NIX, Justice.
Appellee, George W. Kistler, Inc., commenced this action in equity seeking to enforce a restrictive
covenant in a written employment contract between itself and its employee, appellant William J. O'Brien. On
May 14, 1974, the Court of Common Pleas issued a Decree Nisi enjoining appellant from engaging in selling or
servicing fire equipment within a 50 mile radius. Appellant's exceptions were dismissed by the court en banc and
a Final Decree granting relief was entered. This appeal followed.
Appellant seeks to vacate the ruling of the court below on several grounds. One of his contentions is that
the covenant restricting appellant from engaging in a competitive business was not supported by adequate
consideration. We agree with this argument and therefore reverse. Accordingly, we need not address appellant's
other contentions.
A review of the record reveals the following pertinent facts. Appellee, George W. Kistler, Inc., (Kistler)
is a Pennsylvania corporation engaged in the sale and service of fire equipment and fire prevention services.
About a year prior to May of 1970, appellant, William J. O'Brien (O'Brien) was contacted by representatives of
Kistler with respect to O'Brien's possible employment with their company. No decision was made at that time
and the matter was left open for further discussion. Subsequently, some time in the late Winter or early Spring of
1970, Kistler again solicited O'Brien and after various negotiations relating to wages, duties, insurance benefits
and other terms of employment but not including any mention of a restrictive covenant, it was agreed that
O'Brien would leave his present employer and work for Kistler. O'Brien gave his then employer two weeks
notice and began to work for Kistler on May 11, 1970.
On or about that same day, O'Brien questioned one of the clerks at the business with regard to his
insurance benefits. Upon doing so, he was handed various forms to complete and sign, among them a document
entitled Employment Contract which contained the following clause: 'In consideration of the said OWNER
granting such requested employment to the said EMPLOYEE and in further consideration of the payment of
ONE ($1.00) DOLLAR lawful money of the United States, this day made by the OWNER to the EMPLOYEE,
he, the EMPLOYEE, agrees with the OWNER that for a period of two (2) years after said employment is
terminated for any cause whatsoever by either or both of the parties, that he will not directly or indirectly
manufacture, sell, distribute, handle on his own account or by association or employment by or with any other
persons whomsoever within an area of fifty (50) miles, extending from the City of Allentown, Lehigh County,
Pennsylvania, any product equal in character or in any way similar to the products handled, bought, sold or
serviced or to be handled, bought, sold or served by said OWNER.'
O'Brien worked at various times in the capacity of Service Manager and Branch Manager for Kistler until
November 16, 1973, when he was discharged for reasons that are disputed.
Upon his departure from Kistler, O'Brien went into business for himself servicing hand portable fire
extinguishers. He solicited business from concerns located in large buildings and also did service work by
subcontract for distributors of hand portable fire extinguishers. This activity was to some extent in competition
with the activities of his former employer.
It is axiomatic in our law that in order for a covenant in restraint of trade to be enforceable the covenant
must 1) relate to (be ancillary to) a contract for the sale of the good will of a business or to a contract of
employment, 2) be supported by adequate consideration, and 3) be reasonably limited in both time and territory.
***
Appellant asserts that the covenant is unenforceable because it lacks consideration. It is his position that
the negotiations prior to May 11th constituted a complete and binding oral contract for which the consideration
was the employment itself. Thus he argues that the employment as consideration was not available to support
the subsequent written restrictive covenant. Moreover, he contends that the entering into an agreement
containing a restrictive covenant was not a factor considered in arriving at the oral agreement of employment. It
was not until O'Brien had commenced work and inquired about his Blue Cross benefit forms that he was
requested by a clerk to sign the 'Employment Contract' supposedly in accordance with the general practice of the
firm. It is particularly significant that Kistler, who was then operating a sole proprietorship and personally
participated in the final negotiations, never discussed this requirement.
Thus we must first determine at what point a final and binding employment contract was executed before
determining what, if any, consideration passed for the signing of the covenant.
The Chancellor, in reviewing the evidence, rejected appellant's claim that an oral contract existed and
found that the written contract was the sole agreement of employment between the parties. Based upon this
premise he concluded that the employment itself was the consideration for the covenant. While the Chancellor's
findings, approved by the court en banc, have the force and effect of a jury's verdict, they must also be supported
by adequate evidence in order that they be affirmed on appeal. *** Our reading of the record, and especially the
testimony of appellee, Kistler, forces us to conclude that the Chancellor's finding was contrary to the evidence
and that a final and binding oral contract of employment which did not contain a restrictive covenant did exist
prior to the date the written contract was signed.
At the hearing appellee, Kistler, testified as follows:
Q And as a result of those meetings I take it Mr. O'Brien decided to come work for Kistler
Company?
A That's right. Q During those meetings, did you discuss what his duties would be?
A Yes.
Q Did you discuss his amount of pay?
A Yes.
Q You discussed his insurance benefits and the rest of it? A I presume.
Q Blue Cross, Blue Shield. You knew that he had to let his then present employer, Alpo, let them
know, give them notice if he was going to leave them?
A I believe it. I can't recall specifically.
Q Would you agree that you were probably aware of that?
A If it were my choice I would have suggested he give them two weeks because I wouldn't want
someone to leave and walk out the door the same way.
Q So at some period of time two weeks before he started work physically on the job, you were
aware that Mr. Kistler, or that Mr. O'Brien was coming to work for the Kistler Company?
A I imagine, yes.
Q That the terms of the relationship had been agreed upon; right?
A Yes.
Q And that you knew that he had then, after coming to that agreement with you, notified his then
employer that he was quitting that work with the Alpo Company?
A Did you say did we notify them?
Q You realized that he would then have to notify Alpo that he had come to an arrangement with
you and that he was leaving them?
A Yes.
Q Now at the time that you made those arrangements with Mr. O'Brien, and prior to his notifying
his then employer, Alpo, that he was leaving their employ and coming with you, did you have Mr.
O'Brien sign any restrictive covenant that was a condition of his employment with the Kistler
Company?
A What's the time of this? You are saying prior to his leaving Alpo?
Q And at the time that you made the arrangements with Mr. O'Brien for his employment with the
Kistler Company, which you have now testified was at least two and maybe three to four weeks
prior to his actual physical arrival on the scene, did you have Mr. O'Brien sign any alleged
restrictive covenant with respect to the Kistler Company?
A I can't think it is was signed two weeks or greater.
Q So the answer to that is no; correct?
A No.
Under the law of this Commonwealth it has been held that even where a later formal document is
contemplated, parties may bind themselves contractually prior to the execution of the written document through
mutual manifestations of assent. *** Thus evidence of mutual assent to employ and be employed which
contains all the elements of a contract may be construed as a binding contract of employment through not
reduced to writing. Under this test, it is clear that the testimony recited above requires a finding of the existence
of an oral contract of employment at least two weeks prior to the written contract. Not only was it agreed that
O'Brien would cease working for his present employer and begin working for Kistler, but all aspects of the
employment relationship such as wages, duties and benefits were also agreed upon. Kistler's testimony admits
mutual assent regarding the employment. Moreover, there was no evidence that the parties understood that
O'Brien 'was not to become a regular employee until he signed the restrictive covenant, and was not to receive
any commissions . . . or other confidential information prior to that time. *** Indeed the record establishes that
both parties understood that O'Brien was to leave his then employment and become a regular employee of Kistler
without any promise not to engage in a competitive enterprise. ***
Having concluded that a valid oral contract of employment, without a covenant to compete, existed prior
to the written contract of employment, we cannot accept the Chancellor's view that the employment itself
constituted the consideration for the covenant. In our judgment, such consideration would clearly be past
consideration.
While a restrictive covenant, in order to be valid need not appear in the initial contract, if it is agreed
upon at some later time it must be supported by new consideration. See Maintenance Specialties Inc. v. Gottus,
455 Pa. 327, 331, 314 A.2d 279, 281 (1974) *** Furthermore, we have stated that continuation of the
employment relationship at the time the written contract was signed was not sufficient consideration for the
covenant despite the fact that the employment relationship was terminable at the will of either party. See
particularly, Maintenance Specialties Inc. v. Gottus, supra. *** Thus the covenant which is the basis of this
action is not enforceable for lack of consideration and the decree of the court below must be reversed. [Footnote:
The seal and $1.00 nominal consideration for the covenant recited in the clause are insufficient to support
equitable enforcement of a restrictive covenant which is not favored in our law. See generally Maintenance
Specialties Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 (1974) *** ]
Decree reversed. Costs on appellee.
ROBERTS, J., filed a concurring opinion in which JONES, C.J., joins.
EAGEN, O'BRIEN and MANDERINO, JJ., concur in the result.