WU v. JULIE ROBIN AROUH, DMD, PC et al
MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 9/15/2015. 9/15/2015 ENTERED AND COPIES E-MAILED.(ahf)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KATHLEEN WU, DMD
JULIE ROBIN AROUH, DMD, PC, et al :
MEMORANDUM OF LAW
Before me is Defendant Julie Arouh’s renewed motion for summary judgment
with regard to Count III of her counterclaim (breach of contract). (Doc. No. 54.) By
order dated July 29, 2015 (Doc. No. 50), I denied Arouh’s initial motion for summary
judgment (Doc. No. 30) without prejudice to refile because the evidence put forward by
Arouh in support of the motion was not authenticated and therefore not admissible
evidence. Arouh has renewed her motion, this time attaching an affidavit purporting to
authenticate the evidence as regularly kept business records. See Fed. R. Evid.
803(6)(b). Plaintiff Kathleen Wu, in her opposition to the renewed motion, raises an
issue of fact regarding the validity of the authentication. See Doc. No. 56 at unnumbered
page 5 (“The key issue . . . . is the general state of disarray of Dr. Arouh’s business
“Once a prima facie case [of a document’s authenticity] is made, the evidence
goes to the jury and it is the jury who will ultimately determine the authenticity of the
evidence, not the court.” United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 1976).
Here, Arouh has made a prima facie showing of authenticity. Wu has come forward with
evidence, in the form of the deposition testimony of Arouh, that raises a factual issue as
to the reliability of Arouh’s recordkeeping and as to the authentication of her business
records. This is a material factual dispute that must be decided by the jury.
While not raised by either party, an additional material factual dispute exists with
regard to Count III of the counterclaims. The crux of Arouh’s counterclaim regarding
the health insurance is that Wu breached her employment contract by failing to pay the
portion of her health insurance premiums that her employment contract required her to
pay. See Doc. No. 30, Ex. C ( . . . “Wu will be responsible for contributing half of the
premium as a payroll deduction, or be responsible for her own health care insurance.”).
Wu’s insurance premiums were paid as automatic payroll deductions from her
paycheck. See Doc. No. 30, Ex.’s C, E, G. There is no evidence before me as to who was
responsible for determining the amount of the payroll deduction or ensuring that the
correct amount was deducted from Wu’s paycheck every month. Generally, the
employer and the payroll service would be responsible for those ministerial functions.
Insofar as that is the case here, the contract does not speak to the appropriate remedy
when the failure to pay the correct amount is occasioned by the employer failing to make
the correct payroll deduction or ensuring that the correct amount is being deducted
from the paycheck. This presents a second material factual dispute with regard to Count
III of the counterclaims.
Because material factual disputes remain with regard to Count III of Arouh’s
counterclaims, I will deny the motion for partial summary judgment.
BY THE COURT:
s/Richard A. Lloret
HON. RICHARD A. LLORET
U.S. Magistrate Judge
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