EQT Production v. Bochter, R.

J-A07040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EQT PRODUCTION COMPANY IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ROBERT M. BOCHTER, II; MATTHEW

PASQUINELLI; VENTURE ENERGY

SOLUTIONS, LLC; AND CONFLUENCE

ENERGY CONSULTANTS, LLC

Appellee No. 1405 WDA 2014

Appeal from the Order Entered August 4, 2014

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): 11-005691

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED JULY 24, 2015

Appellant, EQT Production Company (EQT), appeals from the August 4,

2014 order denying its motion for preliminary injunctive relief, seeking to

enjoin Appellees Robert M. Bochter, II, Matthew Pasquinelli, Venture Energy

Solutions, LLC, and Confluence Energy Consultants, LLC (collectively,

Appellees) from competing with EQT for two years, and to create a

constructive trust relative to certain disputed proceeds, among other relief.

After careful review, we affirm in part, reverse in part and remand.

The trial court aptly summarized the factual history of this case as

follows.

[] EQT is a large and well-established

corporation engaged in natural gas production. As a

J-A07040-15

necessary part of this business, EQT engages in the

lease and, occasionally, purchase of mineral rights

for exploration and development. The primary face

of the company in these efforts, when dealing with

landowners, are EQT’s landmen.

In 2014[,] Defendants Robert M. Bochter and

Matthew Pasquinelli[,] were among those landmen.

They were, to all appearances, successful and well-

compensated employees of EQT. In January of that

year, along with another partner not party to this

action, they formed two companies, Venture Energy

Solutions, LLC (Venture) and Confluence Energy

Consultants, LLC (Confluence). At least one of

these, like EQT, was in the business of acquiring

mineral rights. Bochter and Pasquinelli continued

their employment with EQT notwithstanding their

new status as competitors.

Soon after, [Bochter and Pasquinelli], through

Venture, entered into a deal to acquire an option to

purchase mineral rights from Carl and Alice Hildreth

(the Hildreth deal). They used EQT’s Geographic

Information System (GIS), a tool owned by EQT and

used by their landmen to organize both public and

proprietary information for use in acquiring mineral

rights. [Bochter and Pasquinelli] also saved

spreadsheets of public information produced using

the GIS to a Google Drive. The evidence does not

indicate that they also extracted and retained

proprietary information from the GIS, although

Bochter admitted to looking at non-public EQT

information regarding the Hildreth property. Venture

quickly resold the option to purchase, making a

significant profit. Bochter and Pasquinelli were

thereafter suspended then fired by EQT.

Venture also engaged in a transaction for

mineral rights with Charles and Eileen Schilling, but

this deal was not established by evidence to be

related in any way to proprietary EQT information.

EQT is now seeking monetary damages for

Bochter and Pasquinelli’s actions. In advance of its

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damage case, EQT is seeking Preliminary Injunctive

relief from th[e trial c]ourt, demanding that

[Appellees] be enjoined from doing business in

particular geographic areas and that a constructive

trust be established to hold the proceeds of the

Hildreth deal.

Trial Court Opinion, 10/23/14, at 3-4 (footnote omitted).

On April 1, 2014, EQT filed a complaint against Appellees seeking

damages and equitable relief for violation of the Pennsylvania Uniform Trade

Secrets Act,1 tortious interference with contract and prospective business

relations, tortious interference with prospective economic advantage, breach

of fiduciary duty/duty of loyalty, civil conspiracy, conversion, unjust

enrichment, and unfair competition. Contemporaneously with its complaint,

EQT filed a motion for an order to preserve documents, an order for

expedited discovery, and a motion for a special preliminary injunction. On

April 8, 2014, the trial court granted EQT’s motion for an order to preserve

documents, and separately ordered the parties to agree to a discovery

schedule. On April 15, 2014, EQT filed a renewed motion for a special

preliminary injunction. Following motions to compel certain discovery, EQT

filed a motion for adverse inferences based on Appellees’ lack of compliance

with discovery requests and orders. A hearing on EQT’s renewed motion for

preliminary injunction was held on June 5, 6, 10, and 16, 2014. On August

4, 2014, the trial court denied EQT’s renewed motion for adverse inferences

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1

12 Pa.C.S.A. §§ 5301-5308.

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and its motion for preliminary injunction. EQT filed a timely notice of appeal

on August 28, 2014.2

On appeal, EQT raises the following issues for our review.

[1]: Did the trial court err in entering an [o]rder

denying [EQT’S] motion for adverse inferences, when

adverse inferences are warranted because

[Appellees] spoliated evidence, withheld or failed to

produce evidence, and violated court orders

regarding preserving and producing evidence?

[2]: Did the trial court err in entering an [o]rder

denying [EQT’S] motion for a preliminary injunction

without considering whether a stolen compilation of

information was a trade secret?

[3]: Did the trial court err in entering an [o]rder

denying [EQT’S] motion for a preliminary injunction

imposing a constructive trust on all revenues that

[Appellees] received improperly, when an injunction

is necessary to preserve the status quo by

preventing [Appellees] from depleting the improperly

received revenues?

[4]: Did the trial court err in entering an [o]rder

denying [EQT’S] motion for a preliminary injunction

without addressing [EQT’S] other requests for

relief—enjoining [Appellees] from continuing to

possess or use EQT’s property, requiring [Appellees]

to immediately return EQT’s property, and requiring

[Appellees] to provide an accounting of revenues

received improperly—when these forms of relief were

appropriately raised before the trial court?

EQT’s Brief at 3-4.

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2

EQT and the trial court have complied with Pennsylvania Rule of Appellate

Procedure 1925.

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EQT’s first allegation of error faults the trial court for denying its

motion for adverse inferences due to Appellees’ discovery violations and

spoliation of evidence, and failing to apply those inferences in its

determination of EQT’s motion for a preliminary injunction. Id. at 30.

Before addressing the merits of EQT’s claim, we note the following principles

guiding our review.

“Spoliation of evidence” is the failure to preserve or

the significant alteration of evidence for pending or

future litigation. Pyeritz v. Commonwealth, 613

Pa. 80, 32 A.3d 687, 692 (2011). “When a party to

a suit has been charged with spoliating evidence in

that suit (sometimes called “first-party spoliation”),

we have allowed trial courts to exercise their

discretion to impose a range of sanctions against the

spoliator.” Id. (citing Schroeder v.

Commonwealth, Department of Transportation,

551 Pa. 243, 710 A.2d 23, 27 (1998)) (footnotes

omitted). This Court has stated:

“When reviewing a court’s decision to grant or

deny a spoliation sanction, we must determine

whether the court abused its discretion.”

Mount Olivet Tabernacle Church v. Edwin

L. Wiegand Division, 781 A.2d 1263, 1269

(Pa. Super. 2001) (citing Croydon Plastics

Co. v. Lower Bucks Cooling & Heating, 698

A.2d 625, 629 (Pa. Super. 1997) (recognizing

that “[t]he decision whether to sanction a

party, and if so the severity of such sanction, is

vested in the sound discretion of the trial

court”)). Such sanctions arise out of “the

common sense observation that a party who

has notice that evidence is relevant to litigation

and who proceeds to destroy evidence is more

likely to have been threatened by that

evidence than is a party in the same position

who does not destroy the evidence.” Mount

Olivet, 781 A.2d at 1269 (quoting Nation–

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Wide Check Corp. v. Forest Hills

Distributors, Inc., 692 F.2d 214, 218 (1st

Cir. 1982)). Our courts have recognized

accordingly that one potential remedy for the

loss or destruction of evidence by the party

controlling it is to allow the jury to apply its

common sense and draw an “adverse

inference” against that party. See Schroeder

v. Commonwealth of Pa., Dep’t of Transp.,

551 Pa. 243, 710 A.2d 23, 28 (1998). …

To determine the appropriate sanction

for spoliation, the trial court must weigh three

factors:

(1) the degree of fault of the party who

altered or destroyed the evidence; (2)

the degree of prejudice suffered by the

opposing party; and (3) whether there is

a lesser sanction that will avoid

substantial unfairness to the opposing

party and, where the offending party is

seriously at fault, will serve to deter such

conduct by others in the future.

Mount Olivet, 781 A.2d at 1269–70 (quoting

Schmid v. Milwaukee Elec. Tool Corp., 13

F.3d 76, 79 (3d Cir.1994)). …

Creazzo v. Medtronic, Inc., 903 A.2d 24, 28–29

(Pa. Super. 2006).

Parr v. Ford Motor Co., 109 A.3d 682, 701-702 (Pa. Super. 2014) (en

banc) (footnote omitted), appeal denied, --- A.3d ---, 2015 WL --------, No.

46 EAL 2015 (Pa. 2015) (per curiam).

Evidentiary rulings are committed to the sound

discretion of the trial court, and will not be overruled

absent an abuse of discretion or error of law. In

order to find that the trial court’s evidentiary rulings

constituted reversible error, such rulings must not

only have been erroneous but must also have been

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harmful to the complaining party. Appellant must

therefore show error in the evidentiary ruling and

resulting prejudice, thus constituting an abuse of

discretion by the lower court.

Whitaker v. Frankford Hosp. of City of Phila., 984 A.2d 512, 521-522

(Pa. Super. 2009) (internal quotation marks and citations omitted).

EQT specifically challenges the trial court’s determination that it did

not prove spoliation occurred. EQT’s Brief at 31-33. “The trial court denied

EQT’s motion for adverse inferences because it inexplicably held that EQT

did not demonstrate spoliation of evidence. The court never explained how

it arrived at that conclusion and it is impossible to see how it could have.”

Id. at 31. EQT recounts the evidence of Appellees’ non-compliance with the

trial court’s discovery orders and testimony tending to establish that

Appellees deleted information from computers that were provided. Id. EQT

concludes “[t]he deletion of computer files is undeniably spoliation of

evidence for which an adverse inference should be granted. … The trial

court’s failure to acknowledge these admitted deletions as spoliation is

reversible error.” Id. at 32-33.3

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3

Implicit in EQT’s argument is the contention the trial court should have

determined that discovery was complete for the purposes of its preliminary

injunction motion so that Appellees’ alleged violations of discovery orders

could lead to the conclusion of spoliation of the evidence and to the

imposition of sanctions. It is apparent the trial court declined to do so. In

its October 23, 2014 opinion, the trial court noted that the underlying case

was in its “early stages,” and discovery was an “ongoing process”. Trial

Court Opinion, 10/23/14, at 5. The trial court offered EQT additional time to

seek compliance of the discovery orders. Id. “[EQT] presented two Motions

(Footnote Continued Next Page)

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The trial court found, however, that EQT did not establish that

spoliation in fact occurred. Trial Court Opinion, 10/23/14, at 6.

The essential argument of [EQT] in its Motion for

Adverse Inference seems to be that [Appellees] must

have spoliated evidence because [EQT] failed to find

the proprietary information it expected to appear

upon discovery, or that the [Appellees] had not thus

far in the early stages of this litigation fully produced

all information requested by [EQT]. This is not, and

cannot be, sufficient for an adverse inference.

Id. at 5. Based on our review of the record, we conclude the trial court’s

factual findings in this regard are supported and its evidentiary ruling in

refusing to accept adverse inferences at this stage of the proceedings was

not an abuse of its discretion.

EQT’s remaining issues on appeal contain various allegations of trial

court error in denying its motion for preliminary injunction. We recount the

_______________________

(Footnote Continued)

to Compel discovery in advance of the hearing on their Motion for

Preliminary Injunction. EQT was offered an opportunity by this [c]ourt to

delay the hearing until its discovery requests had been fully answered. It

chose to go forward without [Appellees’] full compliance.” Id.

“[I]n general, discovery orders are not final, and are therefore

unappealable.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super.

2008), quoting Jones v. Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004).

“Discovery sanction orders are interlocutory and not appealable until final

judgment in the underlying action.” Baranowski v. Am. Multi-Cinema,

Inc., 688 A.2d 207, 208 n.1 (Pa. Super. 1997) (citation omitted), appeal

denied, 704 A.2d 633 (Pa. 1997). Accordingly, to the extent EQT challenges

the trial court’s underlying discovery and sanction orders, as opposed to the

trial court’s evidentiary decisions based on the then current status of

discovery at the preliminary injunction hearing, we are without jurisdiction to

address such claims. Id.; see also Pa.R.A.P 311, 341.

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following principles directing our review of these issues. “[T]he scope of

review in preliminary injunction matters is plenary.” Warehime v.

Warehime, 860 A.2d 41, 46 n.7 (Pa. 2004)

[O]ur review of a trial court’s order granting or

denying preliminary injunctive relief is highly

deferential. This highly deferential standard of

review states that in reviewing the grant or denial of

a preliminary injunction, an appellate court is

directed to examine the record to determine if there

were any apparently reasonable grounds for the

action of the court below. We will find that a trial

court had apparently reasonable grounds for its

denial of injunctive relief where the trial court has

properly found that any one of the following essential

prerequisites for a preliminary injunction is not

satisfied.

There are six essential prerequisites that a

party must establish prior to obtaining preliminary

injunctive relief. The party must show: 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 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. The burden is on

the party who requested preliminary injunctive

relief[].

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Id. at 46-47 (internal quotation marks, citations and footnotes omitted).

“We may interfere with the chancellor’s decision only if the certified record

reveals that no grounds exist to support the decree, or that the rule of law

upon which the court relied was palpably erroneous or misapplied.” W.

Penn Specialty MSO, Inc. v. Nolan, 737 A.2d 295, 298 (Pa. Super. 1999)

(citation omitted).

EQT first claims the trial court erred in failing to determine if the public

information component of its GIS compilation, obtained and used by

Appellees, qualified as a trade secret. EQT’s Brief at 41. “The trial court []

erred by not analyzing whether EQT’s GIS compilation is entitled to trade

secret protection.” Id. EQT argues that compilations of public information

are included in the definition of trade secrets under common law and the

Pennsylvania Uniform Trade Secrets Act. Id. at 42-43, citing 12 Pa.C.S.A.

§ 5302. EQT then develops an argument for why trade secret status applies

to the GIS compilation in this case. Id. at 43-49. We conclude this

argument misses the point of the trial court’s ruling.

The trial court in fact allowed for the possibility that the GIS

compilation deserved trade secret protection. “[The trial court does] not

doubt that the GIS is a valuable tool for EQT, or that it, used as a tool for

the manipulation of data to achieve particular ends, is worthy of protection

as a trade secret.” Trial Court Opinion, 10/23/14, at 7. However, the trial

court determined that this fact did not excuse the lack of an evidentiary

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showing that Appellees continued to possess or have access to the GIS tool.

Id.

Without access to [the GIS], and without any

evidence that they retain any other proprietary

information which belongs to EQT, as distinguished

from public information also manipulable by the GIS,

there is no indication that any further harm will

ensue from their continued business operation, apart

from the simple fact of competition, from which EQT

has no protection.

Id. Consequently, the trial court determined that the sixth prerequisite

enumerated by Warehime was not established. “The offending activity

here is in the past. [Appellees] have no access to EQT’s GIS database, and

thus no ability, even if inclination, to repeat it. Estopping their future

business dealings will not change this, for good or ill….” Id.

Upon review of the record, we conclude the findings of the trial court

are supported. Absent EQT’s sought-after adverse inferences, the trial court

was within its discretion as evaluator of credibility and finder of fact to

conclude the evidence of Appellees’ continued ability to use proprietary

information was lacking. Accordingly, we conclude the trial court had

“apparently reasonable grounds” for its decision to deny preliminary

injunctive relief. See Warehime, supra.

EQT next faults the trial court for failing to grant the portion of its

preliminary injunction motion seeking to impose a temporary constructive

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trust on Appellees, relative to the proceeds from the Hildreth deal.4 EQT’s

Brief at 50. Specifically, EQT argues, “[t]he [trial] court expressly

____________________________________________

4

We recognize that it may not be appropriate to use the term “constructive

trust” by a party seeking the temporary freezing or sequestering of assets as

a form of preliminary injunctive relief.

A constructive trust arises when a person holding

title to property is subject to an equitable duty to

convey it to another on the ground he would be

unjustly enriched if he were permitted to retain it. …

The controlling factor in determining whether a

constructive trust should be imposed is whether it is

necessary to prevent unjust enrichment.

Santoro v. Morse, 781 A.2d 1220, 1231 (Pa. Super. 2001) (citations

omitted, emphasis added). Thus, a constructive trust is a final equitable

remedy, because preliminary limitations on an asset would not require its

conveyance to another. Based on this understanding, this Court has held

that a trial court’s grant of a constructive trust, purportedly as a preliminary

injunction, was in fact a final order. Robbins v. Kristofic, 643 A.2d 1079,

1082 (Pa. Super. 1994), appeal denied, 651 A.2d 541 (Pa. 1994). In

Robbins, the trial court entered an order as follows. “[I]t is hereby

ORDERED that a preliminary injunction issue requiring that [the holder of a

fund in Defendant’s name] be imposed with a constructive trust in favor of

Plaintiff and may not be withdrawn without further order of court.” Id. at

1081-1082. In rejecting the appellant’s challenge to the trial court’s grant of

the preliminary injunction, this Court held that the trial court’s imposition of

the constructive trust was a final order granting a permanent remedy upon a

determination of the merits, rendering the preliminary injunction portion of

the trial court’s order moot. Id. at 1082. Notwithstanding Robbins, this

Court in Santoro upheld “the trial court in the exercise of its broad equity

powers [to] order the temporary imposition of a constructive trust so

as to preserve the assets of [Defendant,] pending trial.” Santoro, supra at

1231 (emphasis added). Still other cases address this type of preliminary

injunctive relief without any reference to the term “constructive trust”. See,

e.g., Citizens Bank of Pa. v. Meyers, 872 A.2d 827 (Pa. Super. 2005).

Instantly, the relief sought by Appellant, i.e., to prevent dissipation of the

Hildreth deal proceeds pending the litigation, was clear regardless of

whether such relief is properly termed a temporary “constructive trust”, and

we proceed with this understanding in mind.

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recognized that EQT could be harmed by Defendants’ dissipation of the

Hildreth proceeds, but it concluded the harm of denying Defendants access

to their ill-gotten gains was higher. The [trial] court’s analysis was wrong as

a matter of law.” Id. at 53.

In assessing the evidence supporting EQT’s request for preliminary

injunctive relief in this regard against the six Warehime factors, the trial

court did acknowledge the first factor, immediate and irreparable harm to

EQT, was shown. Trial Court Opinion, 10/23/14, at 7-8. “EQT faces the risk

that allegedly profligate opposing parties will spend all proceeds of the

Hildreth deal and any subsequent business, thus reducing EQT’s ability to

collect any future judgments.” Id. Indeed, we conclude that finding is

supported by the record, as Appellee Bochter testified that $525,000 of the

$950,000 made from the Hildreth deal was already disbursed. N.T., 6/5-6,

10/14, at 165-166.5 However, the trial court determined the second and

third factors, i.e., the preliminary injunction will not substantially harm

Appellees, and any relief will restore the parties to their respective positions,

were not met. Id.

[Appellees] would be denied access to a significant

sum of money made in the exercise of that

profession until such a time as the underlying action

here is resolved. These are very serious harms for

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5

Notwithstanding this testimony, Appellees assert that EQT presented no

evidence of dissipation or likelihood of dissipation. Appellees’ Brief at 15.

However, as noted infra, the trial court did determine Appellees would likely

need to access those funds for further capital investment.

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small operators in a dynamic business that requires

significant capital investments to be made on short

notice.

Id. at 8.

We agree with EQT that the trial court misapplied the Warehime

factors. In Ambrogi v. Reber, 932 A.2d 969 (Pa. Super. 2007), appeal

denied, 952 A.2d 673 (Pa. Super. 2008), the defendants made an argument,

similar to the trial court’s position here, that restrictions on certain assets

would interfere with its ability to conduct its business.

[Defendants/Appellants] contend that the preliminary

injunction entered by the trial court in this case imposes

an unfair and intolerable burden by preventing them from

running their business in the accustomed manner. They

also complain that the preliminary injunction changes,

rather than preserves, the status quo between the parties

because it places Appellees in a better position than they

occupied before the injunction.

Id. at 978-979.

In response, the Ambrogi Court noted that because the goal of a

preliminary injunction was to preserve the status quo prior to the wrongful

act, the inability to use assets generated by the wrongful act cannot be

considered a hardship to the defendants. Id. at 979. “The relevant

standard requires that an injunction must address the status quo as it

existed between the parties before the event that gave rise to the lawsuit,

not to the situation as it existed after the alleged wrongful act but before

entry of the injunction.” Id. The Court held “that Pennsylvania law does not

preclude a trial court from granting a preliminary injunction to prevent

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dissipation of assets,” and affirmed the trial court’s preliminary injunction.

Id. at 975.

Like the defendants position in Ambrogi, the trial court here focuses

on the status quo at the time the preliminary injunction would have taken

effect rather than the status quo prior to alleged improper conduct by

Appellees in securing the Hildreth deal. See Trial Court Opinion, 10/23/14,

at 7-8. Viewed from the proper timeframe, we conclude Appellees are not

subject to a greater harm by an inability to use the disputed funds in their

ongoing business, because such allegedly ill-gotten funds would not have

been available to them then. See Ambrogi, supra at 975. Thus, we

conclude the trial court’s denial of preliminary injunctive relief limiting the

dissipation of the Hildreth deal proceeds involved a “rule of law upon which

the court relied[, which] was palpably erroneous or misapplied.” W. Penn

Specialty MSO, Inc., supra.

The trial court also deems the fifth Warehime factor, the relief is

suited to abate the harm, is unmet.6 Trial Court Opinion, 10/23/14, at 8.

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6

The trial court, in its October 23, 2014 opinion, did not specifically address

the remaining Warehime factors in connection with its denial of preliminary

injunctive relief in restricting further dissipation of the Hildreth deal

proceeds. We conclude, based on our review of the record, that these do

not present an impediment to relief. The trial court has acknowledged

generally that EQT’s right to relief is likely. “[Appellees] use of EQT’s GIS

led to one deal for a discrete and known amount of money.” Trial Court

Opinion, 10/23/14, at 7. “To establish a clear right to relief, the party

seeking an injunction need not prove the merits of the underlying claim, but

need only demonstrate that substantial legal questions must be resolved to

(Footnote Continued Next Page)

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EQT asserts the trial court “erred by holding that a constructive trust would

not abate Defendants’ past competition using EQT’s proprietary information.”

EQT’S Brief at 54. The trial court held as follows. “The offending activity

here is in the past. [Appellees] have no access to EQT’s GIS database, and

thus no ability… to repeat it. Estopping their future business dealings will

not change this, for good or ill, nor will placing the proceeds of the

Hildreth deal into trust.” Trial Court Opinion, 10/23/14, at 8 (emphasis

added).

Again, we agree with EQT that the trial court relied on an erroneous

application of the law. The trial court conflates the harm intended to be

abated by EQT’s distinct requests for injunctive relief. EQT’s first request

sought to restrict Appellees from competing through continued use of EQT’s

proprietary information. EQT’s Complaint, 4/1/14, at 33. Contrary to the

trial court’s conclusion, this was not the harm sought to be abated by its

request for injunctive relief to restrict the dissipation of the Hildreth deal

proceeds. Id. at 34. Clearly, prohibiting dissipation will not prevent future

use of proprietary information, but that is not the targeted harm in EQT’s

request for this relief, which was to prevent Appellees from contriving to

become judgment-proof. EQT’s Brief at 51; see also Ambrogi, supra at

_______________________

(Footnote Continued)

determine the rights of the parties.” SEIU Healthcare Pa. v.

Commonwealth, 104 A.3d 495, 506 (Pa. 2014) (citation omitted).

Additionally, we discern no adverse impact to the public interest. See

generally Warehime, supra.

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975. Consequently, we conclude that the trial court misapplied the law and

the Warehime factors to the facts of this case and unreasonably denied

EQT’s request to restrict the dissipation of the Hildreth deal proceeds.

Accordingly, we reverse that aspect of the trial court’s August 4, 2014 order

and remand for further proceedings consistent with this memorandum.

In its final issue, EQT faults the trial court for failing to rule on its

remaining requests for relief, including enjoining Appellees from continued

possession of EQT’s property, compelling return of any such property, and

providing an accounting. EQT’s Brief at 54-55. Relative to these requests

the trial court noted as follows. “[EQT] request[s] other forms of possible

injunctive relief, including a number of points which would be properly raised

in a Motion to Compel, but as those were never argued or briefed, they will

not be addressed.” Trial Court Opinion, 10/23/14, at 4 n.1. We discern no

error. While EQT insists it consistently argued for these bases of relief, we

note the first two share the same infirmity of proof denoted by the trial court

relative to its denial of preliminary injunctive relief connected to the

requested restriction on competition by Appellees. We agree also the

request for an accounting is more properly seen as a motion to compel but

the trial court is free to address that request in light of our remand of this

case.

Based on all the preceding, we affirm the trial court’s evidentiary

ruling refusing to apply adverse inferences to its determination of the merits

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of EQT’s request for a preliminary injunction. Additionally, to the extent EQT

challenges the trial court’s discovery rulings, the same are interlocutory and

not subject to our review. We further affirm that portion of the trial court’s

August 4, 2014 order denying EQT’s request for a preliminary injunction

relative to its request to restrict Appellees’ competition with EQT. However,

because the trial court misapplied the law and the Warehime factors to

EQT’s request for preliminary injunctive relief in the form of a restriction on

Appellees from dissipation of the Hildreth deal proceeds, we reverse that

aspect of the trial court’s August 4, 2014 order and remand for further

proceedings consistent with this memorandum.7

Order affirmed in part and reversed in part. Case remanded. Motion

to Strike granted. Jurisdiction relinquished.

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7

On January 12, 2015, Appellees filed with this Court a motion to strike

Hearing Exhibit 3 from EQT’s Amended Designation of record, because it is

not contained in the certified record. A review of the record reveals that, at

the conclusion of the third day of the hearing on the preliminary injunction,

the trial court directed the parties to submit a stipulation and or objections

relative to the admission of exhibits. N.T., 6/5-6,10/14, at 471. No such

stipulation or copy of the exhibits is contained in the record certified to this

Court. Accordingly, Appellee’s motion is granted and the exhibit was not

considered in our disposal of the merits of this appeal. See PHH Mortg.

Corp. v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014) (noting “this Court

may consider only the facts that have been duly certified in the record when

deciding an appeal,” and striking attachments to a brief that did not appear

in the certified record).

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J-A07040-15

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015

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