author: MOTTO, P.J.,

text:
    Deutsche Bank National Trust v. Coonfare

      C.P. of Lawrence County,
    No.10879 of 2010, C.A.

      Paige M. Bellino, for plaintiff.

      John R. O’Keefe, for defendants.
    May 12, 2012
   MOTTO, P.J.,

Before the court for disposition is plaintiff’s motion for summary judgment. Plaintiff contends that it is entitled to an in rem judgment in mortgage foreclosure as a matter of law because the record establishes that defendants are in default of the mortgage, regardless of whether they dispute the specific amount due, and defendants have failed to offer evidence to raise a question of fact as to the assignment of the mortgage to plaintiff.

According to plaintiff’s amended complaint, defendants Ryan J. and Kristen Coonfare entered into a mortgage loan transaction whereby defendants executed a mortgage in the amount of $ 100,000.00 in favor of Novastar Mortgage, Inc. as mortgagee on February 9, 2007. The mortgage was recorded in the Lawrence County recorder’s office on February 20, 2007. On June 18, 2010 an assignment of mortgage was filed in the Lawrence County recorder’s office whereby Novastar Mortgage, Inc. assigned all of its rights, title and interest, as holder of, in, and to the mortgage to Duetsche Bank National Trust Company, as trustee for the registered holders of Novastar Mortgage Funding Trust, series 2007-2 Novastar Home Equity Loan Asset-Backed Certificates, series 2007-2. The executed assignment of mortgage states that plaintiff Duetsche Bank National Trust Company, its successor, legal representation and assigns shall hold all rights under the note and mortgage forever, subject however, to the right and equity of redemption, if any, of the maker(s) of the mortgage, their heirs and assigns forever.

The amended complaint further alleges that as of October 1, 2009 the required payments on the mortgage have not been made. On January 31, 2010 the plaintiff’s sent the required notice to defendants advising them that the loan was in default for failure to make payments. Plaintiff alleged in paragraph 6 of the amended complaint that defendants have failed to bring the loan current and the outstanding balance was $107,740.36 as of March 22, 2010.

In their answer and new matter, defendants admit that they made and executed the mortgage with Novastar Mortgage, Inc. upon the property described in plaintiff’s amended complaint; however, the plaintiff’s amended complaint denied the assignment of interest from Novastar Mortgage, Inc. to the plaintiff stating that after reasonable investigation defendants are without knowledge or information sufficient to form a belief as to the truth of the averments relating to the assignment. The defendants assert in the new matter that the plaintiff has failed to establish that it is the true assignee of the mortgage, and for that reason, the defendants are not in debt to Duetsche Bank National Trust Company. The defendants also denied paragraphs 4 through 6 of the plaintiff’s amended complaint stating that strict proof of the exact amounts owed by the defendants is demanded at the time of trial, while admitting that an amount is due and owing plaintiff or its predecessor. Moreover, the defendants contend that the plaintiff’s amended complaint is not properly verified by an individual authorized to act on behalf of the plaintiff or the legal holder of the defendants’ mortgage.

The plaintiff filed a motion for summary judgment on December 29, 2011 contending that there are no genuine issues of material fact and summary judgment in mortgage foreclose should be granted because the record establishes as a matter of law that the defendants are in default on their mortgage for failure to make payments for an excessive period of time. Plaintiff asserts the defendants denial in their answer as to the precise amount due, amounts to an admission of the defendants’ default on the mortgage. Further, although defendants challenge the assignment of the mortgage to plaintiff, plaintiff has set forth the chain of assignment to the plaintiff, in its amended complaint and supporting affidavit, and defendants have failed to come forward with any evidence challenging the assignment.

Under Pennsylvania law, summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law, Kafando Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa.Super.2000)(citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa.Super. 1999)). Pa.R.C.R No. 1035.2 states:

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, as adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000). The non-moving party may not rest on averments in its pleadings and must demonstrate by evidence that there exists a genuine issue for trial. Younginger v. Heckler, 269 Pa.Super. 445, 450-451, 410 A.2d 340, 342 (1979). If there is no response, and summary judgment is otherwise appropriate, it may be entered against him. Id.

In the case of a mortgage foreclosure action, pre-trial disposition is proper if there is no genuine dispute that: (1) the recorded mortgage is in the specified amount, (2) the mortgage is in default, and (3) the mortgagor failed to pay interest on the obligation. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa.Super. 1998)(citing Landau v. Western Penn. Nat’l Bank, 445 Pa. 217, 225-26, 282 A.2d 335, 340 (1971)). This is true even if the mortgagor has not admitted the specific amount of indebtedness in their pleadings. Id. Rule 1029(c) of the Pennsylvania Rules of Civil Procedure permits a pleader to deny allegations by indicating that, after reasonable investigation, the pleader is without sufficient information to form a belief as to the truth of the allegation; however, the rule does not excuse a pleader from admitting or denying a factual allegation when it is clear that the pleader must know whether a particular allegation is true or false. Pa.R.C.P. 1029; Cercone v. Cercone, 254 Pa.Super. 381, 383, 386 A.2d 1, 3 (1978). In a mortgage foreclosure action, the mortgagors and mortgagee are the only parties with sufficient knowledge to base a specific denial. New York Guardian Mortgage Corp. v. Dietzel, 362 Pa.Super. 426, 427, 524 A.2d 951, 952 (1987). General denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts. First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995).

In the instant case, the defendants contend that an issue of material fact exists as to whether amounts paid by the defendants were property applied to the note and mortgage. The defendants admit that they are the real owners and mortgagors of the mortgaged property, that they received the pre-foreclosure notices and that they are in the default of the obligation secured by the mortgage. However, the defendants deny that the sums the plaintiff alleges in the amended complaint that are owed on the mortgage are correct and the defendants demand strict proof of the exact amount owed by the defendant at the time of trial regarding principal, accumulated interest, accumulated late charges, Escrow Deficit/Reserve, title report, estimated court costs, and estimated attorney’s fees.

It is well settled that lack of knowledge constitutes an admission where it is clear that the defendants have adequate knowledge or that the means of obtaining information are within the defendants’ control. Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (1951); Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1, (1978). As mortgagor, the defendants possess sufficient knowledge to admit or deny the plaintiff’s allegations. New York Guardian Mortgage Corp. V. Dietzel, Supra. 362 Pa. Super, at 427, 524 A.2d at 952. The defendants general denial of the calculation of sums due provided by plaintiff is to an averment that offers factual situations of which the defendants have knowledge, and therefore constitutes an admission. First Wisconsin Trust Co. v. Strausser, 439 Pa.Super. 192, 653 A.2d 688 (1995). The sums due to plaintiff are easily calculable under the terms of the mortgage, the contents of which are clearing within defendant’s knowledge and control. Since defendants have the knowledge of, and the means necessary for oxbtaining the denied information, including the total sums due, the denial are in-fact admissions. Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (1951); Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d 1, (1978).

The defendant also argues that a genuine issue of material fact exists as to whether the mortgage and note were properly assigned to plaintiff, making plaintiff the proper party-in-interest. The defendants contend that plaintiff does not have standing to bring this action in mortgagor foreclosure against defendant because the plaintiff is not the rightful owner of the mortgage.

This court finds that the record establishes that the mortgage was given by the defendants in February 9, 2007 to Novastar Mortgage, Inc. and shortly thereafter on June 7, 2010 the mortgage was assigned to the plaintiff. Plaintiff has attached to its amended complaint and its affidavit in support of the motion for summary judgment a copy of the assignment of the mortgage in support of its ownership claims, where it is also recorded in the office of the recorder of deeds of Lawrence county. Defendants have not come forward with any evidence that would challenge the validity of the assignment to plaintiff.

The defendants contend that the verification to the amended complaint is defective as well as the execution of the affidavit supporting the motion for summary judgment, as these documents are executed by Johanna Miller as “authorized signer” of “ocwen Loan servicing, Inc.” The court is satisfied from the terms of the supporting affidavit that Mrs. Miller has sufficient knowledge of the facts and authority to make the verification and the affidavit on behalf of plaintiff. The assignment of mortgage from Novastar Mortgage, Inc. to plaintiff was recorded on June 18, 2010 and a copy attached to the plaintiff’s amended complaint. The assignment of mortgage, in accordance with the recording statue and applicable provisions of the uniform commercial code, served as notice to the world of plaintiff’s interests in the subject property. U.S. Bank, N.A., as Trustee for Residential Funding Co., LLC. v. Mallory, 982 A.2d 986 (Pa.super. 2009). The assignment of mortgage is indicative of the plaintiff’s ownership of the mortgage. Any issue that the amended complaint was improperly verified should have been raised in the form of a preliminary objection. No such preliminary objection was raised in this case.

In an action on a note secured by a mortgage, plaintiff presents a prima facie case by showing “the execution and delivery of the [note] and its nonpayment...” CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1056 (Pa.Super. 1999)(citing Phila, Workingmen’s Sav. Loan & Bldg. Ass’n v. Wurzel, 355 Pa. 86, 90, 49 A.2d 55, 57 (1946)). Where [defendants] do not attempt to controvert the assertion that they failed to make payments as required under the terms of the note, the material facts cannot be in dispute as to the defendant. CoreStates, 723 A.2d 1056.

In the instant case, plaintiff has provided ample evidence indicting the existence of a mortgage and that an assignment of mortgage was properly executed, thus making plaintiff the owner of defendants’ mortgage. The record reflects that defendants have failed to make the required payments under the obligations outlined in the mortgage. For the reasons set forth in this opinion, plaintiff’s motion for summary judgment in mortgage foreclosure is granted.

ORDER OF COURT

And now, May 24, 2012, upon consideration of plaintiff’s motion for summary judgment and supporting documents thereto, and upon consideration of the reply, if any, filed by defendants hereto, the court hereby determines that defendants, Ryan J. Coonfare and Kristin Coonfare, have failed to make a legal defense to plaintiff’s claim and that plaintiff is entitled to summary judgment as a matter of law, and the court therefore orders and decrees that judgment, in rem, shall be entered in favor of the plaintiff and against defendants, Ryan J. Coonfare and Kristin Coonfare, in the amount of $122,867.67, together with ongoing per diem interest, escrow advances, and any additional recoverable costs to date of Sheriff’s sale’ and for foreclosure and sale of the mortgaged property.

It is further ordered and decreed that defendants’ new matter is hereby denied and dismissed, with prejudice.


source: Caselaw Access Project

author: NILON, J,

license: Public Domain

text:
    Commonwealth v. Brantley

      C.P. of Delaware County,
    No. CP-23 CR-0004728-2011.

      John F.X. Reilly, for commonwealth.

      Lawrence R. Dworkin, for defendant.
    May 22, 2012
   NILON, J,

The commonwealth, hereinafter “appellant”, argues that the court erred in granting the defendant’s motion to suppress evidence. The police conducted a custodial interrogation without providing Miranda warnings to the defendant and the defendant never voluntarily consented to the warrantless seizure of her cellular telephone by the police. Therefore, the appellant’s contentions are meritless.

FACTUAL AND PROCEDURAL HISTORY:

This is an appeal from this court’s order imposed on December 22,2011. The nature and history of the case are as follows:

On June 1,2011, a criminal complaint was filed against the defendant, Kalilah Brantley, and she was charged with: Information A, intercept communications, 18 Pa.C.S. § 5703(1). The basis for this charge stemmed from a work-related meeting between a manager, two employees, and a union steward, all employees of US Airways.

Corporal Keye Wysocki, a Pennsylvania State Police officer of the bureau of criminal investigations assigned to the drug interdiction unit at the Philadelphia International Airport, testified at the suppression hearing. He testified that he knew Renee Burrows, a manager employed by US Airways in the Philadelphia International Airport. At the beginning or middle of January of 2011, Ms. Burrows told him that she believed an employee of hers had surreptitiously recorded a conversation that they had during an employee-manager meeting. The meeting took place on December 30, 2010 and the four people present included: Ms. Burrows, Ms. Brantley (the defendant), another employee, and a Union Representative for US Airways employees. The purpose of the meeting was a “coaching session” with both employees. The meeting took place in the US Airways office in Terminal A, which is located in the Philadelphia International Airport in Delaware County, Pennsylvania. (N.T. 12/21/11 pp.25-27, 38-39).

At the preliminary hearing held August 10, 2011, before magisterial district judge Edward W. Christie, Ms. Burrows testified that the meeting became heated:

Kalilah had her cell phone on the table. I didn’t think anything of it. All the employees have cell phones. She did have her cell phone out and I did notice her fumbling with it quite a few times. I sat there, and kind of went through the meeting. It got heated a few times, and at a point I decided to step out to make sure that I was staying calm and not yelling at them for anything that was going on, and I didn’t want to put that out there. So I excused myself from the room, and when I came back in, I saw her playing with her phone again. And at that point I had questioned her and asked her, you know, are you recording me? Like, what’s your phone doing out? And she said I am recording you. I am, and we all are, and we all have been... At that point I said, here’s your coaching. Meetings over.

(N.T. from the preliminary hearing 8/10/11 p.7; attached to the defendant’s omnibus motion as exhibit D-l).

Officer Wysocki referred her to a Philadelphia Police Department detective who works in the airport. The detective advised Ms. Burrows that she needed to obtain the recording in order for him to proceed with the case. Thereafter, the Philadelphia detective was not willing to prosecute the case. As a result, officer Wysocki took over the investigation. (N.T.12/21/11 pp. 40-41).

Initially, on or about February 1,2011, officer Wysocki took a more detailed statement from Ms. Burrows about what took place, who was there, and where it was located. (N.T.12/21/11 pp.27-28, p.41). After meeting with Ms. Burrows, officer Wysocki never applied for or obtained a search warrant to search or seize the contents of the cell phone. (N.T.12/21/11 p. 41). At no time from the beginning or middle of January of 2011, when officer Wysocki first learned of the recording, through the February 8, 2011 interview of Ms. Brantley did officer Wysocki ever apply for or obtain a search warrant to search or seize the contents of the cellphone. (N.T.12/21/11 pp. 41-42).

On February 8,2011, officer Wysocki and officer Keith Hagen interviewed the defendant in Terminal A of the Philadelphia International Airport, a big open area. Both officers were wearing plain clothes, i.e. jeans, tee-shirts, and sneakers. The two men introduced themselves and advised Ms. Brantley that they wanted to speak with her regarding an incident that took place with Ms. Burrows. Ms. Brantley asked if she could have a US Airways representative present during the interview. The officer responded that she was welcome to, but it was not a US Airways matter, it was a criminal incident. She asked if she could have an attorney present and officer Wysocki told her she could have an attorney present if she wanted to, but then she proceeded to talk to the officer without an attorney present. The officer then advised Ms. Brantley that “she had recorded Ms. Burrows’ conversation with her on her cellular telephone” and he asked her if he could see her cellular telephone. (N.T. 12/21/11 pp.29-31).

Officer Wysocki advised Ms. Brantley that she could either voluntarily give her cellular telephone to him or if she did not want to give it to him; he would apply for a search warrant in order to obtain the recording allegedly on the phone. The officer explained that while applying for a search warrant he would take the phone and keep it in his possession for approximately 2 to 3 weeks. He advised her that he would take the phone so that no evidence could be erased from the phone. (N.T. 12/21/11 p.32).

Ms. Brantley advised the officer that she did not want to be without her cell phone for such an extended period of time. Ms. Brantley then made two personal calls, including a call to her mother. She asked if the officer could speak to her mother and he agreed. The officer explained everything that was taking place to her mother. Ms. Brantley had another conversation with her mother and then gave her cell phone to the officers. Then, Ms. Brantley suggested that officer Wysocki use his cell phone to make an audio recording of the recording she had on her phone. The officer agreed. The two officers and Ms. Brantley proceeded to the employee break-room where she played her audio recordings while officer Wysocki recorded them on his cellular phone. Ms. Brantley told the officer that she made the recordings because she wanted an official record of what was taking place during the meeting. After the recordings were taken off of her phone, Ms. Brantley asked the officers if they would meet with her mother. The officers agreed and went to the common-area of the airport and shook hands with Ms. Brantley’s mother. They had a two minute conversation with her, and thanked her for her cooperation. The officers then left the scene. The officers’ meeting with Ms. Brantley lasted approximately 45 minutes to one hour. (N.T. 12/21/11 pp.32-37).

PROCEDURAL HISTORY:

On June 1,2011, a criminal complaint was filed against the defendant, Kalilah Brantley, and she was charged with: Information A, Ontercept Communications, 18 Pa.C.S. § 5703(1). On September 8, 2011, Ms. Brantley was arraigned. On October 11, 2011, an omnibus pretrial motion-motion to suppress evidence was filed. Defense continuances were granted. A hearing was held on the motion to suppress on December 21, 2011. On December 22, 2011, the undersigned issued an order denying defendant’s motion to dismiss for lack of jurisdiction and granting defendant’s motion to suppress evidence. There was a finding that there were no Miranda warnings given to the defendant, there was an unlawful search and seizure of evidence without a warrant, and as a result all evidence seized should be suppressed.

On January 26, 2012, John F.X. Reilly, esquire entered his appearance on behalf of the commonwealth and filed a notice of appeal to the Superior Court. Consequently, on February 13, 2012, this court directed appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Consequently, on March 5, 2012, appellant filed a concise statement of errors complained of on appeal raising the following issues for appellate review:

1. The defendant was not in custody when the police interviewed her. Because the police did not conduct a custodial interrogation, they were not required to provide a Miranda warning to the defendant.
2. The defendant voluntarily consented to the temporary seizure and search of her cellular telephone by the police.

DISCUSSION:

I. A. Warrantless Search and Seizure

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the “right of each individual to be let alone.” Commonwealth v. Blair, 575 A.2d 593, 596 (Pa. Super. 1990). The purpose of the Fourth Amendment is to protect individual privacy rights from governmental intrusion. U.S. Const. Amend. 4. Thus, the Fourth Amendment operates to protect privacy interests by prohibiting non-consensual searches without a warrant. Issuance of a warrant, in turn, requires probable cause. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).

Under Article I, Section 8 of the Pennsylvania Constitution, a suspect is afforded a greater degree of protection against unlawful searches and seizures than is granted by the 4th Amendment of the United States Constitution. Commonwealth v. Matos, 543 Pa. 449, 455, 672 A.2d 769, 771 (1996). The Supreme Court of Pennsylvania has recognized the tenet that Article I, Section 8 of the Pennsylvania Constitution requires that searches and seizures by the commonwealth be permitted only upon obtaining a warrant based upon probable cause issued by a neutral and detached magistrate. Commonwealth v. Labron, 543 Pa. 86, 93, 669 A.2d 917, 920 (1995). “In general and where practical, the police are required to obtain a search warrant. Warrantless searches are per se unreasonable, subject to only a few exceptions,” Commonwealth v. Gabrielle, 409 A.2d 1173, 1177 (Pa. Super. 1979). See also, Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978); Commonwealth v. Rispo, 487 A.2d 937, 939 (Pa. Super. 1985); Commonwealth v. Morrison, 418 A.2d 1378, 1379 (Pa.Super.1980) (enbanc). Thus, broadly speaking, searches and seizures conducted without a prior determination of probable cause are unreasonable for constitutional purposes. Labron.

Within the workplace context, the United States Supreme Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police. See Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). As with the expectation of privacy of one’s home, such an expectation in one’s place of work is “based upon societal expectations that have deep roots in the history of the amendment.” Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

However, in the case sub judice, no warrant was sought or obtained. Here, there was sufficient information available to officer Wysocki to apply for a search warrant prior to confronting Ms. Brantley and seizing her cell phone but he never sought or obtained a warrant. Officer Wysocki met with the defendant’s manager, Ms. Burrows, in January of 2011. (N.T. 12/21/11 p.26). Ms. Burrows informed him that the defendant recorded a conversation they had during an employee-manager meeting. Id. The Officer advised Ms. Burrows that it was “a felony” to make such a recording. (N.T. from the preliminary hearing D-18/10/11 p.31). Officer Wysocki advised Ms. Burrows to make a report or complaint with the police and then took her down to the Philadelphia Police Department in order to make a report. (N. T. 12/21/11 p. 40). After the officer realized that the Philadelphia police were not going to “do anything in the investigation that I would.” Then, officer Wysocki took over the investigation. (N.T. 12/21/11 p.28). Thereafter he took a more detailed statement from Ms. Burrows on or about February 1, 2011. (N.T. 12/21/11 pp.28, 41).

After three separate contacts with Ms. Burrows, and after interviewing Ms. Burrows and obtaining all of the information he needed to proceed to seize the evidence from the defendant, Officer Wysocki never applied for or obtained a warrant to seize the recording on the phone. (N.T. 12/21/11 p.41). On February 8, 2012, the officer interviewed the defendant. The defendant was the target of his investigation. He already knew before the interview that the defendant had used her personal cell phone to record the meeting. He had told the defendant’s boss that recording the meeting was a felony and a violation of the wiretapping act. The officer admitted that prior to his interview with the defendant, he intended to seize the phone from the defendant:

Q. All right. So you did intend to take her phone if she didn’t give it to you, is that right?
A. That’s right. If she didn’t voluntarily give me the phone, I would have taken it from her.

(N.T. 12/21/11 p.47).

Based upon all of the information that the officer had prior to the interview with the defendant and based upon his intention to seize the phone at the interview, there was sufficient information available to the officer to apply for a search warrant prior to confronting Ms. Brantley. However, he never applied for a warrant and proceeded to interview her and seize her cell phone without a warrant. This was an unreasonable search and seizure and the evidence obtained should be suppressed.

B. Exigent Circumstances

Exigent circumstances arise only “where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.” Commonwealth v. Holzer, 389 A.2d 101, 106. See also, Commonwealth v. Rispo, 487 A.2d 937, 939 (Pa. Super. 1985); Commonwealth v. Hinkson, 461 A.2d 616, 618 (Pa. Super. 1983) (allocatur denied). The burden is on the commonwealth to “present clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent ... and that the exigency was in no way attributable to the decision by the police to forego seeking a warrant’ Commonwealth v. Davis, 411 A.2d 250, 252 (Pa. Super. 1979) (emphasis added). See also, Commonwealth v. Rispo, supra, at 940. Moreover, “[a] 11 decisions made pursuant to the exigent circumstances exception must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances.” Commonwealth v. Daniels, 421 A.2d 721, 725 (Pa. Super. 1980).

Here, there is no evidence of any exigencies which would justify the absence of a warrant in this case. The officer testified: “I explained to her that I would have to take the phone and keep it in my possession. That way no evidence if it was on there could be erased from the phone.” (N.T. 12/21/11 p.32). In Commonwealth v. Rispo, supra at 942-43, the Superior Court held that exigent circumstances did not exist in a situation where a house could be watched by one officer while another obtained a warrant. In the case sub judice, there were two officers present for the interview and one could have remained with the phone while another obtained a warrant. (N.T. 12/21/11 p.29). Thus, the police officers could easily have prevented evidence from being destroyed while they obtained a search warrant.

The commonwealth failed to introduce any evidence that the police or public were in danger if the officers did not act immediately. The officers had all of the information that they needed to apply for a warrant prior to interviewing Ms. Brantley, but they never applied for a warrant. Officer Wysocki believed a crime had been committed and believed Ms. Brantley committed the crime prior to his interview with her. Nevertheless, he never obtained a warrant. (N.T. 12/21/11 p.39, p.41). Accordingly, the warrantless seizure of the cell phone was not justified by exigent circumstances. The evidence seized in violation of Ms. Brantley’s constitutional rights was properly suppressed.

C. Appellant argues that Ms. Brantley was not in custody when the police interviewed her and thus they were not required to provide a Miranda warning to her

Ms. Brantley was charged solely with violating 18 Pa.C.S. § 5703(1), intercept communications, a felony of the third degree. The statute provides in part:

§ 5703. Interception, disclosure oruse ofwire, electronic or oral communication.
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication.;

The statute defines “oral communication” in section 5702 as:

Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.

Initially, this case has a troubling aspect to it; there was no mens rea on the part of the defendant. Mens rea is defined as: “[A]s an element of criminal responsibility; a guilty mind; a guilty or wrongful purpose; a criminal intent.” Black’s Law Dictionary 6th Ed., p. 959. In this case there was no “guilty mind” or “wrongful purpose” — no mens rea whatsoever — as demonstrated by Ms. Brantley’s openly recording the meeting by keeping her cell phone on the top of the table in plain view for all to see. It was not a surreptitious recording. The meeting was not of a private or confidential nature, but rather was related to business disciplinary matters. There were four people present for the meeting. The subj ect matter had been discussed with others prior to the meeting. The subject matter was discussed with others after the meeting. It was expected that a record of what transpired at the meeting would be documented by multiple parties subsequent to the meeting. The meeting was not an “oral communication” protected under the act because manager-Burrows possessed no reasonable expectation of privacy under the circumstances.

“The focus and purpose of the [Wiretap Act] is the protection of privacy.” Commonwealth v. Spence, 631 A.2d 666, 668 (Pa. Super. 1993). However, this expectation of privacy must be justifiable under the circumstances. Commonwealth v. Prisk, 13 A.3d 526, 531 (Pa. Super. 2011). In order to determine whether an individual’s activities fall within the right of privacy, a court must engage in a two-pronged inquiry: (1) whether the defendant has exhibited a right of privacy; and (2) whether that expectation was such that society would recognize it as reasonable. Id.

The appellate courts have made it clear that a communication is not an “oral communication” as defined by the wiretapping act unless the victim has a reasonable expectation of privacy. “The definition of ‘oral communications’ requires consideration of the subjective and objective aspects of the speaker’s expectation of privacy. The speaker’s subjective expectation must be considered in light of all attendant circumstances (including his or her own intentions about the further disclosure of the contents of the intended communication) and any expectation must be one society is willing to recognize as legitimate. Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905 (1989); Commonwealth v. Parella, 610 A.2d 1006 (Pa. Super. 1992). While the Superior Court has held that an expectation of non-interception may exist even where an expectation of privacy does not, Commonwealth v. McIvor, 670 A.2d 697, 704 (Pa. Super. 1996), the Supreme Court later noted that the two expectations are coterminous. Agnew v. Dupler, 553 Pa. 33, 40, 717 A.2d 519, 523 (1998). Where, for example, there is no contemporaneous interception of the e-mail communication and where it is turned over to the police by a third-party, no justifiable expectation of privacy will be found. Commonwealth v. Proetto, 111 A.2d 823 (Pa. Super. 2001).” Advisory committee note, Pa. SSJI (Crim) 15.5703.

The appellate courts in Pennsylvania have held in the case of Gunderman v. Commonwealth of Pennsylvania Unemployment Compensation Board of Review, 95 Pa. Cm with. 479, 484, 505 A.2d 1112, 1115 (Pa. Cm with. 1986) that an employ ee’s conduct in surreptitiously recording an unemployment compensation hearing did not violate the wiretapping act. The court held:

Surreptitious recording of unemployment compensation hearing did not constitute interception of “oral communication” in violation of Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §5703, and, thus, did not constitute “willful misconduct” under 43 P.S. § 802(e) that justified denial of unemployment compensation benefits, in that record of testimony given at hearing before referee was taken as matter of course for purposes of review by unemployment compensation board of review and the courts and, thus, precluded any legitimate expectation of privacy.

Gunderman at 1113. The court succinctly concluded:

Here, the communication intercepted was testimony given at a hearing before the referee. As a record of such testimony is taken as a matter of course so that a record can be made for purposes of review by the Board and the courts, no legitimate expectation of privacy existed. Therefore, the act of recording the hearing did not violate the wiretapping act.

Gunderman at 1115.

The Pennsylvania Superior Court in Agnew v. Dupler, 553 Pa. 33, 717 A.2d 519 (1998), emphasized that a communication is not an “oral communication” as defined by the wiretap act unless the victim maintains a reasonable expectation of privacy. In Agnew, the chief of police sat in his car and recorded the conversations of the police officers in the squad room. One officer filed suit under the wiretapping act. On appeal, the Pennsylvania Supreme Court held that the officer did not possess an expectation of privacy. The court held that in order to establish a prima facie case under the wiretapping act for interception of an oral communication, the commonwealth must establish: (1) the complainant engaged in communication; (2) that the complainant possessed an expectation that the communication would not be intercepted; (3) that the complainant was justifiable under the circumstances; and (4) that the defendant attempted to, or successfully intercepted the communication. Agnew, 553 Pa. at 36, 717 A.2d at 522.

In the case sub judice, the communications intercepted were the discussions at an employee-manager “coaching-session” meeting. Those present at the meeting included the manager, two employees, and a Union Steward, all employees of US Airways. (N.T. 12/21/11 pp.26-27). The meeting was not of a private or confidential nature but rather was related to business disciplinary matters. Id.

The Union Steward took notes as to the substance of the meeting. The manager, Ms. Burrows, and the Union Steward both kept a file as to what happened at the meeting. At the conclusion of the meeting, there was a “written coaching form” prepared by the manager that summarized the meeting which the employee could read and sign. This form became part of the employee’s personnel file. Ms. Burrows testified that she understood that the contents of the meeting would be discussed by herself and her management team. Ms. Burrows also testified that she understood that the contents of the meeting would be discussed between Ms. Brantley and the Union, and other people. In addition, the two employees and the Union Steward were all recording the “coaching-session” meeting. Ms. Brantley was not the only person recording the meeting. (N.T. from the preliminary hearing 8/10/11 pp.13-16,21; attached to the defendant’s omnibus motion as exhibit D-l).

The alleged victim, Ms. Burrows, did not exhibit a right of privacy in a meeting where four people were present, at least two people took notes, and there was an expectation that after the meeting all of the parties would be discussing the contents of the meeting with others. Ms. Burrows summarized the meeting in her “written coaching form” and offered the form to Ms. Brantley to review and sign. (N.T. from the preliminary hearing 8/10/11 pp.13-16, 21; attached to the defendant’s omnibus motion as exhibit D-l).

Here, as in Gunderman, a record of the meeting was taken by the parties for purposes of review at a later time. The union representative took notes of the meeting. The manager kept a file about the meeting and prepared a “coaching form” about the meeting. The subject matter had been discussed with others prior to the meeting. The manager, Ms. Burrows, discussed the matter with her boss, Maryanne, prior to and after the meeting. (N.T. 8/10/11 pp. 10-16). The parties understood that each person present at the meeting would be discussing the meeting with others. The meeting was documented by multiple parties subsequent to the meeting. The manager did not have a legitimate expectation of privacy in the meeting; to the contrary, the only evidence is that a record of the meeting was expected to be kept by multiple parties. (N.T. 8/10/11 p. 16). Ms. Burrows’ expectation of privacy in the meeting was such that society would not recognize it as reasonable. Under the totality of circumstances, the alleged victim’s expectation of privacy was not justifiable under the circumstances. Therefore, the act of recording the meeting did not violate the wiretapping act.

Miranda Warnings

The Commonwealth asserts that Ms. Brantley was not in custody when the police interviewed her and thus the police were not required to provide Miranda warnings to her. The Fifth Amendment right to counsel and the rights guaranteed by Miranda are only triggered when a person is undergoing actual custodial interrogation. Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980). Pennsylvania courts have held that a person is deemed to be in custody for Miranda purposes when that person is physically denied of his or her freedom of action in any significant way or is placed in a situation in which he or she reasonably believes that his or her movement is restricted by the interrogation. Commonwealth v. Gibson, 553 Pa. 648, 662, 720 A.2d 473, 480 (1998), Commonwealth v. Johnson, 556 Pa. 216, 239, 727 A.2d 1089, 1100 (1999).

In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there was a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Commonwealth v. Busch, 713 A.2d 97, 99 (Pa. Super. 1998) (citing Stansbury v. California, 511 U.S. 318, 322-323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam).

The initial determination of custody depends on the objective circumstances of the interrogation, not on the subj ective views of the law enforcement officer or the person being questioned. Commonwealth v. Peters, 434 Pa. Super. 268, 642 A.2d 1126, 1130 (1994), Commonwealth v. Smith, 732 A.2d 1226, 1234 (Pa.Super. 1999). The court must focus on the objective circumstances of the interrogation to determine “how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action,” Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293.

In Commonwealth v. McCarthy, 820 A.2d 757 (Pa. Super. 2003), a police detective went to the defendant’s place of employment, a school office, to investigate a series of thefts. The detective initially took writing samples from all of the employees at their workplace. Subsequently, he went back to interview the defendant without reading her Miranda rights. He was in plain clothes. He read her a police form ‘notification of no arrest’ during both interviews, and she signed it. The detective proceeded to inform the defendant that he suspected her involvement in the thefts, and he advised her that she should cooperate. Ultimately, she confessed to the thefts. At the conclusion of the meeting, the employee was free to leave. The Commonwealth argued that the defendant was not in custody, and therefore was not entitled to Miranda warnings. They asserted that the interrogation took place in her place of employment, not the police station, that she signed a waiver, and that she was never placed in handcuffs established that she was not in custody. In upholding the trial court’s grant of suppression, the Superior Court found the facts of the situation entitled the defendant to Miranda warnings. A person is considered to be in custody for the purposes oí Miranda when the officer’s show of authority leads the person to believe that she was not free to decline the officer’s request, or otherwise terminate the encounter. McCarthy at 760, citing Commonwealth v. Witherspoon, 756 A.2d 677 (Pa. Super. 2000).

The only difference between this case and Commonwealth v. McCarthy is, here the officers never supplied the defendant with a notification of no arrest for her to sign. Here, the detective came to the defendant’s place of employment to interview her. (N.T. 12/21/11 pp.24-25). He was in plain clothes. (N.T. 12/21/11 p.29). She was never placed in handcuffs. The officer never Mirandized the defendant. (N.T. 12/21/11 p.67). The officer proceeded to inform the defendant that he suspected that she recorded Ms. Burrows’ conversation on her cellular telephone. (N.T. 12/21/11 p.31). The detective advised her that she could give the phone to him voluntarily or he would seize it and apply for a search warrant. (N.T. 12/21/11 p.32). The officer told the defendant if she interfered or resisted giving him the phone she would be arrested. (N.T. 12/21/11 p.46). The officer told the defendant, Ms. Brantley, that he (and the other officer present (N.T. 12/21/11 p.29)) had a right to take her cell phone and question her without a warrant. There would be consequences if she didn’t comply. If she didn’t voluntarily give him the phone, he would have seized it. During the interview the defendant advised the officer that she did not want to give her cell phone to him:

Q. Okay. At that point in time, she told you she didn’t want to give you her cell phone, isn’t that right?
A. Yeah. At some point during the interview she said what happens if I don’t give you my cell phone, and I explained to her that I would seize her cell phone, I would take it from her, and I would apply for a search warrant to look inside of her cell phone to look for the recordings that I believed were there.
Q. All right. She told you that she couldn’t be without her phone, is that right?
A. Yes.
Q. Okay. And she wanted to know how you could just take her phone from her, is that right?
A. Yes.
Q. Okay. And at this point in time you didn’t have a warrant, is that right? A. That’s right.
Q. Okay. But you told her that if she didn’t give it to you, you would take it, is that right?
A. That’s right.
Q. Okay. And she was hesitant to give you her cell phone, isn’t that right?
A. She didn’t want to be without her cell phone for an extended period time.
A. I didn’t tell her if you don’t give me your phone I’m going to arrest you. I said if you interfere with me physically taking that phone from you and you resist me as a police officer, you could be arrested for it and you would be arrested for it.
Q. Okay. Did you mean that when you said it?
A. Yes. She’s going to physically resist me as a police officer seizing something from her and resist me and fight me, she would get arrested. Yes, I said that.
Q. Okay. So you have every intention to take her phone at that time, is that correct?
A. If she didn’t want to voluntarily give it to me and I needed to apply for a search warrant, I needed to have that physical phone to apply for a search warrant. I explained to her that if she lighted me, if she resisted me in taking the phone, I would take it from her and she would be arrested if she fought with me.
Q. All right. So you did intend to take her phone if she didn’t give it to you, is that right?
A. That’s right. If she didn’t voluntarily give me the phone, I would have taken it from her.

(N.T. 12/21/11 pp.44-47). (emphasis added).

The defendant was placed in a situation in which she reasonably would have believed that her movement was restricted:

Q. Trooper, so if she attempted to walk away without giving you the phone you would’ve let her do that?
A. No. I would have taken the phone from her. I would have seized the phone.
Q. Okay. And if she continued to walk away as you were trying to seize the phone, you would have arrested her?
A. Not necessarily. If she was to fight me or resist me from taking the phone and she committed an additional crime of fighting with me while I took her phone, I would have arrested her for it.

(N.T. 12/21/11 pp.51-52).

Based upon all of the facts, the defendant was in custody at the time she turned over her cell phone during the interview at her workplace. She was placed in a situation in which she reasonably would have believed that her movement was restricted by the interrogation. When the officer told her to give him the phone or he’ll take it, she was subject to custodial interrogation, and therefore he was required to provide her with Miranda warnings.

The defendant was in custody for the purposes of Miranda when officer Wysocki’s show of authority lead her to believe that she was not free to decline the officer’s request, or otherwise terminate the encounter. Ms. Brantley was in custody and entitled to the protection of Miranda.

II. Consent

The appellant’s second issue raised on appeal asserts that the defendant voluntarily consented to the search and seizure of her cell phone by the police.

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protects individuals from unreasonable searches and seizures, thereby ensuring the “right of each individual to be let alone.” Commonwealth v. Blair, 575 A.2d 593, 596 (Pa. Super. 1990). Police officers may not conduct a warrantless search or seizure unless one of several recognized exceptions applies. One exception to the warrant requirement is consent voluntarily given. Id. at 597. The central Fourth Amendment inquiry in consent cases consists of: (1) an initial assessment of the constitutional validity of the citizen/police encounter giving rise to the consent; and, (2) ultimately, the voluntariness of that consent. Commonwealth v. Strickler, 563 Pa. 47, 56, 757 A.2d 884, 888 (2000). Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus of the analysis. Id.

To establish a voluntary consensual search, the commonwealth must prove that consent is the product of an essentially free and unconstrained choice and not the result of duress or coercion, express or implied, or of an overborne will. This analysis is considered under the totality of the circumstances. Strickler, 757 A.2d at 901. Factors to be employed in determining whether consent to a warrantless search is voluntarily given are (1) the presence or absence of police excesses; (2) whether there was physical contact; (3) whether police directed the citizen’s movements; (4) police demeanor and manner of expression; (5) the location of the interdiction; (6) the content of the questions and statements; (7) the existence and character of the initial investigative detention, including its degree of coerciveness; (8) whether the person has been told that he is free to leave; and (9) whether the citizen has been informed that he is not required to consent to the search. Commonwealth v. Kemp, 961 A.2d 1247 (Pa. Super. 2008).

Considering the totality of circumstances, the court determined that Ms. Brantley did not provide a free and unconstrained consent to the officer to seize and search her cell phone. Officer Wysocki directed Ms. Brantley’s movements, his demeanor was demanding, threatening, and coercive. Officer Wysocki never advised her of the right to refuse the search of her phone. To the contrary he advised the Defendant:

Q. Okay. And she wanted to know how you could just take her phone from her, is that right?
A. Yes.
Q. Okay. And at this point in time you didn’t have a warrant, is that right?
A. That’s right.
Q. Okay. But you told her that if she didn’t give you it [the cell phone] to you, you would take it, is that right?
A. That’s right.

(N.T. 12/21/11 p.45).

Further, the officer threatened Ms. Brantley with arrest if she did not consent to the seizure of the phone:

Q. Okay. So you have every intention to take her phone at that time, is that correct?
A. If she didn’t want to voluntarily give it to me and I needed to apply for a search warrant, I needed to have that physical phone to apply for a search warrant. I explained to her that if she lighted [sic] me, if she resisted me in taking the phone, I would take it from her and she would be arrested if she fought with me.
Q. All right. So you did intend to take her phone if she didn’t give it to you, is that right?
A. That’s right. If she didn’t voluntarily give me the phone, I would’ve taken it from her.

(N.T. 12/21/11 pp.46-47) (emphasis added).

Ms. Brantley was never told that she was free to leave nor was she informed that she was not required to consent to the search. To the contrary, she was told to hand over her phone or the officer would seize it. The officer’s showing of authority in his statement that ‘if she resisted him she would be arrested’ would have “impact[ed] a reasonable citizen-subject’s perspective” and tainted the consent given. Strickler, 757 A.2d at 902.

Based upon the totality of the circumstances and the factors enumerated by the Supreme Court in Strickler, the court finds that Ms. Brantley’s “consent” was not voluntarily given for the search and seizure of her cell phone by the police. The officer’s words “[I]f she didn’t voluntarily give me the phone, I would’ve taken it from her.” (N.T. 12/21/11 p.47) were imbued with coercion preventing any voluntary consent.

CONCLUSION:

For the foregoing reasons, the order granting the defendant’s motion to suppress evidence should be affirmed on appeal.


author: REIBMAN, J.,

text:
    Eckert v. Lehigh Valley Women’s Med. Spec., P.C.

      February 29, 2012

      Douglas J. Smillie, for plaintiff.

      Loren L. Steziale, for defendant.
   REIBMAN, J.,

In this employment dispute, Stephanie B. Eckert, D.O., andMary P. Greiss-Coult,D.Q., seekinjunctivereliefinthe form of a declaration that they are free from the obligations of restrictive covenants contained in employment contracts each entered into with Lehigh Valley Women’s Medical Specialties, P.C. They also seek to enforce provisions of their respective employment agreements entitling them to salary and payment of fees and insurance coverage. In turn, Lehigh Valley Women’s Medical Specialties, P.C., has petitioned to enjoin the physicians from pursuing other employment opportunities allegedly in violation of the non-compete agreements. Arguments were scheduled on May 5 and August 3, 2011, and hearing was held on November 17, 2011, at which time all parties agreed that the matter was ripe for final disposition, notwithstanding the fact that the matters had initially been styled in part as requests for preliminary injunctive relief. In accordance with the following findings of fact and conclusions of law set forth in narrative form, the restrictive covenant shall be enforced against Dr. Eckert. However, Dr. Greiss-Coult is not bound by the restriction and, additionally, she is entitled to salary and payments of insurance coverage owing under her contract of employment.

I.

In 1997, Eric Rittenhouse, M.D., formed Lehigh Valley Women’s Medical Specialties, P.C., (“the practice”). With its offices located at 440 South 15th Street in Allentown, Pennsylvania, the practice offered lull obstetrical and gynecological care, including deliveries, surgeries and other aspects of women’s health. Its patients are treated at St. Luke’s Hospital in Allentown and Bethlehem, Sacred Heart Hospital in Allentown, and Westfield Hospital in Allentown. At the time the present litigation commenced, the practice had about 9,000 active patients, of whom approximately 70% lived within ten miles of the South 15th Street address. Dr. Rittenhouse has always been the majority shareholder and president of the practice.

After becoming acquainted with Dr. Rittenhouse in the course of her residency, Dr. Eckert joined the practice on August 1,2000. Before she joined the practice, Dr. Eckert had become aware that Dr. Rittenhouse had a history of chemical dependency and had been subject to monitoring by the Physicians Health Program (“PHP”) to address his condition. Nevertheless, Dr. Eckert joined the practice and became a shareholder as of January 1, 2003, pursuant to a Shareholder Employment Agreement. In pertinent part, that agreement provides:

3. Term of Employment. The term of this agreement shall be for one year from the date set forth above and from year to year thereafter unless either party gives nine (9) months’ written notice of intent to terminate it at any time....
11. Restrictive Covenant.
a. Limitation.
Employee therefore agrees that, while an employee and for a period of two (2) years after his/her employment ends (for any reason), he/she will not render any services on behalf of himself/herself or any business or entity within a ten (10) mile radius of employer’s office(s) or other place(s) of business maintained by the employer at the time the employee’s employment ends (the “protected area”). This promise includes employee’s not practicing at any hospital or health care facility within the protected area at which employer’s remaining physicians maintain staff privileges^] except St. Lukes [sic] Bethlehem only.
12. Non-solicitation Covenant.
a. Restriction. ...Employee therefore agrees that, if his/ her employment ends for any reason or in any manner, whether or not he/she practices within the restricted area as described above, he/she will in no event:
(i) solicit for treatment any former or existing patient (or member of any patient’s household) of the employer;
(ii) induce or attempt to influence any employee or patient of the employer to terminate his or her relationship with the employer;
(iii) induce or attempt to influence any hospital, other health care facility, any physician or any other professional with a referring relationship with the employer to alter in any way that relationship; and/or
(iv) solicit any patient service contractual arrangement of the employer.
These restrictions apply during employee’s employment and for a period of two (2) years immediately following the end of employee’s employment.
(See Pl.’s Hrg. Ex. 2, 11/17/2011).

Dr. Greiss-Coult met Dr. Rittenhouse and Dr. Eckert during her residency at St. Luke’s Hospital in Allentown. She, too, became apprised that Dr. Rittenhouse had a history of addiction. Nevertheless, she agreed to join the practice as an employee effective on or about September 1, 2006, pursuant to an employment agreement, dated December 8, 2005. That written agreement provided in relevant part as follows:

10. Restrictive Covenants
...[WJhile you are a non-owner employee and for a period of two (2) years after your employment ends (for any reason), you will not render any medical services on behalf of yourself, any business or entity within a ten (10) mile radius of the practice’s main office at the time your employment ends (currently located at 440 South 15th Street, Allentown, Pennsylvania). This promise includes your not providing any services at the hospitals during this two (2) year period. Notwithstanding the foregoing, provided that you do not maintain an office and/or practice base within the ten (10) mile ‘restriction noted above, nothing shall prevent you from admitting patients and/or delivering babies at St. Luke’s Hospital’s Bethlehem campus and/ or Lehigh Valley Hospital Center.
11. Non-solicitation Covenants
...[Y]ou agree that both during your employment and thereafter, if your employment ends (regardless of the reason or manner of termination), that you will not commit any act, which would harm the practice. Specifically, you agree that you will not directly or indirectly: (i) directly solicit for treatment any former or existing patient (or member of any patient’s household) of the practice (notwithstanding the foregoing, nothing shall prevent you from utilizing mass media forms of advertising); (ii) induce or attempt to influence any employee or patient of the practice to alter his or her relationship with the practice in any way; (iii) induce or attempt to influence any hospital, other health care facility, any physician or any other professional with a referring relationship with the practice, including any managed care payer, to alter that relationship in any way; or (iv) solicit any patient service contractual arrangement of the practice.

(See Pl.’s Hrg. Ex. 1,11/17/2011.)

In respect to termination notice and payments owing in such circumstances, Dr. Greiss-Coult’s written agreement provided in pertinent part as follows:

1. Term
... [E] ither you [employee] or the practice may terminate your employment for any reason at any time on sixty (60) days written notice to the other.
5. Business Expenses — While you are an employee, the practice will also pay the cost of your professional liability insurance at standard premium rates, your medical license fees for the Commonwealth of Pennsylvania and federal DEA license, hospital staff membership fees and mutually agreed professional society dues....
If your employment with the practice ends at any time and for any reason, you agree that the practice will be entitled to cancel your professional liability and other insurances effective as of your last date of employment and the practice shall be entitled to receive any refund(s) of unused premiums from such insurance companies for those policies. In addition, you agree that, upon termination of your employment for gross negligence, misconduct, loss of your license to practice medicine in the Commonwealth of Pennsylvania, or your voluntary separation, you shall pay the cost of any needed malpractice reporting endorsement (also known as “tail coverage”) and Meare penalties If your employment is terminated by the practice for reasons other than gross negligence, misconduct, loss of your license to practice medicine in the Commonwealth of Pennsylvania, or your voluntary separation, the practice shall pay the cost of any tail insurance and Meare penalties....

At some point prior to December 2009, the practice was considering whether to purchase the practice of Dr. Bruce Viechnicki, located at 1611 Pond Road in Allentown, approximately five miles from the practice. As part of the practice’s due diligence in deciding whether to purchase Dr. Viechnicki’s practice, from approximately December 2009 until July 2010, Dr. Eckert spent most of her time and Dr. Greiss-Coult spent about one-half of her time at Dr. Viechnicki’s office. Drs. Eckert and Griess-Coult liked Dr. Viechnicki’s office, with Dr. Griess-Coult characterizing it as an “exciting opportunity.” Ultimately, however, the practice did not acquire Dr. Viechnicki’s operation.

On the evening of August 25, 2010, Dr. Rittenhouse was scheduled to provide on-call coverage for the practice until 8:00 a.m. the following morning. He had consumed three and one half glasses of wine with his dinner that evening. After falling asleep sometime after midnight, he was awakened at 4:30 a.m. by a telephone call from St. Luke’s Hospital, informing him that a patient of the practice had been admitted in active labor. He consumed another glass of wine at this time and then approximately an hour later he received a “911 page” from the hospital. After attempting to telephone the hospital without success, Dr. Rittenhouse drove to the Hospital. While en route, his vehicle struck the steps of a church; however, he proceeded to complete his trip to the hospital despite a flat tire. In the meantime, the patient had delivered her baby. After Dr. Rittenhouse visited the patient, he observed police officers surrounding his vehicle and thereafter he was arrested. His blood alcohol content was measured in excess of the legal limit for operation of a motor vehicle, and he was placed on medical leave by St. Luke’s Hospital the following day.

Dr. Rittenhouse’s behavior concerned Dr. Griess-Coult. She found it disconcerting that the senior partner in the medical practice in which she was affiliated would put himself in such a position so as to potentially injure the reputation of the other physicians in the practice and place the health and safety of a patient in jeopardy. She expressed that concern to each of the physicians in the practice. According to Dr. Griess-Coult, she and the other physicians in the practice tried to be supportive of Dr. Rittenhouse, hoping that he would take the “appropriate channels” to remedy the situation. However, as months went by, she became less confident the situation would improve. Dr. Rittenhouse could not cover on-call duties or perform surgeries or deliveries because his privileges had been suspended. In addition, the only other physician in the practice, Dr. Holli Warholic, had become pregnant and would be taking a maternity leave, necessitating that Dr. Greiss-Coult and Dr. Eckert cover all the deliveries at St. Luke’s Allentown three days a week and cover on-call duties every night of the week.

Meanwhile, as part of an effort to regain his medical privileges, Dr. Rittenhouse was required to attend a residential rehabilitation treatment facility. He entered such a facility in January.

Concerned about this situation, Dr. Griess-Coult sought counsel in January or February to determine her options, including separation from the practice. On February 3, 2011, she learned Dr. Rittenhouse was in a rehabilitation facility in Florida instead of a pre-approved rehabilitation program in the Pocono Mountains of Pennsylvania, where she thought he had been receiving treatment. Counsel representing both Dr. Eckert and Dr. Griess-Coult wrote to Dr. Rittenhouse by letter dated February 4,2011. (Deft. Hrg, Ex. 1, 11/17/2011). That letter recited continuing concerns about the August 2010 incident, including Dr. Rittenhouse’s lack of attendance at work and inadequate communication regarding his return. It also asserted his choice of a non PHP-approved treatment center jeopardized re-instatement of his medical privileges and his medical license. The letter then stated:

It is clear to both Dr. Eckert and Dr. Griess-Coult that they can no longer continue to be associated with you in a professional capacity at the practice. By your very public misconduct and arrest, which was witnessed by multiple people including the patient and the patient’s family, the professional name and good will of the practice has now been significantly and irrevocably damaged.
...Clearly, as a result of your arrest for DUI, the suspension of your admitting privileges by St. Luke’s Hospital, and your PHP mandated participation in the rehabilitation program, you are unable to fulfill your duties as an employee of the practice. This creates grounds for the termination of your employment by the practice.
Because of your actions, you have forced Drs. Eckert and Griess-Coult to consider leaving the practice. Both of my clients would like to make a clean break in light of your conduct and of your breach of your own employment agreement with the practice.

(Ibid, emphasis added.) The letter further argued that the restrictive covenants in both Dr. Eckert’s and Dr. Greiss-Coult’s employment agreements were unenforceable, contending Dr. Rittenhouse’s actions had “irrevocably damaged the reputation of the practice and any good will the practice may once have had in the medical community” and, therefore, “[t]he practice no longer has any legitimate business interests to protect by restricting Drs. Eckert and Griess-Coult’s ability to practice medicine in the Lehigh Valley.” The correspondence concluded by requesting a response within seven days, otherwise, Drs. Eckert and Greiss-Coult would “presume” that Dr. Rittenhouse would “agree to the non-enforcement of...[the] restrictive covenants as contained in th[e] employment agreements.” (See id.)

Dr. Rittenhouse and the practice, through their counsel, did, however, respond within the seven-day timeframe. By letter dated February 10, 2011, they conveyed their expectation that Drs. Eckert and Griess-Coult would comply with the terms of their agreements, including the restrictive covenants. (See Leh. Valley Women’s Medical Specialties Brf., filed June 30, 2011, Ex.D.) That correspondence also stated that Dr. Rittenhouse and the practice understood the February 4, 2011, letter of Drs. Eckert and Greiss-Coult to be formal notice of their intent to resign their employment in accordance with their employment agreements. (See id.)

On April 1,2011, Drs. Eckert and Griess-Coult filed an action against the practice for declaratory relief seeking to have their non-compete covenants declared null and void on the basis that the practice had no legitimate business interest to protect. In support of that position, Drs. Eckert and Greiss-Coult contended Dr. Rittenhouse, as majority shareholder of the practice, had engaged in embarrassing and criminal behavior and lost his hospital privileges, all resulting in a diminution of the revenues, reputation and goodwill of the practice. By letter dated April 8, 2011, counsel for Dr. Rittenhouse and the practice reiterated their view that the February 4, 2011, letter qualified as Drs. Eckert and Griess-Coult’s formal notice of intent to terminate their employment with the practice and that the practice considered the non-compete clauses to be in full force and effect. Dr. Eckert and Dr. Greiss-Coult each deny that the February 4, 2011, letter constituted a notice of resignation; instead, they insist the letter amounted to a demand to open up communications in order to discuss the problematic situation surrounding Dr. Rittenhouse’ arrest and suspension of privileges.

The parties conducted discovery, including depositions, the transcripts of which have been filed of record as exhibits in this matter. Meanwhile, adhering to its position that the February 4, 2011, letter constituted a notice of resignation, the practice, by letter dated May 27, 2011, informed Dr. Greiss-Coult that she would no longer be compensated for her services at the practice as of June 1, 2011. Subsequently, on June 15, 2011, Dr. Greiss-Coult formed her own practice under the name of Seasons of Life Obstetrics & Gynecology, PC, (“seasons of life”) and opened her practice on July 6, as a tenant in Dr. Viechnicki’s office at Pond Road. Although she has full staff privileges at St. Luke’s Hospital in Allentown, St. Luke’s in Bethlehem, and Sacred Heart Hospital in Allentown, Seasons of Life is practicing only at St. Luke’s Hospital in Allentown, where Dr. Griess-Coult now serves as chief of obstetrics. On August 22, 2011, Dr. Eckert submitted her immediate resignation from the practice and on September 1, 2011, began employment with Seasons of Life at the Pond Road Location. (See PI. Hrg. Ex. 6, 11/17/2011, N.T., 11/17/2011, at 108.) Both Dr. Eckert and Dr. Greiss-Coult continue to exercise privileges at St. Luke’s Allentown.

In response, the practice, in September 2011, filed its own action seeking injunctive relief to enforce the non-compete agreements, contending that those clauses prohibit both Drs. Eckert and Greiss-Coult from seeing patients at either the Pond Road office or St. Luke’s Allentown for a period of two years post termination. That action has been consolidated with the matter commenced by Drs. Eckert and Greiss-Coult. After hearing held on November 17, 2011, the parties’ competing claims are now ripe for decision.

II.

Covenants not to compete are no strangers to the higher courts of this commonwealth. Quoting liberally from a .leading law review journal, the Pennsylvania Supreme Court has articulated the rationale underlying such provisions:

“The employer’s point of view is that the company’s clientele is an asset of value which has been acquired by virtue of effort and expenditures over a period of time, and which should be protected as a form of property. Certainly, the argument goes, the employee should have no equity in the custom which the business had developed before he was employed. Similarly, under traditional agency concepts, any new business or improvement in customer relations attributable to him during his employment is for the sole benefit of the principal. This is what he is being paid to do. When he leaves the company he should no more be permitted to try to divert to his own benefit the product of his employment than to abscond with the company’s cashbox.” Blake, employee agreements not to compete, 73 Harv.L.Rev. 625, 653-54 (1960).

John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 9, 369 A.2d 1164, 1168 (1977). Recognizing at least some validity in this point of view, the Pennsylvania Supreme Court has thus upheld the enforceability of post-employment restraints “where they are incident to an employment relation...between the parties to the covenant,...the restrictions [are] reasonably necessary for the protection of the employer[,] and...the restrictions are reasonably limited in duration and geographic extent.” Ibid.

The Superior Court has also observed, however, that because they operate as restraints on trade, non-compete agreements are not favored in the law and, thus, will only be enforced where necessary to protect the legitimate business interests of the employer:

Post-employment restrictive covenants (i.e. those that restrict an employee’s actions once his employment is terminated) are subject to a more stringent test of reasonableness than covenants ancillary to the sale of a business. Insulation Corp. of America v. Brobston, 446 Pa.Super. 520, 667 A.2d 729, 733 (1995). This heightened scrutiny stems from a historical reluctance on the part of our courts to enforce any contracts in restraint of free trade, particularly where they restrain an individual from earning a living at his trade. Id. The determination of whether a post-employment restrictive covenant is reasonable, and therefore enforceable, is a factual one which requires the court to consider all the relevant facts and circumstances. Id. at 733-34.

Missett v. Hub Intern. Pennsylvania, LLC, 6 A.3d 530, 538 (Pa.Super. 2010). Construing its earlier decisions in Brobston and Missett, involving the import to be ascribed to termination of employment by the employer, the Superior Court has also recently instructed:

It is clear that a restrictive covenant can be enforced even if an employee is terminated by an employer, and the fact that an employee was fired without reason, standing alone, will not prevent a non-compete from being upheld. Missett v. Hub Intern. Pennsylvania, LLC, 6 A.3d 530 (Pa. Super. 2010)....On the other hand, it is equally clear that the fact that an employee is terminated without cause is a factor that can be considered in determining whether enforcement of a non-compete advances the employer’s business interest. Brobston, supra. The reasoning is as follows:
Where an employee is terminated by his employer on the grounds that he has failed to promote the employer’s legitimate business interests, it clearly suggests an implicit decision on the part of the employer that its business interests are best promoted without the employee in its service. Such an employer deems the employee worthless. Once such a determination is made by the employer, the need to protect itself from the former employee is diminished by the fact that the employee’s worth to the corporation is presumably insignificant. Missett, supra at 538 (quoting Brobston, supra at 735).

Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1246 (Pa. Super. 2011).

The upshot of these recent pronouncements by the Superior Court is that although important, termination, alone, is not determinative. Instead, whether a non-compete agreement will be enforced must be evaluated in terms of whether it is reasonable and necessary on the facts of each individual case. See, e.g., Misset, supra, 6 A.3d at 538 (citing factors including, inter alia, reasons for termination, effect of enforcement on employee and employer, length of employment, extent of consideration to employee). With those principles in view, the inquiry turns to the facts at hand.

III.

Drs. Eckert and Greiss-Coult both contend that as a consequence of Dr. Rittenhouse’s conduct, the practice no longer has any legitimate business interests to protect. Specifically, they argue that the damage to the reputation of the practice resulting from the August 2010 incident has undermined any good will and, therefore, they should be freed of the constraints otherwise imposed by the restrictive covenant found in their employment agreements.

This argument is not supported by the facts presented. Neither Dr. Eckert nor Dr. Greiss-Coult have adduced any evidence fairly indicating that the practice has suffered such consequences. In fact, when questioned directly, they could point to no more than a handful of patients who had even mentioned the incident and but one who actually chose to leave the practice because of the events surrounding the Dr. Rittenhouse’s arrest and suspension. Accordingly, the argument regarding the alleged lack of legitimate business interests provides no basis to deny the benefit flowing from this contractual provision.

Less clearly, Drs. Eckert and Greiss-Coult posit that the particular fact of Dr. Rittenhouse’s relapse and arrest in August 2010 should deny the practice the right to enforce the non-compete provisions. In support of that argument, Drs. Eckert and Greiss-Coult contend that Dr. Rittenhouse’s conduct would justify termination of his employment and, were it not for his majority shareholder status, he would have been properly terminated. What remains unclear and unsubstantiated in this setting, however, is how an alleged failure on the part of the practice to terminate another employee would operate so as to relieve the obligations of Drs. Eckert and Greiss-Coult to the practice under their individual contracts of employment. Notably, despite knowledge of his condition, neither Dr. Eckert nor Dr. Griess-Coult negotiated a provision in their respective employment agreements to address the possibility Dr. Rittenhouse might suffer a relapse or to indicate that his continuing service should be deemed a condition of their agreement to work for the practice. In short, they have identified no provision in their agreements that would render a failure of the practice to discharge another party as a breach of either of those agreements. Although mention is made of the doctrine of unclean hands, that principle of equity will be addressed below. For present purposes, however, it must be concluded that the facts and arguments presented in support of their claims on this issue provide no contractual ground upon which to excuse performance of the non-compete agreements contained in the employment agreements.

The question of the implications of alleged termination of employment by the practice, however, presents a more complex picture. Although at the inception of these proceedings, Dr. Eckert and Dr. Greiss-Coult, alike, insisted they had not resigned through the letter of February 4,2011, or otherwise, the record is now clear that Dr. Eckert in fact tendered her immediate resignation on August 22, 2011. As such, there is no basis to invoke the principles first set forth in Brobston, supra, to relieve her of the restrictions found in her employment agreement. Moreover, in view of Dr. Eckert’s knowledge beforehand of Dr. Rittenhouse’s condition and her extended history of working with him evidently without incident, equity will not deem his episode of relapse and attempt to seek treatment for his condition at a facility ultimately approved by PHP, without more, as sufficient evidence of unclean hands so as to deprive the practice of the remedy of injunction. Dr. Eckert’s role as shareholder and officer in the closely held corporation also accorded her opportunities to challenge any allegedly oppressive behavior, and the fact that she did not avail herself of those options also weighs against her contention that the injunction should not issue. Accordingly, in full consideration of all of the attending circumstances, Dr. Eckert will be enjoined from violating the restrictive covenants contained in her employment contract. However, in view of the precarious nature in which her pregnant patients might find themselves in the wake of an immediate injunction, the enforcement of the non-compete clause will be stayed for 60 days to allow patients with imminent deliveries to receive their care as planned and to afford Dr. Eckert’s other patients an opportunity to make arrangements as necessaiy.

The balance of the equities in respect to Dr. Greiss-Coult, however, compels a different outcome. As noted above, the practice bottoms its argument on its reading of the Februaiy 4, 2011, letter as an unequivocal notice of resignation. Fairly read, however, in conjunction with the testimony presented to this court, the letter of February 4, 2011, was not a definitive notice of resignation; instead, it announced Drs. Eckert and Greiss-Coult’s intention “to consider” leaving the practice and amounted to a conditional notice of resignation that would be effective if no reply were received within the mandated seven days. A response was, however, communicated, thereby obviating the contingency set forth in the letter, namely, that in the absence of a reply, Drs. Eckert and Greiss-Coult would be leaving the practice with the understanding that Dr. Rittenhouse and the practice agreed with the terms of the non-compete provision were not applicable. But when Dr. Rittenhouse and the practice responded through their counsel that the non-compete agreement would be enforced, the condition for Dr. Greiss-Coult’s departure was removed and, thus, the resignation did not follow. Indeed, in the course of their negotiations, counsel for Dr. Greiss-Coult informed the practice that its reading of the February 4, 2011, letter misconstrued the intent of Dr. Greiss-Coult. Further, the objective intent of this letter was corroborated through the subsequent actions of Dr. Greiss-Coult, who continued to report to work until the practice on May 27, 2011, informed her that she would no longer be paid for her services as of June 1, 2011.

Nor does the present record lend any credibility to the claims asserted by Dr. Rittenhouse and the practice that Dr. Greiss-Coult was terminated for cause in relation to alleged misconduct involving the staff of the practice. On this score, Dr. Greiss-Coult’s testimony proved credible, while Dr. Rittenhouse’s vague references to “some complaints” by nameless individuals purportedly in relation to Dr. Greiss-Coult proved unconvincing. (See N.T., 11/17/2011, at 29-30.)

Rather, on this record, it is plain that it was the practice that unreasonably and unilaterally “deemed” the February 4, 2011, letter as a notice of resignation and, through its communication dated May 27, 2011, terminated Dr. Greiss-Coult without the requisite 60-days notice required under the agreement. In view of these circumstances, including the good-faith basis Dr. Greiss-Coult had to open a dialogue concerning the future of the practice in light of the difficulties attending Dr. Rittenhouse (see N.T., 11/17/2011 at 97-101,124-25), it readily appears that the practice sought fit for its own purposes to discard the services of Dr. Greiss-Coult. As such, a chancellor sitting in equity will not hear the practice complain that what it has deemed worthless should nonetheless be deemed worthy of protection so as to warrant enforcement of the covenant not to compete. The fact that Dr. Rittenhouse as majority and controlling shareholder of the practice appeared quite willing, even eager, to cast off Dr. Greiss-Coult supports such a conclusion. (See N.T., 11/17/2011, at 30.)

Additionally, in light of Dr. Greiss-Coult’s junior position vis-a-vis Dr. Rittenhouse and relatively brief duration of employment with the practice, enforcement of the non-compete agreement would work an inequitably harsh result in the circumstances of this case in which her employment was terminated against her will. Importantly, unlike Dr. Eckert, Dr. Greiss-Coult lacked shareholder standing to seek relief vis-a-vis Dr. Rittenhouse and the practice under the business corporation law. The record also reveals that Dr. Greiss-Coult explored employment possibilities outside the non-compete area within the Lehigh Valley region, but with her limited professional history, understandably chose to let space from a familiar colleague, Dr. Viechnicki.

Therefore, in full consideration of all the evidence in this case, notions of fairness that constitute the touchtone of equity’s jurisprudence command that the non-compete agreement not be enforced against Dr. Greiss-Coult. Furthermore, it is a timeless maxim that equity follows the law. And, although not advanced by Dr. Greiss-Coult expressly, the material breach by the practice through its failure to provide the sixty-days notice due under the contract has the effect of discharging her remaining liabilities under the contact, which would include future obligations in respect of the non-compete provisions. See Oak Ridge Const. Co. v. Tolley, 504 A.2d 1343, 1346-47 (Pa. Super. 1985) (material breech relieves non-breaching party of future obligations); see also Ward v. American Mut. Liab. Ins. Co., 443 N.E. 1342, 1343-44 (Mass. App. 1983) (breach by employer in discharging employee before time allotted in contract constituted material breach and afforded employee remedy of suing for total breach while excusing future obligations under non-compete provision with no set-off therefor to employer). As such, as part of her legal remedy, Dr. Greiss-Coult is entitled to be freed of her obligations under the non-compete agreement.

IV.

For the foregoing reasons, a decree declaring the restrictive covenant unenforceable against Dr. Greiss-Coult will be issued. Additionally, Dr. Greiss-Coult shall be entitled to pay through July 26,2011, pursuant to the sixty-days-notice requirement contained in her employment contract. Also, under the terms of the employment agreement, the practice was obliged to provide insurance coverages and professional fees and dues through July 26, 2011. Dr. Greiss-Coulfs and Dr. Eckert’s remaining claims for back-pay have not been proven through any evidence presented at hearing; therefore, those claims will be dismissed. Finally, under the mandatory provision of the Wage Payment and Collection Law (WPCL), 42 P.S. § 260.9a, Dr. Greiss-Coult is entitled to recovery of counsel fees upon filing of a motion therefor. See Oberneder v. Link Computer Corp., 548 Pa. 201, 204-205, 696 A.2d 148, 150-51 (1997) (awarding fees upon motion and holding legislative inclusion of “shall” in statute renders award of attorney’s fees mandatory where employee prevails in recovery of wage or fringe benefits); see also Voracek v. Crown Castle USA, Inc., 907 A.2d 1105, 1109 (Pa. Super. 2006) (WPCL policy of making employee whole without incurring cause of collection militates award of counsel fees even when employment contract reformed by court on grounds of mutual mistake). The practice and Dr. Rittenhouse, of course, may contest the reasonableness of any claims for such fees. All remaining claims of the parties will be denied.

ORDER

And now, February 29, 2012, upon consideration of the petition for injunctive and declaratory relief, filed by Stephanie B. Eckert, D.O., and Mary P. Greiss-Coult, D.O., on April 4, 2011, and brief in support thereof filed on June 15, 2011, and the response to said motion filed on April 26, 2011, and brief in opposition to the petition, filed on June 30,2011, and after argument held on August 3, 2011, and upon consideration of the petition, filed on September 29, 2011, by Lehigh Valley Women’s Medical Specialties, P.C., and response thereto, filed on November 17, 2011, and after hearing held on November 17, 2011; and upon consideration of the amended complaint filed on November 30,2011; Answer, filed on December 20,2011; and answer to new matter, filed on January 3, 2012, and for the reasons set forth in the accompanying opinion,

It is ordered that said petitions are granted in part and denied in part.

It is further ordered and decreed that, effective April 30, 2012, and for a period of two (2) years thereafter, Stephanie B. Eckert, D.O., shall be enjoined from engaging in any further activity in contravention of the restrictive covenants contained in her employment agreement that constitutes the basis for the within dispute.

It is further ordered and decreed that the non-compete agreement contained in Dr. Greiss-Coult’s employment agreement is unenforceable and that, consistent with the accompanying opinion, Dr. Greiss-Coult is entitled to benefits and payments owing under her contract of employment with Lehigh Valley Medical Specialties, P.C., through July 26, 2011.

      . Some concern soon emerged regarding whether the facility chosen by Dr. Rittenhouse satisfied the requisites of the PHP monitoring program. The choice of facilities was, however, retroactively approved after his admission. See infra.

      . See 15 Pa.C.S.A. § 1767 (remedy of shareholder to bring action for appointment of custodian in face of oppression or deadlock). Particularly as it concerns her patients, a court of equity also looks with disfavor upon the short-notice upon which Dr. Eckert abruptly exited the practice in August 2011. (See N.T., 11/17/2011, at 75-77.)

      . Drs Greiss-Coult and Eckert have also pled a right to withheld back pay; however, the evidence adduced at hearing failed to substantiate these claims. Specifically, there was no evidence regarding the four hours of pay for Dr. Greiss-Coult, while the testimony of record in respect to Dr. Eckert’s claims indicates that as a shareholder and officer of the corporation, she routinely acquiesced in the temporary delay in payment to mitigate cash-flow concerns.