An en banc Pennsylvania Superior Court panel, after rehearing argument in a case of first impression, has once again invalidated a no-hire provision in the case of trucking company employees seeking jobs with a competitor.

The panel voted 7-2 to affirm a Beaver County Court of Common Pleas decision upholding a nonsolicitation provision in the contract between Pittsburgh Logistics Systems and Beemac Trucking, but denying enforcement of a no-hire provision. Last March, a split three-judge panel ruled the same way.

Judge Paula Francisco Ott, writing for the majority en banc as she did for the three-judge panel, said the court was correct to deny a preliminary injunction regarding the no-hire provision.

“The trial court determined the no-hire provision would violate public policy by preventing persons from seeking employment with certain companies without receiving additional consideration for the prohibition, or even necessarily having any input regarding or knowledge of the restrictive provision,” Ott said. “Additionally, the trial court reasoned the no-hire provision was overly broad in that the enforceable no-solicitation provision between PLS and Beemac sufficiently protected PLS from the loss of its clients, which was the ultimate purpose of all the relevant restrictions. Based upon the nature and limitations of our review, we agree with the trial court.”

Ott was joined in the majority by Judges John Bender, Alice Dubow, Susan Peikes Gantman, Jack Panella, Victor Stabile and Anne Lazarus.

In a dissenting opinion, Judge Mary Jane Bowes said, “As I would hold that the no-hire provision at issue is enforceable under Pennsylvania law, I would reverse the trial court's order denying the petition for a preliminary injunction filed by Pittsburgh Logistics Systems Inc. against Beemac Trucking.”

She was joined in her dissent by Judge Mary Murray.

Ott said the trial court found that the no-hire provision violated public policy by disallowing nonsignatories the opportunity to work elsewhere.

“The PLS MCSC ostensibly prevents Beemac from hiring any PLS employee for the term of the agreement, which is self-renewing, and for an additional two years thereafter,” Ott said. “Accordingly, each MCSC contract with a new carrier, results in a new restriction upon current employees from obtaining employment in the same or similar field of work.”

“Employment restrictions are valid, in certain circumstances, in contracts between employer and employee,” Ott continued. ”As a general rule, those restrictions are in place, in an agreement between the employer and employee, at the time of initial employment. When a new restriction is added, to be enforceable, that restriction must be supported by additional consideration.”

Ott added, “If additional restrictions to the agreement between employer and employee are rendered unenforceable by a lack of additional consideration, PLS should not be entitled to circumvent that outcome through an agreement with a third party.”

William Stickman of Del Sole Cavanaugh Stroyd represents PLS. Paul Steinman of Eckert Seamans Cherin & Mellott represents Beemac. Neither responded to requests for comment.

(Copies of the 24-page opinion in Pittsburgh Logistics Systems v. BeeMac Trucking, PICS No. 18-XXXX, are available at http://at.law.com/PICS.)