Memorandum – is noncompete clause enforceable

Dr. Hathaway is interested in what might happen if she litigates this matter. For preparation, a short memo that analyzes whether or not the noncompetition covenant (NCC) in Dr. Hathaway’s employment agreement is enforceable.
The legal research has already been completed – utilize the attached cases only.**NO ADDITIONAL RESEARCH IS REQUIRED**

Request for a memorandum evaluating the enforceability of the non-compete clause of the Employment Agreement. I believe the Employment Agreement is a valid contract, that there was an offer, acceptance, and consideration (no need to evaluate whether the entire Agreement is a valid contract). For purposes of this memorandum, and based on the facts presented by Dr. Hathaway, Dr. Hathaway breached the non-compete clause. Therefore, please do not evaluate whether she breached it. Please simply focus on the enforceability of the NCC.

• GOAL – Dr Hathaway does not want to loose her practice
• Please apply the Issues, Rule, Analysis/Application, Distinguish, and Conclusion format (attached) based on the facts of Dr Hathaway’s case
• The RULE/precedent case – Raimonde v Van Vlerah
• Case Law – additional cases
o Wilson v Kreusch
o Williams v Hobbs
o Rogers v Runfola

• Also, apply the 3prongs (whether it impacts the following and why/why not) in order to do the analysis of each case
o Employer interest (paragraph)
o Employee Interest (paragraph)
o Public Interest (paragraph)

**Need citation for attached cases 

**ONLY USE THE ATTACHED CASES PLEASE

Demand Letter:
Dear Dr. Hathaway, In January, Year 4, you entered into an employment agreement (the “Agreement”) with my client, Back & Neck Specialists. As you are aware, the Agreement sets forth restrictive covenants that bound you after the termination of your employment at Back & Neck Specialists. You are now in violation of these covenants. The Agreement contained a provision prohibiting you from practicing within a 10-mile radius after the termination of your employment. Your new practice, Personal & Athletic Injury Therapists (“Therapists”), is located within this 10-mile radius. Additionally, your marketing tactics have caused considerable damage to Back & Neck Specialists. In light of your breach of contract, Back & Neck Specialists intends to enforce the remedies provided for in the Agreement. Back & Neck Specialists plans to file suit for injunctive and other relief if Therapists does not close its business. In accordance with the Agreement, if this matter proceeds to trial, Back & Neck Specialists will also seek a minimum of 50% of Therapists’ gross receipts and punitive damages for your opportunistic breach of the Agreement.

Blurb from Employment Contract
Upon the termination of employment of Employee pursuant to this Section 6: Employee shall be entitled to send notices regarding the establishment of Employee’s new office to those patients for whom Employee has been the primary chiropractor. Employee shall not be entitled to send such notices to any other patients of the Practice; Any patient requesting, either by telephone or in writing, that records be transferred from Employer’s office to another office on behalf of Employee, shall be accommodated within seven (7) working days of receipt of such request. Employer shall send appropriate copies of all such records, and all reasonable costs incurred in transferring said records will be assumed by Employer; provided, however, that Employer retains the right to maintain originals of such records; Employee shall be entitled to the return of all equipment, supplies, instruments and books brought to the Practice by Employee, as evidence by a specific list (which shall be updated from time to time, as may be appropriate) of such property maintained by Employee and kept on file with Employer; and Employee will be responsible, as determined by Employer, in its sole discretion, for completing any treatment to patients as to whom Employee’s failure to complete such treatment could jeopardize the health of such patient. Covenants For a period of two (2) years following the termination of her employment, however caused, the Employee will not, within ten (10) miles of Employer’s location, directly or indirectly, for herself, on behalf of, or as an employee of any other firm, association, corporation, or other entity, engage in, or be employed by a practitioner of, chiropractic medicine. For the purposes of Section 7, Employer’s location is 211 W. Schrock Road, Westerville, OH 43081. 7 Employee and Employer recognize that the covenants of Section 7 will survive the termination of this Employment Agreement regardless of the cause of such termination.

Case Brief:
Raimonde v. Van Vlerah, 325 N.E.2d 544 (Ohio 1975).
Facts: Employer sought to enforce non-compete covenant to prevent former employee
from accepting similar employment or practicing his profession within 30 miles of
employer’s location for a period of 3 years. The Court of Appeals refused to enforce the
covenant.
Holding and Rationale: The Ohio Supreme Court remanded the case to allow the trial
court to fashion a reasonable non-compete covenant, holding that:
1. Non-compete covenants will be enforced when the restrictions they impose are
reasonable.
2. Non-compete covenants that are unreasonable will be enforced to the extent
necessary to protect an employer’s legitimate interests.
3. A non-compete covenant is reasonable when the employer can show the
restrictions are 1) no greater than necessary for the protection of the
employer’s legitimate business interests, 2) do not impose undue hardship on
the employee, and 3) are not injurious to the public. Factors to consider when
evaluating reasonableness include:
a. Whether the employee represents the sole contact with the customer
b. Whether the covenant seeks to eliminate competition which would be
unfair to the employer or merely seeks to eliminate ordinary competition
c. Whether the covenant seeks to stifle the inherent skill and experience of
the employee
d. Whether the covenant operates as a bar to the employee’s sole means of
support
e. Whether the employee’s talent which the employer seeks to suppress was
actually developed during the period of employment

Case Brief:
Rogers v. Runfola & Assocs., Inc., 565 N.E.2d 540 (Ohio 1991)
Facts: Two court reporters resigned after 10 years of working for the employer. The
employer sued to enforce the non-compete covenant, which prohibited the former
employees from working as court reporters in the county for two years and from
soliciting the employer’s clients forever. The Court of Appeals held the covenant was
unreasonable.
Holding and Rationale: The Ohio Supreme Court modified the covenant, holding:
1. The original restrictions caused the former employees undue hardship because
court reporting was the only profession in which they were proficient.
2. The employer had a legitimate business interest to protect because he invested
time and money in equipment, facilities, support staff and training and
developed the clientele list.
3. Modifying the covenant to prohibit former employees from soliciting clients
and working as court reporters within the city limits for one year effectively
balances employer’s interest and hardship on former employees.

Case Brief:
Williams v. Hobbs, 460 N.E.2d 287 (Ohio Ct. App. 1983)
Facts: A radiologist sued his former employer after they enforced a non-compete
covenant to prevent him from practicing his specialty at the hospital. The trial court held
the non-compete covenant was unreasonable and did not enforce it.
Holding and Rationale: The Court of Appeals affirmed, holding:
1. Enforcing the covenant would be injurious to public because the former
employee was a specialist radiologist whose skill was uncommon in
community.
2. The covenant also imposed undue hardship on the doctor and community because
the hospital is one of only a few institutions where he could practice his
specialty.

Case Brief:
Wilson v. Kreusch, 675 N.E.2d 571 (Ohio Ct. App. 1996)
Facts: A chiropractor opened up a new office within three miles of his former employer’s
office in violation of the non-compete covenant in the employment contract. The trial
court modified the covenant, holding that the original restriction barring the former
employee from practicing any chiropractic medicine was unreasonable.
Holding and Rationale: The Court of Appeals affirmed, holding:
1. The modifications adopted by the trial court appropriately balanced the interests
of the employer, former employee and public because
a. They preserve the employer’s patient base and limit the former
employee’s ability to compete in the immediately surrounding area.
b. They do not impose undue hardship on the former employee because he is
not required to move his office and can accept new patients.
c. They are not injurious to the public because they have limited impact on
potential new patients.
2. The employer’s delayed enforcement of the covenant increased the covenants
detrimental effect on the employee, who had already established a new office.

Memorandum of Law

To: New Associate

From: Aubrey Matthews, managing partner Re: Memo

Dr. Hathaway is interested in what might happen if she litigates this matter. So that I am prepared for our next meeting, please prepare a short memo for me that analyzes whether or not the non- competition covenant (NCC) in Dr. Hathaway’s employment agreement is enforceable.

MEMORANDUM

TO: FROM: DATE:

RE: Potential Enforcement of Non-Competition Covenant

Questions Presented/Issue: Introductory/Overview Paragraph- This paragraph identifies the overall

question (enforcement of the non-competition covenant). It also provides the context for the reader to understand the problem by providing a very summary discussion of the facts.

Rule: Background Principles-These paragraphs(s) identify the rule, that is explain the law, by identifying the factors courts consider important in evaluating the issue. You will not discuss the facts of these cases. You will just state some of the basic relevant rules.

Analysis: Rule application and analysis of the facts with the rule. These paragraphs set forth your application of the law/rule to your client’s facts by setting forth specific analogies between your client’s facts, the precedent rule, and the analogous/explanatory cases.

Distinguish: Distinguish( if possible) cases reaching the wrong result. This paragraph presents both favorable and unfavorable comparisons between the distinguishing case and your client’s facts.

Conclusion: Concluding paragraph- Add an answer/conclusion to the issue and the overall question and provide next steps advice based on that conclusion.

Lee, Lynne, & Parker, LL.C.

105 Snow Way Drive, Suite 124, Columbus, OH 43215

(614) 726-3000 www.llplaw.com

Memorandum

To: New Associate

From: Aubrey Matthews, Esq., Managing Partner

Re: Notes from Interview with Dr. Carol Hathaway/Potential Enforcement of the

Back & Neck Specialists Employment Agreement
(File Number JEL-V9092)

Date: October 15, Year 5

I met with Dr. Carol Hathaway yesterday afternoon. I know Dr. Hathaway from work
that I have done with a local non-profit. We both serve on the board. Dr. Hathaway is a
chiropractor with certification as a chiropractic sports physician. She recently opened a practice
named Personal & Athletic Injury Therapists, LLC, within the city limits of Columbus located at
the intersection of 5th and Cleveland. Dr. Hathaway came to our firm because she received a
demand letter last month from an attorney on behalf of her previous employer, The Back & Neck
Specialists, LLC (the “Specialists”). The demand letter (see attached) involves the Employment
Agreement that governed her employment with the Specialists. This memorandum summarizes
our meeting.

After graduating Ohio University with a degree in physiology, Dr. Hathaway enrolled in
a program to become a registered nurse. Shortly thereafter, Dr. Hathaway had a change of heart,
and decided to attend Logan College of Chiropractic in Saint Louis, Missouri. At Logan, Dr.
Hathaway was President of the Student Doctor’s Council, the governing body for students at
Logan College, and was always near the top of her class. After graduating with her Doctor of
Chiropractic Degree in Year 1, Dr. Hathaway passed her national and state boards and started
with a small chiropractic practice in Grove City, Ohio. Dr. Hathaway believes that her
employment in Grove City gave her the initial practical experience that she needed to fully
service clients. Dr. Hathaway’s contract with the Grove City practice contained no restrictive
covenants. In January of Year 3, Dr.Hathaway left the Grove City practice and began with the
Specialists, a well-established chiropractic practice located in Westerville, Ohio. At the start of
her employment, the Specialists employed seven full-time chiropractors and three part-time
chiropractors, and Dr. Mark Green was the Managing Partner. When Dr. Hathaway joined the
Specialists, she signed an Employment Agreement that set forth her duties, compensation,
benefits, and restrictive covenants. Before Dr. Hathaway signed the agreement, Thomas
Hathaway Jr., Dr. Hathaway’s brother, an attorney practicing in Toledo, read the agreement and
made sure it was okay to sign. She listed him as her attorney in the agreement without his
knowledge. Attorneys at Lewis & Associates have not reviewed or analyzed the validity of this

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Lee, Lynne, & Parker, LL.C.

agreement. The subject matter of this lawsuit concerns the agreement not to compete contained
in this Employment Agreement. (See attached Employment Agreement.)

The practice at the Specialists primarily focuses on rehabilitation services and treatment
for individuals who have suffered injuries as the result of traumatic accidents. The Specialists
was incorporated in 2000 and, since then, has established an extensive referral network within
the medical and legal community of the greater Columbus area. At the Specialists, patients can
make specific appointments or “walk-in” and see the next available chiropractor. Most new
patients come as a result of a referral from a physician, an attorney, or an existing patient. Once
a patient comes to the Specialists, the chiropractor who treats the patient on his or her first visit
will normally become the patient’s primary chiropractic caregiver. The number of visits that any
particular patient makes for treatment varies greatly depending on the patient’s injury or disease;
however, many become “regulars” who visit on a semi-monthly or monthly basis for many years.
In addition to the provision of quality care, when Dr. Hathaway started, the Specialists
performed extensive community service in Westerville. Chiropractors from the Specialists
frequently participated in seminars and health education programs throughout the community,
and the Specialists published newsletters on chiropractic health issues affecting the community at
large. Most of the Specialists’ community involvement was initiated at Dr. Green’s request. Dr.
Hathaway shared Dr. Green’s belief in community service, and, after she started, the two quickly
became friends.

When Dr. Hathaway began with the Specialists, the practice wanted to expand its sports-
related injury business. At that time, the Specialists had only one chiropractor certified as a
chiropractic sports physician, and the greater-Columbus area had only five chiropractors with
this certification. The management team of the Specialists believed that the area of sports injury
rehabilitation was a major area of potential growth within the field of chiropractic. Because Dr.
Hathaway had already expressed interest in this subspecialty of chiropractic, the management
team at the Specialists asked her if she would be interested in receiving her certification. During
the summer and fall of Year 3, the management team agreed to allow Dr. Hathaway to have
every weekend off so she could attend a 10-weekend course at Logan College and earn her
certification as a chiropractic sports physician. Dr. Hathaway, however, had to pay for all
monetary expenses associated with the certification process. Dr. Hathaway earned her
certification in October, Year 3. In January, year 4, Dr. Hathaway and the Specialists renewed
the Employment Agreement without executing the stockholder arrangement provided for in the
Employment Agreement.

In September, Year 4, Dr. Mark Green retired as Managing Partner of the Specialists, and
Dr. John Carter took over. Unfortunately, Dr. Hathaway did not get along with Dr. Carter as
much as she did Dr. Green. Unlike Dr. Green, Dr. Carter did not place importance on the
Specialists’ involvement in the community. Dr. Carter was only focused on the “bottom line”
and only warmed to people with similar beliefs. Dr. Hathaway stated that Dr. Carter was always
“cold” with her. Furthermore, Dr. Carter increased the rates for services and refused to provide a
“special payment plan” for patients with financial needs. At this time, Dr. Hathaway was also
expecting her first baby and was concerned that her commute from her home to Westerville
would take away from valuable time that she wanted to spend with her child. She explained to

Lee, Lynne, & Parker, LL.C.

me that, although she and her husband planned to share parenting responsibilities equally, her
husband is a financial analyst at a major financial institution in downtown Columbus.
Consequently, she anticipated assuming most of the parenting responsibilities.

Dr. Hathaway tendered her resignation at the Specialists on November 30, Year 4; her
last day was December 31, Year 4. Dr. Hathaway gave birth to her son on January 15, Year 5,
and opened her practice at the corner of Cleveland and 5th on March 15, Year 5. The practice
was incorporated as Personal & Athletic Injury Therapists, LLC (“Injury Therapists”). Injury
Therapists is located approximately nine miles southwest of the Specialists’ location in
Westerville but is only two miles from the Ohio State University. Dr. Hathaway chose this
location because she wanted to develop a relationship with Ohio State’s athletic department.
Although Dr. Hathaway stated that she wanted to focus primarily on sports-related injuries at her
new practice, she sent out announcement cards to all of her former patients from the Specialists,
her former colleagues at the Specialists, and her friends and relatives. Dr. Hathaway also took
out full page ads in The Daily Reporters, a publication sponsored by the Columbus Bar
Association, and The On Call Newsletter, a publication sponsored by the Columbus Medical
Association, that announced the opening of Injury Therapists. Dr. Hathaway did not take a
master patient list and did not personally contact any members of the Specialists’ referral
network. She did, however, take her own files (those of her own patients) and, thus, had the
addresses of those patients. Dr. Hathaway believed that she parted on good terms with the
Specialists, and, on her last day, her co-workers took her out to lunch.

After opening in March, Year 5, Injury Therapists began to grow rapidly. In June, Year
5, Dr. Hathaway successfully negotiated a contract with the Ohio State University. Injury
Therapists now assists in the rehabilitation of Ohio State’s injured female athletes other than
female basketball players and female soccer players. At Ohio State, those two teams have their
own training staffs. The Specialists placed a bid for this contract but lost. According to Dr.
Hathaway, she prevailed because the women athletes preferred to have a female chiropractor (the
Specialist only had male chiropractors who were certified as chiropractic sports physicians) and
the Athletic Department liked Injury Therapists’ close proximity to campus. Additionally, a few
attorneys and physicians that were once part of Specialists’ referral network have started
referring patients to Dr. Hathaway for personal injury rehabilitation, and a few patients that saw
other chiropractors at the Specialists have started going to Injury Therapists. These defections
comprise of about 10% of Injury Therapists’ business and, according to Dr. Hathaway, result
from her cheaper rates, friendlier service, and more convenient location. In August, Year 5, Dr.
Hathaway added two other chiropractors to her practice, and one of them is certified as a
chiropractic sports physician. In comparison to her good fortunes, Dr. Hathaway has recently
heard that the Specialists will suffer a retraction during Year 5 for the first time in its history.
Currently, there are nine chiropractors certified as chiropractic sports physicians in the greater
Columbus area.

On September 15, Year 5, Dr. Hathaway received a demand letter from the Specialist’s
attorney stating that she will be sued for violating the non-compete clause of her Employment
Agreement if she does not close her practice. Naturally, Dr. Hathaway does not want to close
Injury Therapists in light of its success. From March, Year 5 until August, Year 5, Dr. Hathaway

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Lee, Lynne, & Parker, LL.C.

grossed $150,000 in revenue and believes that Injury Therapists will be even more successful in
the future. As you can imagine, Dr. Hathaway is very upset about the demand letter. Before we
can address whether or not Dr. Hathaway should consider negotiation or wait until she is sued to
respond, I would like you to evaluate the enforceability of the non-compete clause. As you
know, if it appears that a court will enforce the clause, we will most likely encourage Dr.
Hathaway to settle this matter.

To assist Dr. Hathaway, please draft a memorandum evaluating the enforceability
of the non-compete clause of the Employment Agreement. I believe the Employment
Agreement is a valid contract, that there was an offer, acceptance, and consideration, and
therefore, do not evaluate whether the entire Agreement is a valid contract. For purposes
of this memorandum, and based on the facts presented by Dr. Hathaway, you should
assume that Dr. Hathaway breached the non-compete clause. Therefore, please do not
evaluate whether she breached it. Please simply focus on the enforceability of the NCC and
do not address modification of the terms or damages.

Court of Appeals of Ohio,
Second District, Montgomery County.

WILSON, Appellee,
v.

KREUSCH et al., Appellants.

Decided May 10, 1996.

Former employee filed action against employer, alleging breach of employment contract. Employer counterclaimed,
alleging breach of noncompetition covenant. The Court of Common Pleas granted judgment for employee and
dismissed counterclaim. On appeal, the Court of Appeals, Wilson, J., 1992 WL 107057, reversed and remanded. On
remand, the Court of Common Pleas found parties were each entitled to recover on their claims, ordered net
judgment for employer, and imposed certain restrictions on employee’s practice. Cross-appeals were filed. The Court
of Appeals, Grady, J., held that: *** (2) employer’s damages for employee’s breach of noncompetition covenant in
employment agreement should not have been reduced by reason of delay in enforcing covenant and fact that
employer breached agreement; and (3) noncompetition covenant, as modified by trial court, was reasonable and
could be enforced by way of injunction.

Affirmed in part; reversed in part; remanded.

***

GRADY, Judge.

This is an appeal and a cross-appeal in an action involving claims for breach of an employment contract and breach
of a covenant not to compete.

Thomas J. Kreusch is a chiropractor who has practiced for many years in Montgomery **573 County. In 1981, Bret
Wilson, who is also a chiropractor, became Kreusch’s employee. In 1983, they entered into a written employment
contract which provided (1) for termination by either upon thirty days’ written notice to the other, (2) that Wilson
would not compete with Kreusch in a defined area for a defined time after termination, and (3) for Wilson’s
compensation.

In August 1988, Kreusch terminated Wilson, effective immediately. Shortly thereafter, Wilson opened a chiropractic
office within three miles of Kreusch’s office, within the time and area prohibited by their agreement.

In April 1989, Wilson filed this action alleging breach of their employment contract by Kreusch, who counter-
claimed that Wilson was in breach of the covenant not to compete. The trial court ultimately granted a judgment for
Wilson in the amount of $30,841.66 and dismissed Kreusch’s counterclaim. On appeal, we reversed and remanded
for further proceedings.

On remand, the trial court found that the parties were each entitled to recover on their claims and ordered a net
judgment for Kreusch in the amount of $31,201.24. It also imposed certain restrictions on Wilson’s practice for six
months. After Wilson moved for a new trial, the court corrected an error in computation and reduced Kreusch’s net
judgment to $21,076.24.

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Kreusch filed a timely notice of appeal. Wilson has cross-appealed. Kreusch has moved to strike Wilson’s cross-
appeal for lack of a timely notice of appeal or cross-appeal. Their assignments of error are set out below.

***

Kreusch’s Third Assignment of Error

“The trial court erred in limiting and reducing defendants’ contractual covenant not to compete by time and
geography.”

[8] Although it granted Kreusch’s request for an injunction, the trial court limited the scope of its order not to
compete. The trial court enjoined Wilson as follows:

“2. [Wilson] is enjoined from providing at any location any chiropractic treatment or therapy, directly or by
associates in his office or connected with his office, for a period of six months, for any person who currently resides
in the area circumscribed by a five mile radius of the office of [Kreusch]. This applies to new patients only, and
those not yet scheduled for an appointment, and to any other patients (in the proscribed area) who are not currently
under active care. * * *

“3. [Wilson] is enjoined for the same six month period from accepting as a new patient at any location within a
fifteen-mile radius of the said Kreusch office any current patient of Dr. Thomas J. Kreusch, D.C., Inc.”

*54 The court further stated that subject to this order, Wilson could continue to practice at his current location.

[9][10] “A covenant not to compete which imposes unreasonable restrictions upon an employee will be enforced to
the extent necessary to protect an employer’s legitimate interests.” Raimonde v. Van Vlerah (1975), 42 Ohio St.2d
21, 71 O.O.2d 12, 325 N.E.2d 544, paragraph one of the syllabus. “A covenant restraining an employee from
competing with his former employer upon termination of employment is reasonable if the restraint is no greater than
is required for the protection of the employer, does not impose undue hardship on the employee, and is not injurious
to the public.” Id. at paragraph two of the syllabus. “Courts are empowered to modify or amend employment
agreements to achieve such results.” Id. at 26, 71 O.O.2d at 14, 325 N.E.2d at 547; see, also, Rogers v. Runfola &
Assoc., Inc. (1991), 57 Ohio St.3d 5, 8, 565 N.E.2d 540, 543-544.

[11] Restrictive covenants not to compete are not favored by the law. “This measure of disfavor is especially acute
concerning restrictive covenants among physicians, which affect the public interest to a much greater degree.” Ohio
Urology, Inc. v. Poll (1991), 72 Ohio App.3d 446, 452-453, 594 N.E.2d 1027, 1031. However, noncompetition
covenants between physicians are not per se unenforceable and if reasonable may be enforced via injunctive relief.
Id. at 454, 594 N.E.2d at 1032-1033.

Kreusch argues that the trial court’s limitations to the express provisions of the covenant were based on a finding of
delay by Kreusch in enforcing the covenant. However, we do not find that the modifications to the covenant were
based solely on Kreusch’s supposed delay in seeking to enforce the covenant. The trial court found that enforcing the
covenant by its geographic terms was not necessary to protect Kreusch’s interests. The trial court also cited various
factors to be considered in evaluating the reasonableness of a covenant not to compete, as set forth in Raimonde v.
Van Vlerah, 42 Ohio St.2d at 25, 71 O.O.2d at 14, 325 N.E.2d at 546-547.

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Moreover, although delay in seeking injunctive relief may not be a basis to reduce the amount of damages resulting
from a breach of the covenant, it may be considered in evaluating the reasonableness of the injunctive relief sought.
Raimonde recognized that one of the factors to be considered in determining whether a covenant is reasonable is
whether the benefit to the employer is disproportionate to the detriment to the employee. Delayed enforcement of a
covenant not to compete can alter that balance by increasing the covenant’s detrimental effect on the employee.

*55 The modifications adopted by the trial court struck an appropriate balance between the interests of Kreusch,
Wilson, and the public. The restrictions provide protection to Kreusch, in that they preserve his patient base and
limit Wilson’s ability to compete with him in the immediately surrounding area. The restrictions do not impose
undue hardship on Wilson, in that they do not require him to move his office, nor do they **576 preclude him from
accepting new patients, except from within a relatively small prohibited area. Finally, the restrictions are not
injurious to the public, in that they have no impact on current patients of Wilson and only a limited impact on
potential new patients. The covenant as modified by the trial court is reasonable and may be enforced by way of
injunction.

***

Judgment affirmed in part, reversed in part and cause remanded.

END OF DOCUMENT

Court of Appeals of Ohio, Tenth District, Franklin County.
WILLIAMS, Appellant,

v.
HOBBS et al., Appellees.

***

Radiologist brought action against hospital, group practice corporation of which he was a former member, and
doctor with whom he had formerly been in practice seeking money damages and an injunction enjoining defendants
from preventing his continued practice of radiology at the defendant hospital. The group practice corporation filed a
counterclaim seeking an injunction to prevent radiologist from practicing radiology in county for two years pursuant
to covenant not to compete included in his employment contract. The Court of Common Pleas, Franklin County,
denied both requests for an injunction and radiologist and group practice corporation appealed. The appeals were
consolidated and the Court of Appeals, Cook, J., held that: (1) evidence supported court’s finding that covenant
restraining radiologist from competing with his former employer was unreasonable, and (2) hospital did not violate
its regulations when it terminated the radiology clinical privileges of radiologist because of hospital’s exclusive
contract with group practice corporation.

Judgments affirmed.

Moyer, J., concurred in part and dissented in part and filed opinion.

***

**288 Syllabus by the Court

*331 1. A covenant restraining a physician-employee from competing with his former employer upon termination of
employment is unreasonable where it imposes undue hardship on the physician and is injurious to the public, the
physician’s services are vital to the health, care and treatment of the public, and the demand for his medical expertise
is critical to the people in the community.

***

COOK, Judge.

Dr. Dale L. Williams, an osteopathic physician specializing in radiology, practiced at Doctors Hospital in Columbus
for approximately fifteen years. During that period of time, he was an associate physician and later a member
physician of a group radiology practice known as T.C. Hobbs and Associates, Inc. When he was employed by the
Hobbs group, Dr. Williams signed an employment contract which contained the following covenant not to compete:

“Employee further agrees that during the term of this Agreement, or within a period of two years following the
effective date of the termination of his employment, he will not engage directly or indirectly in the specialty practice
of radiology, or any of its branches, in the City of Columbus, or the County of Franklin, unless this provision is
waived in writing by the corporation.”

As the result of a dispute between Dr. Williams and other physicians in the group, Dr. Williams was expelled from

the corporation effective December 3, 1981. The corporation also demanded that Doctors Hospital terminate Dr.
Williams’ privileges at the hospital as to the use of the hospital’s radiology equipment and facilities because the
corporation and Dr. Hobbs, by contract, had the exclusive right to perform all radiology services at the hospital. The
administrator of the hospital notified Dr. Williams that his privileges to utilize hospital radiology facilities would
terminate at midnight, December 3, 1981.

On December 30, 1981, the executive committee of the board of trustees of the hospital ratified the administrator’s
action by renewing Dr. Williams’ appointment to the hospital’s medical staff, but terminated his radiology privileges.
Dr. Williams appealed to the full board of trustees which affirmed the action of its executive committee.

On December 3, 1981, Dr. Williams filed a legal action against Doctors Hospital, Dr. T.C. Hobbs, and T.C. Hobbs
and Associates, Inc., seeking money damages and an injunction enjoining defendants from preventing his continued
practice of radiology at the hospital. Each of the defendants filed an answer. T.C. Hobbs and Associates, Inc. filed a
counterclaim seeking an injunction to prevent Dr. Williams from practicing radiology in Franklin County for two
years, pursuant to the covenant not to compete which was included in his employment contract.

The trial court heard the two requests for injunctive relief on the merits, denied both requests, and, as to the
judgment denying Dr. Williams’ request for injunctive relief, found there was “no just cause for delay.”

T.C. Hobbs and Associates, Inc., appealed the trial court’s denial of its requested injunction and this appeal was
assigned No. 82AP-571.

***

The appeals were consolidated for argument in this court.

All errors assigned in both appeals are without merit.

[1] Turning first to appeal No. 82AP-571, the law as to covenants restricting competition by an employee with his
former employers is set forth in Raimonde v. Van Vlerah (1975), 42 Ohio St.2d 21, 325 N.E.2d 544 [71 O.O.2d 12],
where the Supreme Court, in paragraph two of the syllabus, held:

“A covenant restraining an employee from competing with his former employer upon termination of employment is
reasonable if the restraint is no greater than is required for the protection of the employer, does not impose undue
hardship on the employee, and is not injurious to the public.”

In the instant cause, the trial court found:

“The covenant is unreasonable for it is greater than is required for the protection of defendant Hobbs. The covenant
imposes an undue hardship on the plaintiff, and also, it is injurious to the public. Plaintiff’s services are vital to the
health, care and treatment of the public. The demand for his medical expertise is critical to the people in our
community. This Court is not attempting to rewrite the contract, but rather to prevent undue hardship to the plaintiff
and the public. Defendants’ rights are also considered in this Court’s findings.”

[2][3] The trial court’s finding was supported by the evidence. The transcript of proceedings indicates that there was
evidence before the court that Dr. Williams is a skilled radiologist, particularly in his subspecialty of interventional
radiology. The evidence also indicates that his particular skill is not common among radiologists in the community.

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There is also evidence that the covenant in the employment contract constitutes a hardship to Dr. Williams and the
public since Doctors Hospital is one of the few osteopathic institutions in which he can practice his specialty. The
evidence also indicates that T.C. Hobbs and Associates, Inc.’s radiology practice is primarily performed at Doctors
Hospital.

There was evidence from which the trial court could conclude that the covenant that Dr. Williams was not to practice
in Franklin County for two years upon leaving T.C. Hobbs and Associates, Inc. was unreasonable.

In C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578 [8 O.O.3d 261], the Ohio
Supreme Court held:

“Judgments supported by some competent, credible evidence going to all the essential elements of the case will not
be reversed by a reviewing court as being against the manifest weight of the evidence.”

We conclude that the trial court did not err in denying T.C. Hobbs and Associates, Inc.’s request for an injunction.

***
Judgments affirmed.
***

END OF DOCUMENT

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Supreme Court of Ohio.
ROGERS et al., Appellees and Cross-Appellants,

v.
RUNFOLA & ASSOCIATES, INC. et al., Appellants and Cross-Appellees.

No. 89-1355.

Submitted Sept. 26, 1990.
Decided Jan. 9, 1991.

Employees filed declaratory judgment action seeking clarification as to validity and enforceability of, and
obligations under, employment contracts containing covenants not to compete. Employer filed counterclaim, seeking
specific performance of covenants, injunctive relief, and damages. The Court of Common Pleas, Franklin County,
held in favor of employees, and employer appealed. The Court of Appeals affirmed, but disagreed with trial court’s
finding that contracts were invalid. Motion and cross motion to certify record were filed. The Supreme Court,
Douglas, J., held that: *** (3) covenants’ restraints and resultant hardships on employees exceeded that which was
reasonable to protect employer’s legitimate business interests; and (4) covenants’ geographical and time restrictions
would be modified to protect interests of both employees and employer.

Judgment affirmed in part, reversed in part, and cause remanded.

Herbert R. Brown, J., filed opinion concurring in part and dissenting in part.

Sweeney, J., dissented.

***

**541 The relevant facts in this case, for the most part, have been stipulated by the parties prior to trial.

***

In 1971, Thomas Runfola, acting as a sole proprietor, began operating a court reporting service under the name of
“Runfola and Associates.” In February 1977, Runfola incorporated the business and shortly thereafter, pursuant to an
assignment agreement, transferred the assets and liabilities, including all rights and obligations under any
employment contract, of the sole proprietorship to the corporation.

In 1972, while attending school, Rogers began working for Runfola. Rogers continued to work for Runfola after
completing school, and on June 1, 1975, she signed an employment contract. On September 19, 1977, Marrone, at
the age of nineteen, began working for Runfola and he also signed a contract. Marrone testified that Runfola
indicated to him that if Marrone should ever become unhappy with the firm, he would not be held to the contract. At
the time appellees filed their complaint, both contracts were for a term of one year and subject to automatic renewal.

Rogers’ and Marrone’s employment contracts contained a covenant not to compete.FN1 The covenants in each
contract are virtually identical and *6 both preclude appellees from engaging in court reporting or public stenogra-
phy as an employee or otherwise in Franklin County, for a period of two years. The covenant also bans appellees
from ever diverting or soliciting any of Runfola’s clients and bars appellees from ever using any client list, notes,
transcripts, exhibits, files, records or any documents received by or on behalf of Runfola.

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FN1. The covenants contained the following restrictions:

“(a) During the term of this Contract and for a period of two (2) years thereafter, * * * [Rogers and
Marrone] will not engage in the court reporting and (or) public stenography business as an employee,
sole proprietor, independent contractor, partner, joint-venturer or principal at any place within the limits
of Franklin County, Ohio, without the express written consent of the Employer.

“(b) At no time shall the Professional ever divert, take away, attempt to divert or take away, or solicit any
of the clients of the Employer, for * * * [their] own benefit or for the benefit of any other person or
entity.

“(c) At no time shall the Professional ever take away or use, for * * * [their] own benefit, or the benefit
of any other person or entity, any client lists, notes, transcripts, exhibits, files, records or any other
documents, papers or items of any kind or nature received by the Employer, or by the Professional on
behalf of the Employer, in any capacity.”

On April 28, 1988, appellees each submitted a letter of resignation to Dennis Mowery, the general manager of
Runfola. Appellees met with Mowery and, among other things, expressed to him that they both had decided to
terminate their employment.**542 At this meeting, Rogers and Marrone also agreed that in order to effect the
transition, they would continue to work until their contract anniversary dates, and stated they were reasonably
certain they would open their own firm locally. In response, counsel for Runfola sent letters to appellees reminding
them of their agreements not to compete.

Rogers quit working for Runfola on May 31, 1988. On June 3, 1988, Runfola, by way of letter, informed Marrone
that he accepted Marrone’s resignation “effective immediately.”

On June 15, 1988, Runfola answered appellees’ complaint and counterclaimed. Runfola sought specific enforcement
of the covenant and requested that appellees be enjoined from violating its provisions. Runfola also alleged there
was no way to accurately assess damages but estimated that they would exceed $100,000.

Trial was commenced on July 1, 1988. On August 2, 1988, the trial court held in favor of appellees and against
Runfola’s counterclaim. The trial court found that the employment contracts were unenforceable. In addition, the
trial court found that even if the employment contracts were valid, the covenants contained therein were unreason-
able.

Runfola appealed. The court of appeals affirmed the judgment of the trial court and found that the covenants were
unreasonable. The court of appeals, however, disagreed with the trial court’s finding that the employment contracts
were invalid.

***

DOUGLAS, Justice.

The primary issue we are asked to decide is whether the covenants not to compete contained within appellees’
employment contracts are reasonable in light of the guidelines pronounced by this court in Raimonde v. Van Vlerah

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(1975), 42 Ohio St.2d 21, 71 O.O.2d 12, 325 N.E.2d 544.

I

***

*8 II

Having found that appellees’ employment contracts are valid, we now turn our discussion to the covenants not to
compete contained therein.

In Raimonde, supra, at paragraphs one and two of the syllabus, we stated:

“1. A covenant not to compete which imposes unreasonable restrictions upon an employee will be enforced to the
extent necessary to protect an employer’s legitimate interests. (Paragraphs two and three of the syllabus in Extine v.
Williamson Midwest [ (1964) ] 176 Ohio St. 403 [200 N.E.2d 297] overruled.)

“2. A covenant restraining an employee from competing with his former employer upon termination of employment
is reasonable if the restraint is no greater than is required for the protection of the employer, does not impose undue
hardship on the employee, and is not injurious to the public.” (Emphasis added.)

Further, in Raimonde, we acknowledged that courts are empowered to fashion a reasonable covenant between the
parties and, in so doing, they should consider the following factors:

“ * * * ‘[T]he absence or presence of limitations as to time and space, * * * whether the employee represents the
sole contact with the customer; whether the employee is possessed with confidential information or trade secrets;
whether the covenant seeks to eliminate competition which would be unfair to the employer or merely seeks to
eliminate ordinary competition; whether the covenant seeks to stifle the inherent skill and experience of the
employee; whether the benefit to the employer is disproportional to the detriment to the employee; whether the
covenant operates as a bar to the employee’s sole means of support; whether the employee’s talent which the
employer seeks to suppress was actually developed during the period of employment; and whether the forbidden
employment is merely incidental to the main employment.’ * * * ” (Citations omitted.) Id. 42 Ohio St.2d at 25, 71
O.O.2d at 14, 325 N.E.2d at 547.

**544 [4] Keeping the foregoing factors in mind, we conclude that the restraints and resultant hardships on
appellees do exceed that which is reasonable to protect Runfola’s legitimate business interests. Geographically,
appellees are prohibited from engaging in court reporting or public stenography in Franklin County for two years.
Appellees are also restricted, for a lifetime, from soliciting or diverting any of Runfola’s clients. Court reporting is a
unique profession. Appellees attended school to become court reporters and have worked as reporters for most of
their adult lives. Rogers’ and Marrone’s testimony indicated that court reporting is the only profession in which they
have become proficient. Imposing such space and time restrictions is unreasonable and will create an undue hardship
on appellees.

Although we conclude that the covenants not to compete create an excessive hardship on appellees, our inquiry,
nevertheless, cannot end here. We must also determine whether some restrictions prohibiting appellees from
competing are necessary to protect Runfola’s business interests. The record reflects that Runfola played a large role

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in appellees’ development as successful court reporters. While employed by Runfola, Rogers and Marrone gained
valuable experience in the business which included the use of computerized technology. Runfola invested time and
money in equipment, facilities, support staff and training. Much of this training and support, undoubtedly, inured to
the benefit of the appellees. Runfola also developed a clientele with which appellees had *9 direct contact.
Appellees’ assignments were taken under the Runfola name. Indeed, Runfola has a legitimate commercial interest to
protect.

Thus, balancing the restraints and projected hardships on appellees with Runfola’s interests, and upon the authority
of Raimonde, we modify the restrictions as to space and time as set forth infra.

[5] Apparently, in 1988, soon after the trial court rendered its judgment, appellees started a court reporting business
and, to date, are still in operation. Notwithstanding this, Runfola requests that we enjoin appellees from engaging in
competitive activities with Runfola and that we remand the case to the trial court on the issue of damages. Runfola
seeks to have appellees enjoined as of the date of our decision. Appellees, on the other hand, urge us to follow
Moraine Industrial Supply, Inc. v. Sterling Rubber Products Co. (C.A.6, 1989), 891 F.2d 133, and Premix, Inc. v.
Zappitelli (N.D.Ohio 1983), 561 F.Supp. 269, and find that an injunction would be extremely harsh or inappropriate
because the restrictive period, by its own terms, has expired.

Upon balancing these competing interests, we find appellees’ authority unpersuasive and conclude that the better
view is to grant Runfola, in part, the relief sought. In Raimonde, supra, 42 Ohio St.2d at 28, 71 O.O.2d at 16, 325
N.E.2d at 548, this court held it was entirely proper for a trial court to enjoin an employee who breached a covenant
not to compete “ * * * for three years from the date of the court’s order * * * [and] [t]o hold otherwise would
emasculate the clear intent of * * * Civ.R. 54(C).” (Emphasis added.)

[6] Therefore, we hold that appellees shall, sixty days from the date of this order, be prohibited for a period of one
year from engaging in court reporting or public stenography as a business, as employees, or otherwise, within the
city limits of Columbus, Ohio, and be prohibited for a period of one year from engaging in court reporting or the
stenography business with any person, firm or other business entity with an office located within the city limits of
Columbus, Ohio. Further, appellees shall, from the date of this order, be prohibited for a period of one year from
soliciting or diverting any of Runfola’s clients that have employed Runfola seeking advice, assistance or services.
Finally, we remand this case to the trial court on the sole issue of damages. Upon remand, the trial court should
determine what damages, if any, appellees have caused Runfola by disregarding the covenant not to compete, as
modified, by this court.

Judgment affirmed in part, reversed in part and cause remanded.

END OF DOCUMENT

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Supreme Court of Ohio.
RAIMONDE, Appellant,

v.
VAN VLERAH, Appellee.

April 2, 1975.

Employer brought action against former employee for enforcement of a covenant not to compete in the practice of
veterinary medicine. The Court of Common Pleas granted an injunction, the Court of Appeals, Defiance County,
reversed, and employer appealed. The Supreme Court, Paul W. Brown, J., held that a covenant not to compete which
imposed unreasonable restrictions upon an employee would be enforced to the extent necessary to protect the
employer’s legitimate interests and such covenant was reasonable if the restraint was no greater than was required
for protection of the employer, did not impose undue hardships upon the employee and was not injurious to the
public.

Judgment of Court of Appeals reversed, with instructions to remand cause to Court of Common Pleas.

***

**544 Syllabus by the Court

*21 1. A covenant not to compete which imposes unreasonable restrictions upon an employee will be enforced to the
extent **545 necessary to protect an employer’s legitimate interests. (Paragraphs two and three of the syllabus in
Extine v. Williamson Midwest, 176 Ohio St. 403, 200 N.E.2d 297, overruled.)

2. A covenant restraining an employee from competing with his former employer upon termination of employment is
reasonable if the restraint is no greater than is required for the protection of the employer, does not impose undue
hardship on the employee, and is not injurious to the public.

***

Appellant, James T. Raimonde, and appellee. Donald Van Vlerah, are doctors of veterinary medicine. Appellant has
practiced his profession in Defiance County since 1961, and appellee since 1972.

On January 3, 1972, appellee entered appellant’s employment at a salary of $1,000 per month. On January 26, 1972,
the parties signed a written contract, which provided, in part:

‘1. The employer hereby employs the employee as a *22 practicing doctor of veterinary medicine for a period of one
(1) year from the date hereof, unless either party gives a three-months written notice to the other party of his
intention to terminate the contract.

* * *

‘5. The employee further agrees that upon the termination of his employment with the employer, either at the
conclusion of this contract or by any other means of termination of employment, he will not accept similar
employment or practice his profession in or within thirty (30) miles of the city of Defiance, Ohio, for a period of
three (3) years from such termination of employment.’

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On August 24, 1972, appellant provided appellee with a three-month written notice of termination, as provided in
the paragraph numbered 1 of the contract. On November 24, 1972, appellee’s employment with appellant
terminated. Thereafter, appellee began to practice veterinary medicine in Defiance in express violation of his
contract with appellant.

On January 11, 1973, appellant filed a complaint in the Court of Common Pleas, to enjoin appellee from practicing
veterinary medicine in violation of the contract. The complaint sought an order ‘restraining the defendant from
practicing his profession in or within thirty miles of the city of Defiance, Ohio for a period of three years from his
termination of his employment under the employment contract * * *.’
The trial court upheld the validity of the contract and issued an injunction, but limited enforcement to an 18-mile
radius of Defiance. Relief was granted for three years from the date of the judgment entry, September 18, 1973.
Appellee posted bond, and continued to practice veterinary medicine pending appeal.

The Court of Appeals reversed, holding the contract an unreasonable restraint of trade, and rendered final judgment
dismissing the complaint. The court also held that appellant was entitled to no more relief than requested in the
complaint, i. e., three years from termination of the contract.

*23 The cause is now before this court pursuant to the allowance of a motion to certify the record.
Weaner, Hutchinson, Zimmerman & Bacon, Karl H. Weaner and Roger V. Bacon, Defiance, for appellant.

Hoeffel, Funkhouser & Short, John H. Hanna and Thomas J. Short, Napoleon, for appellee.

**546 PAUL W. BROWN, Justice.

Appellant seeks to enjoin the appellee from practicing veterinary medicine in violation of a contract between the
parties. The Court of Appeals, relying upon Extine v. Williamson Midwest (1964), 176 Ohio St. 403, 200 N.E.2d
297, refused to enforce the contract and denied relief. We reverse.

I

In Briggs v. Butler (1942), 140 Ohio St. 499, 45 N.E.2d 757, and in Extine, this court applied the so-called ‘blue
pencil’ test to construe two employment contracts. The ‘blue pencil’ test provides that if unreasonable provisions
exist in such a contract, they may be stricken, if devisible, but not amended or modified. It also provides that if
restrictions are unreasonable and indivisible, the entire contract fails.

In Briggs, an employee signed a contract with The Welcome Wagon Service Company, promising not to engage in
similar employment for five years following termination, either in Toledo, Ohio, or anywhere else in the United
States or Canada where the employer did business. The Court of Common Pleas applied the ‘blue pencil’ test, and
struck all territorial restrictions beyond Toledo. This court affirmed.
In Extine, an employee signed a contract providing that, for two years following termination of employment, he
would not engage in the same line of business as his employer, on his own or in concert with other former
employees, nor attempt to direct business from his employer, especially customers with whom he had dealt. This
court, finding the prohibition on engaging in the same line of business of contain no limitation as to space, applied
*24 the ‘blue pencil’ test, and severed the offending portion from the contract.

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We applied the ‘blue pencil’ test in Extine, however, with reluctance. We recognized that a growing minority of
courts had abandoned the rule, and were holding all employment contracts valid if modification made them
reasonable. We now recognize that application of the ‘blue pencil’ test has produced both arbitrary and inconsistent
results, and believe it is time to reexamine the doctrine.

Originally, all agreements in restraint of trade without consideration therefor were held presumptively void. Mitchel
v. Reynolds (1711), 1 P.Wms. 181, 24 Eng.Rep. 347.Working men entered skilled trades only by serving apprentice-
ships. Mobility was minimal. Restrictive covenants either destroyed a man’s means of livelihood, or bound him to
his master for life. Later, as the character of the work-a-day world became more flexible, courts sought a means to
lift the blanket prohibition on employment restrictions. One result was the ‘blue pencil’ test, which promised
simplicity and clarity, and allowed courts to claim they were not actually ‘rewriting’ private contracts.

In practice, however, the test has not worked well. Because it precludes modification or amendment of contracts, the
entire contract fails if offending provisions cannot be stricken. Because divisible provisions sometimes contain
integral parts of the agreement, ‘blue penciling’ those provisions may render the contract useless. Because
employers seek to ensure that provisions are not unreasonable, and therefore severed, employees may gain the
benefit of overly-lenient employment restrictions.

Thus, many courts have abandoned the ‘blue pencil’ *25 test in favor of a rule of ‘reasonableness,’**547 which
permits courts to determine, on the basis of all available evidence, what restrictions would be reasonable between
the parties. Essentially, this test differs from the ‘blue pencil’ test only in the manner of modification allowed. It
permits courts to fashion a contract reasonable between the parties, in accord with their intention at the time of
contracting, and enables them to evaluate all the factors comprising ‘reasonableness’ in the context of employee
covenants.

***

Among the factors properly to be considered are: ‘(t)he absence or presence of limitations as to time and space, * * *
whether the employee represents the sole contact with the customer; whether the employee is possessed with
confidential information or trade secrets; whether the covenant seeks to eliminate competition which would be
unfair to the employer or merely seeks to eliminate ordinary competition; whether the covenant seeks to stifle the
inherent skill and experience of the employee; whether the benefit to the employer is disproportional to the
detriment to the employee; whether the covenant operates as a bar to the employee’s sole means of support; whether
the employee’s talent which the employer seeks to suppress was actually developed during the period of
employment; and whether the forbidden employment is merely incidental to the main employment.’ Extine, supra, at
406, of 176 Ohio St., at 299 of 200 N.E.2d. See Arthur Murray Dance Studios of Cleveland v. Witter (1952), 62
Ohio Law Abst. 17, 105 N.E.2d 685.

Appellee argues that adoption of a rule of reasonableness would allow employers to dictate restraints without fear,
knowing that judges will rewrite contracts if they are taken to court. Such a contention is without merit. Most
employers who enter contracts do so in good faith, and seek only to protect legitimate interests. In fact, relatively
few employment contracts reach the courts.

‘[1][2] In determining the validity of a covenant or agreement in restraint of trade, each case must be decided on its
own facts * * *.’ Extine, supra, at 403, of 176 Ohio St., at 297 of 200 N.E.2d. We hold that a covenant not to
compete which imposes unreasonable restrictions upon an employee will be enforced to the *26 extent necessary to
protect the employer’s legitimate interests. A covenant restraining an employee from competing with his former

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employer upon termination of employment is reasonable if it is no greater than is required for the protection of the
employer, does not impose undue hardship on the employee, and is not injurious to the public. Courts are
empowered to modify or amend employment agreements to achieve such results.

II

Appellant’s complaint sought relief ‘for a period of three years from his (appellee’s) termination of his employment
under the employment contract.”The trial court enjoined appellee for three years from the date of the court’s entry.
The Court of Appeals reversed.

***

In framing its judgment entry, the Court of Common Pleas restricted enforcement of the covenant to a radius of 18
miles, and enjoined appellee for three years from the date of said entry. The record, however, does not indicate how
such determination was made. Because this court holds, for the first time, that a trial court may enforce a covenant
‘to the extent necessary to protect an employer’s legitimate interests,’ we direct that this cause be remanded to the
Court of Common Pleas, so that court may ascertain if its initial finding conforms **549 with the test established
today. That court is now specifically empowered to construct a reasonable covenant between the parties, and to grant
injunctive relief, if appropriate, for the period of time to which appellant may be entitled.

***

The judgment of the Court of Appeals is reversed, with instructions to remand the cause to the Court of Common
Pleas.

Judgment reversed.

END OF DOCUMENT