J-A11042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LETTERLE & ASSOCIATES, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN J. TRESCHOW, AN :
INDIVIDUAL, AND P. JOSEPH :
LEHMAN, INC. : No. 1178 MDA 2016
:
Appellants :
Appeal from the Order Entered June 14, 2016
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2015-988
BEFORE: SHOGAN, MOULTON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 06, 2017
Steven J. Treschow (“Mr. Treschow”) and Joseph Lehman, Inc.
(“Lehman”) (collectively “Appellants”) appeal from the June 14, 2016, order,
which granted, in part, and denied, in part, the petition for a preliminary
injunction filed by Letterle & Associates, Inc. (“Letterle”).1 After a careful
review, we affirm, in part, and reverse, in part.
____________________________________________
1
This is an interlocutory appeal pursuant to Pennsylvania Rule of Appellate
Procedure 311(a)(4), which permits immediate appeal for “[a]n order that
grants or denies, modifies or refuses to modify, continues or refuses to
continue, or dissolves or refuses to dissolve an injunction[.]” Pa.R.A.P.
311(a)(4).
*
Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history are as follows: Mr. Treschow
was originally an employee of Chambers Environmental Group, Inc.
(“Chambers”); however, on September 12, 2011, Letterle, a company which
provides environmental consulting, purchased the assets of Chambers. By
letter dated September 30, 2011, Letterle offered Mr. Treschow
employment, with the condition that he execute a confidentiality, non-
solicitation, and intellectual property agreement (“Letterle Agreement”),
which Mr. Treschow did on that same date.
In relevant part, the Letterle Agreement provided that Mr. Treschow,
while employed by the company and for a period of two (2) years after
termination of his employment, would not “[s]olicit or induce, or attempt to
solicit or induce, any customer or prospective customer of the company with
which [Mr. Treschow] communicated with while employed by the
company[.]” Letterle Agreement, 9/30/11, at 2 ¶4(a). Further, the Letterle
Agreement provided that:
[Mr. Treschow] agrees to hold and safeguard for the benefit of
the company all confidential information acquired or developed
by him during the employment relationship. [Mr. Treschow] will
not...during the term hereof or thereafter, misappropriate, use
for [Mr. Treschow’s] own advantage, disclose or otherwise make
available confidential information to any person, except in the
good faith performance of [Mr. Treschow’s] job duties while
employed by the company to persons having a need to know
such information for the benefit of the company or its business.
Id. at 3 ¶5(a).
The Letterle Agreement defined “confidential information” as follows:
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Confidential Information means any materials or information
(whether in written, printed, graphic, video, audio, electronically
stored, disk or other format) regarding the company which (i) is
not generally known to the public or within the industry; (ii) was
acquired or learned by [Mr. Treschow] as a result of and during
employment with the company; and (iii) relates to the business
and affairs of the company and/or their respective customers.
Without limiting the generality of the term, it includes existing
and planned methods of operation, processes, programs,
product formulas, designs, marketing activities, research,
business expansion or divestiture plans; customer lists; the
identities of key personnel and the requirements of the
customers [of] the company; supply contracts or arrangements;
the identities, special skills and compensation arrangements of
key employees of the company; business plans and strategies;
financing arrangements; and any other non-public information
relating to the business and affairs of the company.
Id. at 1-2 ¶3(a) (italics in original).
On November 13, 2014, Mr. Treschow voluntarily ended his
employment with Letterle and commenced employment with Lehman, which
provides, in part, similar environmental services as those offered by Letterle.
Thereafter, one of Letterle’s clients, Raymond J. Avent of the Marmon
Group, LLC (“Marmon”), informed Letterle it had acquired the services of
another consultant. Another client, the Mount Union Fire Department,
informed Letterle that James Prohonic of Lehman had solicited its business.
Consequently, on January 12, 2015, Letterle sent a letter to Mr.
Treschow reminding him of his obligations under the Letterle Agreement and
requesting that he cease and desist from contacting Letterle’s clients. On
January 12, 2015, Mr. Treschow replied via a letter drafted by his counsel.
Therein, Mr. Treschow denied breaching the Letterle Agreement, disclosing
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any of Letterle’s confidential information, or soliciting any of Letterle’s
customers or employees. See Mr. Treschow’s Letter, dated 1/16/15. Mr.
Treschow indicated that any contact he “had with Letterle customers [was]
initiated by the customer and/or was of a personal nature. And, any
information that [he]...shared is generally known and/or is otherwise not
protect[ed] under Pennsylvania law.” Id.
In response, on March 6, 2015, Letterle filed a complaint in equity
seeking to enjoin Mr. Treschow from disclosing confidential information, as
well as from soliciting Letterle’s clients. See Letterle’s Complaint, filed
3/6/15, at 9.2 On June 12, 2015, Appellants filed an answer with new
matter, and on July 1, 2015, Letterle filed a response to Appellants’ new
matter.
During the course of discovery, on May 18, 2016, Letterle took the
depositions of Mr. Treschow and Martin T. Malone (“Mr. Malone”), who was a
Lehman employee. Thereafter, on May 20, 2016, Letterle filed a petition for
a preliminary injunction, indicating that the depositions “revealed certain
information making it necessary for [Letterle] to file the...petition.” See
Letterle’s Petition for Preliminary Injunction, filed 5/20/16, at 1. Specifically,
Letterle averred, in relevant part, the following:
____________________________________________
2
In the complaint, Letterle also requested the trial court enjoin Mr.
Treschow from working for Lehman, as well as requested the trial court
enjoin Lehman from engaging in unfair competition and interfering with the
contractual relationship between Letterle and Mr. Treschow.
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4. At the deposition,...[Mr.] Treschow admitted being in contact
with some of [Letterle’s] current clients as recent as last week.
5. [Mr.] Treschow further acknowledged ongoing work with some
of [Letterle’s] clients, said clients which are specifically
enumerated in [Letterle’s] client/customer lists.
6. [Mr.] Treschow testified that he looked at the Letterle
Agreement again after being put on notice by [Letterle’s] letter
of January 12, 2015. [Mr.] Treschow acknowledged he breached
the agreement by soliciting a prospective client of
[Letterle]....Said breach of [Appellants] is supported by an
Affidavit of Thomas Emero and produced to [Appellants][.]
7. [Mr.] Treschow testified he provided lists of prospective
clients to [Mr.] Malone on a weekly basis to be utilized in a
weekly marketing meeting at [Lehman].
***
9. Based on testimony of [Mr.] Martin...[Lehman] was not aware
of the restrictions placed on [Mr.] Treschow until they received
[Lehman’s] letter of January 12, 2015. However, since January
12, 2015, [Lehman] has not changed their pattern of behavior
with respect to solicitation of [Lehman’s] clients/customers.
10. [Letterle] will continue to suffer irreparable harm to its
reputation and business if [Appellants] are not enjoined, pending
a final hearing in this matter, from interfering with [Letterle’s]
customer relations, using or disclosing [Letterle’s] confidential
information and soliciting work from [Letterle’s] clients.
Id. at 1-3.
Accordingly, Letterle requested the following relief:
(a) [Appellants] are forthwith enjoined from working for or
soliciting in any form any of [Letterle’s] clients/customers; and
(b) [Appellants] are forthwith enjoined from using or disclosing
to any third party, [Letterle’s] confidential, proprietary or trade
secret information, including [Letterle’s] client/customer data
and files, and client/customer lists.
Id. at 3-4.
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On May 24, 2016, Appellants filed an answer to Letterle’s petition for a
preliminary injunction. With regard to Letterle’s request to enjoin Appellants
from soliciting customers, Appellants denied that Mr. Treschow had solicited
clients and “Mr. Treschow has refrained from soliciting any Letterle
customers and/or prospective customers with which he had contact while
employed by Letterle.” See Appellants’ Answer, filed 5/24/16, at 3.
With regard to Letterle’s request to enjoin Appellants from using or
disclosing to any third party Letterle’s confidential, proprietary or trade
secret information, Appellants admitted that Mr. Treschow provides a weekly
list of prospective customers to Mr. Malone; however, Appellants “specifically
denied that Mr. Treschow provide[s] a list of Letterle customers to Mr.
Malone.” Id. Appellants also denied that Mr. Treschow has “any ‘customer
list’ (list of Letterle customers) other than the customer list that [Letterle]
produced to [Appellants] in connection with [the] litigation.” Id. at 2.
Moreover, Appellants noted that Letterle’s “customers are well known and a
matter of public record[,]” and Mr. Treschow is “aware of these customers
through his own personal knowledge and memory, the information is not
protected.” Id. at 4, 7.
On May 24, 2016, the trial court held oral argument on the matter,
and on June 14, 2016, the trial court entered the following order:
[Letterle’s] petition for preliminary injunction is DENIED in
part and GRANTED in part. [Mr.] Treschow is enjoined from
using or disclosing to any third party [Letterle’s] confidential,
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proprietary or trade secret information, including [Letterle’s]
client/customer data and files, and client/customer lists.
Trial Court Order, filed 6/14/16.
In its accompanying opinion, the trial court clarified that it was
denying Letterle’s request to enjoin Mr. Treschow from soliciting Letterle’s
existing or prospective clients since Letterle failed to show that such relief
was necessary to prevent immediate and irreparable harm that could not be
adequately compensated by damages.3 See Trial Court Opinion, filed
6/14/16, at 3. Moreover, the trial court found that, although Mr. Treschow
may have solicited Letterle’s clients prior to the January 12, 2015, letter,
there was no evidence the conduct was ongoing or likely to cause immediate
harm. Id. at 3-5.
In granting Letterle’s request to enjoin Mr. Treschow from using or
disclosing Letterle’s confidential, proprietary, or trade secret information, the
trial court clarified it was granting Letterle’s request to enjoin Mr. Treschow
from using or disclosing Letterle’s customer lists, as well as Letterle’s clients’
data and files, as such constituted information not generally known to the
public or within the industry, was acquired by Mr. Treschow during his
employment, and related to the business affairs of Letterle. Accordingly, the
trial court found Letterle’s customer lists and client information met the
____________________________________________
3
As to Lehman, the trial court denied Letterle’s request to enjoin it from
soliciting Letterle’s clients since Lehman was not a party to the Letterle
Agreement. Trial Court Opinion, filed 6/14/16, at 3.
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definition of “confidential information” under the Letterle Agreement.
Further, the trial court concluded the information at issue constituted a trade
secret. Id. at 5-8.
In support of its conclusions, the trial court pointed to the following
factual findings: (1) When Mr. Treschow left Letterle, he had customer
contact information, including phone numbers, on his personal phone; 4 Id.
at 6; (2) Mr. Treschow forwarded information to his personal email account
shortly before his employment with Letterle ended, Id.; (3) Mr. Malone
testified that he maintains a customer list of “hot prospects,” and Mr.
Treschow attends the weekly meeting where the “hot prospects” are
discussed, Id.; (4) Mr. Treschow provided the name and personal cell phone
number of Terry Morder, Jr. of the Mount Union Fire Department to a
Lehman employee; Id. at 6-7, and (5) “While customer lists are not always
confidential, the [Letterle Agreement] specifically includes customer lists as
an example of confidential information[,]” Id. at 8. Accordingly, the trial
court concluded that Mr. Treschow had in his possession Letterle client
information and such information constituted legally protected confidential,
proprietary, or trade secret information of Letterle, which Mr. Treschow
____________________________________________
4
The trial court noted in its opinion that Mr. Treschow testified the phone
containing this information was destroyed in the washing machine. Id. at 6
n.1.
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should be enjoined from using or disclosing to third parties, including
Lehman. Id. at 8.
This appeal followed on July 14, 2016,5 and all Pa.R.A.P. 1925
requirements have been met.
On appeal, Appellants claim the trial court erred in granting Letterle’s
preliminary injunction enjoining Mr. Treschow from using or disclosing
Letterle’s customer data, files, and lists. In this regard, Appellants initially
claim that the activity Letterle seeks to restrain (the use and disclosure of
confidential, proprietary, trade secret customer information) is not
actionable in this specific case. Specifically, Appellants allege (1) Letterle
failed to prove Mr. Treschow was in possession of customer data, files, or
lists; (2) any customer data, files, or lists in Mr. Treschow’s possession did
not constitute confidential information under the Letterle Agreement as such
information was generally known to the public or within the industry; and
____________________________________________
5
On June 24, 2016, Appellants filed a motion for post-trial relief and/or
reconsideration. Generally, “[a] motion for post-trial relief may not be filed
to orders...relating to...proceedings which do not constitute a trial.”
Pa.R.Civ.P. 227.1 (c), Note. Thus, the motion at issue is more properly
considered under 42 Pa.C.S.A. § 5505, pertaining to motions for
reconsideration. See Jarl Investments, L.P. v. Fleck, 937 A.2d 1113
(Pa.Super. 2007) (holding pre-trial evidentiary order for preliminary
injunction immediately appealable without post-trial motions). Consequently,
absent an appeal, the trial court had thirty days in which to rule on the
motion. See 42 Pa.C.S.A. § 5505. Since the trial court did not rule on the
motion, Appellants properly filed a timely notice of appeal on July 14, 2016.
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(3) any customer data, files, or lists in Mr. Treschow’s possession did not
qualify for protection as a trade secret.
In reviewing preliminary injunction orders, “an appellate court is to
conduct a searching inquiry of the record. Accordingly,...the scope of review
in preliminary injunction matters is plenary.” Warehime v. Warehime,
580 Pa. 201, 860 A.2d 41, 46 n.7 (2004).
With regard to the standard of review, appellate review of a trial
court’s order granting or denying preliminary injunctive relief is “highly
deferential.” Summit Towne Centre, Inc. v. Shoe Show of Rocky
Mount Inc., 573 Pa. 637, 828 A.2d 995, 1000 (2003). This “highly
deferential” standard of review requires that:
[I]n reviewing a trial court’s grant or refusal of a preliminary
injunction, an appellate court does not inquire into the merits of
the controversy, but rather examines only the record to
ascertain whether any apparently reasonable grounds existed for
the action of the court below. We may reverse if the trial court’s
ruling amounted to an abuse of discretion or a misapplication of
law.
Warehime, 580 Pa. at 209, 860 A.2d at 46 (quotation marks, quotations,
and footnotes omitted).
Further, a preliminary injunction will not be granted unless the party
seeking the injunction establishes six essential elements. Id. Specifically,
that party has the burden of proving:
1) that the injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated by
damages; 2) that greater injury would result from refusing an
injunction than from granting it, and, concomitantly, that
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issuance of an injunction will not substantially harm other
interested parties in the proceedings; 3) that a preliminary
injunction will properly restore the parties to their status as it
existed immediately prior to the alleged wrongful conduct; 4)
that the activity it seeks to restrain is actionable, that its right to
relief is clear, and that the wrong is manifest, or, in other words,
must show that it is likely to prevail on the merits; 5) that the
injunction it seeks is reasonably suited to abate the offending
activity; and, 6) that a preliminary injunction will not adversely
affect the public interest.
Id. at 209-10, 860 A.2d at 46–47 (quotation marks and quotation omitted).
With regard to the fourth prong (whether the activity Letterle seeks to
restrain is actionable and Letterle’s right to relief is clear), we note the kinds
of business interests that are considered legitimate and protectable include
confidential information and trade secrets. Shepherd v. Pittsburgh Glass
Works, LLC, 25 A.3d 1233, 1244-45 (Pa.Super. 2011). In the case sub
judice, the trial court ruled that Letterle’s customer data, files, and lists were
protected as confidential information under the definition provided in the
Letterle Agreement. See Letterle Agreement, 9/30/11, at 1-2 ¶3(a).
Additionally, the trial court concluded that Letterle’s customer data, files,
and lists were entitled to protection as trade secrets.
Regarding the latter, we note “under certain circumstances, customer
lists and customer data may be entitled to protection as trade secrets.”
Iron Age Corp. v. Dvorak, 880 A.2d 657, 663 (Pa.Super. 2005) (citing
Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A.2d
838 (1957)).
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Whether such information is protected depends upon the
circumstances of its creation. We have previously held that:
“[i]n many businesses, permanent and exclusive
relationships are established between customers and
salesmen. The customer lists and customer
information which have been compiled by such firms
represent a material investment of employers’ time
and money. This information is highly confidential
and constitutes a valuable asset. Such data has
been held to be property in the nature of a ‘trade
secret’ for which an employer is entitled to
protection, independent of a non-disclosure
contract.”
Robinson Electonic Supervisory Co. v. Johnson, [397 Pa.
268], 154 A.2d 494, 496 (1959) (emphasis added); see also
Bell Fuel Corp. [v. Cattolico], 544 A.2d [450], 460 [(Pa.Super.
1988)] (stating that “[w]here the information is not a particular
secret belonging to the employer, developed through its efforts
or investment, and of value to the continuation of the employer’s
business, no protection is afforded”).
A.M. Skier Agency, Inc. v. Gold, 747 A.2d 936, 940 (Pa.Super. 2000)
(emphasis in original) (internal citation omitted). See Shepherd, 25 A.3d
at 1244 (“A trade secret does not include an employee’s...skill,...mental
ability, or other subjective knowledge.”) (quotation and quotation marks
omitted)); Iron Age Corp., 880 A.2d at 663-64 (“[I]information will not be
given injunctive protection as a trade secret if it can be obtained through
legitimate means by a competitor....[T]o be classified as a trade secret,
information must be an employer’s actual secret and not comprise mere
‘general trade practices.’”) (quotation marks, quotations, and citations
omitted)).
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With these legal precepts in mind, we turn to an examination of the
record to determine whether there are “any apparently reasonable grounds”
for the trial court’s preliminary injunction enjoining Mr. Treschow from using
or disclosing Letterle’s customer data, files, and lists. See Warehime,
supra; Summit Town Centre, Inc., supra.
With regard to the trial court’s finding that Mr. Treschow stored
Letterle’s customer information on his personal cell phone, the following
transpired upon questioning of Mr. Treschow by Letterle’s counsel during the
deposition:
Q: Did you use the same cell phone that you had at the time you
were employed by Letterle as when you were employed by
Lehman?
A: Yeah, it was my personal cell phone.
Q: It was your personal cell phone?
A: Yeah.
Q: Did it have business contacts on it?
A: Not contacts. If clients chose to call me on that phone, which
actually they’re no longer stored on there because my phone
went through our washer at home, and—so I had to get a new
phone a couple of months ago. So a lot of those contacts are no
longer there.
***
Q: Is it possible Terry Morder’s information resided on your cell
phone?
A: It’s possible, yes.
Q: Okay. Is it possible other people’s contact information
resided on that cell phone?
A: It’s possible, yes.
Q: Okay. When did that cell phone go through the washing
machine?
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A: Somewhere like four to six months ago.
Steven Treschow Deposition, 5/18/16, at 64-65, 150-51.
With regard to the trial court’s factual finding that Mr. Treschow
forwarded Letterle’s clients’ email addresses and/or had possession of a
customer list, Mr. Treschow testified as follows upon questioning by
Letterle’s counsel:
Q: Okay. When you left Letterle, did you take any kind of
customer list with you?
A: No.
Q: Any printed list?
A: No
Q: Anything off a computer?
A: No.
Q: Okay. Did you retain business cards of any contacts that you
may have made while you were at Letterle?
A: I don’t know.
Q: Okay. Did you—some people, as a regular course of business,
maintain a business card file or a folder of some sort. Do you do
that?
A: I have one, but in all honesty, with the electronic age, not too
many people carry business cards anymore.
Q: Okay. Did you have any kind of, whether it’s the actual cards
or any kind of indexing on the computer, did you maintain, in
electronic or paper format, those business contacts?
A: I did not.
Q: So when you went to work at Lehman, you had no
information regarding customer contacts you had while you were
at Letterle—is that accurate?
A: No.
Q: You did not have any of those contacts?
A: I did not.
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Q: Okay. Did you have Terry Morder’s cell phone number?
A: Not to my knowledge.
Q: Did you download on any kind of drive, external drive or flash
drive or USB port, your contact listing off of your computer from
Letterle?
A: No.
Q: Did you forward any emails from your Letterle account to
your personal email account?
A: I don’t remember.
Q: Okay. Did you maintain a personal email account?
A: I have one, yes.
Q: Okay. Is it the Hotmail account we saw?
A: Yeah.
***
Q: Okay. Do you know how Jim Prohonic would have gotten
Terry Morder’s personal cell phone number?
A: I don’t know.
Q: Okay. Do you recall giving that phone number to Jim
Prohonic?
A: I don’t.
Q: Do you recall Jim asking you for his phone number?
A: No.
***
Q: This is an affidavit that Mr. Morder provided to us.
***
A: Yes.
***
Q: Paragraph 11, [states] [o]n or around December 9th, I
received a phone call on my personal cell phone from Jim
Prohonic, who said he obtained my name and cell number from
[Mr. Treschow].
Would you agree with that?
A: No.
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Q: Okay. So your testimony is you did not provide that
information to Jim?
A: I probably....I likely provided the name, but I did not provide
the cell phone number.
Id. at 87-89, 95.
Further, during discovery, Letterle asked Mr. Treschow to produce any
emails he had sent to Letterle’s customers or prospective customers after he
was hired by Lehman. Id. at 126-27. During the deposition, Letterle’s
counsel asked Mr. Treschow how he examined his email to comply with the
discovery request, and Mr. Treschow indicated that he conducted a “broad
search for certain names, not a specific list, but just certain names.” Id. at
128. Moreover, with regard to Mr. Treschow forwarding emails from his
Letterle work account to his personal Hotmail account, Mr. Treschow
admitted that, while working for Letterle, he forwarded an email from Mr.
Emero to his personal Hotmail account, but he could not remember whether
he had forwarded any other client contact emails. Id. at 148-49.
With regard to the trial court’s finding that Mr. Treschow provided Mr.
Malone of Lehman with “hot prospects,” Mr. Treschow testified as follows at
his deposition upon questioning by Letterle’s counsel:
Q: Okay. [Marty] Malone described weekly staff meetings with
the directors at Lehman.
A: Yes.
***
Q: Do you attend those meetings?
A: Sometimes.
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Q: Okay. Do you provide prospect lists during those meetings?
A: We usually provide weekly prospects to Marty, and Marty
handles all the prospects.
Q: Okay. How do you provide Marty a prospect list?
A: Usually by Excel spreadsheet.
Q: Okay. Is it a running list, meaning you just add to it, or do
you provide him a new spreadsheet weekly?
A: Usually a new spreadsheet.
Q: Okay. Do you retain copies of those?
A: I don’t. I just overwrite one from one week to the other.
Q: Do you know if Marty maintains those?
A: I don’t know.
Q: Okay. What do you do at the meetings with that prospect
list?
A: You really only discuss new prospects. And really all we do is
say, Okay. Here’s a new prospect.
Q: Okay. Did you ever include the Marmon Group as one of your
new prospects?
A: No.
Q: Did you ever discuss Marmon at any of those meetings?
A: Marmon was discussed, yes.
Q: Okay. In what context was Marmon discussed?
A: Marmon was discussed after they became a client of Lehman.
Q: Okay. How did they become a client of Lehman?
A: Mr. Ray Avent, who is [the] environmental manager for
Marmon, called me shortly after my employment with Lehman
and wanted to retain my services.
Q: Okay. How did Mr. Avent find you?
A: We are associates on LinkedIn, and Mr. Avent has my
personal cell phone number and knows where I live and knows
my wife and, so....
***
Q: You made no contact with him—well, let me ask this. Did you
make any contact with him when you left Letterle?
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A: I believe I may have sent the same email I sent to a lot of
people, just saying, I’m leaving Letterle. The person taking over
your project will be Jed Hill, and that’s it. So I believe that’s
what I sent him.
***
Q: Okay. Did you send that email to a specific list of people?
A: Not really, just people that [Letterle], obviously, did work for
or were in the process of doing work for, that I wanted to make
sure there was some kind of transition, that they knew that I
was going, but that they would be taken care of.
Q: Okay.
A: But there was no specific list.
***
Q: Okay. Did you feel sharing the name Terry Morder with Jim
Prohonic was a violation of the nonsolicitation agreement?
A: No.
Q: Okay. And why not?
A: That information can be readily obtained.
***
Q: Okay. But you did not feel that their actual customer list was
confidential; is that accurate?
A: That’s accurate.
Q: So you felt you could share the customer list with Lehman; is
that accurate?
A: No. I never shared a customer list with Lehman.
Id. at 92-95, 99, 101-02, 118.
With regard to the instance involving the Mount Union Fire
Department, as the trial court indicated, Mr. Treschow admitted that an
employee of Lehman, James Prohonic, asked Mr. Treschow for the name of
the contact at the Mount Union Fire Department. Id. at 63. Mr. Treschow
testified he gave Mr. Prohonic the name of the fire chief, but he did not
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provide him with a phone number. Id. at 64. Mr. Treschow noted that Mr.
Prohonic was independently aware that the Mount Union Fire Department
was a customer of Letterle’s as he had driven by the fire hall when Letterle
employees were performing work at the site. Id. at 63-64.
Further, it bears mentioning that Mr. Treschow denied providing
Lehman with the client contact information for Worley & Obetz, Trican Well
Services, or Jeld-Wen, who were clients of Letterle. Id. at 121-23, 136. He
also denied including their names, as well as many other business names, on
any prospective client list, which he provided to Mr. Malone during his
employment with Lehman. Id. at 140-144, 147. He confirmed that the
Mount Union Fire Department was the only former client of Letterle about
which Mr. Prohonic asked. Id. at 148. Mr. Treschow noted that he did not
have a client list from Letterle; however, even if he did, it would have been
of little value since “a lot of the work that [Letterle] had was at the final
stages of the project life, and there was very little work left.” Id. at 152.
Martin Malone testified at his deposition that, prior to Lehman hiring
Mr. Treschow, Mr. Malone met with Mr. Treschow to determine whether he
would “fit in” with Lehman. Martin Malone Deposition, 5/18/16, at 15.
During the meeting, the men did not discuss Letterle’s client base or discuss
any specific clients. Id. at 16, 26. Mr. Malone noted that, upon Lehman
hiring Mr. Treschow, Lehman issued a press release to the industry, but it
was not sent to any specific clients. Id. at 37-38.
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Mr. Malone indicated that Lehman has weekly marketing meetings at
which prospective clients are reviewed. Id. at 40. Mr. Malone referred to
these as “hot prospects.” Id. He testified that Mr. Treschow attends these
meetings and presents “a list of prospects[.]” Id. at 41. Letterle’s counsel
asked Mr. Malone whether any of the following clients were placed on the list
by Mr. Treschow as possible “hot prospects:” Marmon, United Refining
Company, PWI, Inc., Worley & Obetz, and Trican Well Services. Id. at 42-
44. With regard to each business, Mr. Malone testified either that he could
not remember whether they were presented as prospective clients or that he
did not believe they had been presented as such. Id. Mr. Malone testified
the only client he could remember Mr. Treschow presenting was Sheetz. Id.
at 44. However, Mr. Malone indicated that he remembered Marmon being
discussed at one of the weekly meetings, although he could not remember in
what capacity. Id. at 47. He did not remember Mr. Treschow providing
anyone with a contact name for Marmon, and he was unaware of any
meetings that Lehman had with Mr. Avent of Marmon. Id. at 47-48.
Upon questioning by Letterle’s counsel, Mr. Malone testified as follows
regarding Mr. Treschow’s possession of a client list:
Q: Okay. Did you ever see a list from [Mr. Treschow] of clients?
Did you ever see any kind of list generated by [Mr. Treschow], or
did he ever provide a list of clients.
A: A list of our clients?
Q: A list of clients in any form. Did you ever see a list of clients
from him when he first became employed?
A: Not that I remember.
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Q: Okay. Do you recall at any of those meetings whether he
was ever able to provide a list?
A: Would you ask me that again, please?
Q: Sure. At the Monday or Friday meeting, did he ever come
with a list of clients?
A: Not that I recall, no.
Id. at 50-51.
In addition to the depositions of Mr. Treschow and Mr. Malone, the
record contains the sworn affidavits of Terry Morder, Jr., dated February 20,
2015, and Thomas D. Emero, dated November 4, 2015.
Mr. Morder, of the Mount Union Fire Department, confirmed in his
affidavit that he was Mr. Treschow’s contact when he worked for Letterle.
See Affidavit of Terry Morder, Jr., dated 2/2/15. Mr. Morder indicated that,
after Mr. Treschow left Letterle, he received a telephone call on his personal
cell phone from Mr. Prohonic of Lehman, who indicated “he obtained [Mr.
Morder’s] name and cell phone number from [Mr.] Treschow.” Id. at 2. He
indicated the purpose of Mr. Prohonic’s call was to solicit him as a client for
Lehman.
Mr. Emero, of the Clinton County Economic Partnership, confirmed in
his affidavit that he met with Mr. Treschow when he was employed at
Letterle for the purposes of discussing a proposal. See Affidavit of Thomas
D. Emero, dated 11/4/15. Mr. Emero indicated that, just prior to leaving
Letterle, Mr. Treschow solicited him in an attempt to gain business for
Lehman. Id. at 2.
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Upon conducting an extensive review of the record, we conclude there
are no “apparently reasonable grounds” for the trial court’s order
preliminarily enjoining Appellants from “using or disclosing to any third party
[Letterle’s] confidential, proprietary or trade secret information, including
[Letterle’s] client/customer data and files, and client/customer lists.” Trial
Court Order, filed 6/14/16. See Warehime, supra.
With regard to Letterle’s customer files and lists, the evidence reveals
that, aside from a list of customers provided by Letterle during the litigation,
Mr. Treschow did not have in his possession any customer files or lists.
While Mr. Malone maintained such a list for Lehman, there is no evidence Mr.
Treschow had such a list of Letterle customers.
Moreover, as to whether Mr. Treschow had in his possession any
Letterle customer data, the evidence reveals that Mr. Treschow had a
personal cell phone on which the numbers of Letterle customers were
captured when they telephoned Mr. Treschow; while he was working for
Letterle, Mr. Treschow forwarded an email from Mr. Emero to his personal
Hotmail email; and Mr. Treschow had the name and cell phone number of
the fire chief of the Mount Union Fire Department, Mr. Morder, who was a
Letterle customer.
However, inasmuch as this customer data was developed in the
normal course of business, was not compiled by Letterle, and could have
been obtained through legitimate means, we agree with Appellants that the
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trial court abused its discretion in ruling such customer data to be a Letterle
trade secret. See Iron Age Corp., 880 A.2d at 663 (indicating there is no
legal incentive to protect customer data compiled in the normal course of
business); A.M. Skier Agency, Inc., supra (holding where customer
lists/data is not compiled by employers, may be obtained through legitimate
means, and is no particular secret of the employer it is not entitled to
protection as a trade secret). Additionally, we agree with Appellants that
such customer data is of the type “generally known to the public or within
the industry” such that it does not meet the requirements of “confidential
information” under the Letterle Agreement. See Letterle Agreement,
9/30/11, at 1-2 ¶3(a). Accordingly, the trial court abused its discretion in
concluding such customer data required protection from disclosure or use by
Mr. Treschow.
In conclusion, there are no “apparently reasonable” grounds for the
trial court’s conclusion that the activity Letterle sought to restrain (Mr.
Treschow’s use and disclosure of customer data, files, and lists in his
possession) was actionable. See Warehime, supra. Thus, we conclude
the trial court erred in granting Letterle’s request for the preliminary
injunction in this regard, and we reverse this portion of the trial court’s June
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14, 2016, order.6 As no party has challenged the trial court’s denial of the
preliminary injunction as to Letterle’s request to enjoin Appellants’
solicitation of Letterle customers, we affirm this portion of the trial court’s
June 14, 2016, order.
Affirmed, in part; Reversed, in part; Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2017
____________________________________________
6
In light of the foregoing, it is unnecessary to address Appellants’ remaining
issues (i.e., that Letterle did not meet the remaining prongs necessary for
the issuance of a preliminary injunction; the trial court erred in failing to
consider three affidavits submitted by Appellants after oral argument; and
the trial court erred in failing to grant Appellants’ motion for
reconsideration).
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