Silver v. Goldberger
| Decision Date | 13 February 1963 |
| Docket Number | No. 183,183 |
| Citation | 188 A.2d 155,231 Md. 1 |
| Parties | Daniel N. SLIVER, t/a Guilford Personnel Service v. Arnold GOLDBERGER et al., Indiv. and t/a Cross Country Consultants. |
| Court | Maryland Court of Appeals |
Daniel N. Silver, Baltimore, for appellant.
Stanford G. Gann and Calman A. Levin, Baltimore (Levin, Gann & Hankin, Baltimore, on the brief), for appellees.
Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.
The primary question presented by this appeal is whether a former employer may invoke the restrictive covenants contained in the contracts of employment between himself and former employees who are now competitors. Other questions involve the propriety of the actions of the chancellor with respect to the taking of depositions and the interpretation of certain rules of procedure. There is also a motion to dismiss the appeal as to a question presented by the appellant.
There are two appeals from the decree passed by the chancellor: that of the plaintiff-appellant (Daniel N. Silver, trading as Guilford Personnel Service) from the dismissal of his bill and amended bill for an injunction; and that of the defendants-appellees (Arnold Goldberger and Phillip Bryzman, individually and trading as Cross-Country Consultants) from the denial of their claim as individuals for wages or commissions.
In separate employment contracts, the plaintiff Silver, who owns and operates an employment agency, agreed to pay the defendants a commission based on the collectible placements they made. The contracts further provided that neither of the employees would compete with the employer for a period of two years from termination of employment. With respect to Goldberger, the limited area was 'any community in which Guilford Personnel Service has offices.' As to Bryzman, the area was restricted to 'a radius of fifty miles from any community in which Guilford Personnel Service has offices.'
After having been employed for several years, the employees notified the employer one day that they were terminating their employment, and on the next day opened an employment agency of their own in Baltimore City two blocks from the office of their former employer in that city. About three weeks later, upon the filing of a bill for injunctive relief, a temporary order was issued restraining the defendants from continuing to operate their business (except as to contracts entered into three days prior to the filing of the bill) for the period of seven days.
In addition to an answer (admitting the undisputed facts but denying the material allegations and in which an accounting was sought for alleged unpaid wages or commissions), the defendants also filed a demurrer to the bill (subsequently withdrawn) and a motion to dissolve the restraining order.
The record discloses that the hearing, which had been set to consider the motion to dissolve, developed into a full scale trial of the case on the merits. According to the chancellor, there was no limitation on the character of the testimony produced, and the testimony was allowed to range beyond the limited question raised by the motion to dissolve and covered as well the prayers for the relief sought by the bill of complaint. Besides testifying in his own behalf at length and calling another witness who did likewise, the plaintiff called the defendants as adverse witnesses and examined them in detail. At the close of the evidence offered by their opponent, the defendants (pursuant to Maryland Rule 535) moved for a dismissal on the ground that upon the facts and the law the plaintiff had shown no right to relief. The motion was not then granted, but several days later, when the temporary restraining order was dissolved, the chancellor stated that the allegations of the bill were inadequate and that the proof was insufficient to entitled the plaintiff to the relief sought, but instead of dismissing the bill at that time, the chancellor allowed the plaintiff (if he desired) to amend the bill and present proof at another hearing to show (if he could) that he was entitled to injunctive relief because the relationship between the defendants and certain specified clients of the plaintiff--which had arisen during the course of the employment of the defendants by the plaintiff--was such that the employees leaving the employment of the employer would establish a reasonable presumption that they would take the clients with them.
The plaintiff filed an amended bill and the defendants, in addition to a motion ne recipiatur and a demurrer, filed an answer, in which their claim for wages or commissions (contrary to the provisions of Rule 314 d 1 then in effect) was again included. But when the case came on to be heard on the amended bill and the answer thereto--after a postponement to allow the plaintiff to employ new counsel--the plaintiff, admitting that it was 'pointless' to do so, declined to offer evidence on the only point that had been left open to him by the chancellor. And, while the plaintiff insisted that he still had a right 'to proffer evidence of all counts of the bill of complaint,' it is clear, from a remark made at the time by the chancellor, that what the plaintiff really wanted to do was to retry the case on his theory of the law rather than the theory suggested by the chancellor.
In the interim between the granting of postponement and the date set for the final hearing, the defendants received from the plaintiff written notice (by way of letters) of his desire to take their depositions. But, upon application therefor, the court granted the motions to quash the taking of such depositions. Since the notices were never filed in the lower court the official docket entries do not contain entries to that effect, yet the appellant (who is an attorney), with utter disregard of professional ethics and his obligations as an officer of the courts, undertook to include in the printed record extract what purported on their face to be official docket entries showing that such notices had been duly filed when in fact no such entries had ever been made by the clerk.
Toward the end of the case, the chancellor indicated that he would allow the unpaid wages or commissions the appellees claimed were due them (which the appellant admitted he owed to one or both appellees), but he ultimately declined to do so for the reason that the claim therefor was improperly raised in the pleadings. The motion to dismiss the appeal, as to the contention of...
To continue reading
Request your trial
-
Holloway v. Faw, Casson & Co.
...of the good will of customers and clients which [clients] are likely to follow the person of the former employee." 6 Silver v. Goldberger, 231 Md. 1, 7, 188 A.2d 155 (1963); see also Gill, 266 Md. at 180, 292 A.2d 54; Ruhl v. Bartlett Tree Co., 245 Md. 118, 225 A.2d 288 (1967). As a public ......
-
Holloway v. Faw, Casson & Co.
...180, 292 A.2d 54, 59 (1972); Tuttle v. Riggs-Warfield-Roloson, Inc., 251 Md. 45, 49, 246 A.2d 588, 590 (1968); Silver v. Goldberger, 231 Md. 1, 6, 188 A.2d 155, 158 (1963). Persons in business have a protectable interest in preventing an employee from using the contacts established during e......
-
Fowler v. Printers II, Inc.
...by service to another consists merely in the fact that the former employee becomes a more efficient competitor.... Silver v. Goldberger, 231 Md. 1, 7, 188 A.2d 155 (1963) (footnote omitted) (emphasis in original). Accord, Holloway v. Faw, Casson & Co., 319 Md. 324, 335, 572 A.2d 510 Here, t......
-
Allegis Grp. v. Bero
... ... 6543801 (4th Cir. Dec. 1, 2017); Holloway v. Faw, Casson ... & Co ., 319 Md. 324, 334, 572 A.2d 510, 515 (1990); ... Silver v. Goldberg er, 231 Md. 1, 6, 188 A.2d 155, ... 158 (1963) ... Generally, ... “restrictive covenants may be ... ...