J-A01034-15




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GREENVILLE SURGICAL ASSOCIATES,                IN THE SUPERIOR COURT OF
P.C.,                                                PENNSYLVANIA

                        Appellee

                   v.

RODOLFO ARREOLA, M.D.,

                        Appellant                No. 678 WDA 2014 AND


              Appeal from the Judgment entered April 7, 2014,
               in the Court of Common Pleas of Erie County,
                    Civil Division, at No(s): 14153-2004


GREENVILLE SURGICAL ASSOCIATES,                IN THE SUPERIOR COURT OF
P.C.,                                                PENNSYLVANIA

                        Appellee

                   v.

RODOLFO ARREOLA, M.D.,

                        Appellant                   No. 737 WDA 2014


                Appeal from the Order dated April 22, 2014,
               in the Court of Common Pleas of Erie County,
                    Civil Division, at No(s): 14153-2004


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.

DISSENTING MEMORANDUM BY ALLEN, J.:                    FILED JULY 8, 2015

     I respectfully dissent from the Majority’s reversal of the judgment

which the trial court had entered in favor of GSA and against Dr. Rodolfo

Arreola, M.D., (“Appellant”).   The Majority’s entry of judgment in favor of
J-A01034-15



Appellant has effectively granted Appellant a JNOV.        It is well settled that

our “standard of review prescribes the degree of scrutiny we apply to the

trial court’s decision and the manner in which we evaluate its conclusions.”

Egan, et al. v. USI Mid-Atlantic, Inc., et al., 92 A.3d 1, 12 (Pa. Super.

2014). In Egan, we reiterated:

        A JNOV can be entered upon two bases: (1) where the movant
        is entitled to judgment as a matter of law; and/or, (2) the
        evidence was such that no two reasonable minds could disagree
        that the verdict should have been rendered for the movant.
        When reviewing a trial court's denial of a motion for JNOV, we
        must consider all of the evidence admitted to decide if there was
        sufficient competent evidence to sustain the verdict. In so
        doing, we must also view this evidence in the light most
        favorable to the verdict winner, giving the victorious party the
        benefit of every reasonable inference arising from the evidence
        and rejecting all unfavorable testimony and inference.
        Concerning any questions of law, our scope of review is plenary.
        Concerning questions of credibility and weight accorded the
        evidence at trial, we will not substitute our judgment for that of
        the finder of fact. If any basis exists upon which the jury could
        have properly made its award, then we must affirm the trial
        court's denial of the motion for JNOV. A JNOV should be entered
        only in a clear case.

Egan, 92 A.3d at 19-20. I do not find that this stringent standard is met

here.

        The trial court detailed its factual findings in pertinent part as follows:

              THE PARTIES

              [] [Appellant] is currently a general surgeon residing and
        practicing in Erie, Pennsylvania at UPMC Hamot. [Appellant]
        resigned from GSA in order to obtain employment at Hamot,
        now UPMC Hamot.

              RECRUITMENT OF [APPELLANT]


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           [] UPMC Horizon agreed to make a financial commitment
     to expand GSA based upon the commitment of [Appellant] to be
     employed by GSA and to provide ongoing services in the UPMC
     Horizon, Greenville, Pennsylvania service area on a long-term
     basis. On or about July 30, 2001, three agreements were
     reached by several parties.

          THE RECRUITMENT AGREEMENT

           GSA, [Appellant,] and UPMC Horizon entered into a written
     Recruitment Agreement.       The terms of the Recruitment
     Agreement were dictated by UPMC Horizon. GSA attempted to
     make minor modifications, however, the substantive terms of
     the Recruitment Agreement were "immutable." …

        [Under Section 7, the Recruitment Agreement contained] loan
     forgiveness provisions [which] conditioned the forgiveness upon
     [Appellant] maintaining an active practice in the UPMC Horizon,
     Greenville, Pennsylvania service area for at least six years. The
     provision did not require [Appellant] to continue employment
     with GSA for the entire six-year period only that [Appellant]
     practice in or around Greenville, Pennsylvania at UPMC Horizon.
     Furthermore, the Employment Contract [see infra] did not
     contain a restrictive covenant between GSA and [Appellant]
     which would have prevented [Appellant] from practicing in the
     UPMC Horizon service area following his resignation from GSA.

        The Recruitment Agreement controls the amount of the
     excess income reimbursement requirement, but places no
     limitation on the indemnity provisions of the Employment
     Contract. []

          THE PROMISSORY NOTE

           GSA and [Appellant] entered into a Promissory Note, the
     terms of which were dictated by UPMC Horizon, in conjunction
     with the Recruitment Agreement. GSA, through its counsel,
     attempted to make [Appellant’s] liability for repayment primary,
     however, UPMC Horizon refused to include the changes
     requested by GSA.

          THE EMPLOYMENT CONTRACT

          GSA and [Appellant] entered into a written Employment
     Contract. Attorney Ruthanne Beighley ("Attorney Beighley”),
     counsel for GSA, prepared the initial draft of the Employment


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     Contract, which was strictly a document between GSA and
     [Appellant]. When the agreement was negotiated, GSA had only
     one physician, Dr. Kolenich, and GSA had significant financial
     limitations. All financial risks assumed under the Recruitment
     Agreement required mitigation.       Therefore, GSA drafted the
     Employment Contract to provide for the security and indemnity
     of GSA.

             Employment Contract Sections 15(b) and (c) place
     ultimate responsibility upon [Appellant] for all indebtedness,
     liabilities, costs, damages or other losses incurred by GSA as a
     result of the Recruitment Agreement. The sections state:

           (b) [Appellant] expressly agrees to indemnify and hold
       [GSA] harmless from and against any indebtedness,
       liabilities, costs, damages or other losses under the
       Recruitment Agreement with UPMC Horizon (the
       "Recruitment Agreement”) or the Promissory Note
       attached to such Recruitment Agreement as Exhibit A
       thereto.

          (c) The terms of this Section 15 shall survive the
       termination of this Agreement.

        The indemnity provisions of the Employment Contract are
     written in plain English.   [Appellant] had the Employment
     Contract independently reviewed by an attorney. [Appellant]
     and his attorney requested no significant changes to the
     Employment Contract, which was then executed by GSA and
     [Appellant].   GSA would not have employed or offered
     employment to [Appellant] if the indemnity provisions of the
     Employment Contract were not effective.

            [Appellant] acknowledged that the indemnity provision
     included all indebtedness and that the accumulated unpaid
     excess reimbursement obligation was an indebtedness. The
     Court did not find credible [Appellant’s] understanding that the
     obligation imposed on him was only to reimburse any shortfall
     should the total income generated by his efforts not exceed the
     total budgeted cost, as no provision of the Employment Contract
     imposes that limitation on [Appellant’s] indemnity obligation.

          [APPELLANT’S] EMPLOYMENT AT [GREENVILLE]

          In the summer of 2001, [Appellant] moved to Greenville,
     Pennsylvania. He began employment at GSA in mid-September

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     2001, after he secured a Pennsylvania license and hospital
     credentialing. [Appellant’s] employment at GSA was his first
     private practice job. During the time that [Appellant] was
     employed at GSA, from mid-September 2001, until September
     19, 2003, UPMC Horizon advanced the sum of $184,800.24 to
     [GSA] pursuant to the Recruitment Agreement.                 The
     advancements reimbursed GSA for the costs of [Appellant’s]
     compensation and certain, but not all, expenses incurred related
     to the employment of [Appellant]. GSA did not receive any
     income from [Appellant] at GSA until about February 2002.

           [Appellant] performed general surgery work and some
     vascular surgery. However, both Dr. Kolenich and [Appellant]
     began focusing on bariatric surgery patient recruitment. Due to
     the concentrated efforts of both Dr. Kolenich and [Appellant],
     GSA was awarded the “Center of Excellence” designation by the
     American Society for Bariatric Surgery.

          During    the   course   of   [Appellant’s]   employment,
     expenditures were made to improve GSA.           Some of these
     expenditures permit a second physician to operate in the facility.

           [Appellant] requested and required certain expenses in
     order to practice under his terms at GSA. These expenses were
     not included in Exhibit C, to include an improved practice
     computer system, additional examining room(s) so that both
     physicians could have office hours at the same time which
     required the facilities to be enlarged, therefore remodeling was
     conducted, a new desk, substantial GSA staff overtime to
     accommodate [Appellant’s] schedule of office hours, and new
     office staff. The renovations were necessary and completed
     during [Appellant’s] tenure.

           These expenses were in excess of those projected in
     Exhibit C and were directly related to accommodate [Appellant]
     and the needs of a two physician practice per Robert C.
     Sherbondy, CPA, [(“Sherbondy”)] [GSA’s accountant since 1990
     and its accounting expert at trial].

           In the spring of his second year of employment,
     [Appellant] discussed the future of the practice with Dr.
     Kolenich. Dr. Kolenich offered [Appellant] equal ownership of
     the practice and ownership interest in the real estate. At that
     time, [Appellant] was supplied with financial documents for GSA,
     including ten years of reports regarding the performance of the
     practice.

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            On June 6, 2003, Dr. Kolenich confirmed the offer via
     letter to [Appellant], but Dr. Kolenich's letter did not address a
     firm salary to [Appellant] after September 2003. The letter
     required [Appellant] to pass his Boards in 2003, rather than
     2004, as stated in the Employment Agreement. [Appellant]
     never presented a counterproposal to Dr. Kolenich or requested
     a written confirmation of income after September 2003.
     [Appellant] then drafted a resignation letter which was delivered
     on July 18, 2003, however, the letter was undated. The letter
     indicated that [Appellant] intended to terminate his employment
     with GSA. On July 29, 2003, Dr. Kolenich, on behalf of GSA,
     responded by letter to [Appellant]. In that letter Dr. Kolenich
     included the following:

       Lastly, I would like to remind you of the financial obligation
       you have to UPMC/Horizon per your employment contract
       with GSA. Specifically, I would refer you to Item 15B in
       your employment contract with GSA.           I am presently
       asking for an update on that amount from Mr. David
       Shulik, Financial Officer of UPMC/Horizon. I will provide
       you with that information prior to your departure from this
       Practice.

           The July 29th letter confirmed the intent of section 15(b)
     of the Employment Contract, which placed ultimate responsibility
     upon [Appellant] for all sums advanced by UPMC Horizon.
     [Appellant] acknowledged that he had advised Michael Downing
     ("Downing") at UPMC Horizon of his resignation, and that UPMC
     Horizon had suggested opportunities for him to remain in the
     UPMC Horizon service area and not work for GSA.            Those
     opportunities were not explored by [Appellant].

          [APPELLANT’S] RESIGNATION

           On September 19, 2003, [Appellant’s] employment with
     GSA terminated and he has not practiced within the UPMC
     Horizon service area. [Appellant] was advised by a patient that
     Hamot Medical Center (hereinafter “Hamot”) was interested in
     developing a program in bariatrics and [Appellant] entered into
     negotiations with [Hamot] while still employed by GSA.
     [Appellant] signed a contract with Hamot in September of 2003,
     the same month he resigned his privileges at UPMC Horizon and
     terminated all practice affiliations in the UPMC Horizon service
     area.



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           [Appellant] showed the Recruitment Agreement and/or the
     Employment Contract to Hamot, requested help paying legal fees
     associated with this litigation, and received and is currently
     receiving help covering the costs of this litigation, including the
     costs   associated    with   [Appellant’s]    accounting,    expert
     consultation and testimony, and [Appellant’s] counsel.

           CONSEQUENCES OF [APPELLANT’S] RESIGNATION

           David D'Urso, Director of Physician Recruitment at UPMC
     Horizon, interpreted the Recruitment Agreement and the
     Employment Contract. He determined that the monies owed
     under the Recruitment Agreement would be forgiven if
     [Appellant] continued to work in the UPMC Horizon service area
     for the required six years. D'Urso also considered the effect of
     the indemnity provisions of the Employment Contract upon the
     obligations imposed under the Recruitment Agreement.         He
     concluded that absent forgiveness, the ultimate responsibility
     was [Appellant’s].

           [Appellant’s] departure from UPMC Horizon's Greenville
     service area resulted in the forfeiture of any loan forgiveness
     under the Recruitment Agreement, forgiveness of the loan
     repayment obligations. [sic]

           GSA was experiencing cash flow problems directly related
     to the increased costs arising from [Appellant’s] employment.

           REPAYMENT UNDER THE RECRUITMENT AGREEMENT

            GSA’s cash flow during the employment of [Appellant] was
     a key component of why GSA failed to make the required
     payments under the Recruitment Agreement. GSA’s accountant,
     [Sherbondy], analyzed GSA’s operating bank account from
     October 31, 2001 through September 30, 2003. This analysis
     demonstrated that no excess was generated and no
     reimbursement was due until July 31, 2002. That excess in the
     amount of $5,686.00 was paid on August 22, 2002. The next
     month, August 31, 2002, an excess of $482.00 was generated,
     which was repaid on September 20, 2002. Thereafter, from
     September 2002 through September 30, 2003, there was
     insufficient money in the checking account to pay the
     reimbursement, and the cumulative total of the overdraft that
     would have occurred had those payments been made totaled
     $171,931.00. GSA requested that UPMC Horizon forgive the
     amounts advanced to GSA, but UPMC Horizon refused. On

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      October, 15, 2003, UPMC Horizon sent a demand for payment
      addressed to Dr. Kolenich, [Appellant] and GSA, requesting that
      GSA and [Appellant] “make arrangements within the next thirty
      (30) days to repay [UPMC Horizon] the entire monies owed so
      that we can avoid the necessity for further action over this
      issue.”

            UPMC Horizon's demand was ignored by [Appellant]. On
      December 16, 2003, GSA paid UPMC Horizon the sum of
      $168,532.01, including interest in the amount of $24,899.52,
      which, in conjunction with $41,167.75 previously paid by GSA,
      totaled $209,699.76. This amount fully satisfied the obligation
      to UPMC Horizon. The payment funds were secured from Dr.
      and Mrs. Kolenich personally and provided to GSA.

            GSA’s failure to make payment obligations under the
      Recruitment Agreement was due to GSA’s cash flow shortages.
      If GSA had made the payments as indicated under the
      Recruitment Agreement, then GSA would have been required to
      acquire debt, which under the terms of the Employment
      Agreement, [Appellant] would have been responsible for.

            GSA’s delay in payment did not cause the indebtedness at
      issue and was not material to the indemnity obligation.
      Furthermore, GSA suffered losses all [attributable] to
      [Appellant’s] employment.

            [GSA’S] LOSSES

           [Sherbondy] testified that for the two-year period that
      [Appellant] was employed at GSA, GSA sustained a loss of
      $182,761.00 [dollars] and that the loss was directly related to
      [Appellant’s] employment.

Trial Court Opinion, 4/5/12, at 2-11 (some internal footnotes omitted).

      Based on my review of the record and applicable jurisprudence, I find

that Appellant’s first, second and third issues fail.      In examining the

foregoing issues, I am mindful that “[c]ontract interpretation is a question of

law regarding which our standard of review is de novo and our scope of




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review is plenary.”    McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009)

(internal citation omitted). Significantly, I further recognize:

             Our appellate role in cases arising from non-jury trial
      verdicts is to determine whether the findings of the trial court
      are supported by competent evidence and whether the trial court
      committed error in any application of the law. The findings of
      fact of the trial judge must be given the same weight and effect
      on appeal as the verdict of a jury. We consider the evidence in a
      light most favorable to the verdict winner. We will reverse the
      trial court only if its findings of fact are not supported by
      competent evidence in the record or if its findings are premised
      on an error of law. However, [where] the issue … concerns a
      question of law, our scope of review is plenary.

            The trial court’s conclusions of law on appeal originating
      from a non-jury trial ‘are not binding on an appellate court
      because it is the appellate court’s duty to determine if the trial
      court correctly applied the law to the facts’ of the case.

Wyatt v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 citing

Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa. Super. 2005) (citations

omitted).

      Likewise:

            It has been long accepted in contract law that an
      ambiguous written instrument presents a question of fact for
      resolution by the finder-of-fact, whereas the meaning of an
      unambiguous written instrument presents a “question of law” for
      resolution by the court.        As the authorities in the field of
      contracts make clear, however, the latter exercise is also in
      actuality a factual, not a legal, decision. For a variety of reasons
      the common law has long thought it best to leave to the court
      rather than to the jury the essentially factual question of what
      the contracting parties intended.         This fact finding function
      exercised by the court is denominated a “question of law”,
      therefore, not because analytically it is a question of law but
      rather to indicate that it is the trial judge, not the jury, to whom
      the law assigns the responsibility for deciding the matter.


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Community College of Beaver County v. Community College of

Beaver County, Society of the Faculty (PSEA/NEA), 375 A.2d 1267,

1274 (Pa. 1977) (internal citations omitted).

      Instantly, Appellant contends that the trial court misinterpreted the

Recruitment   Agreement,      the   Promissory   Note,   and   the   Employment

Contract, and that in doing so and relying on GSA’s expert accounting

testimony, the trial court erred in determining that Appellant was liable to

Greenville pursuant to the foregoing contracts. See Appellant’s Brief at 15-

16. I cannot agree.

      Appellant summarizes his challenge to the trial court’s interpretation of

the Recruitment Agreement as follows:

             The trial court misinterpreted the Recruitment Agreement
      by finding that [Appellant’s] resignation had caused the
      forfeiture of a loan forgiveness option. The option applies only
      when [Appellant’s] receipts had been insufficient to retire the
      loan debt. It is undisputed that [Appellant’s] receipts were
      sufficient to retire the entire loan debt. Thus, no amounts were
      subject to forgiveness. Even if the loans had been subject to
      forgiveness, the court erred by finding that [Appellant’s]
      resignation breached a requirement that he practice within
      [UPMC Horizon’s] service area. [Appellant] had satisfied the
      forgiveness provision mandate that he maintain a local practice
      for 2 years. Moreover, [GSA’s] own defaults in payment to the
      [UPMC Horizon] would have caused a forfeiture of the
      forgiveness option. Also, the court misread the forgiveness
      option to award [GSA] all of the loans that it had repaid to
      [UPMC Horizon], including those that had been repaid before
      [Appellant’s] resignation.

Appellant’s Brief at 15-16.




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     “[T]he mutual intention of the parties at the time they formed the

contract governs its interpretation.     Such intent is to be inferred from the

written provisions of the contract.”     Miller v. Poole, 45 A.3d 1143, 1146

(Pa. Super. 2012) (internal citation omitted).        Appellant concedes that

“[u]nder paragraph 5 of the Recruitment Agreement, [UPMC] agreed to loan

GSA money to off-set start-up costs arising during the first two years of

[Appellant’s] employment[.]”    Appellant’s Brief at 8 (emphasis supplied).

Appellant’s statement reflects that the Recruitment Agreement specifically

required Appellant to work for UPMC Horizon for more than the initial two

year time frame, during which loans were to be furnished to GSA on

Appellant’s behalf by UPMC Horizon.

     The Recruitment Agreement expressly indicated that UPMC Horizon

“desires to offer [Appellant] certain initial guarantees in connection

with providing Services in [UPMC Horizon’s] Service Area which will include

participating in [UPMC Horizon’s] Department of Surgery.”          Recruitment

Agreement, 7/30/01, at 1.      The Recruitment Agreement further indicated

that UPMC Horizon’s “Board of Directors has fully considered the need for

physicians that provide Services in [UPMC Horizon’s] Service Area,

has approved [UPMC Horizon’s] extending an offer of initial income

guarantees to [Appellant] and has determined that said assistance is

reasonable and necessary to maintain and improve health care in [UPMC

Horizon’s] Service Area[.]” Id. at 2. The Recruitment Agreement defined

“Service Area” as “in and around Mercer County, Pennsylvania.” Id. at 1.

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     The Recruitment Agreement further provided:

     [I]n consideration of the mutual promises and agreements
     contained herein, the parties hereto, intending to be legally
     bound hereby, agree as follows:

                                 ***

     2. Commencing on or before the Start Date and continuing
     throughout the term of this Agreement, [Appellant] shall
     practice medicine on a full-time basis in [UPMC Horizon’s]
     Service Area and outlying communities, excluding any other
     employment or professional duties, as are usual and customary
     in the area of [Appellant’s] specialty.

     3. [Appellant] shall become and remain a member of the
     active Medical Staff of [UPMC Horizon] throughout the
     term of this Agreement.

Id. at 2 (emphasis supplied).

     Regarding loans, the Recruitment Agreement stated:

     5. During the first two years of this Agreement, [UPMC
     Horizon] shall advance [GSA] on behalf of [Appellant] on a
     monthly basis, sums of money to guarantee that for the first
     two years of [Appellant’s] practice at [UPMC Horizon]
     (“Guarantee Period”), [Appellant] receives actual cash receipts
     equal to $300,000 in the first year of the Guarantee Period and
     $324,000 in the second year of the Guarantee Period.

                                 ***

     7. Notwithstanding the above, as an alternative means of
     repayment, [UPMC Horizon] agrees that the Net Amount
     advanced by [UPMC Horizon] under Section 6, subject to
     Paybacks and obligated to be repaid to [UPMC Horizon] under
     Section 6, shall be forgiven and the Note executed as of such
     date shall be canceled if, at all relevant times up until and
     throughout the Guarantee End Date, [Appellant] and
     [GSA] have met (as applicable) all of the following
     requirements:

        (a) [Appellant] shall have engaged in the full-time
        practice of General Surgery in [UPMC Horizon’s]

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          Service Area at [UPMC Horizon] and made services
          available to the public in accordance with the
          provisions of this Agreement;

          (b) [Appellant] shall have worked a normal work
          week as is customary for physicians in the area who
          practice in [Appellant’s] specialty unless unable to do so
          due to disability;

                                    ***

          (f) [Appellant] shall have assisted [UPMC Horizon] in
          its educational programs as may be reasonably
          requested by Hospital;

          (g) [Appellant] shall have participated in a call
          coverage arrangement, irrespective of the patient’s
          ability to pay;

          (h) Subject to also fulfilling his other duties
          hereunder, [Appellant] shall have assisted [UPMC
          Horizon] in the development of community services
          as may be reasonably requested by [UPMC Horizon],
          and

          (i) [Appellant] and [GSA] shall have otherwise
          satisfied all of his/its obligations under this
          Agreement.

Id. at 3-5 (emphasis supplied).      It is clear that the emphasis of the

Recruitment Agreement was to secure, promote, and incentivize the

recruitment, employment, and continued services of Appellant for a six year

term.

        Appellant contends that GSA materially breached the Recruitment

Agreement by failing to remit timely paybacks to UPMC Horizon during the

guarantee period, and that said breach, rather than Appellant’s resignation,

is the reason for GSA’s indebtedness to UPMC Horizon, the forfeiture of loan




                                    - 13 -
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forgiveness, and GSA’s operating losses, such that Appellant should be

relieved of any liability in connection thereto.

      My review of the record supports the trial court’s rebuttal of the

foregoing contention. The trial court observed, “GSA’s cash flow during the

employment of [Appellant] was a key component of why GSA failed to make

the required payments under the Recruitment Agreement.”            Trial Court

Opinion, 4/5/12, at 10. The trial court reasoned:

             GSA did not commit a material breach of its obligations to
      [Appellant] resulting from the delay in repayment of the UPMC
      Horizon obligation. The Court finds it was not financially feasible
      for GSA to make the paybacks to UPMC Horizon during the term
      of [Appellant’s] employment through September 30, 2003, and
      finds that the excess income reimbursement payments, if made,
      would have resulted in an overdraft or cash deficiency of
      $171,931.00.      Therefore, an infusion of $171,931.00 of
      additional cash would have been necessary to make those
      payments.

            Rather this Court finds that GSA complied with all facets of
      the agreement. GSA’s failure to pay the excess monies back
      before [Appellant] resigned was not a material breach. The
      Recruitment Agreement contained no time is of the essence
      clause so GSA’s failure to perform on a certain date was not a
      material breach. ‘[A] material failure to perform or to offer to
      perform on a stated day does not of itself discharge the other
      party's remaining duties unless the circumstances, including the
      language of the agreement, indicate that performance or an
      offer to perform by that day is important.’         Restatement
      (Second) of Contracts, § 242(c).

Trial Court Opinion, 4/5/12, at 14.

      Conversely, the trial court determined:

      [Appellant], however, willingly breached the contracts to the
      detriment of GSA.      [Appellant] materially breached the


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     obligations imposed upon him by the Recruitment Agreement by
     failing to:

        a) maintain a medical practice in the UPMC Horizon service
           area for six years;

        b) maintain a practice presence in the UPMC Horizon service
           area after September 2003, causing both GSA and
           [Appellant] to lose the loan forgiveness from UPMC
           Horizon; and

        c) respond and make any effort to satisfy the request for
           payment submitted to both [Appellant] and GSA on
           October 15, 2003 by UPMC Horizon.

                                   ***

          It is clear to this Court that all parties understood and
     recognized the foreseeable risks inherent in the Recruitment
     Agreement. The Court rejects [Appellant’s] explanations and
     understanding of the contracts.       [Appellant] voluntarily and
     knowingly moved to Greenville, entered into the Employment
     Contract and Promissory Note and committed to the length of
     the Recruitment Agreement, six (6) years. [Appellant] moved
     away from the Greenville service area because he and his wife
     were dissatisfied with the Greenville area and because he had an
     opportunity to practice at a larger medical facility.

            [Appellant] acted in bad faith towards GSA. ‘The extent to
     which the behavior of the party failing to perform or to offer to
     perform comports with the standards of good faith and fair
     dealing is a significant circumstance in determining whether the
     failure i[s] material. In giving weight to this factor, courts have
     often used the term willful.’ Restatement(Second) of Contracts,
     § 241 comment f. [Appellant’s] actions were clearly willful.
     Furthermore, ‘a claim for damages for total breach is one for
     damages based on all of the injured parties’ remaining rights to
     performance.’     Restatement (Second) of Contracts, § 235.
     [GSA] is entitled to reimbursement for the entire amount of the
     loan repaid to UPMC Horizon under the Recruitment Agreement
     as it is undoubtedly an indebtedness considered under Section
     15(b) of the Employment Contract.

Trial Court Opinion, 4/5/12, at 14-16.



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     My review of the Recruitment Agreement and applicable jurisprudence

supports the trial court’s determinations. Our Court has explained:

     When performance of a duty under a contract is due, any
     nonperformance is a breach.         Widmer Engineering, Inc. v.
     Dufalla, 837 A.2d 459, 467–468 (Pa. Super. 2003). If a breach
     constitutes a material failure of performance, the non-breaching
     party is relieved from any obligation to perform; thus, a party
     who has materially breached a contract may not insist upon
     performance of the contract by the non-breaching party. LJL
     Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d
     639, 648 (2009). Conversely, a party might breach the contract
     but still substantially perform its obligations under the
     agreement. Cimina v. Bronich, 517 Pa. 378, 537 A.2d 1355,
     1358 (1988). In that case, the breach is deemed nonmaterial
     and the contract remains in effect. Id. The breaching party
     retains the right to enforce the contract and demand
     performance; the nonbreaching party has no right to suspend
     performance. Widmer Engineering, Inc., 837 A.2d at 468.

McCausland v. Wagner, 78 A.3d 1093, 1101 (Pa. Super. 2013).

     Moreover, our Supreme Court has determined:

        [I]t is well-established that ‘only material failure of
     performance by one party discharges the other party ... an
     immaterial failure does not operate as such a discharge.’ Sgarlat
     v. Griffith, 349 Pa. 42, 46, 36 A.2d 330, 332 (1944) (citing
     Restatement of Contracts § 274 (1932)); See First Mortgage Co.
     of Pa. v. Carter, 306 Pa.Super. 498, 452 A.2d 835 (1982);
     Greentree Borough v. Tortorete, 205 Pa.Super. 532, 211 A.2d 76
     (1965).

        In this regard it has been said that:

        Any material failure of performance by one party to a
        contract not justified by the conduct of the other
        discharges the latter's duty to give the agreed exchange;
        but if the alleged breach was an immaterial failure of
        performance, and the contract was substantially
        performed, the provisions of the contract are still effective.

     P.L.E. Contracts § 367 (footnotes omitted).

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Cimini v. Bronich, 537 A.2d 1355, 1358 (Pa. 1988).

     Additionally, our Court has expressed:

        In determining materiality for purposes of breaching a
        contract, we consider the following factors:

        a) the extent to which the injured party will be deprived of
        the benefit which he reasonably expected;

        b) the extent to which the injured party can be adequately
        compensated for that part of the benefit of which he will be
        deprived;

        c) the extent to which the party failing to perform or to
        offer to perform will suffer forfeiture;

        d) the likelihood that the party failing to perform or offer
        to perform will cure his failure, taking account of all the
        circumstances including any reasonable assurances;

        e) the extent to which the behavior of the party failing to
        perform or offer to perform comports with standards of
        good faith and fair dealing.

     Restatement (Second) of Contracts § 241 (1981). Accord
     Jennings v. League of Civic Organizations of Erie County, 180
     Pa.Super. 398, 119 A.2d 608 (1956).

     Id. at 471.

Widmer Engineering Inc. v. Dufalla, 837 A.2d 459, 467-468 (Pa. Super.

2003). In affirming the trial court’s finding of no material breach, our Court

reasoned:

            [T]he trial court concluded in its well-reasoned opinion that
     despite seller's failure to pay monies due and owing under the
     contract, ‘[buyer] was not deprived of the benefit [it] reasonably
     expected, i.e., the purchase of an engineering firm.’ Thus, the
     trial court held that seller's breach was not material and that
     buyer was obligated to continue its payments under the non-
     compete provision of the agreement.



                                    - 17 -
J-A01034-15


            In considering the relevant factors outlined above, we find
      no error in the court's conclusion that seller's breach was not a
      material breach. Simply put, despite seller's failure to pay taxes
      and amounts owed as adjustments to purchase price, buyer
      retained ownership and operational control of Engelhardt which
      generated gross income for buyer in excess of $600,000 during
      every year after acquisition. Clearly, buyer was not deprived of
      the benefit of ownership of the firm. Further, we conclude that
      any benefit of which buyer was deprived as a result of seller's
      contractual breach was adequately compensable by the award of
      monetary damages.

            Moreover, if buyer's non-performance under the remainder
      of the contract were to be excused, then seller would forfeit a
      substantial portion of the monies due him under the agreement
      of sale vis-à-vis its non-compete provision. Weighing these
      consequences, we conclude that the degree of seller's breach
      was not such that buyer's obligations for payment under the
      contract may be suspended. The contract was substantially
      performed by seller who delivered all his shares and relinquished
      control of Engelhardt. Accordingly, we conclude that the court
      properly found buyer's obligations for payment under the
      contract's non-compete provisions to be enforceable and we
      reject buyer's claim that the court erred in awarding seller
      interest at the rate specified in the contract for monies due
      under the non-compete clause.

Id. at 468-469 (footnote omitted).

      Instantly, even if GSA’s untimely paybacks breached the Recruitment

Agreement, GSA still substantially performed the contract.    GSA employed

Appellant, paid Appellant’s salary, submitted various paybacks during the

guarantee period, and ultimately paid the total outstanding amount plus

interest once the monies were demanded by UPMC Horizon. UPMC Horizon

did not lose the benefit of its bargain with GSA and Appellant due to the

untimeliness of any paybacks for which GSA paid interest and satisfied in

full. Appellant did not lose the benefit of his bargain because GSA’s untimely


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paybacks did not deprive Appellant of his recruitment, employment, salary,

and income guarantees which were the emphasis of the Recruitment

Agreement.      Further, as the trial court noted infra, the timing of the

paybacks was not cited by UPMC Horizon’s representatives as the cause for

the loss of the loan forgiveness, such that Appellant can claim that GSA’s

breach deprived him of that benefit.      Accordingly, GSA’s breach may be

deemed nonmaterial such that GSA can still seek to enforce the Recruitment

Agreement and the related agreements.

        Conversely, Appellant is not a non-breaching party who is relieved

from any obligation to perform under the Recruitment Agreement. Appellant

materially breached the Recruitment Agreement upon his resignation from

GSA after two years, followed by his departure from UPMC Horizon’s service

area.     Appellant’s resignation and departure deprived GSA and UPMC

Horizon of the benefit of their bargain, which was to employ Appellant as a

second     surgeon   to   help   expand   GSA’s   bariatric   surgery   services.

Accordingly, I find that the trial court correctly considered the materiality of

the parties’ breaches.

        Moreover, the trial court’s determination is consonant with our Court’s

jurisprudence regarding conditions precedent. “A condition precedent may

be defined as a condition which must occur before a duty to perform under a

contract arises.” Acme Markets, Inc. v. Federal Armored Express, Inc.,

648 A.2d 1218, 1221-1223 (Pa. Super. 1994) (internal citation omitted).

Here, Appellant contends that loan forgiveness by UPMC Horizon was

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J-A01034-15



conditioned on GSA’s timely remittance of paybacks, and that GSA’s failure

to remit the paybacks in a timely fashion caused forfeiture of the debt’s

cancellation.   I recognize that “[w]hile the parties to a contract need not

utilize any particular words to create a condition precedent, an act or event

designated in a contract will not be construed as constituting one unless that

clearly appears to have been the parties’ intention.”    Id.   In Acme, our

Court explained:

             Restatement (Second) of Contracts § 229 discusses the
      excuse of a condition to avoid unfairness in connection with its
      strict enforcement. More specifically, that section relates to the
      excuse of a condition leading to a forfeiture[.] [] Section 229
      provides, ‘To the extent that the non-occurrence of a condition
      would cause disproportionate forfeiture, a court may excuse the
      non-occurrence of that condition unless its occurrence was a
      material part of the agreed exchange.’ Restatement (Second)
      of Contracts § 229. Since Pennsylvania law ‘abhors forfeitures
      and penalties and enforces them with the greatest reluctance
      when a proper case is presented[,]’ Fogel Refrigerator Co. v.
      Oteri, 391 Pa. 188, 195, 137 A.2d 225, 231 (1958), section 229
      is consistent with the law of this Commonwealth. See also
      Jackson v. Richards, 5 & 10, Inc., 289 Pa. Super. 445, 433 A.2d
      888 (1981) (indicating that forfeitures meet with great disfavor
      under the law and utilizing a discussion of a tentative
      Restatement draft to excuse performance on an express
      condition).

         In determining whether the forfeiture is ‘disproportionate,’
         [the] court must weigh the extent of the forfeiture by the
         obligee against the importance to the obligor of the risk
         from which he sought to be protected and the degree to
         which that protection will be lost if the nonoccurrence of
         the condition is excused to the extent required to prevent
         forfeiture.

      Restatement (Second) of Contracts § 229, comment b.




                                    - 20 -
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Acme Markets, Inc. v. Federal Armored Express, Inc., 648 A.2d at

1221-1223.

      Here, it would be “disproportionate” to deem GSA’s late payments as

the cause of the forfeiture of loan forgiveness. While the late payment may

have been a technical breach, and even assuming without deciding that it

was a material breach, the Recruitment Agreement provided for interest on

the outstanding monies, which would protect UPMC Horizon from any

prejudice suffered due to GSA’s late performance of the contractual duty to

remit paybacks.    Thus, GSA’s late payments could be excused to avoid

forfeiture. Conversely, forfeiture would not be “disproportionate” to protect

UPMC Horizon from Appellant’s resignation from GSA, and his total

abandonment of the service area.

      Appellant further challenges the trial court’s analysis of the Promissory

Note, which referenced contribution principles to conclude that Appellant was

liable to GSA pursuant to the Promissory Note for half of the monies paid to

UPMC by GSA. See Appellant’s Brief at 26-27. However, this challenge fails

because the trial court did not calculate the damages awarded to GSA based

on contribution principles, but rather on the trial court’s finding that

“[Appellant] [was] responsible for the entirety of the indebtedness[.]” See

Trial Court Opinion, 4/5/12, at 13 n.4.

      Nevertheless,   Appellant   mischaracterizes   his   execution   of   the

Promissory Note as an “accommodating party,” who “signs the instrument

for the purpose of incurring liability on the instrument without being a direct

                                    - 21 -
J-A01034-15



beneficiary of the value given for the instrument[.]” Appellant’s Brief at 27.

Appellant discounts that he directly benefitted from the monies issued to

GSA. As cited above, the Recruitment Agreement provided that the monies

UPMC Horizon furnished to GSA were paid on behalf of Appellant, were to

serve as set-offs for the start-up costs related to Appellant’s employment,

and were guarantees for Appellant’s salary. Therefore, I reject Appellant’s

assertion that he is “an accommodating party” who can avoid the Promissory

Note.

        The trial court determined that pursuant to the Promissory Note,

Appellant was liable to GSA. The trial court explained:

              [] The promissory note was signed by [Appellant] and
        [Greenville]. It requires both parties to be liable to UPMC
        Horizon for the amounts payable under the Recruitment
        Agreement, $209,699.76. []

                                       ***

               Since [Appellant] failed to satisfy the requirements of the
        Recruitment Agreement to allow forgiveness of the loans made
        to GSA from UPMC Horizon, UPMC Horizon was entitled to the
        amounts due and payable under the terms of the Recruitment
        Agreement. [Appellant’s] actions were detrimental to GSA. GSA
        could not seek forgiveness and the loan repayments were
        accelerated. GSA paid the entirety of the amount due and
        payable, $209,699.76. It was foreseeable to [Appellant], as he
        had read and understood the Recruitment Agreement, that if he
        failed to remain and provide medical services within the UPMC
        Horizon service area for six years that all of the loan monies
        would be due and payable immediately and that all forgiveness
        opportunities would be lost.

              ‘A contracting party is generally expected to take account
        of these risks that are foreseeable at the time he makes the
        contract.’ Restatement (Second) Contracts, § 351 comment a.

                                      - 22 -
J-A01034-15


      ‘A party is liable only for those damages that a reasonable man
      would expect to follow the breach of a particular contract . . .
      unless it is shown specifically that the defendant had reason to
      know of the circumstances responsible for the special damage
      and so to foresee the injury.’         Ebasco Services, Inc. v.
      Pennsylvania Power and Light Co., 460 F. Supp. 163, 217 (E.D.
      Pa. 1978) citing Hadley v. Baxendale, 156 Eng.Rep. 145 (1854).
      [Appellant] could clearly foresee the repayment of the loans and,
      is responsible … to [Greenville][.]

Trial Court Opinion, 4/5/12, at 12-13.       Based on my review of the record

and applicable jurisprudence, I find that the trial court correctly determined

that based on a plain reading of the Promissory Note, Appellant and GSA

clearly intended to be, and therefore were, individually obligated to repay

UPMC Horizon’s loans.

      As to the Employment Contract, the trial court found that “[Appellant]

materially breached Section 15(b) of the Employment Contract by his failure

to honor the indemnity obligations.”     Trial Court Opinion, 4/5/12, at 13.

Appellant summarizes his challenge to the trial court’s interpretation of the

Employment Contract, and argues that GSA’s “repayment of the loans is not

a loss and, thus, it was not covered by the indemnity provision of the

Employment Contract.    Also the indemnity obligation does not cover all of

GSA’s financial losses, or losses that were not caused by [Appellant].”

Appellant’s Brief at 16. Based on my review of the Employment Contract, I

disagree.

      The Employment Contract provided in pertinent part:

      [Appellant] expressly agrees to indemnify and hold [GSA]
      harmless from and against any indebtedness, liabilities,
      costs, damages, or other losses under the Recruitment

                                    - 23 -
J-A01034-15


     Agreement with UPMC Horizon … or the Promissory Note
     attached to such Recruitment Agreement as Exhibit A thereto.

Employment Contract, Section 15(b) (emphasis supplied). I cannot ignore

that the Employment Contract specifically referenced the Recruitment

Agreement and the Promissory Note, and that those contracts required the

repayments of the UPMC Loans plus interest.      To do so would contravene

contract interpretation principles. Our Court recently observed:

           It is a general rule of law in the Commonwealth that
        where a contract refers to and incorporates the provisions
        of another, both shall be construed together. It is well-
        settled that clauses in a contract should not be read as
        independent     agreements    thrown    together  without
        consideration of their combined effects. Terms in one
        section of the contract, therefore, should never be
        interpreted in a manner which nullifies other terms in the
        same agreement. Furthermore, the specific controls the
        general when interpreting a contract.


     Trombetta v. Raymond James Financial Services, Inc., 907 A.2d
     550, 560 (Pa.Super.2006) (citations omitted). ‘It is fundamental
     that one part of a contract cannot be so interpreted as to annul
     another part and that writings which comprise an agreement
     must be interpreted as a whole.’ Shehadi v. Northeastern Nat.
     Bank of Pennsylvania, 474 Pa. 232, 378 A.2d 304, 306 (1977).
     ‘Where several instruments are made as part of one transaction
     they will be read together, and each will be construed with
     reference to the other; and this is so although the instruments
     may have been executed at different times and do not in terms
     refer to each other.’ Huegel v. Mifflin Const. Co., Inc., 796 A.2d
     350, 354–355 (Pa.Super.2002), quoting Neville v. Scott, 182
     Pa.Super. 448, 127 A.2d 755, 757 (1957).

Southwestern Energy Production Co. v. Forest Resources, LLC, 83

A.3d 177, 187 (Pa. Super. 2013).



                                   - 24 -
J-A01034-15



      Accordingly, I do not agree with Appellant’s interpretation of the terms

“indebtedness” or “other losses” (see Appellant’s Brief at 32), as disallowing

the items of damages raised in this action, and which are borne by a reading

in pare materia of the Employment Contract, the Recruitment Agreement

and the Promissory Note.        “[C]ontractual clauses must be construed,

whenever possible, in a manner that effectuates all of the clauses being

considered.    It is fundamental that one part of a contract cannot be so

interpreted as to annul another part and that writings which comprise an

agreement must be interpreted as a whole.” Lenau, et al. v. Co-Exprise,

Inc., 102 A.3d 423, 430 (Pa. Super. 2014) (internal citations omitted).

      In Lenau, our Court concurred with the trial court’s interpretation of a

contract provision and affirmed the trial court’s order granting preliminary

objections in the nature of a demurrer, and observed that the appellant’s

argument “[b]y focusing solely upon the meaning of [a section of the

disputed contract], …    engages in the exact type of limited interpretation

that our governing precedent forbids.” Id. at 431 (internal citation omitted).

Our Court reiterated that “[t]his Court's consideration of contracts must seek

to give full effect to an entire document, if possible, and not only those

portions supporting a specific conclusion. Mere disagreement between the

parties on the meaning of language or the proper construction of contract

terms does not constitute ambiguity.” Id. (internal citation and quotations

omitted).     Here, to adopt Appellant’s interpretation of “indebtedness” or

“other losses” under the Employment Agreement as disallowing the damages

                                    - 25 -
J-A01034-15



awarded in this action would “engage in the exact type of limited

interpretation that our governing precedent forbids.” Id.

      Indeed, as the trial court explained:

            [] [Appellant] is responsible to GSA for any other losses
      that were sustained by GSA as a result of GSA’s employment of
      [Appellant] and [Appellant’s] breach of the employment
      contract. GSA established $182,761 [dollars] in losses through
      the analysis and testimony of [Sherbondy]. Losses are a distinct
      recoverable amount under Section 15(b). ‘Ordinarily, when a
      court concludes that there has been a breach of contract, it
      enforces the broken promise by protecting the expectation that
      the injured party had when he made the contract. It does this
      by attempting to put him in as good a position as he would have
      been in had the contract been performed, that is, had there been
      no breach.’ Restatement (Second) of Contracts, § 344 comment
      a.

            This Court finds that the losses alleged by GSA as a result
      of [Appellant’s] employment were $182,761.00 and are
      reasonable and well-supported by the evidence of record. [FN5:
      Under the [] analysis [of Appellant’s accounting expert], the
      maximum conceivable disputed losses are $73,174.93.
      Therefore, even if those losses were deducted from the losses
      claimed by GSA, the remaining adjusted loss is $109,586.07,
      meaning that GSA sustained a loss as a result of [Appellant’s]
      employment, of which [Appellant] is responsible.]

Trial Court Opinion, 4/5/12, at 16.

      Appellant admitted that his employment with GSA was his first

employment in private practice. N.T., 3/1/11, at 16. Appellant understood

that there would be “additional costs that the practice would incur because

of [his] presence … and that [he was] going to be responsible to pay them

back[.]” Id. The trial court observed that Appellant “had the Employment

Contract independently reviewed by an attorney.         [Appellant] and his


                                      - 26 -
J-A01034-15



attorney requested no significant changes to the Employment Contract,

which was then executed by GSA and [Appellant].”          Trial Court Opinion,

4/5/12, at 6. Appellant entered into the Employment Contract volitionally,

and has not set forth any grounds which would indicate that he was

defrauded or coerced into the Employment Contract such that he could

disavow it. As noted in Miller v. Ginsberg, 874 A.2d 93 (Pa. Super. 2005):

     The fundamental rule in construing a contract is to ascertain and
     give effect to the intention of the parties. Thus, we will adopt an
     interpretation which, under all circumstances, ascribes the most
     reasonable, probable, and natural conduct of the parties, bearing
     in mind the objects manifestly to be accomplished. Additionally,
     if the language appearing in the written agreement is clear and
     unambiguous, the parties’ intent must be discerned solely from
     the plain meaning of the words used. Moreover, we may not
     ignore otherwise clear language merely because one of
     the parties did not anticipate related complications prior
     to performance.

Miller, 874 A.2d at 99 (emphasis supplied, internal citations and quotations

omitted).

     Moreover:

     When persons are negotiating, no matter for what purpose,
     there comes a moment of grave determination when minds meet
     in complete accord, entire harmony and thorough understanding,
     and when that moment is solemnized with ink, handshake or
     appropriate words or action, a covenant is formed which cannot
     be dissevered with legal approbation.

Di Pompeo v. Preston, 123 A.2d 671, 674 (Pa. 1956). Accordingly, I find

that the trial court correctly interpreted the Employment Contract, and that

Appellant is obligated by the terms to which he agreed.



                                   - 27 -
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      Having found that the trial court’s interpretation of the Recruitment

Agreement, Promissory Note, and Employment Contract is supported by

those contracts, I turn to the trial court’s determination of the damages it

awarded to GSA. The trial court credited the expert accounting testimony of

Sherbondy, GSA’s expert, over the testimony of Schaffner, Appellant’s

expert.   I recognize that while contract interpretation is a question of law

and we are not bound by the trial court’s legal conclusions, “we are bound

by the trial court’s credibility determinations.” See Calabrese v. Zeager,

976 A.2d 1151, 1154 (Pa. Super. 2009).

      Here, the trial court recognized that Appellant’s accounting expert

“disputed the accuracy of Sherbondy’s loss determination, concluding that

you could not make that loss determination or quantify that loss, without

accrual basis adjustments to payables and receivables, [but Schaffner] could

not express the opinion that no loss occurred.” Trial Court Opinion, 4/5/12,

at 11 n.3.

      Sherbondy testified that “since 1990” he had completed GSA’s tax

returns, financial statements, as well as “statements for any banking

institutions that may have been involved.”      N.T., 2/28/11, at 6-7; 11.

Sherbondy’s expert accounting opinions were summarized as follows:        1)

“the loss [to GSA] for the fiscal years 2002 and 2003, which was the term of

[Appellant’s] employment with GSA, was $182,761 [dollars]”; 2) “the loss

[was] directly related to     the   employment of [Appellant] under      the

recruitment agreement”; and 3) “GSA did not have the ability to pay

                                    - 28 -
J-A01034-15



reimbursement of the excess collected over the monthly guarantee amount

during the period of [Appellant’s] employment.” Id. at 7.

      In opining that GSA had sustained a loss of $182,761 dollars,

Sherbondy’s expert report “modif[ied] previously submitted accounting

statements” for GSA which had treated “advances by UPMC as income.” Id.

at 8. Sherbondy’s report modified the prior financial statements for GSA for

2002 and 2003 by “deleting all advances [from UPMC] and all payments

back to … UPMC” to reflect GSA’s “profit or loss … without the recruitment

agreement … at least on the income and expense statement.” Id. at 9.

      Sherbondy testified that he reviewed an affidavit from Schaffner,

Appellant’s accounting expert, which criticized Sherbondy’s treatment of the

UPMC advances as income. See id. at 7-8. Sherbondy explained that he

“treat[ed] loan proceeds [from UPMC] as income”, based on his prior

“experience with several other doctors’ offices in our area.” Id. at 8. “[I]n

all cases, none of those loans were completely paid … [a]nd there had been

forgiveness in each of the other transactions.” Id. at 8-9. In treating the

advances as income, the “intent was to level out the income over the period

of the loan rather than to see the doctor saddled with a large tax liability at

the end by receiving a 1099 at the end of the term for forgiveness of a

debt[, which would then] be taxable income at the time of forgiveness.” Id.

      Schaffner additionally criticized Sherbondy’s “use of income tax

accounting as opposed to … GAAP or Generally Accepted Accounting

Practices[.]”   Id. at 9.   Sherbondy explained that “income tax basis of

                                    - 29 -
J-A01034-15



accounting is based on the income tax filings of the individual or shareholder

of the corporation.   Generally Accepted Accounting Pr[inciples] or GAAP is

probably a more detailed method of accounting where you account for other

things like receivables, payables, … that you would not account for on the

income tax basis.” Id. at 10. Sherbondy testified that there are “standards”

of his profession “which apply to the use of income tax accounting”, and are

promulgated by the American Institute of CPAs, which is “the same institute

that promulgates the GAAP procedures.” Id. Sherbondy further explained

that “on all of our doctors’ offices that we do, we do not use an accrual basis

of accounting” because there are “receivables that are booked in a medical

practice and uncollected,” and that the “gross billing figure [is] subject to

adjustment with third party payers[.]” Id. at 16-17. Sherbondy explained,

“[w]e wouldn’t know the actual amounts collected from patients until some

point later on in the year when … the insurance companies actually paid. So

determining … an accurate accounts receivable figure” would prove difficult,

especially “realizing the percentages … vary from pay to pay or insurers”,

and those adjustments “can be” … “significant in relation to gross billing.”

Id.

      Sherbondy was asked to respond to Schaffner’s “point that in …

arriv[ing] at the $182,761 loss, [Sherbondy] failed to consider patient

A[ccount] [R]eceivables at the front end of the period and at the back end of

the period of [Appellant’s] employment.”     Id. at 14.   Sherbondy testified




                                    - 30 -
J-A01034-15



that “again, these were financial statements prepared on the income tax

basis of accounting, which does not consider accounts receivable[s].” Id.

     By way of further explanation, the following testimony ensued:

     GSA’s Counsel: Now, with respect to the ongoing practice of
     medicine and in this practice or any other professional practice,
     is this an annual occurrence, there are receivables on the date
     you close on a cash basis and there are receivables on the date
     you open a year on a cash basis?

     Sherbondy: Correct.

     GSA’s Counsel: What has been your experience with respect to
     the effect of those receivables by using a cash basis as opposed
     to an accrual that would pick up receivables?

     Sherbondy:       Well, in Dr. Kolenich’s practice[’s] case,
     [Appellant’s] month-to-month income from his revenue from
     operations was fairly consistent, so adding receivables in at the
     beginning of the year or at the end of the year and then taking
     them out at the end of the year would have little to know [sic]
     effect on these statements.

Id. at 14-15.

     To exemplify this analysis, Sherbondy testified that the “front end” of

Appellant’s employment period was the 2002 fiscal year spanning from

October 1, 2001 through September 30, 2002.         Id. at 15.   Any “prior

receivables [which] would roll in” at the beginning of the 2002 fiscal year

would be receivables related only to Dr. Kolenich. Id. at 15. At the end of

Appellant’s employment, “there were two physicians … [and] accept[ing] for

the moment that the Kolenich receivables at the beginning and at the end

[of the employment term] would have been approximately the same as”

Sherbondy had indicated in his report, then the “collections on the


                                   - 31 -
J-A01034-15



receivables for services generated by [Appellant] subsequent to October 1,

2003”, would have been “$14,474.93.” Id. at 15-16.

      Schaffner   “also    questioned    [Sherbondy’s]   use    of   income    tax

depreciation as opposed to GAAP or financial depreciation.” Id. at 17. In

explaining the difference between these methods, Sherbondy testified:

      Well, GAAP would prescribe us using straight line or double
      declining balance, which would extend the depreciation over a
      longer period of time. We used income tax basis of accounting
      to aid Dr. Kolenich in his personal tax situation to reduce his tax
      liability. It’s an accepted method of accounting.

Id.   Sherbondy further testified that “we have used income tax basis of

accounting for [GSA]” since 1990. Id. The “importance of consistency” is

“[s]o that all of the statements are … comparable[.]” Id. at 18. Sherbondy

uses the same accounting approach with “all of” the “other firms

[Sherbondy] represent[s.]” Id.

      Regarding the “leasehold improvement portion of the depreciation

schedule,” Sherbondy testified that there would be “no difference at all”

between    “the   two     forms   of    accounting”   because   “the   leasehold

improvements were depreciated over 39 years [and that] should be the

same for GAAP.” Id. at 18.

      In considering the expert accounting testimony, the trial court, as the

fact-finder, ultimately determined that it “f[ound] the testimony of GSA’s

accountant, [Sherbondy] to be credible, [and] well-documented[.]”             Trial

Court Opinion, 4/5/12, at 11.           The trial court accepted Sherbondy’s



                                       - 32 -
J-A01034-15



“conclusions as stated in the findings [of fact] as fact and f[ound] that

[Sherbondy’s] cash basis accounting method [wa]s credible and acceptable

for the purposes of this litigation.” Id. I find no basis to disturb the trial

court’s determination regarding the evidence on which it chose to rely and

credit. I recognize:

      [I]t is within the province of the [fact finder] to assess the worth
      of the testimony, which it may then accept or reject. We agree
      that the [fact finder] is free to believe all, some or none of the
      testimony presented by a witness.            However, this rule is
      tempered by the requirement that the verdict must not be a
      product of passion, prejudice, partiality, or corruption, or must
      bear some reasonable relation to the loss suffered by the
      evidence [] as demonstrated by uncontroverted evidence
      presented at trial. The synthesis of these conflicting rules is that
      a [fact finder] is entitled to reject any and all evidence up until
      the point at which the verdict is so disproportionate to the
      uncontested evidence as to defy common sense and logic.

Neison v. Heimes, 653 A.2d 634, 636-37 (Pa. 1995) (internal citations

omitted).

      Based on my foregoing determinations, I would reach Appellant’s

fourth issue, and note that “(o)ur review of an award of pre-judgment

interest is for abuse of discretion.” Kaiser v. Old Republic Insurance Co.,

741 A.2d 748, 755 (Pa. Super. 1999) (citations omitted).          An abuse of

discretion exists where the trial court’s determination overrides or misapplies

the law, its judgment is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will. See Majczyk v. Oesch, 789 A.2d 717, 720 (Pa.

Super. 2001).    Appellant recognizes that pre-judgment interest may be

awarded “where the damages are in the nature of consequential losses

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arising from the breach of [a] contract.” Appellant’s Brief at 38. Appellant

asserts that “the damages alleged by GSA are consequential damages.” Id.

at 39.   Appellant maintains that “the subject contracts did not permit a

calculation of the consequential damages that have been claimed by GSA of

the specific dollar amount for these losses. Therefore, [Appellant] could not

have ascertained the same by reference to the terms of the contracts and he

could not have proffered any payment. Thus, it was improper to award pre-

judgment interest under these circumstances.”       Appellant’s Brief at 39.

Again, I cannot agree.

     We have explained:

           It is well established that in contract cases, prejudgment
     interest is awardable as of right. Somerset Comm. Hospital v.
     Allan B. Mitchell & Assocs., 454 Pa.Super. 188, 685 A.2d 141
     (1996) (citing Thomas H. Ross Inc. v. Seigfreid, 405 Pa.Super.
     558, 592 A.2d 1353 (1991)). Our supreme court has held:

         For over a century it has been the law of this
         Commonwealth that the right to interest upon money
         owing upon contract is a legal right. West Republic Mining
         Co. v. Jones and Laughlins, 108 Pa. 55 (1884). That right
         to interest begins at the time payment is withheld after it
         has been the duty of the debtor to make such payment.

     Fernandez v. Levin, 519 Pa. 375, 548 A.2d 1191, 1193 (1988).
     Moreover, there is no requirement that the damages be
     liquidated and no exception to the right to prejudgment interest
     has been recognized simply because the amount of damages
     must be determined at trial. Spang & Co. v. USX Corp., 599
     A.2d at 984. Cf. Daset Mining Corp. v. Industrial Fuels Corp.,
     326 Pa.Super. 14, 473 A.2d 584, 595 (1984) (“In claims that
     arise out of a contractual right, interest has been allowed at the
     legal rate from the date that payment was wrongfully withheld,
     where the damages are liquidated and certain, and the interest
     is readily ascertainable through computation.”)         The basic
     premise underlying the award of prejudgment interest to a party

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J-A01034-15


     centers on the fact that the breaching party has deprived the
     injured party of using interest accrued on money which was
     rightfully due and owing to the injured party.      Somerset
     Hospital, 685 A.2d at 148.

Widmer, 837 A.2d at 469.

     It is undisputed that prior to Appellant leaving GSA’s employ, Dr.

Kolenich sent Appellant a letter to “remind [Appellant] of the financial

obligation [Appellant] ha[d] to UPMC/Horizon per [Appellant’s] employment

contract with [GSA].”     Correspondence, 7/29/03, at 1.       Dr. Kolenich

specifically referred Appellant to “Item 15B in your employment contract

with [GSA],” and advised Appellant that Dr. Kolenich was “presently asking

for an update on that amount from [UPMC].” Id. Dr. Kolenich asserted that

he would “provide [Appellant] with that information prior to [Appellant’s]

departure from [GSA].” Id. Likewise, it is undisputed that on October 15,

2003, UPMC Horizon issued a demand for payment of an amount certain to

GSA, Dr. Kolenich, and Appellant.       Correspondence, 10/15/03, at 1.

Therefore, I cannot agree that some of the damages which GSA incurred

were incalculable by reference to the contracts, such that the trial court

erred in awarding pre-judgment interest. Further, “no exception to the right

to pre-judgment interest has been recognized simply because the amount of

damages must be determined at trial”, such that the fact that further

damages were calculated following the trial in this case does not preclude

GSA’s entitlement to pre-judgment interest.     Widmer, supra,      at 469.




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J-A01034-15



Thus, I find that the trial court did not err or abuse its discretion in awarding

pre-judgment interest.

      I would likewise reach Appellant’s fifth issue, where he challenges the

trial court’s interpretation of Pa.R.C.P. 227.4(1)(b). Appellant’s fifth issue is

“a   question   concerning   [the]   interpretation   of   [our]   Rules   [of   civil

procedure], … [and] is a question of law [regarding which] our standard of

review is de novo.”    LaRue v. McGuire, 885 A.2d 549, 553 (Pa. Super.

2005). Upon review, I find that Appellant is not entitled to relief. Appellant

filed his initial post-trial motion on October 29, 2013. Pursuant to Pa.R.C.P.

227.4(1)(b), GSA was entitled to praecipe for judgment in its favor after

February 26, 2014, after 120 days had elapsed.         Crystal Lake Camps v.

Alford, 923 A.2d 482, 486 (Pa. Super. 2007). GSA praeciped for the entry

of judgment on April 7, 2014. The trial court correctly acknowledged that it

lacked the authority to decide Appellant’s post-trial motions after GSA had

praeciped for judgment pursuant to Pa.R.C.P. 227.4(1)(b). See Pentarek

v. Christy, 854 A.2d 970, 972-974 (Pa. Super. 2004) vacated on other

grounds, 974 A.2d 1160 (Pa. 2005) (reversing a trial court’s grant of a new

trial after a judgment was recorded pursuant to Pa.R.C.P. 227.4(1)(b)

because the trial court’s order was “entirely devoid of legal effect”); see

also Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 592-593 (Pa.

Super. 2004) (reversing a trial court’s order striking the judgment entered

pursuant to Pa.R.C.P. 227.4(1)(b), noting that “[t]here is no list of

exceptions to [the rule]); Conte v. Hahnemann University Hospital, 707

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A.2d 230, 231 (Pa. Super. 1998) (a judgment entered pursuant to Pa.R.C.P.

227.4(1)(b) “is not subject to either reconsideration or any other motion to

strike, open, or vacate”).    Therefore, I find that Appellant’s fifth issue is

without merit.

      In sum, following my careful scrutiny of Appellant’s issues, the record,

and applicable legal authority, I dissent based on my conclusion that

Appellant’s claims of trial court error lack merit.




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