author: BURR II, J.,

text:
    Thompson v. Monetary Management Corporation

      C.P. of Delaware County,
    no. 94-8987.

      James G. Wiles, for plaintiffs.

      Matthew A. White, for defendants.
    March 15, 2000
   BURR II, J.,

— The plaintiffs, Thomas C. Thompson Jr., John Petillo, William Thompson, RMH Enterprises Inc. and Quik-Tax Dollars Inc., as well as the defendants, Monetary Management Corp. and QTV Holdings Inc., have appealed from this court’s order of September 30,1999 denying the plaintiffs’ post-trial motions, denying the defendants’ post-trial motions, denying plaintiffs’ motion to mold the verdict, and plaintiffs’ supplemental motion to mold the verdict.

A verdict in the above-captioned matter was returned by a jury May 14, 1999, after four days of trial, finding that the defendants breached a fiduciary duty to plaintiffs, causing them harm, and the jury awarded plaintiffs $410,363. The jury also found that defendants breached a provision of a joint venture agreement entered into between the defendants and plaintiff corporations (exhibit MMC-41), but that such was not a legal cause of any harm to plaintiffs’ corporations. The jury found that defendants were not grossly negligent.

A joint venture agreement was entered into by defendant, QTV Holdings Inc., and plaintiffs, Quik-Tax Dollars Inc. and RMH Enterprises Inc., on January 13,1993. Defendants were engaged in the business of preparing and electronically filing income tax returns and granting refund anticipation loans. The joint venture was entered into for the purpose of marketing, expanding and operating the plaintiff’s, Quik-Tax Dollars Inc., business. The parties agreed that the individual plaintiffs, Thomas C. Thompson Jr., John Petillo and William Thompson, had no direct claim against defendants. When the joint venture agreement was entered into, Richard M. Hersch, president of RMH Enterprises Inc., became the president of Quilc-Tax Dollars Inc. He began committing fraud in the processing of tax returns, generating false checks and cashing them. Mr. Hersch was indicted and pled guilty in the United States District Court of Massachusetts to various crimes arising from his fraudulent activities. The misconduct of Mr. Hersch ultimately led to investigation by the Internal Revenue Service and the issuance of a search warrant for execution upon the premises of Quik-Tax Dollars Inc. The parties to the joint venture agreement then entered into a termination agreement on or about March 13, 1993. (Exhibit MMC-49.)

Plaintiffs contend that defendant, Monetary Management Corp., was aware of Mr. Hersch’s fraudulent activities and breached their fiduciary duty to disclose that to plaintiffs before entering into the termination agreement. The latter termination agreement contained a release by plaintiffs of all claims arising from the operation of the joint venture as they might exist against Monetary Management Corp. It was agreed by all counsel that QTV Holdings Inc. and Monetary Management Corp. were the same for .purposes of this trial.

Following trial, the jury entered the verdict herein-above set forth and the parties filed post-trial motions, which were ruled upon as indicated at the outset of this opinion.

MONETARY MANAGEMENT CORP.’S APPEAL

Defendants, Monetary Management Corp. and QTV Holdings Inc., have raised but one issue on appeal, contending that this court, as a matter of law, should have found that Monetary breached no fiduciary duty to plaintiffs. Defendants’ argument suggests that there is no legal authority to support this court’s submission to the jury of the issue of determining whether or not the said defendant owed any fiduciary duty to plaintiffs. Plaintiffs contend that defendant breached that fiduciary duty when it failed to communicate to plaintiffs its knowledge of the criminal conduct of Richard M. Hersch, which occurred during the joint venture.

Monetary contends that there is no legally cognizable fiduciary duty and that Richard M. Hersch’s knowledge of his own fraudulent and criminal conduct should be imputed to RMH Enterprises Inc., plaintiff. Plaintiffs contend that they are entitled to the full benefit of the jury’s verdict, that Mr. Hersch’s misconduct cannot be imputed under Pennsylvania law to RMH Enterprises Inc., and that the evidence established that defendants in fact benefited from the nondisclosure of Mr. Hersch’s criminal and fraudulent conduct.

The record clearly establishes, especially in light of this jury’s verdict, that Mr. Hersch was acting by and for himself and his own benefit and was not acting for the good of any of the corporations, plaintiffs or defendants. Indeed, his conduct ultimately caused serious damage to the plaintiff corporations. Normally, knowledge of fraud by a corporate officer is imputed to the corporation when the officer’s conduct was committed in the course of his employment and where the officer was acting for the benefit of that corporation. In re Phar-Mor, etc., 900 F.Supp. 784 (W.D. Pa. 1995); Rochez Bros. Inc. v. Rhoades, 527 F.2d 880 (3d Cir. 1975), cert. denied, 425 U.S. 993, 96 S.Ct. 2205, 48 L.Ed.2d 817 (1976). The corporation “is of course a creature of legal fiction.” Lokay v. Lehigh Valley Cooperative Farmers Inc., 342 Pa. Super. 89, 492 A.2d 405 (1985). It is, therefore, obvious and logical that the knowledge of a corporate officer, when acting within the officer’s scope of employment and for the benefit of the corporation, is and should be imputed to the corporation. However, there is a well-established exception providing that “knowledge of an agent in a transaction in which the agent secretly is acting adversely to the [corporation] and entirely for his own or another’s purposes” is not imputed to the corporation. F.D.I.C. v. Shrader & York, 777 F. Supp. 533; 991 F.2d 216 (1993), reh. denied, 999 F.2d 1581 (5th Cir. 1993), cert. denied, 512 U.S. 1219, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994); Restatement (Second) of Agency §282(1). Where the misdeeds of the corporate officer worked to the benefit of one or a group, other than the corporation, then obviously the foregoing presumption loses its logic and validity. A principal is not presumed to have had knowledge or information of an agent’s fraudulent conduct. Todd v. Skelly, 384 Pa. 423, 120 A.2d 906 (1956); Littler v. Dunbar, 365 Pa. 277, 74 A.2d 650 (1950); Thees v. Prudential Insurance Co. of North America, 325 Pa. 465, 190 A. 895 (1937); First National Bank of Bangor v. Bangor Trust Co., 297 Pa. 115, 146 A. 595 (1929).

It is clear from this jury’s verdict and from the lack of any dispute that Mr. Hersch acted entirely in his own interests and not for the benefit of any party to this litigation. Further, Mr. Hersch was not in the course of his employment since there is no suggestion that he was retained to submit fraudulent income tax returns. The evidence was clear in the case at bar that plaintiffs, RMH Enterprises Inc. and Quik-Tax Dollars Inc., were adversely impacted by Mr. Hersch’s fraudulent conduct. Therefore, the knowledge of Mr. Hersch, even though an officer of the plaintiff corporations, cannot be imputed to plaintiff corporations. Indeed, the evidence in this trial confirmed that plaintiffs did not have knowledge of Mr. Hersch’s conduct until after executing the termination agreement. The circumstances of the case at bar, considering the evidence and all reasonable inferences arising therefrom in favor of the verdict winner as to this issue, indicate that to impute the knowledge of a corporate officer who for his own benefit was fraudulently conducting corporate business (filing fraudulent income tax returns) and profiting greatly therefrom, would be incongruous, repugnant to logic and justice and it is somewhat ludicrous to suggest that such knowledge should be imputed to the very corporation which the officer’s conduct is destroying.

BREACH OF FIDUCIARY DUTY

Defendants contend that the defendant corporations have no duty, when entering into a partnership with the plaintiff corporations, to disclose the misconduct of a corporate officer, criminal or otherwise, to the companies with whom they are in partnership. Further, the defendants contend that it is fatal to plaintiffs’ case that there is no evidence indicating that defendant Monetary benefited from its nondisclosure.

Plaintiffs’ contention is that defendants benefited from their nondisclosure concerning Mr. Hersch’s criminal conduct and fraudulent background by being able to obtain plaintiffs’ execution of the termination agreement which purportedly released defendants from all claims by plaintiffs. A fair review of the record in this matter evinces a sufficient quantum of evidence upon which the jury could have concluded that the defendants did so benefit. Further, defendants by way of the executed termination agreement severed their relationship with plaintiffs in time to avoid the government’s execution of a search warrant and the difficulties that ensued thereafter.

The Pennsylvania Supreme Court in the matter of McRoberts v. Phelps, 391 Pa. 591, 138 A.2d 439 (1958), has 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 [ejntrusted the conduct of the enterprise, toward his associates he occupies the position of a trustee.” 391 Pa. at 603, 138 A.2d at 445. (citations omitted)

Thus, this jury could well have found that defendants failed in their duty of loyalty, of fairness, of good faith, or of full disclosure. There was ample evidence presented at trial upon which the jury could have found that the defendants knew of Mr. Hersch’s background and criminal activity and took no steps to advise any member of plaintiff corporations or, in fact, to do anything. Rather, defendants obtained plaintiffs’ execution of the termination agreement which contained a release protecting the defendants. Whether the breach of that fiduciary duty caused damage and if so, how much, was another question which was left to the jury. The cases do not appear to hold that there must be a particular kind or amount of damage before a plaintiff can recover, but simply that there must be some harm caused to the plaintiff by a defendant’s breach of its fiduciary duty to be loyal, fair, acting in good faith, and giving full disclosure towards one’s co-venturers.

Defendants’ post-trial motion appears to be requesting judgment n.o.v. Such will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that a verdict or finding was improper. Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa. Super. 308, 605 A.2d 373 (1992). The court must determine whether there was sufficient competent evidence to sustain the finding, granting the winner of the finding the benefit of every inference that can be reasonably drawn from the evidence and rejecting all unfavorable testimony and inferences to be drawn therefrom. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989). An appellate court will reverse a trial court’s ruling only if it finds an abuse of discretion or an error of law that controlled the outcome of the case. Timbrook v. Foremost Insurance Co., 324 Pa. Super. 384, 471 A.2d 891 (1984). Considering the evidence which supports the finding, the court must give the winner the benefit of the doubt and of every fact and inference deducible from the evidence. Robertson v. Atlantic Richfield Petroleum Company, 371 Pa. Super. 49, 537 A.2d 814 (1987), alloc. denied, 520 Pa. 590, 551 A.2d 216 (1988). Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary, the trial judge must grant said motion when no two reasonable minds could differ that, as a matter of law, the party with the burden to do so has failed to make out its case. Thomas v. Allegheny & Eastern Coal Co., 309 Pa. Super. 333, 455 A.2d 637 (1982).

All unfavorable testimony and inferences from the verdict winner’s point of view must be rejected. Mike v. Borough of Aliquippa, 279 Pa. Super. 382, 421 A.2d 251 (1980); Karam v. Pennsylvania Power & Light Co., 205 Pa. Super. 318, 208 A.2d 876 (1965); Wilkerson v. Phila delphia Transportation Co., 167 Pa. Super. 616, 76 A.2d 430 (1950); Pinto v. Bell Fruit Co., 148 Pa. Super. 132, 24 A.2d 768 (1942). Judgment n.o.v. may not be employed to invade the province of the jury which must be allowed to resolve all issues of fact. Trawick v. Nationwide Mutual Insurance Co., 242 Pa. Super. 271, 363 A.2d 1265 (1976).

It is respectfully suggested that this court’s denial of a judgment n.o.v. was appropriate according to the evidence presented, the law, and justice.

Further, should the defendants be seeking a new trial as concerns these issues, then all competent evidence must be considered to determine whether or not the verdict was against the clear weight of the evidence or whether there was a clear error of law or palpable abuse of discretion on the part of this court. Klyman v. SEPTA, 331 Pa. Super. 172, 480 A.2d 299 (1984); Tyus v. Resta, 328 Pa. Super. 11, 476 A.2d 427 (1984). Any finding of abuse of discretion must be founded upon clear and convincing evidence. The trial court will be upheld on any valid ground. Dalton v. Dalton, 409 Pa. Super. 258, 597 A.2d 1192 (1991). The standard of review is to determine whether this court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corporation, 513 Pa. 411, 521 A.2d 413 (1987); Solomon v. Baum, 126 Pa. Commw. 646, 560 A.2d 878 (1989). An abuse of discretion is more than simply an error of judgment, but rather it is a demonstration that in reaching the conclusion, the trial court has overridden or misapplied the law, or the trial court has exercised judgment in a manifestly unreasonable manner, or allowed that judgment to be exercised as a result of partiality, prejudice, bias, or ill will. Spitzer v. Tucker, 404 Pa. Super. 539, 591 A.2d 723 (1991). A new trial will be awarded only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Palange v. City of Philadelphia, Law Department, 433 Pa. Super. 373, 640 A.2d 1305 (1994); Giovanetti v. Johns-Manville Corp., 372 Pa. Super. 431, 539 A.2d 871 (1988); Ludmer v. Nernberg, 433 Pa. Super. 316, 640 A.2d 939 (1994). There is nothing about this judgment that shocks the conscience of this court since, considering this record in a light most favorable to the plaintiff verdict winners as concerns the issue of breach of fiduciary duty, the defendants knew of the plaintiff’s corporate officer’s fraudulent and criminal conduct both before and during the joint venture in question, but did not disclose that information to anyone representing the plaintiffs. The knowledge of fraud and criminal activity had by this corporate officer, as has been seen, could not be imputed to plaintiff corporations, and since defendants were aware that plaintiffs were or should have been aware that plaintiffs did not know of Mr. Hersch’s conduct, defendants then obtained a termination agreement releasing the defendants from any and all responsibility to plaintiffs. It is not surprising that this jury found the defendants responsible for breach of a fiduciary duty to plaintiffs. The conduct in question certainly occurred during the partnership or joint venture. It is respectfully suggested again that there was neither error of law nor abuse of discretion. Certainly, it has not been demonstrated that any of this court’s judgments were the result of partiality, prejudice, bias or ill will.

It is respectfully suggested that this court’s denial of a new trial is supported by the record, the law, and justice.

PLAINTIFFS ’APPEAL

Plaintiffs also have appealed, contending that the court’s jury instructions were erroneous and that the court erroneously refused to permit plaintiffs’ counsel to question a witness concerning a letter from an officer of defendant Monetary. Plaintiffs also appeal contending the court erred in refusing to “grant plaintiffs’ post-trial motion to add interest, attorneys’ fees, expert fees, and costs to the verdict.” Plaintiffs’ post-trial motions were denied, hence plaintiffs’ appeal.

LEGAL INSTRUCTIONS

A motion for new trial based upon error in the jury instructions must be considered in light of the entire instructions to make a determination as to adequacy. Von Der Heide v. PennDOT, 553 Pa. 120, 718 A.2d 286 (1998); Strickler v. Huffine; Royal Insurance Co., 421 Pa. Super. 463, 618 A.2d 430 (1992); Linde Enterprises Inc. v. Hazleton City Authority, 412 Pa. Super. 67, 602 A.2d 897 (1992). The test thus becomes whether the trial court’s instruction “fairly and accurately apprises the jury of the relevant concepts ....” If it does so, a new trial is not warranted. Wagner by Wagner v. York Hospital, 415 Pa. Super. 1, 608 A.2d 496 (1992). The search is, of course, to ascertain, in consideration of the charge as a whole, that there was no “fundamental prejudicial error.” Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995).

1. Fiduciary Duty

Plaintiffs take exception to the court’s instruction concerning fiduciary duty. This jury, however, found that defendant did breach a fiduciary duty to the plaintiffs and, therefore, even if the instruction had been erroneous, plaintiffs suffered no prejudice therefrom.

Plaintiffs argue that the court should have instructed the jury that the fiduciary duty includes a duty of disclosure. However, a fair reading of the court’s instruction in this regard will indicate that the jury was instructed that the duties arising in this partnership arose from the joint venture agreement, and that the defendant partners owed a duty of good faith to the plaintiffs. Further, the court placed these instructions in the context of a failure “to perform for the partnership’s benefit.” (5/14/99 N.T. 42-43.) Clearly, Mr. Hersch’s conduct was not for the corporation’s benefit, since filing fraudulent tax returns could only do serious harm to the plaintiffs and to the joint venture.

The plaintiffs also contend that it was error for the court not to specifically instruct that the fiduciary duty predated the execution of legal documents. What has already been seen is that the context of good faith owed to a partner exists within the partnership. It is clear that the duty must arise from the partnership. But this court did not restrict the jury’s consideration of the knowledge gained by defendants to any period of time whether during the joint venture or before it. Further, the trial court specifically instructed this jury concerning the plaintiffs’ contention that there was an agreement to enter into this joint venture, and that duties between the parties may arise from such an agreement, and, therefore, predate the execution of the formal joint venture agreement. It certainly does not always predate such an agreement, as plaintiffs suggest. Snellbaker v. Herrmann, 315 Pa. Super. 520, 527, 462 A.2d 713, 716-17 (1983); 13 Summary of Pa. Jurisprudence 2d Joint Ventures §19:24; 46 AmJur.2d Joint Adventures §35 (1994). It was for the jury to determine whether or not the facts that they found, before and during the joint venture, gave rise to a fiduciary duty. There is no reason here to believe in light of this verdict, that the jury did not find knowledge of wrongdoing before this joint venture, although the verdict is not specific in that regard.

Further, it must be observed that plaintiffs have waived this objection. Following the court’s charge, the parties went to sidebar and from the record it does not appear that plaintiffs raised any objection to the court’s charge in this regard and certainly there was no specificity to any objection concerning breach of fiduciary duty. Therefore, since the court’s instructions, although not using the specific words requested by plaintiffs, did fairly and accurately communicate the applicable law, did leave to the jury appropriately the questions of fact which the jury had to determine, and since the plaintiffs failed to specifically object, it is respectfully suggested the plaintiffs’ post-trial motion was properly denied. Further, even if there was error in the court’s charge, in light of the verdict, there was no prejudice.

2. Instruction Concerning Expert Testimony

Plaintiffs argue that the court’s instruction concerning expert witnesses was erroneous, suggesting that if the jury found one fact contrary to those facts assumed by the expert, that expert’s opinion failed. Regretfully, this is an inaccurate statement of the court’s instruction concerning expert testimony. Plaintiffs direct their assault here to an analogy that the trial court shared with the jury in an effort to explain the importance of considering the reasons that an expert gives for his opinion. The analogy involved a child playing with blocks on the living room floor and building a pyramid, and that the child quickly learns that that pyramid is only as firm as the foundation blocks. (5/14/99 N.T. 14.) Plaintiffs in their argument misstate the court’s instructions. Nowhere did the court state that if one block failed, the entire opinion failed. Rather, the specific language of the court with respect to that particular analogy was “very quickly, the child realizes that that pyramid is only as firm as the foundation blocks. And the foundation blocks holding up the pyramid of an opinion are the reasons that the expert gives you for that opinion.” (5/14/99 N.T. 14.) The foregoing is but one small aspect of the court’s instruction concerning expert testimony and a fair reading of that instruction will demonstrate quite simply that it is consistent with the well-established law of this Commonwealth and also consistent with the Pennsylvania Suggested Standard Civil Jury Instructions published by the Pennsylvania Bar Institute. (SJI (CIV) 5.30, 5.31, 5.32, 5.33 and cases therein cited.) The court’s instructions in this regard simply reminded the jury that when considering an expert witness’ opinion, they must consider also the reasons given for that expert’s opinion and to the extent that those reasons fail, then to that extent so may the opinion. It is respectfully suggested that there is no basis in fact, in the record, or in the charge when considered as a whole for a new trial. Further, it is noted that plaintiffs raised no specific objection in this regard at trial and, therefore, the matter should be deemed waived.

3. Misrepresentation, Missing Witness and Right of Individual Plaintiffs to Recover

Plaintiffs, in their concise statement, contend that the court erred in its instructions concerning misrepresentation, in refusing to give a “missing witness” instruction, and in instructing the jury that the individual plaintiffs could not recover in this action. This court does not recall, and this record fails to disclose, any potential witness that was not equally available to all parties in this action. Plaintiffs failed to raise any exceptions in this regard at sidebar, failed to raise, argue and brief any of these matters in their post-verdict motions, and they are raised now for the first time on appeal. Plaintiffs have presented neither argument nor legal theory nor a point in the record where any of these objections or exceptions were raised. These matters should, therefore, be deemed waived pursuant to Pennsylvania Rule of Civil Procedure 227.1(b)l; Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974); Frank v. Peckich, 257 Pa. Super. 561, 391 A.2d 624 (1978). Arguments not appropriately developed are waived. Nimick v. Shuty, 440 Pa. Super. 87, 100, 655 A.2d 132, 138 (1995); Smith v. Penbridge Associates Inc., 440 Pa. Super. 410, 427 n.12, 655 A.2d 1015, 1024 n.12 (1995); Gallagher v. Sheridan, 445 Pa. Super. 266, 665 A.2d 485 (1995).

It is appellant who carries the burden of establishing his entitlement to relief by showing that the trial judge’s ruling was erroneous under the law. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). Where appellant fails to cite any authority in support of a contention, the claim is waived. Gallagher v. Sheridan, supra; Hercules v. Jones, 415 Pa. Super. 449, 609 A.2d 837 (1992). An appellate court will decline to address such phantom arguments where an appellant has presented the position without elaboration or citation to case law. Further, the Pennsylvania appellate courts have held that they will not consider a claim which has not been called to the trial court’s attention so as to allow a reasonable opportunity to correct the matter. Dilliplaine v. Lehigh Valley Trust Company, supra, at 259, 322 A.2d at 116; Noecker v. Johns-Manville Corp., 355 Pa. Super. 463, 513 A.2d 1014 (1986); Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 107, 655 A.2d 138, 141 (1995) (en banc). Trial counsel carry the responsibility of being diligent and assisting the court in preventing error at the trial court level and allowing any such error that might occur to be corrected. These issues raised, for first time on appeal, should, therefore, be deemed waived. Further, it must be observed that plaintiffs clearly acquiesced to the court’s charge in that regard.

The matter of individual right to recover by the individual plaintiffs was discussed at a robing room precharge conference and plaintiffs acquiesced in the court’s observation that the individual plaintiffs, the directors of plaintiffs’ corporations, gained no right independently of the corporations’ right to recover. (5/ 13/99 N.T. 24-26.) Further, there was no exception taken to the court’s instructions, in this regard, as hereinabove discussed. Finally, there was no exception taken to the verdict slip which clearly inquires only as to breach of contracts gross negligence, and breach of fiduciary duty as to plaintiffs, RMH Enterprises Inc. and Quik-Tax Dollars Inc. Further, plaintiffs have presented no argument or law justifying their position. As has hereinabove been discussed, the defendants’ duty arises from their relationship with the corporate partners who ultimately entered into the joint venture agreement with the defendants. The individual plaintiffs never did so, nor was there any suggestion at trial that they were parties to this contract, or had any independent dealings in their own right with the defendants. Simply, where the individual plaintiffs acted, they acted solely as corporate officers of the plaintiff corporations.

It is respectfully suggested for the foregoing reasons that there was neither error of law nor abuse of discretion and, therefore, this court properly denied plaintiffs’ request for post-verdict relief in this regard.

4. Gross Negligence

Defendants contend that the court’s instructions concerning gross negligence were erroneous. Plaintiffs argue that the court instructed the jury that they must be satisfied that the defendants acted willfully. A fair reading of the court’s instructions will indicate that the court instructed the jury as to the concept of negligence and then as to gross negligence. Among other things, this court stated to the jury that:

“Gross negligence consists in a want of even stand[ard] care. Something less than intentional action or intentional indifference to action. But it is an extreme departure from the standard of ordinary conduct. Gross negligence is the want of that diligence that even careless men and women are accustomed to exercise under the circumstances in this case.” (5/14/99 N.T. 40.)

It is simply inaccurate to suggest that this court required the jury to find anything, particularly that they must find the defendants acted willfully. Indeed, a fair reading of the entire charge will indicate that the jury was instructed accurately and in accordance with the law of this Commonwealth. The instruction does not serve as a foundation for plaintiffs’ request for a new trial. Indeed, this court’s instruction is consistent with the definition of gross negligence set forth in Black’s Law Dictionary, sixth edition, p. 1033, and the court’s definition of willful, was likewise consistent with Black’s Law Dictionary, sixth edition, p. 1599, but at no time did this court instruct the jury that in order to find gross negligence, the defendants’ conduct must be willful or intentional.

5. Interest, Attorneys’ Fees, Expert Fees and Costs

Plaintiffs contend that the jury should have been instructed concerning the award of interest and, further, that this court erred in denying plaintiffs’ post-trial motion “to add interest, attorneys’ fees, expert fees and costs to the verdict.” Plaintiffs contend that they are entitled to pre-judgment interest and that they are entitled to recover attorneys’ fees and costs under the terms of the joint venture agreement.

Initially, although the jury did, as plaintiffs observe, find on May 14, 1999 that the joint venture agreement was breached, it also found specifically that the aforesaid breach was not “a substantial factor in bringing about any harm to the plaintiffs. . . .” (Verdict slip entered of record, interrogatory no. 2.) It would not only be incongruous but repugnant to the jury trial system for this court to ignore the jury’s findings that the breach caused no harm. Therefore, any instruction concerning pre-judgment interest would have been superfluous since the jury found no legal cause of harm from the breach.

Further, plaintiffs contend that the breach of a fiduciary duty is a tort and, therefore, delay damages may be awarded. However, the award of delay damages is controlled by the Pennsylvania Rules of Civil Procedure, 238(a)(1), which provides:

“At the request of plaintiff in a civil action seeking monetary relief for bodily injury, death, or property damages, damages for delay shall be added....” (emphasis added)

Clearly, the instant action does not fit within the predicate definition for the recovery of delay damages.

There has never been a dispute in this case concerning the applicability of the joint venture agreement. Both parties agree that they are bound by the terms thereof. Therefore, pursuant to plaintiffs’ post-trial motion to award interest, attorneys’ fees and costs, this court is compelled to look to that joint venture agreement. Halpin v. LaSalle University, 432 Pa. Super. 476, 639 A.2d 37 (1994), appeal denied, 542 Pa. 670, 668 A.2d 1133 (1995).

Both parties agree that the award of attorneys’ fees and costs is controlled by the joint venture agreement, section 13.4. That provision provides:

“(a) QTV (the parties stipulated that QTV was the same as defendant Monetary) hereby agrees to indemnify, defend and hold harmless the joint venture, RMH and Richard Hersch, from and against any and all claims, losses, awards, judgments, settlements, fines, penalties, liabilities, damages, costs or expenses, including, without limitation, reasonable attorneys’ fees and court costs (collectively, Tosses’), asserted against, incurred by or imposed upon the joint venture, RMH or Richard Hersch which arise out of and to the extent arising out of: (i) the gross negligence and/or willful misconduct of QTV or its officers, directors, employees, agents, affiliates or contractors;...
“(b) RMH hereby agrees to indemnify, defend and hold harmless the joint venture and QTV from and against any and all losses, which arise out of and to the extent arising out of: (i) the gross negligence and/or willful misconduct of either or both of RMH or Richard Hersch or the officers, directors, employees, affiliates or contractors thereof;...

Thus, both plaintiffs and defendants agreed to indemnify the joint venture and each other against the losses defined in the aforesaid paragraph. It makes little sense to require plaintiffs to pay defendants and defendants to pay plaintiffs’ costs and attorneys’ fees. While the “losses” certainly arose out of “the gross negligence and/ or willful misconduct” of Richard Hersch, both plaintiffs and defendants would be entitled to compensation if the agreement were applicable. However, the gross negligence or willful misconduct of Richard Hersch is not something found by this jury and this court should not conclude, based on the self-serving statements of plaintiffs and defendants, without having heard from Richard Hersch in any way, that the contract term requires plaintiffs’ motion to be granted. Further, there is no argument made by plaintiffs that a breach of fiduciary duty is included within the predicate provisions of this paragraph of the joint venture agreement nor is this court ready to so conclude.

Further, since this jury found that no harm resulted from defendants’ breach of the joint venture agreement, plaintiffs would not be entitled to recover damages in the nature of attorneys’ fees or costs pursuant to that agreement. Therefore, section 13.4 (ii) does not afford plaintiffs relief in light of this jury’s finding. That provision provides that there will be indemnification for only a breach of the agreement.

Plaintiffs seek to recover court costs. The joint venture agreement, if it were applicable, does not define that word and therefore, one would look to its ordinary meaning and to Delaware County Rule of Civil Procedure *903, which controls award of costs. Pines Plaza Bowling Inc. v. Rossview Inc., 394 Pa. 124, 145 A.2d 672 (1958); Volunteer Firemen’s Insurance Services Inc. v. CIGNA Property and Casualty Insurance Agency, 693 A.2d 1330 (Pa. Super. 1997).

Delaware County Civil Rule *903 does not provide for the recovery of deposition expenses, costs of trial exhibits, or expert witness fees as court costs. Plaintiffs have applied for appropriate “court costs” pursuant to Delaware County Court Rule *903 by filing a bill of costs with the Office of Judicial Support in any event. There is no need for a court order. Plaintiffs have provided this court with neither argument nor the citation of authority supporting this contention and, therefore, it should be deemed waived. Normally such costs as plaintiffs seek are excluded from that which may be taxable against a losing party in Pennsylvania. Pavex Inc. v. York Federal Savings and Loan Association, 716 A.2d 640 (Pa. Super. 1998); Walasavage v. Marinelli, 334 Pa. Super. 396, 483 A.2d 509 (1984); Kojeszewski v. Brigantine Castle and Amusement Corp., 302 Pa. Super. 500, 449 A.2d 28 (1982); Harmer v. Horsham Hospital Inc., 60 Pa. Commw. 525, 431 A.2d 1187 (1981).

Since plaintiffs are not entitled to recover these items pursuant to the joint venture agreement, or pursuant to local rule, or pursuant to any state authority which this court has been able to locate, it is respectfully suggested that the law, this record and justice required the denial of plaintiffs’ motions in this regard and therefore such should not serve as a basis for a new trial.

It is also respectfully suggested that the court’s denial of plaintiffs’ motion for pre-judgment interest, and the court’s denial of plaintiffs’ request for instructions thereto, and the court’s denial of plaintiffs’ request for fees and costs was also consistent with the evidence presented, with the law and with justice. The plaintiffs’ motions were appropriately denied in this regard.

It is respectfully suggested that this court’s denial of plaintiffs’ post-verdict motions was neither an abuse of discretion nor error of law and should not therefore be reversed.

6. Examination Concerning March 31, 1993 Letter

Plaintiffs contend that the court committed error in refusing to permit plaintiffs’ counsel to inquire of the witness, Jeffrey Weiss, concerning a letter dated March 31,1993 reportedly demanding his removal as chief executive officer of defendant Monetary. Plaintiffs’ counsel, in fact, did not seek to introduce the letter but rather was apparently intending to inquire whether or not the witness, Jeffrey Weiss, chairman of the board of Dollar Financial Group, previously known as defendant Monetary Management, was aware of the letter’s content. (5/ 13/99 N.T. 3.) Plaintiffs’ counsel was inquiring as to whether or not this witness “had just lived through the experience of your own senior officers going to your corporate board to report you?” (5/13/99 N.T. 50.) Plaintiffs offered to show him “documents,” presumably the letter of March 31, 1993 referred to in plaintiffs’ motions. (See 5/13/99 N.T. 50.) Plaintiffs argue that this question is relevant to the issue of defendants’ liability. Plaintiffs suggest that, by virtue of this letter, Mr. Weiss knew that he had a duty to convey knowledge of Mr. Hersch’s wrongdoing to RMH. Plaintiffs suggest that it is relevant to the issue of gross negligence.

That Mr. Weiss may have had an experience where corporate officers were unhappy with him and reported him to the board of directors does not infer that he has knowledge of a duty that when one suspects another corporate officer, such as Mr. Hersch, of wrongful conduct, that such must be reported to the board of directors of plaintiffs. There is nothing in the letter or in plaintiffs’ counsels’ argument that establishes that this incident made Mr. Weiss aware of some duty which he or defendants had as regards Mr. Hersch’s conduct.

Further, this court heard from Martin Enterlin, plaintiffs’ expert witness, as to “good corporate practices,” which included corporate duty. The court has authority to exclude cumulative evidence. Pennsylvania Rule of Evidence 403. Mr. Weiss was not called as an expert and therefore even if he had an opinion and was allowed to proffer it, as to what the duties of corporate officers may have been, it would have added nothing to plaintiffs’ case.

More importantly, the risk of prejudice arising from the letter in question far outweighs any evidentiary benefit therefrom. The letter simply attacks Mr. Weiss and made no mention of Mr. Hersch or the relevant situation involved in the case at bar. There is no foundational evidence suggesting sufficient similarity of these cases or that one experience gives rise to knowledge of an established duty resting upon every corporate officer.

A trial court is granted wide discretion as concerns the admission of evidence. Micciche v. Eastern Elevator Company, 435 Pa. Super. 219, 645 A.2d 278 (1994); Plowman v. Plowman, 409 Pa. Super. 143, 597 A.2d 701 (1991). It is respectfully suggested that the exclusion of the evidence in question was not a manifest abuse of discretion. Also, there is a danger that admission of this evidence could have been potentially misleading or confusing. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa. Super. 14, 473 A.2d 584 (1984). The jury may very well have misunderstood that there was a broader practice within the defendant corporation of inappropriate or wrongful conduct. Such was not the plaintiffs’ theory nor was it an issue in this case. Relevance is, of course, a threshold issue in determining the admissibility of any evidence. Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 537 A.2d 334 (1988). Even relevant evidence may be excluded if the court concludes that it would be unfairly prejudicial. Finally, the “character assassination” of the witness, Mr. Weiss, was a very real risk if this collateral issue was permitted to be inserted during the trial.

It is therefore respectfully suggested that this evidentiary ruling was neither error nor an abuse of discretion and should not serve as the foundation for the grant of a new trial.

It is for all of the foregoing reasons that this court denied the plaintiffs’ post-trial motions and the defendants’ post-trial motions. It is respectfully suggested that such is in accordance with the evidence presented during this trial, the applicable law and the interests of justice.

      . The Honorable Clement J. McGovern Jr. was formerly the judge to whom the above-captioned matter was assigned. The retired Judge McGovern decided the motions upon which this appeal is based and contributed to the drafting of this opinion which has been filed by the undersigned judge.

      . See, for discussion of these principles, the opinion of Justice Kephart for the Pennsylvania Supreme Court in National Bank of Shamokin v. Waynesboro Knitting Co., 314 Pa. 365, 172 A. 131 (1934).

      . See also, 20 P.L.E. judgment 124 and 125.

      . The principal body of this instruction may be found at 5/14/99 N.T. 42-46. Plaintiffs’ exceptions to the court’s charge may be found at 5/14/99 N.T. 53-59.

      . The court’s instruction to the jury may be found at 5/14/99 N.T. 28-29.

      . See pages 416-18 hereof for a discussion of the applicable law.

      . There is nothing in the record or in the verdict of this jury that suggests the jury’s verdict was a compromise as plaintiffs suggest. Plaintiffs have not raised that issue on appeal, so it need not be further discussed herein.

      . The court’s instruction concerning expert testimony may be found at 5/14/99 N.T. 12-16.

      . See pages 416-18 hereof for discussion of law as to waiver.

      . The court’s instructions in this regard may be found at 5/14/ 99 N.T. 39-41. Once again, it must be noted that there was no exception taken to these instructions. Although the subject of gross negligence was raised at sidebar following the main portion of this court’s instructions, it was raised in relation to the individual plaintiffs apparently. (5/14/99 N.T. 58.) And, although it is not clear in the transcript, the question related to damages. (5/14/99 N.T. 57.) The matter should thus be deemed waived. See discussion on pages 416-18.

      . Plaintiffs’ concise statement of matters complained of on appeal, paragraphs five and seven.

      . The parenthetical observation concerning QTV was inserted by this court in light of the agreement entered into by the parties at the outset of this litigation. A complete copy of the joint venture agreement may be found as exhibit “A,” appendix in support of Monetary Management Corporation’s motion for post-trial relief.

      . It is conceded that the indictment and conviction of Mr. Hersch clearly indicate willful misconduct.

      . See the law discussed concerning waiver hereinabove at pages 416-18.

      . It is interesting to note that the jury, during deliberations, had plaintiffs’ exhibit 237 setting forth a summary of the elements of plaintiffs’ damage claims which included simple interest at the rate of 6 percent. Therefore, one can reasonably conclude that such was considered when this jury entered its award.

      . Presumably counsel is referring to the questions and sidebar conference that occurs at N.T. May 13, 1999 (the face sheet erroneously suggests June 13) pp. 49-52.

      . It is apparent that there is some confusion in the transcription of these notes of testimony since one set of notes is dated June 13, 1999 purporting to be a transcript of these proceedings. This court assumes that that should be dated May 13, 1999. The N.T. page citations and references have herein been made to that copy. Another transcript of these proceedings properly dated May 13,1999 is also included in the record and that which has been transcribed is different. The second and thicker, May 13 notes of testimony including this witness’ testimony have the objection, which is presumably the point of plaintiffs’ exception, beginning at page 115 and ending at 118. The plaintiffs argue, that because Mr. Weiss went through a “similar” experience, he should have known to report the matter to the RMH board.
      Finally, it must be observed that plaintiffs’ memorandum of law in support of plaintiffs ’ motions for post-trial relief suggests that the court said the letter was an effort at “character assassination,” but nowhere in the two transcripts involving this particular testimony does that phrase appear, even though it might have been an accurate observation.

      . See 5/11/99 N.T. 228-342.

      . The law involving judgment n.o.v. has been reviewed herein at pages 408-410, and the law as it pertains to the grant of a new trial has been discussed hereinabove at pages 410-11.


source: Caselaw Access Project

author: SHEPPARD JR., J.,

license: Public Domain

text:
    Philadelphia Ear, Nose & Throat Surgical Associates P.C. v. Roth

      Alan Turner, for plaintiff.

      David R. Dearden, for defendant.
    March 13, 2000
   SHEPPARD JR., J.,

— This court denies the petition for a preliminary injunction because plaintiff-petitioner has failed to prove that: (1) such a denial will result in immediate and irreparable harm that damages cannot adequately compensate, (2) the balancing of the harms favors granting the preliminary injunction, (3) the injunction requested is reasonably suited to abate the alleged harm, and (4) the plaintiff-petitioner has a clear right to relief.

The court submits the following findings of fact and conclusions of law in support of its contemporaneous order denying the request for injunctive relief.

FINDINGS OF FACT

(1) On January 20, 2000, plaintiff, Philadelphia Ear, Nose and Throat Surgical Associates P.C., filed a complaint against defendant, Maurice Roth M.D., seeking damages for breach of an employment contract and an order enjoining Dr. Roth from violating the restrictive covenant contained in that contract.

(2) On the same date, PENT filed a petition seeking a temporary restraining order and preliminary injunction.

(3) The court conducted hearings on the petition for preliminary injunction on February 1 and 3, 2000. The court heard oral argument on February 28, 2000.

(4) PENT is a Pennsylvania corporation. (Exhibit P-15.) Lee M. Rowe M.D. is the president and sole shareholder of PENT. (2/1/00, N.T. 14.)

(5) Dr. Rowe is an ear, nose and throat physician (otolaryngologist).

(6) In 1981, Dr. Rowe began work as a physician-employee of Atkins-Keane Otolaryngic Associates Ltd., a medical practice owned and operated by Drs. Atkins and Keane. (2/1/00, N.T. 10.)

(7) When Dr. Rowe joined Atkins-Keane, AtkinsKeane had a limited ENT practice at Northeastern Hospital. (2/1/00, N.T. 39.)

(8) Dr. Rowe eventually became a shareholder of the practice. On April 1,1988. Atkins-Keane changed its name to “Atkins-Keane-Rowe Otolaryngic Associates Ltd.” (Exhibit P-14; 2/1/00, N.T. 10.) On August 5,1997, upon Dr. Keane’s resignation from the practice, Atkins-KeaneRowe changed its name to “Atkins-Rowe Otolaryngic Associates Ltd.” (Exhibit P-14; 2/1/00, N.T. 11-13.)

(9) On February 16, 1999, upon Dr. Atkins’ resignation from Atkins-Rowe, Atkins-Rowe changed its name to “Philadelphia Ear, Nose and Throat Surgical Associates P.C.” (Exhibit P-14; 2/1/00, N.T. 13-15.) All three groups — Atkins-Keane-Rowe, Atkins-Rowe and Philadelphia Ear, Nose and Throat Surgical Associates PC.— are referred to in this document as PENT.

(10) Dr. Rowe’s practice is concentrated at Northeastern where he serves as chairman of the department of surgery and chief of otolaryngology. (2/1/00, N.T. 26, 84.) Northeastern is a community hospital in the Port Richmond area of Philadelphia. (2/1/00, N.T. 51-52.) PENT has an office on Allegheny Avenue, across the street from Northeastern, and rents clinic space in Northeastern. (2/1/00, N.T. 51.)

(11) Dr. Rowe admits being one of the busiest ENT physicians in Philadelphia. (2/1/00, N.T. 83.)

(12) On June 30,1995, defendant, Maurice Roth M.D., entered into an employment agreement with AtkinsKeane-Rowe. (Exhibits P-3, D-5; 2/1/00, N.T. 18-20.)

(13) Dr. Roth is an ENT physician. (2/3/00, N.T. 9-10.)

(14) The agreement provided that:

(a) Dr. Roth would receive an annual salary of $150,000, but that the salary was subject to revision by the board of directors of Atkins-Keane-Rowe (exhibit P-3, ¶4);

(b) Atkins-Keane-Rowe would pay the cost of Dr. Roth’s professional liability insurance during the term of the agreement (exhibit P-3, ¶5); and

(c) The agreement was effective from July 5, 1995 until June 30, 1996, and was to continue from year to year unless terminated by either party upon 90 days written notice. (Exhibit P-3, ¶3.)

(15) The agreement contained the following restrictive covenant:

“(10) Restrictive covenant
“(a)... Upon termination of employee’s employment hereunder, employee agrees to resign his staff privileges at Pennsylvania Hospital, Northeastern Hospital, Wills Eye Hospital and Thomas Jefferson University Hospital and will not practice at such hospitals for a period of two years after his termination of employment hereunder.
“(b) Employee acknowledges that the restrictions contained in the foregoing subparagraph (a) in view of the nature of the practice in which corporation is engaged, are reasonable and necessary in order to protect the legitimate business interest of corporation, and that any violation thereof would result in irreparable injuries to corporation, and employee therefore acknowledges that, in the event of his violation of any of these restrictions, corporation shall be entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other rights or remedies to which corporation may be entitled.
“(c) If the period of time or the area specified in sub-paragraph (a) above should be adjudged unreasonable in any proceeding, then the period of time shall be reduced by such number of months or the area shall be reduced by the elimination of such portion thereof or both so that such restrictions may be enforced in such area or for such time as is adjudged to be reasonable. If employee violates any of the restrictions contained in the foregoing subparagraph (a), the restrictive period shall not run in favor of employee from the time of the commencement of any such violation until such time as such violation shall be cured by employee to the satisfaction of corporation.” (Exhibit P-3.)

(16) The agreement further provided that, “[u]pon termination of employee’s employment hereunder for any reason whatsoever, employee agrees not to initiate contact or to solicit any patients of corporation and agrees that all [patient] lists, records and information shall remain the sole and confidential property of corporation.” (Exhibit P-3, ¶12.)

(17) On November 20,1995, the board of directors of Atkins-Keane-Rowe unanimously resolved to change Dr. Roth’s compensation to $80,000 annually plus 50 percent of the actual amount collected by Atkins-KeaneRowe exceeding $160,000 per contract year for professional services personally performed by Dr. Roth. (Exhibit P-4; 2/1/00, N.T. 19-21; 2/3/00, N.T. 11.) That change was effective February 1,1996. (Exhibit P-4.) In a letter dated November 20, 1995, Dr. Rowe informed Dr. Roth of this salary change. (Exhibit P-4; 2/1/00, N.T. 21.)

(18) Dr. Roth admitted that he discussed the salary change with Dr. Rowe and acquiesced in the change. (2/ 3/00, N.T. 11-12, 49.)

(19) For the period February 1,1996 through January 31, 1997, PENT deducted certain practice-related expenses from Dr. Roth’s pay. (Exhibits D-2, D-3, D-4; 2/ 1/00, N.T. 97-100; 2/3/00, N.T. 10-16, 19-22, 36-43.) Those expenses included unemployment compensation taxes and workers’ compensation taxes. (Exhibits D-2, D-3, D-4; 2/1/00, N.T. 97-100; 2/3/00, N.T. 10-16, 19-22, 36-43.) The deductions totaled $10,784. (Exhibit D-2; 2/3/00, N.T. 16.) Dr. Roth thought that the deductions were not in accordance with the agreement, and contacted the PENT accountant concerning those deductions. (2/ 3/00, N.T. 13-14, 93-94.) Dr. Roth testified that the accountant told him that she could do nothing about the deductions. (2/3/00, N.T. 14.)

(20) For the period February 1,1997 through January 31, 1998, PENT again deducted from Dr. Roth’s salary the practice-related expenses and, for the first time, the cost of Dr. Roth’s malpractice insurance premium. (Exhibits D-3, D-4; 2/1/00, N.T. 99, 100; 2/3/00 N.T. 20.) These deductions totaled $34,217, including $21,685 for the malpractice insurance premium. (Exhibit D-3; 2/3/ 00, N.T. 38.) PENT had not deducted the cost of Dr. Roth’s malpractice insurance premium from his salary before February 1, 1997. (Exhibit D-2; 2/1/00, N.T. 97; 2/3/00, N.T. 13.)

(21) Dr. Roth testified that he again contacted the PENT accountant regarding the deductions but that she again told him that she could do nothing about them. (2/ 3/00, N.T. 20, 93-94.)

(22) For the period February 1, 1998 through January 31, 1999, PENT again deducted from Dr. Roth’s salary the practice-related expenses and the cost of the malpractice insurance premium. (Exhibits D-3, D-4; 2/1/00, N.T. 99, 100.) The deductions totaled $43,535, including $26,426 for the malpractice insurance premium. (Exhibit D-4; 2/3/00, N.T. 38.)

(23) The agreement and the amendment to that agreement do not expressly allow or disallow deductions for unemployment compensation taxes, workers’ compensation taxes or other practice-related expenses. (Exhibits P-3, P-4; 2/1/00, N.T. 97.) Dr. Rowe testified that he does not know whether the deductions of unemployment compensation taxes and workers’ compensation taxes were in accordance with the agreement. (2/1/00, N.T. 98.) Dr. Rowe admitted that the deductions of malpractice insurance premiums from Dr. Roth’s pay were not in accordance with the agreement. (2/1/00, N.T. 96.)

(24) In summer 1998, Dr. Roth gave Dr. Rowe a proposed written employment contract for Dr. Rowe to consider. (2/1/00, N.T. 89.) Dr. Rowe gave this proposed contract to his attorney. (2/1/00, N.T. 89-90, 91.) Although Dr. Roth attempted to arrange meetings with Dr. Rowe to discuss the draft contract, Dr. Rowe never did discuss the proposed contract with Dr. Roth. (2/1/00, N.T. 89-91; 2/3/00, N.T. 89).

(25) There is some evidence that Dr. Rowe thought that the breakup of the group and the departures of Drs. Atkins and Keane had altered the employment arrangement between PENT and Dr. Roth. James F. McDonald Jr. M.D. testified that Dr. Rowe told him over a year ago that Dr. Rowe’s practice was in a state of flux because of the departures, and that Dr. Roth’s arrangement with PENT was undefined. (2/1/00, N.T. 179-82.)

(26) In summer 1999, Dr. Roth prepared to leave PENT and start his own practice. The preparations included setting up his own S-corporation, hiring a billing service and searching for office space. (2/1/00, N.T. 134; 2/3/00, N.T. 42.)

(27) In summer 1999, Dr. Roth engaged Little Data Centers to help him with medical billing. (2/1/00, N.T. 134.) Dr. Roth gave Little Data his provider numbers and a post office box address to which his mail was to be sent. (2/1/00, N.T. 135-38.) On December 10,1999, Little Data notified individual providers of Dr. Roth’s provider numbers and change of address. (Exhibit P-8; 2/1/00, N.T. 135-37.)

(28) In December 1999, US Healthcare sent a reimbursement check directly to Dr. Roth’s post office box. (Exhibit P-9, p. 2; 2/1/00, N.T. 137-38.) The reimbursement was for services that Dr. Roth had rendered while an employee of PENT. (Exhibit P-9, p. 2.) There is no evidence that Dr. Roth or Little Data intentionally diverted to Dr. Roth funds due and owning to PENT. (2/1/00, N.T. 137-38; 2/3/00, N.T. 51.) There is no evidence that Dr. Roth cashed any check for funds rightfully owed to PENT. (2/3/00, N.T. 51.) This incident has not been shown to be anything other than a mistake.

(29) On or about December 13,1999, Dr. Rowe and Dr. Roth met in the cafeteria at Northeastern. (2/1/00, N.T. 23.) Dr. Roth told Dr. Rowe that he was resigning from PENT, and that Dr. Rowe would receive a letter confirming his resignation. (2/1/00, N.T. 23.) At that meeting, Dr. Roth gave no specific date of his leaving, but said only that he could provide coverage in some manner. (2/1/00, N.T. 23.)

(30) Sometime after that meeting, Dr. Rowe received Dr. Roth’s resignation letter by certified mail. (Exhibit P-6.) The resignation letter was dated November 24, 1999 but postmarked December 13, 1999. (Exhibits P-6, P-7.) The resignation letter gave January 17,2000, as Dr. Roth’s last day, and proposed a transition period after that date, during which Dr. Roth would “provide reasonable coverage.” (Exhibit P-6.)

(31) On December 21, 1999, Dr. Rowe confronted Dr. Roth about the PENT reimbursement check that was forwarded to Dr. Roth’s post office box. (2/1/00, N.T. 32-33.)

(32) In a hand-delivered letter dated January 7, 2000, Dr. Rowe gave Dr. Roth notice of his immediate termination. (Exhibit P-9; 2/1/00, N.T. 38.)

(33) Before his termination, Dr. Roth submitted to Little Data certain medical bills for services that Dr. Roth rendered while employed by PENT. (2/1/00, N.T. 146; 2/3/ 00, N.T. 52.) The total amount collectible under those bills was approximately $3,300. (2/1/00, N.T. 151-52.) Dr. Roth testified that he had first submitted these bills to Rose Ellen Tomczak, PENT’s office manager, and that Ms. Tomczak had informed him that the bills were not collectable. (2/3/ 00, N.T. 52.) He then submitted the bills to Little Data for analysis. (2/3/00, N.T. 52.) The bills were never submitted for collection. (2/1/00, N.T. 158-59.) After learning that PENT reimbursements were sent to his post office box, Dr. Roth instructed Little Data to stop working on the bibs. (2/1/00, N.T. 158-59; 2/3/00, N.T. 54-55.)

(34) Before leaving PENT, Dr. Roth had leased two office spaces. One is in northeast Philadelphia at 9150 MarshaU Street. (2/3/00, N.T. 59-61.) The second is at 3370 Memphis Street near Northeastern. (2/3/00, N.T. 61.)

(35) On January 10 or 11,2000, Dr. Roth faxed a typewritten notice of his new addresses and phone numbers to area physicians who might have referrals or consultations for him. (2/3/00, N.T. 76.)

(36) There are five ENT physicians on staff at Northeastern: Dr. Rowe, Dr. Roth, Dr. Banks, Dr. Granoff and Dr. Rosen. (2/1/00, N.T. 79-80.) However, only Dr. Rowe and Dr. Roth practice regularly at Northeastern. (2/1/00, N.T. 116.) Dr. Granoff, Dr. Banks and Dr. Rosen have full-time practices at other hospitals and provide almost no services to Northeastern patients. (2/1/00, N.T. 80, 167, 172.)

(37) Dr. Rowe testified that, by continuing to practice at Northeastern, Dr. Roth has caused a schism in the staff at Northeastern. (2/1/00, N.T. 59-60.)

(38) In his 19 years practicing ENT medicine at Northeastern, Dr. Rowe has developed referral relationships with other physicians. (2/3/00, N.T. 82.)

(39) Some of these referrals come from the Northeastern emergency room. The emergency room uses ENT physicians on an on-call basis for emergencies, and on a consulting basis for non-emergencies. (2/1/00, N.T. 163.) As chairman of the department of surgery, Dr. Rowe provides the emergency department with the call schedule. (2/1/00, N.T. 166.) The ENT physician on call at Northeastern has historically been, and continues to be, Dr. Rowe. (2/1/00, N.T. 164-66.) Wien Dr. Roth was a PENT employee, he and Dr. Rowe shared the emergency room call equally through Dr. Rowe’s call service. (2/1/00, N.T. 165.) Since Dr. Roth’s departure from PENT, Dr. Rowe is the only ENT physician on call at Northeastern’s emergency room. (2/1/00, N.T. 166.)

(40) PENT also receives consultations from family practitioners, internists, cardiologists, specialists and pediatricians. (2/1/00, N.T. 40-41.) Historically, PENT has received consultations primarily from Dr. Nesbitt’s group, and Dr. Steinbach, Dr. Vile and Dr. Solon. (2/1/00, N.T. 41-50.)

(41) Dr. Rowe testified that in the past PENT received 60-70 referrals per month from Dr. Nesbitt’s group (2/1/ 00, N.T. 41-42, 48, 49-50), and eight referrals per month each from Dr. Steinbach, Dr. Vile and Dr. Solon. (2/1/00, N.T. 48.)

(42) Dr. Rowe testified that from January 7, 2000 through February 1,2000, PENT received no referrals from Dr. Nesbitt’s group, or Dr. Steinbach, Dr. Vile or Dr. Solon. (2/1/00, N.T. 41-42,47-48,49-50.) Dr. Rowe continues to receive consultations from other physicians. (2/1/ 00, N.T. 114-15.)

(43) On the other hand, Dr. Rowe testified that in that same period (January 7 through February 1, 2000), neither the number of surgeries that he has performed nor the number of his patient visits has decreased. (2/1/00, N.T. 106.)

(44) Dr. James F. McDonald Jr. M.D. is an employee and shareholder of Dr. Nesbitt’s group and a member of the executive committee of Northeastern. (2/1/00, N.T. 177,184.) Dr. McDonald testified that there had been no conscious decision by Dr. Nesbitt’s group to not refer patients to Dr. Rowe. (2/1/00, N.T. 177.) Dr. McDonald testified that the Nesbitt group would like to continue to refer patients to both Dr. Roth and Dr. Rowe. (2/1/00, N.T. 177-78.)

(45) Dr. Roth testified that from January 7,2000 through February 3, 2000, Dr. Nesbitt’s group sent him three or four patients, and Drs. Vile, Solon and Goldstein sent him two or three patients. (2/3/00, N.T. 83-84.) Dr. Roth admitted that, under ordinary circumstances, these patients would have gone to PENT. (2/3/00, N.T. 84.) Dr. Rowe testified that he knew of one referral by Dr. Steinbach to Dr. Roth. (2/1/00, N.T. 44-47.)

(46) On January 10, 2000, Dr. Roth performed three surgeries at Northeastern. (2/3/00, N.T. 84-86.) Dr. Roth had scheduled these three surgeries before PENT terminated him. (2/3/00, N.T. 84.) By the terms of the January 7, 2000 termination letter, PENT permitted Dr. Roth to perform these previously scheduled surgeries. (Exhibit P-5; 2/3/00, N.T. 86.)

(47) After January 10, 2000, Dr. Roth performed three surgeries at Northeastern Hospital. (2/3/00, N.T. 85.)

(48) The number of patients at Northeastern has increased since 1995 — the date of the original agreement— as a result of the “downsizing” at nearby hospitals. (2/1/ 00, N.T. 77-78, 169.) In winter 1999, the average daily census was about 80 patients. (2/1/00, N.T. 169.) Today, the daily census is between 110 and 150 patients. (2/1/00, N.T. 169-70.)

(49) There is no shortage of ENT patients at Northeastern. (2/1/00, N.T. 169.) Dennis M. Guest D.O., chairman of the emergency medicine department and the chairman of the utilization committee at Northeastern, testified that there is enough work at Northeastern to keep two or more ENT physicians busy. (2/1/00, N.T. 168-69.) Northeastern seems to need at least two ENT physicians. Dr. Guest said that if only one ENT physician were serving the hospital and were that ENT physician to be in surgery, on vacation or otherwise unavailable, he would be concerned. (2/1/00, N.T. 168.)

(50) Dr. Rowe testified that hiring another physician-employee will be difficult. (2/1/00, N.T. 36.) Residents nationwide traditionally end their residency training on June 30 and begin private practice on July 1. (2/1/00, N.T. 35.) Dr. Rowe testified that the vast majority of residents who will become available on July 1, 2000 have already committed to fellowships or practices elsewhere. (2/1/00, N.T. 36.) As of February 1,2000, Dr. Rowe had not placed a printed advertisement for a new physician. (2/1/00, N.T. 109-110.) He had, however, called the chiefs of the residency programs at Temple and Jefferson to ask about residents who will become available, but found none. (2/1/ 00, N.T. 107-109.)

(51) Dr. Rowe testified that he will not use Dr. Banks or Dr. Granoff for backup. (2/1/00, N.T. 120.) Should the need for a backup arise, Dr. Rowe intends to use Dr. Rosen or Dr. Keane. (2/1/00, N.T. 61.) Although Dr. Rosen is on staff at Northeastern, Dr. Rosen’s full-time responsibilities at Jefferson Hospital limit his ability to cover Dr. Rowe. (2/1/00, N.T. 80.) Dr. Keane is not currently on staff at Northeastern. (2/1/00, N.T. 61.)

(52) Dr. Roth claims that PENT owes him $73,000 arising from the salary deductions he claims were improper. (2/3/00, N.T. 77-79.) As of February 3, 1999, PENT had not reimbursed Dr. Roth for either the malpractice insurance premiums or other deductions. (2/3/00, N.T. 79.)

(53) Both Dr. Rowe and Dr. Roth hold staff privileges at other Philadelphia hospitals. (2/1/00, N.T. 75; 2/3/00, N.T. 62.) Both physicians practice full-time at Northeastern, and use other hospitals primarily when a patient requires treatment that is not available at Northeastern. (2/ 1/00, N.T. 75; 2/3/00, N.T. 62, 63.)

(54) Should Dr. Roth be ordered not to practice at Northeastern for two years without having to resign his staff privileges, the hospital would likely permit him to retain those privileges. (2/1/00, N.T. 173-74.)

DISCUSSION

PENT asks this court to order Dr. Roth to resign his staff privileges at Northeastern and to not practice at Northeastern for two years. In support of its position, PENT relies on the agreement between the parties containing the restrictive covenant.

First, PENT has not convinced the court that the agreement is enforceable by PENT. Second, even if the agreement were enforceable, PENT has not shown that any alleged unlawful conduct by Dr. Roth will cause PENT immediate and irreparable harm that monetary damages cannot compensate.

In determining whether to grant a prehminary injunction, a court may consider the averments of the pleadings and petition, affidavits of the parties or third parties, or any other proof. Pa.R.C.P. 1531. A prehminary injunction is “a most extraordinary form of relief which is to be granted only in the most compelling cases.” Goodies Olde Fashion Fudge Co. v. Kuiros, 408 Pa. Super. 495, 501, 597 A.2d 141, 144 (1991). “The purpose of a prehminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of, thereby preventing irreparable injury or gross injustice.” Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 259, 602 A.2d 1277, 1286 (1992). (emphasis in original) A prehminary injunction should issue only where there is urgent necessity to avoid injury for which damages cannot compensate. Id.

The court may grant the injunction only if the moving party has sufficiently estabhshed the fohowing five elements:

“(1) that relief is necessary to prevent immediate and irreparable harm [that damages cannot compensate]; (2) that greater injury will occur from refusing the injunction than [by] granting it; (3) that the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) that the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) that the plaintiff’s right to relief is clear.” Cappiello v. Duca, 449 Pa. Super. 100, 105, 672 A.2d 1373, 1376 (1996); see also, School District of Wilkinsburg v. Wilkinsburg Education Association, 542 Pa. 335, 338 n.2, 667 A.2d 5, 6 n.2 (1995) and New Castle Orthopedic As sociates v. Burns, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978).
“Additionally, the concern of the courts for the public welfare results in a close judicial scrutiny of restraints on physicians because of the value of their services to the community____” New Castle Orthopedic Associates, 481 Pa. at 464, 392 A.2d at 1385; West Penn Specialty MSO Inc. v. Nolan, 737 A.2d 295 (Pa. Super. 1999). These requisite elements “are cumulative, and if one element is lacking, relief may not be granted.” Norristown Municipal Waste Authority v. West Norriton Township Municipal Authority, 705 A.2d 509, 512 (Pa. Commw. 1998).

PENT has failed to sufficiently establish the requisite elements for injunctive relief. First, PENT has failed to establish immediate and irreparable harm that damages cannot compensate. A Pennsylvania court sitting in equity may enjoin a breach of a contract — including a breach of a restrictive covenant contained in an employment agreement — where money damages are an inadequate remedy. John G. Bryant Co. Inc. v. Sling Testing & Repair Inc., 471 Pa. 1, 369 A.2d 1164 (1977). Here, the covenant requires Dr. Roth resign his Northeastern staff privileges upon termination from PENT and refrain from practicing at Northeastern for two years. (Exhibit P-3.) Dr. Roth has not resigned those staff privileges. He continues to practice at Northeastern. If the covenant is enforceable, Dr. Roth is in breach. But Dr. Roth’s breach of covenant (if assumed), alone, does not entitle PENT to preliminary injunctive relief. New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 466-67, 392 A.2d 1383, 1386 (1978); Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958); Rollins Protective Services Co. v. Shaffer, 383 Pa. Super. 598, 601, 557 A.2d 413, 415 (1989).

PENT must show irreparable harm. PENT could do so by showing that Dr. Roth has stolen patients, taken patient lists or other confidential information, or that PENT has lost patients or income or has otherwise suffered damage as a result of the alleged violation of the covenant. New Castle Orthopedic Associates, 481 Pa. at 466, 392 A.2d at 1386 (reversing issuance of preliminary injunction enforcing a restrictive covenant contained in the physician’s employment agreement where the plaintiff failed to show that defendant had stolen patients, taken patient lists or that defendant had lost patients or income); Herman, 393 Pa. at 37, 141 A.2d at 578 (reversing issuance of prehminary injunction enforcing a restrictive covenant contained in physician’s employment contract where trial court refused to permit defendant to cross-examine plaintiff as to whether the plaintiff’s income had decreased, whether plaintiff’s practice had been damaged, or whether the defendant had used plaintiff’s confidential information or solicited plaintiff’s patients); West Penn Specialty MSO Inc. v. Nolan, 737 A.2d 295 (affirming issuance of preliminary injunction enforcing restrictive covenant contained in contract for the sale of defendant’s medical practice to plaintiff, where defendant set up a competing practice treating 125 of her prior patients).

Paragraph 10(b) of the agreement — in which the parties agreed that a violation of the restrictive covenant would constitute irreparable harm and entitle PENT to an injunction — is not binding on the court. The parties to a contract cannot, by including certain language in that contract, create a right to injunctive relief where an injunction would otherwise be inappropriate. See Dice v. Clinicorp Inc., 887 F. Supp. 803 (W.D. Pa. 1995).

The record fails to demonstrate that PENT will suffer irreparable injury as a result of Dr. Roth’s practicing at Northeastern. There is no evidence that Dr. Roth took PENT patient lists or stole PENT’s former patients in violation of the anti-solicitation covenant. (Exhibit P-3, ¶12.) There is no evidence that Dr. Roth’s practicing at Northeastern has caused PENT financial injury or has damaged the good will that Dr. Rowe has established during his many years at Northeastern. Dr. Roth and Dr. Rowe are the only ENT physicians practicing full-time at Northeastern. (2/1/00, N.T. 116.) Dr. Guest testified that there is “plenty of work” at Northeastern for two or more ENT physicians. (2/1/00, N.T. 168-69.) Dr. Rowe testified that he is one of the busiest ENT physicians in the city. (2/1/ 00, N.T. 83.) With Dr. Roth’s departure from PENT, Dr. Rowe is shorthanded. Dr. McDonald — a principal in PENT’s largest source of physician referrals — expressed a desire to refer patients to both Dr. Roth and Dr. Rowe. (2/1/00, N.T. 177-78.) Dr. Rowe has a full workload. He is doubtful that he can hire another physician-employee in the near future to help share that workload. Confronted with a similar situation in New Castle Orthopedic Associates, our Supreme Court stated:

“This is quite unlike the normal commercial situation in which there are only a limited number of prospective clients and the alleged breach significantly affects the share of the former employer. Here, the potential pool of clients far exceeds the appellee’s ability to serve them. Under these circumstances it is difficult to find any irreparable injury wrought upon the appellee by the appellant.” New Castle Orthopedic Associates, 481 Pa. at 468, 392 A.2d at 1387 (dissolving preliminary injunction).

As in New Castle Orthopedic Associates, there are more potential ENT patients at Northeastern than Dr. Rowe is able to serve. Id. No immediate harm results from Dr. Roth’s treating patients that Dr. Rowe could not treat in any event. Id. Under these circumstances, the court cannot find that Dr. Roth’s presence at Northeastern will irreparably harm PENT., Id.; Herman, 393 Pa. at 37, 141 A.2d at 578.

Second, PENT has not established that greater injury would result by refusing the injunction than by granting it. Allowing Dr. Roth to continue practicing at Northeastern will cause no immediate and irreparable injury to PENT. However, to prohibit Dr. Roth from practicing at Northeastern will cause Dr. Roth to lose his primary source of income and would decrease access to ENT treatment in the community that Northeastern serves. Dr. Rowe testified that the “real issue” behind barring Dr. Roth from Northeastern is to get “rid of a schism in the institution which will not serve it well.” (2/1/00, N.T. 72.) Yet, Dr. Guest’s testimony was the opposite: that the hospital will not be harmed, and can only benefit, by the presence of Dr. Roth. (2/1/00, N.T. 49.) The balancing of the harms favors denying the injunction. New Castle Orthopedic Associates, 481 Pa. at 469, 392 A.2d at 1388 (dissolving preliminary injunction where the plaintiff had shown no irreparable harm caused by its former employee’s continuing to practice medicine in the restricted area, and where the harm flowing from granting the preliminary injunction would have decreased public access to medical treatment in the area).

Third, an injunction barring Dr. Roth from practicing at Northeastern is not reasonably suited to abate that harm against which the original covenant was meant to protect. In 1995, when Dr. Roth signed the agreement, the number of patients coming through Northeastern was substantially less than it is today. Given the smaller patient population and the availability, if necessary, of Dr. Atkins and Dr. Keane when Dr. Roth began his employment, perhaps an injunction would have been reasonably suited to protect PENT’s practice at that time. But today, the patient population has grown to where Dr. Roth’s presence at Northeastern can do little immediate and irreparable harm to PENT. Hence, the requested injunction is not reasonably suited to abate the alleged wrong.

Fourth, PENT has failed to establish a clear right to relief. Over the course of Dr. Roth’s employment with PENT, PENT deducted from Dr. Roth’s pay certain disputed expenses, including malpractice insurance premiums, unemployment compensation taxes and workers’ compensation taxes. (Exhibits D-2, D-3 and D-4.) The deductions exceed $75,000. Although Dr. Roth complained to the PENT accountant about these deductions, the deductions continued. (2/3/00, N.T. 13-14, 93-94.) At the hearing, Dr. Rowe admitted that the deductions of malpractice insurance premiums — which, alone, exceeded $48,000 — were not in accordance with the agreement. (2/ 1/00, N.T. 96.) Dr. Rowe admitted that he was unsure whether the remaining deductions were proper under the agreement. (2/1/00, N.T. 98.)

Under Pennsylvania law, when a party materially breaches a contract, the non-breaching party is not required to fulfill its duties under the contract. Ott v. Buehler Lumber Co., 373 Pa. Super. 515, 518, 541 A.2d 1143, 1145 (1988); Oak Ridge Construction Co. v. Tolley, 351 Pa. Super. 32, 41, 504 A.2d 1343, 1348 (1985); Restatement (Second) of Contracts §369. This court does not now decide whether deductions were improper and, if improper, whether taking them, resulting in a decrease in Dr. Roth’s net pay, constituted a material breach of the agreement. See Forest City Grant Liberty Associates v. Genro II Inc., 438 Pa. Super. 553, 559, 652 A.2d 948, 951 (1995) (stating that the materiality of a breach is a question of fact). The court concludes, however, that on this record it may be argued that PENT materially breached the agreement. Consequently, PENT has not shown that its right to enforce that agreement against Dr. Roth is clear.

CONCLUSIONS OF LAW

(1) PENT has failed to establish that it will suffer imminent, irreparable harm not compensable by monetary damages if Dr. Roth retains his staff privileges at Northeastern and continues to practice there.

(2) PENT has failed to show that greater injury will occur from denying the injunction than from granting it.

(3) PENT has failed to show that the requested injunction is reasonably calculated to abate the alleged harm to PENT.

(4) PENT has failed to show that its right to relief is clear.

(5) The lack of each of these elements requires that the court deny PENT’s petition for a prehminary injunction.

Based on the foregoing, this court will enter a contemporaneous order denying the petition for preliminary injunction.

ORDER

And now, March 13, 2000, upon consideration of the petition for a preliminary injunction and the response to it, the complaint in equity and the answer, all other matters of record and after a hearing and based upon the findings of fact and conclusions of law being filed contemporaneously with this order, it is ordered that the petition for a prehminary injunction is denied.

      . Absent the consent of the employee or an express assignability clause in the employment contract, a restrictive covenant is not assignable. All-Pak Inc. v. Johnston, 694 A.2d 347, 351-52 (Pa. Super. 1997). In his answer and at the hearing, Dr. Roth argued that AtkinsKeane-Rowe and PENT are different legal entities, and, if so, the covenant would not be assignable to PENT. Thus, PENT would be unable to enforce the covenant against Dr. Roth. Because the evidence shows that Atkins-Keane-Rowe and Atkins-Rowe and PENT are the same legal entity, the court rejects this argument.
      Corporate name changes do not affect the existing rights of persons other than shareholders. 15 Pa.C.S. §1916(b). Dr. Roth was not a shareholder of PENT. Thus, a simple change of the corporate name does not affect PENT’s right to enforce the covenant against Dr. Roth. The Business Corporation Law allows a corporation to change its name by amending its certificate of incorporation. 15 Pa.C.S. § 1911(a)(1). An amendment changing the corporate name requires approval by the board of directors or by the shareholders. 15 Pa.C.S. §1914(a) and (c)(2)(i). Upon adoption of an amendment changing a corporate name, the corporation shall execute articles of amendment and file them with the Department of State. 15 Pa.C.S. §§1915 and 1916. PENT has produced, under the seal of the secretary of the Commonwealth, copies of the articles of incorporation and articles of amendment showing that the shareholders of the corporation duly adopted the two name changes at issue, and that the corporation filed the articles with the Department of State. (Exhibit P-14.) See also, Pa.R.E. 902(1) (setting forth self-authenticating nature of domestic public documents under seal). The evidence produced by PENT demonstrates that the changes were, indeed, merely name changes and that these changes were duly authorized, executed and filed.
      The court concludes that Atkins-Keane-Rowe and PENT are the same legal entity and that the change in corporate name, alone, does not affect PENT’s right to enforce the covenant against Dr. Roth.

      . Dr. Rowe’s former fellow-shareholders concentrated their practices at other hospitals. Dr. Atkins based his practice at Pennsylvania Hospital. (2/1/00, N.T. 11.) Dr. Keane based his practice at Thomas Jefferson University Hospital and Pennsylvania Hospital. (2/1/00, N.T. 11-12.)

      . After an alignment with or acquisition by Temple University, Northeastern has apparently changed its name to “Temple East” or “Northeastern, a Division of Temple East.” (2/1/00, N.T. 64-65.) For the purposes of this document, the court treats “Northeastern,” “Temple East” and “Northeastern, a Division of Temple East” as interchangeable words.

      . PENT does not seek to enforce the portion of the restrictive covenant which would bar Dr. Roth from practicing at Pennsylvania Hospital, Wills Eye Hospital or Jefferson Hospital.

      . Counsel for PENT urged that, because Dr. Roth’s actions have left Dr. Rowe shorthanded, equity should preclude Dr. Roth from asserting Dr. Rowe’s shorthandedness as a reason for denying the injunction. Counsel’s argument ignores the fact that, even if the 90-day notice provision is enforceable and even had Dr. Roth given 90 days notice, PENT still would be left with a single physician and, by Dr. Rowe’s own admission, little hope of hiring another for some time. (2/ 1/00, N.T. 36.)
      A contrary view is suggested by the decision in Robert Clifton Associates Inc. v. O’Connor, 338 Pa. Super. 246, 487 A.2d 947 (1985). In reversing the trial court’s limitation of a covenant to four months, our Superior Court held that a one-year restriction period was reasonable based on the time it would take plaintiff, employment agency, to put a new man on the job and for that new employee to have a reasonable opportunity to demonstrate his effectiveness to his customers. Id., 338 Pa. Super. at 255-56, 487 A.2d at 952.

      . The court does not now decide if PENT is entitled to damages for lost profits for those patients that Dr. Roth would have treated on PENT’s behalf during the 90 days following his notice of resignation. Since those damages would be temporary and calculable, they do not constitute irreparable harm.

      . Although it may be beyond the parameters of the proceedings at this stage, this court strongly suggests that Dr. Roth not solicit any of Dr. Rowe’s current patients.

      . Dr. Roth also argues that PENT breached the employment agreement by forcing Dr. Roth to see a disproportionate share of Medicaid and uninsured patients. (Answer ¶¶89-95.) Tomczak testified that Medicaid reimburses at a somewhat lower rate than private insurance. (2/ 3/00, N.T. 98,166.) Because Dr. Roth’s salary was linked in part to his collections, Dr. Roth argues that it was unfair under his employment contract to force him to see a disproportionate share of Medicaid and indigent patients. Dr. Roth produced some evidence that he had seen a disproportionate number of Medicaid patients in October 1999: in eight selected days in October 1999, Dr. Roth saw 60 Medicaid patients, while Dr. Rowe saw only three. (Exhibit D-6; 2/3/00, N.T. 55-58.) But additional evidence shows that in 1997,1998 and 1999, Dr. Roth and Dr. Rowe’s collection percentages were about equal. (Exhibit P- 16; 2/1/00, N.T. 52-59; 2/3/00, N.T. 154-55.) The court cannot find on the record that PENT’s allocation of Medicaid and indigent patients was in violation of any contract that existed between PENT and Dr. Roth. Furthermore, the court is not convinced that PENT’s allocation of a larger percentage of Medicaid and indigent patients to Dr. Roth — who was the junior physician — would have violated the employment contract.

      . Furthermore, the court is not convinced that the agreement was in effect when Dr. Roth resigned. Mutual assent to abandon a contract may be inferred from the attendant circumstances and the acts and declarations of the parties, even where the contract prohibits non-written modification. Kirk v. Brentwood Manor Homes Inc., 191 Pa. Super. 488, 492, 159 A.2d 48, 50-51 (1960); John E. Murray Jr., Contracts, §143 at 838 (3d Ed. 1990). The focus of the abandonment inquiry is the intent of the parties, which is generally a question for the fact-finder. Kirk, 191 Pa. Super. at 493, 159 A.2d at 51. The record indicates that PENT and Dr. Roth may have abandoned the agreement. Even though Dr. Roth’s employer remained the same legal entity throughout the period of his employment, the substance of that entity changed. Two of the three shareholders left. The patient population served by the remaining shareholder, Dr. Rowe, grew significantly. (2/1/00, N.T. 77-78, 169.) As Dr. Roth’s practice evolved, so did Dr. Roth’s compensation plan. Dr. Roth came to be paid in a manner which was not in accordance with the agreement. Statements to another physician suggest that Dr. Rowe believed the agreement was then problematical. Dr. McDonald testified that Dr. Rowe told him that PENT was in a state of flux, and that, because of the changes that PENT was undergoing, the arrangement with Dr. Roth was not defined. (2/1/00, N.T. 181-84.) In an effort to resolve these problems and clarify his relationship with PENT, Dr. Roth presented Dr. Rowe with a proposed new employment agreement over a year prior to the termination. (Exhibit D-5; 2/1/00, N.T. 89-91; 2/3/00, N.T. 89.) The acts and statements of the parties suggest to this court that the effectiveness of the original agreement is susceptible to question.