J-A27019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THEODORE FITZPATRICK AND                   :    IN THE SUPERIOR COURT OF
    LINDSAY FITZPATRICK                        :         PENNSYLVANIA
                                               :
                      Appellants               :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    ELLIOTT COMPANY                            :

                      Appellee                      No. 432 WDA 2017

               Appeal from the Judgment Entered March 14, 2017
    In the Court of Common Pleas of Allegheny County Civil Division at No(s):
                               G.D. No. 15-9202


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                               FILED JANUARY 30, 2018

        Appellants,   Theodore      and   Lindsay    Fitzpatrick,   appeal   from   the

judgment entered on March 14, 2017,1 in favor of the Elliott Company

(“Elliott”). We affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

        I.    BACK[G]ROUND


____________________________________________


1
   Appellants’ notice of appeal incorrectly states that they are appealing from
the February 27, 2017 order denying their motion for post-trial relief. An
appeal properly lies from entry of judgment, not from the denial of a post-
trial motion. Kaufman v. Campos, 827 A.2d 1209, 1210 n.1 (Pa. Super.
2003). The caption has been corrected accordingly.
J-A27019-17


           Theodore Fitzpatrick [(“Fitzpatrick”)] is a Carnegie Mellon
     University educated engineer.       [Elliott] is an international
     company that designs, manufact[ures], installs and services
     turbo-machinery for prime movers, gas compressors and
     rotating machinery. In or about March of 2012, [Fitzpatrick] was
     approached about an expatriate position with [Elliott] in
     Singapore. It was indicated that this was a promotion and that
     [Fitzpatrick] would serve in the position of Regional Sales
     Manager for Asia-Pacific.

           At that same time, [Fitzpatrick] alleges that [Elliott]
     further offered employment assistance to his spouse, Lindsay
     (hereinafter, “Plaintiff wife”) by way of [Elliott’s] International
     Assignment Policy, which offered employees’ spouses $4,000
     towards continuing education, career counseling, job search
     assistance, etc.

            On December 21, 2012, [Fitzpatrick] officially accepted
     [Elliott’s] Expatriate Position Offer after negotiating the length of
     his stay abroad from three to four years.             Due to issues
     regarding legal documents, [Appellants’] relocation to Singapore
     was delayed.        The couple sold their house in Jeannette,
     Pennsylvania and was reimbursed for all closing costs by Elliott.
     The couple stored some of their assets in Jeannette and moved
     the balance of their belongings to storage in Florida. The couple
     resided with [Plaintiff] wife’s family [in Florida], but they claimed
     this to be their new residence.

            On March 25, 2013, [Appellants] moved to Singapore. On
     January 28, 2015, via a conference call with the Vice President
     of Human Relations, [Fitzpatrick] was terminated. This was
     twenty-six (26) months prior to the four (4) years [Fitzpatrick]
     believed he was contracted to work for [Elliott] under their then
     existing understanding. [Fitzpatrick] received a letter, dated
     January 28, 2015, confirming [Elliott’s] termination of his
     employment.

           [Appellants] contend that the parties entered into an
     employment contract for a definitive time period of four (4)
     years.     [Elliott] disputes this assertion and asserts that
     [Fitzpatrick] was hired as an ‘at will’ employee and that what he
     deems as an employment contract is merely his terms of
     employment in Singapore and a list of benefits.


                                     -2-
J-A27019-17


           In addition to [Fitzpatrick’s] unpaid compensation,
     [Appellants] claim damages associated with lost wages (wife),
     prior unpaid bonuses, alternative living expenses, increased
     health insurance costs, shipping fees, childcare costs, lost fringe
     benefits as well as tax ramifications.           [Elliott] filed a
     counterclaim, requesting reimbursement for a tax benefit
     received by [Fitzpatrick] which [Elliott] asserts was rightfully
     theirs to claim.

     II. PROCEDURAL HISTORY

            This matter was initiated by the filing of a complaint by
     [Appellants] on May 22, 2015. [Fitzpatrick] alleged that he was
     wrongfully terminated from a four (4) year employment
     agreement without cause. Preliminary objections were filed by
     [Elliott] on July 14, 2015, among them, a challenge as to venue.
     An Answer as to the Preliminary Objections was filed by
     [Appellants] on August 6, 2015. On August 11, 2015, an Order
     was issued scheduling a telephone conference as to these
     matters before the Honorable Ronald Folino. Following said
     conference, on September 4, 2015, an Order issued setting a
     briefing schedule and brief limits (Order, Folino, J.).

           Following the filing of said briefs, an Answer, New Matter
     and Counterclaim, were filed by [Elliott] on April 14, 2016.
     [Appellants’] Reply to New Matter was filed on April 22, 2016.
     On May 12, 2016, [Elliott] filed [its] Reply to New Matter and
     Counterclaim.     Following Motions to Compel and further
     discovery delays, the case was removed from the November,
     2016, trial list.

           In September of 2016, [Elliott] filed an Emergency Motion
     for Leave to file for Summary Judgment. On October 16, 2016,
     Judge Ronald Folino denied [Elliott’s] request for leave to file for
     Summary Judgment. On November 16, 2016, this matter was
     transferred to this writer for trial and disposition of all related
     matters (Order, 11/14/16, Folino, J.).

            On November 29, 2016, a jury was empaneled to render a
     verdict and resolve this matter. Following five days of trial, on
     December 5, 2016, the jury returned a verdict in favor of
     [Elliott] [finding that Fitzpatrick and Elliott had entered into a 4-
     year employment agreement (“Employment Agreement”) but
     concluding that Elliott had just cause to terminate the

                                     -3-
J-A27019-17


      Employment Agreement and, thus, awarding Appellants no
      damages] and against [Appellants] on [Elliott’s] counter claim in
      the amount of $14,964.00. On December 13, 2016, [Appellants]
      filed Post-Trial Motions. In response thereto, this writer issued
      an Order dated January 3, 2017, scheduling argument on
      [Appellants’] Motion for Post-Trial Relief for February 22, 2017.

            Following said argument, this writer denied [Appellants’]
      motion by Order of February 27, 2017. On March 14, 2017,
      [Appellants] filed a Notice of Appeal to the Superior Court of
      Pennsylvania. On that same date Judgment on the Verdict was
      entered in the amount of $14,964.00. On March 20, 2017, this
      Court directed [Appellants] to file a Concise Statement of
      Matters Complained of on Appeal pursuant to P[a].R.A.P. § [sic]
      1925(b). Said statement was timely filed on April 10, 2017,
      placing this matter properly before the Superior Court of
      Pennsylvania.

Trial Court Opinion, 5/15/17, at 1-4.

      Appellants present the following issues for our review:

      I.    Whether the trial court committed an error of law when it
            denied Appellants’ Motion for [judgment nothwithstanding
            the verdict (“JNOV”)] with respect to liability because:

            A.    Elliott failed to prove that the Employment
                  Agreement imposed any duty upon Fitzpatrick to
                  maintain a Pennsylvania domicile; and Elliott failed
                  to prove that Fitzpatrick otherwise materially
                  breached the Employment Agreement.

            B.    Fitzpatrick could not be terminated for refusing to
                  sign false tax returns.

      [II.] Whether the trial court committed legal error when it
            denied Appellants’ motion for JNOV on Elliott’s
            counterclaims because:

            A.    Elliott’s unjust enrichment claim was not cognizable
                  after the jury concluded that [the] parties had a
                  written agreement and Elliott never proved
                  [Appellants] were unjustly enriched.


                                    -4-
J-A27019-17


              B.     Elliott’s conversion counterclaim was barred by the
                     gist of the action doctrine and because the failure to
                     pay a debt does not constitute conversion as a
                     matter of law.

       [III.] Whether the denial of Appellants’ Motion for a New Trial
              was legal error because the trial court:

              A.     Permitted the jury to hear irrelevant, prejudicial
                     evidence and argument related to Fitzpatrick’s
                     deletion of information from his company computer
                     after he was terminated.

              B.     Permitted the jury to hear irrelevant, prejudicial
                     evidence and argument related to Fitzpatrick’s one-
                     off $200,000 fantasy football winning.

              C.     Instructed the jury that Elliott merely had to prove
                     “just cause”       to  terminate   the   Employment
                     Agreement, and allowed that incorrect standard on
                     to the verdict slip, when the burden on Elliott was to
                     establish a material breach of the Employment
                     Agreement.

       IV.    Whether on remand Appellants should again be forced to
              rebut the at–will employment presumption when the jury
              concluded that the parties entered into a 4-year
              Employment Agreement.

Appellant’s Brief at 5.2

       Appellants’ first two issues, including subparts, challenge the trial

court’s failure to grant motions for JNOV. Our standard of review of a trial

court’s order declining to grant JNOV is as follows:

       When considering a challenge to denial of JNOV,


____________________________________________


2
    For ease of disposition, we have renumbered Appellants’ issues.



                                           -5-
J-A27019-17


      the standard of review for an order granting or denying
      judgment notwithstanding the verdict is whether there was
      sufficient competent evidence to sustain the verdict. We must
      view the evidence in the light most favorable to the verdict
      winner and give him or her the benefit of every reasonable
      inference arising therefrom while rejecting all unfavorable
      testimony and inferences. Furthermore, judgment nov should be
      entered only in a clear case, where the evidence is such that no
      reasonable minds could disagree that the moving party is
      entitled to relief. Review of the denial of judgment nov has two
      parts, one factual and one legal:

            Concerning any questions of law, our scope of review
            is plenary. Concerning questions of credibility and
            weight accorded evidence at trial, we will not
            substitute our judgment for that of the finder of fact.

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.

Super. 2008).

      In their first claim and related subparts, Appellants argue that the trial

court erred when it denied Appellants’ motion for JNOV on liability because

Elliott failed to establish a legal justification for terminating the Employment

Agreement. Appellants’ Brief at 18. Appellants contend that Elliott failed to

establish that the Employment Agreement imposed a duty for Fitzpatrick to

remain “a domicile of Pennsylvania.”       Id. at 18-21.   Instead, Appellants

assert the purported violation with respect to taxes was a violation of

Elliott’s Code of Conduct, as opposed to the Employment Agreement itself.

Id. at 21. Appellants contend that the Code of Conduct was not made part

of the Employment Agreement, and neither the Employment Agreement nor

the International Assignment Policy make any reference to the Code of

Conduct.    Id.    Furthermore, Appellants assert that the Employment

                                     -6-
J-A27019-17


Agreement contains an integration clause which states “the document

constitutes ‘the complete understanding of the terms and conditions of your

assignment.’”       Id.     Moreover, Appellants maintain that even if the

Employment Agreement imposed a duty regarding Fitzpatrick’s domicile,

Elliott failed to prove the alleged breach was material, and therefore, Elliott

was not relieved of its duty to perform pursuant to the Agreement. Id. at

24-27.

       Relevant to Appellants’ claim is Elliott’s tax equalization policy.     This

policy was included in the December 5, 2012 letter from Elliott to Fitzpatrick,

which the jury found to be the basis of an employment agreement.               The

letter outlined the terms of the Singapore assignment3 and stated the

following with regard to the tax equalization policy:

       Tax Equalization Policy: During your assignment, in order to
       equalize your income tax bill with that of your domestic
       counterparts at the same salary, a hypothetical U.S. income tax
       will be deducted from your base salary. This hypothetical tax
       will be based on your base salary only.

       A public accounting firm is retained by Elliott and will assist in
       the preparation and filing of your home and host income taxes
       and will provide Elliott with a statement of the tax liability on the
       company-earned income which will then be paid by the
       company.


____________________________________________


3
   The letter specifies that the assignment in Singapore would be for three
years. Subsequently, the parties agreed to extend the assignment to four
years, which agreement was reflected in the email from Amanda Polinsky to
Fitzpatrick on January 8, 2013. Complaint, Exhibit D, 1/8/13 Email, at 1.



                                           -7-
J-A27019-17


Complaint, Exhibit C, Employment Agreement, at 1-2.            The Employment

Agreement also incorporated the terms of the International Assignment

Policy. Id. at 2.

      The International Assignment Policy included the following language

regarding the tax equalization policy:

      Tax Equalization

      It is the objective of the Elliott International Assignment policy to
      keep each assignee on par with their home country counterparts.
      An assignment in practicality is a temporary work arrangement
      and could have the potential to result in windfalls and/or
      shortfalls from a financial perspective, depending on the country
      combination of the assignment. The intent of tax equalization is
      to neither advantage or disadvantage the employer nor
      employee when tax costs occur. Each year, after the home and
      foreign tax returns have been prepared, Ernst & Young will
      calculate an actual tax amount. To the extent that the actual tax
      is less than the hypothetical withholding deducted from
      applicable income, the company will reimburse you. To the
      extent that the actual tax is greater than the hypothetical tax
      withholding, you may be liable for the difference.                 All
      equalization payments will be computed in the currency of the
      country from which you receive your salary.

      Generally in the year following repatriation, a final settlement
      will be made. There may be cases where there are carryover
      credits that reduce your taxes from prior years. The amount of
      the reduction must be repaid to the company.

      Both you as the employee and Elliott have responsibility in the
      tax preparation exercise. The company will pay the full cost of
      preparing the home and foreign income returns, while you as the
      employee must provide and maintain adequate records to ensure
      that the data can be made available in a timely fashion to fulfill
      the year-end equalization process. Ernst & Young will set up an
      orientation meeting to explain the process surrounding our
      assignment and country combination as close to the beginning of
      your assignment as time will allow.


                                      -8-
J-A27019-17


      There may be certain circumstances where there is no tax
      obligation in the host country. In such circumstances and at the
      sole discretion of the organization, a “Local Plus” compensation
      arrangement will apply. In a “local plus” circumstance, to fulfill
      the objective of “neither advantaging nor disadvantaging” the
      employer nor employee some of the assignment based premium
      allowances will be suspended or eliminated from the assignment
      package to offset the tax free condition that the assignee may
      temporarily enjoy for the duration of their stay.           This
      arrangement keeps each assignee on par with their home
      country peers to which they will ultimately return to once the
      assignment is completed.

International Assignment Policy, Appellants’ Exhibit 22, at 16-17.

      “Hypothetical Tax Withholding” is defined as follows:

      A hypothetical tax withholding is an approximation of the home
      country income tax that would have been levied against you had
      you been performing the same job in the home country.
      Providing a personal income estimate may alleviate the need for
      a large payment to the company when the equalization
      settlement is prepared.      The goal is that that after the
      hypothetical withholding your net pay will be comparable to any
      other employee with the same salary paying taxes. Hypothetical
      taxes do not include any assignment based allowances. Since
      Elliott reduces your income by the hypothetical tax withholding,
      Elliott pays on your behalf all home and foreign taxes actually
      assessed.

Id. at 16.

      Of further relevance to this matter is the following provision included

in the International Assignment Policy as related to the preparation of tax

returns:

      Tax Preparation

      In virtually all countries, tax authorities require timely payment
      of taxes through the filing of a return. Elliott partners with a
      public accounting firm to assist with this requirement. Ernst &
      Young will facilitate the preparation and filing of the required

                                    -9-
J-A27019-17


      home and foreign tax returns.              It is the expatriate’s
      responsibility to respond to the requests for the information from
      the provider in a timely fashion to prevent late fees and
      penalties.       Late fees caused by an employee’s non-
      responsiveness, will become the obligation of the employee.
      Elliot will pay for the services provided for personal income taxes
      only.

Id. at 15-16.

      In addressing Appellants’ first claim, the trial court provided the

following analysis:

            This writer is confounded by the difference in perspective
      exhibited by this claim of error. [Appellants] now assert to the
      Superior Court that their testimony and evidence was so
      compelling that reasonable minds could not disagree as to the
      [Appellants’] breach of contract claim. To assert that this ruling,
      following days of testimony which this writer presided over, and
      now privy to a detailed transcript of same, following a jury award
      to the contrary and in favor of [Elliott], was “so contrary to the
      evidence as to shock one’s sense of justice” is completely
      baseless and contrary to an objective assessment of this trial
      and evidence adduced during trial (See Samuel-Bassett v. Kia
      Motors Am., 34 A.3d 1, 29 (Pa. 2011)[)].

            [Appellants’] argument discounts all unfavorable testimony
      regarding [Fitzpatrick], absolving him of all allegations of breach
      in regards to his own conduct, and fixates only on arguments
      favorable to his position. This was not the standard he needed
      to prove at trial, at the time of his Motion for JNOV and surely
      not now on appellate review when faced with the
      aforementioned standard.

             For instance, a focal point of this litigation concerned the
      tax issue and [Fitzpatrick’s] ‘state of employment.’ On cross-
      examination, [Fitzpatrick] was questioned as to this major issue,
      “[f]or tax purposes you will be equalized back to PA, the state of
      your employment” (Tr. at 167).          [Fitzpatrick] received this
      information by email dated January 4, 2013, prior to his
      assignment (Id.).      A follow up email by the same Human
      Resources facilitator reiterated on July 11, 2014, said “[w]e have
      been over the assignment tax philosophy a number of times with

                                    - 10 -
J-A27019-17


     you. You are equalized to the headquarters address and will
     continue to have PA taxes withheld” (Tr. At 170).

           [Fitzpatrick] was essentially testifying that although it was
     explained to him that his employer’s domicile, prior to his
     assignment, would be deemed to be [Fitzpatrick’s] domicile for
     the purpose of filing state income taxes when the issue was
     raised, he refused to act in accordance with the prearranged
     understanding, refusing to sign the Pennsylvania income tax
     document(s) prepared by Ernst and Young and risking his
     termination. He now wants this writer to find a breach of
     contract on behalf of the employer despite a finding of the
     contrary by the jury empaneled (See Tr at 160-171). When
     asked to provide authority that his employer through, Ernst and
     Young, provided information regarding a move to Florida or
     another place of domicile, [Fitzpatrick] replied, “I lost access to
     most of my E-mails, so there may be some but had no proof of
     same to display to the jury[.”] (See id. at 172-73). This position
     is fanciful and should not be given further consideration on
     appellate review.

            [Appellants] raise a claim of error with this Court’s
     determination not to grant JNOV as it related to [Appellants’]
     claim of unjust enrichment. The unjust enrichment claim was
     raised by [Elliott], accusing [Fitzpatrick] from ‘unjustly enriching’
     himself with the benefit of a tax refund. [Fitzpatrick] testified,
     “Elliot was going to pay the taxes on most of my living expenses
     overseas. They were going to pay the Singapore tax, the US tax
     and only charge me a hypothetical value as though I was still
     living in the US” (Trial Transcript, hereinafter, “Tr.” at 85).

            Again, the crux of [Appellants’] case has been the
     assertion that [Fitzpatrick] was fired for his refusal to sign a
     ‘bogus’ tax return based on the fact that the company was
     ‘forcing’ him to use a Pennsylvania address where he no longer
     resides. [Fitzpatrick] maintained that he had been a resident of
     Florida prior to his move and employment in Singapore and that
     he should not be filing a Pennsylvania return and that it was
     improper for Elliot, through its accountant, Ernst and Young, to
     force him to sign an inaccurate return (See, Tr. at 108).

           But on cross-examination, [Fitzpatrick] was questioned as
     to his previous testimony at a deposition conducted on January
     12, 2016, in which he was questioned, “[s]o the first time you

                                    - 11 -
J-A27019-17


     physically lived there (Naples, Florida) was February, 2015?”, to
     which [Fitzpatrick] replied, “me personally, yes.” (Tr. at 148).
     [Fitzpatrick] was next confronted with a form he submitted to
     the Elliott Company from March of 2013 in which [Fitzpatrick]
     represents that he lives at 2148 Par Drive, Naples, Florida (Id. at
     p. 149). [Fitzpatrick] went on to testify under cross-examination
     that he in fact still owned his home in Jeanette, Pennsylvania in
     March of 2013, and did not own or lease property in Florida at
     said time (See id. at 150-51).

           [Fitzpatrick] was next questioned as to whether he
     remembered being “explicitly advised in writing that regardless
     of what address you used during your assignment, your taxes
     would be prepared as if you continued to live and work in
     Jeanette?” (Id. at 164). To which, [Fitzpatrick] answered, “I
     don’t remember the exact wording” (Id.). Again, [Fitzpatrick]
     was confronted with email correspondence between himself and
     Jean Bayuk on January 4, 2013, in which she states, “[f]or tax
     purposes you will be equalized back to PA, the state of your
     employment.” (Id. at 167). This writer does not find himself on
     a limb when he presumes that the jury found [Fitzpatrick]
     unconvincing, if not incredible when it came to various issues
     during this trial.1
           1
              It must be noted that the [c]ourt advised all
           counsel that the jury must be informed that Florida
           does not have an income tax and Pennsylvania does.
           [Appellants’] counsel refused to offer this fact as part
           of [Appellants’] case.

            It was and remains clear to this writer that [Appellants’]
     shortcomings came in their failure to meet their burden of proof,
     and in convincing the jury of anything that would entitle them to
     relief. Their issues were not created by inconsistent findings by
     this judge or the jury empaneled but rather a lack of their own
     credibility. A reading of [Fitzpatrick’s] trial testimony under
     cross-examination as to all disputed issues should remind
     [Appellants] as to why they were unsuccessful in proving the
     claims that entitled them to relief.

Trial Court Opinion, 5/15/17, at 7-10.




                                    - 12 -
J-A27019-17


       The trial court’s conclusions are supported by the evidence of record.

Fitzpatrick’s testimony reveals that Elliott, on many occasions, had explained

the tax equalization process to Fitzpatrick, both prior to his acceptance of

the assignment and during his assignment in Singapore. N.T., 11/30/17, at

85, 164-212. Fitzpatrick indicated an understanding of the tax equalization

as follows:   “Basically, Elliott was going to pay the taxes on most of my

living expenses overseas. They were going to pay the Singapore tax, the US

tax and only charge me a hypothetical value as though I was still living in

the US.” Id. at 85.

       An email sent September 25, 2014, from Michele Connellan at Ernst &

Young Accountants to Fitzpatrick clearly summarized the equalization policy.

Id. at 182. The following exchange regarding this email and policy occurred

at trial:

       [Elliott’s Counsel]:      So this is an E-mail sent to you on
              September 25, 2014, from Michele Connellan at Ernst &
              Young. And it’s “Summary of Tax Filing Positions and Tax
              Equalization Policy.” Did you receive this E-mail?

       [Fitzpatrick]: I assume so, yes.

       [Elliott’s Counsel]: You don’t recall whether or not you did?

       [Fitzpatrick]: I mean, it’s to me. I would assume I did.

       [Elliott’s Counsel]: But you don’t recall by looking at it whether
              or not you, in fact, received it or read it?

       [Fitzpatrick]: It looks familiar. There were a lot of discussions.

       [Elliott’s Counsel]: This is the crux of your case; right?


                                      - 13 -
J-A27019-17


     [Fitzpatrick]: Yes.

     [Elliott’s Counsel]: You don’t recall whether you saw this E-mail?

     [Fitzpatrick]: Specifically, no. I would have to read it.

     [Elliott’s Counsel]: . . . . So I’m going to start at the third
            sentence of this paragraph where Ernst & Young explains
            to you. “The guiding principle behind tax equalization is
            that an individual will, wherever possible, be no better or
            worse off from a tax perspective due to their assignment.”
            Did you understand that concept?

     [Fitzpatrick]: Yes.

     [Elliott’s Counsel]: And then continues “Under this policy, Elliott
            assumes responsibility for the actual taxes due globally
            during the period of assignment; and you, as an individual,
            are held to a stay-at-home tax.”

           Did you understand this?

     [Fitzpatrick]: Okay.

     [Elliottt’s Counsel]: Did you understand that?

     [Fitzpatrick]: Yes.

     [Elliott’s Counsel]: So you understood that pursuant to your
            agreement Elliott was going to pay all your taxes, and you
            were required to file your taxes as if you were living and
            working at your home prior to leaving for assignment?

     [Fitzpatrick]: It says I’ll be equalized to the United States.

     [Elliott’s Counsel]: And so you just thought you ignored state
            and local taxes?

     [Fitzpatrick]: I assumed they would be filed with my correct
           residence.

     [Elliott’s Counsel]:   Residence means somewhere you never
     lived?


                                    - 14 -
J-A27019-17


     [Fitzpatrick]: Residence being my tax residence.

     [Elliott’s Counsel]: What is a tax residence?

     [Fitzpatrick]: Where I owed taxes.

     [Elliott’s Counsel]: So whatever address you put on the form?

     [Fitzpatrick]: I’m not sure.

     [Elliott’s Counsel]:   I’m just trying to understand what you
     meant.

     [Fitzpatrick]: I can’t pay taxes to a house I’ve already sold.

     [Elliott’s Counsel]: And so what is a tax residence in your mind?

     [Fitzpatrick]: I had to have a US residence, and that was in
            Florida.
     [Elliott’s Counsel]: So the next sentence goes on. “This stay-at-
            home tax or hypothetical tax is based on where you were
            living/working prior to acceptance of the assignment.” Did
            you understand that?

     [Fitzpatrick]: That’s what she says.

     [Elliott’s Counsel]: Did you understand that?

     [Fitzpatrick]: I mean, I know what she’s saying.

     [Elliott’s Counsel]: You what? I’m sorry?

     [Fitzpatrick]: I understand what she’s saying.

     [Elliott’s Counsel]: And so you understood this concept as of
            September 25, 2014; correct?

     [Fitzpatrick]: I understand what this E-mail says, yes.

     [Elliott’s Counsel]: So where were you living and working prior
            to accepting your assignment?

     [Fitzpatrick]: Prior to accepting, I guess I was still in Jeannette.


                                    - 15 -
J-A27019-17


     [Elliott’s Counsel]: So pursuant to Ernst & Young’s interpretation
            of the policy and the tax law position, as it says here in the
            subject line, you were required to file your taxes in
            Pennsylvania as if you were in Jeannette?

                                    * * *

     [Elliott’s Counsel]: Did you understand that you were -- that
            this was Ernst & Young’s interpretation of the policy?

     [Fitzpatrick]:   In this E-mail, yes.      Like I said prior, my
           interpretation and my assumption was Ernst & Young
           would be filing as a Florida resident.

     [Elliott’s Counsel]: And your termination occurred after this E-
            mail; correct?

     [Fitzpatrick]: Yes.

     [Elliott’s Counsel]: And so the second to last sentence -- I’m
            sorry, third to last sentence of this first paragraph. “As
            your assignment departure was PA, under the Elliott policy,
            you will be held to a federal, PA state, PA local and US
            social stay-at-home tax. Therefore, regardless of the tax
            residency position taken on the actual PA state and local
            returns, you will still be responsible for paying a PA state
            and local tax as if you had not departed.”          Do you
            understand that?

     [Fitzpatrick]: Right. We departed from Florida.

     [Elliott’s Counsel]: It doesn’t say where you departed. It says
            as if you had not departed.

N.T., 11/30/16, at 181-185.

     Furthermore, Brian Lapp, Vice President of Human Resources at Elliott,

testified that the tax equalization policy was not based on residency, but

instead was based on the employee’s location prior to leaving for the

assignment.    N.T., 12/1/16, at 302-305.         Michelle Connellan, Senior


                                    - 16 -
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Manager for Ernst & Young, also testified that an employee’s residency had

no impact on where taxes had to be filed. N.T., 12/2/16, at 11-15.

      Accordingly, the record supports the conclusion that Fitzpatrick had

been advised of the tax equalization policy prior to his acceptance of the

Singapore assignment and during his assignment, and was given further

explanation of the policy prior to his termination. The tax equalization policy

was referenced in Fitzpatrick’s Employment Agreement and the International

Assignment Policy. Although Fitzpatrick is correct in his statement that his

Employment Agreement and the International Assignment Policy do not

specifically require that he maintain domicile in Pennsylvania, there was no

requirement that he do so, and his termination was not based on his failure

to maintain domicile in Pennsylvania.      Instead, the tax equalization policy

required that Appellant was to be taxed at the place of his work and

residence prior to leaving for his international assignment.       That location

was Jeanette, Pennsylvania.     The fact that Appellant had a stop in Florida

with his wife prior to leaving for his assignment is irrelevant.       Again, his

place of work prior to accepting the Singapore assignment was in Jeanette,

Pennsylvania.   That Appellants intended to reside, and have in fact been

residing, in Florida with Plaintiff Wife’s parents since Fitzpatrick’s termination

also is irrelevant to the tax equalization policy.    Fitzpatrick acknowledged

that he failed to complete the tax return in compliance with Elliott policy.

N.T., 11/30/16, at 178. Moreover, Fitzpatrick stated that he never paid the


                                     - 17 -
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$14,964 calculated by Ernst & Young as owed to Elliott pursuant to the tax

equalization policy. Id. at 176-178.

         Viewing the evidence presented in the light most favorable to Elliott,

and giving it the benefit of every reasonable inference arising therefrom

while rejecting all unfavorable testimony and inferences, we are constrained

to agree with the trial court that JNOV in Appellants’ favor was not

warranted.      Elliott was not required to establish that Fitzpatrick was to

maintain a Pennsylvania domicile.       Furthermore, the evidence established

that Fitzpatrick was terminated for cause, specifically for failure to file his

taxes and comply with Elliott’s tax equalization policy.     Consequently, the

trial court did not err in denying Appellants’ motion for JNOV with respect to

liability.   Thus, Appellants are entitled to no relief on their first claim and

related sub-issues.

         In their next issue and related sub-parts, Appellants argue that the

trial court erred in denying their motion for JNOV on Elliott’s counterclaims.

Appellants’ Brief at 46. Appellants maintain that Elliott’s unjust enrichment

claim fails as a matter of law because the jury found an express agreement

between the parties. Id. Appellants argue that Elliott is seeking to collect a

tax refund on a tax return that never was filed.        Id. at 47.   Appellants

further argue that Elliott’s conversion claim fails under the gist of the action

doctrine and that failure to pay a debt does not constitute conversion. Id.

at 47.


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     “Unjust enrichment is an equitable doctrine, and when unjust

enrichment is present, the law implies the existence of a contract requiring

the defendant to pay to the plaintiff the reasonable value of the benefit

conferred.” Temple University Hosp., Inc. v. Healthcare Management

Alternatives, Inc., 832 A.2d 501, 508 (Pa. Super. 2003).

           A claim for unjust enrichment arises from a quasi-contract.
     A quasi-contract imposes a duty, not as a result of any
     agreement, whether express or implied, but in spite of the
     absence of an agreement, when one party receives unjust
     enrichment at the expense of another.

           The elements of unjust enrichment are benefits conferred
     on defendant by plaintiff, appreciation of such benefits by
     defendant, and acceptance and retention of such benefits under
     such circumstances that it would be inequitable for defendant to
     retain the benefit without payment of value. Whether the
     doctrine applies depends on the unique factual circumstances of
     each case. In determining if the doctrine applies, we focus not
     on the intention of the parties, but rather on whether the
     defendant has been unjustly enriched.

           Moreover, the most significant element of the doctrine is
     whether the enrichment of the defendant is unjust. The doctrine
     does not apply simply because the defendant may have
     benefited as a result of the actions of the plaintiff.

Stoeckinger v. Presidential Financial Corp. of Delaware Valley, 948

A.2d 828, 833 (Pa. Super. 2008) (internal citations and quotation marks

omitted).   “Where an express contract already exists to define the

parameters of the parties’ respective duties, the parties may avail

themselves of contract remedies and an equitable remedy for unjust

enrichment cannot be deemed to exist.” Villoresi v. Femminella, 856 A.2d

78, 84 (Pa. Super. 2004).

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J-A27019-17


      Conversion is a tort by which the defendant deprives the plaintiff of his

right to a chattel or interferes with the plaintiff’s use or possession of a

chattel without the plaintiff’s consent and without lawful justification.

Chrysler Credit Corporation v. Smith, 643 A.2d 1098, 1100 (Pa. Super.

1994). “A plaintiff has a cause of action in conversion if he or she had actual

or constructive possession of a chattel at the time of the alleged

conversion.”   Id.   Money may be the subject of conversion.            Francis J.

Bernhardt, III, P.C. v. Needleman, 705 A .2d 875, 878 (Pa. Super. 1997)

           Pursuant to Pennsylvania case law, a conversion is widely
      understood as deprivation of another’s right of property in, or
      use or possession of, chattel, or other interference therewith,
      without the owner’s consent and without lawful justification. A
      person may incur liability for conversion by unreasonably
      withholding possession from one who has the right to it.

PTSI, Inc. v. Haley, 71 A.3d 304, 314 (Pa. Super. 2013) (emphasis

omitted). “The gist-of-the-action doctrine bars a tort action ‘when the gist

or gravamen of the cause of action stated in the complaint, although

sounding in tort, is, in actuality, a claim against the party for breach of its

contractual obligations.’” Weinar v. Lex, ___ A.3d ___, 2017 Pa. Super.

398 at 16 (Pa. Super. 2017). “But we have cautioned against prematurely

dismissing a tort action on the basis of this doctrine, because our rules

permit the pleading of tort and contract claims in the alternative.” Id.

      At trial, Fitzpatrick testified that by the time of trial, he had in fact filed

his 2013 tax return and used a personal accountant to do so.                   N.T.,

11/30/16, at 178. Thus, contrary to his assertions, the 2013 tax return was

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J-A27019-17


eventually filed, and Fitzpatrick received the benefit of any tax refund.

Moreover, Fitzpatrick acknowledged that he had paid nothing to Elliott based

on the 2013 tax return and Elliott’s tax equalization policy. Id. at 176-178.

Accordingly, the elements of conversion and unjust enrichment have been

established.

      Furthermore, it was a question for the jury as to whether the

documents presented at trial created an employment contract between the

parties. The jury made a factual finding that the documents indeed created

a contract. However, when Fitzpatrick finally filed his 2013 tax return and

received the tax refund, he was no longer employed by Elliott.       Thus, the

employment agreement between the parties did not serve as a contractual

basis that precluded recovery under a conversion or unjust enrichment

theory.   Thus, the trial court did not err in denying Appellants’ motion for

JNOV on Elliott’s counterclaims.

      In their third claim, Appellants argue that the trial court erred in

denying their motion for a new trial. Appellants’ Brief at 4. In the first two

sub-claims under this issue, Appellants argue that the trial court abused its

discretion in admitting irrelevant and prejudicial evidence at trial, thus

warranting a new trial. Appellants’ Brief at 32. Under this claim, Appellants

first assert that the trial court improperly admitted evidence that Fitzpatrick,

after he was terminated, removed data from his Elliott-issued computer. Id.

at 33. Appellants point to the trial court’s explanation for admission of the


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evidence as the basis for the error in admitting the evidence, which

explanation was as follows: Elliott “argued convincingly that the destruction

of the company’s contents would have been a violation of a company policy

that would have resulted in dismissal.” Id. Appellants maintain that it was

undisputed that at the time of the destruction, Fitzpatrick already was

terminated.    Id.   Thus, Appellants posit, what would have happened to

Fitzpatrick had he committed that act while employed was irrelevant.        Id.

Appellants contend that this irrelevant evidence was prejudicial and may

have affected the verdict. Id.

      Our standard of review in the consideration of a trial court’s denial of a

motion for a new trial is as follows:

             When assessing the trial court’s denial of a motion for new
      trial, we apply a deferential standard of review. The decision
      whether to grant or deny a new trial is one that lies within the
      discretion of the trial court. We will not overturn such a decision
      unless the trial court grossly abused its discretion or committed
      an error of law that controlled the outcome of the case. Upon
      review, the test is not whether this Court would have reached
      the same result on the evidence presented, but, rather, after
      due consideration of the evidence found credible by the trial
      court, and viewing the evidence in the light most favorable to
      the verdict winner, whether the court could reasonably have
      reached its conclusion.


B & L Asphalt Industries, Inc. v. Fusco, 753 A.2d 264, 267 (Pa. Super.

2000) (internal citations and quotation marks omitted).

      Our standard of review regarding admission of evidence at trial is well-

established:



                                        - 22 -
J-A27019-17


            The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law. Thus our standard of review is very
      narrow.... To constitute reversible error, an evidentiary ruling
      must not only be erroneous, but also harmful or prejudicial to
      the complaining party.

McManamon v. Washko, 906 A.2d 1259 (Pa. Super. 2006) (internal

citations and quotation marks omitted).        “An abuse of discretion is not

merely an error of judgment, but if in reaching a conclusion the law is

overridden   or   misapplied,   or   the   judgment   exercised   is   manifestly

unreasonable, or the result of partiality, prejudice, bias or ill will, as shown

by the evidence or the record, discretion is abused.”         Cigna Corp. v.

Executive Risk Indem., Inc.,

111 A.3d 204, 211 (Pa. Super. 2015).

      The record reflects that Appellants presented a motion in limine

seeking to exclude any evidence regarding trade secrets as related to the

information that Fitzpatrick “wiped” from the Elliott-issued laptop after his

termination. N.T., 11/30/16, at 6-9. It was explained to the trial court that

a separate case regarding the trade secrets had been filed by Elliott against

Fitzpatrick and was pending at the time of the trial in this matter. Id. In

ruling on the motion, the trial court stated the following:

      [Trial Court]: The trade secret – Elliott is precluded from making
      any reference to the trade secret lawsuit pending in this county.
      Then Exhibits 42 to 47, what are they?




                                      - 23 -
J-A27019-17


      [Appellants’ Counsel]: Those are the motion[s] for preliminary
      injunction that is in the other case. All of those exhibits are
      related to the other case.

      [Trial Court]: If they can find -- I’ll want to see it preliminarily
      here in sidebar.      If there is some statement, some great
      contradiction that would eliminate liability under your lawsuit,
      well, then, I’ll look at it. That’s the problem with a lot of this
      stuff. We have to see how it comes in. So I’m signing this and
      precluding any reference, [Elliott’s Counsel], to the trade
      secrets. Because if you get into it, then [Appellants’ counsel]
      has the right to say, “Hey, I didn’t want to do that. And I don’t
      want to try a trade secrets case here.”

Id. at 10.

      During   cross-examination    of   Fitzpatrick,   Elliott’s   counsel    began

questioning Fitzpatrick regarding his return of the Elliott-issued laptop. N.T.,

12/1/16, at 260.      The parties engaged in a sidebar before Fitzpatrick

answered.    Id.   Appellants’ counsel objected to questioning regarding the

computer based on the trial court’s ruling on the motion in limine that

precluded evidence related to the trade secret lawsuit. Id. at 260. Elliott’s

counsel argued that the questions were unrelated to the computer, but

instead pertained to the information that was on the laptop.           Id.    Elliott’s

counsel stated the following in asserting the admissibility of the evidence

related to Fitzpatrick’s “wiping” of the laptop data: “Our witnesses are going

to testify that had [Fitzpatrick wiped the data], as an employee he would

have been terminated, which is after-acquired evidence, which will cut off

any damages he would have.” Id. at 261. This exchange followed:

      [Elliott’s Counsel]: It has nothing to do with the decision to fire.
      This is an affirmative action –

                                     - 24 -
J-A27019-17



      [Trial Court]: You’re saying even if he signs the tax return, they
      could have fired him, anyways?

      [Elliott’s Counsel]: No -- yeah. Exactly. They’re saying even if
      he was ever found liable, damages are cut off as soon as you
      learn of something that would, also have resulted in the person’s
      termination, had their employment continued.

      [Trial Court]: Here’s what I’m going to do. I’m going to allow
      one question, and please ask him to answer directly.

                                   * * *

      And the question is:     “Did you erase anything from this
      computer?” That’s it. Thanks.

Id. at 263-264.

      Elliott’s counsel asked Fitzpatrick if he wiped data from the laptop

before returning it to Elliott.    N.T., 12/1/16, at 264-265.      Fitzpatrick

acknowledged that he did.         Id. at 265.     During subsequent cross-

examination, counsel asked Fitzpatrick if it was his understanding that he

could be terminated for intentionally destroying Elliott property. Id. at 267.

Appellants’ counsel objected, and the trial court sustained the objection. Id.

      Further, during the direct examination of John Rann, vice president of

the engineer products business unit at Elliott, Elliott’s counsel asked the

following question:   “[i]f you would have advised an employee that you

needed to forensically image his computer and that employee deleted all the

–”.   N.T., 12/2/16, at 50.    Appellants’ counsel objected, and a sidebar

between counsel and the trial court followed. Id. at 50. Appellants’ counsel

argued that the question went to the trade secret case that was separately

                                    - 25 -
J-A27019-17


pending.   Id. at 51.   Elliott’s counsel disagreed, stating that the question

went to Elliott’s affirmative defense of after-acquired evidence. Id. The trial

court stated that it did not want to get into the trade secret case but also

acknowledged that Fitzpatrick had testified that he had wiped data from the

computer in order to protect his personal information.            Id. at 52.

Accordingly, the trial court ruled that Elliott’s counsel was permitted to ask

one question:    “Is it a violation of Elliott’s policy to wipe a computer

clean[?]” Id. at 54. Elliott’s counsel asked that question, to which Mr. Rann

responded:    “[y]es, it would.”    Id. at 55.     That was the end of the

questioning of Mr. Rann by Elliott’s counsel. Id. at 55.

      In addressing this issue, the trial court explained:

      When this objection was raised at trial, [Elliott] argued
      convincingly that the destruction of the computer’s contents
      would have been a violation of a company policy that would have
      resulted in dismissal. Further, even if said ‘wiping’ occurred
      after the employee’s termination, that said evidence would be
      used to limit damages.

Trial Court Opinion, 5/15/17, at 13 (internal citations omitted).
       The trial court’s determination is supported by the evidence of record.

The trial court admitted the evidence for purposes of limiting damages.

Nothing in the record indicates that Elliott was attempting to introduce this

evidence to establish a basis for Fitzpatrick’s firing.      Indeed, the trial

testimony reflects that Fitzpatrick was terminated due to his insubordination

with regard to failing to file the tax returns. Moreover, we cannot agree with

Appellants’ assertion that introduction of this evidence unfairly prejudiced


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J-A27019-17


them.      Thus, the trial court did not abuse its discretion in denying

Appellants’ motion for a new trial on the basis of admission of the limited

evidence regarding Fitzpatrick’s wiping of data from his computer.

        Appellants next argue that the trial court erred in admitting evidence

of Fitzpatrick’s one-time $200,000 fantasy football winning. Appellants’ Brief

at 36.     Appellants’ maintain that Fitzpatrick’s fantasy winnings were not

probative to his damages, and admission of this winning was irrelevant and

prejudicial. Id. at 37.

        In addressing this claim, the trial court provided the following analysis:

        Counsel for both [Elliott] and [Appellants] acknowledged that the
        law, by way of its mitigation of damages jury instruction,
        requires a plaintiff to minimize his or her damages by taking all
        steps to seek substantially similar work. However, [Appellants’]
        counsel maintained that online gambling is vastly different from
        engineering work.       Although this writer acknowledges that
        engineering is quite different from forecasting productive
        National Football League players on a week to week basis, this
        [c]ourt warned [Appellants’] counsel at that time that it
        depended on how the information was used, and that if a ‘door
        was opened’ by counsel’s portrayal of [Appellants] as “down and
        out”, then this writer would find said evidence “highly relevant.”
              Counsel for [Appellants] told this court at said time that his
        intention was to elicit evidence that [Fitzpatrick] has remained
        unemployed despite the fact that “he’s looked for over 500 jobs,
        has had 44 interviews and has been unable to get a job.”
        [Appellants] would have preferred the jury to hear only
        testimony of lost wages from the date of termination until the
        date of trial, but the $200,000.00 in prize winnings during that
        same period was relevant to their claims; one cannot claim great
        hardship while enjoying such substantial income, no matter the
        source.2 Unfortunately for [Appellants] in this instance, and as
        told to them at the time of this motion, “sometimes facts are
        disturbing, but they are what they are.”




                                       - 27 -
J-A27019-17


            2
               The Plaintiff Wife testified that on her return to
            America she obtained a job that paid substantially
            higher than the job she had in Singapore.

            At the time of his testimony regarding his period of post-
      termination unemployment, while [Fitzpatrick] testified as to
      hundreds of resumes filed and follow-up interviews never
      scheduled, [Plaintiff-Wife] wept in the gallery. The [c]ourt found
      the information relevant that during this same period of struggle
      that [Appellants] collected $200,000.00 in gambling proceeds.
      The question for this writer was not whether the information was
      relevant but only whether the probative value outweighed any
      prejudicial effect. Pa.R.E. §403, states, “the court may exclude
      relevant evidence if its probative value is outweighed by a
      danger of one or more of the following:          unfair prejudice,
      confusing the issues, misleading the jury, undue delay, wasting
      time, or needlessly presenting cumulative evidence (Pa.R.E.
      §403).” After hearing all of the testimony up until said point,
      this writer found said information’s relevance outweighed any
      prejudicial effect.

            This writer found the fact that [Appellants] received
      $200,000.00 in fantasy football ‘jackpot’ proceeds during a
      period that [Appellants] were claiming zero income pertinent and
      relevant to the verdict rendered by the jury. To suggest this
      information was not relevant to the jury’s determination is self-
      serving and should not be given further consideration.

Trial Court Opinion, 5/15/17, at 14-15.

      The record supports the trial court’s analysis. Furthermore, we cannot

conclude that the trial court abused its discretion in admitting this evidence.

Accordingly, Appellants’ claim related to the admission of evidence regarding

the $200,000.00 Fantasy Football League winnings lacks merit.

      In their third subclaim that the trial court erred in denying its motion

for a new trial, Appellants assert that the trial court issued an improper jury

charge and verdict slip. Appellants’ Brief at 41-45. Appellants contend that


                                    - 28 -
J-A27019-17


“the instruction for the jury should have simply focused upon whether

Fitzpatrick’s conduct amounted to a material breach of the employment

agreement.”    Id. at 42.    Appellants further maintain that “establishing

‘materiality’ requires a substantial showing.” Id. Appellants further argue

that “[t]his principle is important because []only material failure of

performance by one party discharges the other party; an immaterial failure

does not operate as such a discharge.” Id. Appellants posit that:

            A new trial is warranted because Elliott’s burden was
      lessened by only having to convince the jury that it had “just
      cause” to terminate the parties’ contract – as opposed to the
      substantial one required by proving material breach. Just cause
      does not appear in the Employment Agreement. Nor was the
      jury provided any definition for that legal term of art. Left on
      their own to deliberate without a definition, the jury may have
      concluded that all Elliott needed to terminate the contract was a
      good reason. Or any reason.

Id. at 42-43 (footnote omitted).

      Our standard of review in assessing a trial court’s jury instructions is

as follows:

            A jury charge will be deemed erroneous only if the charge
      as a whole is inadequate, not clear or has a tendency to mislead
      or confuse, rather than clarify, a material issue. A charge is
      considered adequate unless the jury was palpably misled by
      what the trial judge said or there is an omission which is
      tantamount to fundamental error. Consequently, the trial court
      has wide discretion in fashioning jury instructions. The trial
      court is not required to give every charge that is requested by
      the parties and its refusal to give a requested charge does not
      require reversal unless the [a]ppellant was prejudiced by that
      refusal.

Amato v. Bell & Gossett, 116 A.3d 607, 621 (Pa. Super. 2015).


                                    - 29 -
J-A27019-17


     In addressing Appellants’ issue related to the jury instruction, the trial

provided the following explanation:

           [Appellants’] next claim of error charges that this writer
     committed reversible error based upon the use of language,
     specifically   the   words,    “just   cause”    when     discussing
     [Fitzpatrick’s] termination in both the jury instruction and special
     interrogatory on the verdict slip, asserting that “the jury was
     probably misled.” The language complained of appears on page
     125 of the transcript of December 5, 2016, and states:

           the employee claims that Elliott wrongfully
           terminated his employment in violation of an
           employment agreement.      If you find that an
           expressed or implied employment contract for a
           definite period of time existed, you must then
           determine if just cause existed to terminate the
           employee.

     (Tr. at 125)[.]

            This [c]ourt has a standing policy to limit his instructions
     to the Pennsylvania Suggested Standard Civil Jury Instructions
     only.     This [c]ourt invariably rejects requests to repeat
     arguments or create new law. If a deviation of said instructions
     is allowed, it is done with the consent of the opposing party. In
     those circumstances, this writer will deviate from the standard
     instructions as long as such language is not contrary to the law
     or the evidence presented.

           With that said, in the case sub judice, at paragraph III of
     the Complaint, [Appellants] assert a “Second Cause of Action,
     Breach of Contract” (Complaint, p.9). The jury was asked to
     determine whether the parties had entered into an employment
     contract (See Interrogatories, #1).      They were next asked
     whether     [Fitzpatrick]    was    “terminated     for   cause”
     (Interrogatories, #2), i.e., whether said contract was breached.
     The jury empaneled answered in the affirmative.

           [Appellants], through counsel, were successful in
     convincing the jury that [Fitzpatrick] and [Elliott] entered into a
     valid contract as evidenced by their answer to Interrogatories at
     question 1, when they answered in the affirmative. [Elliott] was

                                      - 30 -
J-A27019-17


      then successful in convincing the jury that [Fitzpatrick] breached
      the contract, thus supplying [Elliott] with “cause” or “just cause”
      to terminate [Fitzpatrick’s] employment.

             The issue as to the “just cause” language was discussed at
      the charging conference, December 5, 2016, as evidenced by the
      transcript at pages 32-46. [Elliott] maintained the position
      throughout the trial that [Fitzpatrick] was not working under the
      terms of a contract, but rather a statement of benefits. [Elliott]
      further maintained that if the jury was to find that a contract
      existed, [Fitzpatrick] had breached the contract, with “cause” or
      “just cause” used synonymously with breach, and as justification
      for [Fitzpatrick’s] termination under the contract.

            Said language was deemed necessary to avoid confusing
      the jury due to language included in the parties’ agreement.
      Paragraph four (4) of the parties’ [initial] agreement
      [(“Employment and Patent Agreement”), dated 5/20/02] states,
      “after the expiration of 12 calendar months from the date on
      which my employment began, my employment may be
      terminated by me or by the company except for cause, only on
      the expiration of two weeks’ notice” (Tr. At 153, emphasis
      added, see also, Defendant’s Exhibit A, para.4).

            This [c]ourt’s charge regarding the breach of contract
      claim begins at page 116 of the Transcript dated December 5,
      2017. The charge accurately recites the Pennsylvania Suggested
      Standard Instructions as they relate to contract law in this
      Commonwealth. Any deviations made did not alt[e]r, let alone
      constitute an inaccurate statement of law as they relate to the
      principles of Pennsylvania contract law and should be
      considered, at most, harmless error.

Trial Court Opinion, 5/15/17, at 11-13.

      After reviewing the jury instructions as a whole, we cannot agree with

Appellants’ assertion that the trial court abused its discretion in issuing the

“just cause” instruction. The trial court instructed the jury that Fitzpatrick

“is accusing [Elliott] of breach of contract. Conversely, [Elliott] is asserting

that it was [Fitzpatrick] himself that breached the contract.” N.T., 12/5/16,

                                     - 31 -
J-A27019-17


at 116. The trial court outlined the elements of a contract, id. at 117-118,

and defined breach of contract as follows:       “A breach of contract occurs

when a party to the contract fails to perform any contractual duty of

immediate performance or violates an obligation, engagement or duty and

that breach is material.”     Id. at 118 (emphasis added). The trial court

also explained: “[i]f you find that the nonperformance was immaterial and,

thus, the contract was substantially performed, you must also find that a

breach of the contract has not occurred.” Id. Thus, in issuing its instruction

on the breach of contract, the trial court used the same language that

Appellants assert is proper. Furthermore, as explained by the trial court, the

terms “cause” or “just cause” were used synonymously with breach in the

instruction as justification for Fitzpatrick’s termination under the contract.

Indeed, Appellants’ counsel acknowledged during the charging conference

that in the context of this case, “cause” is synonymous with “breach.” Id. at

36, 44. Therefore, Appellants’ averment that the trial court lowered Elliott’s

burden of proof through its jury instructions and verdict slip by use of

“cause” is without merit. This claim fails.

      In their final issue, Appellants argue that if the matter was remanded

for a new trial, they should not be required to re-litigate the fact that

Fitzpatrick and Elliott entered into a four-year employment agreement.

Appellants’ Brief at 48-49.   Given our disposition of Appellants’ previously

listed issues, we need not address this claim.


                                     - 32 -
J-A27019-17


     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2018




                          - 33 -
