Central PA Radiation Oncology, P.C., a PA corp. v. The Good Samaritan Hospital of Lebanon, PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Central Pennsylvania Radiation

Oncology, P.C., a Pennsylvania

corporation,

Appellant

V. : No. 1004 C.D. 2020

: SUBMITTED: September 20, 2021

The Good Samaritan Hospital of

Lebanon, Pennsylvania, a Pennsylvania :

Corporation, WellSpan Health, a

Pennsylvania Corporation, and Robert

Longo, an adult Individual

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: December 15, 2021

Central Pennsylvania Radiation Oncology, P.C. (Central), appeals from

an order of the Court of Common Pleas of Lebanon County granting the motion for

summary judgment filed by Good Samaritan Hospital of Lebanon, Wellspan Health,

and Robert Longo (collectively, Appellees) and dismissing, with prejudice,

Central’s second amended complaint. In addition, the trial court dismissed, with

prejudice, the second amended counterclaim filed by Appellees.'_ However, both

' The Superior Court transferred this appeal to Commonwealth Court pursuant to the

following:

[Commonwealth Court’s] exclusive jurisdiction of appeals from

final orders of the courts of common pleas in. . . [a]ll actions or

(Footnote continued on next page...)

parties agree that Appellees’ counterclaim was withdrawn. We conclude that the

issues presented to this Court have been thoroughly reviewed and correctly analyzed

in the opinion of the Honorable Charles T. Jones, Jr. Accordingly, mindful that there

is no longer an operative counterclaim, we affirm based on Judge Jones’ opinion

captioned Central Pennsylvania Radiation Oncology, P.C. v. The Good Samaritan

Hospital of Lebanon, Pennsylvania, (No. 2015-02124, Lebanon County C.P. Pa.

filed January 30, 2020).

By way of background, Good Samaritan Hospital officially became

WellSpan Good Samaritan Hospital in 2015. Having formerly served as president

of Good Samaritan Hospital, Robert Longo became senior vice president of

WellSpan Health. Before Central’s 2016 closure, Central provided radiation

oncology therapy in Lebanon County. Now deceased, Dr. Abdurrahman Unal

served as Central’s medical director.

In 2007, Longo engaged consultants to help implement the goal of

opening a new cancer center that would provide both medical and radiation

oncology. Subsequently, Good Samaritan Hospital reached out to Central and met

confidentially with Dr. Unal and several other area physicians. The intent of the

people affiliated with Good Samaritan Hospital in arranging the meetings and what

occurred during those meetings is disputed. In any event, in 2014, Good Samaritan

Hospital announced the development of its new cancer center and in January 2016,

proceedings otherwise involving the corporate affairs of any

corporation not-for-profit subject to Title 15 [of the Pennsylvania

Consolidated Statutes (relating to corporations and unincorporated

associations)] or the affairs of the members, security holders,

directors, officers, or employees or agents thereof, as such.

Section 762(a)(5)(i1) of the Judicial Code, 42 Pa.C.S. § 762(a)(5)(i1).

the new Sechler Family Cancer Center opened. In August 2016, Central closed. The

gravamen of Central’s eight-count second amended complaint is that the two

nonprofits, Good Samaritan Hospital and WellSpan Health, formed a partnership

with Central and then subsequently breached their fiduciary duties. Much of

Central’s case is premised upon statements made by Dr. Unal, who died in June 2016

without ever having been deposed.

As Judge Jones ruled, the admissible evidentiary record contains

insufficient facts to make out a prima facie case for any of the eight causes of action.

Accordingly, with the clarification that there is no longer an operative counterclaim,

we affirm based on the trial court’s opinion.?

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

? In response to Judge McCullough’s thoughtful dissent, it remains clear that Central cannot

establish that Good Samaritan owed any duty to it without introducing out-of-court hearsay

statements of Dr. Unal, which are clearly not admissible. In other words, without being able to

establish why information was given to Good Samaritan, Central cannot show any obligation on

the part of Good Samaritan to treat the information in any particular way.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Central Pennsylvania Radiation

Oncology, P.C., a Pennsylvania

corporation,

Appellant

V. No, 1004 C.D. 2020

The Good Samaritan Hospital of

Lebanon, Pennsylvania, a Pennsylvania :

Corporation, WellSpan Health, a

Pennsylvania Corporation, and Robert

Longo, an adult Individual

ORDER

AND NOW, this 15" day of December, 2021, the order of the Court of

Common Pleas of Lebanon County is hereby AFFIRMED based on the attached

opinion of the Honorable Charles T. Jones, Jr., captioned Central Pennsylvania

Radiation Oncology, P.C. v. The Good Samaritan Hospital of Lebanon,

Pennsylvania, (No. 2015-02124, Lebanon County C.P. Pa. filed January 30, 2020).

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

_ ETEREO & FILED.

IN THE COURT OF COMMON PLEASPROTHONOTA RY OFFICE

OF LEBANON COUNTY, PENNSYLVANIA - “=8AHGN, PA |

| 18D. JAN 30 A852.

CIVIL DIVISION

CENTRAL PENNSYLVANIA

RADIATION ONCOLOGY, P.C.,

a Pennsylvania professional corporation,

Plainti ft/Counter-Defendant,

Vv, : Docket No.: 2015-02124

THE GOOD SAMARITAN

HOSPITAL OF LEBANON,

PENNSYLVANIA, a Pennsylvania

Corporation, and WELLSPAN

HEALTH, a Pennsylvania corporation,

Defendants/Counter-Plaintiffs,

ORDER OF COURT

AND NOW, to wit, this 29th day of January, 2020, after careful consideration

of the record and the oral arguments set forth by the parties, Defendants’ Motion for

Summary Judgment is -hereby- GRANTED. The ‘Complaint is“Disiiissed’ with

Prejudice. In addition, Defendants’ Second Amended Counterclaim is Dismissed

with Prejudice.

BY THE COURT:

Lule

ARLES T. JONESY, JR.

cc: Andrew J. Kennedy, Esquire

Andrew J. Race, Esquire

—

aTERED & sriLeD

IN THE COURT OF COMM6¢ cla gFFice

OF LEBANON COUNTY, PENNSYE¥

1810 JN 30 ‘Dh B52

CIVIL DIVISION

CENTRAL PENNSYLVANIA

~ RADIATION ONCOLOGY, P.C.,

a Pennsylvania professional corporation,

Plaintiff/Counter-Defendant,

v. : Docket No.: 2015-02124

THE GOOD SAMARITAN

- HOSPITAL OF LEBANON,

PENNSYLVANIA, a Pennsylvania

Corporation, and WELLSPAN

HEALTH, a Pennsylvania corporation,

Defendants/Counter-Plaintiffs.

APPEARANCES:

Andrew J. Kennedy, Esquire For Plaintiff/Counter-Defendant

Andrew J. Race; Esquire ee ‘For Defendarits/Counter-Plaintiffs

OPINION BY JONES, JR. J.:

Before this Court is Defendant’s Motion for Summary Judgment.

I, FACTUAL HISTORY

Plaintiff/Counter-Defendant Central Pennsylvania Radiation Oncology, P.C.

a/k/a Lebanon Valley Cancer Center is a Pennsylvania professional corporation.

Plaintiff alleges that for over twenty-five years it was the sole provider of radiation

oncology therapy in Lebanon County, Pennsylvania. Dr. Abdurrahman Unal, M.D.

was the Medical Director of Plaintiff and passed away shortly after litigation

commenced. Plaintiff initiated this matter because it is Plaintiff's belief that

2

Defendants purposefully deceived Plaintiff for the purpose of learning confidential

information from Plaintiff. Plaintiff claims that Defendants then used the |

confidential information to assist in destroying Plaintiffs business in Lebanon,

Pennsylvania.

Defendants/Counter-Plaintiffs include The Good Samaritan Hospital of

Lebanon, Pennsylvania, a Pennsylvania corporation, WellSpan Health, a

Pennsylvania corporation, and Mr. Robert Longo, an adult individual. The Good

Samaritan Hospital (hereinafter “GSR”) entered into an affiliation with WellSpan

Health in December of 2014 with GSH officially becoming part of WellSpan .

Health (hereinafter “WellSpan”) on July 1, 2015. Defendant Robert Longo is the

former President and CEO of GSH and former Senior Vice-President of WellSpan.

The issues in this case began in the early 2000’s. For several years between

2000 and 2015, GSH suffered financial losses. During this time, Robert Longo

(hereinafter “Longo”) and GSH determined the hospital should open a new,

comprehensive cancer center that would provide both medical oncology and

radiation oncology. In 2007, at the direction of Longo, GSH engaged Oncology

‘Resource Consultants, Inc. (hereinafter “ORC”) to advise GSH in developing the

hew cancer center. A working group, headed by Longo, was established to

accomplish the goal of providing radiation oncology therapy in the new cancer

center. Plaintiff Ex. 44.

In the summer of 2007, GSH determined it would reach out to Plaintiff

Lebanon Valley Cancer Center (hereinafter “LVCC”) and meet confidentially with

Dr. Unal along with several other physicians in the area. It is disputed what the

intent of GSH was in arranging the meetings and what actually occurred at each

meeting. Plaintiff claims GSH intended to work together to create a co-location

with Plaintiff, unify radiation oncology in Lebanon, and hire Dr. Unal. Plaintiff

argues that under the guise of the parties working together towards a joint cancer

3

center, GSH obtained detailed confidential information from Plaintiff including its

revenue, costs, profits, operational techniques, and marketing techniques. Plaintiff

Ex. 27, 45.

Plaintiff claims this information was partially obtained when ORC President,

Nancy Bookbinder, met with Dr. Unal on the behalf of GSH. The meetings took |

place at GSH. Plaintiff argues Nancy Bookbinder (“hereinafter Bookbinder”)

informed Dr. Unal that she was advising GSH on developing a new cancer center

with Plaintiff and asked Dr. Unal to provide confidential information to GSH. GSH

argues the purpose of the meetings was to meet with local physicians to complete

an analysis of local care. GSH denies any agreement to open a joint center or form

any partnership or joint venture. Plaintiff Ex. 27, 45.

After meeting with Dr. Unal, the working group, Long, and ORC established a

strategic plan for the creation of the new cancer center. This plan consisted of

inviting Dr. Unal to the next working group session to discuss potential unifying

efforts. The strategic plan also listed co-location of ambulatory oncology services

in a community cancer center as a specific goal. In order to accomplish this

_ Specific goal, the stratégic plan sugpéstéd that GSH meet with [VCC “to

determine interest in any issues associated with potential co-location of radiation

therapy services in a new ambulatory cancer center.” Plaintiff Ex. 29, P. 53.

In September of 2012, ORC provided GSH with an analysis and prospects of

the potential cancer center. The analysis included a projection that if LVCC

remained in business, the new cancer center at GSH would only treat between

twenty (20) and twenty-four (24) radiation oncology patients a day. ORC labeled

this as the “worst case scenario.” The probable and optimal case scenarios of the

analysis included GSH performance if LVCC closed. Ultimately, ORC projected

that if LVCC did not close, GSH medical oncology would lose approximately $2.8

million over a five-year period. If LVCC were to close, GSH would profit

4

approximately $8.9 million over a five-year period in the probable case and $11.9

million in the optimal case scenario. Plaintiff Ex. 43, 44, 45.

In 2013 or 2014, GSH employee Kelly Smith (hereinafter “Smith”) met with

Susan McCoy, Office Manager at LVCC. Plaintiff claims the purpose of this

meeting was for Smith to be trained by Plaintiff on all aspects of providing

radiation oncology therapy care, from patient intake through discharge and billing.

Plaintiff states that during this meeting, Smith obtained confidential information

including Plaintiffs operational efficiency, quality of assurance, strategic

marketing plans, and confidential referral sources. Plaintiff argues Smith then used

this information in developing the new cancer center at GSH. Plaintiff also claims

that Susan McCoy (hereinafter “McCoy”) was under the impression that a

reciprocal meeting would occur at GSH. However, after reaching out to Smith

three (3) times to arrange a cross training at GSH, Smith never scheduled a training

with McCoy. Plaintiff Ex. 46, 58.

Around the time of the meeting/training, Dr. Unal instructed McCoy and LVCC

employee Paul M. Castro, Ph.D. (hereinafter “Dr. Castro”) to send Smith LVCC’s

1* Quarter of 2014 Quality Assurance Report dated April of 2014. Plaintiff claims ~~ ~~

this information was sent with the belief that GSH and Plaintiff were working

together. Plaintiff Ex. 59.

In the spring of 2014, GSH announced the development of their new cancer

center. On June 26, 2014, Attorney Iles Cooper for L VCC sent a letter to Longo

addressing the recent announcement and Dr. Unal’s concerns for treatment in the

area. The letter also stated:

As you are also probably aware, through your consultants interviews

with Dr. Unal and tour of the Lebanon Valley Cancer Center,

substantial investments have been made to modernize and upgrade the

Center’s equipment within the last two (2) years.

The purpose of my writing is to determine the interest of GSH in

developing a collaborative cancer model for the Lebanon Valley

service area which would include Dr. Unal and the Center in the long-

term plans of GSH. a |

On behalf of Dr. Unal and the Center, I believe it would be

constructive to hold a meeting between the parties to explore the best

use of limited community resources for the best possible outcomes for

cancer care. :

If you believe a meeting would be mutually desirable, please have

your assistant contact me with your availability.

' In addition to the letter, Plaintiff, through Dr. Unal, hired an outside advertising

firm to create and publish advertisements and articles addressing the construction

of the new cancer center. These articles included statements on GSH’s use of tax

dollars, laying off employees, and wrongfully competing with Plaintiff. These

articles were then printed in the Lebanon Daily News, Penn Live, and other online

and print sources. |

While the new cancer center was under construction in October 201 5, Plaintiff

_ argues GSH stopped referring patients to LVCC in order.to put Plaintiff out of

business. Plaintiff states that on behalf of GSH, Longo and Smith directed

oncologists at GSH to stop referring patients to LVCC. Specifically, Plaintiff

claims Drs. Karla Ludwig, Riben Perez, Neenos Al-Noor, and Muhammad Khan

refused to refer patients to Plaintiff or any radiation oncologists in order to create a

backlog of patients for the new cancer center. Plaintiff states these employees also

told patients to retrieve their records from Plaintiff because Plaintiff was going out

of business, Within the Complaint, Plaintiff provides a detailed list of patients who

they argue were wrongly diverted away from treatment with LVCC by GSH. The

dates of diversion range from September of 2015 to April of 2016. GSH denies any

patients were told Plaintiff was closing or that they stopped referring to LVCC

before GSH’s cancer center opened. |

The Sechler Family Cancer Center (SFCC) eventually opened at GSH in

January of 2016. Until the opening of the facility, GSH had never previously

provided radiation oncology services.

In August of 2016, LVCC closed. After closing, Plaintiff hired Michael Andrew

Elinsky (hereinafter “Elinsky”) to assess business damages. Elinsky issued two

reports: one addressing Plaintiff's damages and the other addressing the

relationship between Plaintiff and GSH. The Elinsky Report opined that there was

a confidential relationship between the parties and GSH abused its confidential

position by seeking information from LVCC after GSH had decided to open their

own cancer center. The Elinsky Report also stated that these actions by GSH

support the position of an agreement between the parties and GSH thereby

breached its duty by acting with the intent to harm LVCC through fraud or

deception. Plaintiff Ex. 4.

IL ... PROCEDURAL HISTORY.

This case was initiated on December 1, 2015, by Writ of Summons. The

Complaint alleges eight (8) counts including: (1) Breach of Fiduciary Duty against

Good Samaritan Hospital and Robert Longo; (2) Breach of F iduciary Duty against

WellSpan and Robert Longo; (3) Violation of the Pennsylvania Trade Secrets Act

against all Defendants; (4) Civil Conspiracy against Good Samaritan Hospital and

WellSpan; (5) Intentional Misrepresentation against Good Samaritan Hospital and

Robert Longo; (6) Negligent Misrepresentation against Good Samaritan Hospital

and Robert Longo; (7) Tortious Interference with Existing Contractual Relations

against Good Samaritan Hospital; and (8) Tortious Interference with Prospective

Contractual Relations against Good Samaritan Hospital. After multiple protective

7

orders, preliminary objections, and miscellaneous Orders, Plaintiff filed a Second

Amended Complaint on December 28, 2017.

Defendants filed their Answer, New Matter, and Counterclaim on J anuary 16,

2018. Plaintiff filed Preliminary Objections on February 5, 2018. In response,

Defendants filed an Amended Answer, New Matter, and Counterclaim on February

6, 2018, thereby mooting Plaintiff's Preliminary Objections. Plaintiff then filed

Preliminary Objections to the Amended Answer, New Matter, and Counterclaim

on February 23, 2018. An Order and Opinion addressing these Preliminary

Objections was issued on September 17, 2018. Defendants then filed a Second

Amended Counterclaim, Answer, and New Matter on November 16, 2018.

Plaintiff filed Preliminary Objections to Defendants’ Second Amended

Counterclaim, Answer, and New Matter on December 7, 2018. Defendants did not

_ file a brief addressing the Preliminary Objections. Plaintiff then filed a motion to

close discovery.

On September 16, 2019, Defendants filed a motion for Summary Judgment.

This case was listed for oral argument on November 19, 2019. Both parties have

submitted briefs-on the issues. The parties have agreed that the relevant pleadings

and discovery are closed. This matter is now ripe for disposition.

Ill. STANDARD OF REVIEW

Summary judgment should be granted whenever the pleadings, depositions,

answers to interrogatories, admissions, and affidavits demonstrate there is no issue

of material fact and that the moving party is entitled to judgment as a matter of law.

Pa. R. Civ. P. 1035.1-5. The moving party has the burden of proving that there is

no genuine issue of material fact, and the record must be viewed in the light most

favorable to the non-moving party. Thompson Coal Co. v. Pike Coal Co., 412 A.2d

466 (Pa. 1979); Davis v. Pennzoil, 264 A.2d 597 (Pa. 1970). Once the moving party

8

establishes that there is no issue of material fact, the adverse party may not rest upon

the mere allegations or denials of the pleadings but must file a response. Pa. R. Civ.

P. 1035.3. Summary judgment should only be granted where the right is clear and

free from doubt, and any doubt must be resolved against the moving party. Musser

v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989); Davis v. Pennzoil, 264

A.2d 597 (Pa. 1970). The court must consider uncontroverted facts in the non-

moving party’s pleadings and ignore controverted facts. Hower v. Whitmark

Assocs., 538 A.2d 524, 525 (Pa. Super. 1988).

Averments in a pleading to which a responsive pleading is required are admitted

| when not denied specifically or by necessary implication. Pa. R. Civ. P. 1029(b).

A general denial or a demand for proof has the effect of an admission. Pa. R. Civ.

P. 1029(b). The pleadings should be examined as a whole in determining whether

a party has admitted the material factual allegations of a pleading. Kappe Associates,

Inc. v. Aetna Cas. & Sur. Co., 341 A.2d 516 (Pa. Super. 1975). “Where a motion

for summary judgment has been made and properly supported, the party seeking to

avoid the imposition of summary judgment must show by specific facts in their

depositions, answers to interrogatories, admissions, or affidavits that there is a

genuine issue for trial.” Marks v. Tasman, 589 A.2d 205, 206 (Pa, 1991). “Failure

of a non-moving party to adduce sufficient evidence on an issue essential to his case

and on which it bears the burden of proof... establishes the entitlement of the moving

party to judgment as a matter of law.” Young v. PennDOT, 744 A.2d 1276, 1277

(Pa. 2000). Therefore, “[a] proper grant of summary judgment depends upon an

evidentiary record that either (1) shows the material facts are undisputed or (2)

contains insufficient evidence of facts to make out a prima facie cause of action or

defense.” Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d 855, 858 (Pa. Super.

2004) (quoting McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa.

Super. 1998)).

IV. DISCUSSION

Defendants filed a motion for Summary Judgment against all eight (8) counts

raised in the Amended Complaint. Defendants also made two additional arguments

regarding Dr. Unal’s previous statements and the admissibility of the Elinsky

Report. Based on Defendants’ brief, Plaintiff made an additional argument

regarding Defendants’ reliance on Bookbinder’s deposition. The Court will

combine the analysis for Counts I and Il, Counts V and VI, and Counts VII and

VIII, but will address all other arguments separately. In addition, this Court will

also address Defendants Second Amended Counterclaim.

A. ADMISSIBILITY OF DR. UNAL’S PREVIOUS STATEMENTS

Defendants argue Dr. Unal’s statements are not admissible and cannot form the

basis of a defense to summary judgment. Specifically, Defendants argue there was

no opportunity to cross-examine Dr. Unal and he is now unavailable, Therefore,

Defendants claim all statements offered by Dr. Unal are inadmissible and any

witness who relies solely upon Dr. Unal’s inadmissible statements cannot offer

testimony. Sook ee teeta te vet ee ae

7 Under Rule 804 of the Pennsylvania Rules of Evidence, a declarant is

considered to be unavailable as a witness if the declarant cannot be present or

testify at the trial or hearing because of death. Pa. R. E. 804(4). An unavailable

witness’s prior testimony may be admitted provided the opposing party had a “full

opportunity to cross-examine that witness at a prior proceeding. Commonwealth y.

Johnson, 758 A.2d 166, 169 (Pa. Super. 2000). If the opposing party has not had a

full and fair opportunity to cross-examine an unavailable witness, the testimony is

not admissible at trial. Commonwealth v. Bazemore, 614 A.2d 684, 685-686 (Pa.

1992). A motion for summary judgment cannot be supported or defeated by

10

statements that include inadmissible hearsay evidence. Botkin v. Metropolitan Life

Ins. Co., 907 A.2d 641, 649 (Pa. Super. 2006).

Here, there is no question that Dr. Unal is an unavailable witness.

Unfortunately, Dr. Unal died and therefore could not be cross-examined by

Defendants. As such, any statements made by Dr. Unal or witnesses that rely

solely on his statements are inadmissible. Thus, these statements may not be used

to defeat Defendant’s Motion for Summary Judgment and the Court will not

consider them.

B. BREACH OF FIDUCIARY DUTY AGAINST GOOD SAMARITAN

HOSPITAL, WELLSPAN, AND ROBERT LONGO

Defendants argue there is not sufficient evidence to establish a partnership was

formed between the parties. Defendants claim there is no evidence of record

Defendants ever intended or discussed making Plaintiff a “co-owner of a business

for profit” like Plaintiff claims. In addition, Defendants state that Plaintiff failed to

provide facts sufficient to establish the requirements to create a joint venture.

‘Defendants argue Plaintiff has failed to bring to light any facts or evidence;

documentary or otherwise, sufficient to create an inference that there was a “joint

proprietary interest” or the “right of mutual control” that is required to create a

joint venture. Defendants also claim there are no allegations that any profit sharing

was intended or discussed by any of the parties. Therefore, as there is no

confidential relationship nor any fiduciary duty, Defendants argue summary

judgment should be granted in favor of Count I and Count II.

Plaintiff argues the evidence shows Defendants breached a confidential

relationship and therefore breached their fiduciary duty as part of a joint venture or

as part of a partnership. Specifically, Plaintiff claims that Nancy Bookbinder told

Dr. Unal their conversations were confidential. Due to this assurance, Plaintiff

11

argues Dr. Unal discussed confidential information regarding treatments, referrals,

and evaluations. In addition, Plaintiff claims that both McCoy and Dr. Castro

provided proprietary information to Kelly Smith on the grounds that the two would

be working together. Plaintiff argues this information is enough for a jury to

conclude that there was a confidential and fiduciary relationship between the

parties. |

Finally, Plaintiff claims there is sufficient documentary evidence to support

such a relationship when considering ORC’s documents, the Hospital’s emails, and

Robert Longo, as the head of the working group, inviting Dr. Unal to meet with the

working group. Regardless of these documents, Plaintiff also argues that creating a

confidential relationship does not require a written contract. Plaintiff states that a

fiduciary duty in a joint venture attaches once negotiations being.

Under Pennsylvania law, a partnership is “an association of two or more

persons to carry on as co-owners of a business for profit, whether or not the

persons intended to form a partnership.” 15 Pa. C.S.A. § 8422(a). In order to

determine whether a partnership has been formed, the following rules apply: (1)

‘Joint tenancy, tenancy in’commion, tenancy by the entireties, joint property;

common property or part ownership does not by itself establish a partnership, even

if the co-owners share profits made by the use of the property; (2) the sharing of

gross returns does not by itself establish a partnership, even if the persons sharing

them have a joint or common right or interest in property from which the retums

are derived; and (3) a person who receives a share of the profits of a business is

presumed to be a partner in the business unless an exception applies. Id.

On the other hand, a joint venture is not a status created or imposed by law but

is instead a relationship voluntarily assumed and arising wholly from contract.

Snellbaker v. Herrmann, 462 A.2d 713, 716 (Pa. Super. 1983). For a relationship

to be a joint venture, the following factors are essential: (1) each party to the

12

venture must make a contribution, not necessarily of capital, but by way of

services, skill, knowledge, materials or money; (2) profits must be shared among

the parties; (3) there must be a “joint property interest and right of mutual control

over the subject matter” of the enterprise; and (4) usually, there is a single business

transaction rather than a general and continuous transaction. Snellbaker, 462 A.2d

at 716 (citing McRoberts v. Phelps, 138 A.2d 439, 443-444 (Pa. 1958)). A joint

venture is similar in many ways to that of a partnership, the principal difference

being that it usually, though not always, applies to a single transaction instead of

being formed for the conduct of a continuing business. West v. People First

National Bank & Trust Co., 106 A.2d 427, 431 (Pa. 1954).

In both a partnership and a joint venture, a fiduciary duty exists between the

parties. Snellbaker, 462 A.2d at 718; Clement v. Clement, 260 A.2d 728, 729 (Pa.

1970). A fiduciary duty is the highest duty implied by law. Miller v. Keystone Ins.

Co., 636 A.2d 1109, 1116 (Pa. 1994). This duty requires a party to act with the

utmost good faith in furthering and advancing the other person’s interests,

including a duty to disclose all relevant information. Yenchi y. Ameriprise

Financial, Inc., 161 A.3d 811, 819-820 (Pa. 2017); Basile v. H & R Block, Inc.,

761 A.2d 1115, 1120 (Pa. 2000). A fiduciary duty will be imposed only where the

attendant conditions make it certain that a fiduciary relationship exists. Yenchi,

161 A.3d at 820.

A fiduciary duty does not arise merely because one party relies on and pays for

the specialized skill of the other party. eToll, Inc. v. Elias/Savion Advertising,

Inc., 811 A.2d 10, 23 (Pa. Super. 2002). Specifically, the critical question for

establishing a fiduciary relationship is whether the relationship goes beyond mere

reliance on superior skill, and into a relationship characterized by overmastering

influence on one side or weakness, dependence, or trust, justifiably reposed on the

other side, which results in the effective ceding of control over decision-making by

13

the party whose property is being taken. Yenchi, 161 A.3d at 823 (citing eToll,

Inc., 811 A.2d at 23 (holding that although an advertising company was a “‘trusted

advisor” to a software developer, no fiduciary relationship existed between the

parties). .

In this case, the Court finds there was no fiduciary duty between the parties.

First, neither a partnership nor a joint venture was ever created. There is no

evidence profits were ever shared or that Plaintiff had any “right of mutual

control,” which is fundamental to the creation of both relationships. Second, there

is no evidence of any transactions, contracts, or repeated business transactions.

While LVCC gave Defendants a QA summary and provided training for GSH

because Dr. Unal believed the two would be working together, there is no

indication that was ever the intent of GSH. Bookbinder did meet with Dr. Unal

_ confidentially, as she did with multiple physicians in the area, but both her notes

and her testimony indicate there was never any talk of hiring Dr. Unal or

collaborating with LVCC to create a joint cancer center. This is also true for both

Longo and WellSpan, who have had even fewer interactions with Plaintiff than

GSH

Additionally, as Bookbinder indicated, the ORC goal of discussing with LVCC

the potential for co-locating appear to be just that — a goal. There is no evidence

presented that GSH acted on that goal or created an actual plan to join forces with

LVCC. The letter sent on behalf of Dr. Unal in June of 2014 also supports this lack

of an agreement. The letter indicates interest in collaborating and exploring the

possibility of the parties working together, further undermining Plaintiff s belief a

deal had already been struck with Defendants. In addition, the advertisements

published by Plaintiff against GSH support the conclusions that not only was there

no contract between the parties, but that Plaintiff was well aware they would not be

working together in the future.

14

The same is also true for the financial analysis of SFCC. While ORC indicated

the new cancer center would lose money if LVCC remained in business, there is no

indication GSH moved against LVCC or purposely tried to use any information ©

obtained to undermine LVCC. The financial report provides a clear picture ofa

financial future for a new cancer center, but does not indicate GSH intended or did

take action against LVCC. As there was no fiduciary duty created by either a joint

venture or a partnership, and there was no action on the part of GSH to breach a

fiduciary duty even if one had been created, Counts I and II of the Amended

Complaint must be dismissed.

C. VIOLATION OF THE PENN SYLVAN IA UNIFORM TRADE

SECRETS ACT AGAINST ALL DEFENDANTS

First, Defendants argue the three-year statute of limitations expired in 2015,

prior to filing the Writ of Summons. Specifically, Defendants argue Dr. Colkitt

testified that in early 2012, there was no longer any indication of forward

movement between the parties. Defendants state that at that time, Plaintiff either

knew or should have known whether a cause of action existed. —

Second, regardless of the statute of limitations, Defendants st state there j is no

evidence to substantiate a violation of the Uniform Trade Secrets Act. Defendants

claim that in response to Discovery, Plaintiff stated it failed to retain any

documents allegedly provided to Nancy Bookbinder that would constitute the

confidential information provided by Dr. Unal. Defendants argue Plaintiff can

produce only one document, an eight-page quality assurance summary provided to

Defendants, which addressed one quarter of 2014. In addition, when Kelly Smith

met with Susan McCoy at Plaintiff's facility, Ms. Smith took less than one page of

notes on a small notepad between 8:30 a.m. to 1:30 p.m. As these are the only

15

documents that transferred between the parties, Defendants argue there is no

evidence that any trade secrets were exchanged or used.

Plaintiff first argues the statute of limitations has not expired because in both

2013 and 2014, Defendants obtained proprietary information based on the premise

of working together to jointly develop a cancer center. Second, Plaintiff argues that

Defendants did in fact receive confidential information as shown by the testimony

of McCoy, Dr. Castro, Bookbinder, and the Elinsky Report. Plaintiff states that

Defendants obtained this information by improper means when they agreed to keep

this information confidential under the assumption that the parties would be

developing a joint cancer center.

The Pennsylvania Uniform Trade Secrets Act (hereinafter “the Act”) allows a

court to issue injunctive relief, based on threatened or actual misappropriation of a

trade secret. 12 Pa. C.S.A. §5302-5303. In order to state a claim under the Act, the

disputed information must first qualify as a trade secret. Pestco, Inc. v. Associated

Products, Inc., 880 A.2d 700, 706 (Pa. Super. 2005). A trade secret is defined as

information, including a formula, drawing, pattern, compilation including a

Customer list, program, device, method, technique or process that: (1) derives

independent economic value, actual or potential, from not being generally known

to, and not being readily ascertainable by proper means, other persons who can

obtain economic value from its disclosure or use; and (2) is the subject or efforts

that are reasonable under the circumstances to maintain its secrecy. 12 Pa. C.S.A,

§5302.

No bright line rule exists on what constitutes a trade secret; rather, the issue is

analyzed on a case-by-case basis. Pestco, Inc., 880 A.2d at 706. Several factors are

relevant to the analysis including: (1) the extent to which the information is known

outside of the company's business; (2) the extent to which it is known by

employees and persons inside the company; (3) the extent of measures the

16

employer has taken to guard the secrecy of the information; (4) the value of the

information to the company and its competitors; (5) the amount of effort or money

expended in developing the information; and (6) the ease or difficulty with which

the information could be properly acquired or duplicated by others. Crum vy,

Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578, 585 (Pa, Super.

2006). “The crucial indicia for determining whether certain information constitutes

a trade secret are ‘substantial secrecy and competitive value to the owner.’” O.D,

Anderson, Inc. v. Cricks, 815 A.2d 1063, 1070 (Pa. Super. 2003).

In this case, there is no evidence Defendants violated the Uniform Trade Secrets

. Act. First, the notes taken by Smith from the meeting at LVCC with McCoy are

insufficient to constitute a trade secret. From the short period of time spent at

LVCC and the minimal amount of notes taken, it does not appear that Smith

obtained any secret information. In addition, Plaintiff is unable to articulate any

specific trade secret that Smith might have obtained or used that was of

competitive value to Plaintiff.

Second, the eight-page 2014 Quality Assurance summary given to Defendants

by McCoy and Dr. Castro cannot be considered a trade secret. Thesummary

provides a small look into LVCC. While this information is potentially helpful to

either Plaintiff or Defendant, it does not amount to the level of valuable, secret

information that is of great importance to LVCC. In addition, Plaintiff readily gave

the information to Defendants and it does not appear that any “improper means”

were used to obtain the summary. As stated above, there is no evidence Defendants

ever actively moved to create a joint cancer center with Plaintiff As such,

Plaintiffs incorrect assumption or belief that they would be working together with

Defendants and thereby giving Defendants the summary would not establish

improper means on Defendants part.

17

Third, as stated above, there is no evidence Bookbinder obtained any

confidential information from her meetings with Dr. Unal. Therefore, Count III for

violation of the Uniform Trade Secrets Act must be dismissed. As such, whether or

not the statute of limitations had expired on this claim is irrelevant.

D. CIVIL CONSPIRACY AGAINST GOOD SAMARITAN HOSPITAL

AND WELLSPAN

Defendants argue all actions within the Complaint took place before WellSpan

joined with GSH. Therefore, Defendants claim, because the civil conspiracy is

only actionable against GSH and GSH cannot conspire with itself, there cannot be

a valid claim for civil conspiracy. In addition, Defendants argue Plaintiff has failed

to provide the documents necessary to support a claim for civil conspiracy and

summary judgment must therefore be granted.

Plaintiff argues admissions within the pleadings establish that WellSpan came

into the picture in 2013, well within the time frame to be a party to civil

conspiracy. Plaintiff also argues that the documents in this case show WellSpan

-Was concemed.about the cancer-center and needed-Plaintif€-out of. -business inorder -~-

for Defendants to not lose millions. Plaintiff also claims that WellSpan was

involved in determining that Dr. Unal should not be hired and WellSpan requested

that GSH keep Dr. Unal uninformed about the progress of the cancer center. As

such, Plaintiff argues Defendants have failed to show that summary judgment is

“free and clear from doubt” and the Court should deny their motion.

In order to establish civil conspiracy, it must be shown that two or more persons

combined or agreed with the intent to do an unlawful act or to do an otherwise

lawful act by unlawful means. Thompson Coal Co. v. Pike Coal Co., 412 A.2d

466, 472 (Pa. 1979). Proof of malice, or an intent to injure, is an essential element

to prove conspiracy. Id. A conspiracy becomes actionable when some overt act is

18 .

done in pursuance of the common purpose or design held by the conspirators and

actual legal damage results. Baker v, Rangos, 324 A.2d 498 (Pa. Super. 1974),

When a plaintiff relies on subsequent acts to establish conspiracy, these acts must

be such as to clearly indicate the prior collusive combination not slight

circumstances of suspicion. Id. (citing Novic y, Fenics, 11 A.2d 871, 874 (Pa.

1940). These subsequent acts must be such as to warrant the belief and justify the

conclusion that the subsequent acts were done in furtherance of the unlawful

combination. Jd. | a

Here, Plaintiff has failed to establish who the conspirators were, what overt act

was done in furtherance of the conspiracy, and any actual legal damage that

resulted from the said conspiracy. Plaintiff mentions GSH’s association with

WellSpan. However, besides GSH joining with WellSpan around 2015 , there is no

evidence presented that WellSpan had any connection or contact with Plaintiff

Second, Plaintiff can only offer suspicions that Defendants must have worked

together to undermine Plaintiff. There is no proof of malice within the record to

establish a conspiracy. Any actions or events Plaintiff cites to, such as the probable

and optimal case within the ORC report, are only-speculations as to Defendanty’ ~~

intent. These beliefs are insufficient to establish civil conspiracy and Count IV

therefore must be dismissed,

E. INTENTIONAL AND NEGLIGENT MISREPRESENTATION

AGAINST GOOD SAMARITAN HOSPITAL AND ROBERT LONGO

Defendants argue there is not sufficient evidence to show that any

representations were made to Dr. Unal or any other Plaintiff. Defendants claim

there is no evidence of record Defendants ever intended or discussed making

Plaintiff a “co-owner of a business for profit” like Plaintiff claims. In addition,

Defendants argue Plaintiff has failed to bring to light any facts or evidence,

19

documentary or otherwise, sufficient to show a confidential relationship or any

fiduciary duty.

Plaintiff argues a jury could find that GSH had a confidential relationship with

Plaintiff in “co-locating” LVCC with the new cancer center. Plaintiff claims that

Plaintiff was misled about GSHN’s true intention to jointly develop a center

together.

The essential elements of a cause of action for fraud or deceit are

misrepresentation, fraudulent utterance thereof, intention to induce action thereby,

justifiable reliance thereon, and damage as a proximate result. Wilson v. Donegal

Mut. Ins. Co., 598 A.2d 1310, 1315 (Pa. Super. 1991) (citing Neuman v. Corn

Exchange National Bank & Trust Co., 51 A.2d 759 (Pa. 1947)). To be actionable,

a misrepresentation need not be in the form of a positive assertion but is any

artifice by which a person is deceived to his disadvantage. Delahanty v. First

Pennsylvania Bank, N.A., 464 A.2d 1243 (Pa. 1983). This may take the form of

false or misleading allegations or by concealment of that which should be

disclosed, which deceives or is intended to deceive another to act upon it to

A negligent misrepresentation requires proof of: (1) a misrepresentation of a

material fact; (2) made under circumstances in which the representor ought to have

known its falsity; (3) with an intent to induce another to act on it; and (4) which

results in injury to a party acting in justifiable reliance on the misrepresentation,

Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994) (citing Restatement (Second) of

Torts § 552. Ultimately, negligent mi srepresentation differs from intentional

misrepresentation in that to commit the former, the speaker need not know his or

her words are untrue but must have failed to make reasonable investigation of the

truth of those words. Id.

20

Here, there is no evidence that any misrepresentations, let alone any fraudulent

utterances, were ever made in this case. There are no statements made to Plaintiff

or admissions by Defendant that would support a viable claim. Ultimately, the only

evidence Plaintiff relies on are actions of LVCC’s employees based on the belief

Dr. Unal had that a deal with GSH had been made. However, Plaintiff's reliance on

that belief without sufficient evidence supporting an agreement or intent to form a

partnership are insufficient to establish either intentional or negligent

misrepresentation. Plaintiff cannot cite to any other statements, documents, or

claims made by Defendants that would qualify as a misrepresentation, AS such,

Count V and VI must be dismissed.

F. TORTIOUS INTERFERENCE WITH EXISTING AND

PROSPECTIVE CONTRACTUAL RELATIONS AGAINST GOOD

SAMARITAN HOSPITAL

Defendants argue Plaintiff has no sufficient evidence to create any issue of fact

that Defendant ever tortuously interfered with patients and directed patients to

other care providers. Defendants claim that the Second Amended Complaint |

~ accuses ‘Defendant Longo and Kelly Smith that they directed Drs. Ludwig, Perez,

Al-Noor, and Khan to refuse to refer Patients to Plaintiff beginning in October of

2015. However, Defendants state that Dr. Khan did not work at GSH until after the

inception of this suit. Likewise, Defendants claims that Dr. Colkitt testified that Dr.

Ludwig “never sent any patients anyway.” Plaintiff Ex. 48. In addition,

Defendants argue Plaintiff has no evidence that Defendant Longo or Kelly Smith

ever directed anyone to divert patients or that a single patient was actually

diverted. As such, Defendants argue there is not sufficient evidence to create any

issue of fact that Defendants tortuously interfered with patients.

21

Plaintiff argues the evidence shows Defendants interfered with patient referrals,

First, Plaintiff argues the affidavit of Dr. Colkitt shows that consults from outside

referrals to Plaintiff's center dropped to almost nothing from October to November

of 2015, months before SFCC opened. Since there was no other radiation center in

Lebanon, Plaintiff states a jury could find that Defendants were holding patients

back for months until its own cancer center opened. Plaintiff also claims there is

evidence that GSH was telling LVCC patients that Plaintiff was closing even

before SFCC officially opened. Finally, Plaintiff argues they are not required to

identify who was referring patients away from LVCC. Plaintiff states the evidence

provided showing GSH interfered with LVCC patients is enough to deny the

Motion for Summary Judgment. |

In order to set forth a legally sufficient cause of action for intentional

interference with contractual or Prospective contractual relations, four elements

must be pled: (1) the existence of a contractual, or prospective contractual relation

between the complainant and a third party; (2) purposeful action on the part of the

defendant, specifically intended to harm the existing relation, or to prevent a

__ Prospective relation from occurring;-(3)-the absence of privilege-or justification on” ~

the part of the defendant; and (4) the occasioning of actual legal damage as a result

of the defendant’s conduct. Orange Stones Co. y. City of Reading, 87 A.3d 1014,

1025 (Pa. Cmwilth. 2014) (citing Pelagatti v, Cohen, 536 A.2d 1337, 1343 (1971).

It is important to note that interference is an intentional tort, meaning the actor is

acting as he does for the purpose of causing harm to the Plaintiff. Glenn vy. Point

Park College, 272 A.2d 895, 899 (Pa. 1971). “The wrong ordinarily requires

conduct intended to interrupt negotiations or prevent the consummation of a

contract.” Id.

After reviewing the record, there is no evidence indicating Defendants acted to

interfere with Plaintiff's patients. In fact, the testimony of McCoy indicates there is

22

no. indication GSH held any patients back, but that Plaintiff simply noticed a

“somewhat decrease of patients in October, November, December” of 2015.

Plaintiff Ex. 46 P. 104. Plaintiff also fails to articulate who specifically interfered

with patients and how patients were withheld from Plaintiff. In answers provided

during discovery, Plaintiff responded “Unknown” to who at GSH interfered with

patients. Defendants Ex. D. Plaintiff speculates regarding actions GSH may have

taken, but this is insufficient to meet the standards required under intentional!

interference. |

In addition, Plaintiff has not indicated which patients were existing patients and

which were prospective patients. Plaintiff mentions patients who were told LVCC

was closing but the patients, who were not deposed, were unable to say who told

them LVCC was closing. The other patients listed by Plaintiff who stopped

treatment at LVCC and began treatment at SFCC, started treatment at SFCC after

the new center opened. While it does appear from Plaintiff's brief and complaint

that the patients were current patients with Plaintiff when they switched treatment

to SFCC, Plaintiff is missing key facts for an intentional interference. Plaintiff does

. nO: State any purposeful action or statements made by Defendants to interfere with ~ a

any patients. Without any evidence of direct steps taken by Defendants, there is no

indication of why the patients left LVCC.

Finally, in the absence of any contract between GSH and Plaintiff, there is no

duty on the part of GSH or its affiliated doctors to refer patients to any specific

providers. GSH would therefore not be required to continue to refer patients to

Plaintiff just because they had referred patients there in the past. As such, Count

VII and Count VIII must be dismissed.

23

G. ADMISSIBLITY OF MICHAEL ELINSKY’S REPORT

Defendants argue the Elinsky Report is inadmissible and Plaintiff cannot use

the report to defeat this Motion. Defendants claim that the Elinksy Report reviewed

no Interrogatory responses, no Request for Production of Document responses, and

only considered four of twenty depositions. In addition, Defendants claim that

when Michael Elinksy drafted the report, he never reviewed the actual eight-page

quality assurance document provided by Susan McCoy, Officer Manager for Dr.

Unal. Defendants also state that the report relies on statements made by Dr. Unal,

which should be inadmissible in this matter, F inally, Defendants claim that since

‘an expert cannot testify on the ultimate question of fact in any civil proceeding, the

report should not be allowed. Asa result, Defendants argue the report cannot be

relied upon to show the existence of a confidential relationship between the parties

or even that negotiations took place.

Plaintiff first argues the Elinsky report only opines on the ultimate issue of the

formation of an agreement ina few sentences within his detailed four-page report,

As such, Plaintiff claims the remainder of the report must be considered. Next,

P | al ntiff States that Defendants mi Stake the.law-on-both-the ultimate issue” arid what

| an expert may base his opinion upon. Plaintiff also states that Defendants’ attack

on Elinsky’s credibility for the information he relied on to form his opinion is

unacceptable at this stage in the proceedings. Plaintiff argues it is up to a jury to

determine credibility, not the Court at summary judgment. Finally, Plaintiff States

that Elinsky did in fact use the eight-page quality assurance summary to support

his opinion that GSH had obtained confidential information under the premise that

Plaintiff and Defendants would be working together, Therefore, Plaintiff argues

this report, in and of itself, creates a genuine issue of material fact and is sufficient

to deny the Motion for Summary Judgment,

24

An expert report must be supported by the record. Downey v. Crozer-Chester

Medical Center, 817 A.2d 517, 528 (Pa. Super. 2003). Specifically, an expert’s

opinion must reference facts, testimony, or empirical data and must delineate how

thé opinion, based on the record, gives rise to a genuine issue of material fact. Id.

Without such support, there can be no prima facie case to overcome a summary

Judgment motion. Jd!

In this case, the expert report implies that the transactions between the parties

must mean an agreement was reached. Specifically, the report states “It is common

for companies to reach meaningful agreements, which may be written or verbal,

with each other prior to engaging lawyers to prepare final documents... [T]he

numerous meaningful direct actions of the parties [] clearly demonstrate that an

agreement was reached and acted upon.” Plaintiff Ex. 4. One of the “numerous”

actions the report relies upon are apparent beliefs by Dr. Unal that GSH and LVCC

would be working together which resulted in him sending over a QA report of

LVCC. However, without Dr. Unal, there is no evidence from GSH or other LVCC

employees that the documents sent to GSH were the result of an agreement

between the parties. In addition, none. of Bookbinder’s. notes from-2007-or-204-].- -- =

indicate an agreement had been reached or that GSH intended to partner with

LVCC. The notes state that Dr. Unal had to discuss with his business partners

“with respect to any business opportunities,” but this statement is much too vague

to conclude that GSH was asking to collaborate with LVCC.

The report also relies on the ORC report and training with Smith. As already

addressed, there is not sufficient evidence in either the report or the short training

* See also Kenner y, Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178 (Pa. Super. 2002) (affirming entry

of summary judgment where an expert’s opinion contained within a report, failed to point to specific

facts, testimony, or empirical data for support); Checchio v. Frankford Hospital, 717 A.2d 1058, 1062

(Pa. 1998) (affirmed summary judgment where expert opinion was based entirely on subjective

assessments).

25

session with Smith that either GSH wanted to interfere with LVCC or that an

agreement had been reached. Without any direct statements, concrete evidence, or

documents demonstrating either an agreement had been reached or a confidential

relationship had been established, the conclusions in the report are speculative at

best. Ultimately, the report reviewed small amounts of testimony and very few

documents but still makes broad statements and conclusions without citing specific

evidence. This conclusion is therefore not well founded and would be Prejudicial to

a potential jury. Based on these findings, this Court will not consider the report in

defending the motion for summary Judgment. Since the Court will not use the

report in the summary judgment analysis, whether or not the report opines on an

ultimate issue of law or fact is irrelevant to this analysis.

H. DEFENDANTS’ RELIANCE ON BOOKBINDER’S DEPOSITION IN

VIOLATION OF NANTY-GLO

Plaintiff argues Bookbinder, as president of ORC, was GSH’s agent. Plaintiff

argues that as GSH’s agent, Bookbinder, took thousands of pages of notes and

analyzed years of data. As such, Plaintiff argues, Defendants’ reliance on.

Bookbinder in their brief violates the standard for granting summary judgment,

Plaintiff claims a party cannot rely on the testimony of its own witnesses to show

that the party is entitled to summary judgment. Therefore, Plaintiff argues the

motion should be denied.

Defendants argue Bookbinder is not an agent of GSH but is instead an

independent contractor. As such, GSH is not bound by any of Bookbinder’s

actions. In addition, since Bookbinder is not part of GSH, Nanty-Glo does not

apply to this case.

Under the Nanty-Glo tule, summary judgment is prohibited where the moving

party relies exclusively on oral testimony, either through testimonial affidavits or

26

deposition testimony, to establish the absence of a genuine issue of material fact.

Lineberger vy, Wyeth, 894 A.2d 141 (Pa. Super. 2006). “Testimonial affidavits of

the moving party or his Witnesses, not documentary, even if uncontradicted, wil]

not afford sufficient basis for the entry of summary judgment, since the credibility

of the testimony is still a matter for the jury. Penn Center House, Inc. v. Hoffman,

553 A.2d 900 (Pa. 1989) (quoting Goodrich-Amram. 24 § 1035(b): 4 at P. 434-

35).

Here, while it is true that Defendants do quote Bookbinder, they do not solely

rely on her testimony. In fact, Defendants mostly rely on the absence of evidence

within the record to establish any of Plaintife s claims, As explained above, the

evidentiary record contains insufficient evidence of facts to make out a prima facie

cause of action. The action is consequently dismissed for a failure to make out a

prima facie case, not for lack of a genuine issue of material fact, Therefore,

whether or not Defendants relied on Bookbinder in violation of Nanty-Glo to

establish the absence of a genuine issue of material fact is insignificant. As such,

whether or not Bookbinder is GSH’s agent and if Defendants may rely on her

testimony is irrelevant. —

I. DEFENDANTS SECOND AMENDED COUNTERCLAIM

Defendants filed a Counterclaim against Plaintiff arguing Plaintiff engaged in a

smear campaign against Defendants that resulted in tortious interference with

prospective contractual relations. Specifically, Defendants argue Plaintiff lied

and/or misled readers of advertisements and articles that stated false accusations

against Defendants. Defendants claim these statements misled Prospective patients

and resulted in patients being deterred from receiving treatment at SFCC.

Plaintiff has filed several Preliminary Objections against this Counterclaim that

have resulted in a final Second Amended Counterclaim filed on November 16,

27

2018. After reviewing the record, it does not appear that Defendants filed a brief in

response to the Preliminary Objection or that the Court ever addressed the

Preliminary Objections, As such, even though the pleadings and discovery have

closed, the Court will] briefly address the Counterclaim.

Under Pennsylvania law, a cause of action for interference with prospective

contractual relations requires: ()a prospective contractual relationship; (2)

purpose or intent to harm the plaintiff by preventing the relation from occurring;

(3) absence of privilege or justification on the part of the defendant; and (4)

occasioning of actual damage resulting from defendant’s conduct. Foster v. UPMC

. South Side Hosp., 2 A.3d 655, 665 (Pa. Super. 2010) (quoting Restatement

(Second) of Torts § 766B). This relationship must have a reasonable likelihood or

probability, and there must be something more than a mere hope or the innate

optimism of the salesman. Glenn v, Point Park College, 272 A.2d 895, 898-99

(Pa. 1971); Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 471 (Pa. 1979),

Here, Defendants have failed to show anything more than a mere hope of

Prospective patients. Defendants do not name any individual patients that were

deterred by Plaintiffs actions. In addition, Defendants cannot articulate any-aetual- vere

damage that resulted from Plaintiff's conduct. The damages and the loss of

potential patients stated in the Counterclaim are speculative at best. As such,

Defendants cannot meet the requirements for establishing a cause of action for

tortious interference with prospective contractual relationship and the Second

Amended Counterclaim must be dismissed.

Vv. CONCLUSION

For the foregoing reasons, the evidentiary record contains insufficient evidence

of facts to make out a prima facie cause of action. As such, Defendants’ Motion for

Summary Judgment is granted and the Complaint is dismissed with prejudice. In

28

addition, Defendants? Second Amended Counterc] aim is dismissed with prejudice,

An Order will be entered consistent with the foregoing.

29

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Central Pennsylvania Radiation

Oncology, P.C., a Pennsylvania

corporation,

Appellant

V. : No. 1004 C.D. 2020

SUBMITTED: September 20, 2021

The Good Samaritan Hospital

of Lebanon, Pennsylvania, a

Pennsylvania Corporation,

WellSpan Health, a Pennsylvania

Corporation, and Robert Longo,

an adult Individual

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: December 15, 2021

I must respectfully dissent. Unlike the Majority, I believe the Court of

Common Pleas of Lebanon County (trial court) erred as a matter of law when it

granted the motion for summary judgment of The Good Samaritan Hospital of

Lebanon (GSH), WellSpan Health, and Robert Longo (collectively, Defendants) and

dismissed Central Pennsylvania Radiation Oncology, P.C.’s (Plaintiff) complaint

with prejudice.

The facts are highly disputed and span the period from 2007-2015.

There are hundreds of pages of depositions, from many witnesses. Plaintiff’s

medical director, who was the key person involved in the discussions with GSH and

its agents, committed suicide just after this lawsuit was filed in 2015.

From even a cursory review of the trial court’s opinion, it is clear to me

that the trial court interpreted the record against Plaintiff, who was the non-moving

party in the case, and made certain fact-based and credibility assessments, which

have no place at the summary judgment stage. Accordingly, I would reverse and

remand for further proceedings.

Factual and Procedural History

In 1988, Douglas R. Colkitt, M.D., built a radiation oncology center in

Lebanon, Pennsylvania, that came to be called the Lebanon Valley Cancer Center

(LVCC). In 1988, he hired Abdurrahman Unal, M.D., to serve as LVCC’s Radiation

Oncology Medical Director. In 1999, Dr. Unal took over ownership of LVCC and

established Plaintiff Central Pennsylvania Oncology Center. In 2015, Dr. Colkitt

took over ownership of Plaintiff as the sole shareholder. Until January of 2016

(when Defendants’ new cancer center opened), Plaintiff was the only provider of

radiation oncology in Lebanon.

In 2000, GSH suffered financial losses. During this time, Longo and

GSH determined the hospital should open a new, comprehensive cancer center that

would provide both medical oncology and radiation oncology. In 2007, GSH

engaged Oncology Resource Consultants, Inc. (ORC) to advise GSH in developing

the radiation oncology facet of the new cancer center. Nancy Bookbinder was

ORC’s president.

In the summer of 2007, Bookbinder, on behalf of GSH, reached out to

Plaintiff, the only radiation oncology center in Lebanon, and met with Dr. Unal

confidentially. As the trial court and Majority point out, the intent of the people

PAM - 2

affiliated with GSH in arranging the meetings with Plaintiff and what occurred

during those meetings is “disputed.” (Trial ct. op. at 3; Central Pennsylvania

Radiation Oncology, P.C. v. The Good Samaritan Hospital of Lebanon,

Pennsylvania, (Pa. Cmwlth., No. 1004 C.D. 2020, filed December 15, 2021), slip

op. at 2.)

On the one hand, Defendants allege that they were simply meeting with

Plaintiff to gather general information about the need for a new cancer center, and

that they never discussed joining forces with Plaintiff to create the new center.

Plaintiff, on the other hand, alleges that after initial interviews by Nancy

Bookbinder, further discussions took place during which Plaintiff was led to believe

that Defendants were interested in working together with Plaintiff to create the new

cancer center. According to Plaintiff, the parties came to an agreement that they

would be working together in the new cancer center and in furtherance thereof.

Plaintiff provided sensitive competitive and highly confidential financial and

operational information, and the actual training of key personnel. However,

allegedly unbeknownst to Plaintiff, Defendants had decided in 2012 that Plaintiff

was a rival that needed to go out of business in order for the new cancer center to be

financially viable. Specifically, the evidence shows that in September 2012, Nancy

Bookbinder presented Defendants with “an optimal case scenario” that had Plaintiff

closing and Dr. Unal out of the picture. (Reproduced Record (R.R.) at 799a, 808a.)

This “optimal scenario” stated: “The freestanding radiation oncology practice in

Lebanon is no longer in operation” and a “radiation oncologist is recruited to the

community to develop the new radiation oncology program.” /d. Under this

scenario, Defendants’ projected profits for the radiation business would rise over a

five-year span to $3,695,242. Id.

PAM - 3

Plaintiff alleges that Defendants kept Plaintiff in the dark about their

new goal while sending its employees to Plaintiff for training and obtaining detailed

confidential information from Plaintiff including its revenue, costs, profits,

operational techniques, and marketing techniques, which Defendants later used to

steal Plaintiffs radiation oncology patients and cause Plaintiff to close in August

2016.

Plaintiff initiated this matter because it is Plaintiff's belief that

Defendants and their agent, Nancy Bookbinder, purposefully deceived Plaintiff for

the purpose of learning confidential information from Plaintiff. Plaintiff claims that

Defendants then used the confidential information to open a cancer center directly

across the street from Plaintiff that ultimately destroyed Plaintiff’s business.

Plaintiff's complaint alleges eight counts including: (1) Breach of

Fiduciary Duty against GSH and Robert Longo; (2) Breach of Fiduciary Duty

against WellSpan and Robert Longo; (3) Violation of the Pennsylvania Trade

Secrets Act! against all Defendants; (4) Civil Conspiracy against GSH and

WellSpan;? (5) Intentional Misrepresentation against GSH and Robert Longo; (6)

Negligent Misrepresentation against GSH and Robert Longo; (7) Tortious

Interference with Existing Contractual Relations against GSH; and (8) Tortious

Interference with Prospective Contractual Relations against GSH. (Second

Amended Complaint, R.R. at 23a-667a.)

Defendants filed an answer denying that there was any agreement to

open a joint center or form any partnership or joint venture with Plaintiff. (Answer

and New Matter to Second Amended Complaint, R.R. at 107a-44a.) Defendants

' 12 Pa.C.S. §§5301-5308.

? Plaintiff does not appeal the trial court’s dismissal of its conspiracy claim.

PAM - 4

denied ever discussing joining forces with Plaintiff and denied that they ever

obtained any confidential information from Plaintiff. Defendants alleged that the

purpose of the meetings with Dr. Unal was simply to meet with local physicians to

complete an analysis of local care.

The parties engaged in lengthy discovery, exchanging requests for

admission, interrogatories, requests for documents, and depositions. On September

16, 2019, Defendants filed a motion for summary judgment, asserting that Plaintiff

failed to support any of its claims with evidence sufficient to present a jury question.

In opposition, Plaintiff presented a significant amount of evidence that negates

Defendants’ version of events, including:

e The Affidavit and deposition testimony of Plaintiff’s radiation therapist and

office manager, Susan McCoy, who attested that in 2013 or 2014, Defendants

sent their Director of Oncology Practice to Plaintiff’s facility for training on

all aspects of radiation oncology under the premise that Plaintiff and

Defendants would be working together at the new cancer center to be

developed; that the information provided to Defendants during this training

session was proprietary, which Plaintiff had developed over many years of

practice, and which was extremely valuable to Plaintiff; that much of the

information provided to Defendants could not be obtained except through trial

and error by Plaintiff; that the information provided to Defendants included

who Plaintiffs referrals came from, how Plaintiff created patient charts, the

types of radiation oncology treatments Plaintiff provided, the numbers of

radiation oncology treatments Plaintiff provides, the demographics of

Plaintiff's patients, current insurance practices for radiation oncology,

reimbursement from local providers, how Plaintiff made masks for head and

neck patients, how the treatment planning software worked, how Plaintiff

performed Quality Assurance, how Plaintiff staffed the center, how Plaintiff

contracted with service providers on its machines, repair costs, bundling for

insurance reimbursement processes, and how Plaintiff marketed to the local

population; that most of what Plaintiff revealed to Defendants could not be

gleaned from documents and could not be reconstructed without personal

knowledge of Plaintiff or Dr. Unal; that providing this information to

Defendants was part of Plaintiff's joining forces with Defendants in the new

cancer center that was being developed; that it was her understanding that

PAM -5

Plaintiff was to co-locate its radiation oncology practice to a new building

with the hospital-owned medical oncology practice; that the transfer of

information to Defendants was supposed to be part of Defendants and Plaintiff

working together; that had she known Defendants intended to compete

directly with Plaintiff, she would never have trained Defendants or discussed

Plaintiff's confidential proprietary information with Defendants; that in the

fall of 2015 - as the new cancer center construction was close to completion,

Plaintiff's referrals from Defendants-affiliated doctors, including medical

oncologists fell dramatically; that Defendants were holding patients needing

radiation therapy so that when the new center opened it would have a large

number of patients and Plaintiff would have very few, that when the new

center opened in January 2016; that Plaintiff’s existing patients were told that

Plaintiff was “closing” and that they should transfer treatment to Defendants’

new center; that she had multiple conversations with Plaintiff's patients who

advised her that they were told by Defendants that Plaintiff was closing and

that they even needed to transfer their treatments in the middle of receiving

their 6-8 weeks of radiation treatment; that Roseanne O., Michael S., Bonnie

U., and Judith H., all stopped treating mid-stream at Plaintiff to treat at

Defendants. (Affidavit of Susan McCoy; R.R. at 1464a-68a; Deposition of

Susan McCoy, R.R. at 1146a-80a.)

The Affidavit and deposition of Paul M. Castro, Ph.D., a medical physicist

who provided medical physics services to Plaintiff, who attested that in 2014

at the request of Dr. Unal he provided Plaintiff’s proprietary quality assurance

(QA) documents to Defendants with the understanding that Plaintiff was

working with Defendants in the development of a new cancer center and that

the detailed physics operation procedures used by Plaintiff would be used to

obtain accreditation of the new cancer program; that he only provided these

QA documents to Defendants because he believed that they were to be used

as a part of a joint effort in developing the new cancer center; that there was

no other reason for him to provide them; and that he and Plaintiff had

developed the QA program and it was highly valuable to the radiation

oncology practice. (Affidavit of Paul M. Castro, Ph.D., (R.R. at 1585a-87a;

Deposition of Paul M. Castro, Ph.D., R.R. at 1183a-94a, 1633a.)

The Affidavit and deposition testimony of Douglas R. Colkitt, M.D., friend,

associate, and employer of Dr. Unal, who attested that Dr. Unal completely

opened the facts, figures, details, and confidential information of his practice

to Nancy Bookbinder because he was advised that he would be a partner in

the new cancer center and the Medical Director, with the sharing of profits

PAM -6

between them, and the Defendants keeping about two-thirds of them; that he

understood that the new center would be in a new building where Dr. Unal’s

radiation oncology practice would co-locate with Defendants’ medical

oncology practice so that cancer care would all be under one-roof in Lebanon,

and that Defendants called Plaintiff and requested records of Plaintiff's

existing patients who were in the midst of their treatment with Plaintiff.

(Affidavit of Douglas R. Colkitt, M.D., R.R. at 1589a-91a, 1628a; Deposition

of Douglas R. Colkitt, M.D., R.R. at 1204a-41a.)

The expert report of Andrew Elinsky, opining that actions were taken by both

parties that were consistent with standard business practices in negotiating for

the development of a joint venture, including: an agreement on confidentiality

for sharing meaningful and sensitive competitive and highly confidential

financial and operational information, the actual training of key personnel on

the grounds that the parties reached an agreement to be working together in

the future, and the provision of important documents and knowhow developed

by Plaintiff over many years, including any documents related to aiding the

development of the new cancer center’s QA program that Defendants needed

to clear regulatory compliance, and the information Plaintiff provided to

Defendants was highly valuable to a competitor entering into the market and

was the kind of information commonly considered to be proprietary to a

business. (R.R. at 220a-23a.)

Documents generated by Defendants and their agents, which established that

Defendants’ strategic goal in October 2007 was to “explore feasibility of co-

location agreement for radiation therapy service with [Plaintiff],” to meet with

Plaintiff to determine interest in and issues associated with potential co-

location of radiation therapy services in a new ambulatory cancer center, and

to invite Dr. Unal to discuss unifying efforts, and that Defendants did meet

with Dr. Unal. (R.R. at 699a, 718a, 723a.)

Documents generated by Defendants and their agents, which established that

in 2012, one of Defendants’ “Key Success Factor[s]” identified by

Bookbinder was that the “Radiation therapy practice in the community [7.e.,

Plaintiff] closes.” Yet, in 2013 and 2014, Defendants nevertheless sent their

Director of Oncology Practice to Plaintiff's facility for training on all aspects

of radiation oncology and continued to request and obtain confidential

information from Plaintiff. (R.R. at 799a.)

PAM -7

Despite this profusion of evidence, which directly contradicted

Defendants’ position that joining forces with Plaintiff was “never on the table,” the

trial court granted Defendants’ motion for summary judgment on January 30, 2020,

holding that Plaintiff failed to present a prima facie case for any of its causes of

action to overcome a motion for summary judgment.

Standard on Summary Judgment

Motions for summary judgment necessarily and directly

implicate the plaintiffs proof of the elements of [its] cause

of action. Summary judgment is proper if, after the

completion of discovery relevant to the motion, including

the production of expert reports, an adverse party who will

bear the burden of proof at trial has failed to produce

evidence of facts essential to the cause of action or defense

which in a jury trial would require the issues to be

submitted to a jury. In other words, whenever there is no

genuine issue of any material fact as to a necessary

element of the cause of action or defense, which could be

established by additional discovery or expert report and

the moving party is entitled to judgment as a matter of law,

summary judgment is appropriate. Thus, a record that

supports summary judgment either (1) shows the material

facts are undisputed or (2) contains insufficient evidence

of facts to make out a prima facie cause of action or

defense.

Glaab v. Honeywell International, Inc., 56 A.3d 693, 696 (Pa. Super. 2012).

When considering a motion for summary judgment, the trial court must

resolve all doubts as to the existence of a genuine issue of material fact against the

moving party, and, thus, may only grant summary judgment “where the right to such

judgment is clear and free from all doubt.” Toy v. Metropolitan Life Insurance Co.,

928 A.2d 186, 195 (Pa. 2007).

Moreover, it has long been Pennsylvania law that, while conclusions

recorded by experts may be disputed, the credibility and weight attributed to those

PAM - 8

conclusions are not proper considerations at summary judgment; rather, such

determinations reside in the sole province of the trier of fact, here, a jury. Miller v.

Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995); In re Estate of Hunter, 205

A.2d 97, 102 (Pa. 1964) (“The credibility of witnesses, professional or lay, and the

weight to be given to their testimony 1s strictly within the proper province of the trier

of fact.”).

At the summary judgment stage, a trial court is required to take all facts

of record, and all reasonable inferences therefrom, in a light most favorable to the

non-moving party. Toy, 928 A.2d at 195. This clearly includes all expert testimony

and reports submitted by the non-moving party or provided during discovery; and,

so long as the conclusions contained within those reports are sufficiently supported,

the trial court cannot sua sponte assail them in an order and opinion granting

summary judgment. Contrarily, the trial court must defer to those conclusions, and

should those conclusions be disputed, resolution of that dispute must be left to the

trier of fact. Miller, 664 A.2d at 528.

Breach of Fiduciary Duty

Did Plaintiff come Forward with Evidence that the Parties had Reached an

Agreement that they were Joining Forces to Create the New Cancer Center?

In dismissing the breach of fiduciary duty counts, the trial court “found”

there was no fiduciary duty between the parties because no partnership or joint

venture was ever created. According to the trial court:

In this case, the Court finds there was no fiduciary duty

between the parties. First, neither a partnership nor a

joint venture was ever created. There is no evidence

profits were ever shared or that Plaintiff had any “right of

mutual control,” which is fundamental to the creation of

PAM -9

both relationships. Second, there is no evidence of any

transactions, contracts, or repeated business transactions.

(Trial ct. op. at 14) (emphasis added).

The trial court also “found” that the parties never discussed forming a

joint venture:

While [Plaintiff] gave Defendants a QA summary and

provided training for GSH because Dr. Unal believed the

two would be working together, there is no indication

that was ever the intent of GSH. Bookbinder did meet

with Dr. Unal confidentially, as she did with multiple

physicians in the area, but both her notes and her

testimony indicate there was never any talk of hiring

Dr. Unal or collaborating with [Plaintiff] to create_a

joint cancer center. ...

Additionally, as Bookbinder indicated, the . . . goal of

discussing with [Plaintiff] the potential for co-locating

appear[s] to be just that - a goal. There is no evidence

presented that GSH acted on that goal or created an actual

plan to join forces with LVCC. The letter sent on behalf

of Dr. Unal in June of 2014 also supports this lack of an

agreement. The letter indicates interest in collaborating

and exploring the possibility of the parties working

together, further undermining Plaintiff’s belief a deal

had already been struck with Defendants. In addition, the

advertisements published by Plaintiff against GSH

support the conclusions that not only was there no

contract between the parties, but that Plaintiff was well

aware they would not be working together in the future.

Id. (emphasis added).

I submit this was error. Plaintiff sufficiently pleaded facts that the

parties met to discuss the possibility of joining forces to create a new cancer center

and that the discussions evolved to the point where the parties had reached an

agreement — which is evidenced by Plaintiff's transfer of its confidential and

PAM - 10

proprietary information to Defendants, which Plaintiff was misled into believing was

necessary to jointly create the new cancer center. As noted above, the testimony of

Susan McCoy, Dr. Colkitt, and Dr. Castro, together with documents generated by

Defendants and their agents, created a disputed issue of fact. It is for the jury to

decide whether Defendants met with Plaintiff to discuss the joint formation of a new

cancer center, whether the discussions evolved to the point where an agreement was

reached, as evidenced by the fact that the parties began to share each other’s

information for the purpose of creating the center.

The trial court, however, completely disregarded Plaintiff’s evidence

and actually resolved the issue of whether such an agreement was reached by

weighing the evidence and crediting the testimony of Defendants’ lead witness

Nancy Bookbinder, who denied in her deposition that she discussed unifying efforts

with Dr. Unal. Bookbinder’s credibility, however, was directly at issue and can only

be tested by the jury. In re Estate of Hunter, 205 A.2d at 102. By concluding that

the parties had not reached an agreement to join forces to create a new cancer center,

the trial court invaded the province of the jury, and in so doing violated the standard

for deciding a motion for summary judgment. “It was for the jury to determine

whether or not the facts that [it] found, before and during the joint venture, gave rise

to a fiduciary duty.” Thompson v. Monetary Mgmt. Corp., 44 Pa. D. & C. 4th 401,

A408, aff'd, 769 A.2d 1218 (Pa. Super. 2000); 13 Summary of Pa. Jurisprudence 2d,

Joint Ventures §19:24.

Further, with respect to the Majority’s view that Plaintiff cannot

establish that Defendants owed any duty to it without introducing out-of-court

hearsay statements of Dr. Unal, I respectfully disagree. Complainants often build

their prima facie cases upon inferences and circumstantial evidence. See S.N.T.

PAM - I1

Industries, Inc. v. Geanopulos, 525 A.2d 736 (Pa. Super. 1987) (evidence which was

predominately circumstantial was sufficient to sustain finding that directors and their

family conspired to breach and did breach fiduciary duties owed to corporation by

seizing corporate opportunity for themselves).

Did Plaintiff Come Forward with Evidence that Defendants Breached their

Obligations of Loyalty, Fairness, Good Faith and Full Disclosure?

If a jury concludes that the parties reached an agreement to join forces

to create a new cancer center, then the jury could also find that Defendants failed in

their duty of loyalty, of fairness, of good faith, or of full disclosure. The

Pennsylvania Supreme Court in the matter of McRoberts v. Phelps, 138 A.2d 439

(Pa. 1958), held:

The relationship between those in a joint venture is

fiduciary in nature; upon each co-adventurer are imposed

obligations of loyalty, fairness, good faith and _ full

disclosure toward his fellow co-adventurers. Particularly

is this true in the case of that co-adventurer to whom is

[e]ntrusted the conduct of the enterprise, toward his

associates he occupies the position of a trustee.

Id. at 445 (citations omitted) (emphasis added).

The parties dispute whether Plaintiff's confidential information was

provided to Defendants and whether Defendants used it to create a competing

radiation oncology center across the street from Plaintiff and to steal Plaintiff's

patients. On the one hand, Defendants deny that they obtained any confidential

information from Plaintiff under false pretenses and they also deny using this

information to harm Plaintiff's financial/business interests. As noted, Plaintiff’s

witnesses testified unequivocally that Plaintiff turned over its confidential and

proprietary information to Defendants to aid in the joint development of the new

PAM - 12

cancer center, that Defendants later used that information to make sure Plaintiff went

out of business, and even went so far as to tell Plaintiff’s existing patients that

Plaintiff was “closing” and that they should transfer treatment to Defendants’ new

center.

Despite this contravening evidence brought forward by Plaintiff, the

trial court “found” that “there is no indication [Defendants] moved against [Plaintiff]

or purposely tried to use any information obtained to undermine [Plaintiff.]” (Trial

ct. op. at 15.) Contrary to the trial court’s conclusion, there was ample evidence

presented by Plaintiff in opposition to summary judgment upon which a jury could

find that Defendants sought Plaintiff’s confidential and proprietary information and

used it to form a new cancer center, which directly competed with Plaintiff, and

which arguably was the reason Plaintiff closed its doors in August of 2016.

The disputed factual issue of whether Defendants obtained Plaintiff's

proprietary information based on the false premise of working together to jointly

develop a cancer center was a question for the jury. The trial court, however,

resolved that factual issue against Plaintiff by crediting Defendants’ version of

events. The trial court was simply not permitted to accept Defendants’ position

when Plaintiff’s evidence created a disputed issue of fact. Krolczyk v. Goddard

Systems, Inc., 164 A.3d 521, 530 (Pa. Super. 2017). Whether the breach of fiduciary

duty caused damage and if so, how much, was another question which should be left

to the jury.

Violation of Uniform Trade Secrets Act

Next, contrary to the conclusion of the trial court, I believe Plaintiff has

a viable claim under the Uniform Trade Secrets Act (Act).

312 Pa.C.S. §§5301-5308.

PAM - 13

The Act allows a court to issue injunctive relief, based on threatened or

actual misappropriation of a trade secret. 12 Pa.C.S. §5303. In order to state a claim

under the Act, the disputed information must first qualify as a trade secret. Pestco,

Inc. v. Associated Products, Inc., 880 A.2d 700, 706 (Pa. Super. 2005). A trade

secret is defined as information, including a formula, drawing, pattern, compilation

including a customer list, program, device, method, technique, or process that: (1)

derives independent economic value, actual or potential, from not being generally

known to, and not being readily ascertainable by proper means, other persons who

can obtain economic value from its disclosure or use; and (2) is the subject of efforts

that are reasonable under the circumstances to maintain its secrecy. 12 Pa.C.S.

§5302. No bright line rule exists on what constitutes a trade secret; rather, the issue

is analyzed on a case-by-case basis. Pestco, 880 A.2d at 706. Several factors are

relevant to the analysis including: (1) the extent to which the information is known

outside of the company's business; (2) the extent to which it is known by employees

and persons inside the company; (3) the extent of measures the employer has taken

to guard the secrecy of the information; (4) the value of the information to the

company and its competitors; (5) the amount of effort or money expended in

developing the information; and (6) the ease or difficulty with which the information

could be properly acquired or duplicated by others. Crum v. Bridgestone/Firestone

North American Tire, LLC, 907 A.2d 578, 585 (Pa. Super. 2006). The crucial

indicia for determining whether certain information constitutes a trade secret are

substantial secrecy and competitive value to the owner. D.D. Anderson, Inc. v.

Cricki, 815 A.2d 1063, 1070 (Pa. Super. 2003). Here, the trial court found:

In this case, there is no evidence Defendants violated the

Uniform Trade Secrets Act. First, the notes taken by

[Defendants] from the meeting at [Plaintiff] with McCoy

PAM - 14

are insufficient to constitute a trade secret. From the

short period of time spent at [Plaintiff] and the minimal

amount of notes taken, it does not appear that Smith

obtained any secret information. In addition, Plaintiff is

unable_to_ articulate any specific trade _secret_that

[Defendants] might have obtained or used that was of

competitive value to Plaintiff.

Second, the_ eight-page 2014 Quality Assurance

summary _ given to Defendants by McCoy and Dr.

Castro cannot be considered a trade secret. The

summary provides a small look into [Plaintiff]. While this

information is potentially helpful to either Plaintiff or

Defendants, it does not amount to the level of valuable,

secret_information that _is of great importance to

[Plaintiff]. In addition, Plaintiff readily gave the

information to Defendants and it does not appear that

any “improper means” were _used_ to obtain the

summary. As stated above, there _is no evidence

Defendants ever actively moved to create a joint cancer

center with Plaintiff. As such, Plaintiff’s incorrect

assumption or belief that [it] would be working

together__with Defendants and_ thereby giving

Defendants the summary would not establish improper

means on Defendants’ part.

(Trial ct. op at 17) (emphasis added).

In dismissing this claim, the trial court did not view the facts in the light

most favorable to Plaintiff, and, instead, accepted the version of the facts proffered

by Defendants, that no trade secrets were exchanged or misused, and that Plaintiff

simply voluntarily gave this information to Defendants based on its “incorrect”

belief that it was to be used as a part of a joint effort in developing the new cancer

center. I submit this was an abuse of discretion.

First, the trial court only addressed “the notes taken by [Defendants]

from the meeting at [Plaintiff] with McCoy” and the “2014 Quality Assurance

PAM - 15

Summary” and conclusively resolved that information did not constitute trade

secrets. However, Plaintiff’s fact witnesses and expert witness described other

confidential and proprietary information, not addressed by the trial court, including,

inter alia, patient demographics, referral services information, where the patients

come from, insurance payors reimbursements, how Plaintiff created patient charts,

the types of radiation oncology treatments Plaintiff provided, the numbers of

radiation oncology treatments Plaintiff provides, current insurance practices for

radiation oncology, reimbursement from local providers, how Plaintiff made masks

for head and neck patients, how the treatment planning software worked, how

Plaintiff performed Quality Assurance, how Plaintiff staffed the center, how Plaintiff

contracted with service providers on its machines, repair costs, bundling for

insurance reimbursement processes, and how Plaintiff marketed to the local

population. Susan McCoy testified that most of what Plaintiff revealed to

Defendants could not be gleaned from documents and could not be reconstructed

without personal knowledge of Plaintiff or Dr. Unal. (Affidavit of Susan McCoy;

R.R. at 1464a-68a; Deposition of Susan McCoy, R.R. at 1146a-80a.) Dr. Castro also

testified unequivocally that the QA program he and Plaintiff had developed was

“highly valuable” to the radiation oncology practice. (Affidavit of Paul M. Castro,

Ph.D., R.R. at 1585a-87a; Deposition of Paul M. Castro, Ph.D., R.R. at 1183a-94a,

1633a.) Plaintiff’s expert, Elinsky, opined that Plaintiff provided Defendants with

“sensitive competitive and highly confidential financial and operational information,

knowhow developed by Plaintiff over many years,” and that the information Plaintiff

provided to Defendants was “highly valuable to a competitor entering into the

market and was the kind of information commonly considered to be proprietary to a

PAM - 16

business.” (R.R. at 220a-23a.) Because the trial court disregarded this other

information, I believe its analysis was flawed.

Second, it is for the jury to determine the weight and credibility of the

testimony and thus decide if the alleged trade secrets deserve protection. See West

Mountain Poultry Co. v. Gress, 345 A.2d 651, 653 (Pa. Super. 1982) (holding that

whether alleged trade secrets deserve protection is a question of fact for the jury).

The issue of whether willful and malicious conduct has been involved is also a

question of fact for the jury to decide. Pestco, 880 A.2d at 709. Therefore, I would

reverse the grant of summary judgment on the claim asserting a violation of the Act.

Misrepresentation

The elements of a negligent misrepresentation claim include: (1) a

misrepresentation of a material fact; (2) made under circumstances in which the

misrepresenter ought to have known its falsity; (3) with an intent to induce another

to act on it; and (4) which results in injury to a party acting in justifiable reliance on

the misrepresentation. Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999).

The elements of intentional misrepresentation are: (1) a representation;

(2) which is material to the transaction at hand; (3) made falsely, with knowledge of

its falsity or recklessness as to whether it is true or false; (4) with the intent of

misleading another into relying on it; (5) justifiable reliance on_ the

misrepresentation; and (6) the resulting injury was proximately caused by the

reliance. /d. at 560.

The trial court found that

there is no evidence that any misrepresentations, let

alone any fraudulent utterances, were ever made in

this case. There are no statements made to Plaintiff or

admissions by Defendants that would support a viable

claim. Ultimately, the only evidence Plaintiff relies on

PAM - 17

are actions of [Plaintiff's] employees based on the

belief Dr. Unal had that a deal with GSH had been

made. However, Plaintiff’s reliance on that belief without

sufficient evidence supporting an agreement or intent to

form a partnership are insufficient to establish either

intentional or negligent misrepresentation. Plaintiff

cannot cite to any other statements, documents, or

claims made by Defendants that would qualify as a

misrepresentation.

(Trial ct. op. at 21) (emphasis added).

I believe there is a genuine issue of disputed material fact as to whether

Defendants intentionally or negligently misrepresented to Plaintiff that they intended

to include Plaintiff in the new cancer center, as a pretext for convincing Plaintiff to

train Defendants’ employee and disclose its confidential and proprietary information

to Defendants.

The intent to defraud may be established by circumstantial evidence,

that is, by inferences that reasonably may be drawn from the facts and circumstances.

Integrated Behavioral Health Services v. Department of Public Welfare, 871 A.2d

296, 300 (Pa. Cmwlth. 2005). See also D’Emilio v. Board of Supervisors of

Bensalem, 628 A.2d 1230 (Pa. Cmwlth. 1993) (holding that circumstantial evidence

was adequate to support finding that developer obtained signatures of board of

supervisors on unapproved development plan by fraud, where trial court found that

developer substituted unapproved plan for approved plan and led the supervisors to

believe that they were signing the approved plan when in actuality they were signing

the unapproved plan); Glover v. Severino, 946 A.2d 710, 713 (Pa. Super. 2008) (“A

misrepresentation need not be an actual statement; it can be manifest in the form of

silence or failure to disclose relevant information when good faith requires

disclosure.”). Here, even though Dr. Unal is unavailable for trial and cannot testify

PAM - 18

as to the direct representations made to him, Plaintiff came forward with evidence

which, if believed by the jury, could establish that the parties reached an agreement

to join forces to create a new cancer center, that Defendants never intended to include

Plaintiff in the new cancer center, and that Plaintiff was misled into believing the

confidential and proprietary information it was sharing with Defendants was for the

new cancer center. As factual support for its averments that the parties’ reached an

agreement to work together to create the radiation oncology department of the new

cancer center, Plaintiff proffered evidence that it provided sensitive competitive and

highly confidential financial and operational information to Defendants, trained

Defendants’ key personnel on the grounds that the parties reached an agreement to

be working together in the future, and that there was no other reason for Plaintiff to

provide this information to Defendants. An inference may reasonably be drawn

from those facts that Defendants and Plaintiff were at some point working together

to create the new cancer center, that Plaintiff provided Defendants with confidential

information and that subsequently, unbeknownst to Plaintiff, Defendants used that

information to create the radiation oncology department which did not include

Plaintiff, and to redirect Plaintiff's patients to the new cancer center. Thus, unlike

the Majority, I do not agree that Plaintiff's action fails outright simply because Dr.

Unal died before trial.

It is for the jury to decide whether Defendants misled Plaintiff into

believing the parties were joining forces to create the new cancer center (during

which Plaintiff provided Defendants with its confidential information in furtherance

thereof), or if Plaintiff simply decided to train Defendants’ employee on the nuts and

bolts of its operation and turn over its confidential information to a potential

competitor for no good reason.

PAM - 19

Interference with Contractual Relations

The same goes for the interference with contractual relations claims.

The elements for a cause of action for intentional interference with a contractual

relation, whether existing or prospective, are as follows: (1) the existence of a

contractual, or prospective contractual relation between the complainant and a third

party; (2) purposeful action on the part of the defendant, specifically intended to

harm the existing relation, or to prevent a prospective relation from occurring; (3)

the absence of privilege or justification on the part of the defendant; and (4) the

occasioning of actual legal damage as a result of the defendant’s conduct. Pelagatti

v. Cohen, 536 A.2d 1337, 1343 (Pa. Super. 1987).

The trial court acknowledged in its opinion that there was a dispute

between the parties as to whether Defendants intentionally and wrongly diverted

patients away from Plaintiff:

Within the Complaint, Plaintiff provides a detailed list of

patients who [it argues] were wrongly diverted away from

treatment with [Plaintiff] by GSH. The dates of diversion

range from September of 2015 to April of 2016. GSH

denies any patients were told Plaintiff was closing or that

[it] stopped referring to [Plaintiff] before GSH’s cancer

center opened.

(Trial ct. op. at 6-7.)

The trial court concluded, however, that “there is no evidence

indicating Defendants acted to interfere with Plaintiff’s patients.” (Trial ct. op. at

22.) Citing Plaintiff's answers to interrogatories, the trial court concluded that

Plaintiff failed to articulate “who” specifically interfered with patients and “how”

patients were withheld from Plaintiff. /d. at 22-23. The trial court also concluded

Plaintiff does not state any purposeful action or

statements made by Defendants to interfere with any

PAM - 20

patients. Without any evidence of direct steps taken by

Defendants, there is no indication of why the patients left

[Plaintiff].

Id. at 23 (emphasis added).

However, this conclusion completely discounts the testimony of Susan

McCoy, who testified that when the new center opened in January 2016, Plaintiff's

existing patients were told that Plaintiff was “closing” and that they should transfer

treatment to Defendants’ new center, that she had multiple conversations with

Plaintiff's patients who advised her that they were told by Defendants that Plaintiff

was closing its radiation oncology center, that they needed to transfer their

treatments to Defendants in the middle of receiving their six to eight weeks of

radiation treatment, and that Roseanne O., Michael S., Bonnie U., and Judith H., all

stopped treating mid-stream at Plaintiff to treat at Defendants’ new center.

(Affidavit of Susan McCoy; R.R. at 1464a-68a; Deposition of Susan McCoy, R.R.

at 1146a-80a.) Susan McCoy’s testimony alone serves as sufficient basis to allow

this claim to go forward. See also S.N.T. Industries (evidence which was

predominately circumstantial was sufficient to establish a cause of action for

intentional interference with prospective contractual relations).

Therefore, I would reverse the trial court with respect to its entry of

summary judgment on Counts VII and VIII (contractual and prospective contractual

relations).

Michael Elinsky Expert Report

Lastly, I believe the trial court erred in excluding from consideration

Plaintiffs expert report. The trial court excluded the Elinsky report because

[w]ithout any direct statements, concrete evidence, or

documents demonstrating either an agreement had been

reached or a _ confidential relationship had _ been

PAM - 21

established, the conclusions in the report are speculative at

best. Ultimately, the report reviewed small amounts of

testimony and very few documents but still makes broad

statements and conclusions without citing specific

evidence. This conclusion is therefore not well founded

and would be prejudicial to a potential jury.

(Trial ct. op. at 25-26.)

First, the credibility of experts is reserved for a jury and summary

judgments entered where experts were disregarded have been reversed. “It has long

been Pennsylvania law that, while conclusions recorded by experts may be disputed,

the credibility and weight attributed to those conclusions are not proper

considerations at summary judgment; rather, such determinations reside in the sole

province of the trier of fact, here, a jury.” Summers v. Certainteed Corp., 997 A.2d

1152, 1162 (Pa. 2010). See also DeArmitt v. New York Life Insurance Co., 73 A.3d

587, 595 (Pa. Super. 2013) (holding that at summary judgment the court must

consider “all expert testimony and reports submitted by the non-moving party or

provided during discovery” and noting that any dispute over the expert’s conclusions

must be left to the trier of fact”); Wright v. Eastman, 63 A.3d 281, 294 (Pa. Super.

2013); Greely v. West Penn Power Co., 156 A.3d 276, 283 (Pa. Super. 2017).

Second, the four witness depositions that Elinsky evaluated included:

the depositions of Nancy Bookbinder, Dr. Colkitt, Susan McCoy, and Dr. Castro.

These 4 witnesses had the most knowledge relevant to the events which gave rise to

Plaintiff's complaint and they formed the very basis for Elinsky’s opinions. The

trial court’s focus on the fact that Elinsky only reviewed 4 depositions out of 20

seems to me to be putting quantity over quality and I do not believe it constituted a

valid reason to discount his expert opinion.

PAM - 22

Conclusion

In sum, I do not agree with the Majority that the issues were

“thoroughly reviewed” or “correctly analyzed” by the trial court. As I have

demonstrated herein, the trial court improperly relied on Defendants’ one-sided

version of events and failed to view the evidence in a light favorable to Plaintiff.

The trial court repeatedly disregarded record evidence, made credibility

determinations, and barely mentioned the testimony of Plaintiff's witnesses, Dr.

Colkitt, Dr. Castro, or Susan McCoy. In so doing, I submit that the trial court erred

in concluding that Plaintiff failed to present a prima facie case for any of its causes

of action to overcome a motion for summary judgment.

For these reasons, I dissent.

PATRICIA A. McCULLOUGH, Judge

PAM - 23