HomeMy WebLinkAbout06-6133Goldberg Katzman, P.C.
Steven E. Grubb, Esquire, I.D.# 75897
Attorney for Plaintiff
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
DR. JAMES A. SHAER, M.D. IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. NO. 6 13 3
ORTHOPAEDIC SURGEONS OF
CENTRAL PENNSYLVANIA, LTD.
Defendant. . CIVIL ACTION - LAW
NOTICE TO PLEAD
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set
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fail to do so the case may proceed without you and a judgment may be entered against you by the
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relief requested by the Plaintiff. You may lose money or property or other rights important to
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OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
NOTICIA
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ASISTENCIA LEGAL.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
Goldberg Katzman, P.C.
Steven E. Grubb, Esquire, I.D.# 75897
Attorney for Plaintiff
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
DR. JAMES A. SHAER, M.D.
Plaintiff
V.
ORTHOPAEDIC SURGEONS OF
CENTRAL PENNSYLVANIA, LTD.
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. O (, - & 1 3.3 CL LI -Ft----
CIVIL ACTION - LAW
COMPLAINT
Plaintiff, Dr. James A. Shaer, M.D. (Dr. Shaer), by and through his counsel, Goldberg
Katzman, P.C., alleges the following in support of this Complaint:
THE PARTIES
1. Plaintiff is Dr. James A. Shaer, M.D., an adult individual with an address of 5354
Bayhill Drive, Canfield, OH 44406.
2. Defendant is Orthopaedic Surgeons of Central Pennsylvania, Ltd. (OSCP), a
professional corporation engaged in the practice of orthopedic medicine, with a principal office
located at 99 November Drive, Camp Hill, PA 17011.
3. Dr. Shaer was employed with OSCP as an orthopedic surgeon pursuant to
employment contracts dated January 1, 2004, and January 17, 2005. These agreements are
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attached hereto as Exhibits A and B, respectively, and incorporated by reference as if set out in
full.
4. Pursuant to Section 4 of both the 2004 and 2005 Agreements, OSCP was to, at its
expense, carry or provide for professional liability insurance covering Dr. Shaer.
5. Dr. Shaer was terminated from OSCP on January 18, 2005 and his last day of
work at OSCP was January 31, 2005.
6. While working at OSCP, Dr. Shaer signed a "Certificate of Retention, Pledge to
Practice" in both 2004 and 2005 (the "Pledge(s)").
7. Dr. Shaer signed both Pledges at the request of the partner-physicians at the
OSCP practice.
8. Under the 2004 Pledge, Dr. Shaer promised to practice in the Commonwealth of
Pennsylvania through December 31, 2005.
9. Under the 2005 Pledge, Dr. Shaer promised to practice in the Commonwealth of
Pennsylvania through December 31, 2006.
10. As a result of signing both Pledges, the Pennsylvania Department of Insurance,
Medical Care Availability and Reduction of Error Fund (MCARE) abated, or reduced, the
MCARE assessment which is charged to certain practicing physicians in the Commonwealth of
Pennsylvania. This had the effect of reducing Dr. Shaer's medical malpractice insurance
premiums.
11. By signing the Pledge, Dr. Shaer's medical malpractice premiums were reduced
by $14,303 in the year 2004, and $1,142 in 2005.
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12. As the contractually-obligated payor of Dr. Shaer's malpractice premiums, OSCP
did not have to pay a two-year total of $15,445 in medical malpractice premiums.
13. OSCP realized the benefit of Dr. Shaer's having signed the Pledges by saving
amounts that it would have otherwise had to pay for Dr. Shaer's malpractice insurance had he
not signed the Pledge.
14. Following his departure from OSCP, in April of 2005 Dr. Shaer began work in
Youngstown, Ohio at St. Elizabeth Healthcare Center.
15. In June and July of 2006, MCARE sent notices to Dr. Shaer requesting payment
of the abatement amounts for the years 2004 and 2005, respectively.
16. This was due to Dr. Shaer practicing in Youngstown, Ohio. The abatement
repayment notices are attached hereto as Exhibit C and incorporated by reference as if set out in
full.
17. Dr. Shaer forwarded the repayment notices to OSCP for payment, since OSCP
was contractually obligated to pay his malpractice premiums. OSCP refused to pay them.
18. Dr. Shaer, thus, paid MCARE the $15,445 abatement amounts requested in the
notices.
19. Failure to pay these amounts would have resulted in Dr. Shaer losing his license
to practice medicine in the Commonwealth of Pennsylvania.
20. OSCP benefited as a result of Dr. Shaer signing the Pledges by having to pay
$15,445 less than it would have paid had Dr. Shaer not signed the Pledges.
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COUNT I - BREACH OF CONTRACT v. OSCP
21. The averments contained in paragraphs 1-20, above, are incorporated by reference
as if set out in full.
22. OSCP had the contractual duty to pay all of Dr. Shaer's medical malpractice
insurance premiums for the years 2004 and 2005.
23. OSCP benefited, as a practice, in the amount of $15,445 by Dr. Shaer, at OSCP's
request, signing the Pledges.
24. Dr. Shaer was under no contractual or legal obligation to pay medical malpractice
premiums for the 2004/2005 time periods.
25. Dr. Shaer has performed under the 2004 and 2005 Agreements.
26. Dr. Shaer has made demand of OSCP to pay the amounts at issue, to no avail.
27. OSCP has breached its contract with Dr. Shaer by failing to pay medical
malpractice insurance premiums, pursuant to the 2004 and 2005 Agreements.
WHEREFORE, it is respectfully requested that this Court enter judgment in favor of Dr.
James A. Shaer, and against OSCP, for an amount under $35,000.00, the arbitration limit in
Cumberland County, together with all costs of court and all other remedies this Court deems just
and proper.
COUNT II - VIOLATION OF THE PENNSYLVANIA
WAGE PAYMENT AND COLLECTION LAW
28. The averments contained in paragraphs 1-27, above, are incorporated by reference
as if set out in full.
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29. OSCP's failure to pay Dr. Shaer's medical malpractice premiums, per the 2004
and 2005 Agreements, are a failure to pay wages and benefits as defined by Pennsylvania's
Wage Payment and Collection Law (WPCL).
30. Payments of malpractice premiums are considered "wages" and "benefits" under
the WPCL.
31. The abatements which Dr. Shaer was required to repay were accrued during a
time when Dr. Shaer was employed at OSCP, and are benefits which he earned pursuant to the
2004 and 2005 Agreements.
32. Dr. Shaer is entitled to the remedies under 43 P.S. §260.9a, including all costs of
suit, attorneys' fees and statutory liquidated damages (43 P.S. §260.10), as defined by the
WPCL.
WHEREFORE, Dr. Shaer, demands judgment against OSCP in an amount less than
$35,000.00, the arbitration limit in Cumberland County, together with attorney's fees (which are
mandated under Section 260.9a(f) of the Wage Payment and Collection Law), statutory
liquidated damages, interest, and all other remedies this Court deems just and proper.
Respectfully Submitted,
GOLDB RG KATZMAN, P.C.
By:
even E. Grubb, Esquire (I .D. #75897)
320 Market Street, P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney for Plaintiff
Date: October v?? 2006
140426.1
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This amended and restated employment agreement made this 1st day of January, 2004,
between Orthopaedic Surgeons of Central Pennsylvania, Ltd., a Pennsylvania professional
corporation, having its principal office at 99 November Drive, Camp Hill, Pennsylvania 17011
(the "Corporation'), and James A. Shaer, M.D., (the "Employee").
WITNESSETH:
WHEREAS, the Corporation is engaged the practice of orthopaedic medicine; and
WHEREAS, the Employee is duly licensed to practice the profession of medicine in
Pennsylvania; and
WHEREAS, this Agreement amends and restates the Employment and Non-Competition
Agreement dated August, 2002; and
WHEREAS, the Corporation wishes to employ the Employee and assure itself of the
availability of the Employee's services and of reasonable protection against the Employee's
competing against the Corporation, and the Employee is willing to give such assurances in
connection with such employment by the Corporation and the willingness of the Corporation to
make valuable benefits available hereafter to the Employee.
WHEREAS, as part of the inducement to the Employee to become an employed
physician with the Corporation, the Board of Directors (`Board") of the Corporation may, at its
option, following July 1, 2004 of such employment under this Agreement and absent prior
termination of this Agreement by either party, consider the Employee for shareholder status in
the Corporation on terms equal to those of the then-existing shareholders of the Corporation.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
intending to be legally bound, the Corporation hereby agrees to employ the Employee, and the
Employee hereby agrees to be employed by the Corporation, upon the following terms and
conditions:
1. TERM. The term of this Agreement shall be for six (6) months commencing on
January 1, 2004, unless sooner terminated as provided hereinafter. Either parry may terminate
this Agreement at the end of the Term by providing the other parry with ninety (90) days' prior
written notice. Absent such notice, this Agreement shall automatically renew for an additional
six (6) months on the same terms and conditions as herein provided.
2. COMPENSATION. For the services to be rendered by the Employee, the
Corporation agrees to pay the Employee an annual salary of $240,000.00. The Employee's
salary shall be paid every two (2) weeks. The Employee authorizes the Corporation to withhold
from his compensation any taxes, deductions or other sums which the Corporation may be
required by law to so withhold.
The Corporation has the option, at the end of this six (6) month term to adjust
Employee's salary based upon Employee's performance.
In addition to the compensation and benefits set forth herein, Employee shall be eligible
to earn a productivity bonus (the `Bonus'). In the event that Employee's (A) actual net patient
revenue collection exceeds (B) the cost of the Employee's compensation, benefits, and Costs as
set forth in this Agreement, Employee shall be eligible to earn a Bonus equal to fifty (50%) of
the difference between (A) and (B). For purposes of this Agreement, Employee's "Costs" shall
include Employee's salary, all employee's direct costs and all Corporate overhead expenses
currently paid by the current shareholders. Corporation shall pay Employee the Bonus no later
than thirty (30) days after the expiration of the Initial or Renewal Term.
3. BENEFITS. The Employee shall be a participant in the various employee
pension, profit sharing, and health insurance plans established and maintained by the Corporation
from time to time for other physician employees of the Corporation, subject to participation
requirements and other terms and conditions of each such plan as they may exist from time to
time. The costs to the Corporation of all such benefits extended to the Employee as well as the
cost of malpractice insurance under Paragraph 5, the expenses paid under Paragraphs 6 and 8,
dues under Paragraph 10, the cost of an additional secretary by the Corporation for the Employee
under Paragraph 7 and the cost of additional office space rental for the Employee shall be
considered the expenses of the Employee's practice for the calculations set forth at Paragraph 18.
4. NON-COMPETITION. In consideration of, among other things, the
compensation and benefits to be paid by the Corporation to the Employee pursuant to this
Agreement, and except as specifically set forth in Paragraph 18, during the Initial and Renewal
Terms of this Agreement and for a period of two (2) years after termination of employment
without cause or for any reason under the provisions of Paragraphs 16 and 18, (the "Noncompete
Period"), the Employee shall not (i) engage in the practice of orthopaedic medicine, to include
any professional activity usually associated with the practice of orthopaedics, within a thirty (30)
mile radius of the dome of the State Capital building in Harrisburg, Pennsylvania; (ii) use any
information obtained in the course of the Employee's employment by the Corporation for the
purpose of notifying patients of the Corporation of the termination of such employment, except
as required by the professional licensure requirements of Pennsylvania law as to such notice, or
of the Employee's willingness to provide medical services after such termination; (iii) otherwise
solicit any person who is, or at any time during the term of the Employee's employment
hereunder was, a patient of the Corporation for the purpose of requesting or inducing such person
to obtain health care services from the Employee; or (iv) solicit or induce, or attempt to solicit or
induce, any employee of the Corporation to terminate such employment for any reason
whatsoever or hire any employee of the Corporation. The period of restriction set forth in this
Paragraph 4 shall be extended to include any period of: (i) any breach by the Employee of any
of the terms hereof; or (ii) any litigation involving the Employee and the Corporation with
respect to any of the provisions hereof (whether by the Employee seeking relief from the terms
hereof or by the Corporation seeking to enforce the terms hereof or otherwise). As to any notice
which may be required to patients of the Employee and/or the Corporation at the time of
termination, the Corporation shall develop a notice as to such termination in consultation with
the Employee and consistent with applicable law.
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5. MALPRACTICE INSURANCE. The Corporation shall, at its expense, carry or
provide for professional liability insurance covering the Employee against malpractice, in such
primary amounts and with such excess limits coverage as the Corporation provides for its
physician employees, in accordance with applicable Pennsylvania law.
6. VACATION AND CONTINUING EDUCATION. The Employee shall be
entitled to two (2) weeks of time off with pay during the Initial and Renewal Terms, or such
greater period time as may be approved from time to time by the Board, to be used in the
Employee's discretion for vacation, and an additional one (1) week of time off with pay during
the Initial and Renewal Terms for continuing education as required by Subparagraph 9(e)(vii).
The specific dates of the Employee's time-off shall be mutually agreed upon by the Employee
and the Corporation and shall not include any holidays established by the Corporation. Up to
five (5) vacation days unused at the end of each year of the Initial or Renewal Terms may be
carded over and used in the any subsequent employment year; however, the Employee shall not
be entitled to any compensation for unused vacation days. Attendance at medical conventions or
seminars shall be scheduled in advance with, and approved by the Board. The Corporation
agrees to pay the Employee's reasonable actual expenses for attendance at such professional
meetings or such post graduate seminars evidenced by invoices, vouchers, or such other
documentation as required by the Corporation not to exceed $2500 during each year of the Initial
and Renewal Terms.
7. OFFICE SPACE SUPPLIES AND SUPPORT SERVICES. The Corporation
shall provide reasonable office space for the Employee's use in performing professional services
and shall pay all reasonable expenses in connection therewith, including, without limitation, the
cost of supplies, medicines, equipment and the services of nurses and secretaries as are
reasonably necessary in the judgment of the Corporation for the performance by the Employee of
the Employee's duties under this Agreement. Except for secretarial costs and additional office
space rental for the Employee, such costs enumerated in this Paragraph 7 shall not be included in
any calculations under Paragraph 18.
8. EXPENSE REIMBURSEMENT. The Employee shall be entitled to be
reimbursed by the Corporation for reasonable expenses incurred by the Employee in the
fintherance of the Corporation's business, as the Corporation may, in its sole discretion,
determine to be reimbursable expenses. For any expense to be reimbursable, the Employee shall
be required to maintain such records and account to the Corporation in such manner as may be
required under the current provisions of the Internal Revenue Code and any regulations adopted
thereunder.
9. EMPLOYEE SERVICES.
(a) The Employee agrees to (i) comply with the medical
philosophies and policies of treatment and patient care, as
well as all operational and administrative policies,
established from time to time by the Corporation; (ii) to
follow and carry out in a diligent manner the instructions
and duties as assigned by the Corporation; and (iii) to
behave in an ethical, moral and professional manner.
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(b) Without limiting the generality of the foregoing Subparagraph 9(a), the
Corporation shall have:
(i) final authority as to the acceptance of or refusal to accept any
patient, and the fee to be charged to and accepted from any patient for professional or other
services;
(ii) the right to allocate and assign patients among its physician-
employees, including the Employee, with due regard to the preferences of the Employee and the
specialties, skills and comparative workloads of the Employee and the Corporation's other
physician-employees;
(iii) the right to determine the days and hours when its physician-
employees, including the Employee, shall perform their duties, including assignment and
availability for emergency patient calls in the evening and night hours and on weekends and
holidays, according to an equitable schedule established by the Corporation and provided that the
Employee shall have a comparable workload to other active physicians employed by the
Corporation recognizing that any Reduced Status Employee will assume a lesser workload and
unless a greater workload for the Employee is mutually agreed upon by the Employee and the
Corporation.
(iv) the right to assign and reassign its physician-employees, including
the Employee, to one or more practice locations where patients are to be diagnosed and treated
and other services are to be rendered; and
(v) the right to determine whether or not its physician-employees,
including the Employee, shall be participate in any governmental or third-party payor program or
managed health care programs or systems relating to the services to be provided by the
Corporation or its physician-employees, including the Employee. Notwithstanding the
foregoing, without the Employee's consent, the Employee shall not be required to render
services or perform duties hereunder which are not reasonably consistent with the Employee's
skill and education and which are customary for the Employee's position as a physician-
employee of the Corporation, and no duties or constraints of any kind shall be imposed upon the
Employee which would require the Employee to violate the ethics of the medical profession or
any law or regulation.
(c) During the Initial and Renewal Terms of this Agreement, the Employee
shall devote his full time, attention and efforts to the practice of medicine specializing in
orthopaedic surgery with and under the direction of the Corporation and shall not be directly or
indirectly involved in any other medical practice or any other occupation without the prior
written consent of the Corporation; provided, however, that, if the Employee remains employed
by the Corporation, upon reaching sixty (60) years of age the Employee mnay give the
Corporation written notice of the Employee's intention to practice on less than a full time basis,
including limiting the Employee's hours to be on call pursuant to the requirements of
Subparagraph 9(b)(iii) (such status hereinafter referred to as a "Reduced Status Employee"). The
number of hours worked by a Reduced Status Employee, the Reduced Status Employee's
compensation, and any reduction in the overhead allocation to a Reduced Status Employee, shall
be determined by the Corporation in its sole discretion.
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(d) All fees for the Employee's professional services shall be fixed, billed,
and collected by the Corporation. All such fees, accounts receivable and other remuneration
arising from professional services rendered by the Employee in accordance with this Agreement
shall be the property of the Corporation and are hereby assigned and shall be paid to and retained
by the Corporation except as otherwise provided in this Agreement.
(e) At all times during the Initial and Renewal Terms of and as a condition of
his employment hereunder, the Employee shall:
(i) maintain an unrestricted license to practice medicine in the
Commonwealth of Pennsylvania, maintain good standing with the Pennsylvania State Board of
Medicine and obtain and maintain board certification in orthopaedic medicine;
(ii) maintain a Federal DEA number without restrictions;
(iii) obtain and maintain hospital and other appropriate health care
facility medical staff membership and clinical privileges as determined by the Corporation;
(iv) obtain and maintain approved status in all managed health care
networks and delivery systems in which the Corporation participates;
(v) maintain good reputation and standing in the community;
(vi) maintain eligibility for insurance under the professional liability
policy or policies covering the Corporation; and
(vii) obtain annually the continuing medical education credits required
to maintain the Employee's license to practice medicine in the Commonwealth of Pennsylvania,
medical staff privileges required hereunder, and board certification.
10. PROFESSIONAL ASSOCIATIONS. The Employee shall apply to and become a
member of those professional associations designated by the Corporation and shall continue such
memberships during the Initial and Renewal Terms of this Agreement unless otherwise permitted
or directed by the Corporation. The Employee may also join any other society or association
which further enhances the Employee's skill or clinical competence. The annual dues for any
such membership shall be paid by the Corporation. The Employee shall be allowed reasonable
leave time with pay, as determined by the Corporation in its sole discretion, to perform his duties
as an elected or appointed officer or representative of a medical organization or society, if
necessary for conducting the official business of the organization or society. Any such leave
shall be in addition to the vacation and continuing education leave allowed hereunder by the
provisions of Paragraph 6.
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11. DISABILITY. If the Employee is disabled by reason of illness, accident, or other
cause beyond his control such that the Employee is completely unable to perform the substantial
and material duties of the practice of orthopaedic medicine on a regular, continuing and
sustained basis (a "Complete Disability"), he shall receive his full monthly salary and benefits
during the first three (3) months of such Complete Disability. If such Complete Disability
extends beyond three (3) months, no additional compensation will be paid except as provided in
Subparagraph 16(d). The Corporation may require that prior to any payment of continuing
compensation hereunder for a Complete Disability an evaluation of the disability or incapacity,
and the expected duration thereof, be determined and certified by the Employee's attending
physician. Any dispute as to such disability shall be settled by submitting said dispute to binding
arbitration before an arbitrator selected by the American Arbitration Association.
12. RECORDS. The Employee shall keep complete, full and accurate medial records
of all services performed by him r the Corporation's patients. The Employee shall also
complete within required time periods any reports, forms, medical records, discharge summaries
or other instruments and otherwise perform any other acts which may be necessary for
maintenance of staff privileges as required under Subparagraph 9(e) hereof, and also timely
complete any reports, forms, medical records, discharge summaries or other instruments and
otherwise perform any other acts which may be necessary to collect fees for his services by the
Corporation within one week of the rendering of the services unless otherwise extended by the
Corporation based on vacation or other unusual circumstances.
13. PATIENT LISTS AND FILES. Persons treated by the Employee under this
Agreement shall be considered patients of the Corporation. The Employee shall not be deemed
to have any personal contractual relationship with such persons. All files, records and
documents pertaining to clients or patients of the Corporation or to professional services
rendered by the Employee and all business and medical records pertaining to such services shall
belong to and remain the property of the Corporation.
14. CONFIDENTIAL INFORMATION.
(a) The Employee recognizes and acknowledges that, in the course of the
Employee's employment by the Corporation, the Employee will acquire information concerning
the Corporation which is confidential or proprietary and the disclosure of which would cause
irreparable injury to the Corporation and would impair its good will and competitive position.
The Employee shall keep confidential, and shall not disclose to any person not employed by the
Corporation unless authorized to do so by the Corporation or unless otherwise required by law or
by medical ethics, all information which is not in the public domain, including, without
limitation, information concerning the assets, liabilities, operations, marketing plans or
strategies, pension or other benefit plans, revenues, expenses and/or prospects or other business
or financial information of the Corporation (collectively the "Confidential Information").
(b) Upon the termination of the Employee's employment hereunder,
regardless of the reason for such termination, the Employee promptly shall deliver to the
Corporation, without the necessity of demand being made therefor, all originals and copies of
documents, written materials, records, photographs and other tangible objects, and all
computerized information, constituting or containing Confidential Information
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15. INJUNCTIVE AND OTHER RELIEF: LIQUIDATED DAMAGES.
(a) In the event of a breach by the Employee of the terms of this Agreement,
the Corporation shall be entitled, if it shall so elect, to institute legal proceedings to obtain
damages for any such breach, or to enforce the specific performance of this Agreement by the
Employee and to enjoin the Employee from any further violation of this Agreement and to
exercise such remedies cumulatively or in conjunction with all other rights and remedies
provided by law. The Employee acknowledges that it would cause the Corporation serious and
irreparable injury and cost if the Employee were to breach any of the obligations contained in
Paragraph 14 hereof. The Employee further acknowledges that the remedies at law for any
breach by the Employee of the provisions of the Agreement may be inadequate as to any
violation of the obligations contained in Paragraph 14, and that the Corporation or any member
of the Corporation shall be entitled to injunctive relief against the Employee in the event of any
breach of Paragraph 14, whether or not the Corporation may be entitled to recover damages
hereunder as to such breach.
(b) When either the Corporation or the Employee prevails in a proceeding for
civil damages or injunctive relief related to (i) the Employee's breach of the obligations provided
in Paragraph 14 hereof, or (ii) the Employee's termination for cause for breach of the provisions
of Paragraph 16 hereof, the parties agree that the prevailing party, in addition to any other relief
to which it may be entitled, shall be entitled to reimbursement from the other party for
reasonable attorney's fees, costs and the expenses of litigation incurred by the prevailing party in
securing the relief granted by the court.
(c) The obligations created by Paragraph 14 and the provisions of Paragraph
15 shall continue after any termination of the employment of the Employee by the Corporation,
regardless of the reason for such termination.
16. TERMINATION.
(a) This Agreement may be terminated by either party without cause by
providing at least ninety (90) days prior written notice of the party's intent to terminate. If this
Agreement is terminated pursuant to this Paragraph 16(a) during the Initial Term, the parties
shall not enter into a new contract with each other for the same services until the expiration of
the Initial Term If the Corporation terminates this Agreement pursuant to this Paragraph 16(a),
the Corporation shall reimburse the Employee for his reasonable moving expenses. For such
moving expenses to be reimbursable, the Employee must submit to the Corporation the actual
receipts for such expenses. In no event shall the Corporation's obligations to pay such moving
expenses exceed $10,000.00.
(b) This Agreement may be terminated by the Corporation at any time upon
thirty (30) days prior written notice, based upon a determination by the Corporation of the
Employee's dishonesty, disloyalty, refusal or inability to perform the Employee's duties
hereunder in good faith and to the best of the Employee's ability, or for any other material breach
of this Agreement by the Employee. However, if the Corporation determines that during the
thirty (30) day notice period for termination, the Employee's dishonesty, disloyalty, refusal or
inability to perform his duties hereunder or the Employee's material breach of this Agreement
shall negatively affect the business of the Corporation, the Employee may be terminated
7
immediately upon a majority vote of the Board of Directors of the Corporation, which vote shall
exclude the Employee who shall not participate if he is a member of the Corporation's Board of
Directors.
(c) This Agreement shall terminate upon the death of the Employee.
(d) This Agreement may also be terminated immediately by the Corporation
in its sole discretion upon the (i) loss by the Employee of his license to practice medicine in the
Common,ATea.lth of Pennsylvania, (ii) loss by the Employee of medical staff privileges at a
hospital where the Corporation's physicians regularly provide services for the Corporation
hereof; (iii) loss of unrestricted professional liability coverage, (iv) the Employee's Complete
Disability for a period in excess of three (3) months; provided, however, that if the Employee is
able to perform some of his professional functions contemplated by this Agreement, the
Employee may request that the Corporation permit the Employee to continue his employment as
a Reduced Status Employee which request with appropriate reduction in compensation may be
approved or disapproved by the Board in its sole discretion, or (v) Employee's refusal to accept
an offer of shareholder status from the Corporation.
(e) Upon termination of the Employee's employment hereunder for any
reason, the Employee shall reimburse the Corporation for any unearned prepaid expenses or
compensation paid by the Corporation to the Employee within fifteen (15) days after demand by
the Corporation for such reimbursement. Prepaid expenses shall include all items paid in
advance by the Corporation on behalf of the Employee, including employee benefit premiums
(such as any professional liability, health, life and disability insurance premiums). Upon failure
to so reimburse within such fifteen (15) day period, the Corporation shall deduct such amount
from any payments otherwise due to the Employee under Paragraph 17.
17. COMPENSATION CONTINUATION. Following termination of employment
hereunder, and subject to the Corporation's right to offset any amounts owed by the Employee to
the Corporation as set forth in Paragraph 16, there shall be paid to the Employee or his estate as
the case may be:
G) Accrued compensation to date of termination.
(ii) Payment of Bonus described in Paragraph 2 above, if any.
18. ACQUISITION OF SHAREHOLDER STATUS IN THE CORPORATION.
Absent prior termination by either party, at the conclusion of either six (6) month term of
employment under this Agreement, the Corporation shall consider offering the Employee the
opportunity to become a shareholder of the Corporation of equal status to the then-existing
shareholders of the Corporation. If shareholder status is offered to the Employee to commence at
the conclusion of this one (1) year period, the acquisition of such equal shareholder status shall
be conditioned upon the payment by the Employee of a purchase price of $30,000 (post-tax).
Payment to the Corporation may be in a lump sum or, upon timely request of the Employee, the
Corporation will allow payment on a mutually agreeable payment schedule over a reasonable
time period consistent with the amount of such obligation, with such payment obligations to
include simple interest at the rate of prime plus two percent (2%) on the unpaid balance. The
Corporation shall make available to the Employee accounting reports as to such professional
revenues and personal expenses on at least a quarterly basis. If the Corporation (a) declines to
offer shareholder status to the Employee at the conclusion of the one (1) year period, or (b) offers
such shareholder status and the Employee declines the offer of shareholder status, then the
Corporation shall have the option to terminate this Agreement pursuant to Paragraphs 16(a) or
(d), respectively, and, in either event, the restriction as to the Noncompete Period set forth at
Paragraph 4 shall apply.
If the shareholders of the Corporation intend to sell the Corporation before the
Corporation has offered the Employee the opportunity to become a shareholder, the Corporation
shall first offer the Employee the option to become a shareholder of equal status to the then-
existing shareholders of the Corporation. In such event, the acquisition of such equal
shareholder status shall be conditioned upon the payment by the Employee of all of the
following: (a) $30,000 (post-tax); (b) any deficiency between actual revenues generated by the
Employee daring the Employee's then-current employment term and the Employee's Costs
during such then-current employment term; and (c) the Employee's pro rata share of the
partnership expenses, which total expenses shall be divided among the shareholders in the
Corporation. The Corporation, at its sole discretion, may allow the Employee to pay the costs
listed in (b) and (c) above from the Employee's portion of the proceeds of the sale of the
Corporation.
19. NOTICES. All notices, requests, consents and other communications which may
be or are required to be given under or with respect to this Agreement shall be in writing, shall be
given either by personal delivery (including overnight courier) or by mail, facsimile transmission
or similar means of communication, and shall be deemed to have been given or made when
personally delivered, and otherwise when received, addressed to the respective parties as
follows:
(a) If to the Corporation:
Orthopaedic Surgeons of Central Pennsylvania, Ltd.
99 November Drive
Camp Hill, PA 17011
Fax: (717) 761-6860
With a copy to:
Jonathan Vipond, III
Buchanan Ingersoll
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17101
Fax: (717) 233-0852
9
or to such other address as the Corporation may from time to time designate by advance written
notice to the Employee respect to future notices and other communications to the Corporation.
(b) If to the Employee:
James A. Shaer, M.D.
1015 Fairdell Drive
Hummelstown, PA 17036
or to such other address as the Employee may from time to time designate by advance written
notice to the Corporation with respect to future notices and other communications to the
Employee.
20. BINDING EFFECT. This Agreement shall be binding upon the respective heirs,
successors, assigns, executors and administrators of the parties.
21. SEVERABILITY. The invalidity of unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
22. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving effect to any
choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or
any other jurisdiction) that would cause the application of the laws of any jurisdiction other than
the Commonwealth of Pennsylvania.
23. AMENDMENTS, WAIVERS, ETC. No amendment of any provision of this
Agreement, and no postponement or waiver of any such provision or of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall
be valid unless such amendment, postponement or waiver is in writing and signed by or on
behalf of the Corporation and the Employee. No such amendment, postponement or waiver shall
be deemed to extend to any prior or subsequent matter, whether or not similar to the subject-
matter of such amendment, postponement or waiver.
24. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto and supersedes any prior written or oral agreements between them
respecting the same subject matter. There are no representations, agreements, arrangements or
understandings, oral or written, between and among the parties hereto relating to the subject
matter of this Agreement which are not fully expressed herein.
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
ATTEST:
ecretary
WITNESS:
C.. •/•...i I
f
ORTHOPAEDIC SURGEONS OF CENTRAL
PENNSYLVANIA, LTD.
By: - - --- ZK-roe-? -
rC717r . Fultz. M.D., President
EMPLOYEE:
011
By.
11
A. Shaer, M.D.
it?X?V?ef
1 73
t? tt?1 ?? `t?t ?•??
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This amended and restated employment agreement ("Agreement's made this 1 st day of
January, 2005, between Orthopaedic Surgeons of Central Pennsylvania, Ltd., a Pennsylvania
professional corporation, having its principal office at 99 November Drive, Camp Hill,
Pennsylvania 17011 (the "Corporation"), and James A. Shaer, AD., (the "Employee").
WITNESSETS_:
WHEREAS, the Corporation is engaged the practice of orthopaedic medicine; and
WHEREAS, the Employee is duly licensed to practice the profession of medicine in
Pennsylvania.; and
WHEREAS, this Agreement amends, restates and supercedes the Employment and Non-
Competition Agreement dated January 1, 2004; and
WHEREAS, the Corporation wishes to continue to employ the Employee and assure
itself of the availability of the Employee's services and of reasonable protection against the
Employee's competing against the Corporation, and the Employee is willing to continue to give
such assurances in connection with such employment by the Corporation and the willingness of
the Corporation to make valuable benefits available hereafter to the Employee.
WHEREAS, as part of the inducement to the Employee to. become an employed
physician with the Corporation, the Board of Directors (`Board") of the Corporation may, at its
option pursuant to the terms of this Agreement and absent prior termination of this Agreement by
either party, consider the Employee for shareholder status in the Corporation on terms equal to
those of the then-existing shareholders of the Corporation.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
intending to be legally bound, the Corporation hereby agrees to employ the Employee, and the
Employee hereby agrees to be employed by the Corporation, upon the following terms and
conditions:
1. TERM. This Agreement shall commence on January 1, 2005 and shall expire on
December 31, 2005 (the "Term)", unless sooner terminated as provided in Section 16 of this
Agreement. The parties shall begin discussions in October 2005 regarding renegotiation of this
Agreement for the 2006 contract year.
2. COMPENSATION.
A. Base Sa1azv. For the services to be rendered by the Employee, the
Corporation agrees to pay the Employee an annual salary of 1180,000.00 ("Base Sal?;r'),
payable is accordance -9?i-h the Corporation's paxToL1 polies. whin, at the present time, provides
for 26 equal instaliments of 17,500.00. The Employee authorizes the Corporation to withhold
mom his compensation any taxes, deductions or other sums which the Corporation may be
required by law to so withhold.
B. Monthly Productivity Bonus. In addition to the Base Salary and benefits
herein, Employee shall be eligible to earn a monthly productivity bonus (the "Monthly
if any, between (i) the Employee's Collections for the
set forth positive difference,
Bonus") equal to the
previous -month and (iii) the costs of the Employee's Base Salary pursuant to Section 2.A-,
benefits pursuant to Section 3, malpractice insurance pursuant to Section 4, continuing
education expenses pursuant to Section 5, costs of office space, supplies and support services
pursuant to Section 6, expense reimbursement pursuant to Section 7 and annual dues and
', up to a maximum of
membership fees pursuant to Section 9,. (collectively, "Total Costs ds and $3,000.00 in any month. To the extent that retain de1eIIX ebe?? (1 a net excess f exceeund such $3,000.00 in any given month, Corporation s To
to be potentially distnbuted on a quarterly basis pursuant to Section 2.C of this Agreement.
the extent that the Employee's Total Costs exceed the Employee's Collections, the Corporation
shall carry over such negative amount and apply it against the next month's Monthly Bonus
Agreement, Employees
calculations as a negative net excess amount. For purposes of this
rment which were
"Collections" shall include the net payment receipts collected by the generated by the Employee during the previous month, as well as the Employee's share of the
shared income formula calculated by the Corporation each month, the form of which formula is
attached hereto at Schedule Z.B. For purposes of this Agreement, Employee's "Total Costs"
shall include Employee's salary, all employee's direct costs and one fourth (1/4th) of all
corporate overhead expenses currently paid by the current shareholders, calculated in the same
manner as the 2004 Monthly Shared Income Reports distributed by the Corporation.
C. pua*erly Bonus. To the extent the Corporation has retained any surplus
Bonus amounts in its net excess fund at the end of any quarter, the Corporation may
of Monthly
pay such surplus amount to the Employee as an additional quarterly
unts over $6 00(the Q the net
Bonus', up to a maximum of $6,000.00 per quarter. ? lqThe Corporation shall take into
Bonus.
access account shall be applied to the next Quarterly
account all accounts receivable from November 2002 through December 31, 2004 as part of the
Employee's future revenues for purposes of calculating income.
D. Total Compensation, Employee's total compensation shall be comprised
of his Base Salary, Monthly Bonus and Quarterly Bonus (collectively, "Total Compensation"). Notwithstanding the above, in no event shall Employee's Total Compensation ation exceed
net revenue generated by the Employee
$240,000.00 for the Term. Any would on exceed
r. '? .
$240,000.00 shall be retained by the Corporation and shall be distnbuted among the then
existing Shareholders of the Corporation, based on the Corporation's Shareholder Agreement.
E, Adjustment of Condensation. The Corporation has the option, at the
months of the Term to adjust Employee's salary based upon
expiration of the first six (6)
Employee's performance and productivity.
3. BENEFITS. The Employee shall be a participant in the vatious employee
pension, profit sharing, and health inn Trance plans established and maintained by the Corporation
from time to time for other physician employees of the Corporation, subject to par-ticipation
requirements and other tarrs and conditions of each such plan as they may exist from time to
time. The costs to the Corporation of all such benefits shall be included in the Corporation's
calculation of the Employee's Total Costs pursuant to Section 23.
4 MALPRACTICE INSURANCE. The Corporation shall, at its expense, carry or
coverin the Employee against malpractice, in such
provide for professional liability insurance g
h such excess limits coverage as the Co
primary amounts and wit rporation provides
shall
with applicable Pennsylvania law. The Corporation
physician employees, in accordance
90) days in advance or as soon as the Corporation
notify the Employee by certified mad ninety ( The costs of such malpractice
has knowledge of any change to its malpractice insurance Policy. Employee's
insurance for the Employee shall be included ui the Corporation's calculation of the Total Costs pursuant to Section 2.B.
G EDUCATION. The Employee shall be
5. VACATION AND COQ Bement, or such
entitled to four (4) weeks of time off with pay during the Term of this 5-
greater period time as may be approved from time to time by the Board, to be used in the
Employee's discretion for vacation, and an additional one (1) week of time off with pay during
the Term for continuing education as required by Section 8.E.7. The specific dates of the
, a?? upon the Employee and the Corporation and
Employee some- off shall be mutually by moon. UP to five (5) vacation days
shall not include any holidays established by the Corporation*
a toYnt
unused at the end of the Term may be carried oven' ,and used in the any subsequent mp
year; however, the Employee shall not be entitled to any compensation for unused vacation days.
Attendance at medical conventions or seminars shall be scheduled
reasonable with, and ap ers for
by the Board. The Corporation agrees to pay the Employee's
attendance at such professional meetings or such post graduate seminars evidenced by invoices,
e cost o such
vouchers, or such other documentation as required bythe of the Corporation. Totalf Costs
expenses shall be included in the Corporations calculation
pursuant to Section 23.
6. OFFICE SPACE SUPPLIES AND SUPPORT SERVICES. The Corporation
for the Employee's use in performing Professional services
shall provide reasonable office space without limitation, the
and shall pay all reasonable expenses in connection therewith, including,
cost of supplies, medicines, equipment and the services of nurses and by the ?mepl Y? of
rely necessary in the judgment of the Corporation for the performance
the Employee's duties under this Agreement. The Employee's proportionate costs for the space
be included in the Corporation's calculation of
supplies and services under this Section 6 shall
the Employee's Total Costs pursuant to section 2.B.
7, EENSE gEIMBURSEMENT. The Employee shall be entitled to be
reimbursed by the Corporation for reasonable expenses incurred by in the its mpe oyee "a discretion,
furtherance of the Corporations business, as the Corporation may, i
determine to be' reimbursable expenses. The costs of such reimbursable expenses shall be
included in the Corporation's calculation of the Employee's Total. Costs pursuant to Section 2.B.
For any expense to be reimbursable, the Employee shall be required to maintain such records and
account to the Corporation in such manner as may be required under the current provisions of the
Internal Revenue Code and any regulations adopted thereunder.
g, EI?FLQ? ?E SER?rCES.
A- The Employee agrees to:
3
1 comply with the medical philosophies and policies of treatment
and patient care, as well as all operational and administrative policies, established from time to
time by the Corporation;
2. follow and carry out in a diligent manner the instructions and
duties as assigned by the corporation; and
3. behave in an ethical, moral and professional manner.
B. without limiting the generality of the foregoing Section 8.A, the
Corporation shall have: to accept any
final authority as to the acceptance of or rero asional o r other
professional
patient, and the fee to be charged to and accepted from an patient
services;
to allocate and assign patients among its physician-
2. the right
employees, including the Employee, with due regard to the preferences of the Employee and the
specialties, skills and comparative workloads of the Employee and the Corporation's other
physician employees;
3, the right to determine the days and hours when its physician
employees, including the Employee, shall perform their duties, including assignment and
for block time, office/patient hours and call schedule for any emergency patient calls
availability
in the evening and night hours and on weekends and holidays, according to an equitable schedule
established by the corporation and provided that the Employee shall have a comparable
workload to other active physicians employed by the Corporation recognizing that any Reduced
Status Employee as defined in Section 8.C. will assume a lesser workload and unless a greater
workload for the Employee is mutually agreed upon by the Employee and the corporation.
4 the right to assign and reassign its physician-employees, including
the Employee, to one or more practice locations where patients are to be diagnosed and treated
and other services are to be rendered; and
5. the right to determine whether or not its physician-employees,
including the Employee, shall participate in any governmental or third-parry payor program or
managed health care programs or systems relating to the services to be provided by the
Corporation or its physician-employees, including the Employee. Notwithstanding the
foregoing, without the Employee's consent, the Employee shall not be required to render
services or perform duties hereunder which are not reasonably consistent with the Employee's
skill and education and which are customary for the Employee's . position as a physician-
employee of the Corporation, and no duties or constraints of any kind shall be imposed upon the
Employee which would require the Employee to violate the ethics of the medical profession or
any law or regulation.
C. wring the Term of this Agreement, the Employee shall devote, his full
tim,-, attention and efforts to the practice of medicine specializing in or?hapaedic surgery with
and under the direction of the Corporation and shall not be directly or indirect]y involved in any
v?rritten consent of the
other medical practice or any other occupation without the-prior
4
Corporation; provided, however, that if the Employee remains employed by the Corporation,
>
upon reaching sixty (60) years of age the Employee may give the Corporation written notice of
the Employee's intention to practice on less than a full time basis, including limiting the
Employee's hours to be on call pursuant to the requirements of Section 8.B.3 '(such status
The number of hours worked by a
hereinafter referred to as a "Reduced Status Employee'.
Reduced Status Employee, the Reduced Status Employee's compensation, and any reduction in
the overhead allocation to a Reduced Status Employee, shall be determined by the Corporation in
its sole discretion.
D. All fees for the Employee's professional services shall be fixed, billed,
and collected by the Corporation. All such fees, accounts receivable and other remuneration
arising from professional services rendered by the Employee in accordance with this Agreement
shall be the property of the Corporation and are hereby assigned and shall be paid to and retained by the Corporation except as otherwise provided in this Agreement.
E At all times during the Term of and as a condition of his employment
hereunder, the Employee shall:
1. maintain an unrestricted license to practice medicine in the
with the Pennsylvania State Board of
Commonwealth of Pennsylvania, maintain good standing
Medicine and obtain and maintain board certification in orthopaedic medicine;
2. maintain a Federal DEA number without restrictions;
3. obtain and maintain hospital 'and other appropriate health care
facility medical staff membership and clinical privileges as determined by the Corporation;
4. obtain and maintain approved status in all managed health care
networks and delivery systems in which the Corporation participates;
5. maintain good reputation and standing in the community;
6. maintain eligibility for insurance under the professional liability
policy or policies covering the Corporation; and
7. obtain annually the continuing medical education credits required
to maintain the Employee's license to practice medicine in the Commonwealth of Pennsylvania,
medical staff privileges required hereunder, and board certification.
g. PROFESSIONAL ASSOCIATIONS. The Employee shall apply to and become a
member 'of those professional associations designated by the Corporation and shall continue such
memberships during the Term of this Agreement unless otherwise permitted or directed by the
Corporation. The Employee may also join any other society or association which further
enhances the Employee's skill or clinical campetence. The annual dues for any. sT.icl;
membership shall be paid by the Corporation, but the costs of such dues and membership fees
smell be included in the Corporation's calculation of the Employee's Total Costs pursuant to
Section 23. The Employee shall be allowed reasonable leave time with pay, as determined by
the Corporation in its sole discretion, to perform his duties as an elected or appointed officer or
representative of a medical organization or society, if necessary for conducting the official
5
business of the organization or society. Any such leave shall be in addition to the vacation and
continuing education leave allowed hereunder by the provisions of Section 5 of this Agreement.
10. DISABELITY. If the Employee is disabled by reason o illness, accident, or other
substantial
cause beyond his control such that the Employee is completely unable perform the
and material duties of the practice of orthopaedic medicine on a regular, corgi be and
sustained. basis (a "Complete Disability`% he shall receive his full monthly salary during the first three (3) months of such Complete Disability. If such Complete Disability
extends beyond three (3) months, no additional compensation will be paid except as provided in
Section 16.D. The Corporation may require that prior to any payment of continuing
compensation hereunder for a Complete Disability an evaluation of the disability or incapacity,
and the expected duration thereof, be determined be settled ? ? submitting said?ldisypute to binding
physician. Any dispute as to such disability
arbitration before an arbitrator selected by the American Arbitration Association.
11. RECORDS. The Employee shall keep complete, full and accurate medical
records of all services performed by him for the Corporation's patients. The Employee shall also
complete within required time periods an reports, fo e medical records?
which maybe necessary summaries
or other instruments and otherwise perform any lfor
maintenance of staff privileges as required under Section 8.E.3 hereof, and also timely complete
any reports, forms, medical records, discharge summaries or other instruments and otherwise
perform any other acts which may be necessary to collect fees for his services by the Corporation
within one week of the rendering of the services unless otherwise extended by the Corporation
based on vacation or other unusual circumstances.
12. PATIENT LI5TS AND FILES. Persons treated m?pEO the eEmployee under this
by deemed
Agreement shall be considered patients of the Corporation.
to have any personal contractual relationship with such persons. All files, records and
documents pertaining to clients or patients of the Corporation or to professional services
rendered by the Employee and all business and medical records pertaining to such services shall
belong to and remain the property of the Corporation.
13. NON-COMPETITION.
A. In consideration of, among other things, the compensation and benefits to
be paid by the Corporation to the Employee pursuant to this Agreement, during the Term of this
Agreement and for a period of two (2) years after termination of employment without cause or
for any reason under the provisions of Sections 16 and 17, (the "Noncompete Period', the
Employee shall not:
1. engage in the practice of orthopedic medicine, to include any
professional activity usually associated with the practice of orthopedics, within a thirty (30) mile
radius of the dome of the State Capital budding in Harrisburg, Pennsyh1 ani-;
2. use any information obtained in the course of the Employee's
emplo5ment by the Corporation for the purpose of nott ing patients of the Corporation of the
termination of such employment, except as required by the professional licersure requirements
of Pennsylvania law as to such notice, or of the Employee's willingness to provide medical
services after such termination;
6
3. otherwise solicit any person who is, or at any time during the term
of the Employee's employment hereunder was, a patient of the Corporation for the purpose of
requesting or inducing such person to obtain health care services from the Employee;
4. otherwise contact or solicit any company for which the
Corporation serves as a panel provider for Worker's Compensation cases for the purpose of
requesting or inducing such company to obtain health care services from the Employee; or
5. solicit or induce, or attempt to solicit or induce, any employee of
the Corporation to terminate such employment for any reason whatsoever or hire any employee
of the Corporation..
B. The period of restriction set forth in this Section 13 shall be extended to
include any period ofi
1. any breach by the Employee of any of the terms hereof, or
2. any litigation involving the Employee and the Corporation with
respect to any of the provisions hereof (whether by the Employee seeking relief from the terms
hereof or by the Corporation seeking to enforce the terms hereof or otherwise).
C. As to any notice which may be required to patients of the Employee
and/or the Corporation at the time of termination, the Corporation shall develop a notice as to
such termination in consultation with the Employee and consistent with applicable law.
14. CONFIDENTIAI, INFORMATION.
A. The Employee recognizes and acknowledges that, in the course of the
Employee's employment by the Corporation, the Employee will acquire information concerning
the Corporation which is confidential or proprietary and the disclosure of which would cause
irreparable injury to the Corporation and would impair its good will and competitive position.
The Employee shall keep confidential, and shall not disclose to any person not employed by the
Corporation unless authorized to do so by the Corporation or unless otherwise required bylaw law Or
by medical ethics, all information - which is not in the public domain, including, without
limitation, information concerning the assets, liabilities, operations, marketing plans or
strategies, pension or other benefit plans, revenues, expenses, and/or prospects or other business
or financial information of the Corporation (collectively the "Confidential Inforrnation'?.
B. Upon the termination of the Employee's employment hereunder,
regardless of the reason for such termination, the Employee promptly shall deliver to the
Corporation, without the necessity of demand being made therefor, all origin Objects, and copp es
and all
documents, written materials, records, photographs and other tangible
computerized information, constituting or coatainbig, Confidential formation
C. The Employ-- aarees to keep his Agreement and is term` and co-?f7tions
strictly confidential and shall not disclose such information to any person other than his attorney
unless otherwise agreed upon by the Corporation or as required by law. For purposes ofthis
Section 14, this Agreement shall also be considered Confidential Information.
7
15. IN3[JPTCTNE AND OTHER RELIEF• LIOUMATED DAMAGES.
A. In the event of a breach by the Employee of the terms of this Agreement,
the Corporation shall be entitled, if it shall so elect, to institute legal proceedings to obtain
damages for any such breach, or to enforce the specific performance of this Agreement by the
Employee and to enjoin the Employee from any further violation of this Agreement and to
exercise such remedies cumulatively or in conjunction with all other rights and remedies
provided by law. The Employee acknowledges that it would cause the Corporation serious and
irreparable injury and cost if the Employee were to breach any that then emedi s at law forr any
Sections 13 or 14 hereof The Employee further acknowledges may be inadequate as to any
breach by the Employee of the provisions of the Agreement
violation of the obligations contained in Sections 13 or 14, and that the Corporation or any the Employee in event
member of the Corporation shall be entitled to o mnotct the Corporates ionmaY be ntit ed t recover
of any breach of Sections 13 or 14, wh
damages hereunder as to such breach.
B. When either the Corporation or the Employee prevails in a proceeding for
civil damages or injunctive relief related to (i) the Employee's breach of the specific obligations
provided in Sections 13 or 14 hereof, or (ii) the Employee's termination for cause for breach of
the provisions of Sections 16 hereon; the parties agree that the prevailing party, in addition to any
other relief to which it may be entitled, shall be entitled to reimbursement from the other party
for reasonable attorney's fees, costs and the expenses of litigation incurred by the prevailing
party in securing the relief granted by the court.
C. The obligations created by Sections 13 and 14 and
the Employee by the
Section 15 shall continue after any termination employment
Corporation, regardless of the reason for such termination.
16. TERMNATTON.
A. This Agreement may be terminated by either party without cause by .
providin rior written notice (the "Notice Period") of the party's intent
g at least ninety (90) days p
to terminate. If this Agreement is terminated pursuant to this Section 16.A, the parties shall not
enter into a new contract with each other for the same services until the expiration of a full
calendar year from the commencement of the Term. If the Employee terminates this Agreement
pursuant to this Section 16.A, the following terms shall apply.
1. the Employee's eligibility for any Monthly Bonus or Quarterly
Bonus ends as of his last day of employment with the Corporation; and
2. the Corporation, in its sole discretion, may elect to terminate the
Employee's employment earlier than the expiration of the Notice Period if the Employee's
monthly productivity 'declines by. more than tv enty percent (24%) during the Notice Period or
the Employee othanc ise fails to meet the re3uiTe nts at Section 8 of this :reement. In such
event, the Corporation sha cease paying the Employee for any amounts under Section 2 of this
Agreement as of the date of the Corporation's termination Pursuant to this Section 16.A.2.
(a) In determining if the Employee's productivity has declined
by--more- than twenty- percent (2Q01o), thp. Corporation shah take into account any adjustments for
8
the number of work days in the month, Employee vacation days taken during the Notice Period,
contmuin medical education days taken during the Notice Period, or the number of patient
during the Notice Period. The employee may
office visits or surgeries allocated to the Employee
not take more than ten (10) vacation days during the ninety (90) day Notice Period
(b) Notwithstanding Section 16.A.2(a), the parties agree that
during the Notice Period, the Employee shall be responsible for completing all of the following:
(i) all scheduled office hours;
(ii) all scheduled surgeries; and
(iii) all scheduled on-call staffing.
(c) The Employee shall not be required to meet the
requirements of Section 16.A.2(b) above in the event of any of the following:
(i) a personal emergency;
surgeries;
(u) patient cancellations of scheduled appointments or
(iii) failure to receive medical clearances for a scheduled
surgery;
(iv) failure to receive pre-authorization from a patient's
insurance carrier for a scheduled surgery; and/or
(v) an act of God requiring the Corporation to close its
offices.
B. This Agreement may be terminated by the Corporation at any time upon
thirty (30) days prior written notice, based upon a determination by the Corporation of the
Employee's dishonesty, disloyalty, refusal or inability to perform the Employee's duties
hereunder in good faith and to the best of the Employee's ability, or for any other material breach
of this Agreement by the Employee. However, if the Corporation determines that during the
thirty (30) day notice period for termination, the Employee's dishonesty, disloyalty, refusal or
to perform his duties hereunder or the Employee's material breach of this Agreement
inability
shall negatively affect the business of the Corporation, the Employee may be terminated
s
immediately upon a majority vote of the Board of Directors of the Corporation, which vote shall
exclude the Employee who shall not participate if he is a meter of the Corporation's Board of
Directors.
C. TI is Agreement shall terminate upon the death of the Employee.
D. This Agreement may also be terminated imme-diately by the Corporation
in its sole discretion upon the:
9
1. loss by the Employee of his license to practice medicine in the
Commonwealth of Pennsylvania,
2. loss by the Employee of medical staff privileges at a hospital
where the Corporation's physicians regularly provide services for the Corporation hereof,
3. loss of unrestricted professional liability coverage,
4. the Employee's Complete Disability for a period in excess of three
(3) months; provided, however, that if the Employee is able to perform some of his professional
functions contemplated by this Agreement, the Employee may request that the Corporation
permit the Employee to continue his employment as a Reduced Status Employee which request
with an appropriate reduction in compensation may be approved or disapproved by the Board in
its sole discretion, or
5. Employee's refusal to accept an offer of shareholder status from
the Corporation.
E. Upon termination of the Employee's employment hereunder for any
reason, the Employee shall reimburse the Corporation for any unearned prepaid expenses or
compensation paid by the Corporation to the Employee within fifteen (15) days after demand by
the Corporation for such reimbursement. Prepaid expenses shall include all items paid in
advance by the Corporation on behalf of the Employee, including employee benefit premiums
(such as any professional liability, health, life and disability insurance premiums). Upon
to so reimburse within such fifteen (15) day period, the Corporation shall deduct such amount
from any payments otherwise due to the Employee under Section 2.
17. AC UISIT[ON OF SHAREHOLDER STATUS IN THE CORPORATION.
Absent prior termination by either party, at the 6 month anniversary of this Agreement and at the
conclusion of the Term of this Agreement, the Corporation shall consider offering the Employee
the opportunity to become a shareholder of the Corporation of equal status to the then-existing
shareholders of the Corporation. If shareholder status is offered to the Employee to commence at
the conclusion of these six (6) month periods, the acquisition of such equal shareholder status
shall be conditioned upon the payment by the Employee of a purchase price of $30,000 (post-
tax) to the Corporation- Payment to the Corporation may be in a lump sum or, up timely nt
request of the Employee, the Corporation will allow payment on a mutually agreeable payment
schedule over a reasonable time period consistent with the amount of such obligation, with such
payment obligations to include simple interest at the rate of prime plus two percent (2%) on the
unpaid balance. The Corporation shall make available to the Employee accounting reports as to
such professional revenues and personal expenses on at least a quarterly basis. If the
Corporation (a) declines to offer shareholder status to the Employee at the conclusion of the six
(6) month periods, or (b) offers such shareholder status and the Employee declines the offer of
shareholder status, then the Corporation shall have the option to termiaate this Agreement
pursuant to Sections 16.4 or D, respectively, and, in ei',.ber event, -he re,?r-ictiori as to he
Noncompete Period set forth at Section 13 shall apply.
18. NOTICES. All notices, requests, consents and other communications which may
be or are required to be given under or with respect to this Agreement shall be in writing, shall be
given either by personal delivery (including overnight courier) or by mail, facsinfle transmission
10
or similar means of communication,. and shall be deemed to have been given or made when
personally delivered, and otherwise when received, addressed to the respective parties as
follows:
If to the Corporation:
Orthopaedic Surgeons of Central Pennsylvania, Ltd.
99 November Drive
Camp Hill, PA 17011
Fax: (717) 761-6860
With a copy to:
Jonathan Vipond, III, Esquire
Buchanan Ingersoll
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17101
Fax: (717) 233-0852
or to such other address as the Corporation may from time to time designate by advance written
notice to the Employee respect to future notices and other communications to the Corporation.
If to the Employee:
James A. Shaer, M.D.
1015 Fairdell Drive
Hummelstown, PA 17036
or to such other address as the Employee may from time to time designate by advance written
notice to the Corporation with respect to future notices and other communications to the
Employee.
19. BINDING EFFECT. This Agreement shall be binding upon the respective heirs,
successors, assigns, executors and moors of the parties.
20. SEVERABILITY. The invalidity of unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
21. GOVERNING LAW.. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving effect to any
choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or
any other jurisdiction) that would cause the application of the laws of any iuris tction other than
the Common-svealth of Pennsylvania.
22. AI-,4ENDI?4ENTS WAIVERS, ETC. No amendment of any p=ovision of this
Agreement, and no postponement or waiver of any such provision or of any de ault,
misrepresentation, or breach of warranty or covenant hwreunder, whether inteational or not, shad
-- be- valid unless-such amendment', postponement or- waiver is in writing and signed by or on.
11
behalf of the Corporation and the Employee. No such amendment, postponement or waiver shall
be deemed to extend to any prior or subsequent matter, whether or not similar to the subject-
matter of such amendment, postponement or waiver.
23. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto and supersedes any prior written or oral agrments bet or
respecting the same subject matter. There are no representations, agreements,
sunderstandings, oral or written, between and among the parties hereto relating t the matter of this Agreement which are not fully expressed herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
ATTEST:
ORTHOPAEDIC SURGEONS OF CENTRAL
PENNSYLVANIA, LTD.
Secretary
By:
\W5 1'Vl fl?/g?,Fh ?i,los
0
Craig W. Fultz. M.D., President
EMPLOYEE:
By:
A. Shaer, M.D.
12
SCHEDULE 2.B
(Attach shared income formula format.]
13
RECYCLED
?xb?b?f G
Medical Care Availability and Reduction of Error Fund
PENNSYLVANIA WSURANCR D1PARTM NT
P.O. Box 12030
Harrisburg, PA 17108-2030
Abatement Repayment Invoice
James A Shaer
Saint Elizabeth Health C
Department of Orrhopaedi
1044 Belmont Avenue
Youngstown, OR 44501
Date of Notice June 9, 2006
License # MD420257
Amount Due $14,303.00
IWurer
Insurer's 2004 )Policy #
Mcar,6 Reference #
2004 Coverage Period
Ceased PA Services
Med Pro
681256
031-OC-04-04040
01/01/04 to 01101/05
January 1, 2005
Act 88 of 2005 continues the Abatement Program pursuant to which certain health care providers' Mare assessment werC climinated or reduce 4
This program requires repayment of the abatement ruxivcd in the year of the abatement as well as the following calendar year if n provider ceases
to be eligible or is found to have been inclipble for an abatement. One condition of the abatement is that the provider continues to practice in
Pennsylvania during the year of the abatempu and the following calendar year. This may include two eonsccU&e years for which you will receive
two separate invoices. In the event a health care provider ceases providing health cacti services in Pennsylvania prior to the end of the retention
period, the provider must repay to the Ware program the amounr of any abatement for which the provider is not eligible, plus any applicable
administrative and legal costs. Mcam's records Wieafe duff you plan to or have ceased providing health-care services in Pennsylvania prior to
December 31, 2005. The above reflects your coverage inform; ion on file at Ivlcare and is the basis for determining your abatement repayment
obligation. Please note, you may receive a separate invoice either for an abatement received in another calendar year, if applicable, or for
additional policies under which you received an abatement.
You are responsible for repayment of the abatement along With any applicable penalties that may accrue. The amount owed is a tax oblion
under Pennsylvania law and refusal or failure to repay the abatement to Maare within the time fume referenced herein may result gati
in additional
costs. Also. failure to pay the full amount due and owing may result in the loss of Mears coverage and referral to your medical licensing board for
aoneomptiance proceedings. While the applicable law requires the "pledging" health care provider y responsible for repayment, we
recognize there may be circumstance in which another entity is responsible for payment of this abatement, and suggest you provider any such entity
with a copy of this invoice so that entity repays this obligation.
To assure accurate processing of Your laymeAk please detach the coupon below and return k by the "pay by" dare along with a certified check
cashier's check or money order in the amount indicated in Ibis notice. A return envelope is provided for your convenience. If you believe you
am exempt from repayment, please see the reverse side of this form. If you have questions regarding the calculation of your repayment amount,
please contact Mere immediately at (717) 783-3770 extension 258. Completed Obligation forms may be faxed to (717) 783_7659. Thank you for
your prompt attention to this important matter.
r Mabc payment payable to "Office of Mare" w tD thG
Medical Care Availability and Reduction of Error Fund nxs or
This coupon must accompany payment All payments will be deposited upon receipt.
2004
License # MD-420257
Y PAY BY August 1, 2006 Meare Reference # o31-pGD4-04040
r? ktnoitnt Due $14,303.00 Coverage period 01/01/04 to 01101105
8 Ceased FA Services January 1, 2005
I, Provider's Telephone #
a ra James A Shaer
Saint Elizabeth Health C
x Department Of Orthopaedi
1044 Belmont Avenue
Youngstown, OH 44501 OVER
Abatement Repayment Invoice
.Tames A Shaer
Saint Elizabeth Health C
Department Of Orthopaedi
104413ehnont Avenue
Youngstown, OH 44501
Insurer Mod Pro
Date of Notice July-24, 2006 Mcame rer' Rseffereare policy # 691256
License # NID-420257 M nce # 031-OC-0S-01157
Amount Due SI,142.00 2005 Coverage Period
Ce 01/01/05 to 01131105
Ceased PA Services April 7,2005
Act 88 of 2005 continues the Abatement program pursuant to which cutain health care
This Proj', requires repayment of the abatement receive t
d in to the year rt the abatement as vid"S' he MOM inUo asscmnem were calendar eliminated or reduced.
to be eligible or is found to have been ineligible for an abatement One edition of the ab g year if a provider ceases
Pennsylvania during the year of the abatement and the folio. atement is
that the provider continues to practice in
two separate invoices. In the client a health care pr ? calendar year, n"s eaey inclnd2 two consecutive years for whidi you will receive
.der ceases providing health core services in Pennsylvania prior to the end of the repetition
period, the provider must repay to the Mcare propam the amount of any ab0temetit for hich p
administrative and legal costs. Mere's records indicate that you plan to or have
o:ased pwrovidingthehealthrovic is net eligible, plus nay applicable
December 31, 2006. The above reflects your cov
derare services in Pennsylvania. prior to
obligation 1'12006 n erage inforination on file at Mcare and is the basis for detcrr?aarg your abatement repayment
note, you may receive a separate invoice rather for an tibatemetit received in another calendar year, if applicable, or for
additional policies under which you received as abatement
You arc responsible for repayment of the abatement along with any applicable y
under Pennsylvania law and refusal or failure to repay the petislties that nay accrue. The amount owed is a tax obligation
costs. Also, fallen to pay the full amount due and Abatement to Mcare within the time $arne referenced herein may result in additional
conc. Alec nai proto pay th Wh1e the due mid ?maui? result the the Ion ofMcar2 coverage and roferral to
your medical flicens or repa board for
recognize there may be oirmmtstance in which another entity is responsib a for pri health care provider personally ,
and Bugge y st you provider any such ea we
with a copy of this invoice so that entity repays this obligation, lint of this abatement, and susge any sucntry
To assure accurate prnecssing of your payment, please deraeh lire coupon below and return it by the
cashier's check or money order in The amount indicated is this notice. A return envelope is "pa y by" date along with a earth- red ?c you
are exempt from repayment. please we the reverse side of this form. If you have _ provided for your coavwiyou you believe You
please concoct Mcar2 immediarely at (717)783-3770 ohmsion 258. Ibank you for your prompt attention to this important of your repayment amount,
tmportaat matter.
r Make!fit payable to "* of Mcam a m the
Medical Care Availability and Reduction of Error Fund AR5-01
This coupon must accompany payment. All payments will be deposited
Pay DY August 24, 2006
a Alnount Due $1,142.00
u
w q James A Shaer
Saint Elizabeth Health C
Department Of Orthopaedi
1044 Belmont Avenue
Youngstown, OH 44501
upon r'ecerpt.
2005
License #
Mca.re Reference
#
Coverage Period
Ceased PA. Services
Provider's Telephone #
MD-420257
031-OC-05-01157
01/01/05 to 01/31/05
April 7. 2005
Medical Care Availability and Reduction of Error Fund
PENNSYLVANIA INSM12 NCIE DEPARTIVXNT
P.O. Box 12030
Harrisburg, PA 17108-2030
VERIFICATION
I hereby acknowledge that I have read the foregoing Complaint and that the facts
stated therein are true and correct to the best of my knowledge, information, and belief.
I understand that any false statements herein are made subject to penalties of 18
Pa. C.S. §4904, relating to unworn falsification to authorities.
Date: Q By.
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BUCHANAN INGERSOLL, P.C.
BY: THOMAS G. COLLINS, ESQUIRE
I.D. #: 75896
BY: STEPHEN MONIAK, ESQUIRE
I.D. #: 80035
213 MARKET STREET
HARRISBURG, PA 17101
(717) 237-4843
DR. JAMES A. SHAER, M.D.
Plaintiff,
V.
ORTHOPAEDIC SURGEONS OF
CENTRAL PENNSYLVANIA,
LTD.
ATTORNEYS FOR DEFENDANT,
ORTHOPAEDIC SURGEONS OF
CENTRAL PENNSYLVANIA, LTD.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 06-6133 CIVIL TERM
CIVIL ACTION - LAW
ENTRY OF APPEARANCE
Please enter the appearance of Thomas G. Collins, Esquire and Stephen Moniak, Esquire
on behalf of Defendant, Orthopaedic Surgeons of Central Pennsylvania, Ltd. in the above-
referenced matter.
BUCHANAN INGERSOLL
P FCORPORATION
By:
Thomas Collins, Esquire
I.D. No. 75896
Stephen Moniak, Esquire
I.D. No. 80035
One South Market Square
213 Market Street - 3rd Floor
Harrisburg, PA 17101
(717) 237-4800
Attorneys for Orthopedic Surgeons of Central
Pennsylvania, Ltd.
DATE: November 2, 2006
1
CERTIFICATE OF SERVICE
AND NOW, this 2nd day of November, 2006, I hereby certify that I have served the
foregoing document on the following by depositing true and correct copies of the same in the
U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Steven E. Grubb, Esquire
Goldberg Katzman, P.C.
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108-1268
Thomas G. Collins, Esquire
Attorney for Defendant Orthopaedic
Surgeons of Central Pennsylvania, Ltd.
Dated: November 2, 2006
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BUCHANAN INGERSOLL & ROONEY, P.C.
BY: THOMAS G. COLLINS, ESQUIRE
I.D. #: 75896
BY: STEPHEN MONIAK, ESQUIRE
I.D. #: 80035
213 MARKET STREET
HARRISBURG, PA 17101
(717) 237-4843
ATTORNEYS FOR DEFENDANT,
ORTHOPAEDIC SURGEONS OF
CENTRAL PENNSYLVANIA, LTD.
DR. JAMES A. SHAER, M.D. IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
Plaintiff, PENNSYLVANIA
V. No. 06-6133 CIVIL
ORTHOPAEDIC SURGEONS OF JURY TRIAL DEMANDED
CENTRAL PENNSYLVANIA,
LTD. CIVIL ACTION - LAW
ANSWER
NOW COMES Defendant, Orthopaedic Surgeons of Central Pennsylvania, Ltd.
(hereinafter "OSCP"), by and through its attorneys, Buchanan Ingersoll & Rooney PC, and files
the within Answer to the Complaint.
The numbered paragraphs of the Answer correspond to the like-numbered paragraphs of
the Complaint, and unless specifically admitted herein, each factual allegation in the Complaint
is hereby denied.
THE PARTIES
1. Admitted based upon information received.
2. Admitted.
3. OSCP admits only that it employed Plaintiff as an orthopedic surgeon through
approximately January 31, 2005. The "Amended and Restated Employment Agreement", dated
January 1, 2004, and attached to the Complaint as Exhibit "A", is a writing which speaks for
itself and OSCP denies Plaintiffs characterization of the nature or contents of same. By way of
further answer, OSCP denies that the "Amended and Restated Employment Agreement",
attached to the Complaint as Exhibit "B", reflects any "contract[]" or "agreement" between it
and Plaintiff. To the contrary, an agreement was never reached to continue Plaintiff s
employment beyond January 31, 2005.
4. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent an answer is deemed required, both Exhibits "A" and "B" to the
Complaint are writings which speak for themselves and OSCP denies Plaintiffs characterization
of the nature or contents of same. By way of further answer, OSCP denies that the "Amended
and Restated Employment Agreement", attached to the Complaint as Exhibit "B", evidences any
"contract[]" or "agreement" between it and Plaintiff. To the contrary, an agreement was never
reached to continue Plaintiffs employment beyond January 31, 2005.
Denied. By way of further answer, Plaintiff provided OSCP with oral notice of
his intent to resign on January 17, 2005. Plaintiff further rejected OSCP's then current offer with
respect to a new contract at this time. Plaintiff s employment thereafter terminated on January
31, 2005, upon expiration of the "First Amendment to Amended and Restated Employment
Agreement", dated January 1, 2005.
6. Admitted.
7. Denied. By way of further answer, OSCP denies that Plaintiff executed the
"Pledges at the request of the partner-physicians at the OSCP practice."
2
8. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent an answer is deemed required, the "Pledge" referenced in Paragraph 8 is
a writing which speak for itself and OSCP denies Plaintiff s characterization of the nature or
contents of same.
9. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent an answer is deemed required, the "Pledge" referenced in Paragraph 9 is
a writing which speak for itself and OSCP denies Plaintiff's characterization of the nature or
contents of the same.
10. Admitted in part and denied in part. OSCP admits only that Plaintiff's M-Care
assessment was "abated, or reduced", as a result of his execution of the Pledges. OSCP denies
that Plaintiff's "medical malpractice premiums" were reduced.
11. Denied. By way of further answer, OSCP denies that Plaintiff s "medical
malpractice premiums were reduced." OSCP further lacks information or belief as to whether
Plaintiff's M-Care assessments were reduced in the amounts stated in Paragraph 11, and such
averment is, accordingly, denied. OSCP further incorporates its answer to Paragraph 10 above.
12. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, the "Amended and Restated
Employment Agreement", dated January 1, 2004, and attached to the Complaint as Exhibit "A",
is a writing which speaks for itself and OSCP denies Plaintiffs characterization of the nature or
contents of same; including the inference in Paragraph 12 that OSCP's obligations thereunder, if
any, were somehow reduced as a result of Plaintiff s execution of the Pledges. OSCP further
denies that the "Amended and Restated Employment Agreement", attached to the Complaint as
Exhibit "B", evidences any "contract[]" or "agreement" between it and Plaintiff. OSCP further
incorporates its answer to Paragraph 11 above.
13. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, OSCP denies that Plaintiff s
"malpractice insurance" was reduced as a result of his execution of the Pledges. OSCP further
incorporates its answers to Paragraphs 11 and 12 above.
14. Admitted based upon information received.
15. Denied. By way of further answer, the "notices" referenced in Paragraph 15 are
writings which speak for themselves and OSCP denies Plaintiff's characterization of the nature
or contents of same.
16. Denied. By way of further answer, the "notices" referenced in Paragraph 16 are
writings which speak for themselves and OSCP denies Plaintiff's characterization of the nature
or contents of same.
17. Admitted in part and denied in part. OSCP admits only that Plaintiff "forwarded
the repayment notices to OSCP" and that "OSCP refused to pay them." OSCP denies the
remaining averments of this paragraph as conclusions of law to which no responsive pleading is
required. To the extent that a response is deemed required, OSCP denies that it is "contractually
obligated" to satisfy the notices.
18. Denied. By way of further answer, OSCP lacks first hand knowledge as to
whether Plaintiff "paid MCARE the $15,445 abatement."
19. Denied. This paragraph avers only legal conclusions to which no answer is
required.
4
20. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, the "Amended and Restated
Employment Agreement", dated January 1, 2004, and attached to the Complaint as Exhibit "A",
is a writing which speaks for itself and OSCP denies Plaintiff's characterization of the nature or
contents of same; including the inference in Paragraph 20 that OSCP's obligations thereunder, if
any, were somehow reduced as a result of Plaintiff's execution of the Pledges. OSCP further
denies that the "Amended and Restated Employment Agreement", attached to the Complainant
as Exhibit "B", evidences any "contract[]" or "agreement" between it and Plaintiff.
COUNT I - BREACH OF CONTRACT
21. Paragraphs 1 through 20 of OSCP's Answer are incorporated herein by reference.
22. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent an answer is deemed required, OSCP incorporates by reference its
answer in Paragraph 3 above.
23. Denied. By way of further answer, OSCP denies that it requested that Plaintiff
execute the Pledges. OSCP further incorporates by reference its answers in Paragraphs 10, 11
and 12 above.
24. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, OSCP incorporates by reference its
answers in Paragraphs 10, 11 and 12 above.
25. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent an answer is deemed required, OSCP incorporates by reference its
answer in Paragraph 3 above.
5
26. OSCP admits only that OSCP has refused to satisfy Plaintiff's M-CARE
obligations, if any. The remaining averments of this paragraph are denied.
27. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent an answer is deemed required, OSCP incorporates by reference its
answers in Paragraphs 10, 11 and 12 above.
WHEREFORE, OSCP respectfully requests that this Honorable Court dismiss Plaintiffs'
Complaint and award Defendant its costs, attorneys' fees, and whatever further relief this Court
deems just and appropriate.
COUNT II - VIOLATION OF THE PENNSYLVANIA
WAGE PAYMENT AND COLLECTION LAW
28. Paragraphs 1 through 27 of OSCP's Answer are incorporated herein by reference.
29. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, OSCP incorporates by reference its
answers in Paragraphs 10, 11 and 12 above. OSCP further denies that it has failed to pay
Plaintiff any "wages and benefits" for purposes of Pennsylvania's Wage Payment and Collection
Law ("WPCL").
30. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, OSCP incorporates by reference its
answers in Paragraphs 10, 11 and 12 above. OSCP further denies that the M-CARE assessment
at issue here constitutes "wages" and "benefits" for purposes of the WPCL.
31. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, OSCP denies that the M-Care
assessments at issue were "accrued" or "earned" during the term of Plaintiff's employment with
6
OSCP. To the contrary, the assessments at issue arose after the termination of Plaintiff s
employment and relocation to the State of Ohio. OSCP further incorporates by reference its
answers in Paragraphs 3, 10, 11 and 12 above.
32. Denied. This paragraph avers only legal conclusions to which no answer is
required. To the extent that an answer is deemed required, OSCP denies that Plaintiff is entitled
to any remedy, damage or other relief pursuant to the WPCL.
WHEREFORE, OSCP respectfully requests that this Honorable Court dismiss Plaintiffs'
Complaint and award Defendant its costs, attorneys' fees, and whatever further relief this Court
deems just and appropriate.
AFFIRMATIVE
DEFENSES
FIRST DEFENSE
The Complaint fails to state a claim upon which relief can be granted.
SECOND DEFENSE
The Complaint fails to state a claim under the WPCL because the M-CARE assessment,
for which Plaintiff seeks reimbursement, arose after his employment with OSCP had terminated
and was neither earned, nor accrued, at the time of termination of Plaintiff's employment.
THIRD DEFENSE
Plaintiff's claims are barred by the doctrines of merger, waiver and estoppel.
FOURTH DEFENSE
Plaintiff s claims are barred by the doctrines of res judicata and / or collateral estoppel.
7
WHEREFORE, OSCP respectfully requests that this Honorable Court dismiss Plaintiffs'
Complaint and award Defendant its costs, attorneys' fees, and whatever further relief this Court
deems just and appropriate.
BUCHANAN INGERSOLL & ROONEY, PC
wy 11 Lao...
Thomas G. Collins, Esquire
Attorney I.D. 75896
One South Market Square
213 Market Street, 3r Floor
Harrisburg, PA 17101
(717) 237-4800
e-mail: collinstg@bipc.com
Attorneys for Defendant
Orthopaedic Surgeons of Central
Pennsylvania, Ltd.
Date: November 14, 2006
8
VBIFICATTUIV
I vor* that the statements made in the foregoing Answer, of which I have first-hand
knowledge, are true and correct to the best of my knowledge, khrmation and belief. I
understand that false statwmb herein are made subject to the penalties of 18 Fa.C.S. §4904,
relating to unswom falsification to authorities.
?/j /d
Dat Rini Deker
CERTIFICATE OF SERVICE
AND NOW, this 14th day of November, 2006, I hereby certify that I have served the
foregoing document on the following by depositing true and correct copies of the same in the
U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Steven E. Grubb, Esquire
Goldberg Katzman, P.C.
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108-1268
(1-13L'? ? u,",
Thomas G. Collins, Esquire
Attorney for Defendant Orthopaedic
Surgeons of Central Pennsylvania, Ltd.
Dated: November 14, 2006
r-N
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3
Goldberg Katzman, P.C.
Steven E. Grubb, Esquire, I.D.# 75897
Attorney for Plaintiff
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
DR. JAMES A. SHAER, M.D. IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. NO. 06-6133 CIVIL
ORTHOPAEDIC SURGEONS OF :
CENTRAL PENNSYLVANIA, LTD. JURY TRIAL DEMANDED
Defendant. : CIVIL ACTION - LAW
REPLY TO AFFIRMATIVE DEFENSES
Plaintiff, Dr. James A. Shaer, M.D. (Dr. Shaer), by and through his counsel, Goldberg
Katzman, P.C., files this Reply to Affirmative Defenses of Defendants.
1. Defendants' Affirmative Defenses are denied as legal conclusions to which no
response is necessary.
Respectfully Submitted,
GOLD RG ]KATZMAN, P.C.
By:
Sttsven E. Grubb, -Esquire(M. #75897)
320 Market Street, P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorney for Plaintiff
Date: December 4, 2006
142020..1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record via facsimile and by depositing a copy of same in the United
States Mail at Harrisburg, Pennsylvania, with first-class postage prepaid, addressed to the
following:
Thomas Collins, Esq.
Stephen Moniak, Esq.
Buchanan Ingersoll & Rooney, PC
One South Market Square
213 Market Street, 3`d Floor
Harrisburg, PA 17101
By:
St n E. Grubb
4 Date: December 4, 2006
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SHERIFF'S RETURN - REGULAR
CASE NO: 2006-06133 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SHAER JAMES A DR MD
VS
ORTHOPAEDIC SURGEONS OF CENTRA
JASON VIORAL
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
ORTHOPAEDIC SURGEONS OF CENTRAL PENNSYLVANIA LTD the
DEFENDANT
, at 1704:00 HOURS, on the 26th day of October , 2006
at 99 NOVEMBER DRIVE
CAMP HILL, PA 17011
KIM DEITER, ADMINISTRATOR,
by handing to
ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00
z
Service 12.32 ;. Kko ?-?
Postage .39
Surcharge 10.00 R. Thomas Kline
.00
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GOLDBERG KATZMAN
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Appeal Docket Sheet
Docket Number: 15 MDA 2007
Page 1 of 2
January 4, 2007
Aft
James A. Shaer, M.D., Appellant
V.
Orthopaedic Surgeons of Central Pennsylvania, Ltd.
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: January 4, 2007
Journal Number:
Case Category: Civil
Awaiting Original Record
CaseType: Civil Action Law
Consolidated Docket Nos.:
Related Docket Nos.:
2206 MDA 2006 Similar Issues
SCHEDULED EVENT
Next Event Type: Receive Docketing Statement
Next Event Type: Original Record Received
Next Event Due Date: January 18, 2007
Next Event Due Date: February 13, 2007
COUNSEL INFORMATION
Appellant
Pro Se:
IFP Status
Appellee
Pro Se:
IFP Status:
Shaer, James A.
Appoint Counsel Status:
No
Appellant Attorney Information:
Attorney: Grubb, Steven Edward
Bar No.: 75897 Law Firm: Goldberg Katzman, P.C.
Address: 320 Market St Box 1268
Harrisburg, PA 17108-1268
Phone No.: (717)234-4161 Fax No.: (717)234-6808
Receive Mail: Yes
E-Mail Address: seg@goldbergkatzman.com
Receive E-Mail: No
Orthopaedic Surgeons of Central Pennsylvania, Ltd.
Appoint Counsel Status:
No
Appellee Attorney Information:
Attorney: Collins, Thomas G.
Bar No.: 75896
Address: 213 Market St 3rd FI
Harrisburg, PA 17101
Phone No.: (717)237-4800
Receive Mail: Yes
E-Mail Address: collinstg@bipc.com
Receive E-Mail: Yes
Law Firm: Buchanan Ingersoll & Rooney, P.C.
Fax No.: (717)233-0852
Superior Court of Pennsylvania
1/412007 3023
1:26-K. M. "
Appeal Docket Sheet
Docket Number:
Page 2 of 2
January 4, 2007
Superior Court of Pennsylvania
15 M DA 2007
FEE INFORMATION
Paid
Fee Date Fee Name Fee Amt Amount Receipt Number
1/4/07 Notice of Appeal 60.00 60.00 2007SPRMD000013
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Civil
Date of Order Appealed From: November 20, 2006 Judicial District: 9
Date Documents Received: January 4, 2007 Date Notice of Appeal Filed: January 2, 2007
Order Type: Order Entered OTN:
Judge: Hess, Kevin A.
Judge
Lower Court Docket No.: 05-2499
ORIGINAL RECORD CONTENTS
Original Record Item Filed Date Content/Description
Date of Remand of Record:
BRIEFS
DOCKET ENTRIES
Filed Date Docket Entry/Document Name Party Type Filed By
January 4, 2007 Notice of Appeal Filed
Appellant Shaer, James A.
January 4, 2007 Docketing Statement Exited (Civil)
Middle District Filing Office
1/4/2007
3023
Goldberg Katzman, P.C.
Steven E. Grubb, Esquire, I.D.# 75897
Attorney for Plaintiff
320 Market Street, Strawberry Square
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
DR. JAMES A. SHAER, M.D. IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V. : NO. 06-6133 CIVIL
ORTHOPAEDIC SURGEONS OF
CENTRAL PENNSYLVANIA, LTD. JURY TRIAL DEMANDED
Defendant. CIVIL ACTION - LAW
PRAECIPE TO SETTLE, DISCONTINUE AND END
TO THE PROTHONOTARY:
Please mark the above-captioned case as settled and discontinued, terminating the
above-captioned matter with prejudice.
Respectfully Submitted,
AGOLD 7?-E'uW?7416 TZ ,P
By:
ubb; s qNo. 75897)
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Plaintiff
Dated: April 10, 2008
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have served a true and correct copy of the foregoing Praecipe
to Discontinue on the person or persons listed below by U.S. Mail, as follows:
Thomas Collins, Esq.
Buchanan Ingersoll & Rooney
One South Market Square
213 Market Street, 3rd Floor
Harrisburg, PA 17101
GOL ERG KATZM P.C.
DATE: April 10, 2008 By:
teven E. Grubb, Esquire
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