Pennsylvania nonsolicitation agreements and their expanding reach

It’s not a noncompete… or is it? The expanding reach of nonsolicitation restrictions

April 3, 2026
Publications

As noncompete agreements have faced increased scrutiny, employers have increasingly relied on nonsolicitation agreements to protect their interests. Under a nonsolicitation agreement, a former employee is permitted to work anywhere, but is prohibited from soliciting the former employer’s customers, prospective customers, employees or vendors for a given period of time.

While nonsolicitation agreements can be an effective tool, employers may be surprised to learn that, as with noncompetes, a variety of nuances affect their enforceability and scope. For example, employers and employees may wonder what constitutes “solicitation.” Does it include merely contacting a customer? Does the restriction apply if the customer initiates contact with the employee? Who can be considered a “customer” or “potential customer” anyway? These details can significantly affect the contours of how a court might enforce the non-solicitation agreement.

This article highlights several issues employers should consider when drafting and enforcing non-solicitation restrictions under Pennsylvania law.

Key takeaways

Nonsolicitation clauses may be enforced more narrowly than employers expect.
The definition of terms such as “solicit,” “customer,” and “potential customer” can shape the scope of the restriction.
Pennsylvania courts may be reluctant to enforce restrictions that are too broad.
Clear drafting can improve predictability.

What constitutes ‘solicitation’?

Litigants of nonsolicitation agreements have long pondered the scope of the word “solicitation.” However, in Pennsylvania, there is surprisingly little authority on this question.

A recent unpublished opinion by the Pennsylvania Superior Court examined the scope of the word. The Superior Court affirmed a trial court’s limited interpretation of the words “solicit,” “divert,” and “entice” that appeared in a nonsolicitation agreement. See First National Trust v. English, No. 1109 WDA 2025, 2026 WL 458691, at *10–13 (Pa. Super. Feb. 18, 2026). The defendants, who were subject to nonsolicitation restrictions, accepted clients only after they first contacted the defendants. The clients signed acknowledgments affirming they had not been solicited. Highlighting the lack of guidance on this topic in precedential court opinions, the court relied on dictionary definitions to determine that each term required an “affirmative act.” Because the defendants had not initiated contact with clients of their former employer, the court determined they did not violate their nonsolicitation agreement.

In English, the Superior Court disregarded the former employer’s reliance on Synthes v. Emerge Medical, 25 F. Supp. 3d 617 (E.D. Pa. 2014), where the U.S. District Court for the Eastern District of Pennsylvania reached a more expansive interpretation of a nonsolicitation clause that prohibited the restricted employee from soliciting, inducing, or encouraging employees to leave. The court concluded that this clause was not limited to instances where the restricted employee initiated contact.

The English decision is nonprecedential, but it demonstrates the need for non-solicitation agreements to clearly define the conduct they restrict. In the absence of definitions in the contract, a Pennsylvania court may apply a more limited definition than the employer anticipated.

Nonsolicitation clauses often prohibit “direct and indirect” solicitation, but it is uncertain whether this language has a material impact on the clause’s scope. At least one court has interpreted that phrase to be superfluous. See Fisher Bioservices v. Bilcare, No. Civ.A 06-567, 2006 WL 1517382, at *15 (E.D. Pa. May 31, 2006). In Ecosave Automation v. Delaware Valley Automation, 540 F. Supp. 3d 491, 504–06 (E.D. Pa. 2021), the Eastern District of Pennsylvania noted the lack of case law discussing what constitutes “indirect solicitation” and concluded that it must at least include “specific acts of personal involvement in the solicitation.”

Who can be considered a ‘customer’ or ‘potential customer’?

Like the definition of “solicit,” “customer” and “potential customer” are left for a court to interpret when the contract leaves them undefined.

Customers with a pre-existing relationship with the employee?

The English decision also provides insight on customers who have a preexisting relationship with employees. The non-solicitation agreement contained a clause prohibiting the defendants from accepting or providing assistance in accepting business from customers or potential customers with whom the defendants had contact, involvement, or responsibility during their employment.

The trial court concluded that the clause was vague and overly broad because it could “unduly restrict” longstanding relationships such as friends and family of the defendants, regardless of whether the relationship pre-dated the employment with the plaintiff employer. Pennsylvania courts have previously recognized that some customer relationships result in the customer naturally following the employee to the new employer. See, e.g., Renee Beauty Salons v. Blose-Venable, 652 A.2d 135, 1349 (Pa. Super. 1995); Springs Steels v. Molloy, 162 A.2d 370, 375 (Pa. 1960); PTSI v. Haley, 71 A.3d 304, 319–20 (Pa. Super. 2013). The Superior Court affirmed the trial court’s conclusion and stated “it would be unreasonable” to include customers “whose relationships predated” each defendant’s employment with the plaintiff employer. The Superior Court opined that, where the former employer did not subsidize or financially support the establishment of the customer’s relationship with the defendant, the restriction does not serve a legitimate interest.

Customers with no relationship with the employee?

Similar reasoning has been applied by Pennsylvania courts to find that an employer had no legitimate business interest in barring an employee from soliciting customers with whom the employee had no relationship. See Robert Half of Pennsylvania. v. Feight, 2000 WL 33223697, at *10 (Pa. Com. Pl. June 29, 2000). The Robert Half court focused on prior precedential decisions, which found non-solicitation clauses protect the employer’s legitimate interest in relationships that had been established through the efforts of the employee, not relationships that were unrelated to the employee.

Customers who no longer have a relationship with the employer?

Employers should not assume that their non-solicitation agreements cover former customers in the absence of clear contract language. For example, in Doyle Consulting Group v. Stoffel, 2004 WL 362316 (Pa. Com. Pl. Feb. 13, 2004), the Philadelphia County Court of Common Pleas refused to apply a nonsolicitation agreement to restrict the solicitation of the employer’s former customers. The court stated that the employer “could easily have worded the provision more broadly and explicitly to ensure that its intent was unambiguous and unmistakable.” Indeed, nonsolicitation agreements often include a definition of “customer” that expressly includes those who were customers during the employee’s employment or during another defined period.

“Potential” or “prospective” customers?

Nonsolicitation clauses frequently prohibit solicitation of “potential” or “prospective” customers as well. Courts, however, are more likely to enforce restrictions on potential or prospective customers when they are identifiable and connected to the former employee’s work. For example, the former employee personally called on the prospective customer, actively pursued the prospective customer using the employer’s resources, or relied on the employer’s confidential information to pursue the prospective customer.

An example of a tailored definition of a prospective customer is found in Synthes (supra). The non-solicitation in that case prohibited the employee from soliciting, contacting, or providing services to “any prospective customer of Synthes that I contacted, for whom I had coverage responsibility, or who received or requested a proposal or offer from me on behalf of Synthes at any time during the last two years of my employment,” or “any existing or prospective customer of Synthes for which I had any direct or indirect responsibility at any time during the last two years of my employment.” See Synthes, 25 F. Supp. 3d at 690. Based on this description, the court found that the plain meaning of the restrictions prohibited the former employee from soliciting or providing competing services to the employer’s prospective customers as specifically defined.

What are the risks of an overly-broad nonsolicitation agreement?

Based on the issues discussed in this article, employers may feel the need to strengthen their nonsolicitation agreements to cover a broader range of prohibited activities and applicable customers. However, the broader the nonsolicitation clause, the more likely a court is to find it overbroad and to treat it as a noncompetition restriction. While Pennsylvania courts have discretion to modify nonsolicitation restrictions, overly broad or ambiguous restrictions can invite legal challenges as unenforceable restraints against trade. Thoughtful drafting with tailored, defined terms that anticipate how a court will interpret the terms of a nonsolicitation is critical to preserving the provision’s enforceability.

It is equally important to ensure that the non-solicitation restrictions are narrowly tailored to protect legitimate business interests without functioning as a de facto noncompete. The restrictions should be calibrated to the employee’s role and access to confidential information or customer goodwill. Pennsylvania courts are more likely to enforce non-solicitation restrictions that reflect a measured approach rather than sweeping restrictions that are untethered to actual risk of unfair competition.

Practical guidance for employers

Employers may consider the following when drafting or reviewing nonsolicitation restrictions:
Define key terms such as “solicit,” “customer,” and “prospective customer.”
Consider whether the restriction should apply to direct conduct, indirect conduct, or both.
Tailor the restriction to the employee’s actual role and relationships.
Decide whether former customers or prospective customers should be included.
Avoid language so broad that the restriction begins to function like a non-compete.

Nonsolicitation restrictions can still be an effective tool, but they are not necessarily easy to enforce. Clear definitions, tailored language, and consideration of legal precedent can improve enforceability and reduce the risk of disputes over scope.