J-A27008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAULA L. STILLMAN, M.D.                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

TEMPLE UNIVERSITY HEALTH SYSTEM
AND TEMPLE UNIVERSITY HOSPITAL,
INC.

                            Appellees                  No. 856 EDA 2016


                 Appeal from the Judgment Entered May 5, 2016
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 140203174


BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 31, 2017

        Appellant, Paula L. Stillman, M.D., appeals from the judgment entered

in the Philadelphia County Court of Common Pleas. We affirm.

        The relevant facts and procedural history are as follows. Appellant is a

former at-will employee of Temple University Hospital System (“TUHS”).

During a meeting on November 20, 2013, a representative of TUHS informed

Appellant that her position was being terminated. TUHS offered Appellant

twelve weeks of severance pay in exchange for Appellant providing a

release. Appellant objected to the duration of the severance pay; TUHS

agreed to pay Appellant six months of severance instead. Following the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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meeting, TUHS sent Appellant a letter stating she would receive six months

of severance, provided she made a good-faith effort to seek other

employment. The letter also stated the severance payments would be offset

by any compensation she earned as the result of other employment during

that time. Appellant refused to agree to the terms of the letter, and did not

sign a release.

      On February 28, 2014, Appellant filed the instant complaint. Appellant

claimed TUHS breached her contract by refusing to pay her six months’

severance, without an offset provision; failing to pay Appellant a merit bonus

to which she was entitled; and interfering with Appellant’s subsequent

employment contract at another hospital. TUHS filed preliminary objections,

stating Appellant failed to prove the existence of a contract addressing

severance, or that she was entitled to a discretionary bonus. The court

sustained TUHS’s preliminary objections and dismissed Appellant’s Wage

Payment and Collection Law and breach of contract claims. The court

determined that Appellant’s claims of an oral severance agreement made

after her termination lacked valid consideration, and thus could not

constitute a contract. Appellant then filed a motion for permission to amend

her complaint, which the court granted. Appellant’s amended complaint

alleged that, at the time she was hired, TUHS promised her six months of

severance pay in the event she was terminated.

      Thereafter, TUHS filed a motion for summary judgment. The court

granted TUHS’s motion as to Appellant’s claim for a merit bonus; it

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determined that Appellant was eligible for a bonus, but that she was not

guaranteed or otherwise legally entitled to one. Appellant proceeded to a

jury trial on her remaining claims. The court permitted Appellant to continue

to litigate her severance claim, but only as to whether Appellant and TUHS

entered into a valid oral contract prior to or simultaneous with the beginning

of Appellant’s employment. The court ruled that the jury would not evaluate

the question of whether any oral severance agreement had been made at

the time of Appellant’s termination on November 20, 2013, in keeping with

the court’s prior ruling on TUHS’s preliminary objections. The jury returned a

verdict in favor of TUHS. Appellant filed a timely post-trial motion requesting

judgment notwithstanding the verdict (“JNOV”) or a new trial. The court

denied Appellant’s motion, and she filed a notice of appeal.1

       Appellant raises three questions for our review:

       1.    Whether the trial court erred when it failed to direct a
       judgment in [Appellant’s] favor on her claims (a) for breach of a
       contract to pay severance benefits and (b) for severance benefits
       and attorneys’ fees pursuant to the Wage Payment and
____________________________________________


1
  Judgment had not been entered on the docket when Appellant filed her
notice of appeal. In her notice of appeal, Appellant purported to appeal from
the denial of her post-trial motion. See Notice of Appeal, filed 3/15/16.
“Orders denying post-trial motions, however, are not appealable. Rather, it
is the subsequent judgment that is the appealable order when a trial has
occurred.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 524 n.1 (Pa.
Super. 2006) (citation omitted). Accordingly, this Court issued an order
directing Appellant to praecipe the trial court prothonotary to enter
judgment. See Order, filed 5/4/16. Appellant complied with our order and
judgment was entered in the lower court on the next day. We have corrected
the caption accordingly.



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      Collection Law, where the undisputed evidence at trial
      established all the elements necessary to prove [Appellant’s]
      claim for breach of an oral contract to pay six months’ severance
      made on November 20, 2013?

      2.    Whether the trial court erred when it failed to grant
      [Appellant’s] motion for a new trial on her claims (a) for breach
      of a contract to pay severance benefits and (b) for severance
      benefits, attorneys’ fees and liquidated damages pursuant to the
      Wage Payment and Collection Law, where errors in the jury
      charge, the verdict sheet, the permitted scope of closing
      argument, and the evidence admitted at trial, resulted in
      prejudice to [Appellant] that affected the outcome of the trial?

      3.   Whether the trial court erred when it granted summary
      judgment to TUHS on [Appellant’s] breach of contract and Wage
      Payment and Collection Law claims for a performance-based
      bonus?

Appellant’s Brief, at 2-3 (unnecessary capitalization omitted).

      In her first issue, Appellant argues the evidence proved TUHS

breached an oral agreement with Appellant to pay her six months’

severance. Appellant contends TUHS promised to pay severance during the

November 20, 2013 meeting when Appellant was terminated. Appellant

claims the trial court erred when it determined that any post-termination

agreement lacked consideration because Appellant did not sign a release in

exchange for the purported severance pay. Appellant avers her oral

agreement with TUHS’s representative to increase the severance amount

implied Appellant would accept the release. Appellant asserts the trial court

erred by sustaining TUHS’s preliminary objections on this issue and not

allowing the jury to hear evidence of the post-termination agreement.

Appellant concludes she is entitled to JNOV. We disagree.



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     We review this issue according to the following standard of review.

     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.

Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d

996, 999 (Pa. Super. 2008) (citation omitted). “[A]bsent an abuse of

discretion, the reviewing court is bound by the trial court’s credibility

determinations.” De Lage Landen Financial Services, Inc. v. M.B.

Management Co., Inc., 888 A.2d 895, 898 (Pa. Super. 2005) (citation

omitted).

     In reviewing Appellant’s motion for JNOV, the trial court found that the

parties did not agree to the alleged oral contract dictating the terms of

Appellant’s severance. The court concluded that any contract for severance

payments was explicitly conditioned on Appellant signing the release. Thus,

Appellant’s refusal to sign the letter providing six months of severance pay

meant the contract lacked consideration, and precluded her from enforcing

it. Consequently, the court did not permit Appellant’s breach of contract

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claim based on a post-termination oral severance agreement to proceed to

the jury. The record supports the court’s conclusions, and so we cannot

conclude the court abused its discretion in preventing Appellant from

presenting this claim to the jury, or subsequently denying Appellant’s motion

for JNOV. Accordingly, Appellant is due no relief on her first issue.

      In her second issue, Appellant contends that three separate trial court

errors entitle her to a new trial. We review Appellant’s contentions that the

trial court erred in denying her motion for a new trial according to the

following standard of review.

      “Our standard of review from an order denying a motion for a new trial

is whether the trial court committed an error of law, which controlled the

outcome of the case, or committed an abuse of discretion.” Mirabel v.

Morales, 57 A.3d 144, 150 (Pa. Super. 2012) (citation omitted). “A trial

court commits an abuse of discretion when it rendered a judgment that is

manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,

or was motivated by partiality, prejudice, bias, or ill will.” Id. (citation

omitted).

      Unless an error of law controls the outcome of a case, we will not

reverse an order denying a new trial. See Lockley v. CSX Transportation,

5 A.3d 383, 388 (Pa. Super. 2010). “[A] litigant is entitled only to a fair trial

and not a perfect trial.” Id. at 392 (citation omitted).




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      First, Appellant takes umbrage at the court’s omission of certain points

for charge and items on the verdict sheet related to her claim of an oral

severance agreement made at the time of her termination.

      A jury charge is adequate “unless the issues are not made clear, the

jury was misled by the instructions, or there was an omission from the

charge amounting to a fundamental error.” Tincher v. Omega Flex, Inc.,

104 A.3d 328, 351 (Pa. 2014) (citations omitted).

      However, we have already determined the court was well within its

discretion to preclude the jury from evaluating Appellant’s post-termination

oral severance claim in its entirety. The appropriateness of jury instructions

on a claim is necessarily derivative of that claim’s ability to proceed to the

jury in the first place. Therefore, this argument fails.

      Appellant next indicates the trial court erred in directing the jury to

disregard evidence at trial related to Appellant’s post-termination oral

severance claim. Appellant maintains this refusal to allow counsel to present

evidence of the post-termination agreement in closing argument prejudiced

her case and entitles her to a new trial. We disagree.

      “While counsel usually has great latitude in his closing argument, he

may not present facts to the jury not in evidence and which are prejudicial

to the opposing party.” Coffey v. Minwax Co., Inc., 764 A.2d 616, 620

(Pa. Super. 2000) (citation omitted).




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      Instantly, the court refused to permit Appellant’s counsel to reference

the post-termination oral severance agreement in closing argument. The

court previously ruled that the jury would not evaluate the existence or

validity of any post-termination oral severance agreement. Thus, the court

properly prohibited Appellant’s counsel from referring to such an agreement

in closing argument.

      In her third claim of error, Appellant disputes the propriety of the

court’s decision to allow into evidence an email between Dr. DiSesa,

Appellant’s supervisor, and Dr. Kaiser, the CEO of TUHS, as a business

record exception to the hearsay rule.

      With regard to the admissibility of evidence:

      [A] trial court has broad discretion…and is not required to
      exclude all evidence that may be detrimental to a party’s case.
      Such rulings on the admission of evidence will not be overturned
      by this Court absent a conclusion that the law has been
      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.

Schuenemann v. Dreemz, LLC, 34 A.3d 94, 102 (Pa. Super. 2011).

      Rule 803 of our Rules of Evidence concerns the business record

exception to the hearsay rule and provides, in pertinent part, as follows.

      The following are not excluded by the rule against hearsay,
      regardless of whether the declarant is available as a witness:

                                     *     *   *

       (6). Records of a Regularly Conducted Activity. A record
       (which includes a memorandum, report, or data compilation in
       any form) of an act, event or condition if:

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         (A)     the record was made at or near the time by – or
         from information transmitted by – someone with
         knowledge;

         (B)      the record was kept in the course of a regularly
         conducted activity of a “business,” which term includes
         business, institution, association, profession, occupation,
         and calling of every kind, whether or not conducted for
         profit;

         (C)       making the record was a regular practice of that
         activity;

         (D)        all these conditions are shown by the testimony of
         the custodian or another qualified witness, or by a
         certification that complies with Rule 902(11) or (12) or
         with a statute permitting certification; and

         (E)      the opponent does not show that the source of
         information or other circumstances indicate a lack of
         trustworthiness.

                                   *    *    *

Pa.R.E. 803(6).

      Dr. DiSesa authenticated this email as a record kept in the course of

regularly conducted activity at TUHS. See N.T. Trial, 12/8/16, at 90. The

court did not abuse its discretion in determining that such evidence was

admissible under the business record exception to the hearsay rule.

Moreover, contrary to Appellant’s contention otherwise, multiple exhibits

included in the record confirm the practices of TUHS written in Dr. Kaiser’s

email. The information contained in the email at most provides cumulative

evidence, rather than uniquely prejudicial material as Appellant claims. Thus,

Appellant is due no relief on this claim.


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     In Appellant’s final issue, she disputes the trial court’s grant of

summary judgment to TUHS on her merit bonus claim. Appellant maintains

the bonus was not discretionary, and its award depended solely on whether

Appellant met agreed-upon performance goals. Appellant insists she met

these goals and was therefore entitled to a bonus as a matter of right.

Appellant asserts the trial court erred by accepting TUHS’s interpretation of

the word “eligible.” Appellant contends her claim for a bonus should have

proceeded to a jury, instead of being dismissed by the trial court on

summary judgment. We disagree.

     We review a decision granting summary judgment according to the

following standard.

     A reviewing court may disturb the order of the trial court only
     where it is established that the court committed an error of law
     or abused its discretion. As with all questions of law, our review
     is plenary.

     In evaluating the trial court’s decision to enter summary
     judgment, we focus on the legal standard articulated in the
     summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
     where there is no genuine issue of material fact and the moving
     party is entitled to relief as a matter of law, summary judgment
     may be entered. Where the non-moving party bears the burden
     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. Failure of a
     nonmoving party to adduce sufficient evidence on an issue
     essential to his case and on which it bears the burden of proof
     establishes the entitlement of the moving party to judgment as a
     matter of law. Lastly, we will view the record in the light most
     favorable to the non-moving party, and all doubts as to the
     existence of a genuine issue of material fact must be resolved
     against the moving party.




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JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (citation omitted).

      Instantly, Appellant misconstrues the phrase “eligible” to mean

“mandatory.” Appellant’s initial offer letter from TUHS states: “You will be

eligible for a performance based bonus of up to 15% of your salary.”

Defendants’ Motion for Summary Judgment, Ex. 6, filed 4/17/15. Appellant

confirmed this precise phrasing in her response to TUHS’s motion for

summary judgment. See Plaintiff’s Response to Defendants’ Motion for

Summary Judgment and Plaintiff’s Counterstatement of Facts, filed 5/20/15,

at 3. Even viewed in the light most favorable to Appellant as the non-moving

party, we simply cannot give credence to Appellant’s seemingly willful

misinterpretation of the offer letter.

      Moreover, Appellant’s own conduct belies her alleged interpretation of

the document. TUHS gave Appellant a bonus of 10% of her salary in her

second year. When Appellant questioned why she was not given a bonus of

15%, her supervisor informed her that the bonus was discretionary, and up

to 15% of her salary. See Defendants’ Memorandum of Law in Opposition to

Plaintiff’s Petition for Extraordinary Relief, Ex. 2, at 1. Appellant did not

object or seek further review at that time. Appellant’s attempt to raise this

issue now rings hollow. Accordingly, we deny Appellant relief on this issue.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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