PFB Members' Service Corp. v. Eckenroad, T. ( 2020 )


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  • J-A25005-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    PFB MEMBERS’ SERVICE CORPORATION             IN THE SUPERIOR COURT
    OF PENNSYLVANIA
    Appellee
    v.
    TODD A. ECKENROAD
    Appellant               No. 801 MDA 2019
    Appeal from the Order Entered April 23, 2019
    In the Court of Common Pleas of Cumberland County
    Civil Division at No: 2019-02114
    BEFORE: STABILE, J., MCLAUGHLIN, J., AND MUSMANNO, J.
    MEMORANDUM BY STABILE, J.                            FILED APRIL 23, 2020
    Appellant, Todd A. Eckenroad, an accountant, appeals from an order
    granting Appellee, PFB Members’ Service Corporation, a preliminary injunction
    enforcing a noncompete covenant1 in Appellant’s employment agreement.
    The injunction decreed that for two years following Appellant’s resignation
    from Appellee, he could not provide accounting services to clients of Appellee
    whom he served during his final two years of employment, whether or not
    they continue to remain Appellee’s clients. The injunction was not limited to
    any geographic area. We hold that the court abused its discretion by imposing
    these terms in its order, and we vacate the preliminary injunction and remand
    this case for further proceedings.
    ____________________________________________
    1 Pennsylvania courts use the terms “noncompete covenant” and “restrictive
    covenant” interchangeably. We will use “noncompete covenant” in this
    opinion.
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    On November 30, 2018, Appellant resigned from his position as an
    accountant for Appellee.        On March 4, 2019, Appellee filed a civil action
    alleging that Appellant breached the noncompete covenant in his employment
    agreement. Two days later, Appellee filed a petition seeking a preliminary
    injunction against Appellant. On April 2, 2019, the trial court convened an
    evidentiary hearing on Appellee’s petition for injunctive relief.
    On April 23, 2019, the trial court issued an opinion and order granting
    Appellee a preliminary injunction. The court found the following facts:
    [Appellee] is a business organization with its principal office in
    Camp Hill, Cumberland County, Pennsylvania, that provides
    business services, primarily to Pennsylvania farmers, including
    accounting, payroll, and tax services.[2] [Appellant] is an adult
    individual residing in New Enterprise, Bedford County,
    Pennsylvania. From August 1, 2003, until November 30, 2018,
    when he left his employment with the title of senior account
    supervisor, [Appellant] was an at-will employee of [Appellee], and
    in the two years preceding his departure his assigned geographic
    territory was Bedford and Fulton Counties, Pennsylvania.
    As an account supervisor, [Appellant]’s duties consisted of
    providing business and accounting services, including payroll and
    tax preparation services, to [Appellee]’s clients. Prior to his
    departure, he had been servicing 104 such clients, which was in
    excess of the average clientele of 75 serviced by the remaining 34
    account supervisors.      Toward the end of 2018, [Appellee]
    announced an increase in fees for its services, as well as a
    reduction in compensation to its account supervisors, effective
    ____________________________________________
    2 Appellee is not simply an accounting firm or tax preparer. It is a general
    farm membership organization that provides an array of services to its
    members. For an annual membership fee, members can access discounts on
    rental cars, hotels, supplies, as well as access to Appellee’s warehouse facility,
    which sells agricultural products. For an additional fee, members can
    purchase accounting services (including tax preparation) and business
    analysis. N.T., 4/2/19, at 33-34.
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    January 1, 2019. The increase in fees precipitated a termination
    of their relationship with [Appellee] by a number of clients. By a
    letter dated November 16, 2018, [Appellant] advised [Appellee]
    of his intention to leave his employment, indicating:
    Because of the recent changes the company has
    decided to make, I can no longer continue my
    employment . . . . My last day will be November 30,
    2018. There is just no way my family and I can make
    it with the future loss of income that will be a result of
    the changes that have been made with the fee
    schedule and employee compensation package. I
    have already had clients leave and others that are
    planning to leave next year due to the fee increase. .
    ..
    Please know that I was not considering this until I was
    put in a position of needing to make this very difficult
    decision for the welfare of my family. I want to part
    on good terms.
    In leaving his position with [Appellee], [Appellant] did not advise
    any of [Appellee]’s clients in advance of his decision to do so.
    However, as of the hearing herein[,] 48 of the 104 clients he had
    been servicing had either cancelled or not renewed their
    relationship with [Appellee].3
    Shortly after leaving [Appellee]’s employment, [Appellant]
    opened “Eckenroad Accounting Services,” which he operates out
    of his home in Bedford County, Pennsylvania, and which is
    “dedicated to providing accounting services to small businesses
    and individuals in the area.” Services offered include personal tax
    preparation, partnership tax preparation, corporate tax
    preparation, tax planning visits, payroll quarterlies preparation,
    W-2 & 1099 preparation, and a free initial consultation.
    ____________________________________________
    3 This appears to be a minor misstatement. Based on our review of the
    preliminary injunction hearing transcript, we think the trial court meant to say
    that the number of Appellee’s clients in Bedford and Fulton Counties dropped
    from 104 to 48 after Appellant’s resignation. Thus, 56 of Appellee’s clients
    cancelled or declined to renew their memberships, not 48.
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    In assembling a clientele for his new business, which appears to
    be largely oriented toward preparation of tax returns and does not
    provide business consulting services, [Appellant] did not solicit or
    accept any clients of [Appellee] who remained with [Appellee].
    However, he did accept about 20 former clients who had chosen
    to terminate their relationship with [Appellee].
    The [July 22,] 2003 employment agreement executed by the
    parties    contemplated    [Appellant]’s   provision   of    “farm
    management counseling and tax reporting services to clients of
    [Appellee] in accordance with the procedures established from
    time to time by [Appellee] and under the supervision and direction
    of [Appellee].”      It indicated that [Appellant] would “be
    compensated in accordance with an Incentive Wage Program as
    established and amended from time to time by [Appellee] which
    [was to] be based upon, but not limited to, factors such as length
    of service, net gross revenue produced from accounts served, and
    other performance based upon standards to be determined by
    [Appellee].”
    The noncompete provision contained in [paragraph 6 of] the
    employment agreement provided, in pertinent part, as follows:
    B. Employee hereby provisions and agrees with
    Employer that, during the “Noncompete Period” and
    within the “Noncompete Area,” Employee shall not
    directly or indirectly, either as an employee,
    employer, consultant, agent, principal, partner,
    stockholder, corporate officer, director, or in any other
    individual or representative capacity, engage in or
    participate in any business which provides any goods
    or services competitive in any way with the goods and
    services provided by Employee for Employer under
    this Agreement nor shall Employee, directly or
    indirectly,   solicit   the     business       of    any
    customers/clients of the Employer or perform
    for such customers or clients, nor solicit the
    performance, neither in person nor through any other
    entity with which he/she is associated, any of the
    services of the nature of those performed by
    Employee for Employer.
    C. The “Noncompete Period” shall commence on the
    date hereof and terminate two (2) years after
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    expiration or termination of Employee’s employment
    with Employer under this Agreement.            The
    “Noncompete Area” shall be the geographic
    territory or territories assigned to Employee in
    the last two (2) years of his/her employment
    with Employer and shall be limited only to PFB
    members in said territory or territories . . .
    Trial Court Opinion, 4/23/19, at 1-3 (emphasis added).
    The trial court did not mention another provision in the noncompete
    covenant. Paragraph 6(E) states:
    E. All parties hereto acknowledge the necessity of
    protection against the competition of the Employee
    and that the nature and scope of such protection has
    been carefully considered by the parties.           Any
    geographic area covered is expressly acknowledged
    and agreed to be fair, reasonable and necessary. In
    the event any covenant in this paragraph . . . is held
    to be illegal, invalid or unenforceable because of the .
    . . geographic area covered thereby, or otherwise, the
    parties agree that the tribunal making such
    determination shall have the power to reduce . . . the
    area and/or other provisions of any such covenant to
    the maximum permissible and to include as much of
    its nature and scope as to render it enforceable, and
    in its reduced form said covenant shall be valid, legal
    and enforceable.
    Employment Agreement, ¶ 6(E).
    Appellee’s Human Resource Director, Kerri Zeigler, testified that
    Appellant serviced clients in Blair County as well as Bedford and Fulton
    Counties, and subsequent to Appellant’s resignation, Appellee’s clientele in
    Bedford, Fulton and Blair Counties fell from 104 to 48. Notes of Testimony,
    Hearing (“N.T.”), 4/2/19, at 21. Zeigler asserted that a fifty percent reduction
    in clients was unusual, and anything more than a ten percent reduction in
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    clients following an employee’s departure “would stand out.”
    Id. at 28.
    The
    loss of clients, said Zeigler, cost Appellee $87,985.00 in fees and $21,446.82
    in refunds.
    Id. at 23-24.
    In January 2019, Zeigler learned that Appellant
    went into business for himself and had his own website.
    Id. at 28.
    Appellant
    did not dispute that he had his own website when counsel for Appellee referred
    to it during his testimony.
    Id. at 57.
    Appellant testified that his assigned territory for Appellee included
    Bedford and Fulton Counties, but not Blair County.
    Id. at 73.
    The trial court
    accepted Appellant’s testimony on this point as true.     Trial Court Opinion,
    4/23/19, at 1. Appellant admitting preparing tax returns for seventeen of
    Appellee’s former clients after he left Appellee. N.T., 4/2/19, at 58-71.
    The noncompete covenant, Appellant argued, prohibits him only from
    soliciting or servicing persons who continue to remain Appellee’s clients, but
    it did not bar him from servicing persons who are no longer clients of Appellee
    and who approached him after he left Appellee. Appellant’s Brief in Opposition
    to Appellee’s Petition for Preliminary Injunction, 4/17/19, at 8-9. Appellant
    testified that (1) none of the twenty or so clients in question are currently
    clients of Appellee; (2) he never approached them about becoming his clients;
    (3) before leaving Appellee, he never told any of his clients that he was
    leaving; (4) after leaving, he did not solicit business from any client of
    Appellee; (5) the first question he asks anyone who approaches him is
    whether he is a current client of Appellee; and (6) if the person answers
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    affirmatively, he responds that he cannot serve him for two years.             N.T.,
    4/2/19, at 73-75.
    On April 23, 2019, the court held that the noncompete covenant was
    enforceable in part, stating:
    [A] number of factors militate against a full application of the
    restrictive covenant as drafted against [Appellant] at this
    preliminary stage of the case when [Appellee]’s evidence is tested
    by the prerequisites for a preliminary injunction, including the
    likelihood of ultimate success. First, [Appellant]’s termination of
    employment was arguably involuntary and without fault on his
    part, in the sense that it resulted from policy changes made by
    [Appellee]    which    rendered    his   continued     employment
    economically unfeasible.
    Second, while [Appellant]’s accounting business is in part
    competitive, with [Appellee]’s operation, it appears to be more of
    a typical small tax preparation service than a multi-service
    business consultant for agricultural enterprises. Third, the effect
    of a two year proscription on [Appellant]’s participation in his
    home county “in any business which provides any . . . services
    competitive in any way with the . . . services provided” under the
    agreement, however minuscule the degree of competition, would
    dramatically affect [Appellant]’s ability to practice his profession
    without a proportional benefit to [Appellee].
    On the other hand, it does appear to the court that [Appellee] is
    likely to prevail on the issue of whether [Appellant]’s covenant of
    accounting services to clients of [Appellee] he served in the last
    two years of his employment is enjoinable pursuant to a
    reasonable application of the covenant not to compete. In this
    regard, the loss of these clients is not insignificant to [Appellee],
    and it is not unreasonable to attribute it in part to the availability
    of [Appellant]’s accounting practice in the prohibited geographic
    area.
    Trial Court Opinion, 4/23/19, at 6. The court entered a preliminary injunction
    prohibiting Appellant “from providing accounting services to clients he served
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    on behalf of [Appellee] during the last two years of his employment with
    [Appellee], for the period prescribed in the parties’ employment agreement
    dated July 22, 2003.”
    Id. at 6-7.
    Appellant timely appealed to this Court pursuant to Pa.R.A.P. 311(a)(4),
    which permits automatic appeals from orders granting injunctions except in
    circumstances not relevant here. Both Appellant and the trial court complied
    with Pa.R.A.P. 1925. The trial court wrote in its Rule 1925 opinion:
    To the extent that [Appellant] . . . maintains that the court
    expanded the restrictive covenant at issue beyond its terms by
    disregarding the non-compete area and including clients who were
    not currently clients of [Appellee], the court would suggest that
    the preliminary injunction issued was far narrower than the
    covenant authorized. The evidence at the hearing tended to show
    that [Appellant] was operating an accounting business in Bedford
    County, Pennsylvania, which was in the non-compete area and
    was providing goods and services “competitive in any way with
    the goods and services provided” by him under the employment
    agreement. The first portion of the covenant not to compete
    contained an absolute prohibition on such a business, but the
    preliminary injunction issued limited its effect to service by the
    business of [Appellant]’s former clients within the prescribed
    period.
    Pa.R.A.P. 1925 Opinion, 5/23/19, at 2.
    Appellant raises three issues in this appeal:
    1. The noncompete [covenant] in this case is limited to certain
    counties and only applies to active members of PFB in those
    counties. Should this Court dissolve a preliminary injunction that
    enjoins [Appellant] from earning a living by serving former clients
    regardless of his geographic location, the former clients’
    geographic location, and the former clients’ membership status
    with Appellee?
    2. The noncompete [covenant] in this case is limited to only “PFB
    members.” There is no evidence that [Appellant] has ever served
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    a client that was a PFB member at the time. Should this Court
    reverse the trial court and dissolve the preliminary injunction?
    3. Under Pennsylvania law, noncompete contracts are construed
    strictly and against the employer. To the extent the phrase “PFB
    members” in the noncompete [covenant] is ambiguous as to
    whether it includes only current members or also former
    members, should that ambiguity be resolved in [Appellant]’s
    favor?
    Appellant’s Brief at 5. We agree with Appellant that the trial court abused its
    discretion by omitting any geographical restriction from the injunction and by
    prohibiting Appellant from representing Appellee’s former clients.
    The purpose of a preliminary injunction is to preserve the status quo
    that existed before the acts complained of and thereby prevent irreparable
    injury. Santoro v. Morse, 
    781 A.2d 1220
    , 1229 (Pa. Super. 2001).            The
    moving party must satisfy six requisites in order to obtain a preliminary
    injunction: (1) an injunction is necessary to prevent immediate and
    irreparable harm that cannot be adequately compensated by damages;
    (2) greater injury would result from refusing an injunction than from granting
    it, and, concomitantly, issuance of an injunction will not substantially harm
    other interested parties in the proceedings; (3) a preliminary injunction will
    properly restore the parties to their status as it existed immediately prior to
    the alleged wrongful conduct; (4) the moving party is likely to prevail on the
    merits; (5) the injunction is reasonably suited to abate the offending activity;
    and (6) an injunction will not harm the public interest.      Summit Towne
    Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 
    828 A.2d 995
    , 1001 (Pa.
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    2003).   We review orders granting preliminary injunctions for abuse of
    discretion.
    Id. at 1000.
    “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.”
    Id. “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].”
    Id. This standard
    of review is “highly deferential.” Duquesne
    Light Company v. Longue Vue Club, 
    63 A.3d 270
    , 275 (Pa. Super. 2013).
    Contract interpretation is a question of law, so our review of the trial
    court’s construction of contract language is de novo and our scope of review
    is plenary. Maisano v. Avery, 
    204 A.3d 515
    , 520 (Pa. Super. 2019). The
    fundamental rule in construing a contract is to ascertain and give effect to the
    intent of the contracting parties.
    Id. 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.
    Profit Wize Marketing v. Wiest, 
    812 A.2d 1270
    , 1274-75 (Pa. Super.
    2002). Moreover, “clauses in a contract should not be read as independent
    agreements thrown together without consideration of their combined effects.
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    Terms in one section of the contract, therefore, should never be interpreted
    in a manner which nullifies other terms in the same agreement.” Dominic’s,
    Inc. v. Tony’s Famous Tomato Pie Bar & Restaurant, Inc., 
    219 A.3d 259
    ,
    269 (Pa. Super. 2019).
    Contract principles apply to employment agreements, Profit 
    Wize, 812 A.2d at 1274-75
    , and, more particularly, to noncompete covenants within
    employment agreements. Missett v. Hub Inter. Pennsylvania, LLC, 
    6 A.3d 530
    , 541 (Pa. Super. 2010). In construing a noncompete covenant, “[c]ourts
    do not assume that a contract’s language was chosen carelessly, nor do they
    assume that the parties were ignorant of the meaning of the language they
    employed.    When a writing is clear and unequivocal, its meaning must be
    determined by its contents alone.” Synthes USA Sales, LLC v. Harrison,
    
    83 A.3d 242
    , 250 (Pa. Super. 2013). “[I]t is not the function of this Court to
    re-write it, or to give it a construction in conflict with . . . the accepted and
    plain meaning of the language used.”
    Id. at 250-51.
    Noncompete covenants in employment agreements allow employers to
    prevent employees and agents from learning their business practices and then
    moving into competition with them. Hess v. Gebhard & Co., 
    808 A.2d 912
    ,
    918 (Pa. 2002). This enables employers to protect their legitimate business
    interests, client base, good will and investments in employees. WellSpan
    Health v. Bayliss, 
    869 A.2d 990
    , 996 (Pa. Super. 2005). If an employee’s
    conduct falls within the four corners of a noncompete covenant, several other
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    conditions must be satisfied for that covenant to be enforceable. Specifically,
    the covenant must be (1) ancillary to the employment relationship,
    (2) reasonably necessary for the protection of the employer, and (3)
    reasonable in duration and geographic reach. 
    Missett, 6 A.3d at 538
    . The
    covenant is reasonably limited if it is “within such territory and during such
    time as may be reasonably necessary for the protection of the employer . . .
    without imposing undue hardship on the employee.”            Morgan’s Home
    Equipment Corp. v. Martucci, 
    136 A.2d 838
    , 844 (Pa. 1957).                   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 post-employment restrictive covenant
    is reasonable, and therefore enforceable, is a factual one which
    requires the court to consider all the facts and circumstances. A
    restrictive covenant found to be reasonable in one case may be
    unreasonable in others.
    Insulation Corp. of America v. Brobston, 
    667 A.2d 729
    , 733–34 (Pa.
    Super. 1995).
    The first issue raised by Appellant is whether the trial court abused its
    discretion by refusing to include any geographic limitation in the injunction.
    We hold that it did, because the plain language of the noncompete covenant
    did not authorize an injunction without any geographic limitation against
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    Appellant. Such an injunction not only was far broader than was necessary to
    protect Appellee’s interests, but it also was overly harmful to Appellant.
    The plain language of the noncompete covenant compels this outcome.
    Paragraph 6B of the noncompete provision prohibits Appellant from competing
    with Appellee during the “Noncompete Period” and within the “Noncompete
    Area”. The “Noncompete Area” is defined as the geographic area assigned to
    Appellant in the last two (2) years of employment,
    id., a limitation
    that the
    parties “expressly acknowledged and agreed to be fair, reasonable and
    necessary”, Employment Agreement, ¶ 6(E). The court credited Appellant’s
    testimony that his assigned territory during his final two years of employment
    was Bedford and Fulton Counties. Under the plain language of paragraphs
    6(B), (C) and (E), the court should have limited any injunction to these
    counties. Synthes USA Sales, 
    LLC, 83 A.3d at 250
    . The covenant did not
    authorize the court to impose an injunction without any geographic limitation.
    Id. In addition,
    the geographic scope of the injunction was improper because
    it was far broader than necessary to protect Appellee’s interests, 
    Missett, 6 A.3d at 538
    , and posed an undue hardship on Appellant’s ability to earn a
    living. Morgan’s Home Equipment 
    Corp., 136 A.2d at 844
    . Stated in terms
    of the six-part Summit Towne Centre test, Appellee is not likely to prevail
    on the merits of this issue (prong 4), an injunction without any geographic
    limitation is not reasonably tailored to abate any offending activity (prong 5),
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    and such an injunction will substantially harm Appellant’s interests (prong 2).
    Id., 828 A.2d
    at 1001.
    Next, Appellant argues that the trial court abused its discretion by
    prohibiting him from servicing individuals and entities who no longer are
    clients of Appellee. We agree, based on our review of paragraphs 6(B) and
    (C) of the noncompete covenant and the evidence of record.
    Paragraph 6(B) provides that for two years following the end of
    employment, Appellant cannot solicit the business or perform services for
    Appellee’s “customers/clients” within the “Noncompete Area” that are “of the
    nature” of the services he performed for Appellee. Paragraph 6(C) provides
    that the Noncompete Area shall be limited to “PFB members.” Construing
    these provisions in combination, as the law requires us to do, Dominic’s,
    
    Inc., 219 A.3d at 269
    , we think it clear that “customers/clients” is
    synonymous with “PFB members.” Moreover, the plain meaning of the terms
    “clients,” “customers” and “members” is current, existing clients, customers
    and members. Without the modifier “former”, these terms do not encompass
    past clients, customers or members. Had the parties intended to extend these
    terms to former clients, customers, or members, they would have expressly
    included “former” in the text.      Stated more simply, one cannot be a
    customer/client of Appellee if they no longer are PFB members.           Thus,
    Appellant is free to provide services to former customers, clients or members
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    of Appellee, i.e., customers, clients or members who left Appellee while
    Appellant was still employed by Appellee.4
    Appellant’s unrebutted testimony shows that he complied with the
    noncompete covenant by not soliciting or performing services for Appellee’s
    current clients or customers that are PFB members within his formerly
    assigned territory after leaving Appellee. After leaving Appellee, Appellant did
    not solicit business from Appellee’s clients or customers, and he only accepted
    business from Appellee’s former clients or customers who decided, on their
    own, to approach him following his departure from Appellee. Before accepting
    their business, he made sure they were not current clients or customers of
    Appellee.
    Therefore, the injunction against representing former clients and
    customers violates both prong 4 of the Summit Towne Centre test, since
    Appellee is not likely to prevail on this issue in later proceedings, and prong
    5, since it is not reasonably tailored to abate any offending activity.
    The trial court attempted to justify issuance of its preliminary injunction
    against servicing former clients of Appellee without any geographic limitation
    ____________________________________________
    4 Although we cannot locate any Pennsylvania decision on point, multiple other
    jurisdictions have held that noncompete covenants that purport to apply to all
    past clients are unreasonable because they are “so broad[] as to prohibit
    seemingly harmless conduct.” Seach v. Richards, Dieterle & Co., 
    439 N.E.2d 208
    , 214 (Ind. App. 1982); Leon M. Reimer & Co., P.C. v. Cipolla,
    
    929 F. Supp. 154
    , 159 (S.D.N.Y. 1996) (collecting cases).
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    by “suggest[ing] that the preliminary injunction issued was far narrower than
    the covenant authorized.”          Pa.R.A.P. 1925 Opinion, 5/23/19, at 2.   We
    disagree, because the covenant did not authorize the terms of the injunction.
    The law requires that when the meaning of a noncompete covenant is clear,
    the court must assume that the parties mean what they say and enforce the
    covenant in accordance with its plain meaning. Synthes USA Sales, 
    LLC, 83 A.3d at 250
    -51. In this case, the plain meaning of the noncompete covenant
    limited its reach for two (2) years after Appellant left Appellee’s employment
    to current clients of Appellee within Fulton and Bedford Counties. The court
    abused its discretion by disregarding the plain meaning of the noncompete
    covenant and enjoining Appellant from servicing Appellee’s former clients
    without geographic limitation.
    Accordingly, we reverse the order below and remand for further
    proceedings.5
    Order reversed. Case remanded for further proceedings in accordance
    with this memorandum. Jurisdiction relinquished.
    ____________________________________________
    5 In his third argument, Appellant requests that we construe any ambiguity in
    the noncompete covenant in his favor. We need not address this argument
    because we have determined that the pertinent provisions of the noncompete
    covenant are clear and unambiguous.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 04/23/2020
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