J-A06034-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HOWARD HANNA D/B/A HOWARD 

HANNA REAL ESTATE SERVICES 

Appellant

v.

MICHAEL HORNUNG, AN 

INDIVIDUAL; JENNIFER CROUSE, AN 

INDIVIDUAL; LEAH GEORGE, AN 

INDIVIDUAL; COMPASS, INC. F/K/A 

URBAN COMPASS, INC., A 

DELAWARE CORPORATION AND 

COMPASS PENNSYLVANIA, LLC, A 

DELAWARE LIMITED LIABILITY 

COMPANY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 967 WDA 2021

Appeal from the Order Entered August 6, 2021

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

No(s): GD 21-001894

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*

DISSENTING STATEMENT BY COLINS, J.: FILED: JUNE 23, 2022

Based upon the nature of the non-compete clauses at issue here, I agree 

with the learned Majority’s conclusion that this case falls within the capableof-repetition mootness exception. But see infra. However, I disagree with 

the Majority’s determination that the trial court abused its discretion in finding 

that Howard Hanna (“Hanna”) failed to establish that (1) a preliminary 

injunction was necessary to prevent immediate and irreparable harm from the 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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alleged breach by Appellees Jennifer Crouse and Leah George of their noncompete clauses that could not be adequately compensated by money 

damages and (2) greater injury would have occurred from denying the

preliminary injunction than from granting it. Therefore, I respectfully dissent. 

I begin my discussion with the well-established precept that this Court 

“exercises a highly deferential [abuse of discretion] standard of review with 

respect to the grant or denial of a preliminary injunction.” Pittsburgh 

Logistics Sys., Inc. v. Beemac Trucking, LLC, 249 A.3d 918, 923 (Pa. 

2021); see also Weeks v. Department of Human Services, 222 A.3d 722, 

727 (Pa. 2019). 

[O]n an appeal from the grant or denial of a preliminary 

injunction, we do not inquire into the merits of the controversy, 

but only examine the record to determine if there were any 

apparently reasonable grounds for the action of the court 

below. Only if it is plain that no grounds exist to support the 

decree or that the rule of law relied upon was palpably erroneous 

or misapplied will we interfere with the decision of the [trial court].

Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 

A.2d 995, 1000 (Pa. 2003) (citation omitted; emphasis added).

The trial court in this matter quite clearly set forth “apparently 

reasonable grounds,” supported by the preliminary injunction record, to 

bolster the court’s determination that Hanna failed to meet its burden of 

proving the first two preliminary injunction requirements. Summit Towne 

Centre, 828 A.2d at 1000 (citation omitted). Moreover, contrary to the 
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Majority, I do not believe that the trial court palpably erred when applying the

relevant legal standards. 

The trial court first found that Hanna failed to demonstrate that a 

preliminary injunction was necessary to prevent immediate and irreparable 

harm that could not be adequately compensated by money damages. See 

Pittsburgh Logistics, 249 A.3d at 934 n.7. Hanna attempted to show at the 

preliminary injunction hearing that it was harmed when, in the period covered 

by the non-compete agreements, Crouse and George listed multiple properties

within a five-mile radius of their prior Hanna offices and that these listings 

damaged Hanna’s existing client relationships as well as its goodwill in the 

Pittsburgh area. 

However, as the trial court recognized, the only harm that Hanna had 

proved it suffered at the injunction hearing was lost commissions on identified

home sales, which “could of course be calculated, and [Hanna] could therefore 

be adequately compensated in monetary damages.” Trial Court Opinion

(“TCO”), 10/25/21, at 4 (unnumbered). The evidence Hanna submitted at the 

hearing was confined to commissions on specific properties that Appellees 

listed within the five-mile exclusion area during the relevant non-compete 

terms. N.T., 6/3/21, at 57-72; N.T., 6/7/21, at 23-26, 39-49; Hearing 

Exhibits 3, 5-6, 8, 12-14. Thus, Hanna’s claimed damages related only to a 

limited number of properties and are readily amenable to calculation based 

upon Hanna’s commission schedules agreed to between Hanna and Appellees. 

See Amended Complaint, 3/23/21, Exhibit B ¶4, Exhibit C ¶4; see also 
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Summit, 828 A.2d at 1002-03 (irreparable harm is not shown where records 

are kept that allow for quantification of business loss); Greenmoor, Inc. v. 

Burchick Construction Co., Inc., 908 A.2d 310, 315 (Pa. Super. 2006) 

(monetary loss that is compensable via a breach of contract action and 

subsequent money judgment does not constitute irreparable harm).

Furthermore, the trial court appropriately concluded on the record 

before it that Hanna’s claimed harm of a loss of clients was belied by the fact 

that Hanna “repeatedly acknowledged that the clients and client loyalty . . . 

belonged to [Appellees] as self-employed independent contractors,” not to 

Hanna.1 TCO at 4. The evidence at the hearing showed that Hanna not only 

acknowledged, but actually promoted to prospective hires, that clients and 

client loyalty belong to the agent rather than Hanna. N.T., 6/17/21, at 118-

21; Hearing Exhibits G-I (recruiting material stating that “[m]aintaining your

clients” is a benefit of becoming a Hanna agent and that Hanna agents are 

permitted “[m]ore time focusing on their clients and growing their business”). 

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1 Hanna challenges this finding on appeal, arguing that the Sales Associate 

Agreements and Pennsylvania law both provide that listings are the property 

of real estate broker rather than agents. See 63 P.S. §§ 455.606, 

455.606a(b)(1); Amended Complaint, 3/23/21, Exhibit B ¶8, Exhibit C ¶8. 

Crucially, however, the question is not the ownership of the property listings—

there is no allegation that Appellees violated state law by transferring listings 

without the clients’ consent—but instead whether a departing Hanna agent 

can continue their relationship with their clients at a new brokerage. In any 

event, the sole question before this Court is whether there were any 

“apparently reasonable grounds” for the trial court’s finding that client loyalty 

belonged to Hanna’s agents. Summit Towne Centre, 828 A.2d at 1000 

(citation omitted). Here, the record supported the trial court’s finding as to 

client loyalty. 
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As the trial court explained in its ruling, Hanna did not present any evidence 

that it had a pre-existing relationship with Appellees’ clients whose sales 

allegedly violated the restrictive covenants. TCO at 4. Moreover, Hanna’s 

claims that Appellees’ actions harmed its overall goodwill and reputation in 

the Pittsburgh market were based upon vague, speculative testimony and 

were properly rejected by the trial court. See Summit, 828 A.2d at 1001-

02; Greenmoor, 908 A.2d at 315 (preliminary injunction must be based upon 

“concrete evidence” of irreparable harm to movant).

The Majority concludes that Hanna should not be penalized based upon 

the fact that it only showed “limited damages” but instead that irreparable 

harm existed as a result of “the threat of the unbridled continuation of the 

violation and resultant incalculable damage to [Hanna’s] business.” Majority 

Opinion at 10-11 (quoting John G. Bryant Co., Inc. v. Sling Testing & 

Repair, Inc., 369 A.2d 1164, 1167 (Pa. 1977)). However, what the Majority 

overlooks is that Hanna was not only required to allege ongoing, incalculable 

harm from the violation of the non-compete agreements, but it was also 

required to prove that such harm would occur. See West Penn Specialty 

MSO, Inc. v. Nolan, 737 A.2d 295, 299 (Pa. Super. 1999) (“[G]rounds for 

an injunction are established ‘where the plaintiff’s proof of injury, although 

small in monetary terms, foreshadows the disruption of established business 

relations which would result in incalculable damage should the competition 

continue in violation of the [restrictive] covenant.’”) (citation omitted). The 

trial court reasonably concluded that Hanna did not make such a showing. As 
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the trial court explained, not only are the claimed damages easily calculable 

from a discrete number of listings or sales within the designated five-mile area 

over a finite period of six or eight months, but the record also supported the 

conclusion that Appellees’ actions would not lead to an ongoing interference 

with Hanna’s customer base as Hanna’s policy was that client loyalty belonged 

to the agents, not Hanna. Cf. Rollins Protective Services Co. v. Shaffer, 

557 A.2d 413, 414-15 (Pa. Super. 1989) (to show irreparable harm in order 

to obtain a preliminary injunction to enforce a non-compete clause, the 

movant must show unwarranted interference with customer relationships, use 

of confidential information, or the like). 

The trial court’s well-reasoned finding that Hanna did not demonstrate

irreparable harm is alone sufficient grounds for this Court to affirm the denial 

of the preliminary injunction. See Pittsburgh Logistics, 249 A.3d at 934 

(appellate court shall affirm denial of preliminary injunction when it finds that 

trial court properly determined that any one of the six elements of standard 

was not met). Nevertheless, I would also hold that the trial court correctly

ruled that Hanna did not prove the second element of the preliminary 

injunction standard, that greater injury would result from refusing to grant 

the injunction than from granting it. Pittsburgh Logistics, 249 A.3d at 934 

n.7. 

The Majority determined that the trial court improperly balanced the 

large economic disparity between Hanna, a “well-established” real estate 

brokerage, against Appellees’ interest in earning a living in their chosen trade 
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and, in fact, the non-compete clauses only minimally affected Appellees from 

pursuing their vocation. Majority Opinion at 12-14 (quoting TCO at 5); see 

also AmQuip Crane Rental, LLC v. Crane & Rig Services, LLC, 199 A.3d 

904, 918 (Pa. Super. 2018) (noting that courts must avoid comparing the 

financial positions of a large employer to an individual employee who violates 

a non-compete clause as doing so would always weigh in favor of the 

employee whose livelihood would be affected by the enforcement of the 

restrictive covenant). 

However, I read the trial court’s ruling differently. The trial court 

focused on the fact that the only proven harm to Hanna from the denial of the 

injunction would be lost commissions on specific sales during the non-compete 

clause terms and it would not suffer incalculable harm on future sales in light 

of the fact that client loyalty belonged to Appellees. TCO at 4-5. As the trial 

court noted, Hanna would still be able to recover the lost commissions as 

damages if it ultimately prevailed in this litigation. Id. at 5. On the other 

hand, the trial court found, based upon ample testimony from the preliminary 

injunction hearing, that a much more pervasive harm would befall Appellees 

if they were prohibited from working as agents in the geographic area in which 

they focused their careers. Id. at 5; see also N.T., 6/3/21, at 93-96; N.T., 

6/17/21, at 20-21. The trial court’s balancing of harm thus was not based 

simply upon a comparison of the parties’ relative financial positions but instead 

was grounded on the fact that, under the unique facts of this case, Hanna 

simply had not proven any harm aside from compensable monetary damages.
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I additionally note one other point of disagreement with the Majority. 

The trial court here only ruled on the first two of the six elements of the

preliminary injunction standard. After finding that the trial court abused its 

discretion as to the first two elements, the Majority would remand to allow the 

trial court to address the remaining four prerequisites for a preliminary 

injunction. Majority Opinion at 14. 

While I agree with the Majority that we are permitted to address the 

issues raised by Hanna in the current appeal via the capable-of-repetition 

exception to the mootness doctrine, I do not believe that it would be a prudent 

use of judicial resources to stretch this exception farther to permit an 

additional round of litigation on a preliminary injunction to enforce the noncompete clauses that have long since lapsed. Therefore, even assuming I 

were to agree with the Majority’s analysis of the issues before us in this 

appeal, I would remand to the trial court solely for further litigation regarding 

the merits of the non-compete clauses.