## Facts

- Catherine I. Torbett began working for Wheeling Dollar Savings & Trust Company in 1969 and was promoted to trust officer in October 1974 without an immediate salary increase.
- After receiving an offer from another bank, Torbett told her employer she would leave unless she received an immediate raise and an assistant; the bank agreed and gave her a 23% raise effective November 20, 1974.
- On November 27, 1974, the bank required Torbett to sign a written employment contract containing a restrictive covenant; Torbett objected to the clause but signed.
- The covenant barred Torbett, for two years after voluntary termination, from working in any bank or in any phase of banking (or any competitive business) in Wheeling, West Virginia, or within 25 miles.
- Torbett resigned in December 1978 and asserted she had banking employment opportunities in Wheeling but believed the bank would enforce the covenant, based on its prior enforcement against another former employee.
- Torbett filed an action for declaratory judgment to invalidate the covenant and sought damages for lost income.
- An advisory jury found the covenant supported by consideration, found it unreasonable, and awarded $35,000 in lost-income damages; the trial court adopted those findings and entered judgment for Torbett.

## Issues

1. Whether the post-employment restriction barring work in “any phase of banking” within a 25-mile radius for two years was reasonable and enforceable under West Virginia law.
2. Whether the bank identified a legitimate protectable interest (e.g., trade secrets, confidential information, or goodwill) sufficient to justify the scope of the restraint.
3. Whether Torbett could recover lost-income damages based on the covenant’s deterrent effect on available employment and the bank’s threatened enforcement.

## Decision

- The Supreme Court of Appeals of West Virginia affirmed the judgment for Torbett.
- The court held the noncompetition covenant unreasonable and unenforceable as contrary to public policy.
- The court accepted the finding that the covenant was supported by consideration, but found enforceability turned on reasonableness and legitimate employer interests.
- The court affirmed the $35,000 damages award for lost income as supported by the trial court’s findings regarding available employment and the covenant’s deterrent effect.

## Legal Principles

- Employee noncompetition covenants are enforceable only if supported by consideration, reasonably necessary to protect a legitimate employer interest, and reasonable in duration, geographic scope, and restricted activities.
- A restraint aimed at preventing competition generally, without a specific protectable interest tied to the employee’s position (such as trade secrets or confidential information), is not enforceable.
- A covenant barring an employee from working broadly across an industry within a local labor market may be void as against public policy when it substantially restricts the employee’s ability to earn a livelihood.
- Lost-income damages may be awarded when an unenforceable restrictive covenant and credible threat of enforcement cause the employee to forgo or lose available employment opportunities.

## Conclusion

West Virginia refused to enforce a broad, industry-wide banking noncompete that was not tied to a demonstrated protectable employer interest, and it upheld an award of lost-income damages attributable to the covenant’s deterrent effect and threatened enforcement.


Torbett v. Wheeling Dollar Sav. & Tr. Co., 314 S.E.2d 166 (W. Va. 1984)