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Glenn Matthews and Maintenance Supply Co.3/1/2000
J. A44038/99
1 This is an appeal from the denial of Glenn Matthews' post trial motion seeking removal of a non-suit in an action for breach of a restrictive covenant in a written employment contract. We find that in granting a non-suit in this case the trial court misapplied the law, which provides that a non-suit may only be granted in the limited circumstance where the plaintiff has clearly failed to establish the elements of the cause of action, giving the plaintiff the benefit of all favorable evidence and inferences therefrom. Therefore, we reverse.
2 Appellant Matthews claims that Unisource Worldwide Inc. (Unisource) breached the restrictive covenant in dealing with customers that Matthews brought with him when he went to work for Unisource or customers he developed while working there. Under Matthews' employment contract, dated January 17, 1992, Matthews agreed to work as a commissioned salesman for Unisource's predecessor, Weiss Brothers Miquon, Inc. ("Weiss"). The contract provided, inter alia:
5. ...it is specifically understood and agreed by the parties that your employment by Weiss is on a "trial basis" through April 30, 1992, and that either party may choose to terminate your employment and this Agreement for any reason whatsoever without any liability whatsoever.
....
8. After termination for any reason, Weiss shall not sell, unless authorized in writing by you to do so, any of your customers. Your customers are reflected on the attached Exhibit "A", to which will be added new customers brought to Weiss by you during your employment.
3 In July of 1992, six months after the parties entered the agreement, Weiss terminated the contract during an extension of the trial period referred to above. Thereafter, Matthews continued working for Weiss as an employee-at-will until August 10, 1994, when he was fired.
4 Matthews instituted a civil action for breach of contract. A non- jury trial began on February 2, 1999. On February 5, 1999, the trial court granted Unisource's motion for non-suit on the basis that Matthews' customer list, Exhibit A, was not attached to the contract in the complaint or introduced into evidence at the trial. The court found that Matthews had failed to establish that the parties had agreed to an essential term of the contract, i.e., the identity of Matthews' customers. Alternatively, the trial court found that even had the parties agreed to that term, the contract was terminated during the trial period and, therefore, Unisource was not liable to Matthews. Matthews' post trial motion seeking removal of the non-suit was denied. This timely appeal followed.
5 On appeal, our standard of review from the entry of a compulsory non-suit is well settled:
t is proper only if the fact finder, viewing all of the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established. When a non-suit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. A compulsory non-suit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in favor of the plaintiff. The fact finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture. Joyce v. Boulevard Therapy & Rehab., 694 A.2d 648, 652-53 (Pa.Super. 1997).
6 To prevail on a breach of contract claim, a plaintiff must establ
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