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Home My WebLink About2004-2982 CivilALFRED R. LEAL, M.D., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA u CENTRAL PENNSYLVANIA HEMATOLOGY & MEDICAL ONCOLOGY ASSOCIATES, P.C., and JOHN D. CONROY, D.O., : Defendants : CIVIL ACTION—LAW NO. 04-2982 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HESS, OLER and EBERT, JJ. OPINION and ORDER OF COURT OLER, J., September 17, 2008. In this case arising out of the resignation of a physician from a professional practice, the departing physician has sued for breach of contract and past wages,' and the practice has filed counterclaims against the Plaintiff for breach of contract, breach of fiduciary duty, and unjust enrichment. For disposition at this time is Plaintiff's motion for partial summary judgment, requesting judgment in his favor on the counterclaims.3 The matter was argued on September 3, 2008. For the reasons stated in this opinion, Plaintiff's motion for judgment on the counterclaims will be granted in part and denied in part. STATEMENT OF FACTS In Plaintiff's Amended Complaint, he alleges, inter alia, that (a) he resigned his position as a hematologist and oncologist with Defendant Central Pennsylvania ' Plaintiff's Amended Complaint, filed February 17, 2006; see Order of Court, June 2, 2006. 2 Defendants' Answer to Amended Complaint with New Matter and Counterclaims, filed June 28, 2006. ' Plaintiff's Motion for Partial Summary Judgment Re: Defendants' Counterclaim, filed June 25, 2008. Hematology & Medical Oncology Associates, P.C. (hereinafter moving Defendant or Defendant), effective December 31, 2003, (b) this resignation actuated a contractual obligation on the part of the corporation to pay him $218,735.00, and (c) the payment has not been made .4 Defendant filed counterclaims against Plaintiff for (a) breach of contract arising out of his alleged failure to comply with various terms of his employment agreement with Defendant prior to the effective date of his resignation, (b) breach of fiduciary duty arising out of his alleged encouragement of other employees of the corporation to leave their employment and out of his alleged competition with Defendant while still being associated with it, inter alia, and (c) unjust enrichment arising out of a benefit Plaintiff allegedly received from Defendant due to its provision of services to his patients prior to the commencement of his new practice.5 At oral argument on Plaintiff s motion for partial summary judgment with respect to the counterclaims, counsel for Defendant conceded that summary judgment in favor of Plaintiff on his client's unjust enrichment claim would be proper. Accordingly, that aspect of Plaintiffs motion for partial summary judgment will be granted. With respect to Defendant's contentions that Plaintiff breached his employment contract with Defendant and his fiduciary duty to the practice, the record contains evidence from which a jury might conclude that Plaintiff, while still a shareholder and employee of Defendant, (a) failed to devote his full working day to Defendant's practice,' (a) formed a new professional corporation,$ 4 Plaintiff's Amended Complaint, filed February 17, 2006. s Defendants' Answer to Amended Complaint with New Matter and Counterclaims, filed June 28, 2006. 6 See Plaintiff's Answer to Defendants' New Matter and Counterclaim ¶68, FILED July 21, 2006. See N.T. 64, Deposition of Alfred R. Leal, M.D., October 31, 2007. s See Plaintiff's Answer to Defendants' New Matter and Counterclaim ¶99, filed July 21, 2006. 2 (c) advertised a new practice,9 (d) communicated to some patients his intent to leave the practice and open his own office,10 (e) discussed hiring several of Defendant's employees for his new practice with them," and (f) subsequently hired them for the new practice. 12 As Plaintiff points out, the record is also replete with testimony from which a jury could conclude that all of this evidence had an exculpatory explanation.13 DISCUSSION Under Pennsylvania Rule of Civil Procedure 1035.2, "any party may move for summary judgment in whole or in part, as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action ... which in a jury trial would require the issues to be submitted to a jury. For purposes of such a motion, the record includes pleadings, depositions, answers to interrogatories, admissions and affidavits, and certain expert reports. Pa. R.C.P. 1035.1. On a motion for summary judgment, the record must be viewed "in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party." Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585-86, 812 A.2d 1218, 1221 (2002). Summary judgment is not appropriate unless "the facts are so clear that reasonable 9 See Plaintiff's Answer to Defendant's Answer with New Matter and Counterclaim, ¶101; N.T. 62, Deposition of Alfred R. Leal, M.D., October 31, 2007. 10 N.T. 62-63, Deposition of Alfred R. Leal, M.D., October 31, 2007. " N.T. 11-12, Deposition of Edna Lippi, March 19, 2008; N.T. 20, Deposition of Alfred R. Leal, M.D., October 31, 2007. 1 2 See, e.g., N.T. 18-21, Deposition of Jennifer Chetaitis, January 16, 2008. " Plaintiff's Brief in Support of Plaintiff's Motion for Partial Summary Judgment, submitted August 22, 2008. 3 minds cannot differ." Id., ¶586, 812 A.2d at 1222. Furthermore, it is well settled that "[o]ral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact." Note, Pa. R.C.P. 1035.2. Finally, it has been said that an employee's responsibility to an employer includes duties of "loyalty, diligence, fidelity, [and] obedience ...." Langensiepen v. Commonwealth of Pennsylvania, Employment Compensation Board of Review, 69 Pa. Commw. 511, 514, 451 A.2d 814, 816 (1982). Such duties can be fiduciary in nature, 14 in addition to being contractual. In the present case, given the state of the evidentiary record and the foregoing rules of law, the court is not in a position to conclude as a matter of law that Plaintiff is entitled to summary judgment on Defendant's claims for breach of contract and breach of fiduciary duty. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 17th day of September, 2008, upon consideration of Plaintiff s motion for partial summary judgment with respect to the counterclaims of Defendant Central Pennsylvania Hematology & Medical Oncology Associates, P.C., and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The motion is granted as to Count III (Breach of Quasi- Contract/Quantum Meruit) of the counterclaims of Defendant Central Pennsylvania Hematology & Medical Oncology Associates, P.C., contained in its Answer to Amended Complaint with New Matter and Counterclaims, and judgment 14 Reading Radio, Inc. v. Fink, 2003 PA Super 353, ¶32, 833 A.2d 199, 211 (2003). 11 is entered in favor of Plaintiff and against said Defendant on that claim; and 2. The motion is otherwise denied. Paige Macdonald-Matthes, Esq. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 Attorney for Plaintiff Richard H. Wix, Esq. 4705 Duke Street Harrisburg, PA 17109-3041 Attorney for Defendants E BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. ALFRED R. LEAL, M.D., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA u CENTRAL : CIVIL ACTION—LAW PENNSYLVANIA HEMATOLOGY & MEDICAL ONCOLOGY ASSOCIATES, P.C., and JOHN D. CONROY, D.O., : Defendants : NO. 04-2982 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HESS, OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 17th day of September, 2008, upon consideration of Plaintiff's motion for partial summary judgment with respect to the counterclaims of Defendant Central Pennsylvania Hematology & Medical Oncology Associates, P.C., and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The motion is granted as to Count III (Breach of Quasi- Contract/Quantum Meruit) of the counterclaims of Defendant Central Pennsylvania Hematology & Medical Oncology Associates, P.C., contained in its Answer to Amended Complaint with New Matter and Counterclaims, and judgment is entered in favor of Plaintiff and against said Defendant on that claim; and 2. The motion is otherwise denied. BY THE COURT, J. Wesley Oler, Jr., J. Paige Macdonald-Matthes, Esq. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 Attorney for Plaintiff Richard H. Wix, Esq. 4705 Duke Street Harrisburg, PA 17109-3041 Attorney for Defendants