Hoorfar Dental Group v. Gatsch, A.

• Court: Superior Court of Pennsylvania
• Decided: November 14, 2022
• Docket: 2574 EDA 2021
• Status: Unpublished

Opinion

J-A21004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HOORFAR DENTAL GROUP - : IN THE SUPERIOR COURT OF RICHBORO, LLC, MERSAD HOORFAR : PENNSYLVANIA DMD : : : v. : : : ALEXANDRA GATSCH, TERRY : No. 2574 EDA 2021 RAKAWSKY, DMD, RG DENTAL : GROUP OF RICHBORO, LLC : : Appellants :

Appeal from the Judgment Entered November 10, 2021 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2019-00657

BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 14, 2022

Alexandra Gatsch, Terry Rakawsky, DMD, and RG Dental Group of

Richboro, LLC (collectively, Defendants/Buyers) appeal from the judgment

entered on a jury verdict in favor of Appellees’, Hoorfar Dental Group-

Richboro, LLC, and Mersad Hoorfar, DMD (collectively, Plaintiffs/Sellers), in

this breach of contract action. After careful, we affirm on the basis of the

trial court opinion.

On June 14, 2018, Defendants entered into a written Asset Purchase

Agreement (APA) to buy Plaintiffs’ dental practice (Practice), located in

Richboro, Bucks County, for a purchase price of $850,000.00. The APA

contained an integration clause memorializing that the “[APA] and the

existing exhibits hereto contain the entire agreement between the parties J-A21004-22

. . . [and that the APA] may not be modified, amended, altered, supplemented,

or canceled[,] except pursuant to the terms of an instrument in writing signed

by the parties hereto.” APA Integration Clause, 6/14/18, at § 17.7 (emphasis

added); see also N.T. Jury Trial, 7/13/21, at 28 (Defendants’ attorney

agreeing contract was “[f]ully integrated”). Defendants also bought the

Practice’s accounts receivables (Accounts Receivables), as of July 30, 2018,

for an additional $78,080.001 (70% of the value of accounts less than 90 days

old). The parties executed an amendment to the APA and a Promissory Note

(Note) that documented the valuation of the Accounts Receivables. The

amendment to the APA and the Note delineated that Defendants were to pay

the $78,080.00 in twelve consecutive monthly installments of $6,506.66,

without interest, beginning on August 31, 2018. In addition, pursuant to a

Professional Services Agreement (PSA), Defendant, Mersad Hoorfar, DMD,

agreed to work as an independent contractor for Plaintiff RG Dental Group for

a minimum of three months following the sale of the Practice.

Defendants paid the purchase price, took over the Practice, including all

dental tools, equipment, and supplies,2 collected the Practice’s Accounts ____________________________________________

1 The $78,080.00 did not include interest as long as Defendants did not default. In the event of a non-cured default, interest accrued on the Note at the rate of 10% per annum.

2 The APA included the following provision regarding supplies:

SUPPLIES: Supplies will continue to be purchased by the Seller and delivered to the Practice until the date of Closing at no cost (Footnote Continued Next Page)

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Receivables (that were billed prior to closing but not yet paid), and began

operating RG Dental with Dr. Hoorfar3 continuing to work for the agreed-upon

three-month-period post-sale. Section 9 of the APA designated that the dental

equipment was sold in “As-Is” condition. When Buyers found fault with the

condition of the equipment and alleged that there was a shortage in stocking

of supplies on hand prior to the time of the transfer of the Practice, Buyers

ceased paying the monthly $6,505.66 installment as per the APA and

Promissory Note and also deducted money owed under the PSA to make

alleged “repairs” to dental equipment. N.T. Jury Trial, 7/13/21, at 145. In

addition, Buyers failed to pay Dr. Hoorfar in full for his post-sale work and

services that totaled approximately $10,360.50.

On January 31, 2019, Plaintiffs filed a complaint against Defendants

alleging breach of contract-promissory note (Count I), breach of contract-

professional service agreement (Count II), and invasion of privacy-

appropriation of Plaintiff’s Identity (Count III). Complaint, 1/31/19, at 3-5.

Plaintiffs sought to enjoin Defendants from continuing to appropriate Plaintiff’s

identity or engage in any unfair or deceptive practices or fraudulent behavior,

compensatory damages, the rendering of an accounting of billing and ____________________________________________

to the [Buyer], such that the Seller shall maintain its normal supply inventory as maintained during the course of Seller’s general operations.

APA, 6/14/18, at ¶ 4.

3 RG Dental also hired Danielle Teitelman, DMD, who had worked for the Practice prior to its sale.

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collection of Plaintiffs’ professional services rendered, injunctive and equitable

relief, as deemed proper by the court, reasonable attorneys’ fees and costs,

and pre- and post-judgment interest. Id. at 5-6.

On March 5, 2019, Defendants filed an answer with new matter and

counterclaims for misrepresentation and breach of contract. Plaintiffs filed

preliminary objections to Defendants’ new matter and counterclaims, seeking

dismissal of Defendants’ pleading for lack of specificity and in the nature of a

demurrer. See Pa.R.C.P. 1028(a)(3), (4). In their preliminary objections,

Plaintiffs claimed that Defendants: (1) defaulted on the Note on November

30, 2019; (2) continue to be in default in the amount of $58,506.02, plus

interest, attorneys’ fees, and costs; and (3) only made partial payments under

the PSA causing Defendants to suffer damages in excess of $10,000.00.

On May 13, 2019, the trial court granted Plaintiffs’ preliminary

objections, in part, and dismissed Defendants’ counterclaim for

misrepresentation. On June 7, 2021, Plaintiffs filed a motion in limine to

preclude the admission of parol evidence to supplement the parties’ written

agreements. On July 13, 2021, the trial court held oral argument on Plaintiffs’

motion in limine at which Plaintiffs argued that the language in the APA was

not ambiguous and Defendants argued the APA’s language “aggregate

amount” with regard to the Accounts Receivable was susceptible of different,

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but reasonable, interpretations.4 N.T. Jury Trial, 7/13/21, at 23, 32-33. The

court ultimately granted Plaintiffs’ motion, concluding that the APA was not

ambiguous and that the term “aggregate amount” means “total” amount.

A three-day jury trial was held before the Honorable Denise M. Bowman.

Prior to the start of trial, Plaintiffs withdrew their invasion of privacy claim.

N.T. Jury Trial, 7/13/21, at 5. At the conclusion of trial, Plaintiffs made a

motion to dismiss with regard to Accounts Receivable and any claim based on

actual damages regarding two pieces of dental equipment. N.T. Trial,

7/15/21, at 89-91. The court denied the motion to dismiss with regard to the

____________________________________________

4Exhibit B, attached to the APA, included the following provision regarding Accounts Receivable, in relevant part:

ACCOUNTS RECEIVABLE. As of the Closing Date, Seller will provide Purchaser with a written [A]ccounts [R]eceivable aging report, in such detail as Purchaser may reasonably request, relating to any services provided by Seller to any patient prior to the Closing Date[.] Purchaser shall purchase the Practice Accounts Receivable for a price equal to the aggregate amount of such receivables that are no more than ninety (90) days old multiplied by Seventy Cents ($.70). (By way of example: if, as of the Closing Date, the aggregate amount of the Practice Accounts Receivable no more than ninety (90) days old is equal to One Hundred Thousand Dollars ($100,000.00), then Purchaser shall purchase such receivables for the price of $70,000 ($100,000 x $.70 = $70,000)).

APA, Exhibit B, 6/14/18, at 1. Plaintiffs’ counsel interpreted the term “aggregate amount” to mean the total amount “regardless of what insurance will actually pay,” N.T. Jury Trial, 7/13/21, at 33, while Defendants’ counsel interpreted the term to mean that amount that is collectible (i.e., what insurance pays).

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equipment and granted the motion5 with regard to Defendants’ counterclaim

for breach of contract relating to Accounts Receivable. The jury rendered a

verdict in favor of Plaintiffs for $69,166.00—$58,806.00 (breach of Note) and

$10,360.00 (material breach of PSA). See N.T. Jury Trial, 7/15/21, at 218-

20.

On July 26, 2021, Defendants filed a post-trial motion seeking a new

trial, which the trial court denied on November 5, 2021. On October 21, 2021,

Plaintiffs filed a petition for interest, costs, and attorneys’ fees. On November

9, 2021, the court granted Plaintiffs’ petition awarding Plaintiffs $19,127.94

in pre-judgment interest ($17,302.14 for breach of Note and $1,825.80 for

breach of PSA), and $7,655.00 in attorneys’ fees and costs. On November

10, 2021, Plaintiffs filed a praecipe to enter judgment on the jury verdict; the

verdict was reduced to judgment.6

Defendants filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Defendants

raise the following issues for our consideration:

(1) Whether the trial court erred as a matter of law in sustaining the Buyers’ preliminary objections in the nature of a demurrer to Count I of the Buyers’ counterclaim for misrepresentation by way of its interlocutory order entered May 14, 2019.

5 The court deemed this a “motion for directed verdict.” N.T. Jury Trial, 7/15/21, at 94.

6 The entire judgment totaled $95,948.94, representing the jury verdict, pre- judgment interest, and attorneys’ fees and costs.

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(2) Whether, especially in light of its order entered May 14, 2019, the trial court erred as a matter of law in granting the Sellers’ motion in limine filed June 7, 2021[,] based upon the parol evidence rule.[7]

(3) Whether, setting aside its granting of the Buyer’s motion in limine, the trial court abused its discretion and/or clearly erred as a matter of law in ruling that the accounts receivable report delivered to the Buyer at the closing on July 31, 2019[,] was not part of the parties’ contract and in precluding the Buyer from introducing evidence and testimony on the question of whether the Seller breached the A[PA] in this regard.

(4) Whether the trial court should have entered judgment as a matter of law for the Buyer on the Sellers’ claims for breach of the professional services agreement and for $19,775.91 for the Buyer on its counterclaim against the Seller for breach of the A[PA] with regard to the payment of Dr. Teitelman’s bonus for services rendered prior to July 31, 2018.

(5) Whether, alternatively, the trial court should have granted the Buyers’ request for a mistrial as to all issues when the

It is well established that under the law of contracts, in interpreting an agreement, the court must ascertain the intent of the parties. In cases of a written contract, the intent of the parties is the writing itself. If left undefined, the words of a contract are to be given their ordinary meaning. When the terms of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the document itself. When, however, an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is patent, created by the language of the instrument, or latent, created by extrinsic or collateral circumstances. A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. While unambiguous contracts are interpreted by the court as a matter of law, ambiguous writings are interpreted by the finder of fact.

Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citations omitted).

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Sellers’ counsel [] stood up in open court before the jury, accused the undersigned of professional misconduct and demanded a mistrial.

Defendants’ Brief, at 3.

After reviewing the parties’ briefs on appeal, the certified record, and

relevant case law, we rely upon Judge Bowman’s well-crafted opinion to affirm

the trial court’s judgment entered on the verdict in favor of Plaintiffs. See

Trial Court Opinion, 3/9/22, at 16-21 (court properly dismissed Defendants’

counterclaim for misrepresentation under “gist of action” doctrine where

contract claim cannot be recast as tort claim as Defendants failed to support

counterclaim with anything other than parties’ written agreements); id. at 21-

25 (court properly granted Plaintiff’s motion in limine based upon parol

evidence rule where Defendants admitted APA contained integration clause

regarding sale/purchase of Accounts Receivable, evidence did not

demonstrate ambiguity in APA, Defendants’ attorney admitted Defendants

were not alleging mistake or misrepresentation, and Defendants never

claimed APA ambiguous throughout discovery or sought additional information

on what “aggregate amount” meant); id. at 25-30 (court properly concluded

Accounts Receivable report not part of parties’ contract and precluded

Defendants from introducing evidence and testimony on whether Plaintiffs

breached APA where emails Defendants sought to introduce violated court’s

prior ruling on motion in limine determining term “aggregate amount” was not

ambiguous with regard to amount of “collectible” Accounts Receivable); id. at

59-62 (court properly ruled against Defendants on breach of contract claim

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where there was “evidentiary discrepancy” regarding whether Dr. Hoorfar paid

Dr. Teitelman bonus for work performed prior to July 31, 2018; it was within

province of jury to credit Dr. Hoorfar’s testimony over that of Ms. Gatsch); id.

at 40-42 (court properly denied Defendants’ request for mistrial regarding

Plaintiffs’ counsel’s remarks where court immediately dismissed jury after

remarks made, Defendants’ counsel did not claim his clients were prejudiced

by the comments, and counsel’s remarks were ameliorated by court’s carefully

crafted curative jury instruction8).

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/2022

8 See N.T. Jury Trial, 7/15/21, at 143-45.

-9- Circulated 10/31/2022 02:15 PM

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yim a IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA U = U Q O CIVIL ACTION — LAW U l0

aQ HOORFAR DENTAL GROUP- RICHBORO, : w. LLC, and MERSAD HOORFAR,DMD No.2019 - 00657 o = H Q c 0 U V. i 00 Q= : Superior Court No.: 2574 EDA 2021 w ALEXANDRA GATSCH, 3J- TERRY RAKAWSKY, DMD, and RG CO Z 02) DENTAL GROUP OF RICHBORO, LLC Q• oa OPINION

wa I. INTRODUCTION: w• Appellants, Alexandra Gatsch ("Ms. Gatsch"), Terry Rakawsky, DMD ("Dr. Rakawsky"),

and RG Dental Group of Richboro, LLC ("RG Dental") (collectively, "Appellants"), have

0o a appealed PP this Court's Order entered November • 5 2021, denying Y g A ppellants' Trial Motion for Post-

Relief ("Motion for Post-Trial Relief'), and this Court's Order entered November 9, 2021, granting

aa Appellees' Petition for Interest, Costs and Fees ("Petition for Interest, Costs and Fees"). This coo •P2 N Opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). For the reasons o• set forth below, the undersigned respectfully submits that this appeal be DISMISSED. o c m II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND:

oQ This case arises from the purchase and sale of adental practice. On or about June 14, 2018, a`Q m o Appellees, Hoorfar Dental Group-Richboro, LLC ("Hoorfar Dental") and Mersad Hoorfar, DMD N

("Dr. Hoorfar") (collectively, "Appellees"), entered into awritten Asset Purchase Agreement with Uy v Dr. Rakawsky and Ms. Gatsch for the sale of certain assets belonging to Hoorfar Dental to an

entity to be formed by Dr. Rakawsky and Ms. Gatsch ("APA"). 1 The parties to the APA agreed Cq a that the closing date of the sale/purchase would occur on July 31, 2018 ("Closing Date"). See o• • • o

a 'The entity that was eventually formed to purchase those assets is Appellant, RG Dental.

N R Q a y j

13 w THIS ORDER/JUDGMENT WAS DOCKETED AND SENT ON 03/10/2022 PURSUANT TO PA. R. C. P. 236. APA at ¶ 11. With respect to the purchase price for the assets, the parties to the APA agreed as

follows.

Seller hereby sells and Purchaser hereby purchases the Assets of the Practice of the Seller for a total consideration of Eight Hundred Fifty Thousand Dollars ($850,000.00) (referred to herein as the "Purchase Price") plus the value of the Practice Accounts Receivable as set forth on the attached Exhibit B. Purchaser shall assume none of the liabilities of the Practice, except as may be specifically stated herein.

Id. at ¶ 2. 2 Exhibit B attached to the APA provides:

ACCOUNTS RECEIVABLE. As of the Closing Date, Seller will provide Purchaser with a written accounts receivable aging report, in such detail as Purchaser may reasonably request, relating to any services provided by Seller to any patient prior to the Closing Date (the "Practice Accounts Receivable"). Purchaser shall purchase the Practice Accounts Receivable for aprice equal to the aggregate amount of such receivables that are no more than ninety (90) days old multiplied by Seventy Cents ($. 70). (By way of example: if, as of the Closing Date, the aggregate amount of the Practice Accounts Receivable no more than ninety (90) days old is equal to One Hundred Thousand Dollars ($ 100,000.00), then Purchaser shall purchase such receivables for the price of $70,000 ($ 100,000 x $. 70 = $70,000)). Seller shall grant to Purchaser alimited power of attorney to endorse checks, in payment of such Practice Accounts Receivable, made out to Seller and received by Purchaser after Closing. Seller covenants not to order forwarding of Seller's office mail for aperiod of six (6) months after Closing, Purchaser agreeing to be fully responsible to ensure that Seller's mail shall be forwarded to Seller at the address of Seller's choosing. After Closing, Seller shall promptly remit to Purchaser payment of any Practice Accounts Receivable received by Seller.

APA, Exhibit B.

Additionally, and with respect to any employees of Hoorfar Dental who became employees

of RG Dental, the parties agreed that Hoorfar Dental would be responsible to pay all employee

expenses, including wages or salaries, that accrued prior to the Closing Date. See id. at ¶ 16.1.

2 Subjectto certain warranties in the APA, the parties agreed that the "Assets of the Practice" would be sold in an " as-is" condition. See id. at ¶ 9.

2 From and after, the Closing Date, RG Dental would be responsible for all such employee expenses.

See id. at ¶ 16.2.

On the Closing Date, and pursuant to Exhibit B attached to the APA, Dr. Hoorfar provided

Appellants awritten accounts receivable aging report identifying the aggregate amount of accounts

receivable no more than ninety (90) days. That figured totaled $ 111,543.00. N.T. 7/13/21, at 100-

01; N.T. 7/14/21, at 159. Although explicitly permitted to do so, Appellants did not request any

further detail. See APA, Exhibit B; see also N.T. 7/13/21, at 24-27, 38.

Also at closing, Hoorfar Dental, Dr. Rakawsky and Ms. Gatsch executed an Amendment

to Asset Purchase Agreement ("Amendment to APA") amending section 3(iv) of the APA in its

entirety to read as follows: "In addition to the Purchase Price, the value of the Practice Accounts

Receivable shall be paid by Purchaser to Seller in twelve equal monthly payments without interest

pursuant to the terms of aPromissory Note in the form attached hereto as Exhibit F." Amendment

to APA at 1. On that same date, RG Dental, through its members, Dr. Rakawsky and Ms. Gatsch,

executed aPromissory Note ("Promissory Note") which provided that RG Dental would pay

Hoorfar Dental the total sum of $78,080.00 in twelve equal monthly installments of $6,506.66,

without interest, beginning August 31, 2018. See id., Exhibit F. Dr. Rakawsky and Ms. Gatsch

both personally guaranteed the Promissory Note. See id.

The parties also executed an Assignment and Assumption of Employment Agreement

("Assignment of Employment Agreement") pursuant to which the Employment Agreement of one

of Hoorfar Dental's employees, Dr. Teitelman, was assigned to, and assumed by, RG Dental.

Additionally, the parties executed the Professional Services Agreement ("PSA"), that was attached

as Exhibit E to the APA. Pursuant to the PSA, the parties agreed that Dr. Hoorfar would provide

3 Vj

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a yim U = dental services for aminimum of three months after the Closing Date. See id., Exhibit E. For U Q O U l0 those services, the parties agreed that Dr. Hoorfar would be paid as follows: a•G w• INDEPENDENT CONTRACTOR shall receive a fee equal to 40% of gross o= •a collections less 40% of lab fees associated therewith, payable monthly pursuant to O G 0 U Exhibit "E" hereto. Following the second (2nd) month of this Agreement, O O Q= INDEPENDENT CONTRACTOR shall receive compensation based upon the prior w= month collections on the 15th of each month. 3 =' CO c See id., Exhibit E, ¶ 8. Q• oa Lab: usually consist of but not limited to, all Lab charges from different labs for Crown & Bridges, Dentures, its abutments, and related restorative lab works. N U

wa Chemotherapeutic material cost such as ARRESTIN or PERIOCHIP. Cost of a w• mouth guard fabrication charges, TMJ appliance, Orthodontic appliance charges, implants, bone graft, membrane, botox, dysport, restylane, perlane, Invisalign and U any other mutually agreed Specialty supply or arrangements. • O G

See id., Exhibit E, Exhibit E.

oa G E9 U Importantly, both the APA and the PSA contained integration clauses. Paragraph 17.7 of II 01

L the APA provided as follows: a a 00 o• Entire Agreement. This Agreement and the exhibits hereto contain the final and N N _ entire agreement between the parties and shall not be bound by any terms, ol? 0 conditions or representations not contained herein. Seller and Purchaser may take . -11 0

legal advice from their own attorney in connection with this transaction. o G oa

w m APA at ¶ 17.7. Paragraph 12 of the PSA provides: o =• o¢ a This Agreement supersedes any and all other Agreements, oral or written, U 73o y.. between the parties hereto with respect to the matter contained herein and it shall m h

00 not be modified except in writing and executed by the parties hereto. However, the liabilities, if any, of the INDEPENDENT CONTRACTOR under any earlier U_o N agreement shall continue to survive under this Agreement. mU a 13) c PSA at ¶ 12. U •

N On January 31, 2019, six months after the Closing Date, Appellees filed aVerified Qa C) o Complaint ("Complaint"). In that Complaint, Appellees included aclaim for breach of the — 03 2 O 00 Promissory Note (Count I), aclaim for breach of the PSA (Count II), and aclaim for Invasion of O a " G

a

N R Q 4 a y j

U W Privacy (Count III). See Complaint, Counts I-III. With respect to the two contract claims,

Appellees averred that Appellants breached the Promissory Note by failing to make payments to

Appellees for the Practice Accounts Receivable and also breached the PSA by failing to pay Dr.

Hoorfar for dental services provided subsequent to the Closing Date. See id., Counts Iand II. 3

On March 5, 2019, Appellants filed an Answer with New Matter and Counterclaim

("Answer, New Matter and Counterclaim") in which Appellants asserted a counterclaim for

Misrepresentation (Count I) and, in the alternative, acounterclaim for Breach of Contract (Count

II). See Answer, New Matter and Counterclaim, Counts Iand II. In their counterclaim for

Misrepresentation, Appellants averred that Appellees had fraudulently induced Appellants to enter

into the APA. See id., Count I. In Count II, Appellants averred, in the alternative, that based upon

the same conduct pleaded in support of the Misrepresentation counterclaim, Appellees committed

multiple breaches of the APA. See id., Count II. Specifically, Appellants averred that Appellees

had breached the APA as follows: 1) through apurported misrepresentation regarding the value of

the accounts receivable which Appellants had purchased for $ 78,080; 2) by failing to pay abonus

to one of Hoorfar Dental's former employees (Dr. Teitelman); and 3) violating provisions in the

APA regarding the condition of the equipment and supplies sold to Appellants. See id. at 5-8.

On March 25, 2019, Appellees filed Preliminary Objections seeking dismissal of

Appellants' pleading for lack of specificity and also dismissal of Count Ion the grounds of legal

insufficiency ("Preliminary Objections"). As to their demurrer to Count I, Appellees argued that

Appellants' counterclaim for Misrepresentation was barred by the Gist of the Action Doctrine as

well as on the grounds that any Fraud-in-the-Inducement claim would be barred by the Parol

3 Appellees withdrew their Invasion of Privacy claim prior to trial so it will not be discussed herein.

5 Evidence Rule. See Preliminary Objections at 11-15. On May 3, 2019, Appellants filed aresponse

to the Preliminary Objections. On May 13, 2019, the Honorable Jeffrey G. Trauger entered an

Order overruling the preliminary objection pursuant to Pa. R.C.P. No. 1028(a)(3), and sustaining

the preliminary objection to Count Ipursuant to Pa. R.C.P. No. 1028(a)(4) ("May 2019 Order").

On June 4, 2019, Appellees filed a Reply to New Matter and Answer to Count Two of the

Counterclaim.

Thereafter, on October 5, 2020, an Agreed Case Management Order was entered by the

Honorable Robert O. Baldi ("Agreed Case Management Order") setting February 28, 2021 as the

deadline for the identification and exchange of all exhibits. On May 27, 2021, the Honorable

Wallace H. Bateman, Jr., entered an Order scheduling the matter for trial during the July 6, 2021

to July 16, 2021 trial term ("Pre-Trial Order"). Additionally, Judge Bateman directed the parties

to file Pre-Trial Memoranda within ten ( 10) days after entry of the Pre-Trial Order. See Pre-Trial

Order. Judge Bateman further directed that pre-trial memoranda include, inter alia, alist of all

exhibits which each party intended to introduce at trial. See id. Notably, the Pre-Trial Order also

stated as follows: "Failure to comply with these procedures may result in the exclusion from trial

evidence not disclosed at this time...." Id.

Appellees filed their Pre-Trial Memorandum on June 7, 2021. Appellants filed their Pre-

Trial Memorandum the next day.

On June 7, 2021, Appellees filed aMotion in Limine to Preclude Evidence That Varies

From the Terms of the Written Agreements Underlying the Sale of the Dental Practice ("Motion

in Limine"). Pursuant to their Motion in Limine, Appellees sought an Order precluding Appellants

from introducing any documents or testimony at trial that would vary, explain, or contradict the

terms of the parties' written agreements. Appellees argued that the written agreements are

6 integrated, and thus, the Parol Evidence Rule preludes the introduction of any such evidence. See

Motion in Limine at 1-4.

Appellants filed aresponse to the Motion in Limine on June 22, 2021 ("Response to Motion

in Limine"). In their Response to Motion in Limine, Appellants argued that an exception to the

Parol Evidence Rule applied because there is an ambiguity in the APA. See Response to Motion

in Limine at 1-4. Specifically, Appellants argued that the term "the value of the Practice Accounts

Receivable" in Exhibit B to the APA was susceptible to more than one reasonable interpretation

and, therefore, constituted an ambiguous term. See Response to Motion in Limine at 2-4.

Trial on this matter ultimately was scheduled to begin on July 13, 2021. On that date, and

prior to jury selection, the undersigned held oral argument on the Motion in Limine. Counsel for

Appellees, Michael Burns ("Mr. Burns"), argued that the language at issue is not ambiguous, and

further, that Appellants had conceded as much in discovery. In response, Counsel for Appellants,

William T. Dudeck ("Mr. Dudeck"), argued that an ambiguity did exist because the parties had

two different, but reasonable, interpretations of certain language in the APA. Mr. Dudeck

identified the phrase which Appellants contended was ambiguous as: "for aprice equal to the

aggregate amount of such receivables that are no more than 90 days old multiplied by 70 cents."

N.T. 7/13/21, at 23. A few minutes later, Mr. Dudeck advised the Court that it was the two words

"aggregate amount" together that constituted the purported ambiguity. N.T. 7/13/21, at 32-33.

During oral argument, Mr. Dudeck made various concessions. He conceded that it was not

Appellants' position that there was amistake or fraud but only that an ambiguity existed. N.T.

7/13/21, at 27-28. Additionally, he conceded that the APA is integrated. N.T. 7/13/21, at 27-28.

He also admitted that Ms. Gatsch knew, at the time she signed the APA, that the figure to be paid

for the aggregate amount of accounts receivable was $78,080.00. N.T. 7/13/21, at 31. He further

7 agreed that after this amount was calculated pursuant to the formula in Exhibit E to the APA, Ms.

Gatsch signed a Promissory Note in the amount of $78,080.00 for the "aggregate accounts

receivable." N.T. 7/13/21, at 31. He further conceded that Appellants had the right under the APA

to request additional detail after being provided acopy of the written accounts receivable aging

report and that they failed to request such information. N.T. 7/13/21, at 38. Mr. Dudeck also

conceded that he was not arguing any ambiguity in the Promissory Note itself. N.T. 7/13/21, at

31.

In support of his position, Mr. Dudeck argued that Ms. Gatsch and Appellees both had

reasonable interpretations of the language at issue and, therefore, the Court was required to find

an ambiguity.' Mr. Dudeck argued that Dr. Hoorfar interpreted "aggregate amount" to mean the

total amount, and Ms. Gatsch interpreted this same language to mean the "aggregate amount" that

is collectible. N.T. 7/13/21, at 23-24, 33-34. He claimed that "what happened was that she thought

she was getting $ 111,000.00 of collectible receivables 0-90 for $78,000.00 as part of the overall

receivables ...." N.T. 7/13/21, at 24. Mr. Dudeck argued that because both interpretations were

reasonable, an ambiguity existed, and the Court should permit the introduction of evidence to

support Ms. Gatsch's interpretation. N.T. 7/13/21, at 21-22, 32-33, 36.

The undersigned ultimately determined that the APA was not ambiguous and that the term

"aggregate amount," meant just that - "aggregate" or "total" amount. The Court granted the

Motion in Limine and directed that there would be no parol evidence introduced at trial. N.T.

7/13/21, at 40.

4 Notably, there was no offer of proof from Mr. Dudeck during oral argument as to Dr. Rakawsky's interpretation of the language in the PSA. All of the representations being made related specifically to Ms. Gatsch's purported interpretation. As aresult, there is no record as to how Dr. Rakawsky, also amember of RG Dental, interpreted the language at issue.

8 Subsequent to that ruling, ajury was selected and empaneled. Thereafter, the Court gave

various additional instructions to the jury, including instructions regarding how the trial was

expected to proceed. With respect to the notion of objections, the undersigned instructed the jury

as follows: "The attorneys have the right and duty to make objections in order to make sure that

only legally sufficient and relevant evidence is considered by you. So you should not penalize any

of the litigating parties because their attorneys make objections." N.T. 7/13/21, at 76. The Court

further explained to the jury what evidence is, and what types of things are not evidence, such as

objections, statements, or arguments by counsel. N.T. 7/13/21, at 76-81.

Thereafter, Mr. Burns made his opening statement on behalf of the Appellees. Mr. Dudeck

then began his opening statement s Partway through that opening statement, Mr. Burns objected

and the Court heard Counsel at side bar. The objection by Mr. Burns was that Mr. Dudeck was in

violation of the Court's order granting the Motion in Limine by referencing in his opening

statement certain evidence that in fact constituted parol evidence. The Court excused the jury and

heard argument from both attorneys. Ultimately, the Court agreed that the evidence which Mr.

Dudeck sought to reference in his opening statement was parol evidence. The jury was brought

back into the courtroom. Mr. Dudeck then simply thanked the jury and sat down rather than

continuing further with an opening statement.

Appellees then called Dr. Hoorfar as their first witness. During that testimony, Mr. Burns

asked Dr. Hoorfar aquestion or two which raised aconcern with the Court that Mr. Burns may be

seeking to introduce evidence in violation of the Court's ruling on the Motion in Limine. The

undersigned brought both attorneys to side bar and raised its concern. Mr. Burns assured the Court

s Counsel for Appellants and Counsel for Appellees stipulated that opening statements would not

be taken down by the Court Reporter. N.T. 7/13/21, at 16.

9 he had no intention of violating the Court's ruling. After sidebar, Mr. Burns immediately moved

on to anew topic with Dr. Hoorfar. N.T. 7/13/21, at 128-29. Counsel for Appellants made no

comments during this sidebar exchange. N.T. 7/13/21, at 128-29. Thereafter, the testimony of Dr.

Hoorfar continued and concluded late in the afternoon on day one of the trial.

On day two, Mr. Dudeck started his cross-examination of Dr. Hoorfar. Early on during

that examination, Mr. Burns raised arelevance objection. The undersigned heard the attorneys at

side bar. During this side bar, Mr. Dudeck advised he would withdraw his question. N.T. 7/14/21,

at 31-32. Shortly thereafter, Mr. Burns raised another objection which the Court overruled.

Notwithstanding this, Mr. Dudeck felt it appropriate to make the following statement in front of

the jury: "Your Honor, I'd like to proceed without these constant stops with objections that are

clearly not relevant and that are just meant to interrupt my flow. Ithink they should be addressed

in re-direct." N.T. 7/14/21, at 34. The Court was once again required to take the attorneys to side

bar. After hearing Mr. Dudeck on the issue he raised, and also Mr. Burns on his concern as to the

impact that Mr. Dudeck's comments might have on the jury's perception of Mr. Burns, the Court

advised that it would be giving the jury afurther instruction. N.T. 7/14/21, at 36. The undersigned

then went back on the record and advised the jury as follows:

Ladies and gentlemen of the jury, as Iinstructed you yesterday, you are going to hear the attorneys make objections. And the purpose of those objections from the perspective of the attorney making the objection is to make sure that you only hear evidence that's admissible and appropriate. You are not to hold it against the attorneys who are making the objection. Both of them have the right to do that. They are advocating for their clients, and they want to assure that only admissible evidence is introduced. So Iwant to make you aware of that again. And by agreement, that statement that was just made by Mr. Dudeck will be stricken. Well, you are not to consider it. Okay? You are to disregard the last statement that he made. It is not evidence, and it's not to be considered by you. Consistent with what Itold you earlier that the statements of lawyers are not evidence. Okay? All right. Mr. Dudeck? Go ahead.

N.T. 7/14/12, at 36-37.

10 Subsequent to the conclusion of the testimony of Dr. Hoorfar, Appellees rested their case.

The jury was then excused and Mr. Dudeck moved for acompulsory nonsuit as to Appellees' claim

for breach of the PSA. N.T. 7/14/21, at 79. The Court heard argument from both Counsel and

then denied the motion. N.T. 7/14/21, at 79-82.

Thereafter, Appellants presented their defense to Appellees' breach of contract claims and

also introduced evidence in support of their own breach of contract counterclaims. Appellants'

called Ms. Gatsch as their first witness.

During Ms. Gatsch's direct examination, Ms. Gatsch testified that she understood that RG

Dental was purchasing the accounts receivable for the formula set forth in Exhibit B to the APA.

N.T. 7/14/21, at 103. Ms. Gatsch also provided extensive testimony regarding equipment and

supplies that were purchased as part of the sale of the practice. See N.T. 7/14/21. Ms. Gatsch

testified that she had to replace some supplies and also repair certain equipment. See N.T. 7/14/21.

With respect to Dr. Hoorfar's ongoing work at RG Dental, Ms. Gatsch testified that Dr.

Hoorfar did provide services to patients for some days in September, all of October, all of

November and half of December 2018. N.T. 7/14/21, at 109-10. She testified that the formula for

his pay was 40 percent of his gross collections less 40 percent of lab. N.T. 7/14/21, at 109-10.

Throughout the direct examination of Ms. Gatsch, Mr. Dudeck asked questions which drew

objections from Mr. Burns on the grounds that such questions sought the introduction of parol

evidence. The Court entertained these objections at sidebar and repeatedly warned Mr. Dudeck of

the Court's ruling on the Motion in Limine. Thereafter, Mr. Dudeck asked Ms. Gatsch if she tried

to collect on the accounts receivable after the transaction had closed. N.T. 7/14/21, at 135. Mr.

Burns made an objection which the Court sustained. N.T. 7/14/21, at 135. Notwithstanding having

heard the Court's ruling on that objection, Mr. Dudeck then asked Ms. Gatsch whether she was

11 able to collect any amount near $78,080.00 on those receivables. N.T. 7/14/21, at 135-36. Once

again, Mr. Burns objected, and this time moved for amistrial. Specifically, Mr. Burns stated as

follows: "Objection, Your Honor. Move to strike any testimony of Ms. Gatsch as this officer of

the court is failing to follow the directives of this Court. And Iwould move for amistrial, and I

would move for adirected verdict in my client's favor." N.T. 7/14/21, at 136. The Court then

immediately dismissed the jury. Subsequent to the jury exiting the courtroom, Mr. Burns

immediately withdrew his request for amistrial. In response, Mr. Dudeck took the position that

the Court was now obligated to declare amistrial, and he moved for amistrial on behalf of the

Appellants. N.T. 7/14/21, at 136. The Court denied Appellants' motion and gave a detailed

curative instruction to the jury. N.T. 7/14/21, at 141, 143-147.

Ms. Gatsch's testimony continued, and upon its completion, Mr. Dudeck advised that

Appellants rested. The jury was excused and Mr. Burns moved for acompulsory nonsuit on both

of Appellants' breach of contract counterclaims. With respect to Appellants' counterclaim relating

to the value of the accounts receivable, Mr. Burns argued that Appellants had failed to adduce

sufficient evidence of abreach. N.T. 7/15/21, at 89-91. With respect to the counterclaim regarding

equipment and supplies, Mr. Burns argued that Appellants also had not adduced sufficient

evidence to make out a breach of contract claim. The Court granted the motion as to the

counterclaim regarding the accounts receivable and denied the motion regarding the counterclaim

relating to the equipment and supplies. N.T. 7/15/21, at 93-94.

Thereafter, the jury returned to the courtroom. Appellees then presented their defense to

Appellants' counterclaim that Appellees had breached the APA relating to the equipment and

supplies purchased by RG Dental and also Appellants' counterclaim relating to the bonus it paid

12 to Dr. Teitelman which Appellants claimed should have been paid by Hoorfar Dental. Thereafter,

the attorneys made closing arguments and the Court charged the jury. See N.T. 7/15/21.

While the jury was deliberating, Mr. Burns and Mr. Dudeck confirmed on the record an

agreement regarding the awarding of pre judgment interest and attorney's fees. N.T. 7/15/21, at

216-18. Specifically, they agreed that the Court would hold aseparate hearing to determine the

amount of pre judgment interest and/or attorney's fees to which any party was entitled based upon

the jury's verdict. The parties also stipulated that to the extent the Court awarded any pre judgment

interest, the proper date for that interest to begin to accrue would be December 1, 2018. N.T.

7/15/21, at 216-18.

After deliberations, the jury returned with averdict in favor of Appellees on their claim for

breach of the Promissory Note and awarded damages in the amount of $ 58,806.00. The jury also

entered averdict in favor of Dr. Hoorfar for his claim of breach of the PSA and awarded damages

of $ 10,360.00 on that claim. On Appellants' counterclaim for breach of contract relating to the

bonus paid to Dr. Teitelman, the jury found against Appellants. Similarly, the jury found against

the Appellants on their breach of contract counterclaim regarding monies expended to

repair/replace equipment and supplies.

Thereafter, on July 26, 2021, Appellants filed aMotion for Post-Trial Relief ("Post-Trial

Motion"). In that Post-Trial Motion, Appellants averred that the jury's verdict was against the

weight of the evidence with respect to Appellees' claim for breach of the PSA, Appellants'

counterclaim for breach of the APA regarding the equipment/supplies, and Appellants'

counterclaim for breach of the APA regarding Dr. Teitelman's bonus. See Post-Trial Motion at

3. Appellants also requested anew trial based upon various other purported errors on the part of

the Court. See id. at 4-5.

13 On October 21, 2021, Appellees filed their Petition for Interest, Costs and Fees pursuant to

the parties' agreement that the Court, rather than the jury, would decide whether any party should

be awarded interest, costs and/or attorneys' fees, and if applicable, the amount thereof. N.T.

7/13/21, at 62-65; see also N.T. 10/25/21, at 3-4. A hearing took place on October 25, 2021,

regarding the Petition for Interest, Costs and Fees. On November 5, 2021, the Court entered an

Order denying and dismissing Appellants' Post-Trial Motion. Furthermore, on November 9, 2021,

the Court granted Appellees' Petition for Interest, Costs and Fees and issued aDecision. The

Court awarded Appellees pre judgment interest and attorneys' fees for atotal molded award in

favor of Appellees in the amount of $95,948.94. On November 10, 2021, the prothonotary entered

judgment in favor of Appellees and against Appellants in the sum of $95, 948.94.

On December 10, 2021, aNotice of Appeal was filed by Appellants. On December 16,

2021, the Court entered an Order directing Appellants to file a Concise Statement of Errors

Complained of on Appeal within twenty-one (21) days from the filing date of this Order. On

January 7, 2022, Appellants filed [Appellants'] Concise Statement of Errors Complained of on

Appeal ("Concise Statement").

III. ISSUES RAISED ON APPEAL:

Appellants raise 13 issues on appeal. 6 Those issues are set forth below, verbatim:

1. Because the Jury's Verdict was against the weight of the evidence on this issue, Defendants respectfully submit that Your Honorable Court should have entered judgment notwithstanding the Verdict in favor of RG Dental Group of Richboro, LLC and against Mersad Hoorfar, DMD on his claim for breach of the Professional Services Agreement.

2. Alternatively, because Mersad Hoorfar, DMD's evidence in regard to his claim for breach of the Professional Services Agreement was insufficient on this issue, Your Honorable Court should have

6 These issues will be discussed in adifferent order below.

14 granted RG Dental Group of Richboro, LLC's motion for compulsory nonsuit on this claim at the close of Plaintiffs' case-in- chief.

3. Because the Jury's Verdict was against the weight of the evidence on this issue, Defendants respectfully submit that Your Honorable Court should have entered judgment notwithstanding the Verdict in favor of RG Dental Group of Richboro, LLC and Hoorfar Dental Group, LLC and Mersad Hoorfar, DMD for $ 11,500.00 on the Counterclaim claim for breach of the Asset Purchase Agreement with regard to the sale of the office equipment and/or supplies.

4. Because the Jury's Verdict was against the weight of the evidence on this issue, Defendants respectfully submit that Your Honorable Court should have entered judgment notwithstanding the Verdict in favor of RG Dental Group of Richboro, LLC and against Hoorfar Dental Group, LLC and Mersad Hoorfar, DMD for $ 19,775.91 on the Counterclaim for breach of the Asset Purchase Agreement with regard to the payment of Dr. Teitelman's bonus for services rendered prior to July 31, 2018.

5. Your Honorable Court should not have sustained Plaintiffs' Preliminary Objections to Count Iof Defendants' Counterclaim by way of its interlocutory Order entered May 14, 2019.

6. Your Honorable Court should not have granted Plaintiffs' Motion in Limine filed June 7, 2021.

7. Your Honorable Court should not have admitted, over Defendants' objection, Exhibit P11 and any testimony thereon.

8. Setting aside the reversible error committed by Your Honorable Court in re Plaintiff's Motion in Limine as set forth in paragraph 5 of this Statement, supra, Your Honorable Court should not have barred Defendants from proffering evidence to demonstrate Plaintiffs' breach of the Asset Purchase Agreement with respect to the sale of the accounts receivable.

9. Your Honorable Court committed reversible error in ruling that the accounts receivable report delivered to RG Dental Group of Richboro, LLC at the closing on July 31, 2019 was not part of the parties' contract.

10. Your Honorable Court should have admitted Exhibit D16 and any testimony thereon.

15 11. Your Honorable Court should not have granted, and should have removed, the compulsory nonsuit as to Defendants' claim for Plaintiffs' breach of the Asset Purchase Agreement.

12. Your Honorable Court should not have denied Defendants' motion for amistrial after opposing counsel's antics before the Jury in open court.

13. Your Honorable Court should have instructed the Jury on Defendants' requested points for charge numbers 1and 3.

IV. DISCUSSION:

A. The Trial Court Did Not Err or Abuse its Discretion When it Sustained Appellees' Preliminary Obiection to Count Iof Appellants' Counterclaim

Appellants claim that Judge Trauger erred when he sustained Appellees' preliminary

objection to Appellants' counterclaim for Misrepresentation and dismissed that counterclaim as

legally insufficient. Judge Trauger, however, properly dismissed Appellants' Misrepresentation

counterclaim based upon the Gist of the Action Doctrine. The Gist of the Action Doctrine prevents

an ordinary contract claim from being recast as atort claim. See Bruno v. Erie Ins. Co., 106 A.3d.

48, 68-69 (Pa. 2014) (explaining that the Gist of the Action Doctrine is concerned with whether

the essential foundation for alawsuit is based in tort or contract). In general terms, tort actions

are based upon breaches of duties imposed by law as amatter of social policy, while contract

actions are based on breaches of duties imposed by "mutual consensus agreements between

particular individuals." Bash v. Bell TeL Co., 601 A.2d 825, 829 (Pa. Super. 1992). Pennsylvania

Courts have previously recognized four circumstances where the Gist of the Action Doctrine will

properly bar aputative tort claim:

1. The Tort Claim arises solely from acontract between the parties;

2. The duties allegedly breached were created and grounded in the contract itself;

3. The liability stems from acontract; or

16 4. The tort claim essentially duplicates abreach of contract claim or the success of the tort claim is wholly dependent on the terms of acontract.

See eToll Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 19-21 (Pa. Super. 2002) (holding that

plaintiff's claims of fraudulent practices against the defendant were barred by the Gist of the

Action Doctrine since they either arose from the performance of the contractual relationship, or

were grounded therein, and, thus, "not so tangential to the parties' relationship so as to make fraud

the gist of the action," but rather, "inextricably intertwined with the contract claims").

In this case, Appellants failed to plead any averments in support of their Misrepresentation

counterclaim referencing aduty imposed upon Appellees as amatter of social policy. See Answer,

New Matter and Counterclaim. The only source of the parties' relationship is the written contract

between them. And in fact, all of the duties and obligations which Appellants pleaded in their

Answer, New Matter and Counterclaim were owed to Appellants are based upon and grounded in

those written agreements. See id.

For example, in Appellants' Answer, New Matter and Counterclaims, Appellants pleaded

that "[a]s consideration in, of and for the Purchase Price paid for the Practice, Defendants have

recently learned that prior to closing Plaintiffs misrepresented or failed to disclose ... [t]he true

nature of the accounts receivable upon which Plaintiffs make their claims for payment ...." Id.

at 5-6. With respect to their counterclaim for Misrepresentation specifically, Appellants

incorporated by reference the prior averments of their pleading and then pleaded as follows:

• Plaintiffs' above-stated pre-closing representations and/or non-disclosures were material to the sale of the accounts receivables.

• These representations were intentionally false, made with indifference as to whether they were true or false and/or should have been known to be false when made, was material in nature, and made with the intent to deceive and defraud the Defendants and to induce them to purchase the Practice's accounts receivable.

17 Defendants justifiably relied upon Plaintiffs' misrepresentations and were induced thereby to purchase the accounts receivable at the price stated in the Agreement.

Id. at 7-8.

Given the absence of any averments by Appellants that Appellees breached aduty that is

imposed as amatter of social policy and/or which falls outside the scope of the APA, the Gist of

the Action Doctrine properly applied to bar Appellants' Misrepresentation counterclaim.

Accordingly, Judge Trauger did not err in dismissing that claim as legally insufficient.

Additionally, this Misrepresentation counterclaim would properly be barred by the Parol

Evidence Rule insofar as it constitutes afraud-in-the-inducement claim relating to an integrated

contract.

Our Pennsylvania Supreme Court has explained the parol evidence rule as follows:

Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.

Yocca v. Pittsburg Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004) (citing to Gianni v. Russell

& Co., 126 A. 791, 792 (Pa. 1924)); see also Scott v. Bryn Mawr Arms, Inc., 312 A.2d 592, 594

(Pa. 1973). Once awriting is determined to be the parties' entire contract, the parol evidence rule

applies and evidence of any previous oral or written negotiations or agreements involving the same

subject matter as the contract is almost always inadmissible to explain or vary the terms of the

contract. See Robert T. Felte, Inc. v. White, 302 A.2d 347, 351 (Pa. 1973) (explaining that when

awritten contract is clear and unequivocal, its meaning must be determined by its contents alone).

18 Therefore, for the parol evidence rule to apply, there must be awriting that represents the

"entire contract between the parties." Gianni, 126 A. at 792. An integration clause which states

that awriting is meant to represent the parties' entire agreement is aclear sign that the writing is

meant to be just that and thereby expresses all of the parties' negotiations, conversations, and

agreements made prior to its execution. See HCB Contractors v. Liberty Place Hotel Assoc., 652

A.2d 1278, 1280 (Pa. 1995); see also Lenzi v. Hahnemann Univ., 664 A.2d 1375, 1379 (Pa. Super.

Ct. 1995); see also McGuire v. Schneider, 534 A.2d 115, 117 (Pa. Super. 1987), affd, 534 A.2d

115 (Pa. 1988) (explaining that a contract is integrated if it represents a final and complete

expression of the parties' agreement). "The effect of an integration clause is to make the parol

evidence rule particularly applicable. Thus, the written contract, if unambiguous, must be held to

express all of the negotiations, conversations, and agreements made prior to its execution, and

neither oral testimony, nor prior written agreements, or other writings, are admissible to explain

or vary the terms of the contract." 1726 Cherry St. Partnership v. Bell Atlantic Properties, Inc.,

653 A.2d 663, 665 (Pa. Super. 1995), appeal denied, 664 A.2d 976 (Pa. 1995).

It is well-settled that fraud-in-the-inducement claims may be barred if the contract at issue

is fully integrated. See Blumenstock v. Gibson, 811 A.2d 1029, 1035 (Pa. Super. 2002) ("[F]raud

-in-the-inducement claims are commonly barred if the contract at issue is fully litigated"); see e.g.

Hart v. Arnold, 884 A.2d 316, 340 (Pa. Super 2005) (holding that appellant's fraud-in-the

inducement claim was barred where appellant signed an integrated contract containing terms

arguably conflicting with the alleged fraudulent misrepresentation). The rationale for this rule of

law is that aparty cannot justifiably rely upon prior oral representations and then sign acontract

containing terms that refute the alleged prior oral representations. See Blumenstock, 811 A.2d at

1036. Thus, when "prior fraudulent oral misrepresentations are alleged regarding asubject that

19 was specifically dealt with in awritten contract, the party alleging such representations must, under

the parol evidence rule, also aver that the representations were fraudulently or by accident or

mistake omitted from the integrated written contact." HCB Contractors, 652 A.2d at 1279; see

also Yocca, 854 A.2d at 437 n.26 (holding that where acontract is integrated, "parol evidence may

not be admitted based on aclaim that there was fraud in the inducement of the contract, i.e., that

an opposing party made false representations that induced the complaining party to agree to the

contract"). "To require less would make amockery of the parol evidence rule because all aparty

would have to do to avoid, modify or nullify [acontract] would be to aver that false representations

were ` fraudulently' made." Nicolella v. Palmer, 248 A.2d 20, 23 ( 1968).

In this case, it is undisputed that the APA has an integration clause. See Complaint, Exhibit

A, 117.7. Notably, Appellants did not deny in their Answer, New Matter and Counterclaim that

Exhibit A attached to the Complaint is an integrated contract between them. See Answer, New

Matter and Counterclaim at 2. Rather, in responding to that particular averment in the Complaint,

Appellants merely clarify, consistent with the language in the APA, that Ms. Gatsch and Dr.

Rakawsky entered into the APA as agents for "an entity to be formed and owned by [them]." See

id. Additionally, Appellants themselves specifically make reference to the APA and provisions

thereof in support of their own counterclaims. See id. at 5-8.

Further, as discussed above, the alleged misrepresentations on the part of Appellees which

form the basis for Appellants' Misrepresentation counterclaim relate to a subject that was

specifically addressed in the APA (sale/purchase of Hoorfar Dental's accounts receivable).

Importantly, Appellants did not plead that specific language was omitted from the parties'

integrated contract by mistake or through fraud. See Answer, New Matter and Counterclaim.

Rather, Appellants only pleaded that they relied upon prior representations that they later claimed

20 Vj

turned out to be false. See id., at 7-8. This is exactly the scenario contemplated by the Parol U = Q O

ao U l0

Evidence Rule. See Blumenstock, 811 A.2d at 1036 (explaining aparty cannot justifiably rely

o t• upon prior oral representations and then sign acontract containing terms that refute the alleged •a

o prior oral representations). Accordingly, Appellants' fraud-in-the-inducement counterclaim also Qg w would have been properly dismissed by Judge Trauger. 3 =' T ` B. The Trial Court Did Not Err or Abuse its Discretion When it Granted o a Appellees 'Motion in Limine and Barred the Introduction of Parol Evidence

ti Next, Appellants contend that the Court erred and/or abused its discretion by granting wa

w Appellees' Motion in Limine because there was an ambiguity in the APA. One exception to the

general rule is that parol evidence may be introduced to explain or clarify or resolve the

0 ambiguity. See Estate of Herr, 161 A.2d 32, 34 (Pa. 1960); see also Waldman v. Shoemaker, 80 oa g A.2d 776, 778 (Pa. 1951). There are two types of ambiguities which may permit the introduction

LZ of parol evidence - patent ambiguity and latent ambiguity. See In re Estate ofSchultheis, 747 a a

N A.2d 918, 923 (Pa. Super. Ct. 2000). A patent ambiguity appears on the face of the document N _

C C 73 o o N N and is aresult of defective or obscure language. Id. A latent ambiguity arises from collateral V

oa facts that make the meaning of awritten document uncertain, although the language appears

T clear on the face of the contract. Id. To determine the existence of ambiguity, acourt may o Q

Y consider "the words of the contract, the alternative meaning suggested by counsel, and the nature g• m• oa of the objective evidence to be offered in support of that meaning." Mellon Bank N.A. v. Aetna

O • Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir. 1980). The disagreement of the parties mU •ai ip regarding the proper construction of an agreement, however, does not alone render an agreement •• N

Cq = ambiguous. Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 93 (3d Cir. •a po 0 2001) (summarizing Pennsylvania contract law on latent ambiguity). o m co P. m O a " G

NR= a 21 y j

3 W Additionally, Pennsylvania law makes clear that "aclaim of latent ambiguity must be based

on a ` contractual hook;' the proffered extrinsic evidence must support an alternative meaning of a

specific term or terms contained in the contract, rather than simply support ageneral claim that the

parties meant something other than what the contract says on its face." Id. at 96. "Furthermore, a

proffered alternative meaning for the contractual hook must be reasonable; that is, it must be

supported by contractual evidence that goes beyond the party's claim that the contractual hook has

acertain meaning, and the interpretation cannot contradict the standard meaning of aterm when

the parties could have easily used another term to convey this contradictory meaning." Id. "A

party may use extrinsic evidence to support its claim of latent ambiguity, but this evidence must

show that some specific term or terms in the contract are ambiguous; it cannot simply show that

the parties intended something different that was not incorporated into the contract." Id. at 93.

Here, there is no dispute that the APA is an integrated contract and was to represent the

parties' entire agreement including as relating to the sale/purchase of the accounts receivable.

Indeed, Appellants admitted this in their Response to Motion in Limine and Mr. Dudeck

conceded this during oral argument. See Response to Motion in Limine at 19; see also N.T.

7/13/21, at 27-28. There also was no dispute that the only basis on which Appellants argued that

the Parol Evidence Rule did not apply was apurported ambiguity in the APA. N.T. 7/13/21, at

28-33. In fact, Mr. Dudeck clarified on the record during oral argument that his client was not

averring any type of mistake or misrepresentation.' N.T. 7/13/21, at 28-33.

Specifically, Mr. Dudeck argued that the following language in Exhibit B to the APA is

ambiguous: "for aprice equal to the aggregate amount of such receivables that are no more than

7 Although notably, Appellants later sought to pursue abreach of contract counterclaim at trial based upon apurported misrepresentation relating to this same subject area of the APA (i.e., valuation of the accounts receivable). See Section IV(C), infra.

22 ninety (90) days old multiplied by seventy cents ($.70)." N.T. 7/13/21, at 23. He explained that

after the Closing Date, Ms. Gatsch came to learn that the aggregate amount of accounts

receivable "didn't account for all the insurance write offs." N.T. 7/13/21, at 24. In other words,

her interpretation was that the "aggregate amount" meant "aggregate amount of what you can

collect." N.T. 7/13/21, at 26. He argued that this was areasonable interpretation as was Dr.

Hoorfar's interpretation that "aggregate amount" simply meant the amount owed "regardless of

what insurance would actually pay on it under the contract with the dental practice." N.T.

7/13/21, at 33. Mr. Dudeck reasoned that because both interpretations were reasonable, an

ambiguity existed, and thus parol evidence could not be barred. This Court disagrees.

First, the Court notes Mr. Dudeck's representation that his client realized there were two

different interpretations when she began to collect on the accounts receivable. Obviously, she

was then aware of this purported difference when she filed her Answer, New Matter and

Counterclaim. And yet, during discovery, she did not take the position that the APA was

ambiguous. For example, as Mr. Burns pointed out during oral argument, in response to

Appellees' Interrogatory No. 19, Appellants objected but also responded as follows: "By way of

further response, Defendants do not claim that any material term of the parties' asset purchase

agreement is ambiguous." N.T. 7/13/21, at 20 (emphasis added). Similarly, when asked at her

deposition if there was any portion of any of the agreements that she believed was ambiguous,

Ms. Gatsch testified as follows: "No." N.T. 7/13/21, at 20. In this regard, Ms. Gatsch has

conceded that there is no ambiguity.

Additionally, Appellants failed to offer any objective evidence to support Ms. Gatsch's

interpretation. Instead, all that was offered was her self-serving subjective interpretation of the

23 APA. Indeed, Appellants did not even provide an offer of proof as to Dr. Rakawsky's

interpretation.

Furthermore, the interpretation offered by Ms. Gatsch is completely at odds with the plain

meaning of the language at issue. Mr. Dudeck identified the purportedly ambiguous term to be

"aggregate amount." N.T. 7/13/21, at 32-33. Webster's Dictionary defines aggregate as: "formed

by adding to or more amount together: total." See Webster's Dictionary. Black's Law Dictionary

defines the term aggregate as "composed of several." See Aggregate, BLACK'S LAW DICTIONARY

65 (6th ed. 1990). According to Mr. Dudeck, however, Ms. Gatsch interpreted this term, to mean

essentially "aggregate amount that is collectible" or "aggregate amount taking into account that

insurance companies were paying." N.T. 7/13/21, at 23-35. To accept such interpretations would

require this Court to ignore the plain language of the APA and to add language that either party

could have requested and included if they wanted to do so. Indeed, Dr. Hoorfar and Ms. Gatsch

are sophisticated individuals. Ms. Gatsch and Dr. Hoorfar both testified at trial about their prior

experiences with sales of dental practices. See N.T. 7/13/21, at 112-124; see also N.T. 7/14/21, at

93-97. And, in fact, Ms. Gatsch testified to her extensive experience in the dental field, including

working for many years with alarge DSO. N.T. 7/14/21, at 93-97; see also N.T. 7/15/21, at 32-

33. Additionally, both Appellants and Appellees were represented by counsel during the

negotiations and sale of this dental practice.

Moreover, Exhibit B to the PSA itself explicitly provided Appellants the opportunity to

seek more detail upon receipt of the written accounts receivable aging report. See APA, Exhibit

B. Mr. Dudeck conceded during oral argument, however, that his clients simply did not take

advantage of this opportunity. N.T. 7/13/21, at 22-27.

24 Vj

yim a U G Finally, it is important to note that ultimately Appellants signed aPromissory Note U Q O U l0

pursuant to which they agreed that the debt owed to Hoorfar Dental for the Practice Accounts a• G

w• o= Receivable was $78,080.00. See Amendment to APA, Exhibit F. Indeed, after the parties •a Q c O U calculated the Practice Accounts Receivable pursuant to the agreed upon formula in Exhibit B to 00 w G the APA based upon the information contained in the written accounts receivable aging report 3 =' yc provided by Appellees to Appellants on the Closing Date, they came up with afigure of Q• oa $78,080.00. That figure was then transferred to the Promissory Note which Appellants signed. N U

wa And, notably, Appellants did not argue nor claim that there was any term in the Promissory Note a w• •c that was ambiguous. U • O For all the forgoing reasons, Appellants did not demonstrate any ambiguity, patent or

latent, in the APA (including Exhibit B attached thereto), regarding the calculation of the value oa c E9 U 01 of the Practice Accounts Receivable. Accordingly, the Court properly granted the Motion in II

L a a Limine, 0• O. N • N yG C\1 I? C. The Trial Court Did Not Err or Abuse its Discretion When it Barred Appellants From Proffering Evidence Relating to Their Counterclaim for No V 00

Breach of the Asset Purchase Agreement With Respect to the Sale of the o oa Accounts Receivable w m o =• w m o¢ a Appellants also complain that the Court erred or abused its discretion when it precluded

U y.. 73o them from introducing certain documents and testimony at trial which they proffered as evidence m h oa

of their breach of contract counterclaim relating to the accounts receivable. With respect to that U_o N mU a particular counterclaim, Appellants sought to prove that Appellees had made amisrepresentation 13) c U •

N regarding the value of the Practice Accounts Receivable thereby breaching the APA.' During C\1 G

Q a N

C) o • • o

'Interestingly, during oral argument on the Motion in Limine, Mr. Dudeck represented to the O G a Court that there was neither amistake nor fraud involved. N.T. 7/13/21, at 27-28. U

N R Q a 25 y j

U W Vj

Mr. Dudeck's opening statement, however, it became apparent that Appellants intended to prove U G Q O U l0

this purported breach through the introduction of evidence that would vary, explain or contradict a• G

o the terms of this integrated agreement. When Mr. Burns objected to Mr. Dudeck's reference to •a

: such evidence during his opening statement, the following exchange occurred at sidebar: 00

w MR. DUDECK: Iam trying to tell the jury what the evidence will present in terms 3 of the breach after the contract. Iam not talking about any parol 02) evidence in terms of any prior contemporaneous negotiations about oa what she thought the $ 78,000.00 represented. She paid $ 78,000.00 for accounts receivable that were supposed to be worth 111. And y when she goes to collect on them, they are worth about 10 wa thousand. That's abreach, Your Honor. a w• CO Z COURT: Hold on asecond. What evidence do you intend to introduce to support that breach, that alleged breach?

MR. DUDECK: Your Honor, Ms. Gatsch is going to testify. And she's going to o a authenticate emails to Dr. Hoorfar showing how many of those g accounts receivable 0-90 days had to be written off, each one of those, because of the insurance contracts. That's the evidence of the breach. a a N COURT: Well, are we not putting the rabbit in the hat? So you are going to introduce evidence to attempt this is aquestion — to attempt to show the jury that the value that she got was something other than 78 thousand? o G oa m MR. DUDECK: Exactly. It was something different, Your Honor. So now she's o being asked to pay $ 78,000.00 for something that was only worth Q 10 because of the representations regarding it, and that has nothing y to do with parol evidence. That's abreach. U y..

ma 0 0 COURT: How are you going to introduce evidence regarding value if Ihave ruled that no parol evidence is coming in? 0 Uy

a MR. DUDECK: Because parol evidence is an effort to try to change the terms of the contract based upon prior or contemporaneous written or oral h outside of the contract. We are not doing that. We are going to Z show that he said that the value was 111 but that when she actually 0 o went to collect on these, the value was far less because it included all of these. He didn't include all the insurance write-offs. So that's the breach, Your Honor, and that's after. That's not trying to change the contract. O a " G

N4°' a 26 y j

U W COURT: Hold on asecond. Does the contract say that the value is 111 or does the contract say that's the calculation of the aggregate accounts receivable?

MR. DUDECK: It says it's the aggregate amount of the accounts receivable.

COURT: So you are going to introduce evidence that that's not the aggregate amount?

MR. DUDECK: Exactly, Your Honor.

N.T. 7/13/21, at 92-94. Thereafter, the Court dismissed the jury and took ashort break. After

the break and before the jury returned to the courtroom, the Court asked Mr. Dudeck to identify

the specific evidence he sought to introduce at trial in support of this particular breach of contract

theory. Mr. Dudeck identified various emails between the parties — some exchanged prior to the

Closing Date and some exchanged after the Closing Date. All of the emails related to the

accounts receivable. N.T. 7/13/21, at 105-10.

Mr. Burns objected to the introduction of such evidence on the grounds that it constituted

parol evidence and the Court had already ruled that all parol evidence was barred. Mr. Dudeck

again argued that he was not introducing the evidence to vary or alter the terms of the APA but

in support of his breach of contract counterclaim regarding the accounts receivable, and

specifically to prove abreach and damages flowing from that breach. N.T. 7/13/21, at 105-10.

It is well settled that in order to prove aclaim for breach of contract, aplaintiff must

adduce evidence sufficient to establish, by apreponderance of the evidence, the following

elements: ( 1) the existence of acontract, including its essential terms; (2) abreach of the

contract; and, (3) resultant damages. See Kelly v. Carman Corp., 229 A.3d 634, 653 (Pa. Super.

2020). It is also well settled that before acontract can be found, all of the essential elements of

27 the contract must exist. See Cardinale v. R. E. Gas Dev. LLC, 74 A.3d 136, 140 (Pa. Super.

2013) (citations omitted).

In this case, Mr. Dudeck sought to introduce evidence that would vary, explain and/or

contradict the parties' integrated agreement under the guise of pursuing abreach of contract

claim. Specifically, Appellants sought to prove that Appellees breached the PSA when they sold

approximately $ 111,000.00 of accounts receivable for $78,080.00 and Ms. Gatsch was not able

to collect on all of the accounts receivable and had to write off some amounts. In order for

Appellants to establish abreach, however, they first needed to demonstrate to the jury that the

parties actually had come to ameeting of the minds that Appellants would be sold approximately

$111,000.00 worth of "collectible" accounts receivable for $78,080.00. The Court's ruling on

the Motion in Limine, however, precluded the jury from being able to find such breach. In ruling

on the Motion in Limine, the Court determined that the term "aggregate amount" was not

ambiguous, meant that which is reflected by its plain language, and did not mean the aggregate

amount of "collectible" accounts receivable. N.T. 7/13/21, at 38-40. Consequently, the evidence

Appellants sought to introduce was not probative of any breach on the part of Appellees, and,

thus irrelevant. See Pa.R.E. 401. Accordingly, the Court properly precluded Appellants from

introducing it.

Furthermore, Appellants waived this claim of amisrepresentation as the basis for a

breach during oral argument on the Motion in Limine. A review of the Answer, New Matter and

Counterclaim reveals that this particular counterclaim is premised on apurported

misrepresentation on the part of the Appellants regarding the value of the Practice Accounts

Receivable. See Answer, New Matter and Counterclaim. Indeed, subsequent to pleading aclaim

for Misrepresentation (Count I), Appellants pleaded aBreach of Contract claim (in the

28 Vj

alternative), and in support of that claim, incorporated their prior averments and set forth only U Q O U l0

the following three additional averments: a•G

o • In the alternative, and to the extent that Plaintiffs' representations arise out of or =a O G are subsumed by the Agreement, Defendants plead this claim for breach of contract A0 in the alternative to the claim for misrepresentation. Qg 0 • Plaintiffs' conduct as aforesaid constituted material breaches of the Agreement. 3 :-,

Ta Z • As a direct and proximate result of these material breaches, Defendants have g suffered and, upon information and belief, will continue to suffer damages in excess of $ 50,000.00. N U

wa w Id., Count 1I. At trial, Mr. Dudeck represented that the breach was based upon apurported

misrepresentation. First, in responding to the objection to comments made during Mr. Dudeck's

opening statement, Mr. Dudeck at one point stated as follows: "This aggregate amount was a da C breach because it misrepresented the aggregate amount." N.T. 7/13/21, at 94. Mr. Dudeck

L confirmed this position during another sidebar which occurred during the direct testimony of Ms. a a m o Gatsch: 9 N N "'_"

N 00 COURT: How are they going to determine whether there was a misrepresentation? o G oa m (2 MR. DUDECK: Not misrepresentation, Your Honor, abreach. A breach. o =• oa COURT: But you are trying through the lens of abreach to argue that what a` Q he gave her was inaccurate? Right? U y..

oa MR. DUDECK: Correct.

N COURT: Okay. But that's amisrepresentation. mU

MR. DUDECK: Well, it could be that he was, yes, it's amisrepresentation. But it's h abreach based on the misrepresentation.

•a 0 9The specific question asked by Mr. Dudeck of Ms. Gatsch which caused Mr. Burns to object co 6 and the Court to hold asidebar was as follows: "What were you being represented in terms of the to accounts receivables that you were purchasing? N.T. 7/14/21, at 117. a

NR= a 29 y j

a yim U = N.T. 7/14/21, at 120. U Q O U l0

Importantly, however, earlier during oral argument on the Motion in Limine, Appellants, a•G w• o= through Mr. Dudeck, had represented to the Court that they did not seek to introduce any •a Q c 0 U evidence regarding the accounts receivables based upon any fraud, but rather, based solely upon 00 Q= w= apurported ambiguity in the APA. N.T. 7/13/21, at 27-28. 10 In this regard, Appellants also 3 =' CO c waived this argument that the evidence should come in to prove a "breach based on the Q• oa misrepresentation." N.T. 7/14/21, at 120. N U

wa D. The Trial Court Did Not Err or Abuse its Discretion When it Admitted Exhibit a w• P1 and Anv Testimonv Thereon

U Appellants further complain that the Court erred and/or abused its discretion when it • O G

N f0 admitted Exhibit P-11 into evidence. During the testimony of Dr. Hoorfar, Mr. Burns marked

oa G E9 U Exhibit P-11 for identification purposes and presented it to Dr. Hoorfar. Dr. Hoorfar identified II 01

L Exhibit P-11 as an aging report he ran for the dental services that he had provided to RG Dental a a 00 o • after the Closing Date. N.T. 7/13/21, at 148-49. Mr. Burns then moved Exhibit P-11 into evidence N N _

o C N

. -11 0 0

o oa to During oral argument, the following exchange occurred:

w m o =• COURT: Is it your position that parol evidence should come in because there's aterm in this contract that's ambiguous? o¢ a o 4- U 73 MR. DUDECK: Yes, Your Honor. m h oa COURT: Is that the only basis or is it also your position that there was either U_o N amistake and/or fraud involved? mU a 13) c MR. DUDECK: No, Your Honor. U •

N

COURT: So we are just talking about ambiguity? Qa C) o • • o MR. DUDECK: Yes, Your Honor.

—m O a " G N.T. 7/13/21, at 27-28. a

N R Q a 30 y j

U W and Mr. Dudeck objected. When asked for the basis of the objection, Mr. Dudeck advised that he

had "several" objections. As aresult, the Court asked the attorneys to come to sidebar. At sidebar,

Mr. Dudeck advised that he objected on the grounds of relevance because the end date of the date

range identified on the report (8/1/2018 — 6/3/2021) was several months after everyone agreed Dr.

Hoorfar had stopped providing dental services to the patients of RG Dental. As of that time,

however, Dr. Hoorfar had already testified as to the time period when he provided dental services.

N.T. 7/13/21, at 129-31, 140-44. Further, Mr. Burns responded that the end date identified on the

report was the date the report was generated and otherwise the report was the same as that which

existed on the date Dr. Hoorfar left the office. N.T. 7/13/21, at 149. He further confirmed that his

client would be testifying as to the period of time to which Exhibit P-11 applied as relating to the

dates when he actually performed the services. 7/13/21, at 150.

Mr. Dudeck then identified his second relevance objection arguing that the document does

not have any reference to labs and the agreement between the parties was that Dr. Hoorfar would

be paid 40 gross collection receipts less 40 percent of labs. Mr. Dudeck also made aBest Evidence

objection on the same grounds.

Relevance is athreshold consideration in determining the admissibility of evidence. See

Pa.R.E. 401 (evidence is relevant if: a) it has any tendency to make afact more or less probable

than it would be without the evidence; and b) the fact is of consequence in determining the action).

A trial court may, however, properly exclude evidence if its probative value is outweighed by the

danger of unfair prejudice or confusion of or misleading the jury. See Pa.R.E. 403 (the court may

exclude relevant evidence if its probative value is outweighed by adanger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,

or needlessly presenting cumulative evidence); see also Vetter v. Miller, 157 A.3d 943, 949 (Pa.

31 Vj

yim a U G U Super. 2018) (explaining that generally, for the purposes of this evidentiary rule, "prejudice" means Q O U l0

an undue tendency to suggest adecision on an improper basis). a• G

w• o= In this case, the undersigned properly determined that Exhibit P-11 was relevant to the •a Q c counterclaim being asserted by Dr. Hoorfar against Appellants for their breach of the APA, and O U

00 w G specifically, probative of their obligations to pay him for dental services to be provided to him 3 =' yc m Q• consistent with ¶ 14 (Professional Service Agreement), and Exhibit E. The undersigned did not oa find that this probative value was outweighed by any risk of danger of unfair prejudice, or N U

wa confusion or misleading of the jury. Indeed, just because there was no reference to any labs on the a w• •c document did not mean that there were any labs actually associated with these particular services. U • O

In fact, at no point in time did any party introduce any evidence of any particular labs that would

oa properly have been deducted from the 40 percent of gross collection receipts attributed to Dr. c E9 U II 01 Hoorfar's dental services for which he was not paid. • • L a a 0• Furthermore, Dr. Hoorfar testified both before and after the admission of Exhibit P-11 that O. N N yG

o the document did not reference any labs or any deduction from the 40 percent of gross collection . -11 0 0

o receipts attributed to the dental services he provided after the Closing Date. N.T. 7/14/21, at 69- G oa m m 71. Thus, the jury not only heard during the trial what the formula was that applied to calculate o =• w m o¢ amounts to be paid to Dr. Hoorfar for dental services provided by him under the PSA, which a• U y.. 73o document itself was admitted into evidence, but also heard from Dr. Hoorfar that Exhibit P-11 did m h oa

not reference any labs or deduction of any amounts for labs. N.T. 7/14/21, at 69-71. U_o N mU a 13) c U •

N C\J G

Qa N

C) o • • o ' As discussed, infra, Ms. Gatsch testified that she reduced her calculation of what was owed to O 00 m Dr. Hoorfar for dental services provided by him by $ 1,961.20 in "lab fees." N.T. 7/15/21, at 28. However, Ms. Gatsch offered no evidence of the labs for which she calculated this figure (e.g., a (mouth guard fabrication for patient X, implants for patient Y). a N Q 32 R a y j

U W Moreover, to the extent that Appellants still believed there was any possible confusion on

the part of the jury as to how the compensation for Dr. Hoorfar was to be calculated given the

absence of any labs referenced on Exhibit P-11, this was something that Mr. Dudeck could easily

address through the testimony of his client and/or on cross-examination of Dr. Hoorfar.

The admission of Exhibit P-11 also did not violate the Best Evidence Rule.

[The Best Evidence] rule requires a party who seeks to prove a writing for the purpose of establishing its terms to produce the writing unless the nonfeasability of production is satisfactorily established. Warren v. Mosites Construction Co., 253 Pa.Super. 395, 385 A.2d 397 ( 1978). Application of the rule is limited to those situations where the contents of the document are at issue and must be proved to make acase or provide adefense. Mars v. Meadville Telephone Co., 344 Pa. 29, 23 A.2d 856 ( 1942); Perry v. Ryback, 302 Pa. 559, 153 A. 770 ( 1931); Ragnar Benson, Inc. v. Bethel Mart Associates, 308 Pa.Super. 405, 454 A.2d 599 ( 1982); Warren v. Mosites Construction Co., supra. Where the contents of adocument are merely evidence of, rather than material to, issues in the case the rule is inapplicable. Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 ( 1983).

Hamill-Quinlan, Inc. v. Fisher, 591 A.2d 309, 310 (Pa. Super. 199 1)

Here, the document which is the Best Evidence of the agreement between Appellants and

Dr. Hoorfar regarding the dental services he was to provide after the Closing Date and the formula

by which his compensation was to be calculated is the APA and Exhibit E (the PSA). Prior to

Exhibit P-11 being marked for identification, the APA, including Exhibit E, had already been

marked and moved into evidence. See Exhibits P-2 and P-6. Thus, the Best Evidence Rule would

not be implicated in this case insofar as the Best Evidence already had been admitted, and further,

Exhibit P-11 was merely evidence of Dr. Hoorfar's claim for breach of the Professional Services

Agreement. See Hamill-Quinlan, 591 A.3d at 310.

For all of the foregoing reasons, the Court properly overruled Appellants' objections and

admitted Exhibit P-11.

33 E. The Trial Court Did Not Err or Abuse its Discretion When it Denied Appellants 'Motion for Compulsory Nonsuit as to Appellees' Claim for Breach of the Professional Services Agreement

Appellants also take issue with the Court's decision to deny their motion for compulsory

nonsuit as to Appellees' claim for breach of the PSA. A motion for compulsory nonsuit allows a

defendant to test the sufficiency of aplaintiffs evidence and may be entered only in cases where

it is clear that the plaintiff has not adduced sufficient evidence to establish all of the elements

necessary to maintain acause of action. See Pa.R.C.P. No. 230.1. In deciding the motion, acourt

may consider only evidence introduced by the plaintiff and any evidence favorable to the plaintiff

that has been introduced by any defendant prior to the close of the plaintiff's case. Additionally,

atrial court must give the plaintiff the benefit of all reasonable inferences arising from the evidence

presented and must resolve any conflict in favor of the plaintiff. See id.; see also Bugosh v. Allen

Refractories Co., 932 A.2d 901, 913 (Pa. Super. 2007) (citing Rachlin v. Edmison, 813 A.2d 862,

868 (Pa. Super. 2002) ( en banc) ( quoting Parker v. Freilich, 803 A.2d 738, 744 (Pa. Super. 2002),

appeal denied, 573 Pa. 659, 820 A.2d 162 (Pa. 2003)). Importantly, "if the trial court denies the

motion for compulsory nonsuit and the moving defendant proceeds with his/her defense, then the

court's ruling is not appealable, and the issue must be renewed during the post-trial phase as a

request for judgment n.o.v." Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., 933

A.2d 664, 668 (Pa. Super. 2007), appeal denied, 947 A.2d 737 (Pa. 2008).

In this case, at the close of Appellees' case-in- chief, Mr. Dudeck moved for acompulsory

nonsuit on Dr. Hoorfar's claim that Appellants had breached the PSA when they failed to pay him

for dental services provided after the Closing Date. N.T. 7/14/21, at 79. Both attorneys made

argument and the undersigned denied the motion finding that there was sufficient evidence

introduced for the claim to go to the jury.

34 Thereafter, Mr. Dudeck introduced evidence in defense of this and Appellees' other breach

of contract claims and in support of Appellants' own breach of contract counterclaims. For

example, in defense of Appellees' claim for breach of the PSA, Mr. Dudeck marked acopy of the

PSA as Exhibit D-3, moved that document into evidence, and then proceeded to question Ms.

Gatsch about its terms. N.T. 7/14/21, at 107. Mr. Dudeck also questioned Ms. Gatsch about how

compensation for Dr. Hoorfar was to be calculated under the PSA. N.T. 7/14/21, at 109-10. Mr.

Dudeck also marked areport showing the total collections brought in for Dr. Hoorfar's services

after the Closing Date as Exhibit D-12, moved Exhibit D-12 into evidence, and after it was

admitted, questioned Ms. Gatsch on that document. N.T. 7/15/21, at 25-26. Ms. Gatsch testified

that she ran the report to "calculate Dr. Hoorfar's payroll." N.T. 7/15/21, at 27. She also testified

as to how she came to the figure she agrees is owed to Dr. Hoorfar for his services under the PSA.

N.T. 7/15/21, at 27-28.

Once Appellants decided to move forward with adefense on Dr. Hoorfar's claim for breach

of the PSA, the Court's decision on Appellees' motion for compulsory nonsuit became moot.

Therefore, it is not properly the subject of this appeal. See Northeast Fence, 933 A.2d at 668; see

also F. W. Wise Gas Co. v. Beech C.R. Co., 263 A.2d 313, 315 (Pa. 1970) (holding that where

defendant chose to present a defense after court denied defendant's motion for nonsuit, the

correctness of the court's ruling on the nonsuit became moot and the issue of whether the claim

was properly submitted to the jury was not properly before the appellate court).

Also, even if Appellants had not presented adefense and this issue was properly before the

Superior Court, it still lacks merit insofar as Appellees introduced sufficient evidence in their case-

in-chief for this claim to go to the jury. For example, Dr. Hoorfar introduced evidence of the PSA

between him and Appellees. See Exhibit P-2. He also testified to the following:

35 • He provided services under the PSA after the Closing Date. • He provided those services for approximately three months until sometime in December 2018. • At some point Appellees stopped paying him for those services. • He was entitled to 40 percent of net collections and that he was able to access information to show him what that figure would be for which he was not paid. • Exhibit P-11 was an aging report that he ran for the work he had done after the Closing Date. • He calculated the amount owed to him for the services for which he was not paid under the PSA as $ 10,360.50.

N.T. 7/13/21, at 142, 145-48, 152.

Based upon the foregoing, Appellants made out aprimafacie claim for breach of the PSA.

Accordingly, the Court properly denied Appellants' motion for a compulsory nonsuit and

permitted the claim to go to the jury.

F. The Trial Court Did Not Err or Abuse its Discretion When it Ruled that the Written Accounts Receivable Aging Report was Not Part of the Parties' Contract

Appellants also complain that the Court committed error and/or abused its discretion

when it ruled that the written accounts receivable aging report provided to Appellants on the

Closing Date was not part of the parties' integrated contract. At the beginning of day two, in the

context of discussing Appellees' proposed point for charge No. 2, Appellants took the position

that the written accounts receivable aging report which was provided to Appellants at closing and

used to calculate the $78,080.00 figure in the Promissory Note was actually part of the parties'

contract. N.T. 7/14/21, at 4-10. Mr. Burns opposed this position and argued that it was another

attempt by Appellants to introduce parol evidence. N.T. 7/14/21, at 8-10. Mr. Burns represented

to the Court that the contract between the parties included only the APA, Amendment to APA,

Promissory Note and the exhibits attached to those documents (including the signed PSA). N.T.

7/14/21, 90-91. The Court took the issue under advisement and gave Mr. Dudeck an opportunity

36 Vj

yim a U G U to present legal authority in support of his position that the document, which was not attached as Q O U l0 zz an exhibit to any of the agreements signed by the parties, constituted part of the parties' contract. 0-

N.T. 7/14/21, at 9-10. In response to that offer, Mr. Dudeck later provided the Court with the Q c case of Estate ofSinclar v. Levin, 38 Pa. D & C. 5th 319 (Phila. Ct. Com. Pl. 2014), affd, 122 O U

00 w G A.3d 1127 (Pa. Super. 2015) and pointed the Court to the following language contained therein: 3 =' yc m Q• "A written contract may consist of several signed and unsigned writings if one of the writings is oa signed and: 1) the signed writing is physically attached to the unsigned writing; 2) the signed N U

wa a writing refers explicitly to impliedly to the unsigned writing; or 3) based on examination of all w• •c the writings, the signed writing was signed with reference to the unsigned writings." Estate of U • O G Sinclar, 38 Pa. D. & C. 5th at 324 (emphasis added). While the authority provided by Mr.

oa Dudeck is an accurate statement of the law, the Court found it did not apply in this case. c E9 U II 01 First, it is undisputed that the written accounts receivable aging report was not physically L a a 0• attached to any writing. Indeed, although the APA and the Amendment to APA had exhibits ( . N • N yG

o attached to them, this was not one of them. . C- 11 0 0

V o Second, there is no signed writing between the parties which explicitly or impliedly refers G oa m m to any unsigned writing between the parties. Although Exhibit B to the APA does reference that o =• w m o¢ Hoorfar Dental would provide Appellants with "awritten accounts receivable aging report," that a• U y.. 73o document was not an "unsigned writing between the parties." Unlike in the Sinclar case, the m h oa

document at issue is not an unsigned promissory note. Indeed, it was not an agreement, U_o N mU a instrument, or for that matter, even an email between the parties. Rather, Exhibit B to the APA 13) c U •

N made reference only to adocument that would be generated from software to show what the C\1 G

Qa o• N

receivables were for aparticular period of time. Furthermore, this particular document could not • • o

—m O G a U

N Q 37 R a y j

U W and did not exist until July 31, 2018. Thus, it could not be referred to, explicitly or implicitly, in

the APA.

Third, the APA was not signed with reference to an unsigned writing. Again, the

document at issue was not a "writing" between the parties but merely acomputer printout. And,

again, it did not and could not exist until July 31, 2018. Consequently, the parties could not have

relied upon or considered its contents when they signed the APA on June 14, 2018.

Moreover, accepting Appellants' position that the July 31, 2018 written accounts

receivable aging report was part of the parties' contract would have required the Court to ignore

the clear intent of the parties as evidenced by the written agreements between them. It is firmly

settled that the intent of the parties to awritten contract is contained in the writing itself.

Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa. Super. 1993), appeal denied, 637 A.2d 287

(1993). "It is the intention of the parties which is the ultimate guide, and, in order to ascertain

that intention, the Court may take into consideration the surrounding circumstances, the situation

of the parties, the objects they apparently have in view, and the nature of the subject-matter of

the agreement." In re Estate of Quick, 905 A.2d 471, 474-475 (2006) (quoting Hindman v.

Farren, 44 A.2d 241, 242 ( 1994)) (emphasis omitted).

Here, the parties entered into the APA on June 14, 2018. The APA included an

integration clause which states as follows: "This Agreement and the exhibits hereto contain the

final and entire agreement between the parties and shall not be bound by any terms, conditions or

representations not contained herein." See APA at ¶ 17.7. The APA also provided that the

"Agreement may not be modified, amended, altered, supplemented, or canceled except pursuant

to the terms of an instrument in writing signed by the parties hereto." Id. at 117.9.

38 Vj

yim a U G U Pursuant to ¶ 17.9, the parties did enter into and signed an Amendment to APA on July Q O U l0

31, 2018. That document made reference to the manner and method by which RG Dental was to a• G

w• o= pay Hoorfar Dental and Dr. Hoorfar for the Practice Accounts Receivable. See Exhibit P-4. It •a Q c also explicitly referenced aPromissory Note to be signed by Appellants and stated that the form O U

00 w G of that Promissory Note to be signed was attached as Exhibit F. See id. at ¶ 1. Notably, and 3 =' yc m Q• notwithstanding that the written aged accounts receivable did exist as of July 31, 2018 and was oa provided to Appellants on that date, and the Amendment to the APA was not signed until that N U

wa a date, the Amendment to APA makes no reference whatsoever to the written accounts receivable w• •c aging report. Certainly, if the parties wanted to include that document as part of the contract U • O

after it was generated on July 31, 2018, they could have referred to it in the Amendment to the

oa APA and/or even just attached acopy of it to the Amendment to APA as an exhibit. They chose c E9 U II 01 not to do so. See Exhibit P-4. LZ

a a 0• Moreover, the Court finds it notable that Appellants only took this position after the O. N N yG

o Court granted the Motion in Limine. Notably, there was no indication of this position in the . -11 0 0

o Answer, New Matter and Counterclaim. See Answer, New Matter and Counterclaim. Appellees G oa m m did not attach the written accounts receivable aging report to its pleadings or plead that it was o =• w m o¢ a part of the parties' contract. See id. Similarly, this position was not referenced anywhere in the

o 4- U 73

m h Response to the Motion in Limine. It also was not raised during oral argument as areason why oa

this particular document should be permitted to be introduced at trial. U_o N mU a Based upon the foregoing, it was clear to the Court that that the parties did not intend for 13) c U •

N the written accounts receivable aging report to be part of their integrated contract. Accordingly, C\1 G

Qa o• N the Court did not err or abuse its discretion when it determined that the contract did not include • • o lt. —m O G a U

N Q 39 R a y j

U W G. The Trial Court Did Not Err or Abuse its Discretion when it Denied Aonellants 'Motion for Mistrial

Appellants next contend that the Court erred or abused its discretion when it did not grant

Mr. Dudeck's motion for amistrial. A mistrial may be required where counsel makes "irrelevant

remarks ... which are reasonably likely to have adirect and prejudicial effect on the award of

damages." Narciso v. Mauch Chunk Twp. 87 A.2d 233, 235 (Pa. 1952); Buttaccio v. American

Premier Underwriters, Inc., 175 A.3d 311, 321-22 (Pa. Super. 2017). However, to warrant a

mistrial, such remarks must be beyond correction by any admonition which the court may give the

jury. See Tedesco v. Mun. Auth. ofHazle Twp., 799 A.2d 931 (Pa. Commw. Ct. 2002) (explaining

that mistrial is required where remarks are beyond correction by an admonition which the Court

may give the jury); see also Ferguson v. Morton, 84 A.3d 715, 724-26 (Pa. Super. 2013) (reversing

grant of new trial where trial court had taken prompt curative action with respect to counsel's

improper statements and jury verdict was supported by the evidence and not excessive).

In this case, the remarks made by Mr. Burns which Appellants now contend required the

undersigned to declare amistrial occurred during the direct examination of Ms. Gatsch, and after

Mr. Dudeck asked aseries of questions to which Mr. Burns objected based upon the Court's ruling

on the Motion in Limine. N.T. 7/14/21, at 136. As referenced above, the Court immediately

dismissed the jury before Mr. Burns could say anything further or Mr. Dudeck could respond to

Mr. Burns' remarks. As soon as the jury was out of the courtroom, Mr. Burns immediately

withdrew his request. Mr. Dudeck, however, argued that the trial had to stop. Specifically, he

stated:

He made that motion. It's now told to the jury. We don't have — we are not here in atrial that is basically being done in amanner that's supposed to be done. They have that in their head now. You can't unring that bell. We are done. I'm sorry. It stinks that he said that, but that's where we are.

40 N.T. 7/14/21, at 136. Notably, Mr. Dudeck did not raise any specific argument that his clients

were prejudiced or could be prejudiced by Mr. Burns' comments or his request for amistrial.

Rather, he argued only that it was the fact of Mr. Burns having requested amistrial in the presence

of the jury as the basis for his request. N.T. 7/14/21, at 136.

Furthermore, in light of the circumstances and the record which existed up until that point

in time, a mistrial was not necessary insofar as the remarks were not beyond correction by a

curative instruction to the jury. Also, the Court carefully considered the circumstances in crafting

its curative instruction. The undersigned considered, inter alia, how the trial had proceeded up

until that point in time, the frequency and nature of the comments made by each of the attorneys,

and the prior instructions that had been given to the jury.

For example, in this case, although Mr. Burns objected on several occasions, he had not

previously made any comments similar to these in front of the jury. Additionally, the Court already

had instructed the jury multiple times that comments made by lawyers are not evidence and not

something to be considered when coming to averdict. The Court considered that both attorneys

had regularly and repeatedly asserted objections throughout the trial and also that Mr. Burns'

comments were made out of frustration with Mr. Dudeck's repeated attempts to introduce parol

evidence. Based upon all of these considerations, the Court gave the following instruction

immediately upon the jury's return to the courtroom:

Before Idismissed you, Mr. Burns made some statements and a request. And Iwant to direct you that you are to disregard them in their entirety. You are not to consider them at all. Just like anything else that an attorney says, like an objection or an argument or an opening statement, that is not evidence. So you are not to take into consideration anything that was said by him before you were immediately dismissed. It has nothing to do with whether one party or the other breached acontract. And in this case, both parties are

41 alleging that the other breached acontract. So Iwant to make very clear my directive to you. You are to disregard those statements in their entirety. For a few reasons. The first is because it's not evidence. It shouldn't be considered by you in considering the parties' claims. Secondly, Iwant to make clear that Mr. Burns immediately withdrew those requests and statements after you left the room. That's on the record. You just weren't here. Additionally, and as you probably already observed, litigation can be stressful and emotions can run high at times. And sometimes emotions can make the attorneys act like they are under stress. And Ithink you have seen that from both sides today. Now, Ialso want to make sure that you recall my earlier instructions about objections. Again, objections are not evidence. Questions that's asked itself. Those are not evidence. It's the answer to the question. And, of course, when there is an answer to aquestion, then you have to take the question into consideration in determining how to evaluate the answer, obviously. You have to put it into context. But when questions are asked and there's an objection and Isustain that objection, then you are not to consider the question either. And if someone started to answer that question, you are to disregard the answer because Isustained the objection. Both attorneys have made objections throughout this trial. And as Iexplained earlier, they have jobs to do. They are advocates for their clients. They also have the job of making sure, from their perspective, only appropriate admissible evidence is presented to you. And the way for them to prevent evidence they don't believe is admissible to be presented to you is to make an objection. So you are not to hold against either party or their lawyers the fact that they are making objections.

N.T. 7/14/21, at 143-45. The Court also then went on to give the jury adetailed instruction on the

Parol Evidence Rule.

Based upon the record before it, the immediate action taken by the Court was appropriate

and sufficient to address the situation. Accordingly, the Court did not err or abuse its discretion in

denying Mr. Dudeck's motion for amistrial.

H. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Admit Exhibit D-16

Appellants also take issue with the Court's decision not to admit Exhibit D-16 into evidence.

During the direct testimony of Ms. Gatsch on day two of the trial, Mr. Dudeck identified as Exhibit

42 Vj

yim a U G D-16 adocument he sought to show to this witness. N.T. 7/14/21, at 208. That document was an U Q O U l0

estimate to replace apanoramic x-ray machine for $23,000.00. N.T. 7/14/21, at 211. Mr. Burns a• G

w• o= immediately objected. N.T. 7/14/21, at 208. Given that it was late in the afternoon, the •a Q c O U undersigned chose to dismiss the jury for the day and then address the objection with counsel 00 w G outside its presence. N.T. 7/14/21, at 208-09. After the jury was excused, the Court heard Mr. 3 =' yc Burns on his objection to Exhibit D-16. Mr. Burns argued that the document was not admissible Q• oa because it was merely an estimate (as compared to an invoice), was dated July 4, 2021, just N U

wa produced to Appellees, and not previously disclosed in Appellants' pre-trial memorandum. He a w• •c also objected on the grounds of relevance arguing that replacement of the equipment was not an U • O appropriate remedy under the parties' contract. N.T. 7/14/21, at 210-11.

oa In response, Mr. Dudeck argued that he only just received the document on July 4, 2021. Mr. c E9 U II 01 Dudeck agreed that it was only an estimate and also that the piece of equipment which it referenced L a a had not actually been replaced to date. N.T. 7/14/21, at 212. He argued, however, that he believed 0• O. N N yG it was appropriate for the jury to consider for purposes of calculating damages. N.T. 7/14/21, at ol? . _11 0 0

211-13. 12 o G oa The Court took the matter under advisement and offered Mr. Dudeck an opportunity to o =• o¢ a provide the Court with legal authority which substantiated his position that the estimate could be

o 4- U 73 properly considered for purposes of calculating damages even though it did not evidence any actual m h oa

costs incurred. N.T. 7/14/21, at 213. The next day, the Court heard further argument. Mr. Burns U_o N mU a reminded the Court of the untimely submission of the document in violation of the pre-trial order 13) c U •

N C\1 G

C) o • • o 12 Just minutes earlier, and with respect to the packet of documents making up Exhibit D-15, Mr. O 00 m Dudeck was in agreement to remove one of the documents contained therein because it was an estimate and not an actual invoice. N.T. 7/14/21, at 190-208. a C)

N R Q a 43 y j

yim a U G and also that because it was not exchanged in discovery, his clients were denied the opportunity to U Q O U l0

evaluate it or obtain an expert to rebut it. He also raised that it was not certified by arecords a•G w• o= custodian and also that it purported to be evidence of damages for acircumstance allegedly existing •a Q c 0 U three years after this transaction occurred. N.T. 7/15/21, at 4. In response, Mr. Dudeck argued 00

wG that the parties had stipulated to authenticity, that in arbitration cases, this document would be 3 =' CO c admissible, and reiterated that he gave Mr. Burns the document on the same date that he received Q• oa it. N.T. 7/15/21, at 5-6. 13 N U

wa Thereafter, the Court ruled that the estimate would not be admitted. N.T. 7/15/21, at 7. a w• •c The undersigned reasoned that insofar as the document is an estimate and not apaid invoice, its U • O probative value would be outweighed by prejudice and also arisk of confusing/misleading the

jury. Furthermore, the Court also noted that it was hearsay insofar as its contents were being oa c E9 U II 01 offered for the truth of the matter asserted. L a a Moreover, although not stated on the record, the undersigned precluded admission of 0• O. N N yG Exhibit D-16 based upon its untimely identification in violation of both the Agreed Case ol? No V 00

Management Order and the Pre-Trial Order. Mr. Dudeck stated during argument on this issue that o G oa "[e]veryone knew this panoramic was not working," and yet, his client did not obtain an estimate o =• o¢ a for its repair until July 4, 2021— nine days before the start of trial. N.T. 7/15/21, at 5. The Agreed

o 4- U 73 Case Management Order, however, required the identification and exchange of all exhibits no later m h oa

than February 28, 2021. Mr. Dudeck offered no argument as to why his client was unable to obtain U_o N mU a an estimate on or before that date. Similarly, he offered to reason as to why his client was unable 13) c U •

•a N

po • • o 13The Court did not hear Mr. Burns further on the arguments made by Mr. Dudeck and/or his O 00 m statement that the parties did agree to the authentication of Exhibit D-16 but does note that on day one of the trial, in the context of discussing agreements to exhibits, Mr. Burns did O a U G specifically mention that he objected to this document. N.T. 7/13/21, at 13. a

N R Q a 44 y j

yim a U G to obtain an estimate prior to June 8, 2021, when Appellants filed their Pre-Trial Memorandum, U Q O U l0 which also required the parties to identify all exhibits to be introduced at trial or risk preclusion of a• G

w• o= evidence at trial. See Pre-Trial Order. •a Q c 0 U Based upon the foregoing, the undersigned was well within her discretion to preclude O O

-G

w Q

G admission of Exhibit D-16 and/or any testimony thereon. Accordingly, the Court did not err in 3 =' CO c doing so. Q• oa I. The Trial Court Did Not Err or Abuse its Discretion When it Granted and Did Not Remove Appellees' Motion for Compulsory Nonsuit as to Appellants' N U

wa Counterclaim for Breach of the Asset Purchase Agreement a w• •c

Next, Appellants complain that the Court erred when it granted and did not remove U • O G Appellees' request for a compulsory nonsuit on Appellants' breach of contract counterclaim

oa G relating to the accounts receivable. It is well settled that entry of acompulsory nonsuit is proper E9 U II 01

L where the factfinder, viewing all the evidence in favor of the plaintiff, could not reasonably

a a o conclude that the essential elements of acause of action have been established. See Pa. R.C.P. No. N W N yG

o C N 230.1. . _11 0 0

o G In this case, Appellants' breach of contract counterclaim relating to the accounts receivable oa

w m was based upon the premise that the parties' agreed that the term "aggregate amount" of accounts o =• o¢ a• receivable meant the aggregate amount that is collectable. N.T. 7/13/21, at 33-34. Consequently, U 4- O O m h in order for the jury to find abreach, it first would have to find that the parties agreed that the term oa

U_o "aggregate amount" meant "aggregate amount that is collectable." As discussed above, however, N mU a 13) in ruling on the Motion in Limine the Court concluded that the term "aggregate amount" was not U W

C\1 N G ambiguous, meant that which is reflected by its plain language, and did not mean the aggregate Q a C) o N

amount that is collectible. N.T. 7/13/21, at 39-40. Additionally, based upon these findings, the • • o

Court ruled that Appellants were barred from introducing any evidence that would vary or explain O a " G

N R Q a 45 y j

the parties' contract. Insofar as Appellants were barred from introducing any evidence that would U G Q O

IE permit them to introduce evidence of the very term of the APA which they contend was breached, a•G w.• the jury could never find abreach. Consequently, App ell ant s'breac h ofcontract counterc l aim CO

Q relating to the accounts receivable failed as amatter of law. Accordingly, the Court properly 00

w granted Appellees' motion for compulsory nonsuit and properly denied Appellants' request to 3 =' 02) remove it. ga g J. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Instruct the Jury on Appellants 'Requested Points for Charge 1and 3 N U

wa w Next, Appellants complain that the Court committed error and/or abused its discretion CO Z i2 U when it refrained from instructing the jury on two of Appellants' requested points for charge. • O

First, Appellants contend that the undersigned should have instructed the jury as follows: • G oa A material breach of a contract relieves the non-breaching party from any continuing duty of performance thereunder. A party also may not insist upon L performance of the contract when he himself is guilty of amaterial breach of the aa contract. LJL Transportation, Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 00 o • P2 A.2d 639 (2007). N N yG

Defendants' Requested Point for Charge No. 1— First Material Breach. Appellants also contend •oV

oa that the undersigned erred and/or abused her discretion when she failed to instruct the jury as w follows: o =• o¢ a The duty of good faith and fair dealing is implied in every contract. This implied mh duty ofgoodfaith andfair dealing applies only to discretionary obligations under the contract. It does not create new obligations or obligations inconsistent with o specific terms of the contract. Duties or obligations are discretionary when aparty m• has some degree of choice in how to perform its obligations under the contract. A party should not do anything to destroy or injure the other party's right to receive the benefits of the contract. Therefore, even discretionary duties and obligations Ch must be performed in areasonable manner consistent with the contract's purposes. 0a

Defendants' Requested Point for Charge No. 3 — Implied Duty of Good Faith and Fair Dealing o m CO

(emphasis added). O a " G

N ° a 46 y j

3 W It is well settled in Pennsylvania that atrial court is to charge only on the law for which

there is some factual support in the record. See e.g., Potochnick v. Perry, 861 A.2d 277, 283

(Pa. Super. 2004) (holding that trial court's refusal to read certain proposed charges was proper

and not abasis to grant anew trial). It is equally well established that atrial court may properly

refuse to give arequested instruction containing even acorrect statement of law where the

court's charge "accurately reflects the law and is sufficient to guide the jury in its deliberations."

See id. ( citing Cruz v. Northeastern Hosp., 801 A.2d 602, 611 (Pa. Super. 2002) (citation

omitted)). In other words, arefusal to give an instruction containing acorrect statement of the

law will not be grounds for anew trial where the substance of that requested charge has

otherwise been covered in the court's jury instructions. See id. ( citation omitted).

With respect to Defendants' Requested Point for Charge No. 1, the record reflects that

Appellants sought to have it read to the jury in the hopes that the jury would conclude that

Appellees first materially breached the APA thereby relieving Appellants of their contractual

obligations to make payments to Dr. Hoorfar under the APA and the Promissory Note. The

timing element of this jury instruction, however, only is relevant if aparty is seeking rescission

of acontract as its remedy. Importantly, the law is clear that in abreach of contract action, the

plaintiff either may rescind the contract and seek restitution or enforce the contract and recover

damages based on expectation. See Smith v. Brink, 561 A.2d 1253, 1255 (Pa. Super. 1989)

(emphasis in original). In this regard, the Doctrine of Election of Remedies prohibits aparty

from seeking inconsistent relief. See Umbelina v. Adams, 34 A.3d 151 (Pa. Super. 2011)

(explaining that aparty cannot maintain at one time in separate counts of one action or in two

separate suits, claims for rescission/restitution on one hand and damages for breach of contract

on the same contract, as these remedies are essentially inconsistent). In other words, one may

47 not terminate contractual obligations and seek the return of his or her consideration based upon

the other party's promise through an action for rescission and restitution and at the same time

seek the full benefits of that promise through an action for breach. See id.

In this case, it was clear from the parties' pleadings and the evidence introduced at trial

that neither Appellants nor Appellees sought rescission of any of the agreements, but instead,

sought monetary damages on their respective breach of contract claims. Thus, there was no

factual support in the record to require the undersigned to charge the jury with Defendants'

Requested Point for Charge No. 1. Accordingly, the Court did not err or abuse its discretion in

refraining from doing so.

Similarly, there was no evidence introduced by either Appellants or Appellees of any

discretionary obligation within the APA, Amendment to APA and/or Promissory Note and/or

that any party had breached adiscretionary obligation under any of those written agreements.

Indeed, even with respect to the Appellants' counterclaim for breach of the APA regarding the

accounts receivable, Ms. Gatsch conceded that the obligation on the part of Dr. Hoorfar was to

produce awritten accounts receivable aging report to her on the Closing Date and that he did in

fact do so. N.T. 7/14/21, at 133-34. Thus, there was no factual support in the record to support

Defendants' Requested Point for Charge No. 3. Accordingly, the Court did not err or abuse its

discretion in declining to instruct the jury thereon. See Potochnick, 861 A.2d at 283.

K. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Enter Judgment Notwithstanding the Verdict in Favor of Appellants on Appellees' Claim for Breach of the Professional Services Agreement

Appellants next contend that the Court abused its discretion when it did not enter JNOV on

Appellees' claim that Appellants breached the PSA. Appellants contend that the Court erred when

48 Vj

a yim U G it denied their post-trial motion seeking JNOV because the verdict was against the weight of the U Q O U l0 evidence. a•G w• o= With respect to claims implicating the weight of the evidence, there are two bases upon which •a Q c O U ajudgment n.o.v. can be entered: 1) the movant is entitled to judgment as amatter of law, and 2) O O

G the evidence was such that no two reasonable minds could disagree that the outcome should have 3 =' yc been rendered in favor of the movant. See Rohm & Haas Co. v. Continental Cas. Co., 781 A.2d Q• oa 1172, 1176 (Pa. 2001) (citations omitted); see also Haan v. Wells, 103 A.3d 60, 69 (Pa. Super. N U

wa 2014). It is equally well settled that atrial court may award ajudgment notwithstanding the verdict a w• •c "only when the jury's verdict is so contrary to the evidence that it shocks one's sense of justice." U • O Haan, 103 A.3d at 70; see also Green v. Johnson, 227 A.2d 644, 644-45 (Pa. 1967) (explaining

that afact finder's verdict is shocking when it is so opposed to the demonstrative facts that looking oa c E9 U

at the verdict, the mind stands baffled, the intellect searches in vain for cause and effect, and reason L a a rebels against the bizarre and erratic conclusion). It is also well established that aJNOV should 0• O. N N yG not be entered where the evidence is conflicting on amaterial fact. See id.; see also Rohm, 781 ol? . C_ 11 0 0

V o A.2d at 1176 (explaining that when the jury is presented with conflicting evidence, JNOV should G oa be denied). Instead, the grant of ajudgment notwithstanding the verdict should only be entered in o =• aclear case. See e.g., Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932 (Pa. o¢ a o 4- U 73 Super. 2013) (holding that trial court did not err in denying JNOV where sufficient evidence m h oa existed to support jury's verdict). U_o N mU a In this case, the jury's verdict was not shocking because there was more than sufficient 13) c U •

•• N evidence to support it. Indeed, much of the evidence introduced by Appellees in support of this C\1 G

Qa o• N claim was not even disputed. For example, both parties introduced evidence of the existence the • • o contract between them which is the subject of this claim. Indeed, Appellants and Appellees each

O a " G

N R Q a 49 y j

U W separately marked and moved the PSA into evidence. See Exhibit P-6 and Exhibit D-3. Similarly,

both Appellants and Appellees introduced evidence that Dr. Hoorfar was to be compensated for

providing dental services to RG Dental after the Closing Date and that he did in fact provide such

services until mid-December 2018. See N.T. 7/15/21, at 25-30; see also N.T. 7/13/21, at 142-143.

Dr. Hoorfar and Ms. Gatsch also both testified as to the formula to be used to calculate the

compensation to be paid to Dr. Hoorfar under the PSA. See N.T. 7/14/21, at 68-70; see also N.T.

7/15/21, at 25-28, 67-68. In fact, it was undisputed at trial that Dr. Hoorfar's compensation for

such dental services was to be calculated consistent with the formula set forth in Exhibit E attached

to Exhibit P-6 and Exhibit D-3; that is, "40 percent of gross collection receipts less 40 percent of

lab." Exhibit Ealso defined the term "lab." That definition set forth various lab charges that might

apply to certain dental work including but not limited to, dentures, implants, mouth guard

fabrications, TMJ appliance. The parties also did not dispute that at some point Appellants stopped

paying Dr. Hoorfar for the work performed by him. Dr. Hoorfar testified that they stopped paying

him under the PSA and that he has not been paid since some time in November 2018. N.T. 7/13/21,

at 145-46. Ms. Gatsch conceded that at some point she applied what she identified as "credits"

and "adjustments" and also withheld monies from his payroll. N.T. 7/15/21, at 27-29.

Indeed, the only real dispute at trial on this particular breach of contract claim related to

the amount of compensation still owed to Dr. Hoorfar. N.T. 7/14/21, at 78-80. Dr. Hoorfar

testified he calculated that amount to be $ 10,360.50 and Ms. Gatsch testified that after various

adjustments and reductions were made by her as set offs, this figure came to $763.89. N.T.

7/15/21, at 29-30.

In support of his claim for an award of damages in the amount of $ 10,360.50, Dr. Hoorfar

testified that he was entitled to 40 percent of net collections and that he was able to access

50 information using his software to show him what that figure would be for which he was not paid.

N.T. 7/13/21, at 147. After Exhibit P-11 was marked for identification, Dr. Hoorfar testified that

Exhibit P- I1was an aging report that he ran for the work he had done after the Closing Date. N.T.

7/13/21, at 148-49. Exhibit P-11 was then moved and admitted into evidence. Dr. Hoorfar was

then asked to review Exhibit P-11 and tell the jury the amount he claimed was still owed to him

under the PSA. Notably, on both direct examination and on cross-examination, Dr. Hoorfar made

clear that the formula gross collection less 40 percent of labs as set forth in Exhibit E is the same

as 40 percent of net collections. Indeed, on cross-examination Dr. Hoorfar explained the formula

as follows: "Essentially it's 40 percent of your net collection. So whatever your collection is, say

you collect $20,000, you are entitled to 40 percent of that. And the net collection meaning is that

if you incurred any lab bills during the time while the work was done, that labs would also be

figured at 40 percent so you are getting anet collection." N.T. 7/14/21, at 68. When Mr. Dudeck

then identified the formula in terms of gross collection less 40 percent of labs as set forth in Exhibit

E, Dr. Hoorfar stated as follows: "Ithink that's what Ijust said." N.T. 7/14/21, at 69 (emphasis

added). 14 Dr. Hoorfar identified the figure owed to him under this formula as $ 10, 360.50. N.T.

7/13/21, at 152.

During her direct examination, Ms. Gatsch presented her own report on which she made

handwritten calculations of what she contended remained due and owing to Dr. Hoorfar under the

PSA. N.T. 7/15/21, at 25-28. That "day sheet report," as she referred to it, was marked for

identification purposes as Exhibit D-12 and moved into evidence without objection. See Exhibit

D-12. Ms. Gatsch testified that Exhibit D-12 showed the total collections that were brought in for

14 Ms. Gatsch also explained in her testimony that another way of saying gross collections less 40 percent of labs is to say net collections — meaning the labs were already taken into consideration. N.T. 7/14/21, at 109-10.

51 Dr. Hoorfar's services for the period July 31, 2018, to December 18, 2018. N.T. 7/15/21, at 26.

Ms. Gatsch then testified as to her calculations of what she contended remain due and owing to

Dr. Hoorfar for services provided by him under the PSA. Dr. Gatsch made reference to "applied

credits" and "adjustments" but gave no clear explanation as to what those terms referred to, the

source thereof, and/or how they related to Ms. Gatsch's calculation that 40 percent of the gross

collections for work done by Dr. Hoorfar. She testified only that she took the category identified

on the report as "Applied Payments," which itself is not completely readable, and multiplied it by

40 percent to come to $ 11,520.64. She then testified that she reduced that number by $ 1,961.20

which she identified as "40 percent lab fee" and came to afigure of $ 8,355.80. N.T. 7/15/21, at

28; see also Exhibit D-12. Again, however, Ms. Gatsch did not identify the source of information

for this $ 1,961.20 in lab fees. Ms. Gatsch then took the $ 8,355.80 she came to and identified as

the "net pay" and further reduced it by amounts she testified she believed she had a right to

withhold based upon Appellants' claims against Appellees. N.T. 7/15/21, at 28-29; see also

Exhibit D-11. Ultimately, she came to afigure of $763.89. N.T. 7/15/21, at 29.

Based upon the foregoing, there was nothing about the jury's verdict that was so opposed

to the demonstrative facts to baffle the mind. See Green, 227 A.2d at 644-45. Indeed, Appellants

and Appellees agreed there was acontract, abreach thereof, and also that Dr. Hoorfar was entitled

to some amount in damages. Based upon Dr. Hoorfar's testimony, there was nothing shocking

about the jury's verdict and award of $ 10,360.00 in damages. This is the figure he testified he

calculated based upon the software available to him and the formula to which the parties agreed.

While it is true that Ms. Gatsch offered conflicting evidence, the jury had every right to disregard

it as not credible and to credit Dr. Hoorfar's testimony. Accordingly, the Court did not err or abuse

its discretion when it chose not to grant Appellants' request for JNOV.

52 L. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Enter Judgment Notwithstanding the Verdict on Appellants ' Counterclaim Rmardine the Sale of the Office Eduipment

Next, Appellants complain that the Court erred and/or committed an abuse of discretion

when it did not enter judgment NOV on Appellants' counterclaim regarding the sale of Hoorfar

Dental's office equipment and supplies. Specifically, Appellants contend that the jury's verdict

on this counterclaim was against the weight of the evidence and the undersigned should have

entered judgment in favor of Appellants and against Appellees in the amount of $ 11,500.00.

Concise Statement at 2.

At trial, Appellants sought to prove that Appellees breached 117.13 and 7.20 of the APA

with respect to the supplies and equipment purchased by Appellants. In support of this claim,

Appellants moved the APA into evidence as Exhibit D-1 and Exhibit D-1 was admitted without

objection. Ms. Gatsch testified that Exhibit A to Exhibit D-1 was an inventory list of all the assets

included in the sale of the dental practice other than the Practice Accounts Receivable. N.T.

7/14/21, at 101; see also Exhibit D-1, Exhibit B. Ms. Gatsch testified that pursuant to the APA,

Appellants were purchasing "all of the assets of the practice including the furniture, the equipment,

the patients, the computers, the x-ray unit. And from my understanding the account receivables

over 90 days." N.T. 7/14/21, at 103.

Ms. Gatsch further testified on direct examination that as to the warranties set forth in ¶¶

7.13 and 7.20 of the APA which state as follows:

The Practice Assets, whether owned or leased by Seller, (i) are in good operating condition and repair, subject to normal wear and maintenance, (ii) are useable in the regular and ordinary course of business, (iii) conform to all applicable laws, ordinances, codes, rules and regulations, and (iv) are in compliance with all required consents, approvals and authorizations ("Authorizations") relating to their use and operation, including, but not limited to any environmental regulations ....

53 APA, 17.13.

No representation or warranty by Seller in this Agreement nor any certificate, schedule, statement, exhibit, agreement, document or instrument furnished or to be furnished to Purchaser pursuant thereto, or in connection with the negotiation, execution or performance of this Agreement, contains or will contain any untrue statement of amaterial fact or omits or will omit to state amaterial fact required to be stated herein or therein or necessary to make any statement herein or therein not misleading.

APA, ¶ 7.20. Ms. Gatsch then testified as to certain "issues" she had with pieces of equipment

after the Closing Date. First, Ms. Gatsch testified that they had issues with the panoramic x-ray.

N.T. 7/14/21, at 183. She explained that there are three motors that operate the machine and she

learned that two of the motors needed to be replaced. N.T. 7/14/21, at 183-84. She testified that

one of the motors was replaced and Dr. Hoorfar did pay for that motor. She further testified that

the second motor is no longer available as the unit is so old and they don't make parts for it

anymore. N.T. 7/14/21, at 184. She testified that in order to have aworking panoramic x-ray

machine, she would need to replace the existing one. N.T. 7/14/21, at 184-85.

With respect to other equipment, Ms. Gatsch testified that there also were issues with an

x-ray machine in treatment room 3. N.T. 7/14/21, at 185. She testified that "[t]he unit itself was

old but there were issues initially with the trigger or the button to be able to capture the image

outside of the room." N.T. 7/14/21, at 185. She testified that because the unit was "so old" it was

not easily repairable and "not easy to get parts," so she replaced it with aportable x-ray camera

"rather than replacing the antiquated x-ray units." N.T. 7/14/21, at 184-86. Ms. Gatsch also

testified that she started having problems with the handpieces (high speed drills) soon after the

Closing Date. N.T. 7/14/21, at 187.

54 Thereafter, Mr. Dudeck marked a series of invoices from Henry Schein collectively as

Exhibit D-15. Ultimately, D-15 was admitted for the limited purpose of permitting Appellants to

attempt to prove damages. 15

Ms. Gatsch then testified that she had to pay $459.76 to fix adental chair she had purchased

from RG Dental. Ms. Gatsch conceded that the chair was still under warranty so the $459.76.

represented labor only. N.T. 7/14/21, at 195-96. Ms. Gatsch then testified to an invoice for

$2,177.18 which she explained was for handpieces. N.T. 7/14/21, at 198. Ms. Gatsch did not

testify as to when she purchased these handpieces but the invoice reflects adate of December 17,

2018. See Exhibit D-15.

Ms. Gatsch then testified regarding the topic of supplies. She testified that the supplies in

the office did not meet her expectations represented in the APA. N.T. 7/14/21, at 201-02. She

testified that she had to purchase dental supplies on August 3and August 6, 2018 which cost her

$2,131.93. Ms. Gatsch testified that she purchased dental materials for $ 155.00 on or about August

3, 2018. She further stated that she purchased additional dental supplies for $54.00 and paid $27.00

for needles for the syringes. N.T. 7/14/21, at 204-06. Ms. Gatsch testified that she ordered more

dental supplies on August 27, 2018, and paid $314.26 for those supplies. Ms. Gatsch also testified

that she had to pay $599.99 for an emergency kit that she contended was required by law because

the kit she purchased as part of the sale had expired. N.T. 7/14/21, at 206-07. Finally, Ms. Gatsch

15Mr. Burns did not object to the authenticity of Exhibit D-15 but did object to its admission. Mr. Bums first objected to the admission of any invoices to the extent that the repairs referenced therein had not been made but agreed to the admission of the documents for the limited purpose of proving damages. N.T. 7/14/21, at 192. The Court then admitted Exhibit D-15 but only for the limited purpose of calculating damages, if in fact, the jury found abreach and damages. N.T. 7/14/21, at 193. After Mr. Dudeck began questioning Ms. Gatsch on Exhibit D-15, he realized that one of the "invoices" was actually aquote for work that was never performed. The parties agreed that Exhibit D-15 would be modified such that that estimate would be removed. The parties similarly agreed that astatement (not invoice) was also be removed from Exhibit D-15. N.T. 7/14/21, at 196-98.

55 testified that she paid $ 588.91 in labor to replace amotor for the panoramic. She testified that this

was not the motor purchased by Dr. Hoorfar and that she had purchased this motor from adifferent

representative. The $ 588.91 represented the labor for this motor. N.T. 7/14/21, at 207-08.

Ms. Gatsch also testified as to an invoice she paid for installation of an amalgam separator,

arepair kit for the vacuum pump, arepair kit for the air compressor and five handpieces. The

invoice was marked as Exhibit D-17 and admitted into evidence. Ms. Gatsch testified that she

paid $ 1,543.00 for the items referenced in Exhibit D-17. Ms. Gatsch did not testify as to when

these repairs were made, and Exhibit D-17 does not have adate on it. Ms. Gatsch testified to

another invoice from Dental Fix which was marked as Exhibit D-18 and admitted into evidence.

Ms. Gatsch testified that Exhibit D-18 related to repairs that were made in March of 2019. She

testified that the invoice is for $290.76, and she paid that amount to Dental Fix. N.T. 7/15/21, at

23-24.

On direct and cross-examination, Ms. Gatsch conceded that the equipment was sold in "as

is" condition. N.T. 7/14/21, at 114; N.T. 7/15/21, at 47. Ms. Gatsch also testified that attached to

the APA was an exhibit setting forth alist of the equipment to be sold and she would have been

able to inspect the equipment prior to the Closing Date. N.T. 7/15/21, at 70. Ms. Gatsch further

conceded that the dental chair that had to be fixed was relatively new and still under warranty.

N.T. 7/15/21, at 64. Ms. Gatsch also admitted that the first time she raised any issues with Dr.

Hoorfar about the equipment (other than the panoramic x-ray for which she agrees he covered the

new motor) was in November 2018, months after the Closing Date. N.T. 7/15/21, at 64-65. Ms.

Gatsch also conceded that she sought to recover for some repairs that were not required until many

months after the Closing Date. N.T. 7/15/21, at 72-75. She further acknowledged that some of

56 Vj

the equipment she bought was old and would eventually need to be replaced. N.T. 7/15/21, at 77- U G Q O

78. a•G

o= With respect to supplies, Ms. Gatsch agreed that the APA provided that the supplies were •a

:0 going to be based upon the normal inventory of the seller. N.T. 7/15/21, at 68. Ms. Gatsch 00

w '0 conceded that she did not know what constitut edDr.Hoorf ar ' s " normali nventory. " N.T. 7/15/21,

3 =' 02) at 68-69. ga g During his testimony on this topic of equipment and supplies, Dr. Hoorfar testified that he

wa sold the equipment on as "as is" basis and understood the "As-Is" paragraph of the APA to mean a w• "whatever you get that day is what you get that day" subject to the representations that the U

equipment was in good working order. N.T. 7/15/21, at 107-08. He further testified that he

oa believed the equipment he sold was in good working order as of the Closing Date with the o• E9 U

exception of the panoramic. He testified that the panoramic was an old piece of equipment and he

aa believed Ms. Gatsch's expectations about it were unreasonabl e. 16 He testified, however, that he 0•

N N did pay for repairs for that piece of equipment. N.T. 7/15/21, at 108-10. He also testified that o 'C N 00

there was an issue with the trigger on the x-ray arm and he paid to fix that as well. N.T. 7/15/21, o G

m at 108-10. Dr. Hoorfar also testified that otherwise, "[n]obody was telling me things weren't

oQ working." He was providing dental services at the new practice and "everything was working." aQ m o N N.T. 7/15/21, at 108. According to Dr. Hoorfar, these issues with the equipment were only brought oa to his attention around the same time he was going to discontinue providing dental services. N.T. 0 Uy v 7/15/21, at 110-11.

U •

•a • G

p o • • o O m

16Notably, she described this equipment on direct examination as "antiquated." N.T. 7/14/21, at a 186.

NR• 57 a y j

U W With respect to handpieces specifically, Dr. Hoorfar testified that rather than spend

$1,000.00 on asingle German handpiece, it was his practice to purchase ten "decent" handpieces

and replace them after three months. N.T. 7/15/21, at 111. He also testified that when he was

advised that RG Dental had some issues with handpieces, he did purchase ten handpieces for them.

N.T. 7/15/21, at 111-12.

As to supplies, Dr. Hoorfar was asked about his understanding of the provision relating

thereto in the APA. Dr. Hoorfar testified that he understood his obligation to mean "whatever the

office operations manager was doing which is keep the office supplied as they needed it." N.T.

7/15/21, at 112-13. He also testified that as of the Closing Date he was not aware of any supply

shortages, and no one raised any issue of shortages with him. N.T. 7/15/21, at 113.

Again, in light of the foregoing evidence, there was nothing shocking or inherently

unreasonable about the jury's verdict in favor of Appellees on this counterclaim. There was more

than sufficient evidence introduced demonstrating that Dr. Hoorfar sold the equipment in agood

working condition, and, to the extent he did not, he paid for those repairs. There was also more

than sufficient evidence for ajury to reasonably conclude that Appellants' complaints of additional

problems were not timely raised and/or were the result of abreakdown in the relationship and not

the equipment itself.

As for the supplies, Ms. Gatsch could not even testify as to what the normal inventory of

Hoorfar Dental looked like, and again, Dr. Hoorfar testified that up until the Closing Date he

maintained operations and supplies in the same manner as he normally would in operating the

practice himself. The jury had the right to credit his testimony over that of Ms. Gatsch. See Haan,

103 A.3d at 72 (explaining that "a fact-finder is permitted to accept all, part, or none of the

testimony, and it is within the fact-finder's exclusive province to resolve conflicts in that

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U O - U

testimony"). In light of the record, the jury's verdict on this particular claim cannot be said to be U =

a Q O

o shocking. Accordingly, the Court did not err or abuse its discretion when it chose not to grant

o Appellants' request for JNOV and enter aspecific award in their favor for $ 11,500.00. •a Q c 0 U i

Q M. The Trial Court Did Not Err or Abuse its Discretion When it Did Not Enter w Judgment Notwithstanding the Verdict on Appellants ' Counterclaim 3 Regarding Dr. Teitelman ' sBonus 02 Q• a Appellants similarly complain that the Court erred and/or abused its discretion when it U h .

denied Appellants' request for judgment NOV on Appellants' breach of contract counterclaim N U

wa w relating to Dr. Teitelman's bonus. Appellants contend that the jury's verdict with respect to that

0)U counterclaim also was against the weight of the evidence. • O

0 c At trial Appellants PP sought g to Prove that Appellees PP breached ¶¶ 7.19 and 16.1 of the APA oa

0o E9 U by failing to pay RG Dental's former employee, Dr. Teitelman, abonus for services Appellants II 01 N

contended were provided to Hoorfar Dental prior to the Closing Date. In support of this claim, a a o Appellants introduced into evidence two documents relating to the employment of Dr. Teitelman. N

No The first, marked as Exhibit D-4, was the As si gnmentf or Emp l oyment Agreement ("Ass i gnment oV

oa Agreement") and the second, marked Exhibit D-5, was the Employment Agreement for Dr.

Teitelman ("Employment Agreement"). Both Exhibits D-4 and D-5 were admitted into evidence oa y without objection. The PSA had already been admitted into evidence. See Exhibits P-2 and D-11. U y.. O O

oa In addition, Ms. Gatsch explained that aft er th e Cl os i ng Dat e, Dr. Tei te l man, a f ormer

employee of Hoorfar Dental, began to work for RG Dental pursuant to the Assignment Agreement m 2

`° and the Employment Agreement. Ms. Gatsch testified that in August 2018, Dr. Teitelman came

"t Z to her and asked for abonus payment. N.T. 7/14/21, at 164-65. Ms. Gatsch did not specify when •a o in August Dr. Teitelman made this req ues t. M s. Gat sc h testified that under the Employment

co r'L o m •0) Agreement, Dr. Teitelman was to receive 30 percent of her net collections and that was the bonus O a " G

NR= 59 a y j

3 W she sought from Ms. Gatsch. N.T. 7/14/21, at 165. Ms. Gatsch testified that she believed that RG

Dental was only responsible to pay Dr. Teitelman for services rendered after July 31, 2018, the

Closing Date. N.T. 7/14/21, at 167. Ms. Gatsch testified that Dr. Teitelman was seeking abonus

for services provided by her prior to the Closing Date. Ms. Gatsch testified that she believed

Hoorfar Dental was responsible for such bonus based upon 17.19 of the APA. N.T. 7/14/21, at

167-68. 17 Ms. Gatsch testified that she told Dr. Teitelman to take up her request for abonus with

Dr. Hoorfar, but eventually decided to pay her "as she was my employee and Ididn't want a

disgruntled employee thinking Iowed her money." N.T. 7/14/21, at 168.

Subsequent to this testimony, Mr. Dudeck marked adocument as Exhibit D-11 and asked

Ms. Gatsch to identify the document. Ms. Gatsch identified Exhibit D-11 as documents generated

from her ADP payroll software which she used to calculate the bonus which she testified she paid

Ms. Gatsch. Exhibit D-11 was admitted into evidence without objection. Ms. Gatsch then testified

to the amount of the total bonuses she paid Dr. Teitelman including for services rendered after

July 31, 2018. N.T. 7/14/21, at 172-74. Ms. Gatsch calculated that amount to be $28,214.97.

N.T. 7/14/21, at 173. Notably, Ms. Gatsch was unable to identify the amount of the bonus that

was paid to Ms. Teitelman for services provided before July 31, 2018 until after counsel for

Appellants refreshed Ms. Gatsch's recollection. Upon having her recollection refreshed with

17 Paragraph 7.19 of the APA states as follows:

Seller shall have sole and exclusive responsibility for any duties and obligations owed to its employees, including any and all vacations, bonus, and other benefits which have accrued prior the Closing Date. Purchaser is not assuming any such obligations.

APA, 17.19.

60 Exhibit D-10 (not admitted), Ms. Gatsch testified that the bonus she paid for work performed by

Dr. Teitelman prior to July 31, 2018 was $ 19,775.91. N.T. 7/14/21, at 180-81.

On cross-examination, Mr. Burns reviewed the Assignment Agreement with Ms. Gatsch

and Ms. Gatsch conceded that the Employment Agreement was assigned to RG Dental and Dr.

Teitelman became an employee of RG Dental Group as of July 31, 2018. N.T. 7/15/21, at 51-52.

Ms. Gatsch agreed on cross-examination that she understood the Employment Agreement to mean

that after the Closing Date, RG Dental was responsible to pay Ms. Teitelman her salary,

commission, and bonus. N.T. 7/15/21, at 55, 58-59. She also conceded that any receivables that

came in for work performed by Dr. Teitelman before July 31, 2018 were being collected by RG

Dental. N.T. 7/15/21, at 56.

In defense of this claim, Dr. Hoorfar also testified. Notably, he testified that he did, in fact,

pay abonus owed to Dr. Teitelman. N.T. 7/15/21, at 102. Dr. Hoorfar testified that the calculation

of the bonus is done on a monthly basis, and he explained how Dr. Teitelman's bonus was

calculated each month under the Employment Agreement. N.T. 7/15/21, at 100-03. He further

testified that such bonus is then typically paid in the next paycheck. N.T. 7/15/21, at 101-03. Dr.

Hoorfar acknowledged that Hoorfar Dental had an obligation to pay Dr. Teitelman's bonus for

July 2018. He testified that he waited until all the July 2018 money was in, did the calculation of

her bonus, and then paid her. N.T. 7/15/21, at 102. He testified that he paid her in full for his

obligations to her including any bonus. N.T. 7/15/21, at 102-04.

Based upon this evidentiary record, the jury's verdict in favor of Dr. Hoorfar on this

counterclaim cannot be said to be shocking. There was clearly an evidentiary discrepancy as to

whether Dr. Hoorfar paid to Dr. Teitelman abonus for work performed prior to July 31, 2018. As

factfinder, however, it was within the province of the jury to decide whether to credit Ms. Gatsch's

61 Vj

a yim U G testimony or Dr. Hoorfar's testimony on this subject. See Haan, 103 A.3d at 71 (explaining that U Q O U l0

"[t]he factfinder is free to believe all, part, or none of the evidence and to determine the credibility a• G

w• o= of the witnesses"). 18 The jury clearly chose to accept Dr. Hoorfar's testimony that he paid Ms. •a Q c 0 U Teitelman her bonus for work performed prior to July 2018. There was certainly sufficient O O

evidence in the record to support this. According, the Court did not err or abuse its discretion G

3 =' CO c when it chose not to grant Appellants' request for JNOV. Q• oa V. CONCLUSION:

N U

wa For all of the foregoing reasons, the undersigned respectfully submits that this appeal a w• •c be DISMISSED. U • O G

N f0 BY THE COURT:

oa c E9 U

DATE: 3' 9 — •a L a a DENISE M. BOWMAN, J. 00 O. N • N yG

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18 Notably absent to testify in support of this counterclaim was Dr. Teitelman herself. Also, Dr. a Rakawsky did not testify or, for that matter, even attend the trial. C)

N R Q a 62 y j

U W