Robinson, E. v. Madeline C. Weiser, M.D., P.C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELIZABETH ROBINSON, M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MADELINE C. WEISER, M.D., P.C. : No. 1242 EDA 2018
Appeal from the Judgment Entered April 16, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2011-27436
ELIZABETH ROBINSON, M.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MADELINE C. WEISER, M.D., P.C. :
:
Appellant : No. 1284 EDA 2018
Appeal from the Judgment Entered April 16, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2011-27436
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 27, 2019
In these consolidated cross-appeals, Elizabeth Robinson, M.D.
(“Employee”), and Madeline C. Weiser, M.D., P.C. (“Employer”),1 appeal from
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1 Employee named only Employer, Madeline C. Weiser, M.D., P.C., as a
defendant in this action. Madeline C. Weiser, M.D. (“Dr. Weiser”) is the
president and sole shareholder of Employer. As discussed infra, on June 20,
2014, the court denied Employee’s request to add Dr. Weiser individually as
an additional defendant. Thus, Dr. Weiser did not participate in this action
individually.
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the Judgment entered on April 16, 2018, in the Montgomery Court of Common
Pleas following a non-jury trial in this action arising from a breach of an
employment contract. After careful review, we affirm.
On May 29, 2007, Employee, a pediatrician, executed a written
employment contract (the “Contract”) with Employer. Dr. Weiser alone
prepared the Contract. The Contract provided, inter alia, that Employee would
work for Employer for a three-year term commencing on June 1, 2007.
Employer agreed to pay Employee a set salary for the first two years of the
contract term. In the third year—June 1, 2009 to May 31, 2010—Employer
agreed to pay Employee “the greater of $135,000 or 49% of [Employee’s] ‘net
collected receipts with the cost of malpractice insurance deducted.’” Contract,
5/29/07, at 1. Notably, the Contract did not define “net collected receipts,”
nor did it include language indicating how the parties would allocate the
expense of purchasing vaccines administered by Employee.
Relevant to the instant appeal, Employer initially paid Employee a
$135,000 salary for the third year of her contract term. 2 Employer’s records
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2 Understanding that Employee’s compensation for year three would be at
least $135,000, and, depending on Employee’s productivity, might be more
than $135,000, in year three Employer paid Employee a “salary” of $135,000
over the course of the year so that Employee would have “cash flow. . . to pay
bills[, etc.]” N.T., 9/7/17, at 137-38.
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reflected that Employee’s total receipts3 in the third year of her contract were
$424,478.03.4 The cost of Employee’s vaccines in the third year of the
contract term was $132,415.62, and the cost of Employee’s malpractice
insurance for the third year of the contract was $13,147.
Employer calculated Employee’s third-year salary by subtracting the
cost of the vaccines Employee administered and the cost of Employee’s
malpractice insurance premium from her total receipts, and then multiplying
by a factor of 49%. Thus, Employer calculated that Employee’s third year
salary was $136,668.55.
Because Employer had already paid Employee a third-year salary of
$135,000, at the conclusion of the third year, Employer paid Employee an
additional $2,468.55. This figure represented the payment of an additional
$1,668.55 owed to Employee under Employer’s interpretation of 49% of
Employee’s “net collected receipts”—the difference between $136,668.55 and
$135,000—as well as reimbursement of $810 that the parties agreed
Employer had improperly deducted from the amount paid to Employee.5
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3 Employee’s total receipts is comprised of the money actually collected from
insurance companies and patient co-pays by Employer in exchange for
services performed by Employee.
4 The record also reflects that on October 31, 2009, Employee administered
at least 25 H1N1 flu vaccines to patients who each paid a $20 co-pay.
5 Employer reimbursed Employee $810 based on Dr. Weiser’s
mischaracterization of a “Verruca-Freeze” chemical cauterization as a vaccine.
N.T., 9/6/17, at 48, 55.
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After Employer paid Employee, Employee disagreed with Employer’s
interpretation of “net collected receipts” and claimed that Employer had
miscalculated the amount of compensation due to her for her third year of
employment.
On September 30, 2011, Employee commenced this action against
Employer claiming that Employer had breached the terms of the Contract by
failing to compensate her fully for the third year of her employment. In
particular, Employee disagreed with Employer’s treatment of the cost of
vaccines administered by Employee and its payment of her medical
malpractice insurance premium. Employee sought damages for Breach of
Contract and a violation of Pennsylvania’s Wage Payment and Collection Law
(the “WPCL”), 43 P.S. §§ 260.1-260.45. On September 4, 2014, Employee
filed an Amended Complaint.
On November 14, 2014, Employer filed an Answer. Employer also filed
a Counterclaim alleging that Employee had breached a covenant not to
compete.6
A non-jury trial took place on September 6, 2017, and September 19,
2017. Employee argued at trial that the Contract term “net collected receipts”
meant the total receipts collected by Employer from insurance companies and
patients—$424,478.03. Employee testified that the parties did not have an
oral or written agreement to deduct the cost of vaccines from the amount
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6 At trial, Employer withdrew its claim for damages due to the alleged breach
of the covenant not to compete.
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Employer collected in order to calculate Employee’s “net collected receipts.”
She further testified that she never would have agreed to include deduction
of vaccines from her “net collected receipts” as part of a Contract with
Employer.
With respect to the treatment of her medical malpractice insurance
payment, Employee testified that she did not have a particular understanding
of whether Employer’s cost would be deducted before or after applying the
49% factor.
Employer claimed that, even though not stated in the Contract, “net
collected receipts” included the cost of vaccines, which should be deducted
from Employee’s total receipts before the 49% factor is calculated to
determine whether Employee’s salary exceeded $135,000 in her third year of
employment. Dr. Weiser testified that she told Employee before she executed
the Contract that Employer would charge its vaccine costs to Employee. Dr.
Weiser also testified that the parties agreed that Employer would deduct the
cost of Employee’s medical malpractice insurance premium after determining
Employee’s 49% portion of her net collected receipts.7 Dr. Weiser testified
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7 Our review of the record indicates that there is a substantial inconsistency
between Weiser’s testimony that Employer would deduct the cost of
Employee’s medical malpractice insurance premium after determining
Employee’s 49% portion of her net collected receipts and the method by which
Employer actually calculated Employee’s compensation. Contrary to this
testimony, Employer actually calculated Employee’s compensation by
subtracting Employee’s vaccine costs and medical malpractice insurance
premium her collected receipts before applying the 49% factor, as set forth
in detail supra.
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that she did not seek to include other categories of expenses in the “net”
calculation because they are not easily allocable among Employer’s doctors.
On October 20, 2017, the court issued its Findings and Decision in
Employee’s favor. Relevantly, the trial court concluded that the term “net
collected receipts” was ambiguous and construed it against Employer. It
found Employee’s testimony credible that the parties had not agreed, either
orally or in writing, to deduct the cost of vaccines when calculating Employee’s
“net collected receipts.” Thus, the court concluded that Employer should not
have deducted the cost of vaccines from Employee’s compensation.
In particular, the court determined that 49% of Employee’s “net
collected receipts” equaled $207,994.23.8 In calculating Employee’s
damages, the court subtracted $13,147—the cost of her medical malpractice
insurance premium—and the $135,000 salary and the $2,468.55 Employer
paid Employee from $207,994.23, and added $245.9 The court, thus,
determined that Employer owed Employee $57,623.68 in compensatory
damages. The court also determined that Employer had a good faith basis for
withholding payment.
Both parties filed Post-Trial Motions. On February 28, 2018, the court
heard argument on the Motions. On April 11, 2018, the court denied
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8 $207,994.23 is 49% of Employee’s total receipts of $424,478.03.
9$245 is equal to 49% of the $500 in co-pays Employee generated from 25
vaccines administered on October 31, 2010.
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Employer’s Motion. The next day, the court denied Employee’s Motion for
additional compensatory and liquidated damages, but granted the Motion
insofar as Employee sought statutory attorney’s fees.10 The court molded the
verdict to include the fees and entered Judgment of $111,170.89.
These cross-appeals followed. Both parties and the trial court complied
with Pa.R.A.P. 1925.
Employee raises the following issues on appeal:
1. Did the lower court miscalculate the compensatory damages to
which [Employee] is entitled in view of [Employer’s] mistakes
and admissions?
2. Did [Employer] fail to carry its burden of proving, by clear and
convincing evidence, that it withheld payment of [Employee’s]
compensation in good faith?
3. Did the lower court err in denying [Employee’s] timely motion
to join [Dr. Weiser] individually, as an additional defendant?
Employee’s Brief at 4.
Employer raises the following issues on appeal:
1. Did the trial court err as a matter of law by concluding that the
contractual term, “net collected receipts,” is ambiguous?
2. Did the trial court err as a matter of law by interpreting the
contractual term, “net collected receipts,” to preclude
deducting the medical practice’s cost of purchasing
vaccinations from [Employee’s] compensation?
3. Did the trial court err in determining as a factual matter—based
solely on [Employee’s] unsubstantiated, conflicting, and
imprecise testimony—that she was not compensated for
administering “at least twenty-five” H1N1 flu vaccines on
October 31, 2009?
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10 The parties stipulated to fees of $53,547.21.
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Employer’s Brief at 6.
Employee’s first issue challenges the trial court’s calculation of her
compensatory damages. When reviewing a trial court’s decision after a non-
jury trial, our standard of review is well-established. “We may reverse the
trial court only if its findings of fact are predicated on an error of law or are
unsupported by competent evidence in the record. As fact finder, the judge
has the authority to weigh the testimony of each party’s witnesses and to
decide which are most credible.” Parker Oil Co. v. Mico Petro and Heating
Oil, LLC, 979 A.2d 854, 856 (Pa. Super. 2009) (citation omitted). The trial
judge’s findings must be given the same weight and effect as a jury verdict
and will not be disturbed on appeal unless they are not supported by
competent evidence in the record. Levitt v. Patrick, 976 A.2d 581, 589 (Pa.
Super. 2009). “Furthermore, our standard of review demands that we
consider the evidence in the light most favorable to the verdict winner.” Id.(citation omitted).
Employee claims that the trial court underestimated the amount of
compensatory damages owed to her. In support of her claim, she argues that
the court erred in disregarding Employer’s admission that, with respect to
accounting for the payment of Employee’s malpractice insurance premium,
Employer mistakenly subtracted the cost of the premium after applying the
49% factor to Employee’s total receipts of $424,478.03. Employee’s Brief at
18-20. Employee claims that Employer should have subtracted the cost of
Employee’s premium before applying the 49% factor, as she alleges
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Employer admitted.11 Id. She avers that this mistake resulted in a diminution
in her compensatory damages of nearly $6,700.12
Employee’s issue requires this Court to interpret the contract between
the parties. “Because contract interpretation is a question of law, this Court
is not bound by the trial court’s interpretation.” Ragnar Benson, Inc. v.
Hempfield Tp. Mun. Authority, 916 A.2d 1183, 1188 (Pa. Super. 2007)
(citation omitted). “Our standard of review over questions of law is de novo
and to the extent necessary, the scope of our review is plenary as the
appellate court may review the entire record in making its decision.” Id.(citation omitted).
Our Supreme Court has set forth the principles governing contract
interpretation as follows:
The fundamental rule in contract interpretation is to ascertain the
intent of the contracting parties. In cases of a written contract,
the intent of the parties is the writing itself. Under ordinary
principles of contract interpretation, the agreement is to be
construed against its drafter. When the terms of a contract are
clear and unambiguous, the intent of the parties is to be
ascertained from the document itself. When, however, an
ambiguity exists, parol evidence is admissible to explain or clarify
or resolve the ambiguity, irrespective of whether the ambiguity is
patent, created by the language of the instrument, or latent,
created by extrinsic or collateral circumstances. A contract is
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11 Employee also argues in her Brief that Employer erroneously deducted its
vaccines cost from Employee’s compensation. Employee’s Brief at 16-17. The
trial court, however, decided this issue in Employee’s favor. Thus, we do not
consider it here.
12Employee asserts that she is entitled to an award of $64,313.65 instead of
$57,623.68.
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ambiguous if it is reasonably susceptible of different constructions
and capable of being understood in more than one sense. While
unambiguous contracts are interpreted by the court as a matter
of law, ambiguous writings are interpreted by the finder of fact.
Insurance Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462,
468-69 (Pa. 2006) (citations omitted).
With respect to whether the terms of the Contract required Employer to
subtract its payment of Employee’s medical malpractice insurance premium
before or after it applied the 49% factor to Employee’s net collected receipts,
the Contract provides that Employee’s salary in the third year will be the
greater of $135,000 and “49% of your net collected receipts with the cost of
malpractice deducted.” Contract at 1. The trial court concluded that the plain
and ordinary meaning of this term meant “the cost of malpractice insurance
should be deducted from [Employee’s] 49% portion of her net collected
receipts,” i.e. deducted after applying the 49% factor. Trial Ct. Op., 6/14/18,
at 10. In so concluding, the trial court noted that it found Dr. Weiser’s
testimony that the parties had agreed that the cost for Employee’s malpractice
insurance should be deducted from Employee’s 49% portion of her net
collected receipts credible and consistent with the plain language of the
Contract.
We agree with the trial court’s interpretation of the plain language of
the Contract. Following our review, we conclude, as the trial court did, that
the ordinary meaning of the phrase “49% of your collected receipts with the
cost of malpractice insurance deducted” means that the cost of Employee’s
malpractice insurance should be deducted after calculating her portion of net
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collected receipts. This interpretation is in conformance with the unambiguous
language of the Contract and ensures that Employee—who testified that she
would have been “fine either way”—is wholly responsible for payment of her
own malpractice insurance. Employee is, thus, not entitled to relief on this
claim.
Employee also faults the trial court for failing to treat Employer’s Answer
to Paragraph 16 of her Amended Complaint as a deemed admission under
Pa.R.C.P. 1029(a) and (b). Employee’s Brief at 21. Employee avers Employer
failed to deny with specificity Employee’s allegation that Employer did not pay
Employee her share of not less than $28,646.81 representing additional
receipts generated after the end of the Contract term. Id. at 21-23.
Employee claimed that her total compensatory damages amounted to
$80,744.96. Id. at 24. Employee alleges that Paragraph 16 did not, as
averred by Employer, constitute a conclusion of law, but rather a factual
allegation that required Employer’s specific denial.
“[T]he interpretation and application of a Pennsylvania Rule of Civil
Procedure presents a question of law.” Barrick v. Holy Spirit Hosp. of the
Sisters of Christian Charity, 32 A.3d 800, 808 (Pa. Super. 2011) (citation
omitted). Therefore, “our standard of review is de novo, and our scope of
review is plenary.” Id.Pa.R.C.P. 1029 governs denials in pleadings, and the effect of the failure
to deny allegations. See Pa.R.C.P. 1029. Rule 1029 provides, in relevant
part, as follows:
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(a) A responsive pleading shall admit or deny each averment of
fact in the preceding pleading or any part thereof to which it is
responsive. A party denying only a part of an averment shall
specify so much of it as is admitted and shall deny the remainder.
Admissions and denials in a responsive pleading shall refer
specifically to the paragraph in which the averment admitted or
denied is set forth.
(b) Averments in a pleading to which a responsive pleading is
required are admitted when not denied specifically or by
necessary implication. A general denial or a demand for proof,
except as provided by subdivisions (c) and (e) of this rule, shall
have the effect of an admission.
Pa.R.C.P. 1029(a), (b).
In Paragraph 16 of her Amended Complaint, Employee alleged that
“[b]egining May 25, 2010, [Employer] collected additional receipts on account
of professional services rendered by [Employee] while employed by
[Employer] under the Contract but has failed to pay [Employee] such
additional sum to which [Employee] is entitled under the Contract, said
additional receipts being an amount not less than $28,464.81, 49% of which
is $13,947.76.” Amended Complaint, 9/4/14, at ¶ 16. Employer’s Answer to
Paragraph 16 stated that “[t]he averments of this Paragraph are a legal
conclusion which is denied.” Answer, 11/14/14, at ¶16.
Before we reach the merits of this claim, we must determine whether
Employee has preserved it for our review. The record reflects that Employee
has failed to cite to the place in the record where she presented this specific
issue to the trial court, and our review does not disclose that she has
preserved it for appellate review. As noted by the trial court, Employee did
not preserve this issue in her written Post-Trial Motion. Accordingly, Employee
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may not raise this issue for the first time on appeal. See Pa.R.A.P. 302(a)
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal[]”); Pa.R.A.P. 2117(c) (requiring citation to place in
record where issue has been preserved); L.B. Foster Co. v. Lane
Enterprises, Inc., 710 A.2d 55, 55 (Pa. 1998) (“If an issue has not been
raised in a post-trial motion, it is waived for appeal purposes) (memorandum
opinion). Thus, Employee has waived her claim that the court erred in failing
to deem Employer’s answer to Paragraph 16 of her Amended Complaint an
admission.
In her second issue, Employee claims that court erred in not awarding
her liquidated damages under the WPCL alleging that Employer failed to prove
by clear and convincing evidence that it withheld payment of Employee’s
compensation in good faith. Employee’s Brief at 31. In support of this claim,
Employee cites, among other things, Employer’s failure to advise her that
vaccine vendors had granted Employer credits, Employer’s attempt to retain
fees earned by Employee during the contract term, and the trial court’s finding
that Weiser was not credible. Id. at 26, 29-30. Employee further avers that
Employer waived a “good faith” defense by failing to raise it in its Answer and
New Matter, Pre-Trial Settlement Conference Statement, or at trial. Id. at
26-27. Last, Employee claims she is entitled to pre-judgment interest and
statutory post-judgment interest. Id. at 31-32.
Under the WPCL, a plaintiff is entitled to liquidated damages “equal to
twenty-five percent (25%) of the total amount of wages due, or five hundred
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dollars ($500), whichever is greater.” 43 P.S. § 260.10. However, a plaintiff
is only entitled to said damages if “no good faith contest or dispute of any
wage claim including the good faith assertion of a right of set-off or counter-
claim exists accounting for such non-payment.” Id.
A defendant must prove good faith by clear and convincing evidence.
Hartman v. Baker, 766 A.2d 347, 354 (Pa. Super. 2000). “[M]ere bad
judgment is not bad faith . . . mere bad judgment does not prevent an
employer from acting in good faith under the WPCL.” Braun v. Wal-Mart
Stores, Inc., 24 A.3d 875, 964 (Pa. Super. 2011).
The trial court found by clear and convincing evidence that Employer
was acting in good faith when it withheld payment to Employee. Trial Ct. Op.
at 11. The following facts informed the court’s decision: (1) Weiser’s credible
testimony that she believed that although vaccines were not mentioned in the
Contract, the expense was inferred as a “common cost of doing business;” (2)
Weiser’s credible testimony that she believed that by not deducting the cost
of vaccines in calculating the net collected receipts, she would lose money
every time Employee administered a vaccine; and (3) the cost of vaccines is
unique because it is the largest category of expenses besides salary and
benefits that can be attributed to a specific physician. Id. at 11-12.
The trial court’s findings are supported by competent record evidence.
Thus, this claim lacks merit. See Levitt, 976 A.2d at 589; Englert v. Fazio
Mech. Servs., Inc., 932 A.2d 122, 126 (“The trial court’s [determination]
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that [the appellant] made a good faith effort . . . is a factual matter within its
sound discretion.”).
We are likewise unpersuaded by Employee’s claim that Employer waived
a “good faith” defense by not raising it in its Answer and New Matter. With
respect to this claim, the trial court aptly noted that Employee failed to present
any authority in support of her claim that ‘“good faith” is an affirmative
defense which must be pleaded in a responsive pleading under the heading
“New Matter” or raised in its pre-trial memorandum.” Trial Ct. Op. at 12.
Contrary to Employee’s assertion, an employer does not waive a “good faith”
defense where it pleaded “a good faith right to set-off or counter-claim[.]”
Hirsch v. EPL Tech., Inc., 910 A.2d 84, 93 (Pa. Super. 2006). See also 43
P.S. § 260.10.
Here, Employer filed a Counterclaim against Employee claiming that
Employee had breached the Contract. Employer diligently pursued this claim
until trial and withdrew it at trial only because Employer “believed that
[Employee] failed to carry her burden on her claims.” Employer’s Responsive
Brief at 17. Accordingly, our review of the record reveals that Employer did
not waive its defense that it acted in good faith when it withheld payment
from Employee. Employee is, thus, not entitled to relief on this claim.
Employee next claims that the court erred in refusing to award her pre-
judgment interest and statutory post-judgment interest. Employee’s Brief at
31-33. With respect to her allegation of error regarding the award of pre-
judgment interest, we find that Employee has waived this claim because she
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did not include it in her Pa.R.A.P. 1925(b) Statement. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
Similarly, we find that Employee waived her claim for post-judgment interest
by not raising this issue in her Post-Trial Motion. See L.B. Foster Co., 710
A.2d at 55.
In her final issue, Employee avers that the trial court erred in denying
her May 15, 2014 Motion to Amend Complaint to join Weiser as an additional
defendant in her WPCL claim.13, 14, 15 Employee’s Brief at 33. In support of
this claim, Employee explains that the WPCL permits suit against a corporate
officer who takes an active role in decision-making. Id. at 34. She, therefore,
concludes that, as the president and sole shareholder of Employer, “it is self-
evident [that] Weiser, individually is subject to liability to [Employee].” Id.
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13In her Brief, Employee discusses Pa.R.C.P. 2252—“Right to Join Additional
Defendants”—in support of her claim. Rule 2252 is inapplicable to the instant
case, however, as the relief requested by Employee, and denied by the court,
was in the nature of permission to amend the Complaint pursuant to Pa.R.C.P.
1033.
14In this Motion, Employee also sought leave to amend the Complaint to add
additional damages. The court granted Employee’s request to amend the
Complaint, but denied her request to add Weiser as an additional defendant.
15 On May 16, 2014, Employee filed an Emergency Motion requesting, on an
expedited basis, the same relief sought in the Motion to Amend and Join filed
the previous day. In the Emergency Motion, Employee alleged that the statute
of limitations would expire two weeks hence, on May 30, 2014. Employer
disputed Employee’s contention that the statute of limitations was set to
expire on May 30, 2014, and instead represented that the statute of limitations
had expired one year earlier, on May 31, 2013.
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See also Memorandum of Law in Support of Motion to Amend, 5/15/14, at 3.
Employer argued in opposition that the statute of limitations had expired, that
Employee’s failure to exercise reasonable diligence prejudiced Weiser, and
that the WPCL intended the individual liability of corporate managers to be
contingent on the corporation’s inability to pay its debts, and there is no
indication here that Employer will be unable to pay its debts. Employer’s Brief
in Opposition, 6/4/14, at 3-7.
We review the decision of the trial court to deny a motion to amend a
complaint for an abuse of discretion. Ferraro v. McCarthy-Pascuzzo, 777
A.2d 1128, 1132 (Pa. Super. 2001). We will not disturb the trial court’s
determination absent an abuse of that discretion. Id.Pa.R.C.P. 1033 provides, in relevant part, that a party may, at any time
either with consent of the adverse party or with leave of court, add a person
as a party. Pa.R.C.P. 1033. However, a plaintiff may not add a new defendant
after the statute of limitations has run. Anderson Equip. Co. v. Huchber,
690 A.2d 1239, 1241 (Pa. Super. 1997).
As a prefatory matter, we note that in her Brief, Employee has limited
her argument to the propriety of amending her WPCL claim to include Weiser
as a defendant, and has not set forth any argument pertaining to the denial
of her request to amend her Breach of Contract claim. Thus, we address only
the trial court’s denial of Employee’s Motion to Amend Complaint only as to
the WPCL claim raised therein.
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In denying the Motion, the trial court explained that the statute of
limitations on Employee’s WPCL claim had run almost one year earlier. Trial
Ct. Op., 2/28/19, at 4. In particular, the trial court found as follows:
The employment contract that is the subject of this dispute
terminated on May 31, 2010. [Employee] alleged in the original
[C]omplaint that wages remain unpaid from the “regularly
scheduled payday of [Employee] which occurred in May, 2010.”
[] All remuneration contemplated thereunder which had not
already been paid became due and owing on that date or within
15 days thereafter pursuant to 43 P.S. § 260.3. The WPCL
provides that “[n]o administrative proceedings or legal action shall
be instituted under the provisions of this act for the collection of
unpaid wages or liquidated damages more than three years after
the day on which such wages were due and payable. . . . 43 P.S.
§ 260.9a(g). Hence, the statute of limitations for a WCPL claim
under the subject employment [Contract] expired no later than
June 15, 2013.
Id. at 3-4.
Because the statute of limitations had run at the time Employee sought
to amend the Complaint, and a plaintiff may not add a new defendant after
the statute of limitations has run, we find no error in the trial court’s order
denying Employee’s Motion to Amend Complaint to join Weiser as an
additional defendant.
Employer’s Appeal
Employer’s first two claims are interrelated. Therefore, we address
them together. In its first issue, Employer claims that the trial court erred in
finding the Contract term “net collected receipts,” as it pertained to the
allocation of the cost of vaccines administered by Employee, ambiguous
simply because the Contract did not define it and the parties offered two
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different interpretations of it. Employer’s Brief at 16-17. Employer
emphasizes that the “mere existence of differing contractual interpretations
by contracting parties does not render a contract ambiguous.” Id. at 17
(quoting Krizovensky v. Krizovensky, 624 A.2d 638, 643 (Pa. Super.
1993)). Employer suggests that, rather than “prematurely conclude” that an
ambiguity existed, the court should have consulted the dictionary to
understand the plain meaning of “net collected receipts.” Id. at 17-18. Had
the court done so, Employer concludes that the court would have “recognized
that the distinct and substantial ‘expense’ the medical practice incurred by
pre-purchasing vaccines out-of-pocket clearly should be excluded from ‘net
collected receipts.’” Id. at 18.
Relatedly, in its second issue, Employer claims that the court’s
interpretation of “net collected receipts” was unreasonable because it was
contrary to the weight of the evidence elicited at trial and the established rules
of contract construction. Id. at 18-19, 21-22. In particular, Employer alleges
that the trial court “made no attempt . . . to weigh the extrinsic evidence to
discern the most reasonable, probable, and natural interpretation of ‘net
collected receipts.’” Id. at 20. Employer argues that, in adopting Employee’s
“extreme and implausible” interpretation of “net collected receipts,” the court
erroneously excluded one of Employer’s “largest identifiable and attributable
expense outlays” from Employee’s compensation calculation. Id. at 20.
Employer also alleges that the court erred in construing this term against
Employer as the drafter. Id.
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As noted supra, it is well-settled that “[a]contract is ambiguous if it is
reasonably susceptible of different constructions and capable of being
understood in more than one sense.” Insurance Adjustment Bureau, Inc.,
905 A.2d at 468-69. “A contract is not ambiguous if the court can determine
its meaning without any guide other than knowledge of the simple facts on
which, from the nature of the language in general, its meaning depends.”
Trombetta v. Raymond James Fin. Servs., Inc., 907 A.2d 550, 562 (Pa.
Super. 2006). “A contract is not rendered ambiguous by the mere fact the
parties do not agree on the proper construction.” Id. “It is the function of
the court to decide, as a matter of law, whether the contract terms are clear
or ambiguous.” Tuthill v. Tuthill, 763 A.2d 417, 420 (Pa. Super. 2000)
(citations omitted).
Instantly, the parties offered the trial court two differing definitions of
“net collected receipts.” Employee suggested that the term meant simply the
amount of money actually collected by Employer from insurance companies
and from patient co-pays. Employer interpreted the term to mean the amount
of money Employer collected from insurance companies and patients, less the
cost of vaccines purchased by Employer and other expenses. The trial court
found that it was unable to ascertain the definition of “net collected receipts”
from the Contract’s plain language. Thus, the term “net collected receipts”
was ambiguous as a matter of law, and, the court construed it against
Employer to exclude Employer’s vaccine costs from the calculation of
Employee’s compensation. Trial Ct. Op., 6/14/18, at 6-7.
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In particular, it explained as follows:
The subject [Contract] never explicitly defines the term “net
collected receipts.” There is no mention of what is to be deducted
from receipts to obtain the amount of net collected receipts. In
particular, there is no mention of vaccines anywhere in the
[Contract]. . . .
The term “net collected receipts” could mean the net amount
collected from the insurance company from the amount actually
billed, or it could imply deductions of unspecified expenses. []
Weiser testified that many categories of expenses do not figure in
the “net” calculation because they are not easily discernable in
terms of which doctor is responsible for which expenses. The
selection of which costs, if any, were to be deducted in calculating
[Employee’s] net collected receipts is not clear in the [Contract]
and disputed by the parties. Since the [Contract] did not define
how “net collected receipts” should be calculated, the
indefiniteness of the term rendered it susceptible to different
construction.
Id. at 6-7.
In sum, the trial court found that: (1) the parties presented two
competing interpretations of the definition of “net collected receipts”; and (2)
the court was unable to determine its meaning from the plain language of the
Contract. Given this, we agree with the trial court that the term “net collected
receipts” is ambiguous.
Employer also suggests that had the court simply consulted a dictionary
to ascertain the definition of “net” it would have concluded that the term is
unambiguous. We agree with the trial court that this contention lacks merit.
The court considered this argument, but found that the Black’s Law Dictionary
definition of “net”—“[c]lear of anything extraneous; with all deductions, such
as charges, expenses, discounts, commissions, taxes, etc.; free from
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expenses”—“is not precise enough to interpret the [Contract] when
considering [Weiser’s] own testimony that one unspecified category of
expenses (cost of vaccines) was included in the [Contract] and not other
expenses.” Id. at 7 (citing Black’s Law Dictionary, 10th ed. 2014).
With respect to Employer’s claim that the court erred in construing the
Contract against it, the court explained that it reached its conclusion that “‘net
collected receipts’ was intended to have a meaning consistent with
[Employee’s] testimony” based primarily on its review of the extrinsic
evidence, including Employee’s and Weiser’s testimony. Trial Ct. Op.,
6/14/18, at 7-8. It noted that the fact that Weiser drafted the Contract was
“merely an additional reason to interpret the [Contract] against” Employer.
Id. at 8.
Because the court appropriately concluded that the term “net collected
receipts” is ambiguous,” as the fact-finder, it properly considered extrinsic
evidence, including the testimony of the parties as to their understanding of
the meaning of the term. The trial court’s findings are supported by the
competent evidence of record. Accordingly, Employer is not entitled to relief
on these claims.
In its final issue, Employer claims the trial court erred in determining
that Employee administered at least 25 H1N1 flu vaccines on October 31,
2009, for which Employer did not compensate her. Employer’s Brief at 25.
Employer characterizes Employee’s testimony about this allegation variously
as “mistaken and conflicting,” “uncertain, unsubstantiated, and conflicting,”
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and undermined by her failure to present any documentary evidence in
support. Id. at 26, 28. Essentially, Employer challenges the weight the trial
court gave to Employee’s testimony.
This court will not substitute its assessment of credibility for that of the
finder of fact. Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super.
2009). The trial court’s denial of a weight claim is the least assailable of its
rulings. Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). See
Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (stating
that because the trial court is in the best position to view the evidence
presented, an appellate court will give that court “the utmost consideration”
when reviewing its weight determination).
Here, the trial court found that Employee “testified credibly regarding at
least twenty-five H1N1 flu vaccines that she administered on October 31,
2009.” Trial Ct. Op., 6/14/18, at 8 (internal quotation marks omitted). It
explained that the credible record evidence supported its finding that
Employee was uncompensated for the patient co-pays received by Employer
for administering those vaccines. Id. Employer asks us to reweigh the
evidence and the trial court’s credibility determination and reach a different
conclusion. We cannot and will not do so. Accordingly, this claim also fails.
Judgment affirmed.
Judge Panella joins the memorandum.
Judge Kunselman files a Concurring and Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/19
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