Qazizadeh v. Pinnacle Health Care Systems
Filing
81
MEMORANDUM re mtns for Reconsideration 57 and 59 and mtn for summary jgmnt 35 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 10/4/16. (ma)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
SALIM QAZIZADEH,
Plaintiff
v.
PINNACLE HEALTH SYSTEM and
PINNACLE HEALTH MEDICAL
SERVICES,
Defendants
:
:
:
: CASE NO. 1:14-CV-2037
:
:
:
:
:
MEMORANDUM
I.
Introduction
Presently before the court are the parties’ cross-motions for reconsideration.
Plaintiff Salim Qazizadeh (“Plaintiff”) moves for reconsideration of the portion of this
court’s July 11, 2016 order, (Doc. 54), and accompanying memorandum, (Doc. 55),
denying him partial summary judgment. (See Doc. 59). Defendants Pinnacle Health
System and Pinnacle Health Medical Services (“Defendants”) move this court to
reconsider the portion of the same order and memorandum where partial summary
judgment was granted to Plaintiff. (See Doc. 57). For the reasons discussed below, the
court will deny Defendants’ motion for reconsideration and grant Plaintiff’s motion for
reconsideration.
II.
Background
The court thoroughly set forth this case’s complicated factual and procedural
history in its July 11, 2016 memorandum, (Doc. 55 at 1-13), and thus will not repeat itself
here. When Plaintiff moved for summary judgment on March 31, 2016, the only remaining
claims in the litigation were breach of contract and violation of Pennsylvania’s Wage
Payment and Collection Law (“WPCL”), 43 PA. STAT. AND CONS. STAT. ANN. §§ 260.1260.45. (See Doc. 35; Doc. 55 at 1-2). On July 11, 2016, the court granted partial
summary judgment in Plaintiff’s favor. (Doc. 54). The court granted summary judgment
with respect to Plaintiff’s breach of contract claim regarding his suspension without pay,
but denied Plaintiff’s motion in all other respects. (Id.)
Neither party was enchanted with the court’s decision, and accordingly filed
cross-motions for reconsideration. (Docs. 57, 59). Both motions have been extensively
briefed and are ripe for consideration.
III.
Discussion
A. Standard of Review
Defendants ask the court to reconsider the portion of its July 11, 2016 order
granting Plaintiff partial summary judgment; Plaintiff seeks reconsideration of the portion of
the order denying partial summary judgment. Both sides take pains to distinguish what
piece of the order they want the court to reconsider, attempting to garner a more favorable
standard of review. At base, however, each litigant simply requests reconsideration of a
single interlocutory order granting partial summary judgment.
The legal standard regarding motions for reconsideration of orders granting
partial summary judgment is not entirely cohesive within the district courts. Compare York
Int’l Corp. v. Liberty Mut. Ins. Co., 140 F. Supp. 3d 357 (M.D. Pa. 2015) (treating motion
for reconsideration of grant of partial summary judgment as motion to alter or amend
under FED. R. CIV. P. 59(e) and applying stringent standard requiring change in controlling
2
law, new evidence not previously available, or “the need to correct a clear error of law or
fact or to prevent manifest injustice”) (citation omitted) and Peerless Ins. Co. v. Pa. Cyber
Charter Sch., 19 F. Supp. 3d 635 (W.D. Pa. 2014) (accord), with St. Mary’s Area Water
Auth. v. St. Paul Fire & Marine Ins. Co., 472 F. Supp. 2d 630 (M.D. Pa. 2007) (treating
motion for reconsideration of grant of partial summary judgment as review of an
interlocutory order under FED. R. CIV. P. 54(b) and applying standard of permitting
reconsideration whenever “consonant with justice to do so”) (quoting United States v.
Jerry, 487 F.2d 600, 605 (3d Cir. 1973)). Confusingly, some district courts have invoked
the “when-consonant-with-justice” standard when deciding a motion for reconsideration of
an interlocutory order under Federal Rule of Civil Procedure 54(b), only to apply the more
stringent requirements of cases involving reconsideration of final orders. See, e.g., Am.
Guarantee & Liab. Ins. Co. v. Fojanini, 99 F. Supp. 2d 558, 560-61 (E.D. Pa. 2000);
Dayoub v. Penn-Del Directory Co., 90 F. Supp. 2d 636, 637 (E.D. Pa. 2000).
The court reaffirms the better-reasoned view that motions for reconsideration
of interlocutory orders—whether denials of summary judgment, grants of partial summary
judgment, or any other non-final orders—are motions under Federal Rule of Civil
Procedure 54(b). Therefore, reconsideration of such orders may be had even if the
movant cannot show an intervening change in controlling law, the availability of new
evidence that was not available when the court issued the underlying order, or “the need
to correct a clear error of law or fact or to prevent manifest injustice.” See Max’s Seafood
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (enumerating
grounds for reconsideration of final order) (citation omitted). Instead, the court may permit
3
reconsideration whenever “consonant with justice to do so.” St. Mary’s Area Water Auth.,
472 F. Supp. 2d at 632 (quoting Jerry, 487 F.2d at 605).
That being said, the court is also acutely aware of the need for finality of
judgments and preservation of judicial resources. Before entertaining a motion for
reconsideration of an interlocutory order, the movant must still establish good cause for
why the court should revisit its prior decision. See Confer v. Custom Eng’g Co. Emp.
Health Benefit Plan, 760 F. Supp. 75, 77 (W.D. Pa. 1991). Moreover, whether involving a
final or interlocutory order, a motion for reconsideration is “not to be used as a means to
reargue matters already argued and disposed of or as an attempt to relitigate a point of
disagreement between the Court and the litigant.” Ogden v. Keystone Residence, 226 F.
Supp. 2d 588, 606 (M.D. Pa. 2002) (citation omitted). A reconsideration motion should not
be used to try to get a “second bite at the apple,” Kropa v. Cabot Oil & Gas Corp., 716 F.
Supp. 2d 375, 378 (M.D. Pa. 2010), or to raise new arguments or evidence that could
have been proffered prior to the issuance of the order in question, McDowell Oil Serv., Inc.
v. Interstate Fire & Cas. Co., 817 F. Supp. 538, 541 (M.D. Pa. 1993).
B. The Cross-Motions for Reconsideration
With the above standard in mind, the court turns to the litigants’ respective
motions for reconsideration. 1 The court will address each motion in turn.
1. Defendants’ Motion for Reconsideration
Defendants assert that this court, in its summary judgment decision,
“misapprehended” both the definition of the word “comply” in Plaintiff’s 2013 Physician
1
The court is cognizant that because the instant cross-motions for reconsideration concern a
summary judgment decision, Federal Rule of Civil Procedure 56 and its standard of review continue
to control the substantive analysis. See Erdman v. Nationwide Ins. Co., 621 F. Supp. 2d 230, 23334 (M.D. Pa. 2007), aff’d, 582 F.3d 500 (3d Cir. 2009).
4
Employment Agreement (“PEA”) and the application of contract interpretation principles.
(Doc. 58 at 3). Defendants submit two arguments for why this is so: (1) the court relied on
too narrow a definition of “comply,” (Id. at 4, 7), and (2) the word “comply”—with its
numerous possible definitions—creates a latent ambiguity in the contract, (Id. at 8-9).
Notably, Defendants raised neither argument in opposition to Plaintiff’s
motion for summary judgment, even though Plaintiff relied on similar “misapprehensions"
in his supporting brief. (See Doc. 36 at 8-12). A motion for reconsideration is not a
vehicle to raise new arguments that could have been raised before the issuance of the
order in question. McDowell Oil, 817 F. Supp. at 541. Defendants should have raised
these arguments in their opposition to Plaintiff’s motion for summary judgment.
Nevertheless, the court will briefly discuss why it finds neither argument availing.
Defendants first complain that the court erroneously adopted too narrow of a
meaning of the word “comply” as it appears in paragraph 4 of the PEA, (Doc. 38-3 at 2),
by limiting its reach to those Human Resources provisions that Plaintiff could affirmatively
act in accordance with or abide by. Defendants contend that because, in some dictionary
entries, comply can also mean “[to] yield; to accommodate; or to adapt oneself to,” (Doc.
58 at 7), it follows that the contested phrase “[p]hysician shall also comply with all of
[Pinnacle Health System (“PHS”)]’s Human Resources Policies and Procedures” provides
for the wholesale incorporation by reference of every one of PHS’s HR policies and
procedures into Plaintiff’s individual employment contract. The court finds this contention
untenable.
First, as the court explained in its summary judgment memorandum, longestablished contract law provides that incorporation by reference to an extraneous
5
document should be applied narrowly. See Capricorn Power Co., Inc. v. Siemens
Westinghouse Power Corp., 324 F. Supp. 2d 731, 750 (W.D. Pa. 2004) (“[W]here
incorporated matter is referred to for a specific purpose only, it becomes a part of the
contract for such purpose only, and should be treated as irrelevant for all other purposes.”)
(quoting 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts
§ 30:25 (4th ed. 2003)); Guerini Stone Co. v. P.J. Carlin Constr. Co., 240 U.S. 264, 277
(1916) (“In our opinion the true rule, based upon sound reason and supported by the
greater weight of authority, is that in the case of . . . a reference by the contracting parties
to an extraneous writing for a particular purpose makes it a part of their agreement only for
the purpose specified.”) (citations omitted). Consequently, “shall also comply” does
indeed incorporate by reference some standards with which Plaintiff must affirmatively act
or abide by. But contrary to Defendants’ assertion, it does not provide for the wholesale
incorporation of every policy and procedure of PHS into Plaintiff’s personal employment
contract.
Second, interpreting “comply” in the manner Defendants suggest would
create the absurd result of a highly skilled, specialist physician—who has signed an
individualized contract that purports to represent the entirety of his employment
agreement—being contractually bound to the same policies and procedures as any other
at-will employee of PHS. Presumably, there is much contained in PHS’s policies and
procedures that applies to at-will employees that cannot apply to specialist physicians with
employment contracts, because those contracts define and control many of the conditions
of employment. As just one example, physicians such as Plaintiff have specific
6
contractual rights that control when and how termination can occur, as opposed to being
terminable at will. (See Doc. 38-3 at 4-5, ¶ 14 of Plaintiff’s 2013 PEA).
Declining wholesale incorporation becomes even easier by comparing
Plaintiff’s 2011 PEA (Doc. 53-3) with Plaintiff’s 2013 PEA (Doc. 38-3). In the 2011 PEA,
paragraph 4 provides that if the employment contract and PHS’s other policies and
procedures conflict, the employment contract controls. (Doc. 53-3 at 2). This conflict
clause is noticeably absent in paragraph 4 of the 2013 PEA. (Doc. 38-3 at 2). Thus, the
language of the 2013 PEA is much less likely to convey the intent that the contract
incorporates by reference every policy and procedure of PHS, because it provides no
explanation of how to handle any conflict that may arise between the contract’s terms and
PHS’s general policies and procedures.
Finally, the court emphasizes that as the drafter of the 2013 PEA,
Defendants had ample opportunity to insert a provision that would explicitly allow
Defendants to suspend Plaintiff without pay if criminal charges were filed. Defendants, in
fact, had already modified Plaintiff’s 2013 PEA by adding a specific provision that allowed
PHS to terminate the agreement if Plaintiff canceled appointments without permission and
proper cause. (See Deposition of Attorney John DeLorenzo, Doc. 47-3 at 22, Dep. 79:1280:2 (discussing how clause 14(c)(4) of Plaintiff’s 2013 PEA was inserted specifically for
Plaintiff due to his “past behavior”). Defendants just as easily could have modified the
2013 PEA to include a provision for suspension without pay, but they did not.
Defendants next argue that even if “comply” does not have the “plain
meaning” they propose, a latent ambiguity exists in the contract and should be decided by
a jury. The court disagrees.
7
First, in its summary judgment memorandum, the court found no ambiguity—
patent or latent—in the word “comply” as used in paragraph 4 of Plaintiff’s 2013 PEA.
(See Doc. 55 at 17-18). A motion for reconsideration is “not to be used as . . . an attempt
to relitigate a point of disagreement between the Court and the litigant.” Ogden v.
Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002) (citation omitted). The
court does not waiver from its initial finding that the meaning of “comply” in paragraph 4 is
clear and unambiguous, and will not relitigate this issue.
Even if the court were to accept the extrinsic evidence of Defendants’
alternative interpretation of paragraph 4, the result would not change. This is because
“the proffered interpretation cannot contradict the common understanding of the disputed
term or phrase when there is another term that the parties could easily have used to
convey this contradictory meaning.” Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247
F.3d 79, 94-95 (3d Cir. 2001) (applying Pennsylvania law); see also Meyer v. CUNA Mut.
Ins. Soc’y, 648 F.3d 154, 165 (3d Cir. 2011) (applying Pennsylvania law and explaining
that courts may consider “whether alternative or more precise language, if used, would
have put the matter beyond reasonable question”) (citation omitted).
There are many alternative phrases that Defendants could have used to
more clearly convey the interpretation for which they now advocate. For example, the
PEA could have stated that Plaintiff shall “be subject to” all PHS policies and procedures,
or that the PEA “incorporates by reference” all PHS policies and procedures that do not
conflict with the explicit terms of the PEA. Defendants themselves provide another much
clearer alternative in their supporting brief when they claim that “comply” means Plaintiff
“was bound by the entire Human Resources policy.” (Doc. 58 at 4) (emphasis added).
8
The court will not manufacture an ambiguity from Defendants’ extrinsic evidence of less
common definitions of “comply” when alternative or more precise language would have
“put the matter beyond reasonable question.” Meyer, 648 F.3d at 165.
2. Plaintiff’s Motion for Reconsideration
Plaintiff’s motion for reconsideration carries more weight. First, Plaintiff
bases his motion on purported factual errors contained in the court’s summary judgment
memorandum. An alleged clear error of fact, which meets the stringent requirements for
reconsideration of final orders, Max’s Seafood Café, 176 F.3d at 677, logically meets the
lesser threshold for reconsideration of interlocutory orders.
Plaintiff takes issue with the court’s determination that there exists a genuine
issue of material fact concerning whether Plaintiff was terminated for cause. In the court’s
summary judgment opinion, it found that a question of fact existed as to whether Plaintiff
was terminated for cause since he did miss one day of work when he was arrested in
February of 2013. (Doc. 55 at 20). The court relied on evidence of Dr. Bleicher’s
interaction with Plaintiff during a June 28, 2013 meeting and Plaintiff’s history of domestic
problems that caused him to miss work in 2011, and found that “a jury could reasonably
infer that Bleicher was aware of Plaintiff’s prior dealings with Defendants and the reason
behind . . . his absence in February 2013, resulting in a decision to terminate Plaintiff’s
employment ‘for cause’ and without the necessity to make severance payments to him.”
(Id. at 21).
Plaintiff contends the court erred in its factual conclusions because those
conclusions contradict the Defendants’ sworn admissions, Dr. Bleicher’s own testimony
fails to support a termination for cause, and the only evidence presented to controvert Dr.
9
Bleicher’s testimony and Defendants’ admissions is inadmissible hearsay. (Doc. 60 at 23). For the following reasons, Plaintiff’s argument is well taken.
Under the 2013 PEA, termination of the agreement could occur in four ways.
Termination could occur by mutual agreement of the parties (¶ 14(a)); immediately upon
the occurrence of a serious event such as conviction of certain crimes, loss of medical
license, or death (¶ 14(b)); “for cause” through the exercise of PHS’s sole discretion
(¶ 14(c)); or “without cause” by either party providing 180-days’ prior written notice of
termination (¶ 14(d)). (Doc. 38-3 at 4-5). If termination were without cause under
paragraph 14(d), and Plaintiff’s services were ended prior to the conclusion of the 180-day
notice period, severance pay would be required. (Id. at 5).
As the court previously noted, it is undisputed that Plaintiff was not
terminated under paragraph 14(a) or 14(b). (Doc. 55 at 21). Thus, for Plaintiff’s
agreement to have been properly terminated without notice and without severance pay,
the reason for termination must have fallen under paragraph 14(c), subsections (1)-(5),
and PHS must have exercised its discretion to terminate for such reason. (Id.) As the
2013 PEA is written, and as the court explained in its previous memorandum, it is unclear
whether notice and an opportunity to cure are required for termination under each of the
for-cause subsections, or only under for-cause subsection (5). (Id. at 22-23; Doc. 38-3 at
5).
Even interpreting the ambiguity in Defendants’ favor and assuming, without
deciding, that providing written notice and an opportunity to cure only applies to
subsection (5), 2 upon reconsideration of the entire record, the court finds that Defendants
have failed to meet their burden in opposition to summary judgment on the issue of breach
2
It is undisputed that written notice and an opportunity to cure were not given to Plaintiff.
10
of contract due to termination without notice and without severance pay. That is,
Defendants have failed to point to any admissible evidence that would rebut Plaintiff’s
claim that his termination without notice and without severance pay—before the end of the
2013 PEA’s two-year term—was a breach of contract.
a. Termination for Cause
The issue of termination for cause requires a preliminary discussion,
because it is strangely unclear when Plaintiff was officially terminated from his most recent
employment with PHS. In Defendants’ answers to Plaintiff’s first set of interrogatories,
Defendants point to a September 4, 2013 letter from Attorney John DeLorenzo (in-house
counsel for PHS), which stated, “As you know, you do not have an employment
arrangement with Pinnacle Health.” (Doc. 38-12 at 4-5). Defendants further alleged in the
interrogatories that “[i]t was discussed and understood by and between the parties at the
June 28, 2013, meeting between Plaintiff and Defendants that Plaintiff’s employment
arrangement with Defendants had ended.” (Id. at 5).
Oddly, in the same set of interrogatories, when asked, “Please state the
basis for the decision to terminate [Plaintiff]’s employment,” Defendants responded,
“Plaintiff did not respond to the September 4, 2013, letter from John DeLorenzo, Esquire.”
(Id. at 6-7). This September 4 letter from DeLorenzo, however, stated that Plaintiff’s
employment had already been terminated, to wit, “currently you do not have an
employment arrangement with Pinnacle Health.” (See Doc. 47-5 at 14). The letter then
offered Plaintiff a new short-term contract as his only means of becoming an employee
again. (Id.) Adding to the confusion are Defendants’ own personnel records, which state
that Plaintiff’s termination was “voluntary” and effective October 15, 2013. (Doc. 53-1).
11
These cryptic and seemingly contradictory statements stand in stark contrast
to the certified letter Defendants sent to Plaintiff when they terminated his 2011
employment contract. (See Doc. 47-2 at 16). The letter expressly stated, “In accordance
with section 12.d. of your Physician Employment Agreement, this letter is to inform you
that [PHS] herewith terminates the Agreement and your employment with Pinnacle Health
effective ninety (90) days from the date of this letter. Your last day of employment . . . is
February 12, 2012.” (Id.)
Contrary to this unambiguous termination letter, and after a searching review
of Defendants’ numerous pleadings and filings, there does not appear to be one
affirmative claim advanced, or position taken, by Defendants regarding exactly when
Plaintiff’s 2013 PEA was terminated, if that termination was “for cause,” or who made the
termination decision. See, eg., Defs.’ Br. in Opp’n to Pl.’s Mot. for Summ. J., Doc. 46 at
25, 26 (“a jury would reasonably find that when Plaintiff attended the June 28, 2013,
meeting he was informed that his contract was terminated . . . A jury would reasonably find
that Plaintiff knew the contract had been terminated because he informed the district
attorney in September 2013 that he lost his job”) (emphasis added); Defs.’ Br. in Opp’n to
Pl.’s Mot. for Summ. J., Doc. 46 at 14 (“Attorney DeLorenzo testified that at the [June 28,
2013] meeting it was made very clear that Plaintiff’s contract had been terminated”)
(emphasis added); Defs.’ Answers to Pl.’s First Set of Interrogs., Doc. 38-12 at 6 (“It was
discussed and understood by and between the parties at the June 28, 2013, meeting
between Plaintiff and Defendants that Plaintiff’s employment arrangement with
Defendants had ended”) (emphasis added); Defs.’ Br. in Opp’n to Pl.’s Mot. for Recons.,
12
Doc. 65 at 16 (explaining that Plaintiff admitted in a September 16, 2013 letter to the
district attorney that he had lost his job, thus proving his termination).
Time and again Defendants craftily maneuver around the issue of
termination for cause—often by utilizing the passive voice—thereby avoiding any sort of
outright claim regarding the details of Plaintiff’s termination. At no time do Defendants
specifically assert that Plaintiff was terminated for cause, nor identify who terminated
Plaintiff, nor explain exactly why he was terminated.
Perhaps Defendants dodge any affirmative statements concerning a
possible for-cause termination because to do otherwise would directly contradict their
previous positions and sworn statements. In Defendants’ answers to Plaintiff’s first set of
interrogatories, when asked what the basis was for the decision to end Plaintiff’s
suspension (i.e., terminate him, as it is undisputed that Plaintiff’s suspension was never
lifted), Defendants responded, “Plaintiff’s suspension did not end as Defendants were
unable to make and maintain contact with Plaintiff in an attempt to re-establish Plaintiff’s
employment.” (Doc. 38-12 at 4-5). Defendants repeated this assertion verbatim in the
following answer, and provided dates that Defendants allegedly attempted to contact
Plaintiff to “re-establish employment” during the suspension, dates which span from June
2013 to September 2013—well after the June 28, 2013 meeting in which Defendants now
allege “it was made very clear that Plaintiff’s contract had been terminated.” (Id. at 5).
Finally, in Defendants’ July 11, 2014 formal response to the Pennsylvania
Human Relations Commission regarding the now-dismissed discrimination charges,
Defendants maintained, “Action was not taken against [Plaintiff]. Rather, [Plaintiff] failed
to return to work.” (Doc. 38-22 at 2). The response continues, “[A] conference was held
13
with [Plaintiff] and Pinnacle Health representatives on June 28, 2013, during which
[Plaintiff] was offered continued employment with Pinnacle Health.” (Id.) Finally, it states,
“The [Plaintiff] was not disciplined but failed to return to his position.” (Id. at 3).
Defendants—no doubt cognizant of these previous statements—never
directly assert that Plaintiff was terminated for cause, who terminated Plaintiff, nor for what
specific reason he was terminated. Instead, they artfully phrase their filings to infer that
Plaintiff could have been terminated for cause without affirmatively claiming that Plaintiff
was terminated for cause, lest they assert inconsistent positions or undermine their own
previous admissions. See Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 272 (3d Cir.
2012) (“Judicial estoppel . . . seeks to prevent a litigant from asserting a position
inconsistent with one that he has previously asserted in the same or in a previous
proceeding. The doctrine exists to protect the integrity of the judicial process and to
prohibit parties from deliberately changing positions according to the exigencies of the
moment.”) (citations and internal quotation marks omitted).
Finally, even if Defendants could affirmatively assert that Plaintiff was
terminated for cause through the exercise of PHS’s discretion without running afoul of
their previous sworn statements, they still must point to some admissible evidence to
support such a claim in order to rebut Plaintiff’s motion for summary judgment on the
termination issue. See FED. R. CIV. P. 56(c)(1); see also Lexington Ins. Co. v. W. Pa.
Hosp., 423 F.3d 318, 333 (3d Cir. 2005) (explaining that “[s]peculation does not create a
genuine issue of fact; it creates a false issue, the demolition of which is a primary goal of
summary judgment”) (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 932 (7th Cir.
1995)); Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)
14
(“speculation and conjecture may not defeat a motion for summary judgment”) (citing
Lexington Ins. Co., 423 F.3d at 332-33). Upon reconsideration, Defendants have not
carried their burden.
After extensive depositions of multiple PHS administrators and supervisors,
interrogatories, requests for production of documents, and a plethora of other discovery,
the only evidence Defendants can muster concerning for-cause termination is hearsay
from PHS’s in-house counsel, Attorney John DeLorenzo. In his deposition, Attorney
DeLorenzo, discussing the June 28, 2013 meeting, stated that “it was made very clear that
[Plaintiff’s] contract had been terminated.” (Doc. 47-3 at 18, DeLorenzo Dep. 62:9-10).
When asked who communicated this information to Plaintiff, DeLorenzo responded, “I
believe it was Dr. Bleicher. I did not say five words at that meeting.” (Id., DeLorenzo Dep.
62:17-21).
First, as Plaintiff correctly points out, the statements DeLorenzo attributes to
Dr. Bleicher are hearsay, for which Defendants have proffered no exception. They are
out-of-court statements offered for the truth of the matter asserted therein, i.e., that Dr.
Bleicher communicated to Plaintiff in the June 28, 2013 meeting that Plaintiff’s 2013 PEA
had been terminated. See FED. R. EVID. 801(c). As such, they are inadmissible unless
permitted by statute, the Federal Rules of Evidence, or other rules prescribed by the
Supreme Court. FED. R. EVID. 802. No such exception appears to apply, and Defendants
have pointed to none.
Second, when Dr. Bleicher was deposed, he was directly questioned about
the June 28, 2013 meeting. None of his answers indicate that he, nor anyone else,
15
terminated Plaintiff for cause or conveyed that Plaintiff’s 2013 PEA was officially
terminated:
Plaintiff’s Counsel: [A]t any time during the course of your
employment at Pinnacle, did you ever come to a conclusion that
[Plaintiff] should be – [Plaintiff]’s employment should be terminated
for cause as set forth in [the 2013 PEA]?
Dr. Bleicher: I was not a party to any discussions regarding that.
Plaintiff’s Counsel: And – and you did not – and you were never a
decision maker where the decision was that [Plaintiff]’s employment
should be terminated for cause for one of the reasons enumerated
in this agreement that would permit Pinnacle to terminate his
employment for cause, is that correct?
Dr. Bleicher: Correct.
Plaintiff’s Counsel: Whether you ever made that decision did you
ever communicate to someone that it was your opinion, whether
you were the decision maker or not, that [Plaintiff]’s employment
should be terminated because of having had grounds to terminate
him for cause?
Dr. Bleicher: Not – not that I recall.
....
Plaintiff’s Counsel: Any termination of [Plaintiff]’s employment was
not the result of anything you did, is that correct?
Dr. Bleicher: That is correct.
....
Plaintiff’s counsel: There was never any discussion that you can
recall in that [June 28, 2013] meeting where you said to [Plaintiff] I
have terminated your prior agreement?
Dr. Bleicher: No.
Plaintiff’s counsel: There was never any discussion in that [June
28, 2013] meeting where you said to [Plaintiff] I have terminated
your agreement for cause and here are the reasons for cause that
the termination has been made?
16
Dr. Bleicher: No.
(Doc. 47-4 at 8, 17, Bleicher Dep. 26:10-27:4, 27:21-24, 62:8-16).
It is here where the court erred factually in its previous memorandum,
wherein it stated, “Bleicher . . . informed Plaintiff that the PEA had been terminated.” (Doc.
55 at 21) (emphasis added); (see also Doc. 55 at 10). Upon reconsideration, the court
finds no admissible evidence of record showing that Dr. Bleicher informed Plaintiff that his
2013 PEA was terminated, let alone for cause. Dr. Bleicher’s sworn deposition testimony
is quite clear in this regard. Any contrary testimony by Attorney DeLorenzo—insofar as it
relates to Dr. Bleicher’s statements during the meeting—is inadmissible hearsay, and thus
not competent evidence to oppose a motion for summary judgment. See Petruzzi’s IGA
Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1246 (3d Cir. 1993) (affirming
district court’s finding that inadmissible hearsay evidence, which could not be “reduced to
admissible form at trial,” was incompetent and thus unable to be considered to defeat a
motion for summary judgment); FED. R. CIV. P. 56(c)(2) (“A party may object that the
material cited to . . . dispute a fact cannot be presented in a form that would be admissible
in evidence.”). This erroneous conclusion was critical to the court’s previous partial denial
of summary judgment, because it tended to show that some agent of PHS had exercised
discretion to terminate Plaintiff, possibly for cause under the 2013 PEA.
Once the above-referenced erroneous facts and DeLorenzo’s hearsay
statements are stripped away, it becomes clear that Defendants have not met their burden
to oppose summary judgment. Defendants have failed to point to any evidence that can
be reduced to an admissible form at trial that would rebut Plaintiff’s breach of contract
claim regarding the circumstances of his termination. In other words, Defendants have not
17
identified any portion of the extensive record from which a reasonable jury could infer, at
trial, that PHS exercised its discretion to terminate Plaintiff for cause. Although
Defendants point to evidence showing that Plaintiff knew he was terminated, and that
Plaintiff did miss a day of work (which could hypothetically constitute for-cause termination
grounds), this is simply not enough at the summary judgment stage. See Acumed LLC,
561 F.3d at 228 (“speculation and conjecture may not defeat a motion for summary
judgment”).
Defendants, therefore, have not carried their burden to oppose summary
judgment, as they cannot demonstrate that a triable issue of material fact exists
concerning Plaintiff’s termination without notice and without severance pay.
Consequently, summary judgment must be granted in Plaintiff’s favor on this remaining
portion of his breach of contract claim.
b. Wage Payment and Collection Law Claim
Furthermore, because there is no genuine dispute of material fact that
Plaintiff’s termination breached the 2013 PEA, it follows that summary judgment is also
appropriate on Plaintiff’s claim under the Wage Payment and Collection Law (“WPCL”), 43
PA. STAT. AND CONS. STAT. ANN. §§ 260.1-260.45. Accordingly, the court finds as a matter
of law that when Defendants terminated Plaintiff—without doing so “for cause” under
paragraph 14(c), and without giving the required 180 days’ prior written notice under
paragraph 14(d) for unilateral “without cause” termination—Defendants violated the WPCL
when they failed to pay the severance compensation as outlined in paragraph 14(d) of the
2013 PEA.
18
The WPCL “provides a statutory remedy when [an] employer breaches a
contractual obligation to pay earned wages.” De Asencio v. Tyson Foods, Inc., 342 F.3d
301, 309 (3d Cir. 2003) (quoting Antol v. Esposto, 100 F.3d 1111, 1117 (3d Cir. 1996)).
Severance pay obligations in an employment contract fall under the WPCL’s definition of
“wages.” See 43 PA. STAT. AND CONS. STAT. ANN. § 260.2a (defining “Fringe benefits or
wage supplements” as including “separation” pay); see also Shaer v. Orthopaedic
Surgeons of Cent. Pa., Ltd., 938 A.2d 457, 465 (Pa. Super. Ct. 2007); Bowers v. NETI
Tech., Inc., 690 F. Supp. 349, 353 (E.D. Pa. 1988).
Under paragraph 14(d) of the 2013 PEA, a “without cause” termination by
either party is permissible so long as 180-days’ written notice is provided to the party not
pursuing termination. (Doc. 38-3 at 5). This paragraph also allows PHS to end a
physician’s services during the notice period, “provided that Physician shall be entitled to
the continuation of compensation and benefits during such notice period.” (Id.) Therefore,
if PHS terminates a physician without cause and then ends his services sometime before
the expiration of the 180-days’ notice period, the physician is due compensation and
benefits for the portion of the notice period still remaining at the time his services are
ended. If, however, PHS terminates a physician without cause, provides no notice, and
also ends the physician’s services immediately, it follows that such a termination would
require a severance payment of the entire 180-days’ compensation and benefits.
Because Plaintiff was not terminated under paragraph 14(a) or (b), nor for
cause under paragraph 14(c), his termination can only have been without cause under
paragraph 14(d). It is undisputed that no notice was given to Plaintiff, and that he was not
paid any compensation or benefits after his termination. Consequently, Defendants
19
violated the WPCL when they failed to pay the severance obligations that were due upon
Plaintiff’s termination as required by paragraph 14(d) of the 2013 PEA.
IV.
Conclusion
For all of the foregoing reasons, the court will deny Defendants’ motion for
reconsideration (Doc. 57) and grant Plaintiff’s motion for reconsideration (Doc. 59). The
court will vacate its previous order (Doc. 54) that granted in part and denied in part
Plaintiff’s motion for summary judgment. Furthermore, the court will grant Plaintiff’s
motion for summary judgment (Doc. 35) in full.
Thus, the court holds as a matter of law that (1) Defendants breached the
2013 Physician Employment Agreement by suspending Plaintiff without pay and by
terminating Plaintiff without cause and without making the contractually required
severance payments; and (2) Defendants violated Pennsylvania’s Wage Payment and
Compensation Law by failing to pay Plaintiff the severance due upon termination as
required by the 2013 employment contract. Trial will be held on the issue of damages
only. An appropriate order will follow.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?