Non-Solicitation Clauses in Pennsylvania: Court Analysis
Pennsylvania's Common Law Framework
Pennsylvania evaluates non-solicitation agreements under common law, with a well-developed body of case law. The Pennsylvania Supreme Court in Hess v. Gebhard & Co. and the Superior Court in Victaulic Co. v. Tieman have established clear standards for assessing enforceability.
The Three-Part Test
Pennsylvania courts evaluate non-solicitation clauses by examining whether:
- The restriction is ancillary to an employment relationship supported by adequate consideration
- The restriction is reasonably necessary to protect the employer's legitimate business interest
- The restriction is reasonable in terms of duration, geographic scope, and the activities it restricts
Key Factors in Practice
- Consideration: Pennsylvania makes a critical distinction. If the non-solicitation clause is part of the initial employment agreement, the job itself is sufficient consideration. If it is introduced after employment has begun, new and independent consideration (such as a raise, promotion, or change in job duties) is required. This is one of the most litigated issues in Pennsylvania restrictive covenant cases
- Duration: One to two years is routinely upheld. Three years has been enforced in some circumstances involving employees with extensive customer access
- Customer scope: Must be limited to customers the employee personally served or about whom the employee gained confidential information
- Legitimate interest: Customer goodwill, trade secrets, and specialized training qualify
Red Flags
- An agreement signed mid-employment with no additional consideration (raise, bonus, promotion)
- Restrictions covering all customers of a large company
- Duration exceeding two years without extraordinary justification
- Language that prevents you from serving customers who independently seek you out
- Vague definitions of prohibited solicitation activities
When to Consult a Lawyer
Consider consulting a Pennsylvania employment attorney if you signed a non-solicitation agreement after your employment began and are unsure whether you received adequate consideration, if the clause seems to extend beyond your actual customer base, or if your former employer has filed suit or sought injunctive relief.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.