ADVANTAGECARE REHABILITATION, LLC v. WILEY MISSION et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ADVANTAGECARE
REHABILITATION, LLC,
Plaintiff,
vs.
WILEY MISSION and SYMBRIA
REHAB, INC.,
Defendants.
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2:24-cv-229
OPINION
J. Nicholas Ranjan, United States District Judge
AdvantageCare Rehabilitation, LLC, is a provider of therapy services, things
like 	PT, 	OT, 	and 	speech 	services. 	AdvantageCare 	contracted 	to 	provide 	five
employees to Wiley Mission’s retirement community facility for about a year, starting
in 2021. 	The relationship soured during the year, and Wiley ultimately decided to
terminate its contract early. Wiley decided to, instead, contract with Symbria Rehab,
Inc., a competitor to AdvantageCare.
Wiley, however, did not want to part with the facility staff, who were
AdvantageCare employees. 	Wiley expressed to Symbria its desire to retain the five
AdvantageCare employees who had been working at Wiley. The problem with that,
though, was the non-solicitation or no-hire provision in the Wiley/AdvantageCare
contract. 	As part of that provision, Wiley had agreed not to hire AdvantageCare
employees who had worked at Wiley’s facility, and not to hire another therapy
services provider who employed such employees. Symbria tried to work around this
by negotiating a buyout of the employees with AdvantageCare. 	But they couldn’t
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come to a deal. 	Undeterred, Symbria went ahead anyway and hired the employees
despite the no-hire provision in Wiley’s and AdvantageCare’s contract.
In response, AdvantageCare sued. 	It brought a claim for breach of contract
against Wiley and a claim for tortious interference against Symbria. 	It sought only
money damages, and no equitable relief. 	The parties engaged in fact and expert
discovery, and Wiley and Symbria have now moved for summary judgment.
After careful review, the Court will deny the summary-judgment motions, but
narrow some categories of damages that AdvantageCare can seek at trial from
Symbria as part of its tortious-interference claim.
BACKGROUND
Wiley is a nonprofit church corporation that houses a retirement community
on its church campus in Marlton, New Jersey. 	ECF 69-1, at 1; ECF 69-2, at 2–3.
Wiley’s facility offers therapy services that Wiley originally provided directly to its
residents, until its Director of Rehab Services retired. ECF 69-2, at 6.
In September 2021, following the retirement, Wiley began to negotiate with
AdvantageCare for it to contract out rehab services to Wiley. 	ECF 73-2, at 5.
AdvantageCare provided a form contract containing a provision prohibiting Wiley
from soliciting AdvantageCare’s employees, either directly or indirectly (
e.g., by
contracting with another provider who solicits the employees). ECF 69-1, at 11; ECF
69-3, at 5; ECF 69-16, at 2–3. 	At the request of Wiley’s CEO, Gary Gilmore,
AdvantageCare added language to allow Wiley to retain its current staff if the
agreement with AdvantageCare was terminated. ECF 69-2, at 7.
Article 10 of the operative contract, thus contained the following non-
solicitation clause:
During 	the 	term 	of 	this 	Agreement, 	and 	for 	(1) 	year 	following
termination of the agreement, neither [Wiley] nor the Facility shall
directly or indirectly (
e.g., by hiring or using another individual or entity
that hires or engages AdvantageCare’s employees or contractors . . . ),
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employ or contract with (a) any AdvantageCare employee, agent or
representative who provided, managed or otherwise was involved in the
provision of Services at the Facility . . . . 	[Wiley] shall not talk or
communicate in any fashion directly or indirectly via agents, recruiters
or otherwise including but not limited to blind ads to and/or [
sic] induce
any AdvantageCare employee, agent or representative to terminate
his/her relationship with AdvantageCare. . . . The parties acknowledge
that a breach of the covenants contained in this Article 10 shall have
irreparable, 	material 	and 	adverse 	effects 	on 	AdvantageCare 	and
damages arising from any such breach may be difficult to ascertain.
Without limiting any other available remedies, AdvantageCare shall
have . . . the right to liquidated damages in an amount equal to one
hundred (100%) of the employee’s annual salary. [Wiley] . . . agrees to
pay for all attorney’s fees and costs associated with AdvantageCare’s
enforcement of this provision. 	All staff retained from Facility are
exempt from the non-solicitation clause.
ECF 69-1, at 11.
The contract also provided that “either party may terminate [the contract] at
any time, with or without cause, effective upon delivery to the other party of at least
thirty (30) days prior written notice of termination.”
Id. at 8 (citation modified). Even
after termination, however, the parties agreed that the obligations imposed by the
non-solicitation clause would be ongoing.
Id.
As Wiley’s service provider, AdvantageCare provided five employees to staff
Wiley’s facility: (1) Alicia Redfern, Director of Rehab; (2) Danielle Greer, Occupational
Therapist; (3) Roopinder Rekhi, Physical Therapist; (4) Raquel Screnci, PT Assistant;
and (5) Etan Haziza, Speech Therapist. ECF 73-2, at 6–8; ECF 73-7, at 20. None of
the five had a non-compete agreement with AdvantageCare. ECF 69-3, at 56.
Around September 2022, Wiley began communicating with AdvantageCare’s
competitor, Symbria, about potentially using Symbria instead.
See ECF 73-21, at 3;
ECF 73-23, at 5. Discussions between Wiley and Symbria continued through the end
of 2022.
See ECF 73-25. As part of those discussions, Wiley informed Symbria that,
if Wiley were to contract with Symbria, it would want to keep the facility’s current
staff (
i.e., the five AdvantageCare employees). ECF 73-27, at 1.
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By July 2023, Wiley and Symbria were finalizing their agreement, with
Symbria telling Wiley it would negotiate with AdvantageCare to secure the release
of the five AdvantageCare employees from the non-solicitation clause. ECF 73-8, at
5. On August 3, 2023, Wiley provided AdvantageCare with notice of their contract’s
termination, effective September 17, 2023. ECF 73-14, at 2.
On August 5, 2023, Britt Mills, the Regional Director for Symbria, shared a
link to the job openings with Wiley’s President and CEO, Greg Gilmore, telling him,
“If you’d like to share this link with the staff, that would be great.” ECF 73-6, at 1–
2; 	ECF 	73-62, at 	2. 	Mr. 	Gilmore 	forwarded this 	email 	to Ms. 	Redfern, 	the
AdvantageCare Director of Rehab at Wiley. 	ECF 73-6, at 1. 	This was before Ms.
Mills had spoken with anyone at AdvantageCare regarding release of the employees.
ECF 73-65, at 1.
On August 9, 2023, Colleen Balsano, AdvantageCare’s Vice President of
Operations, told Mr. Gilmore in an email: “Our HR team will be contacting the
current [AdvantageCare] staff at Wiley to let them know of positions we have open in
Philadelphia. If the staff wish to stay at Wiley, and Symbria is interested in retaining
them, I will discuss that point as it relates to the [non-solicitation clause] with
Symbria directly.” ECF 69-9, at 1–2.
On August 10, AdvantageCare and Symbria had a call to negotiate a buyout of
the staff, but Symbria did not accept AdvantageCare’s offers. ECF 69-3, at 31; ECF
73-7, at 18. 	Shortly after the call, Ms. Balsano reiterated that the buyout terms
AdvantageCare provided on the call remained, and asked Symbria to let her know if
Symbria was going to “to interview / hire any of the staff.” ECF 73-46, at 2.
Despite not accepting AdvantageCare’s buyout offer, Symbria extended offers
to the five staff members on August 17 and 18. 	ECF 73-39; ECF 73-42; ECF 73-45;
ECF 73-74; ECF 73-75.
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At the same time, AdvantageCare extended offers for what it considered to be
comparable positions at other AdvantageCare locations to the five staff members.
ECF 73-22, at 2.
In an email to Ms. Redfern discussing AdvantageCare’s comparable positions,
Ms. Mills of Symbria wrote, “Please tell the team, that if they want to stay at Wiley
with Symbria, we would love that and not to worry about the rest. 	We will handle
it.” ECF 73-73, at 1 (citation modified).
No deal was ever reached between Symbria and AdvantageCare, ECF 73-19,
but Symbria began servicing Wiley’s facility with the five former AdvantageCare
employees as staff. ECF 73-62, at 7. This lawsuit followed.
STANDARD OF REVIEW
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). When deciding motions for summary judgment, the Court
must determine whether the evidence presents “a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.”	
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). 	In
making that determination, the Court must “consider all evidence in the light most
favorable to the party opposing the motion.”
A.W. v. Jersey City Pub. Schs., 486 F.3d
791, 794 (3d Cir. 2007).
If the non-moving party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial,” summary judgment is warranted.
Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). 	For the non-moving party to prevail, “the non-
moving party must present more than a mere scintilla of evidence; there must be
evidence on which the jury could reasonably find for the non-movant.”	
Burton v.
Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (citation modified).
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DISCUSSION & ANALYSIS
I. 	AdvantageCare’s 	breach-of-contract 	claim 	survives 	summary
judgment (Count I).
To prevail on a breach-of-contract claim, the plaintiff must prove “(1) the
existence of a contract, including its essential terms, (2) a breach of the contract; and,
(3) resultant damages.”	
Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law
Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016). 	As to the first
element, Wiley and Symbria argue that the non-solicitation clause is unenforceable
and thus cannot be the basis of a claim for breach of contract or tortious interference.
As explained below, however, the non-solicitation clause can serve as the basis of
AdvantageCare’s claims because the relief requested here is solely money damages.
Further, 	when 	viewing 	all 	evidence 	in 	the 	light 	most 	favorable 	to
AdvantageCare, the Court determines that a jury could reasonably conclude that the
contract was breached, which caused resultant damages.
A. The non-solicitation clause is enforceable.
The existence of a valid contract is a necessary element for claims of both
breach of contract and tortious interference.
	See Malone Middleman, 137 A.3d at
1258 (elements of breach of contract);
Acumed LLC v. Advanced Surgical Servs., 561
F.3d 	199, 	212 	(3d 	Cir. 	2009) 	(elements 	of 	tortious 	interference 	with 	existing
contractual relationship). Both Wiley and Symbria contend that the non-solicitation
clause 	is 	unenforceable, 	and 	therefore 	cannot 	serve 	as 	the 	basis 	of 	either 	of
AdvantageCare’s claims.
	See ECF 66, at 13–19; ECF 68, at 7–22; ECF 75, at 7–12;
ECF 76, at 1–4. 	Specifically, they argue that under Pennsylvania law, the non-
solicitation clause is an unreasonable restraint of trade. 	ECF 66, at 17; ECF 68, at
7.
Defendants rely on
Pittsburgh Logistics Systems, Inc. v. Beemac Trucking,
LLC, a Pennsylvania Supreme Court case concerning the enforceability of non-
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solicitation-of-employees (or no-hire) provisions. 	249 A.3d 918 (Pa. 2021). 	In
Pittsburgh Logistics, the Supreme Court applied a reasonableness test to weigh the
employer’s interest in the enforcement of the provision against the likelihood of harm
to the public.
Id. at 935-36. Wiley and Symbria argue that the same test applies for
the non-solicitation clause at issue here.
The Court disagrees. 	There is one crucial distinguishing factor between
Pittsburgh Logistics and this case: AdvantageCare is only seeking money damages in
this case, not equitable relief. 	In
Pittsburgh Logistics, the court reviewed only the
denial of a preliminary injunction, and therefore did not address whether the non-
solicitation provision could be the basis of an action for money damages.
	See id. at
922–24 (explaining procedural posture and the question on appeal).1 Four points on
this.
First, contrary to Wiley and Symbria’s claims, nothing in the Pennsylvania
Supreme Court’s clearly indicates that the reasonableness test for non-solicitation
provisions was meant to extend beyond cases seeking injunction. 	While the Court
did use broad language in saying that the question is “whether no-hire, or ‘no poach,’
provisions . . . are enforceable under the laws of this Commonwealth,” the Court’s
analysis wasn’t so broad, and certainly didn’t address the narrow issue here of
whether the reasonableness analysis might apply to a case where a plaintiff is
seeking only money damages.
Pittsburgh Logistics Sys., 249 A.3d at 920.
Second, the reasoning in
Pittsburgh Logistics doesn’t naturally extend to pure
damages cases. 	For example, as the court there explained, one of the main public-
1 Wiley’s observation that the
Pittsburgh Logistics plaintiff also sought money
damages in the Court of Common Pleas does not change the fact that the Supreme
and Superior Courts addressed only equitable relief.
See Pittsburgh Logistics, 249
A.3d,
aff’g, 202 A.3d 801 (Pa. Super. Ct. 2019).
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policy concerns in layering on a reasonableness standard is that enforcement of a non-
solicitation provision would basically sideline a person (who was never a party to a
contract to begin with) from being able to work and earn a livelihood.
Id. at 936. That
isn’t a driving concern in a money damages case, where, as here, an employee can
still change jobs and continue to work, and the risk of liability for any money damages
falls on third parties (like the new employer), not the employees.
Third, long-standing Pennsylvania precedent makes clear that public policy
considerations pertaining to the reasonableness of a restraint on trade are irrelevant
in actions at law. 	Nothing in
Pittsburgh Logistics expressly or impliedly overrules
this line of cases.
	See Krauss v. M.L. Claster & Sons, Inc., 254 A.2d 1, 3 (Pa. 1969)
(“In an action at law, the reasonableness of any given contractual term simply is not
relevant.”);
Aiken Indus., Inc. v. Est. of Wilson, 383 A.2d 808, 811 n.5 (Pa. 1978)
(Pomeroy, J.) (equally divided court) (“Because the action for injunctive relief was
withdrawn . . . we need not be concerned with the reasonableness of the terms of the
covenant.”);
Boyce v. Smith-Edwards-Dunlap Co., 580 A.2d 1382, 1386 (Pa. Super.
Ct. 1990) (“Generally, to be enforceable, a restrictive covenant in an employment
contract must be reasonably limited in both time and territory. However, following,
Krauss, we conclude that, because this is an action at law, the reasonableness of the
restrictive covenant is not relevant.” (citation modified)).
Fourth, at least one state trial court has considered this issue, and found that
Pittsburgh Logistics is cabined to cases seeking equitable relief.
WebPageFX, Inc. v.
BMarko Structures, LLC, No. 2020-CV-12168, 2022 Pa. Dist. & Cnty. Dec. LEXIS
913, at *15 (Pa. Com. Pl. May 5, 2022) (holding that “the
Pittsburgh Logistics
reasonableness test does not apply here because Plaintiff has not sought equitable
relief. . . . As such, this Court agrees with Plaintiff that
Pittsburgh Logistics does not
preclude its action.”). 	Although this decision isn’t binding on this Court, the Court
finds it persuasive.
	See Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d
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Cir. 2000) (“A federal court can also give due regard, but not conclusive effect, to the
decision law of lower state courts.” (citation modified)).
For these reasons, the Court finds that
Pittsburgh Logistics is not relevant
here. 	In this action for solely money damages, the non-solicitation clause is not
subject to a reasonableness test and so is enforceable.
B. There is sufficient evidence that Wiley breached the contract.
1. 	The non-solicitation clause did not exempt the AdvantageCare
employees.
Defendants 	next 	argue 	that 	even 	if 	the 	non-solicitation 	provision 	is
enforceable, by its terms, Wiley didn’t breach it. 	They rely on an exemption in the
clause, which reads, “All staff retained from [Wiley’s] Facility are exempt from the
non-solicitation clause.” 	ECF 69-1, at 11. 	Wiley and Symbria argue that the
exemption applies to the former AdvantageCare employees because they were
employees who worked at Wiley’s facility, and thus were “retained” at the facility
when Symbria took over. ECF 66, at 19–20; ECF 68, at 39. AdvantageCare, on the
other hand, argues that this exemption only applies to the Wiley employees that
Wiley had retained before it entered into the contract with AdvantageCare. ECF 72,
at 30–33.
AdvantageCare is right. 	Pennsylvania courts, when interpreting contracts,
seek to “determine the intent of the parties and give effect to all of the provisions
therein.”	
Capek v. Devito, 767 A.2d 1047, 1050 (Pa. 2001) (citing
Commonwealth of
Penn., Dept. of Transp. v. Manor Mines, Inc., 565 A.2d 428, 432 (Pa. 1989)). That “an
interpretation will not be given to one part of the contract which will annul another
part of it” is a recognized principle of contractual interpretation.
Id. at 1050 (citation
modified) (quoting
Cerceo v. DeMarco, 137 A.2d 296, 298 (Pa. 1958)).
If the exemption did apply to all AdvantageCare employees who were employed
at Wiley’s facility and stayed after Wiley found another provider, then what effect
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would the non-solicitation clause have? Neither Wiley nor Symbria provide a possible
interpretation. 	The plain text of the non-solicitation clause prevents Wiley from
directly or indirectly hiring “any AdvantageCare employee . . . who provided,
managed or otherwise was involved in the provision of Services at the Facility.” ECF
69-1, at 11. 	This prohibition would be annulled by understanding the exemption,
coming just a few sentences later, to include AdvantageCare employees at the Wiley
facility who stayed at the facility after the termination of the agreement.
The plain reading of the clause, giving effect to all provisions, is that the
exemption 	refers 	to 	employees 	at 	the 	facility,
	before 	the 	agreement 	with
AdvantageCare, 	who 	were 	“retained” 	at 	the 	start 	of 	the 	agreement 	with
AdvantageCare. 	Therefore, the former AdvantageCare employees are not exempt
from the non-solicitation clause.2
2. 	There is sufficient evidence that Wiley breached the clause by
indirectly hiring the former employees.
AdvantageCare has provided sufficient evidence for a jury to conclude that
Wiley violated its contractual obligations by indirectly hiring the former employees.
Wiley argues that it did not breach the non-solicitation clause because Symbria is a
wholly separate entity from Wiley, and that Wiley did not control Symbria’s hiring
decisions. ECF 68, at 40.
Wiley’s argument that the former employees were employed by Symbria and
not by Wiley is irrelevant. The non-solicitation clause provides examples of what is
meant by “indirectly” hire. 	It includes “hiring or using another individual or entity
that hires or engages AdvantageCare’s employees or contractors.” 	ECF 69-1, at 11.
2 Because the meaning is clear from text of the contract, the Court does not rely on
extrinsic evidence.
	See Capek, 767 A.2d at 1050 (“When a written contract is clear
and unequivocal, its meaning must be determined by its contents alone.” (citation
modified)). However, the Court notes that Mr. Gilmore, Wiley’s CEO, agreed, in his
deposition, that he had asked for the ability to retain Wiley’s rehab staff employed
before contracting with AdvantageCare. ECF 73-2, at 9.
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Wiley concedes that it contracted with Symbria after terminating its agreement with
AdvantageCare, and that Symbria hired former AdvantageCare employees who were
assigned to the Wiley facility. 	ECF 68, at 1. 	That alone is enough to establish a
breach.
Even if it weren’t, the factual record would allow a jury to find that Wiley
played a role in Symbria hiring the former employees. 	Before Wiley signed the
agreement with Symbria, Mr. Gilmore expressed his desire to keep the former
employees and he was aware that Symbria intended to honor his wish.
See ECF 73-
27, at 1; ECF 73-8, at 5 (email to Mr. Gilmore mentioning transitioning the staff to
Symbria).
While 	Wiley 	describes 	a 	scenario 	where 	the 	former 	employees 	all
independently applied once Symbria opened the position, the evidence is sufficient
for a jury to conclude otherwise. 	For example, Mr. Gilmore, after being provided a
link for the facility’s job postings from Symbria—and being told that it “would be
great” if he sent it to the staff—forwarded it to Ms. Redfern. 	ECF 73-6, at 1–2. 	A
jury could find that this at least shows Wiley’s knowledge that Symbria would hire
former employees and that Wiley helped to facilitate the hiring, all before Symbria
had communicated with AdvantageCare.
3. 	AdvantageCare is not estopped from bringing this claim.
Wiley asserts as a defense that AdvantageCare is equitably estopped because
AdvantageCare’s statements induced Wiley to believe that Symbria had permission
to hire the former employees. ECF 68, at 34–39.
To establish equitable estoppel, the party claiming estoppel must show that
there is “(1) an inducement, whether by act, representation, or silence when one ought
to speak, that causes one to believe the existence of certain facts; (2) justifiable
reliance on that inducement; and (3) prejudice to the one who relies if the inducer is
permitted to deny the existence of such facts.”
Chem. Bank v. Dippolito, 897 F. Supp.
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221, 224 (E.D. Pa. 1995) (citing
Zivari v. Willis, 611 A.2d 293, 295 (Pa. Super. Ct.
1992)). The party claiming estoppel has the burden of establishing these elements by
“clear, precise and unequivocal evidence.”
Id.
Wiley points to several statements and actions from AdvantageCare that Wiley
claims induced it to believe that Symbria was allowed to hire the former employees.
For example, in one email to Mr. Gilmore, Ms. Balsano stated, “If the staff wish
to stay at Wiley, and Symbria is interested in retaining them, I will discuss that point
. . . with Symbria directly. 	It is common in the industry that the two therapy
companies work that out together. We’ve been on both sides of the coin.” ECF 69-9,
at 2. 	Ms. Mills also told Mr. Gilmore that it was common for therapy providers to
exchange 	staff. 	ECF 	69-15, 	at 	15. 	Wiley 	also 	points 	to 	statements 	from
AdvantageCare to Symbria, where Ms. Balsano told Symbria, “Please let us know if
you will be proceeding to interview / hire [the five employees].” ECF 73-46, at 2;
see
also ECF 69-16, at 10. 	Other actions include AdvantageCare allegedly allowing
Symbria to have conversations with the staff. ECF 69-15, at 14, 19; ECF 69-17, at 5.
However, as AdvantageCare correctly observes, “the flexibility of the doctrine
of equitable estoppel does not allow it to be imposed where the essential elements of
inducement and reliance are supported solely by speculation.”	
Novelty Knitting
Mills, Inc. v. Siskind, 457 A.2d 502, 505 (Pa. 1983) (citation modified). 	Indeed, the
doctrine does not apply when the alleged inducement and reliance were based on one
party’s unjustified misunderstanding of the other party’s actions.
	See id. at 504
(“Rather than showing that Bernette induced Novelty to rely on a promise never
delivered, our review of the record shows that Novelty’s claims amount to little more
than speculation to support an illusory promise.”).
The asserted statements do not provide evidence of inducement and reliance
beyond Wiley’s speculation that a deal would be reached. Indeed, the statements very
clearly show that Wiley was only led to believe that Symbria and AdvantageCare
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were negotiating a deal. 	AdvantageCare never told Wiley that a deal was reached,
and was always clear that the ability of Symbria to hire the former employees was
contingent on the two providers reaching an agreement. 	Wiley believing that an
agreement would definitely be reached based on statements that “it is common in the
industry” is mere speculation. 	Therefore, AdvantageCare is not estopped from
bringing this claim.3
B. There is sufficient evidence of damages to proceed to trial.
Finally, Wiley argues that AdvantageCare has failed to show that the alleged
breach caused damages. 	For the reasons explained below, AdvantageCare has
produced sufficient evidence on damages.
Wiley claims that the liquidated damages provision, allowing AdvantageCare
to recover 100% of the former employees’ annual salaries, is an unenforceable
penalty. ECF 67, at 19–21. The Court disagrees.
Under Pennsylvania law, liquidated damages provisions are enforceable if they
“(1) address damages that are difficult or impossible to measure and (2) [are] a
reasonable estimate of those damages.”	
Cardiology Care for Child. Inc. v. Ravi, No.
5:17-cv-4743, 	2018 	WL 	1870717, 	at 	*4 	(E.D. 	Pa. 	Apr. 	18, 	2018) 	(quoting	
ZA
Consulting, LLC v. Wittman, Nos. 3941, 110378, 2002 WL 34100475, at *6 (C.P. Jan.
9, 2002)).
AdvantageCare claims that the alleged breach caused AdvantageCare to incur
costs 	related 	to 	employee 	training, 	onboarding, 	back-office 	work, 	and 	loss 	of
employees who were provided proprietary information. ECF 72, at 38. Pennsylvania
courts have found that “damages for loss of time in training an employee are ‘difficult
to measure.’”
Cardiology Care for Child., 2018 WL 1870717, at *4 (citing
Mannino v.
3 At least based on this record, there is nothing even suggesting that equitable
estoppel could even be a triable defense for the jury to decide. That said, because
AdvantageCare didn’t affirmatively move for summary judgment as to that defense,
the Court will not reject it as a matter of law at this juncture.
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Lazerpro, Inc., 76 Pa. D. & C. 4th 526, 535 (C.P. 2005)). 	Therefore, the Court will
focus its analysis on “whether the agreed-upon amount of damages in the liquidated
damages provision . . . is unreasonable.”
Id. at *4.
Pennsylvania 	courts 	have 	allowed 	liquidated 	damages 	in 	breaches 	of
restrictive covenants that are tied to the salary of an employee. 	For example, in
Omicron Systems, Inc v. Weiner, the Superior Court upheld an award of liquidated
damages for a non-compete agreement equal to the amount the employee had been
paid by the rival company. 860 A.2d 554, 557 n.1 (Pa. Super. Ct. 2004). The Superior
Court affirmed by noting that damages arising from the breach of a non-compete are
difficult to calculate, and that the employer proved the employee’s salary by sufficient
evidence.	
Id. at 565. 	The court did not calculate whether the liquidated damages
was approximately the same as the actual damages caused by the breach.
Similarly, in
Lehigh Valley Bone, Muscle & Joint Group LLC v. Puccio, the
Court of Common Pleas in Lehigh County granted an award of liquidated damages
for violation of a restrictive covenant. 75 Pa. D & C.4th 176 (C.P. 2005),
aff’d, 903
A.2d 61 (Pa. Super. Ct. 2006) (unpublished table decision). 	The court justified the
$100,000 award, in part, by comparing it to the salary of the employee ($180,000–
200,000 per year) and concluding it was reasonable.
Id. at 186. Once again, the court
did 	not 	examine 	whether 	the 	actual 	damages 	arising 	from 	the 	breach 	were
approximately the same as the award.
Further, in
Cardiology Care, the Eastern District of Pennsylvania declined to
dismiss a claim for liquidated damages for breach of an employment contract where
the damages were 10% more than the first year’s salary. 2018 WL 1870717, at *4. At
the motion-to-dismiss stage, the court there noted that the doctor’s training and time
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off for continuing medical education likely explain the high cost of the damages.4
Id.
at *4.
The Court therefore finds that the liquidated damages amount here is facially
reasonable. 	Wiley has not adduced any evidence suggesting that the annual-salary
calculation is so out of whack to make the clause an unenforceable penalty.
Therefore, 	since 	costs 	relating 	to 	training 	are 	hard 	to 	estimate, 	and
employment 	salaries 	are 	usually 	not 	an 	unenforceable 	penalty 	for 	restrictive
covenants the Court finds that the liquidated-damages provision here is valid.5
4 Wiley’s attempts to distinguish the above cases fail. 	For example, Wiley explains
that
Lehigh Valley concerned a signed non-compete. 	ECF 76, at 6. 	The Court,
however, cannot discern the relevance of this distinction, nor does Wiley explain it.
As for
Omicron Systems, Wiley claims that AdvantageCare misrepresents the holding
as the Superior Court did not find that an annual salary is a reasonable award of
liquidated damages, as AdvantageCare claims, but that the Superior Court actually
held that the former employer was “entitled to the amount of profit earned by the
newly formed company because it was attributable to the appellant’s violations of the
non-compete and confidentiality agreement.” 	ECF 76, at 7. 	But it is Wiley who
misunderstands
Omicron Systems, not AdvantageCare. 	The damages were not the
profits earned by the competitor company, but the income earned by the employee in
his twenty-two months of employment with the competitor before the trial.
Omicron
Sys., Inc., 860 A.2d at 557 n.1. The amount reflected the gross income gained by the
employee after the breach, and the Superior Court did not attempt to calculate the
damage done to the non-breaching former employer.	
Id. at 565. 	Although the case
did also address a non-disclosure agreement, the liquidated damages provision
applied only to the non-compete.
Id. at 565 n.6.
5 Wiley makes two other damages-related arguments. It argues that AdvantageCare
hasn’t established a causal link between its breach and any claimed damages. ECF
68, at 26–34. It also takes issue with a damages report submitted by Stephen Brown.
ECF 76, at 7–8. These issues are too fact-bound for the Court to decide at summary
judgment. 	Regardless, the Court doesn’t need to reach these issues. 	This is so
because, at a minimum, AdvantageCare has presented sufficient evidence of breach,
and based on that breach, can seek liquidated damages. There is no need to establish
a causal link (now or at trial) to obtain liquidated damages.
	See Sutter Corp. v.
Tri-Boro Mun. Auth., 487 A.2d 933, 936 (Pa. Super. Ct. 1985) (“As a general rule of
law it is not necessary to show any actual damages in order to recover liquidated
damages pursuant to a contract providing for liquidated damages.” (citing
5 Corbin,
Contracts Section 1062)).
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II. 	AdvantageCare’s 	tortious-interference 	claim 	survives 	summary
judgment (Count II).
To prevail on a claim of tortious interference with an existing contractual
relationship, the plaintiff must prove: (1) the existence of a contractual relationship
between the plaintiff and a third party; (2) purposeful action by the defendant,
specifically intended to harm an existing relationship; (3) the absence of privilege of
justification on the part of the defendant; and (4) legal damage to the plaintiff as a
result of the defendant’s conduct.
Acumed, 561 F.3d at 212.
As explained above, the non-solicitation clause is a valid agreement, so the first
element is met. 	As explained below, there is sufficient evidence for the tortious-
interference claim to survive summary judgment.
A. Symbria’s conduct is not privileged.
Symbria argues that its conduct in contracting with Wiley and hiring the
former employees falls under the competitor’s privilege. ECF 66, at 21–23; ECF 75,
at 13–17. While Symbria and AdvantageCare are competitors, the conduct does not
meet the requirements to qualify as competitor’s privilege.
Pennsylvania courts have adopted section 768 of the Second Restatement of
Torts, which only allows claims of competitor’s privilege when the contract is
terminable at will.
	See Acumed, 561 F.3 at 215 (“[O]ne who intentionally causes a
third person . . . not to continue an existing contract terminable at will does not
interfere improperly with the other’s relation [if the section 768 requirements are
met].” (quoting Restatement (Second) of Torts § 768 (A.L.I. 1979))).
Although the agreement allowed either party to terminate the agreement with
thirty days’ notice, the non-solicitation clause’s obligations continued for one year
after the termination. ECF 69-1, at 8, 11. The competitor’s privilege does not apply
to a contract that is partially terminable at will when the alleged breach was to a
provision with ongoing obligations.
	See Acclaim Sys., Inc. v. Infosys, Ltd., No. 13-
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7336, 2015 WL 4257463, at *3 n.2 (E.D. Pa. July 14, 2015) (“While the analysts could
end their employment at will, the non-compete clauses in the contracts could not be
terminated at will—those had a set term of two years.”);
see also Restatement
(Second) of Torts § 768 cmt. i (A.L.I. 1979) (“An employment contract, however, may
be only partially terminable at will. 	. . . Under these circumstances a defendant
engaged in the same business might induce the employee to quit his job, but he would
not be justified in engaging the employee to work for him in an activity that would
mean violation of the contract not to compete.”).
Symbria argues that the Restatement’s commentary and
Acclaim Systems are
irrelevant because they specifically address non-competes in employment contracts,
not non-solicitation-of-employees agreements. ECF 75, at 15–16. However, because
the competitor’s privilege requires an agreement be terminable at will, and the non-
solicitation clause is a continuing obligation, the same logic applies to this dispute.
Thus, the competitor’s privilege doesn’t shield Symbria, and Symbria can be liable for
inducing Wiley to break the agreement.
B. AdvantageCare has produced evidence of purposeful action.
AdvantageCare has put forward evidence that would allow a jury to conclude
that Symbria engaged in purposeful action intended to harm AdvantageCare’s
contractual relationship with Wiley.
Under Pennsylvania law, when the competitor’s privilege does not apply, the
plaintiff must just prove that the defendant used “improper means.”	
Acclaim Sys.,
2015 WL 4257463, at *4. Improper means can include the defendant knowing about
a restrictive covenant, inducing one party to the contract to breach the covenant, and
then taking actions to avoid liability.
See Acclaim Sys., 2015 WL 4257463, at *4 (“If,
as alleged, [the defendant] was aware of the non-compete agreements but nonetheless
caused the analysts to defect to Infosys, then [the defendant] would have indeed
specifically intended to induce the breach of the contract.”).
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According to the factual record, Symbria was aware of the non-solicitation
clause at least as early as July 6, 2023. ECF 73-8, at 5. This was before it extended
offers to the AdvantageCare employees on August 17 and 18. ECF 73-39; ECF 73-42;
ECF 73-45; ECF 73-74; ECF 73-75. Symbria made those offers despite the lack of an
agreement with AdvantageCare. ECF 73-73, at 1.
Further, a jury could find that Symbria encouraged Wiley to breach the non-
solicitation clause when Ms. Mills told Mr. Gilmore that it “would be great” if he sent
Symbria’s job postings to the facility’s staff, ECF 73-6, at 1–2, despite the clause
prohibiting Wiley from “communicating in any fashion . . . to . . . induce any
AdvantageCare employee . . . to terminate his/her relationship with AdvantageCare.”
ECF 69-1, at 11 (citation modified).
Because 	the 	non-solicitation 	clause 	is 	enforceable 	in 	an 	action 	at 	law,
AdvantageCare has provided sufficient evidence of purposeful action.
C. AdvantageCare 	has 	produced 	evidence 	that 	it 	suffered 	damages
caused by Symbria’s interference.
Finally, Symbria argues that, even if the tortious-interference claim was
otherwise valid, AdvantageCare has not established recoverable damages from the
alleged interference. 	ECF 66, at 23–26. 	AdvantageCare claims damages for lost
revenue and profit resulting from losing the five employees; time spent recruiting,
onboarding, and training the former employees; and lost revenue from the early
cancellation of the contract. ECF 74, at 35–36.
A party can recover lost profits from its tortious-interference claim if “(1) there
is evidence to establish the damages with reasonable certainty; (2) the damages were
the proximate cause of the wrong; and (3) the damages were reasonably foreseeable.”
REVZIP, LLC v. McDonnell, No. 3:19-cv-191, 2025 WL 2201836, at *17 (W.D. Pa.
Aug. 4, 2025) (Stickman, J.) (citation modified) (quoting
Brisbin v. Superior Valve
Co., 398 F.3d 279, 289 (3d Cir. 2005)).
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AdvantageCare’s Vice President of Finance has provided a report calculating
the lost revenue and profit resulting from the loss of the former employees.
See ECF
73-82. 	The 	revenue 	earned 	by 	the 	former 	employees 	may 	have 	gone 	to
AdvantageCare if it weren’t for Symbria’s tortious-interference. 	A jury could
plausibly accept the findings of the report as proof of loss profits and revenue.
Miller
ex rel. Miller v. Evenflo Co., No. 3:09-108, 2011 WL 7037127, at *2 n.2 (W.D. Pa. Dec.
15, 2011) (Gibson, J.) (“The Court, however, will not entertain such a challenge to the
credibility of the opinion of Plaintiff’s expert at the summary judgment stage).
Therefore, the motion for summary judgment is denied as to AdvantageCare’s claim
for damages for lost profits.
That said, the Court holds that AdvantageCare may not recover the costs for
the time spent recruiting, onboarding, and training the former employees. 	Courts
applying Pennsylvania law have only allowed recovery “where the benefit at issue
profits the defendant only.”	
Fishkin v. Susquehanna Partners, G.P., No. 03-3766,
2007 WL 560703, at *7 (E.D. Pa. Feb. 12, 2007),
aff’d, 340 F. App’x 110 (3d Cir. 2009).
Therefore, 	when 	the 	original 	employer 	benefited 	from 	the 	training 	while 	the
employees are still employed, the original employer cannot seek to recover restitution
for the costs of training.	
Id. (“As a consequence, the restitution SIG seeks for the
value of its training would not serve to return SIG to the position it held before the
parties’ contract, but would instead give SIG an unwarranted windfall.” (citation
modified)). 	AdvantageCare, 	therefore, 	cannot 	recover 	the 	costs 	of 	recruiting,
onboarding, and training the former employees.
AdvantageCare 	also 	may 	not 	recover 	for 	damages 	stemming 	from 	the
termination of the contract other than those caused by the alleged violation of the
non-solicitation clause. 	AdvantageCare seeks lost revenue and profit due to the
contract being cancelled 440 days prematurely. ECF 74, at 36. While AdvantageCare
claims that Wiley would not have terminated the contract but for its knowledge that
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Symbria would hire the employees and its reliance on Symbria’s “false promise” to
provide a Kinetisense machine to the facility, arguments nearly identical to this have
been held insufficient.
	See Acclaim Sys., 2016 WL 974136, at *12 (“Not only is this
assertion made without any citation to relevant factual or legal authority, the
argument tacitly acknowledges that Acclaim is attempting to recover damages for its
loss of TWC business, not the loss of the subcontractor’s services.”).
As AdvantageCare concedes in its response, “the contract itself was terminable
at-will and Symbria was privileged to compete unless it utilized ‘wrongful means’” or
interfered with the non-solicitation clause. ECF 74, at 34. Terminating the contract
early was not prohibited under the non-solicitation clause. Further, AdvantageCare’s
argument implies that AdvantageCare is seeking damages for the loss of business,
not the violation of the non-solicitation clause.
To the extent AdvantageCare is suggesting that Symbria’s allegedly false
promise to provide a Kinetisense machine was wrongful means, the assertion is not
supported by the record. The only evidence AdvantageCare provides to establish this
wrongful means are communications showing that the Kinetisense machine was
offered to Wiley by Symbria, the Kinetisense machine was one of several reasons that
Wiley went with Symbria, and Wiley had not received the Kinetisense by November
2023. 	ECF 73-29; ECF 73-30; ECF 73-77; ECF 73-78; ECF 73-81. 	AdvantageCare
fails to demonstrate that the promise was made in bad faith or intended to be
deceptive. 	Thus, AdvantageCare has not shown that it can recover for the early
termination of the contract.
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CONCLUSION
For the above reasons, the Court hereby DENIES Wiley’s summary-judgment
motion (ECF 67) and Symbria’s summary-judgment motion (ECF 65), but limits the
categories of damages AdvantageCare may pursue for its tortious-interference claim.
DATED this 15th day of October, 2026.
BY THE COURT:
/s/
J. Nicholas Ranjan
United States District Judge
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