Central PA Radiation Oncology, P.C., a PA corp. v. The Good Samaritan Hospital of Lebanon, PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Pennsylvania Radiation
Oncology, P.C., a Pennsylvania
corporation,
Appellant
V. : No. 1004 C.D. 2020
: SUBMITTED: September 20, 2021
The Good Samaritan Hospital of
Lebanon, Pennsylvania, a Pennsylvania :
Corporation, WellSpan Health, a
Pennsylvania Corporation, and Robert
Longo, an adult Individual
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: December 15, 2021
Central Pennsylvania Radiation Oncology, P.C. (Central), appeals from
an order of the Court of Common Pleas of Lebanon County granting the motion for
summary judgment filed by Good Samaritan Hospital of Lebanon, Wellspan Health,
and Robert Longo (collectively, Appellees) and dismissing, with prejudice,
Central’s second amended complaint. In addition, the trial court dismissed, with
prejudice, the second amended counterclaim filed by Appellees.'_ However, both
' The Superior Court transferred this appeal to Commonwealth Court pursuant to the
following:
[Commonwealth Court’s] exclusive jurisdiction of appeals from
final orders of the courts of common pleas in. . . [a]ll actions or
(Footnote continued on next page...)
parties agree that Appellees’ counterclaim was withdrawn. We conclude that the
issues presented to this Court have been thoroughly reviewed and correctly analyzed
in the opinion of the Honorable Charles T. Jones, Jr. Accordingly, mindful that there
is no longer an operative counterclaim, we affirm based on Judge Jones’ opinion
captioned Central Pennsylvania Radiation Oncology, P.C. v. The Good Samaritan
Hospital of Lebanon, Pennsylvania, (No. 2015-02124, Lebanon County C.P. Pa.
filed January 30, 2020).
By way of background, Good Samaritan Hospital officially became
WellSpan Good Samaritan Hospital in 2015. Having formerly served as president
of Good Samaritan Hospital, Robert Longo became senior vice president of
WellSpan Health. Before Central’s 2016 closure, Central provided radiation
oncology therapy in Lebanon County. Now deceased, Dr. Abdurrahman Unal
served as Central’s medical director.
In 2007, Longo engaged consultants to help implement the goal of
opening a new cancer center that would provide both medical and radiation
oncology. Subsequently, Good Samaritan Hospital reached out to Central and met
confidentially with Dr. Unal and several other area physicians. The intent of the
people affiliated with Good Samaritan Hospital in arranging the meetings and what
occurred during those meetings is disputed. In any event, in 2014, Good Samaritan
Hospital announced the development of its new cancer center and in January 2016,
proceedings otherwise involving the corporate affairs of any
corporation not-for-profit subject to Title 15 [of the Pennsylvania
Consolidated Statutes (relating to corporations and unincorporated
associations)] or the affairs of the members, security holders,
directors, officers, or employees or agents thereof, as such.
Section 762(a)(5)(i1) of the Judicial Code, 42 Pa.C.S. § 762(a)(5)(i1).
the new Sechler Family Cancer Center opened. In August 2016, Central closed. The
gravamen of Central’s eight-count second amended complaint is that the two
nonprofits, Good Samaritan Hospital and WellSpan Health, formed a partnership
with Central and then subsequently breached their fiduciary duties. Much of
Central’s case is premised upon statements made by Dr. Unal, who died in June 2016
without ever having been deposed.
As Judge Jones ruled, the admissible evidentiary record contains
insufficient facts to make out a prima facie case for any of the eight causes of action.
Accordingly, with the clarification that there is no longer an operative counterclaim,
we affirm based on the trial court’s opinion.?
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
? In response to Judge McCullough’s thoughtful dissent, it remains clear that Central cannot
establish that Good Samaritan owed any duty to it without introducing out-of-court hearsay
statements of Dr. Unal, which are clearly not admissible. In other words, without being able to
establish why information was given to Good Samaritan, Central cannot show any obligation on
the part of Good Samaritan to treat the information in any particular way.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Pennsylvania Radiation
Oncology, P.C., a Pennsylvania
corporation,
Appellant
V. No, 1004 C.D. 2020
The Good Samaritan Hospital of
Lebanon, Pennsylvania, a Pennsylvania :
Corporation, WellSpan Health, a
Pennsylvania Corporation, and Robert
Longo, an adult Individual
ORDER
AND NOW, this 15" day of December, 2021, the order of the Court of
Common Pleas of Lebanon County is hereby AFFIRMED based on the attached
opinion of the Honorable Charles T. Jones, Jr., captioned Central Pennsylvania
Radiation Oncology, P.C. v. The Good Samaritan Hospital of Lebanon,
Pennsylvania, (No. 2015-02124, Lebanon County C.P. Pa. filed January 30, 2020).
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
_ ETEREO & FILED.
IN THE COURT OF COMMON PLEASPROTHONOTA RY OFFICE
OF LEBANON COUNTY, PENNSYLVANIA - “=8AHGN, PA |
| 18D. JAN 30 A852.
CIVIL DIVISION
CENTRAL PENNSYLVANIA
RADIATION ONCOLOGY, P.C.,
a Pennsylvania professional corporation,
Plainti ft/Counter-Defendant,
Vv, : Docket No.: 2015-02124
THE GOOD SAMARITAN
HOSPITAL OF LEBANON,
PENNSYLVANIA, a Pennsylvania
Corporation, and WELLSPAN
HEALTH, a Pennsylvania corporation,
Defendants/Counter-Plaintiffs,
ORDER OF COURT
AND NOW, to wit, this 29th day of January, 2020, after careful consideration
of the record and the oral arguments set forth by the parties, Defendants’ Motion for
Summary Judgment is -hereby- GRANTED. The ‘Complaint is“Disiiissed’ with
Prejudice. In addition, Defendants’ Second Amended Counterclaim is Dismissed
with Prejudice.
BY THE COURT:
Lule
ARLES T. JONESY, JR.
cc: Andrew J. Kennedy, Esquire
Andrew J. Race, Esquire
—
aTERED & sriLeD
IN THE COURT OF COMM6¢ cla gFFice
OF LEBANON COUNTY, PENNSYE¥
1810 JN 30 ‘Dh B52
CIVIL DIVISION
CENTRAL PENNSYLVANIA
~ RADIATION ONCOLOGY, P.C.,
a Pennsylvania professional corporation,
Plaintiff/Counter-Defendant,
v. : Docket No.: 2015-02124
THE GOOD SAMARITAN
- HOSPITAL OF LEBANON,
PENNSYLVANIA, a Pennsylvania
Corporation, and WELLSPAN
HEALTH, a Pennsylvania corporation,
Defendants/Counter-Plaintiffs.
APPEARANCES:
Andrew J. Kennedy, Esquire For Plaintiff/Counter-Defendant
Andrew J. Race; Esquire ee ‘For Defendarits/Counter-Plaintiffs
OPINION BY JONES, JR. J.:
Before this Court is Defendant’s Motion for Summary Judgment.
I, FACTUAL HISTORY
Plaintiff/Counter-Defendant Central Pennsylvania Radiation Oncology, P.C.
a/k/a Lebanon Valley Cancer Center is a Pennsylvania professional corporation.
Plaintiff alleges that for over twenty-five years it was the sole provider of radiation
oncology therapy in Lebanon County, Pennsylvania. Dr. Abdurrahman Unal, M.D.
was the Medical Director of Plaintiff and passed away shortly after litigation
commenced. Plaintiff initiated this matter because it is Plaintiff's belief that
2
Defendants purposefully deceived Plaintiff for the purpose of learning confidential
information from Plaintiff. Plaintiff claims that Defendants then used the |
confidential information to assist in destroying Plaintiffs business in Lebanon,
Pennsylvania.
Defendants/Counter-Plaintiffs include The Good Samaritan Hospital of
Lebanon, Pennsylvania, a Pennsylvania corporation, WellSpan Health, a
Pennsylvania corporation, and Mr. Robert Longo, an adult individual. The Good
Samaritan Hospital (hereinafter “GSR”) entered into an affiliation with WellSpan
Health in December of 2014 with GSH officially becoming part of WellSpan .
Health (hereinafter “WellSpan”) on July 1, 2015. Defendant Robert Longo is the
former President and CEO of GSH and former Senior Vice-President of WellSpan.
The issues in this case began in the early 2000’s. For several years between
2000 and 2015, GSH suffered financial losses. During this time, Robert Longo
(hereinafter “Longo”) and GSH determined the hospital should open a new,
comprehensive cancer center that would provide both medical oncology and
radiation oncology. In 2007, at the direction of Longo, GSH engaged Oncology
‘Resource Consultants, Inc. (hereinafter “ORC”) to advise GSH in developing the
hew cancer center. A working group, headed by Longo, was established to
accomplish the goal of providing radiation oncology therapy in the new cancer
center. Plaintiff Ex. 44.
In the summer of 2007, GSH determined it would reach out to Plaintiff
Lebanon Valley Cancer Center (hereinafter “LVCC”) and meet confidentially with
Dr. Unal along with several other physicians in the area. It is disputed what the
intent of GSH was in arranging the meetings and what actually occurred at each
meeting. Plaintiff claims GSH intended to work together to create a co-location
with Plaintiff, unify radiation oncology in Lebanon, and hire Dr. Unal. Plaintiff
argues that under the guise of the parties working together towards a joint cancer
3
center, GSH obtained detailed confidential information from Plaintiff including its
revenue, costs, profits, operational techniques, and marketing techniques. Plaintiff
Ex. 27, 45.
Plaintiff claims this information was partially obtained when ORC President,
Nancy Bookbinder, met with Dr. Unal on the behalf of GSH. The meetings took |
place at GSH. Plaintiff argues Nancy Bookbinder (“hereinafter Bookbinder”)
informed Dr. Unal that she was advising GSH on developing a new cancer center
with Plaintiff and asked Dr. Unal to provide confidential information to GSH. GSH
argues the purpose of the meetings was to meet with local physicians to complete
an analysis of local care. GSH denies any agreement to open a joint center or form
any partnership or joint venture. Plaintiff Ex. 27, 45.
After meeting with Dr. Unal, the working group, Long, and ORC established a
strategic plan for the creation of the new cancer center. This plan consisted of
inviting Dr. Unal to the next working group session to discuss potential unifying
efforts. The strategic plan also listed co-location of ambulatory oncology services
in a community cancer center as a specific goal. In order to accomplish this
_ Specific goal, the stratégic plan sugpéstéd that GSH meet with [VCC “to
determine interest in any issues associated with potential co-location of radiation
therapy services in a new ambulatory cancer center.” Plaintiff Ex. 29, P. 53.
In September of 2012, ORC provided GSH with an analysis and prospects of
the potential cancer center. The analysis included a projection that if LVCC
remained in business, the new cancer center at GSH would only treat between
twenty (20) and twenty-four (24) radiation oncology patients a day. ORC labeled
this as the “worst case scenario.” The probable and optimal case scenarios of the
analysis included GSH performance if LVCC closed. Ultimately, ORC projected
that if LVCC did not close, GSH medical oncology would lose approximately $2.8
million over a five-year period. If LVCC were to close, GSH would profit
4
approximately $8.9 million over a five-year period in the probable case and $11.9
million in the optimal case scenario. Plaintiff Ex. 43, 44, 45.
In 2013 or 2014, GSH employee Kelly Smith (hereinafter “Smith”) met with
Susan McCoy, Office Manager at LVCC. Plaintiff claims the purpose of this
meeting was for Smith to be trained by Plaintiff on all aspects of providing
radiation oncology therapy care, from patient intake through discharge and billing.
Plaintiff states that during this meeting, Smith obtained confidential information
including Plaintiffs operational efficiency, quality of assurance, strategic
marketing plans, and confidential referral sources. Plaintiff argues Smith then used
this information in developing the new cancer center at GSH. Plaintiff also claims
that Susan McCoy (hereinafter “McCoy”) was under the impression that a
reciprocal meeting would occur at GSH. However, after reaching out to Smith
three (3) times to arrange a cross training at GSH, Smith never scheduled a training
with McCoy. Plaintiff Ex. 46, 58.
Around the time of the meeting/training, Dr. Unal instructed McCoy and LVCC
employee Paul M. Castro, Ph.D. (hereinafter “Dr. Castro”) to send Smith LVCC’s
1* Quarter of 2014 Quality Assurance Report dated April of 2014. Plaintiff claims ~~ ~~
this information was sent with the belief that GSH and Plaintiff were working
together. Plaintiff Ex. 59.
In the spring of 2014, GSH announced the development of their new cancer
center. On June 26, 2014, Attorney Iles Cooper for L VCC sent a letter to Longo
addressing the recent announcement and Dr. Unal’s concerns for treatment in the
area. The letter also stated:
As you are also probably aware, through your consultants interviews
with Dr. Unal and tour of the Lebanon Valley Cancer Center,
substantial investments have been made to modernize and upgrade the
Center’s equipment within the last two (2) years.
The purpose of my writing is to determine the interest of GSH in
developing a collaborative cancer model for the Lebanon Valley
service area which would include Dr. Unal and the Center in the long-
term plans of GSH. a |
On behalf of Dr. Unal and the Center, I believe it would be
constructive to hold a meeting between the parties to explore the best
use of limited community resources for the best possible outcomes for
cancer care. :
If you believe a meeting would be mutually desirable, please have
your assistant contact me with your availability.
' In addition to the letter, Plaintiff, through Dr. Unal, hired an outside advertising
firm to create and publish advertisements and articles addressing the construction
of the new cancer center. These articles included statements on GSH’s use of tax
dollars, laying off employees, and wrongfully competing with Plaintiff. These
articles were then printed in the Lebanon Daily News, Penn Live, and other online
and print sources. |
While the new cancer center was under construction in October 201 5, Plaintiff
_ argues GSH stopped referring patients to LVCC in order.to put Plaintiff out of
business. Plaintiff states that on behalf of GSH, Longo and Smith directed
oncologists at GSH to stop referring patients to LVCC. Specifically, Plaintiff
claims Drs. Karla Ludwig, Riben Perez, Neenos Al-Noor, and Muhammad Khan
refused to refer patients to Plaintiff or any radiation oncologists in order to create a
backlog of patients for the new cancer center. Plaintiff states these employees also
told patients to retrieve their records from Plaintiff because Plaintiff was going out
of business, Within the Complaint, Plaintiff provides a detailed list of patients who
they argue were wrongly diverted away from treatment with LVCC by GSH. The
dates of diversion range from September of 2015 to April of 2016. GSH denies any
patients were told Plaintiff was closing or that they stopped referring to LVCC
before GSH’s cancer center opened. |
The Sechler Family Cancer Center (SFCC) eventually opened at GSH in
January of 2016. Until the opening of the facility, GSH had never previously
provided radiation oncology services.
In August of 2016, LVCC closed. After closing, Plaintiff hired Michael Andrew
Elinsky (hereinafter “Elinsky”) to assess business damages. Elinsky issued two
reports: one addressing Plaintiff's damages and the other addressing the
relationship between Plaintiff and GSH. The Elinsky Report opined that there was
a confidential relationship between the parties and GSH abused its confidential
position by seeking information from LVCC after GSH had decided to open their
own cancer center. The Elinsky Report also stated that these actions by GSH
support the position of an agreement between the parties and GSH thereby
breached its duty by acting with the intent to harm LVCC through fraud or
deception. Plaintiff Ex. 4.
IL ... PROCEDURAL HISTORY.
This case was initiated on December 1, 2015, by Writ of Summons. The
Complaint alleges eight (8) counts including: (1) Breach of Fiduciary Duty against
Good Samaritan Hospital and Robert Longo; (2) Breach of F iduciary Duty against
WellSpan and Robert Longo; (3) Violation of the Pennsylvania Trade Secrets Act
against all Defendants; (4) Civil Conspiracy against Good Samaritan Hospital and
WellSpan; (5) Intentional Misrepresentation against Good Samaritan Hospital and
Robert Longo; (6) Negligent Misrepresentation against Good Samaritan Hospital
and Robert Longo; (7) Tortious Interference with Existing Contractual Relations
against Good Samaritan Hospital; and (8) Tortious Interference with Prospective
Contractual Relations against Good Samaritan Hospital. After multiple protective
7
orders, preliminary objections, and miscellaneous Orders, Plaintiff filed a Second
Amended Complaint on December 28, 2017.
Defendants filed their Answer, New Matter, and Counterclaim on J anuary 16,
2018. Plaintiff filed Preliminary Objections on February 5, 2018. In response,
Defendants filed an Amended Answer, New Matter, and Counterclaim on February
6, 2018, thereby mooting Plaintiff's Preliminary Objections. Plaintiff then filed
Preliminary Objections to the Amended Answer, New Matter, and Counterclaim
on February 23, 2018. An Order and Opinion addressing these Preliminary
Objections was issued on September 17, 2018. Defendants then filed a Second
Amended Counterclaim, Answer, and New Matter on November 16, 2018.
Plaintiff filed Preliminary Objections to Defendants’ Second Amended
Counterclaim, Answer, and New Matter on December 7, 2018. Defendants did not
_ file a brief addressing the Preliminary Objections. Plaintiff then filed a motion to
close discovery.
On September 16, 2019, Defendants filed a motion for Summary Judgment.
This case was listed for oral argument on November 19, 2019. Both parties have
submitted briefs-on the issues. The parties have agreed that the relevant pleadings
and discovery are closed. This matter is now ripe for disposition.
Ill. STANDARD OF REVIEW
Summary judgment should be granted whenever the pleadings, depositions,
answers to interrogatories, admissions, and affidavits demonstrate there is no issue
of material fact and that the moving party is entitled to judgment as a matter of law.
Pa. R. Civ. P. 1035.1-5. The moving party has the burden of proving that there is
no genuine issue of material fact, and the record must be viewed in the light most
favorable to the non-moving party. Thompson Coal Co. v. Pike Coal Co., 412 A.2d
466 (Pa. 1979); Davis v. Pennzoil, 264 A.2d 597 (Pa. 1970). Once the moving party
8
establishes that there is no issue of material fact, the adverse party may not rest upon
the mere allegations or denials of the pleadings but must file a response. Pa. R. Civ.
P. 1035.3. Summary judgment should only be granted where the right is clear and
free from doubt, and any doubt must be resolved against the moving party. Musser
v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989); Davis v. Pennzoil, 264
A.2d 597 (Pa. 1970). The court must consider uncontroverted facts in the non-
moving party’s pleadings and ignore controverted facts. Hower v. Whitmark
Assocs., 538 A.2d 524, 525 (Pa. Super. 1988).
Averments in a pleading to which a responsive pleading is required are admitted
| when not denied specifically or by necessary implication. Pa. R. Civ. P. 1029(b).
A general denial or a demand for proof has the effect of an admission. Pa. R. Civ.
P. 1029(b). The pleadings should be examined as a whole in determining whether
a party has admitted the material factual allegations of a pleading. Kappe Associates,
Inc. v. Aetna Cas. & Sur. Co., 341 A.2d 516 (Pa. Super. 1975). “Where a motion
for summary judgment has been made and properly supported, the party seeking to
avoid the imposition of summary judgment must show by specific facts in their
depositions, answers to interrogatories, admissions, or affidavits that there is a
genuine issue for trial.” Marks v. Tasman, 589 A.2d 205, 206 (Pa, 1991). “Failure
of a non-moving party to adduce sufficient evidence on an issue essential to his case
and on which it bears the burden of proof... establishes the entitlement of the moving
party to judgment as a matter of law.” Young v. PennDOT, 744 A.2d 1276, 1277
(Pa. 2000). Therefore, “[a] proper grant of summary judgment depends upon an
evidentiary record that either (1) shows the material facts are undisputed or (2)
contains insufficient evidence of facts to make out a prima facie cause of action or
defense.” Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d 855, 858 (Pa. Super.
2004) (quoting McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa.
Super. 1998)).
IV. DISCUSSION
Defendants filed a motion for Summary Judgment against all eight (8) counts
raised in the Amended Complaint. Defendants also made two additional arguments
regarding Dr. Unal’s previous statements and the admissibility of the Elinsky
Report. Based on Defendants’ brief, Plaintiff made an additional argument
regarding Defendants’ reliance on Bookbinder’s deposition. The Court will
combine the analysis for Counts I and Il, Counts V and VI, and Counts VII and
VIII, but will address all other arguments separately. In addition, this Court will
also address Defendants Second Amended Counterclaim.
A. ADMISSIBILITY OF DR. UNAL’S PREVIOUS STATEMENTS
Defendants argue Dr. Unal’s statements are not admissible and cannot form the
basis of a defense to summary judgment. Specifically, Defendants argue there was
no opportunity to cross-examine Dr. Unal and he is now unavailable, Therefore,
Defendants claim all statements offered by Dr. Unal are inadmissible and any
witness who relies solely upon Dr. Unal’s inadmissible statements cannot offer
testimony. Sook ee teeta te vet ee ae
7 Under Rule 804 of the Pennsylvania Rules of Evidence, a declarant is
considered to be unavailable as a witness if the declarant cannot be present or
testify at the trial or hearing because of death. Pa. R. E. 804(4). An unavailable
witness’s prior testimony may be admitted provided the opposing party had a “full
opportunity to cross-examine that witness at a prior proceeding. Commonwealth y.
Johnson, 758 A.2d 166, 169 (Pa. Super. 2000). If the opposing party has not had a
full and fair opportunity to cross-examine an unavailable witness, the testimony is
not admissible at trial. Commonwealth v. Bazemore, 614 A.2d 684, 685-686 (Pa.
1992). A motion for summary judgment cannot be supported or defeated by
10
statements that include inadmissible hearsay evidence. Botkin v. Metropolitan Life
Ins. Co., 907 A.2d 641, 649 (Pa. Super. 2006).
Here, there is no question that Dr. Unal is an unavailable witness.
Unfortunately, Dr. Unal died and therefore could not be cross-examined by
Defendants. As such, any statements made by Dr. Unal or witnesses that rely
solely on his statements are inadmissible. Thus, these statements may not be used
to defeat Defendant’s Motion for Summary Judgment and the Court will not
consider them.
B. BREACH OF FIDUCIARY DUTY AGAINST GOOD SAMARITAN
HOSPITAL, WELLSPAN, AND ROBERT LONGO
Defendants argue there is not sufficient evidence to establish a partnership was
formed between the parties. Defendants claim there is no evidence of record
Defendants ever intended or discussed making Plaintiff a “co-owner of a business
for profit” like Plaintiff claims. In addition, Defendants state that Plaintiff failed to
provide facts sufficient to establish the requirements to create a joint venture.
‘Defendants argue Plaintiff has failed to bring to light any facts or evidence;
documentary or otherwise, sufficient to create an inference that there was a “joint
proprietary interest” or the “right of mutual control” that is required to create a
joint venture. Defendants also claim there are no allegations that any profit sharing
was intended or discussed by any of the parties. Therefore, as there is no
confidential relationship nor any fiduciary duty, Defendants argue summary
judgment should be granted in favor of Count I and Count II.
Plaintiff argues the evidence shows Defendants breached a confidential
relationship and therefore breached their fiduciary duty as part of a joint venture or
as part of a partnership. Specifically, Plaintiff claims that Nancy Bookbinder told
Dr. Unal their conversations were confidential. Due to this assurance, Plaintiff
11
argues Dr. Unal discussed confidential information regarding treatments, referrals,
and evaluations. In addition, Plaintiff claims that both McCoy and Dr. Castro
provided proprietary information to Kelly Smith on the grounds that the two would
be working together. Plaintiff argues this information is enough for a jury to
conclude that there was a confidential and fiduciary relationship between the
parties. |
Finally, Plaintiff claims there is sufficient documentary evidence to support
such a relationship when considering ORC’s documents, the Hospital’s emails, and
Robert Longo, as the head of the working group, inviting Dr. Unal to meet with the
working group. Regardless of these documents, Plaintiff also argues that creating a
confidential relationship does not require a written contract. Plaintiff states that a
fiduciary duty in a joint venture attaches once negotiations being.
Under Pennsylvania law, a partnership is “an association of two or more
persons to carry on as co-owners of a business for profit, whether or not the
persons intended to form a partnership.” 15 Pa. C.S.A. § 8422(a). In order to
determine whether a partnership has been formed, the following rules apply: (1)
‘Joint tenancy, tenancy in’commion, tenancy by the entireties, joint property;
common property or part ownership does not by itself establish a partnership, even
if the co-owners share profits made by the use of the property; (2) the sharing of
gross returns does not by itself establish a partnership, even if the persons sharing
them have a joint or common right or interest in property from which the retums
are derived; and (3) a person who receives a share of the profits of a business is
presumed to be a partner in the business unless an exception applies. Id.
On the other hand, a joint venture is not a status created or imposed by law but
is instead a relationship voluntarily assumed and arising wholly from contract.
Snellbaker v. Herrmann, 462 A.2d 713, 716 (Pa. Super. 1983). For a relationship
to be a joint venture, the following factors are essential: (1) each party to the
12
venture must make a contribution, not necessarily of capital, but by way of
services, skill, knowledge, materials or money; (2) profits must be shared among
the parties; (3) there must be a “joint property interest and right of mutual control
over the subject matter” of the enterprise; and (4) usually, there is a single business
transaction rather than a general and continuous transaction. Snellbaker, 462 A.2d
at 716 (citing McRoberts v. Phelps, 138 A.2d 439, 443-444 (Pa. 1958)). A joint
venture is similar in many ways to that of a partnership, the principal difference
being that it usually, though not always, applies to a single transaction instead of
being formed for the conduct of a continuing business. West v. People First
National Bank & Trust Co., 106 A.2d 427, 431 (Pa. 1954).
In both a partnership and a joint venture, a fiduciary duty exists between the
parties. Snellbaker, 462 A.2d at 718; Clement v. Clement, 260 A.2d 728, 729 (Pa.
1970). A fiduciary duty is the highest duty implied by law. Miller v. Keystone Ins.
Co., 636 A.2d 1109, 1116 (Pa. 1994). This duty requires a party to act with the
utmost good faith in furthering and advancing the other person’s interests,
including a duty to disclose all relevant information. Yenchi y. Ameriprise
Financial, Inc., 161 A.3d 811, 819-820 (Pa. 2017); Basile v. H & R Block, Inc.,
761 A.2d 1115, 1120 (Pa. 2000). A fiduciary duty will be imposed only where the
attendant conditions make it certain that a fiduciary relationship exists. Yenchi,
161 A.3d at 820.
A fiduciary duty does not arise merely because one party relies on and pays for
the specialized skill of the other party. eToll, Inc. v. Elias/Savion Advertising,
Inc., 811 A.2d 10, 23 (Pa. Super. 2002). Specifically, the critical question for
establishing a fiduciary relationship is whether the relationship goes beyond mere
reliance on superior skill, and into a relationship characterized by overmastering
influence on one side or weakness, dependence, or trust, justifiably reposed on the
other side, which results in the effective ceding of control over decision-making by
13
the party whose property is being taken. Yenchi, 161 A.3d at 823 (citing eToll,
Inc., 811 A.2d at 23 (holding that although an advertising company was a “‘trusted
advisor” to a software developer, no fiduciary relationship existed between the
parties). .
In this case, the Court finds there was no fiduciary duty between the parties.
First, neither a partnership nor a joint venture was ever created. There is no
evidence profits were ever shared or that Plaintiff had any “right of mutual
control,” which is fundamental to the creation of both relationships. Second, there
is no evidence of any transactions, contracts, or repeated business transactions.
While LVCC gave Defendants a QA summary and provided training for GSH
because Dr. Unal believed the two would be working together, there is no
indication that was ever the intent of GSH. Bookbinder did meet with Dr. Unal
_ confidentially, as she did with multiple physicians in the area, but both her notes
and her testimony indicate there was never any talk of hiring Dr. Unal or
collaborating with LVCC to create a joint cancer center. This is also true for both
Longo and WellSpan, who have had even fewer interactions with Plaintiff than
GSH
Additionally, as Bookbinder indicated, the ORC goal of discussing with LVCC
the potential for co-locating appear to be just that — a goal. There is no evidence
presented that GSH acted on that goal or created an actual plan to join forces with
LVCC. The letter sent on behalf of Dr. Unal in June of 2014 also supports this lack
of an agreement. The letter indicates interest in collaborating and exploring the
possibility of the parties working together, further undermining Plaintiff s belief a
deal had already been struck with Defendants. In addition, the advertisements
published by Plaintiff against GSH support the conclusions that not only was there
no contract between the parties, but that Plaintiff was well aware they would not be
working together in the future.
14
The same is also true for the financial analysis of SFCC. While ORC indicated
the new cancer center would lose money if LVCC remained in business, there is no
indication GSH moved against LVCC or purposely tried to use any information ©
obtained to undermine LVCC. The financial report provides a clear picture ofa
financial future for a new cancer center, but does not indicate GSH intended or did
take action against LVCC. As there was no fiduciary duty created by either a joint
venture or a partnership, and there was no action on the part of GSH to breach a
fiduciary duty even if one had been created, Counts I and II of the Amended
Complaint must be dismissed.
C. VIOLATION OF THE PENN SYLVAN IA UNIFORM TRADE
SECRETS ACT AGAINST ALL DEFENDANTS
First, Defendants argue the three-year statute of limitations expired in 2015,
prior to filing the Writ of Summons. Specifically, Defendants argue Dr. Colkitt
testified that in early 2012, there was no longer any indication of forward
movement between the parties. Defendants state that at that time, Plaintiff either
knew or should have known whether a cause of action existed. —
Second, regardless of the statute of limitations, Defendants st state there j is no
evidence to substantiate a violation of the Uniform Trade Secrets Act. Defendants
claim that in response to Discovery, Plaintiff stated it failed to retain any
documents allegedly provided to Nancy Bookbinder that would constitute the
confidential information provided by Dr. Unal. Defendants argue Plaintiff can
produce only one document, an eight-page quality assurance summary provided to
Defendants, which addressed one quarter of 2014. In addition, when Kelly Smith
met with Susan McCoy at Plaintiff's facility, Ms. Smith took less than one page of
notes on a small notepad between 8:30 a.m. to 1:30 p.m. As these are the only
15
documents that transferred between the parties, Defendants argue there is no
evidence that any trade secrets were exchanged or used.
Plaintiff first argues the statute of limitations has not expired because in both
2013 and 2014, Defendants obtained proprietary information based on the premise
of working together to jointly develop a cancer center. Second, Plaintiff argues that
Defendants did in fact receive confidential information as shown by the testimony
of McCoy, Dr. Castro, Bookbinder, and the Elinsky Report. Plaintiff states that
Defendants obtained this information by improper means when they agreed to keep
this information confidential under the assumption that the parties would be
developing a joint cancer center.
The Pennsylvania Uniform Trade Secrets Act (hereinafter “the Act”) allows a
court to issue injunctive relief, based on threatened or actual misappropriation of a
trade secret. 12 Pa. C.S.A. §5302-5303. In order to state a claim under the Act, the
disputed information must first qualify as a trade secret. Pestco, Inc. v. Associated
Products, Inc., 880 A.2d 700, 706 (Pa. Super. 2005). A trade secret is defined as
information, including a formula, drawing, pattern, compilation including a
Customer list, program, device, method, technique or process that: (1) derives
independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainable by proper means, other persons who can
obtain economic value from its disclosure or use; and (2) is the subject or efforts
that are reasonable under the circumstances to maintain its secrecy. 12 Pa. C.S.A,
§5302.
No bright line rule exists on what constitutes a trade secret; rather, the issue is
analyzed on a case-by-case basis. Pestco, Inc., 880 A.2d at 706. Several factors are
relevant to the analysis including: (1) the extent to which the information is known
outside of the company's business; (2) the extent to which it is known by
employees and persons inside the company; (3) the extent of measures the
16
employer has taken to guard the secrecy of the information; (4) the value of the
information to the company and its competitors; (5) the amount of effort or money
expended in developing the information; and (6) the ease or difficulty with which
the information could be properly acquired or duplicated by others. Crum vy,
Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578, 585 (Pa, Super.
2006). “The crucial indicia for determining whether certain information constitutes
a trade secret are ‘substantial secrecy and competitive value to the owner.’” O.D,
Anderson, Inc. v. Cricks, 815 A.2d 1063, 1070 (Pa. Super. 2003).
In this case, there is no evidence Defendants violated the Uniform Trade Secrets
. Act. First, the notes taken by Smith from the meeting at LVCC with McCoy are
insufficient to constitute a trade secret. From the short period of time spent at
LVCC and the minimal amount of notes taken, it does not appear that Smith
obtained any secret information. In addition, Plaintiff is unable to articulate any
specific trade secret that Smith might have obtained or used that was of
competitive value to Plaintiff.
Second, the eight-page 2014 Quality Assurance summary given to Defendants
by McCoy and Dr. Castro cannot be considered a trade secret. Thesummary
provides a small look into LVCC. While this information is potentially helpful to
either Plaintiff or Defendant, it does not amount to the level of valuable, secret
information that is of great importance to LVCC. In addition, Plaintiff readily gave
the information to Defendants and it does not appear that any “improper means”
were used to obtain the summary. As stated above, there is no evidence Defendants
ever actively moved to create a joint cancer center with Plaintiff As such,
Plaintiffs incorrect assumption or belief that they would be working together with
Defendants and thereby giving Defendants the summary would not establish
improper means on Defendants part.
17
Third, as stated above, there is no evidence Bookbinder obtained any
confidential information from her meetings with Dr. Unal. Therefore, Count III for
violation of the Uniform Trade Secrets Act must be dismissed. As such, whether or
not the statute of limitations had expired on this claim is irrelevant.
D. CIVIL CONSPIRACY AGAINST GOOD SAMARITAN HOSPITAL
AND WELLSPAN
Defendants argue all actions within the Complaint took place before WellSpan
joined with GSH. Therefore, Defendants claim, because the civil conspiracy is
only actionable against GSH and GSH cannot conspire with itself, there cannot be
a valid claim for civil conspiracy. In addition, Defendants argue Plaintiff has failed
to provide the documents necessary to support a claim for civil conspiracy and
summary judgment must therefore be granted.
Plaintiff argues admissions within the pleadings establish that WellSpan came
into the picture in 2013, well within the time frame to be a party to civil
conspiracy. Plaintiff also argues that the documents in this case show WellSpan
-Was concemed.about the cancer-center and needed-Plaintif€-out of. -business inorder -~-
for Defendants to not lose millions. Plaintiff also claims that WellSpan was
involved in determining that Dr. Unal should not be hired and WellSpan requested
that GSH keep Dr. Unal uninformed about the progress of the cancer center. As
such, Plaintiff argues Defendants have failed to show that summary judgment is
“free and clear from doubt” and the Court should deny their motion.
In order to establish civil conspiracy, it must be shown that two or more persons
combined or agreed with the intent to do an unlawful act or to do an otherwise
lawful act by unlawful means. Thompson Coal Co. v. Pike Coal Co., 412 A.2d
466, 472 (Pa. 1979). Proof of malice, or an intent to injure, is an essential element
to prove conspiracy. Id. A conspiracy becomes actionable when some overt act is
18 .
done in pursuance of the common purpose or design held by the conspirators and
actual legal damage results. Baker v, Rangos, 324 A.2d 498 (Pa. Super. 1974),
When a plaintiff relies on subsequent acts to establish conspiracy, these acts must
be such as to clearly indicate the prior collusive combination not slight
circumstances of suspicion. Id. (citing Novic y, Fenics, 11 A.2d 871, 874 (Pa.
1940). These subsequent acts must be such as to warrant the belief and justify the
conclusion that the subsequent acts were done in furtherance of the unlawful
combination. Jd. | a
Here, Plaintiff has failed to establish who the conspirators were, what overt act
was done in furtherance of the conspiracy, and any actual legal damage that
resulted from the said conspiracy. Plaintiff mentions GSH’s association with
WellSpan. However, besides GSH joining with WellSpan around 2015 , there is no
evidence presented that WellSpan had any connection or contact with Plaintiff
Second, Plaintiff can only offer suspicions that Defendants must have worked
together to undermine Plaintiff. There is no proof of malice within the record to
establish a conspiracy. Any actions or events Plaintiff cites to, such as the probable
and optimal case within the ORC report, are only-speculations as to Defendanty’ ~~
intent. These beliefs are insufficient to establish civil conspiracy and Count IV
therefore must be dismissed,
E. INTENTIONAL AND NEGLIGENT MISREPRESENTATION
AGAINST GOOD SAMARITAN HOSPITAL AND ROBERT LONGO
Defendants argue there is not sufficient evidence to show that any
representations were made to Dr. Unal or any other Plaintiff. Defendants claim
there is no evidence of record Defendants ever intended or discussed making
Plaintiff a “co-owner of a business for profit” like Plaintiff claims. In addition,
Defendants argue Plaintiff has failed to bring to light any facts or evidence,
19
documentary or otherwise, sufficient to show a confidential relationship or any
fiduciary duty.
Plaintiff argues a jury could find that GSH had a confidential relationship with
Plaintiff in “co-locating” LVCC with the new cancer center. Plaintiff claims that
Plaintiff was misled about GSHN’s true intention to jointly develop a center
together.
The essential elements of a cause of action for fraud or deceit are
misrepresentation, fraudulent utterance thereof, intention to induce action thereby,
justifiable reliance thereon, and damage as a proximate result. Wilson v. Donegal
Mut. Ins. Co., 598 A.2d 1310, 1315 (Pa. Super. 1991) (citing Neuman v. Corn
Exchange National Bank & Trust Co., 51 A.2d 759 (Pa. 1947)). To be actionable,
a misrepresentation need not be in the form of a positive assertion but is any
artifice by which a person is deceived to his disadvantage. Delahanty v. First
Pennsylvania Bank, N.A., 464 A.2d 1243 (Pa. 1983). This may take the form of
false or misleading allegations or by concealment of that which should be
disclosed, which deceives or is intended to deceive another to act upon it to
A negligent misrepresentation requires proof of: (1) a misrepresentation of a
material fact; (2) made under circumstances in which the representor ought to have
known its falsity; (3) with an intent to induce another to act on it; and (4) which
results in injury to a party acting in justifiable reliance on the misrepresentation,
Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994) (citing Restatement (Second) of
Torts § 552. Ultimately, negligent mi srepresentation differs from intentional
misrepresentation in that to commit the former, the speaker need not know his or
her words are untrue but must have failed to make reasonable investigation of the
truth of those words. Id.
20
Here, there is no evidence that any misrepresentations, let alone any fraudulent
utterances, were ever made in this case. There are no statements made to Plaintiff
or admissions by Defendant that would support a viable claim. Ultimately, the only
evidence Plaintiff relies on are actions of LVCC’s employees based on the belief
Dr. Unal had that a deal with GSH had been made. However, Plaintiff's reliance on
that belief without sufficient evidence supporting an agreement or intent to form a
partnership are insufficient to establish either intentional or negligent
misrepresentation. Plaintiff cannot cite to any other statements, documents, or
claims made by Defendants that would qualify as a misrepresentation, AS such,
Count V and VI must be dismissed.
F. TORTIOUS INTERFERENCE WITH EXISTING AND
PROSPECTIVE CONTRACTUAL RELATIONS AGAINST GOOD
SAMARITAN HOSPITAL
Defendants argue Plaintiff has no sufficient evidence to create any issue of fact
that Defendant ever tortuously interfered with patients and directed patients to
other care providers. Defendants claim that the Second Amended Complaint |
~ accuses ‘Defendant Longo and Kelly Smith that they directed Drs. Ludwig, Perez,
Al-Noor, and Khan to refuse to refer Patients to Plaintiff beginning in October of
2015. However, Defendants state that Dr. Khan did not work at GSH until after the
inception of this suit. Likewise, Defendants claims that Dr. Colkitt testified that Dr.
Ludwig “never sent any patients anyway.” Plaintiff Ex. 48. In addition,
Defendants argue Plaintiff has no evidence that Defendant Longo or Kelly Smith
ever directed anyone to divert patients or that a single patient was actually
diverted. As such, Defendants argue there is not sufficient evidence to create any
issue of fact that Defendants tortuously interfered with patients.
21
Plaintiff argues the evidence shows Defendants interfered with patient referrals,
First, Plaintiff argues the affidavit of Dr. Colkitt shows that consults from outside
referrals to Plaintiff's center dropped to almost nothing from October to November
of 2015, months before SFCC opened. Since there was no other radiation center in
Lebanon, Plaintiff states a jury could find that Defendants were holding patients
back for months until its own cancer center opened. Plaintiff also claims there is
evidence that GSH was telling LVCC patients that Plaintiff was closing even
before SFCC officially opened. Finally, Plaintiff argues they are not required to
identify who was referring patients away from LVCC. Plaintiff states the evidence
provided showing GSH interfered with LVCC patients is enough to deny the
Motion for Summary Judgment. |
In order to set forth a legally sufficient cause of action for intentional
interference with contractual or Prospective contractual relations, four elements
must be pled: (1) the existence of a contractual, or prospective contractual relation
between the complainant and a third party; (2) purposeful action on the part of the
defendant, specifically intended to harm the existing relation, or to prevent a
__ Prospective relation from occurring;-(3)-the absence of privilege-or justification on” ~
the part of the defendant; and (4) the occasioning of actual legal damage as a result
of the defendant’s conduct. Orange Stones Co. y. City of Reading, 87 A.3d 1014,
1025 (Pa. Cmwilth. 2014) (citing Pelagatti v, Cohen, 536 A.2d 1337, 1343 (1971).
It is important to note that interference is an intentional tort, meaning the actor is
acting as he does for the purpose of causing harm to the Plaintiff. Glenn vy. Point
Park College, 272 A.2d 895, 899 (Pa. 1971). “The wrong ordinarily requires
conduct intended to interrupt negotiations or prevent the consummation of a
contract.” Id.After reviewing the record, there is no evidence indicating Defendants acted to
interfere with Plaintiff's patients. In fact, the testimony of McCoy indicates there is
22
no. indication GSH held any patients back, but that Plaintiff simply noticed a
“somewhat decrease of patients in October, November, December” of 2015.
Plaintiff Ex. 46 P. 104. Plaintiff also fails to articulate who specifically interfered
with patients and how patients were withheld from Plaintiff. In answers provided
during discovery, Plaintiff responded “Unknown” to who at GSH interfered with
patients. Defendants Ex. D. Plaintiff speculates regarding actions GSH may have
taken, but this is insufficient to meet the standards required under intentional!
interference. |
In addition, Plaintiff has not indicated which patients were existing patients and
which were prospective patients. Plaintiff mentions patients who were told LVCC
was closing but the patients, who were not deposed, were unable to say who told
them LVCC was closing. The other patients listed by Plaintiff who stopped
treatment at LVCC and began treatment at SFCC, started treatment at SFCC after
the new center opened. While it does appear from Plaintiff's brief and complaint
that the patients were current patients with Plaintiff when they switched treatment
to SFCC, Plaintiff is missing key facts for an intentional interference. Plaintiff does
. nO: State any purposeful action or statements made by Defendants to interfere with ~ a
any patients. Without any evidence of direct steps taken by Defendants, there is no
indication of why the patients left LVCC.
Finally, in the absence of any contract between GSH and Plaintiff, there is no
duty on the part of GSH or its affiliated doctors to refer patients to any specific
providers. GSH would therefore not be required to continue to refer patients to
Plaintiff just because they had referred patients there in the past. As such, Count
VII and Count VIII must be dismissed.
23
G. ADMISSIBLITY OF MICHAEL ELINSKY’S REPORT
Defendants argue the Elinsky Report is inadmissible and Plaintiff cannot use
the report to defeat this Motion. Defendants claim that the Elinksy Report reviewed
no Interrogatory responses, no Request for Production of Document responses, and
only considered four of twenty depositions. In addition, Defendants claim that
when Michael Elinksy drafted the report, he never reviewed the actual eight-page
quality assurance document provided by Susan McCoy, Officer Manager for Dr.
Unal. Defendants also state that the report relies on statements made by Dr. Unal,
which should be inadmissible in this matter, F inally, Defendants claim that since
‘an expert cannot testify on the ultimate question of fact in any civil proceeding, the
report should not be allowed. Asa result, Defendants argue the report cannot be
relied upon to show the existence of a confidential relationship between the parties
or even that negotiations took place.
Plaintiff first argues the Elinsky report only opines on the ultimate issue of the
formation of an agreement ina few sentences within his detailed four-page report,
As such, Plaintiff claims the remainder of the report must be considered. Next,
P | al ntiff States that Defendants mi Stake the.law-on-both-the ultimate issue” arid what
| an expert may base his opinion upon. Plaintiff also states that Defendants’ attack
on Elinsky’s credibility for the information he relied on to form his opinion is
unacceptable at this stage in the proceedings. Plaintiff argues it is up to a jury to
determine credibility, not the Court at summary judgment. Finally, Plaintiff States
that Elinsky did in fact use the eight-page quality assurance summary to support
his opinion that GSH had obtained confidential information under the premise that
Plaintiff and Defendants would be working together, Therefore, Plaintiff argues
this report, in and of itself, creates a genuine issue of material fact and is sufficient
to deny the Motion for Summary Judgment,
24
An expert report must be supported by the record. Downey v. Crozer-Chester
Medical Center, 817 A.2d 517, 528 (Pa. Super. 2003). Specifically, an expert’s
opinion must reference facts, testimony, or empirical data and must delineate how
thé opinion, based on the record, gives rise to a genuine issue of material fact. Id.Without such support, there can be no prima facie case to overcome a summary
Judgment motion. Jd!
In this case, the expert report implies that the transactions between the parties
must mean an agreement was reached. Specifically, the report states “It is common
for companies to reach meaningful agreements, which may be written or verbal,
with each other prior to engaging lawyers to prepare final documents... [T]he
numerous meaningful direct actions of the parties [] clearly demonstrate that an
agreement was reached and acted upon.” Plaintiff Ex. 4. One of the “numerous”
actions the report relies upon are apparent beliefs by Dr. Unal that GSH and LVCC
would be working together which resulted in him sending over a QA report of
LVCC. However, without Dr. Unal, there is no evidence from GSH or other LVCC
employees that the documents sent to GSH were the result of an agreement
between the parties. In addition, none. of Bookbinder’s. notes from-2007-or-204-].- -- =
indicate an agreement had been reached or that GSH intended to partner with
LVCC. The notes state that Dr. Unal had to discuss with his business partners
“with respect to any business opportunities,” but this statement is much too vague
to conclude that GSH was asking to collaborate with LVCC.
The report also relies on the ORC report and training with Smith. As already
addressed, there is not sufficient evidence in either the report or the short training
* See also Kenner y, Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178 (Pa. Super. 2002) (affirming entry
of summary judgment where an expert’s opinion contained within a report, failed to point to specific
facts, testimony, or empirical data for support); Checchio v. Frankford Hospital, 717 A.2d 1058, 1062
(Pa. 1998) (affirmed summary judgment where expert opinion was based entirely on subjective
assessments).
25
session with Smith that either GSH wanted to interfere with LVCC or that an
agreement had been reached. Without any direct statements, concrete evidence, or
documents demonstrating either an agreement had been reached or a confidential
relationship had been established, the conclusions in the report are speculative at
best. Ultimately, the report reviewed small amounts of testimony and very few
documents but still makes broad statements and conclusions without citing specific
evidence. This conclusion is therefore not well founded and would be Prejudicial to
a potential jury. Based on these findings, this Court will not consider the report in
defending the motion for summary Judgment. Since the Court will not use the
report in the summary judgment analysis, whether or not the report opines on an
ultimate issue of law or fact is irrelevant to this analysis.
H. DEFENDANTS’ RELIANCE ON BOOKBINDER’S DEPOSITION IN
VIOLATION OF NANTY-GLO
Plaintiff argues Bookbinder, as president of ORC, was GSH’s agent. Plaintiff
argues that as GSH’s agent, Bookbinder, took thousands of pages of notes and
analyzed years of data. As such, Plaintiff argues, Defendants’ reliance on.
Bookbinder in their brief violates the standard for granting summary judgment,
Plaintiff claims a party cannot rely on the testimony of its own witnesses to show
that the party is entitled to summary judgment. Therefore, Plaintiff argues the
motion should be denied.
Defendants argue Bookbinder is not an agent of GSH but is instead an
independent contractor. As such, GSH is not bound by any of Bookbinder’s
actions. In addition, since Bookbinder is not part of GSH, Nanty-Glo does not
apply to this case.
Under the Nanty-Glo tule, summary judgment is prohibited where the moving
party relies exclusively on oral testimony, either through testimonial affidavits or
26
deposition testimony, to establish the absence of a genuine issue of material fact.
Lineberger vy, Wyeth, 894 A.2d 141 (Pa. Super. 2006). “Testimonial affidavits of
the moving party or his Witnesses, not documentary, even if uncontradicted, wil]
not afford sufficient basis for the entry of summary judgment, since the credibility
of the testimony is still a matter for the jury. Penn Center House, Inc. v. Hoffman,
553 A.2d 900 (Pa. 1989) (quoting Goodrich-Amram. 24 § 1035(b): 4 at P. 434-
35).
Here, while it is true that Defendants do quote Bookbinder, they do not solely
rely on her testimony. In fact, Defendants mostly rely on the absence of evidence
within the record to establish any of Plaintife s claims, As explained above, the
evidentiary record contains insufficient evidence of facts to make out a prima facie
cause of action. The action is consequently dismissed for a failure to make out a
prima facie case, not for lack of a genuine issue of material fact, Therefore,
whether or not Defendants relied on Bookbinder in violation of Nanty-Glo to
establish the absence of a genuine issue of material fact is insignificant. As such,
whether or not Bookbinder is GSH’s agent and if Defendants may rely on her
testimony is irrelevant. —
I. DEFENDANTS SECOND AMENDED COUNTERCLAIM
Defendants filed a Counterclaim against Plaintiff arguing Plaintiff engaged in a
smear campaign against Defendants that resulted in tortious interference with
prospective contractual relations. Specifically, Defendants argue Plaintiff lied
and/or misled readers of advertisements and articles that stated false accusations
against Defendants. Defendants claim these statements misled Prospective patients
and resulted in patients being deterred from receiving treatment at SFCC.
Plaintiff has filed several Preliminary Objections against this Counterclaim that
have resulted in a final Second Amended Counterclaim filed on November 16,
27
2018. After reviewing the record, it does not appear that Defendants filed a brief in
response to the Preliminary Objection or that the Court ever addressed the
Preliminary Objections, As such, even though the pleadings and discovery have
closed, the Court will] briefly address the Counterclaim.
Under Pennsylvania law, a cause of action for interference with prospective
contractual relations requires: ()a prospective contractual relationship; (2)
purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) absence of privilege or justification on the part of the defendant; and (4)
occasioning of actual damage resulting from defendant’s conduct. Foster v. UPMC
. South Side Hosp., 2 A.3d 655, 665 (Pa. Super. 2010) (quoting Restatement
(Second) of Torts § 766B). This relationship must have a reasonable likelihood or
probability, and there must be something more than a mere hope or the innate
optimism of the salesman. Glenn v, Point Park College, 272 A.2d 895, 898-99
(Pa. 1971); Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 471 (Pa. 1979),
Here, Defendants have failed to show anything more than a mere hope of
Prospective patients. Defendants do not name any individual patients that were
deterred by Plaintiffs actions. In addition, Defendants cannot articulate any-aetual- vere
damage that resulted from Plaintiff's conduct. The damages and the loss of
potential patients stated in the Counterclaim are speculative at best. As such,
Defendants cannot meet the requirements for establishing a cause of action for
tortious interference with prospective contractual relationship and the Second
Amended Counterclaim must be dismissed.
Vv. CONCLUSION
For the foregoing reasons, the evidentiary record contains insufficient evidence
of facts to make out a prima facie cause of action. As such, Defendants’ Motion for
Summary Judgment is granted and the Complaint is dismissed with prejudice. In
28
addition, Defendants? Second Amended Counterc] aim is dismissed with prejudice,
An Order will be entered consistent with the foregoing.
29
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Central Pennsylvania Radiation
Oncology, P.C., a Pennsylvania
corporation,
Appellant
V. : No. 1004 C.D. 2020
SUBMITTED: September 20, 2021
The Good Samaritan Hospital
of Lebanon, Pennsylvania, a
Pennsylvania Corporation,
WellSpan Health, a Pennsylvania
Corporation, and Robert Longo,
an adult Individual
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: December 15, 2021
I must respectfully dissent. Unlike the Majority, I believe the Court of
Common Pleas of Lebanon County (trial court) erred as a matter of law when it
granted the motion for summary judgment of The Good Samaritan Hospital of
Lebanon (GSH), WellSpan Health, and Robert Longo (collectively, Defendants) and
dismissed Central Pennsylvania Radiation Oncology, P.C.’s (Plaintiff) complaint
with prejudice.
The facts are highly disputed and span the period from 2007-2015.
There are hundreds of pages of depositions, from many witnesses. Plaintiff’s
medical director, who was the key person involved in the discussions with GSH and
its agents, committed suicide just after this lawsuit was filed in 2015.
From even a cursory review of the trial court’s opinion, it is clear to me
that the trial court interpreted the record against Plaintiff, who was the non-moving
party in the case, and made certain fact-based and credibility assessments, which
have no place at the summary judgment stage. Accordingly, I would reverse and
remand for further proceedings.
Factual and Procedural History
In 1988, Douglas R. Colkitt, M.D., built a radiation oncology center in
Lebanon, Pennsylvania, that came to be called the Lebanon Valley Cancer Center
(LVCC). In 1988, he hired Abdurrahman Unal, M.D., to serve as LVCC’s Radiation
Oncology Medical Director. In 1999, Dr. Unal took over ownership of LVCC and
established Plaintiff Central Pennsylvania Oncology Center. In 2015, Dr. Colkitt
took over ownership of Plaintiff as the sole shareholder. Until January of 2016
(when Defendants’ new cancer center opened), Plaintiff was the only provider of
radiation oncology in Lebanon.
In 2000, GSH suffered financial losses. During this time, Longo and
GSH determined the hospital should open a new, comprehensive cancer center that
would provide both medical oncology and radiation oncology. In 2007, GSH
engaged Oncology Resource Consultants, Inc. (ORC) to advise GSH in developing
the radiation oncology facet of the new cancer center. Nancy Bookbinder was
ORC’s president.
In the summer of 2007, Bookbinder, on behalf of GSH, reached out to
Plaintiff, the only radiation oncology center in Lebanon, and met with Dr. Unal
confidentially. As the trial court and Majority point out, the intent of the people
PAM - 2
affiliated with GSH in arranging the meetings with Plaintiff and what occurred
during those meetings is “disputed.” (Trial ct. op. at 3; Central Pennsylvania
Radiation Oncology, P.C. v. The Good Samaritan Hospital of Lebanon,
Pennsylvania, (Pa. Cmwlth., No. 1004 C.D. 2020, filed December 15, 2021), slip
op. at 2.)
On the one hand, Defendants allege that they were simply meeting with
Plaintiff to gather general information about the need for a new cancer center, and
that they never discussed joining forces with Plaintiff to create the new center.
Plaintiff, on the other hand, alleges that after initial interviews by Nancy
Bookbinder, further discussions took place during which Plaintiff was led to believe
that Defendants were interested in working together with Plaintiff to create the new
cancer center. According to Plaintiff, the parties came to an agreement that they
would be working together in the new cancer center and in furtherance thereof.
Plaintiff provided sensitive competitive and highly confidential financial and
operational information, and the actual training of key personnel. However,
allegedly unbeknownst to Plaintiff, Defendants had decided in 2012 that Plaintiff
was a rival that needed to go out of business in order for the new cancer center to be
financially viable. Specifically, the evidence shows that in September 2012, Nancy
Bookbinder presented Defendants with “an optimal case scenario” that had Plaintiff
closing and Dr. Unal out of the picture. (Reproduced Record (R.R.) at 799a, 808a.)
This “optimal scenario” stated: “The freestanding radiation oncology practice in
Lebanon is no longer in operation” and a “radiation oncologist is recruited to the
community to develop the new radiation oncology program.” /d. Under this
scenario, Defendants’ projected profits for the radiation business would rise over a
five-year span to $3,695,242. Id.PAM - 3
Plaintiff alleges that Defendants kept Plaintiff in the dark about their
new goal while sending its employees to Plaintiff for training and obtaining detailed
confidential information from Plaintiff including its revenue, costs, profits,
operational techniques, and marketing techniques, which Defendants later used to
steal Plaintiffs radiation oncology patients and cause Plaintiff to close in August
2016.
Plaintiff initiated this matter because it is Plaintiff's belief that
Defendants and their agent, Nancy Bookbinder, purposefully deceived Plaintiff for
the purpose of learning confidential information from Plaintiff. Plaintiff claims that
Defendants then used the confidential information to open a cancer center directly
across the street from Plaintiff that ultimately destroyed Plaintiff’s business.
Plaintiff's complaint alleges eight counts including: (1) Breach of
Fiduciary Duty against GSH and Robert Longo; (2) Breach of Fiduciary Duty
against WellSpan and Robert Longo; (3) Violation of the Pennsylvania Trade
Secrets Act! against all Defendants; (4) Civil Conspiracy against GSH and
WellSpan;? (5) Intentional Misrepresentation against GSH and Robert Longo; (6)
Negligent Misrepresentation against GSH and Robert Longo; (7) Tortious
Interference with Existing Contractual Relations against GSH; and (8) Tortious
Interference with Prospective Contractual Relations against GSH. (Second
Amended Complaint, R.R. at 23a-667a.)
Defendants filed an answer denying that there was any agreement to
open a joint center or form any partnership or joint venture with Plaintiff. (Answer
and New Matter to Second Amended Complaint, R.R. at 107a-44a.) Defendants
' 12 Pa.C.S. §§5301-5308.
? Plaintiff does not appeal the trial court’s dismissal of its conspiracy claim.
PAM - 4
denied ever discussing joining forces with Plaintiff and denied that they ever
obtained any confidential information from Plaintiff. Defendants alleged that the
purpose of the meetings with Dr. Unal was simply to meet with local physicians to
complete an analysis of local care.
The parties engaged in lengthy discovery, exchanging requests for
admission, interrogatories, requests for documents, and depositions. On September
16, 2019, Defendants filed a motion for summary judgment, asserting that Plaintiff
failed to support any of its claims with evidence sufficient to present a jury question.
In opposition, Plaintiff presented a significant amount of evidence that negates
Defendants’ version of events, including:
e The Affidavit and deposition testimony of Plaintiff’s radiation therapist and
office manager, Susan McCoy, who attested that in 2013 or 2014, Defendants
sent their Director of Oncology Practice to Plaintiff’s facility for training on
all aspects of radiation oncology under the premise that Plaintiff and
Defendants would be working together at the new cancer center to be
developed; that the information provided to Defendants during this training
session was proprietary, which Plaintiff had developed over many years of
practice, and which was extremely valuable to Plaintiff; that much of the
information provided to Defendants could not be obtained except through trial
and error by Plaintiff; that the information provided to Defendants included
who Plaintiffs referrals came from, how Plaintiff created patient charts, the
types of radiation oncology treatments Plaintiff provided, the numbers of
radiation oncology treatments Plaintiff provides, the demographics of
Plaintiff's patients, current insurance practices for radiation oncology,
reimbursement from local providers, how Plaintiff made masks for head and
neck patients, how the treatment planning software worked, how Plaintiff
performed Quality Assurance, how Plaintiff staffed the center, how Plaintiff
contracted with service providers on its machines, repair costs, bundling for
insurance reimbursement processes, and how Plaintiff marketed to the local
population; that most of what Plaintiff revealed to Defendants could not be
gleaned from documents and could not be reconstructed without personal
knowledge of Plaintiff or Dr. Unal; that providing this information to
Defendants was part of Plaintiff's joining forces with Defendants in the new
cancer center that was being developed; that it was her understanding that
PAM -5
Plaintiff was to co-locate its radiation oncology practice to a new building
with the hospital-owned medical oncology practice; that the transfer of
information to Defendants was supposed to be part of Defendants and Plaintiff
working together; that had she known Defendants intended to compete
directly with Plaintiff, she would never have trained Defendants or discussed
Plaintiff's confidential proprietary information with Defendants; that in the
fall of 2015 - as the new cancer center construction was close to completion,
Plaintiff's referrals from Defendants-affiliated doctors, including medical
oncologists fell dramatically; that Defendants were holding patients needing
radiation therapy so that when the new center opened it would have a large
number of patients and Plaintiff would have very few, that when the new
center opened in January 2016; that Plaintiff’s existing patients were told that
Plaintiff was “closing” and that they should transfer treatment to Defendants’
new center; that she had multiple conversations with Plaintiff's patients who
advised her that they were told by Defendants that Plaintiff was closing and
that they even needed to transfer their treatments in the middle of receiving
their 6-8 weeks of radiation treatment; that Roseanne O., Michael S., Bonnie
U., and Judith H., all stopped treating mid-stream at Plaintiff to treat at
Defendants. (Affidavit of Susan McCoy; R.R. at 1464a-68a; Deposition of
Susan McCoy, R.R. at 1146a-80a.)
The Affidavit and deposition of Paul M. Castro, Ph.D., a medical physicist
who provided medical physics services to Plaintiff, who attested that in 2014
at the request of Dr. Unal he provided Plaintiff’s proprietary quality assurance
(QA) documents to Defendants with the understanding that Plaintiff was
working with Defendants in the development of a new cancer center and that
the detailed physics operation procedures used by Plaintiff would be used to
obtain accreditation of the new cancer program; that he only provided these
QA documents to Defendants because he believed that they were to be used
as a part of a joint effort in developing the new cancer center; that there was
no other reason for him to provide them; and that he and Plaintiff had
developed the QA program and it was highly valuable to the radiation
oncology practice. (Affidavit of Paul M. Castro, Ph.D., (R.R. at 1585a-87a;
Deposition of Paul M. Castro, Ph.D., R.R. at 1183a-94a, 1633a.)
The Affidavit and deposition testimony of Douglas R. Colkitt, M.D., friend,
associate, and employer of Dr. Unal, who attested that Dr. Unal completely
opened the facts, figures, details, and confidential information of his practice
to Nancy Bookbinder because he was advised that he would be a partner in
the new cancer center and the Medical Director, with the sharing of profits
PAM -6
between them, and the Defendants keeping about two-thirds of them; that he
understood that the new center would be in a new building where Dr. Unal’s
radiation oncology practice would co-locate with Defendants’ medical
oncology practice so that cancer care would all be under one-roof in Lebanon,
and that Defendants called Plaintiff and requested records of Plaintiff's
existing patients who were in the midst of their treatment with Plaintiff.
(Affidavit of Douglas R. Colkitt, M.D., R.R. at 1589a-91a, 1628a; Deposition
of Douglas R. Colkitt, M.D., R.R. at 1204a-41a.)
The expert report of Andrew Elinsky, opining that actions were taken by both
parties that were consistent with standard business practices in negotiating for
the development of a joint venture, including: an agreement on confidentiality
for sharing meaningful and sensitive competitive and highly confidential
financial and operational information, the actual training of key personnel on
the grounds that the parties reached an agreement to be working together in
the future, and the provision of important documents and knowhow developed
by Plaintiff over many years, including any documents related to aiding the
development of the new cancer center’s QA program that Defendants needed
to clear regulatory compliance, and the information Plaintiff provided to
Defendants was highly valuable to a competitor entering into the market and
was the kind of information commonly considered to be proprietary to a
business. (R.R. at 220a-23a.)
Documents generated by Defendants and their agents, which established that
Defendants’ strategic goal in October 2007 was to “explore feasibility of co-
location agreement for radiation therapy service with [Plaintiff],” to meet with
Plaintiff to determine interest in and issues associated with potential co-
location of radiation therapy services in a new ambulatory cancer center, and
to invite Dr. Unal to discuss unifying efforts, and that Defendants did meet
with Dr. Unal. (R.R. at 699a, 718a, 723a.)
Documents generated by Defendants and their agents, which established that
in 2012, one of Defendants’ “Key Success Factor[s]” identified by
Bookbinder was that the “Radiation therapy practice in the community [7.e.,
Plaintiff] closes.” Yet, in 2013 and 2014, Defendants nevertheless sent their
Director of Oncology Practice to Plaintiff's facility for training on all aspects
of radiation oncology and continued to request and obtain confidential
information from Plaintiff. (R.R. at 799a.)
PAM -7
Despite this profusion of evidence, which directly contradicted
Defendants’ position that joining forces with Plaintiff was “never on the table,” the
trial court granted Defendants’ motion for summary judgment on January 30, 2020,
holding that Plaintiff failed to present a prima facie case for any of its causes of
action to overcome a motion for summary judgment.
Standard on Summary Judgment
Motions for summary judgment necessarily and directly
implicate the plaintiffs proof of the elements of [its] cause
of action. Summary judgment is proper 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 or defense
which in a jury trial would require the issues to be
submitted to a jury. In other words, 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 and
the moving party is entitled to judgment as a matter of law,
summary judgment is appropriate. Thus, a record that
supports summary judgment either (1) shows the material
facts are undisputed or (2) contains insufficient evidence
of facts to make out a prima facie cause of action or
defense.
Glaab v. Honeywell International, Inc., 56 A.3d 693, 696 (Pa. Super. 2012).
When considering a motion for summary judgment, the trial court must
resolve all doubts as to the existence of a genuine issue of material fact against the
moving party, and, thus, may only grant summary judgment “where the right to such
judgment is clear and free from all doubt.” Toy v. Metropolitan Life Insurance Co.,
928 A.2d 186, 195 (Pa. 2007).
Moreover, it has long been Pennsylvania law that, while conclusions
recorded by experts may be disputed, the credibility and weight attributed to those
PAM - 8
conclusions are not proper considerations at summary judgment; rather, such
determinations reside in the sole province of the trier of fact, here, a jury. Miller v.
Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995); In re Estate of Hunter, 205
A.2d 97, 102 (Pa. 1964) (“The credibility of witnesses, professional or lay, and the
weight to be given to their testimony 1s strictly within the proper province of the trier
of fact.”).
At the summary judgment stage, a trial court is required to take all facts
of record, and all reasonable inferences therefrom, in a light most favorable to the
non-moving party. Toy, 928 A.2d at 195. This clearly includes all expert testimony
and reports submitted by the non-moving party or provided during discovery; and,
so long as the conclusions contained within those reports are sufficiently supported,
the trial court cannot sua sponte assail them in an order and opinion granting
summary judgment. Contrarily, the trial court must defer to those conclusions, and
should those conclusions be disputed, resolution of that dispute must be left to the
trier of fact. Miller, 664 A.2d at 528.
Breach of Fiduciary Duty
Did Plaintiff come Forward with Evidence that the Parties had Reached an
Agreement that they were Joining Forces to Create the New Cancer Center?
In dismissing the breach of fiduciary duty counts, the trial court “found”
there was no fiduciary duty between the parties because no partnership or joint
venture was ever created. According to the trial court:
In this case, the Court finds there was no fiduciary duty
between the parties. First, neither a partnership nor a
joint venture was ever created. There is no evidence
profits were ever shared or that Plaintiff had any “right of
mutual control,” which is fundamental to the creation of
PAM -9
both relationships. Second, there is no evidence of any
transactions, contracts, or repeated business transactions.
(Trial ct. op. at 14) (emphasis added).
The trial court also “found” that the parties never discussed forming a
joint venture:
While [Plaintiff] gave Defendants a QA summary and
provided training for GSH because Dr. Unal believed the
two would be working together, there is no indication
that was ever the intent of GSH. Bookbinder did meet
with Dr. Unal confidentially, as she did with multiple
physicians in the area, but both her notes and her
testimony indicate there was never any talk of hiring
Dr. Unal or collaborating with [Plaintiff] to create_a
joint cancer center. ...
Additionally, as Bookbinder indicated, the . . . goal of
discussing with [Plaintiff] the potential for co-locating
appear[s] to be just that - a goal. There is no evidence
presented that GSH acted on that goal or created an actual
plan to join forces with LVCC. The letter sent on behalf
of Dr. Unal in June of 2014 also supports this lack of an
agreement. The letter indicates interest in collaborating
and exploring the possibility of the parties working
together, further undermining Plaintiff’s belief a deal
had already been struck with Defendants. In addition, the
advertisements published by Plaintiff against GSH
support the conclusions that not only was there no
contract between the parties, but that Plaintiff was well
aware they would not be working together in the future.
Id. (emphasis added).
I submit this was error. Plaintiff sufficiently pleaded facts that the
parties met to discuss the possibility of joining forces to create a new cancer center
and that the discussions evolved to the point where the parties had reached an
agreement — which is evidenced by Plaintiff's transfer of its confidential and
PAM - 10
proprietary information to Defendants, which Plaintiff was misled into believing was
necessary to jointly create the new cancer center. As noted above, the testimony of
Susan McCoy, Dr. Colkitt, and Dr. Castro, together with documents generated by
Defendants and their agents, created a disputed issue of fact. It is for the jury to
decide whether Defendants met with Plaintiff to discuss the joint formation of a new
cancer center, whether the discussions evolved to the point where an agreement was
reached, as evidenced by the fact that the parties began to share each other’s
information for the purpose of creating the center.
The trial court, however, completely disregarded Plaintiff’s evidence
and actually resolved the issue of whether such an agreement was reached by
weighing the evidence and crediting the testimony of Defendants’ lead witness
Nancy Bookbinder, who denied in her deposition that she discussed unifying efforts
with Dr. Unal. Bookbinder’s credibility, however, was directly at issue and can only
be tested by the jury. In re Estate of Hunter, 205 A.2d at 102. By concluding that
the parties had not reached an agreement to join forces to create a new cancer center,
the trial court invaded the province of the jury, and in so doing violated the standard
for deciding a motion for summary judgment. “It was for the jury to determine
whether or not the facts that [it] found, before and during the joint venture, gave rise
to a fiduciary duty.” Thompson v. Monetary Mgmt. Corp., 44 Pa. D. & C. 4th 401,
A408, aff'd, 769 A.2d 1218 (Pa. Super. 2000); 13 Summary of Pa. Jurisprudence 2d,
Joint Ventures §19:24.
Further, with respect to the Majority’s view that Plaintiff cannot
establish that Defendants owed any duty to it without introducing out-of-court
hearsay statements of Dr. Unal, I respectfully disagree. Complainants often build
their prima facie cases upon inferences and circumstantial evidence. See S.N.T.
PAM - I1
Industries, Inc. v. Geanopulos, 525 A.2d 736 (Pa. Super. 1987) (evidence which was
predominately circumstantial was sufficient to sustain finding that directors and their
family conspired to breach and did breach fiduciary duties owed to corporation by
seizing corporate opportunity for themselves).
Did Plaintiff Come Forward with Evidence that Defendants Breached their
Obligations of Loyalty, Fairness, Good Faith and Full Disclosure?
If a jury concludes that the parties reached an agreement to join forces
to create a new cancer center, then the jury could also find that Defendants failed in
their duty of loyalty, of fairness, of good faith, or of full disclosure. The
Pennsylvania Supreme Court in the matter of McRoberts v. Phelps, 138 A.2d 439(Pa. 1958), held:
The relationship between those in a joint venture is
fiduciary in nature; upon each co-adventurer are imposed
obligations of loyalty, fairness, good faith and _ full
disclosure toward his fellow co-adventurers. Particularly
is this true in the case of that co-adventurer to whom is
[e]ntrusted the conduct of the enterprise, toward his
associates he occupies the position of a trustee.
Id. at 445 (citations omitted) (emphasis added).
The parties dispute whether Plaintiff's confidential information was
provided to Defendants and whether Defendants used it to create a competing
radiation oncology center across the street from Plaintiff and to steal Plaintiff's
patients. On the one hand, Defendants deny that they obtained any confidential
information from Plaintiff under false pretenses and they also deny using this
information to harm Plaintiff's financial/business interests. As noted, Plaintiff’s
witnesses testified unequivocally that Plaintiff turned over its confidential and
proprietary information to Defendants to aid in the joint development of the new
PAM - 12
cancer center, that Defendants later used that information to make sure Plaintiff went
out of business, and even went so far as to tell Plaintiff’s existing patients that
Plaintiff was “closing” and that they should transfer treatment to Defendants’ new
center.
Despite this contravening evidence brought forward by Plaintiff, the
trial court “found” that “there is no indication [Defendants] moved against [Plaintiff]
or purposely tried to use any information obtained to undermine [Plaintiff.]” (Trial
ct. op. at 15.) Contrary to the trial court’s conclusion, there was ample evidence
presented by Plaintiff in opposition to summary judgment upon which a jury could
find that Defendants sought Plaintiff’s confidential and proprietary information and
used it to form a new cancer center, which directly competed with Plaintiff, and
which arguably was the reason Plaintiff closed its doors in August of 2016.
The disputed factual issue of whether Defendants obtained Plaintiff's
proprietary information based on the false premise of working together to jointly
develop a cancer center was a question for the jury. The trial court, however,
resolved that factual issue against Plaintiff by crediting Defendants’ version of
events. The trial court was simply not permitted to accept Defendants’ position
when Plaintiff’s evidence created a disputed issue of fact. Krolczyk v. Goddard
Systems, Inc., 164 A.3d 521, 530 (Pa. Super. 2017). Whether the breach of fiduciary
duty caused damage and if so, how much, was another question which should be left
to the jury.
Violation of Uniform Trade Secrets Act
Next, contrary to the conclusion of the trial court, I believe Plaintiff has
a viable claim under the Uniform Trade Secrets Act (Act).
312 Pa.C.S. §§5301-5308.
PAM - 13
The Act allows a court to issue injunctive relief, based on threatened or
actual misappropriation of a trade secret. 12 Pa.C.S. §5303. In order to state a claim
under the Act, the disputed information must first qualify as a trade secret. Pestco,
Inc. v. Associated Products, Inc., 880 A.2d 700, 706 (Pa. Super. 2005). A trade
secret is defined as information, including a formula, drawing, pattern, compilation
including a customer list, program, device, method, technique, or process that: (1)
derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means, other persons who
can obtain economic value from its disclosure or use; and (2) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. 12 Pa.C.S.
§5302. No bright line rule exists on what constitutes a trade secret; rather, the issue
is analyzed on a case-by-case basis. Pestco, 880 A.2d at 706. Several factors are
relevant to the analysis including: (1) the extent to which the information is known
outside of the company's business; (2) the extent to which it is known by employees
and persons inside the company; (3) the extent of measures the employer has taken
to guard the secrecy of the information; (4) the value of the information to the
company and its competitors; (5) the amount of effort or money expended in
developing the information; and (6) the ease or difficulty with which the information
could be properly acquired or duplicated by others. Crum v. Bridgestone/Firestone
North American Tire, LLC, 907 A.2d 578, 585 (Pa. Super. 2006). The crucial
indicia for determining whether certain information constitutes a trade secret are
substantial secrecy and competitive value to the owner. D.D. Anderson, Inc. v.
Cricki, 815 A.2d 1063, 1070 (Pa. Super. 2003). Here, the trial court found:
In this case, there is no evidence Defendants violated the
Uniform Trade Secrets Act. First, the notes taken by
[Defendants] from the meeting at [Plaintiff] with McCoy
PAM - 14
are insufficient to constitute a trade secret. From the
short period of time spent at [Plaintiff] and the minimal
amount of notes taken, it does not appear that Smith
obtained any secret information. In addition, Plaintiff is
unable_to_ articulate any specific trade _secret_that
[Defendants] might have obtained or used that was of
competitive value to Plaintiff.
Second, the_ eight-page 2014 Quality Assurance
summary _ given to Defendants by McCoy and Dr.
Castro cannot be considered a trade secret. The
summary provides a small look into [Plaintiff]. While this
information is potentially helpful to either Plaintiff or
Defendants, it does not amount to the level of valuable,
secret_information that _is of great importance to
[Plaintiff]. In addition, Plaintiff readily gave the
information to Defendants and it does not appear that
any “improper means” were _used_ to obtain the
summary. As stated above, there _is no evidence
Defendants ever actively moved to create a joint cancer
center with Plaintiff. As such, Plaintiff’s incorrect
assumption or belief that [it] would be working
together__with Defendants and_ thereby giving
Defendants the summary would not establish improper
means on Defendants’ part.
(Trial ct. op at 17) (emphasis added).
In dismissing this claim, the trial court did not view the facts in the light
most favorable to Plaintiff, and, instead, accepted the version of the facts proffered
by Defendants, that no trade secrets were exchanged or misused, and that Plaintiff
simply voluntarily gave this information to Defendants based on its “incorrect”
belief that it was to be used as a part of a joint effort in developing the new cancer
center. I submit this was an abuse of discretion.
First, the trial court only addressed “the notes taken by [Defendants]
from the meeting at [Plaintiff] with McCoy” and the “2014 Quality Assurance
PAM - 15
Summary” and conclusively resolved that information did not constitute trade
secrets. However, Plaintiff’s fact witnesses and expert witness described other
confidential and proprietary information, not addressed by the trial court, including,
inter alia, patient demographics, referral services information, where the patients
come from, insurance payors reimbursements, how Plaintiff created patient charts,
the types of radiation oncology treatments Plaintiff provided, the numbers of
radiation oncology treatments Plaintiff provides, current insurance practices for
radiation oncology, reimbursement from local providers, how Plaintiff made masks
for head and neck patients, how the treatment planning software worked, how
Plaintiff performed Quality Assurance, how Plaintiff staffed the center, how Plaintiff
contracted with service providers on its machines, repair costs, bundling for
insurance reimbursement processes, and how Plaintiff marketed to the local
population. Susan McCoy testified that most of what Plaintiff revealed to
Defendants could not be gleaned from documents and could not be reconstructed
without personal knowledge of Plaintiff or Dr. Unal. (Affidavit of Susan McCoy;
R.R. at 1464a-68a; Deposition of Susan McCoy, R.R. at 1146a-80a.) Dr. Castro also
testified unequivocally that the QA program he and Plaintiff had developed was
“highly valuable” to the radiation oncology practice. (Affidavit of Paul M. Castro,
Ph.D., R.R. at 1585a-87a; Deposition of Paul M. Castro, Ph.D., R.R. at 1183a-94a,
1633a.) Plaintiff’s expert, Elinsky, opined that Plaintiff provided Defendants with
“sensitive competitive and highly confidential financial and operational information,
knowhow developed by Plaintiff over many years,” and that the information Plaintiff
provided to Defendants was “highly valuable to a competitor entering into the
market and was the kind of information commonly considered to be proprietary to a
PAM - 16
business.” (R.R. at 220a-23a.) Because the trial court disregarded this other
information, I believe its analysis was flawed.
Second, it is for the jury to determine the weight and credibility of the
testimony and thus decide if the alleged trade secrets deserve protection. See West
Mountain Poultry Co. v. Gress, 345 A.2d 651, 653 (Pa. Super. 1982) (holding that
whether alleged trade secrets deserve protection is a question of fact for the jury).
The issue of whether willful and malicious conduct has been involved is also a
question of fact for the jury to decide. Pestco, 880 A.2d at 709. Therefore, I would
reverse the grant of summary judgment on the claim asserting a violation of the Act.
Misrepresentation
The elements of a negligent misrepresentation claim include: (1) a
misrepresentation of a material fact; (2) made under circumstances in which the
misrepresenter ought to have known its falsity; (3) with an intent to induce another
to act on it; and (4) which results in injury to a party acting in justifiable reliance on
the misrepresentation. Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999).
The elements of intentional misrepresentation are: (1) a representation;
(2) which is material to the transaction at hand; (3) made falsely, with knowledge of
its falsity or recklessness as to whether it is true or false; (4) with the intent of
misleading another into relying on it; (5) justifiable reliance on_ the
misrepresentation; and (6) the resulting injury was proximately caused by the
reliance. /d. at 560.
The trial court found that
there is no evidence that any misrepresentations, let
alone any fraudulent utterances, were ever made in
this case. There are no statements made to Plaintiff or
admissions by Defendants that would support a viable
claim. Ultimately, the only evidence Plaintiff relies on
PAM - 17
are actions of [Plaintiff's] employees based on the
belief Dr. Unal had that a deal with GSH had been
made. However, Plaintiff’s reliance on that belief without
sufficient evidence supporting an agreement or intent to
form a partnership are insufficient to establish either
intentional or negligent misrepresentation. Plaintiff
cannot cite to any other statements, documents, or
claims made by Defendants that would qualify as a
misrepresentation.
(Trial ct. op. at 21) (emphasis added).
I believe there is a genuine issue of disputed material fact as to whether
Defendants intentionally or negligently misrepresented to Plaintiff that they intended
to include Plaintiff in the new cancer center, as a pretext for convincing Plaintiff to
train Defendants’ employee and disclose its confidential and proprietary information
to Defendants.
The intent to defraud may be established by circumstantial evidence,
that is, by inferences that reasonably may be drawn from the facts and circumstances.
Integrated Behavioral Health Services v. Department of Public Welfare, 871 A.2d
296, 300 (Pa. Cmwlth. 2005). See also D’Emilio v. Board of Supervisors of
Bensalem, 628 A.2d 1230 (Pa. Cmwlth. 1993) (holding that circumstantial evidence
was adequate to support finding that developer obtained signatures of board of
supervisors on unapproved development plan by fraud, where trial court found that
developer substituted unapproved plan for approved plan and led the supervisors to
believe that they were signing the approved plan when in actuality they were signing
the unapproved plan); Glover v. Severino, 946 A.2d 710, 713 (Pa. Super. 2008) (“A
misrepresentation need not be an actual statement; it can be manifest in the form of
silence or failure to disclose relevant information when good faith requires
disclosure.”). Here, even though Dr. Unal is unavailable for trial and cannot testify
PAM - 18
as to the direct representations made to him, Plaintiff came forward with evidence
which, if believed by the jury, could establish that the parties reached an agreement
to join forces to create a new cancer center, that Defendants never intended to include
Plaintiff in the new cancer center, and that Plaintiff was misled into believing the
confidential and proprietary information it was sharing with Defendants was for the
new cancer center. As factual support for its averments that the parties’ reached an
agreement to work together to create the radiation oncology department of the new
cancer center, Plaintiff proffered evidence that it provided sensitive competitive and
highly confidential financial and operational information to Defendants, trained
Defendants’ key personnel on the grounds that the parties reached an agreement to
be working together in the future, and that there was no other reason for Plaintiff to
provide this information to Defendants. An inference may reasonably be drawn
from those facts that Defendants and Plaintiff were at some point working together
to create the new cancer center, that Plaintiff provided Defendants with confidential
information and that subsequently, unbeknownst to Plaintiff, Defendants used that
information to create the radiation oncology department which did not include
Plaintiff, and to redirect Plaintiff's patients to the new cancer center. Thus, unlike
the Majority, I do not agree that Plaintiff's action fails outright simply because Dr.
Unal died before trial.
It is for the jury to decide whether Defendants misled Plaintiff into
believing the parties were joining forces to create the new cancer center (during
which Plaintiff provided Defendants with its confidential information in furtherance
thereof), or if Plaintiff simply decided to train Defendants’ employee on the nuts and
bolts of its operation and turn over its confidential information to a potential
competitor for no good reason.
PAM - 19
Interference with Contractual Relations
The same goes for the interference with contractual relations claims.
The elements for a cause of action for intentional interference with a contractual
relation, whether existing or prospective, are as follows: (1) the existence of a
contractual, or prospective contractual relation between the complainant and a third
party; (2) purposeful action on the part of the defendant, specifically intended to
harm the existing relation, or to prevent a prospective relation from occurring; (3)
the absence of privilege or justification on the part of the defendant; and (4) the
occasioning of actual legal damage as a result of the defendant’s conduct. Pelagatti
v. Cohen, 536 A.2d 1337, 1343 (Pa. Super. 1987).
The trial court acknowledged in its opinion that there was a dispute
between the parties as to whether Defendants intentionally and wrongly diverted
patients away from Plaintiff:
Within the Complaint, Plaintiff provides a detailed list of
patients who [it argues] were wrongly diverted away from
treatment with [Plaintiff] by GSH. The dates of diversion
range from September of 2015 to April of 2016. GSH
denies any patients were told Plaintiff was closing or that
[it] stopped referring to [Plaintiff] before GSH’s cancer
center opened.
(Trial ct. op. at 6-7.)
The trial court concluded, however, that “there is no evidence
indicating Defendants acted to interfere with Plaintiff’s patients.” (Trial ct. op. at
22.) Citing Plaintiff's answers to interrogatories, the trial court concluded that
Plaintiff failed to articulate “who” specifically interfered with patients and “how”
patients were withheld from Plaintiff. /d. at 22-23. The trial court also concluded
Plaintiff does not state any purposeful action or
statements made by Defendants to interfere with any
PAM - 20
patients. Without any evidence of direct steps taken by
Defendants, there is no indication of why the patients left
[Plaintiff].
Id. at 23 (emphasis added).
However, this conclusion completely discounts the testimony of Susan
McCoy, who testified that when the new center opened in January 2016, Plaintiff's
existing patients were told that Plaintiff was “closing” and that they should transfer
treatment to Defendants’ new center, that she had multiple conversations with
Plaintiff's patients who advised her that they were told by Defendants that Plaintiff
was closing its radiation oncology center, that they needed to transfer their
treatments to Defendants in the middle of receiving their six to eight weeks of
radiation treatment, and that Roseanne O., Michael S., Bonnie U., and Judith H., all
stopped treating mid-stream at Plaintiff to treat at Defendants’ new center.
(Affidavit of Susan McCoy; R.R. at 1464a-68a; Deposition of Susan McCoy, R.R.
at 1146a-80a.) Susan McCoy’s testimony alone serves as sufficient basis to allow
this claim to go forward. See also S.N.T. Industries (evidence which was
predominately circumstantial was sufficient to establish a cause of action for
intentional interference with prospective contractual relations).
Therefore, I would reverse the trial court with respect to its entry of
summary judgment on Counts VII and VIII (contractual and prospective contractual
relations).
Michael Elinsky Expert Report
Lastly, I believe the trial court erred in excluding from consideration
Plaintiffs expert report. The trial court excluded the Elinsky report because
[w]ithout any direct statements, concrete evidence, or
documents demonstrating either an agreement had been
reached or a _ confidential relationship had _ been
PAM - 21
established, the conclusions in the report are speculative at
best. Ultimately, the report reviewed small amounts of
testimony and very few documents but still makes broad
statements and conclusions without citing specific
evidence. This conclusion is therefore not well founded
and would be prejudicial to a potential jury.
(Trial ct. op. at 25-26.)
First, the credibility of experts is reserved for a jury and summary
judgments entered where experts were disregarded have been reversed. “It has long
been Pennsylvania law that, while conclusions recorded by experts may be disputed,
the credibility and weight attributed to those conclusions are not proper
considerations at summary judgment; rather, such determinations reside in the sole
province of the trier of fact, here, a jury.” Summers v. Certainteed Corp., 997 A.2d
1152, 1162 (Pa. 2010). See also DeArmitt v. New York Life Insurance Co., 73 A.3d
587, 595 (Pa. Super. 2013) (holding that at summary judgment the court must
consider “all expert testimony and reports submitted by the non-moving party or
provided during discovery” and noting that any dispute over the expert’s conclusions
must be left to the trier of fact”); Wright v. Eastman, 63 A.3d 281, 294 (Pa. Super.
2013); Greely v. West Penn Power Co., 156 A.3d 276, 283 (Pa. Super. 2017).
Second, the four witness depositions that Elinsky evaluated included:
the depositions of Nancy Bookbinder, Dr. Colkitt, Susan McCoy, and Dr. Castro.
These 4 witnesses had the most knowledge relevant to the events which gave rise to
Plaintiff's complaint and they formed the very basis for Elinsky’s opinions. The
trial court’s focus on the fact that Elinsky only reviewed 4 depositions out of 20
seems to me to be putting quantity over quality and I do not believe it constituted a
valid reason to discount his expert opinion.
PAM - 22
Conclusion
In sum, I do not agree with the Majority that the issues were
“thoroughly reviewed” or “correctly analyzed” by the trial court. As I have
demonstrated herein, the trial court improperly relied on Defendants’ one-sided
version of events and failed to view the evidence in a light favorable to Plaintiff.
The trial court repeatedly disregarded record evidence, made credibility
determinations, and barely mentioned the testimony of Plaintiff's witnesses, Dr.
Colkitt, Dr. Castro, or Susan McCoy. In so doing, I submit that the trial court erred
in concluding that Plaintiff failed to present a prima facie case for any of its causes
of action to overcome a motion for summary judgment.
For these reasons, I dissent.
PATRICIA A. McCULLOUGH, Judge
PAM - 23