issue of material fact must be resolved against the 

moving party. Only where there is no genuine issue as to 

any material fact and it is clear that the moving party is 

entitled to a judgment as a matter of law will summary 

judgment be entered. All doubts as to the existence of a 

genuine issue of a material fact must be resolved against 

the moving party. 

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of [his] cause 

of action. Summary judgment is proper if, after the 

completion of discovery relevant to the motion, including 

the production of expert reports, an adverse party who will 

bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or 

defense which in a jury trial would require the issues to be 

submitted to a jury. In other words, whenever there is no 

genuine issue of any material fact as to a necessary 

element of the cause of action or defense, which could be 

established by additional discovery or expert report and 

the moving party is entitled to judgment as a matter of 

law, summary judgment is appropriate. Thus, a record 

that supports summary judgment either (1) shows the 

material facts are undisputed or (2) contains insufficient 

evidence of facts to make out a prima facie cause of action 

or defense. 

Upon appellate review, we are not bound by the trial 
J-S01045-16

- 7 -

court’s conclusions of law, but may reach our own 

conclusions. The appellate Court will disturb the trial 

court’s order only upon an error of law or an abuse of 

discretion. 

Judicial discretion requires action in conformity with 

law on facts and circumstances before the trial court 

after hearing and consideration. Consequently, the 

court abuses its discretion if, in resolving the issue 

for decision, it misapplies the law or exercises its 

discretion in a manner lacking reason. Similarly, the 

trial court abuses its discretion if it does not follow 

legal procedure. 

* * *

Where the discretion exercised by the trial court is 

challenged on appeal, the party bringing the challenge 

bears a heavy burden. 

[I]t is not sufficient to persuade the appellate court 

that it might have reached a different conclusion 

if...charged with the duty imposed on the court 

below; it is necessary to go further and show an 

abuse of the discretionary power. An abuse of 

discretion is not merely an error of judgment, but if 

in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, 

bias or ill-will, as shown by the evidence or the 

record, discretion is abused. 

* * *

Glaab v. Honeywell Intern., Inc., 56 A.3d 693, 696-97 (Pa.Super. 2012) 

(quoting Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 60–62 

(Pa.Super. 2006) (internal citations and quotation marks omitted)). 

Contract construction and interpretation is a question of law for the 

court to decide. Profit Wise Marketing v. Wiest, 812 A.2d 1270, 1274 
J-S01045-16

- 8 -

(Pa.Super. 2002); J.W.S. Delavau, Inc. v. Eastern America Transport & 

Warehousing, Inc., 810 A.2d 672, 681 (Pa.Super. 2002), appeal denied, 

573 Pa. 704, 827 A.2d 430 (2003) (reiterating: “The proper interpretation of 

a contract is a question of law to be determined by the court in the first 

instance”). In construing a contract, the intent of the parties is the primary 

consideration. Tuscarora Wayne Mut. Ins. Co. v. Kadlubosky, 889 A.2d 

557, 560 (Pa.Super. 2005). 

When interpreting agreements containing clear and 

unambiguous terms, we need only examine the writing 

itself to give effect to the parties’ intent. The language of

a contract is unambiguous if we can determine its meaning 

without any guide other than a knowledge of the simple 

facts on which, from the nature of the language in general, 

its meaning depends. When terms in a contract are not 

defined, we must construe the words in accordance with 

their natural, plain, and ordinary meaning. As the parties 

have the right to make their own contract, we will not 

modify the plain meaning of the words under the guise of 

interpretation or give the language a construction in 

conflict with the accepted meaning of the language used. 

On the contrary, the terms of a contract are ambiguous if 

the terms are reasonably or fairly susceptible of different 

constructions and are capable of being understood in more 

than one sense. Additionally, we will determine that the 

language is ambiguous if the language is obscure in 

meaning through indefiniteness of expression or has a 

double meaning. 

Profit Wize Marketing, supra at 1274-75 (internal citations and quotation 

marks omitted). 

Where there is any doubt or ambiguity as to the meaning 

of the covenants in a contract or the terms of a grant, they 

should receive a reasonable construction, and one that will 

accord with the intention of the parties; and, in order to 

ascertain their intention, the court must look at the 
J-S01045-16

- 9 -

circumstances under which the grant was made. It is the 

intention of the parties which is the ultimate guide, and, in 

order to ascertain that intention, the court may take into 

consideration the surrounding circumstances, the situation 

of the parties, the objects they apparently have in view, 

and the nature of the subject-matter of the agreement. 

Giant Food Stores, LLC v. THF Silver Spring Development, L.P., 959 

A.2d 438, 448 (Pa.Super. 2008), appeal denied, 601 Pa. 697, 972 A.2d 522 

(2009) (internal citations and quotation marks omitted). In either event, 

“[T]he court will adopt an interpretation which under all circumstances 

ascribes the most reasonable, probable, and natural conduct of the parties, 

bearing in mind the objects manifestly to be accomplished.” E.R. Linde 

Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa.Super. 2013). 

The general rules of contract interpretation also apply in the context of 

restrictive covenants. Baumgardner v. Stuckey, 735 A.2d 1272, 1274 

(Pa.Super. 1999). Non-compete covenants in employment contracts exist to 

protect the rights of the employer. Hess v. Gebhard & Co., 570 Pa. 148, 

159, 808 A.2d 912, 918 (2002). These covenants are important business 

tools, because they allow employers to prevent their employees and agents 

from learning the employers’ business practices and then moving into 

competition with them. Id. Non-compete clauses permit an employer to 

protect its legitimate business interests, client base, good will, and 

investments in employees. WellSpan Health v. Bayliss, 869 A.2d 990, 

996 (Pa.Super. 2005). 

For a covenant not to compete to be enforceable in Pennsylvania, it 
J-S01045-16

- 10 -

must be: (1) ancillary to the employment relationship; (2) reasonably 

necessary for the protection of the employer; (3) reasonable in duration and 

geographic reach. Missett v. Hub Inter. Pennsylvania, LLC, 6 A.3d 530, 

538 (Pa.Super. 2010). For an employment restriction to be considered 

“ancillary to employment,” the restriction must relate to a contract of 

employment. Modern Laundry & Dry Cleaning Co. v. Farrer, 536 A.2d 

409, 411 (Pa.Super. 1987). So long as the employment restriction is “an 

auxiliary part of the taking of employment and not a later attempt to impose 

additional restrictions on an unsuspecting employee, such a covenant is 

supported by valid consideration and is therefore enforceable.” Id. 

Pennsylvania courts have consistently held the acceptance of employment is 

sufficient consideration to support a restrictive covenant. Brobston, supra

at 733; Modern Laundry & Dry Cleaning Co., supra at 411; Records 

Center, Inc. v. Comprehensive Management, Inc., 525 A.2d 433 

(Pa.Super. 1987). 

Nevertheless, 

Post-employment restrictive covenants are subject to a 

more stringent test of reasonableness.... This heightened 

scrutiny stems from a historical reluctance on the part of 

our courts to enforce any contracts in restraint of free 

trade, particularly where they restrain an individual from 

earning a living at his trade. This close scrutiny also stems 

from our recognition of the inherently unequal bargaining 

positions of employer and employee when entering into 

such agreements. The determination of whether a postemployment restrictive covenant is reasonable, and 

therefore enforceable, is a factual one which requires the 

court to consider all the facts and circumstances. A 
J-S01045-16

- 11 -

restrictive covenant found to be reasonable in one case 

may be unreasonable in others. 

Brobston, supra at 733-34 (internal citations omitted). “[A] postemployment covenant that merely seeks to eliminate competition per se to 

give the employer an economic advantage is generally not enforceable. The 

presence of a legitimate, protectable business interest of the employer is a 

threshold requirement for an enforceable non-competition covenant.” 

WellSpan Health, supra at 996-97 (citations omitted). “If the threshold 

requirement of a protectable business interest is met, the next step in 

analysis of a non-competition covenant is to apply the balancing test defined 

by our Supreme Court.” Id. at 999 (citing Hess, supra at 163, 808 A.2d at 

920). “First, the court balances the employer’s protectable business interest 

against the employee’s interest in earning a living. Then, the court balances 

the employer and employee interests with the interests of the public.” Id. 

To weigh the competing interests of the employer and employee, the court 

must conduct an examination of reasonableness. WellSpan Health, supra

at 999. 

To determine reasonableness, a covenant must be reasonably 

necessary for the employer’s protection, and the terms of the covenant must 

be reasonably limited in terms of the temporal and geographical restrictions 

imposed on the former employee. Id. (citations omitted). 

An [employee] may receive specialized training and skills, 

and learn the carefully guarded methods of doing business 

which are the trade secrets of a particular enterprise. To 
J-S01045-16

- 12 -

prevent an [employee] from utilizing such training and 

information in competition with his former employer, for 

the patronage of the public at large, restrictive covenants 

are entered into. They are enforced by the courts as 

reasonably necessary for the protection of the employer. 

A general covenant not to compete, however, 

imposes a greater hardship upon an [employee] 

than upon a seller of a business. An [employee] is 

prevented from practicing his trade or skill, or from 

utilizing his experience in the particular type of work 

with which he is familiar. He may encounter difficulty 

in transferring his particular experience and training to 

another line of work, and hence his ability to earn a 

livelihood is seriously impaired. Further, the [employee] 

will usually have few resources in reserve to fall back 

upon, and he may find it difficult to uproot himself and his 

family in order to move to a location beyond the area of 

potential competition with his former employer. 

Contrarywise, the mobility of capital permits the 

businessman to utilize his funds in other localities and in 

other industries.

Brobston, supra at 734 (citations omitted) (emphasis in original). 

Furthermore, “[w]hen...the covenant imposes restrictions broader than 

necessary to protect the employer, we have repeatedly held that a court of 

equity may grant enforcement limited to those portions of the restrictions 

that are reasonably necessary for the protection of the employer.” Hess, 

supra at 162-63, 808 A.2d at 920 (citation omitted). “If...an employer does 

not compete in a particular geographical area, enforcement of a noncompetition covenant in that area is not reasonably necessary for the 

employer’s protection.” WellSpan Health, supra at 1001. 

Moreover, 

Where an employee is terminated by his employer on the 

grounds that he has failed to promote the employer’s
J-S01045-16

- 13 -

legitimate business interests, it clearly suggests an implicit 

decision on the part of the employer that its business 

interests are best promoted without the employee in its 

service. The employer who fires an employee for failing to 

perform in a manner that promotes the employer’s

business interests deems the employee worthless. Once 

such a determination is made by the employer, the need to 

protect itself from the former employee is diminished by 

the fact that the employee’s worth to the corporation is 

presumably insignificant. Under such circumstances, we 

conclude that it is unreasonable as a matter of law to 

permit the employer to retain unfettered control over that 

which it has effectively discarded as worthless to its 

legitimate business interests. 

Brobston, supra at 735. Still, “the circumstances of termination are, 

alone, not determinative of whether the restrictive covenant is enforceable 

under Brobston.” Missett, supra at 539. 

Instantly, the trial court relied on Brobston and concluded:

[D]espite its asseverations in respect to the court’s duty to 

scrutinize the “fact[s] and circumstances” of each case, 

[LAA] nevertheless fails to point to any fact of record 

indicative of why the present matter is distinguishable 

from Brobston. Rather, perusal of [LAA’s] brief reveals 

merely the contention that the present restrictive covenant 

does not resemble to the sort of “unfettered control” to 

which Brobston adverted in arriving at is holding. The 

argument is unavailing. Here, as in Brobston, the subject 

covenant is aimed at restraining the previous employee 

from the exercise of his profession within certain 

geographic and temporal bounds. 

Additionally, [LAA] argues that even though an employee 

may be terminated for cause, he may still have 

“knowledge of protectable trade secrets, or significant 

customer contacts constituting protectable business 

interests.” However, such an argument misconstrues the 

import of Brobston. The disclosure of trade secrets 

remains actionable as a common law tort...but what 

Brobston proscribes is an employer discarding an 
J-S01045-16

- 14 -

employee deemed worthless by the organization while 

simultaneously asserting, through a restrictive covenant, 

that the employee is nevertheless capable of posing a 

competitive threat. The [Superior] Court, in fact, 

underscored this very point: “The salesman discharged for 

poor sales performance cannot reasonably be perceived to 

pose the same competitive threat to his employer’s 

business interests as the salesman whose performance is 

not questioned, but who voluntarily resigns to join another 

business in direct competition with the employer.” 

Brobston, supra [at 735-36]. As such, any “significant 

customer contacts,” so long as they do not constitute 

confidential information protected by the law of tort, 

cannot be deemed a legitimate business interest of the 

employer vis-à-vis a discarded employee. 

The facts and circumstances of this case reveal no genuine 

issue of fact on the issue of whether [LAA] terminated 

[Appellee] for what it deemed to be poor job performance. 

In view of [LAA’s] failure to point to any record evidence to 

refute such a conclusion, as a matter of law it cannot 

prevail on any claim based on the subject restrictive 

covenant. [Appellee] is, therefore, entitled to summary 

judgment in his favor on the claim. 

(Trial Court Opinion, filed July 2, 2015, at 4-6) (some internal citations 

omitted). The record supports this decision. An examination of the 

restrictive covenant at issue reveals that the terms are both ambiguous and 

overly broad or unreasonable. The covenant specifically prohibits Appellee 

from rendering anesthesia services to any of LAA’s current or former clients 

dating back to 2008. (See Appellee’s Brief in Support of Motion for 

Summary Judgment, Exhibit D at 6; R.R. at 25a.) The covenant defines 

“clients” as those “for whom [LAA] has provided any billable services 

[within] the forty-eight (48) months preceding [Appellee’s] termination of 

employment.” See id. Nevertheless, LAA interprets the term “clients” more 
J-S01045-16

- 15 -

broadly to include also businesses which conduct business with current and 

prior clients of LAA, even if these businesses have not been direct clients of 

LAA. By virtue of this unwarranted extension, LAA wants to hold Appellee in 

violation of the restrictive covenant because, after his termination, Appellee 

took a position with PAC in King of Prussia. While working for PAC, Appellee 

was asked to provide anesthesia services for CEC, which happened to be one 

of LAA’s clients from 2001 until 2011. Thus, the reach of the covenant 

terms is overly broad and cannot be understood to limit businesses in PAC’s

position. See Profit Wize Marketing, supra. There is no indication from 

the surrounding circumstances that the parties intended for the covenant to 

restrict Appellee by restricting his new employer. See Giant Food Stores, 

supra. The covenant restrictions in this regard are broader than necessary 

to protect LAA’s business interests. See Hess, supra. Interpreting the 

covenant so generally as to restrict Appellee from working for any employer 

that might happen to conduct business with one of LAA’s current or former 

clients places an undue hardship on Appellee in terms of finding potential 

future employment, especially when coupled with the unlimited geographical 

scope of the covenant. See Brobston, supra. Construing the restrictive 

covenant so broadly is not reasonably necessary to protect LAA, whereas it 

prevents Appellee “from practicing his trade or skill, or from utilizing his 

experience in the particular type of work with which he is familiar.” See id.;

WellSpan Health, supra. We conclude the court properly granted 
J-S01045-16

- 16 -

summary judgment in favor of Appellee. See Glaab, supra. Accordingly, 

we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2016