Kaplan, A. v. Weinstein Appraisal

J-A14037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALAN KAPLAN : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

WEINSTEIN APPRAISAL GROUP, :

INC., T/D/B/A WEINSTEIN REALTY :

ADVISORS AND WEINSTEIN : No. 1009 MDA 2021

APPRAISAL GROUP :

:

Appellant :

Appeal from the Judgment Entered July 27, 2021

In the Court of Common Pleas of Schuylkill County Civil Division at

No(s): S-1301-2007

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 22, 2022

Appellant/Defendant Weinstein Appraisal Group, Inc. (“WAG”) appeals

from the judgment entered in the Court of Common Pleas of Schuylkill County

awarding Appellee/Plaintiff Alan Kaplan $80,000, plus fourteen years’ pre-

judgment interest, under the parties’ 2006 Employment Agreement, after

finding that WAG had terminated Kaplan involuntarily and without just cause.

Chief among WAG’s several contentions are that the trial court misapplied

Pa.R.Civ.P. 218 in the wake of Kaplan’s failure to appear at trial and rendered

a judgment against what he maintains was the weight of evidence showing

that Kaplan left employment voluntarily. After careful review, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

J-A14037-22

We take the underlying facts and procedural history from both our

review of the certified record and the trial court's opinion, the latter of which

reflects the court’s credibility determinations with respect to both the 2006

Employment Agreement at issue and Mr. Kaplan’s entitlements and

responsibilities under said agreement. The trial court’s opinion provides, as

follows:

This case involved an employment contract and the central issue

was whether the employee was involuntarily and improperly

terminated without just cause and entitled to one year’s annual

salary due under the contract, or whether the employee left

employment voluntarily.

[The trial court] scheduled a bench trial to begin on August 3,

2020. Plaintiff Alan Kaplan and his counsel failed to appear.

Defendants appeared with counsel. [The trial court was] able to

contact Plaintiff’s counsel via telephone. Attorney Stephen

Carpenito (“Attorney Carpenito”) informed the court that he had

not received the scheduling Order. Counsel for the Defendants,

Attorney Robert Kelly (“Attorney Kelly”) asked for a nonsuit.

[The trial court noted that the scheduling order was entered on

June 24, 2020.] After further argument [in which the trial court

permitted Attorney Carpenito to participate by telephone and offer

his explanation for failing to appear], the trial court denied the

motion for nonsuit, [advised Attorney Carpenito to be prepared to

present his case the following day before terminating the phone

call with him, and] permitted Attorney Kelly to proceed [ex parte]

immediately with the Defendants’ counterclaim [seeking from

Kaplan repayment of advanced income paid to him during his nine

months of employment.]

Elliott Weinstein (“Weinstein”) testified that he is the President of

the Defendants, Weinstein Appraisal Group (“WAG”). He is a

Pennsylvania certified general appraiser and has known the

Plaintiff, Alan Kaplan (“Kaplan”) for years.

-2-

J-A14037-22

After several meetings to discuss possible employment with WAG,

WAG hired Kaplan as of February 27, 2006 and the parties entered

into an Independent Contractor Agreement (“2006 Agreement”).

Weinstein explained that WAG has two separate divisions, a realty

advisor group and an appraisal group[, and that Kaplan was hired

to head the appraisal group]. After explaining how Kaplan was

paid $80,000 annually or $6,667.00 per month, Weinstein

testified that Kaplan quit on March 9, 2007.

Weinstein explained that at the end of the first year of Kaplan’s

employment, the [appraisal] division lost money and Kaplan did

not earn anything. Weinstein [testified WAG] would not have

pursued Kaplan for the money [via its counterclaim suit] except

for the fact that Kaplan had sued him. Weinstein seeks

$58,077.00 as counterclaim damages.

The next day, Kaplan appeared and presented his case [through

Attorney Carpenito]. [Kaplan testified] that he is a state-certified

general real estate appraiser in several states and is also a

Pennsylvania real estate broker. He earned the highest

designation for his profession, “MAI”, in the mid-1990s.

Kaplan has known Weinstein for years and the two had discussed

employment of Kaplan by Weinstein in 2005 or 2006. Kaplan had

a business called The Appraisal Shop, located in Frackville,

Pennsylvania. Kaplan did [appraisal] work for Weinstein prior to

being hired on February 27, 2006.

The term of the final version of the contract (three contracts dated

February 27, 2006 were introduced into evidence but only the final

one is relevant here) was from June 1, 2006 until termination.

Kaplan started working in May and was to become a fulltime

employee July 1, 2006, but that was moved up to June of 2006.

...

Kaplan believed he had a good relationship with Weinstein and

WAG and proceeded to enter into employment negotiations. . . .

Kaplan described his understanding of the work he was to do for

WAG’s appraisal division. All commercial appraisals were to be

done through WAG, and Kaplan was to run that division and

oversee the other appraisers or persons-in-training employed by

WAG. Kaplan was also allowed to continue to do residential

appraisals and other business work he had in Schuylkill County.

-3-

J-A14037-22

...

[Kaplan testified that discussions also addressed] Kaplan

continuing his teaching job at Vintage Real Estate Academy. He

typically taught Continuing Education classes for them on the

weekends. Weinstein never objected to his teaching these

classes.

Kaplan’s understanding was that Weinstein intended to have 10-

15 appraisers in his York, Pennsylvania office whom Kaplan would

oversee. His position was Senior Vice President and his supervisor

was Weinstein. Kaplan was to help develop and grow the

business. From 2006 until February 2007, Kaplan travelled to

York most of the time but did some work in Frackville. Kaplan was

to be responsible for compliance and overseeing the appraisers

and signing the appraisals.

Kaplan [testified] he was paid $6,667 per month and that he

agreed to a staggered additional compensation percentage,

meaning that as the volume of work went up, his percentage could

increase. At first, work went well and work was being timely

completed. Weinstein then hired another senior vice president but

that person was not competent and was eventually terminated. .

..

Kaplan was familiar with the employee handbook and, until the

end of February of 2007, did not receive any written notice that

he was not following the employee handbook or was doing

anything wrong. Kaplan continued to reside in Frackville with his

family and was never told that he was expected to move to York.

During his testimony, Kaplan was presented with Plaintiff’s Exhibit

G, a purported warning letter [authored by Weinstein but never

sent] dated February 19, 2007 stating that Kaplan had breached

the Agreement, specifically paragraph 3, and demanding that he

1) resolve all Schuylkill County business interests existing prior to

the Agreement and 2) terminate any additional employment with

other employers (meaning his teaching position), while taking a

six month leave of absence. If he failed to so agree by February

28, 2007, the Agreement would be terminated, and Kaplan would

receive a $20,000 severance package.

-4-

J-A14037-22

Kaplan did not recall receiving this letter during his employment

with WAG, and Weinstein stipulated that the letter was never

given to Kaplan while he worked at WAG. Kaplan also recalled

that he was not presented with the WAG employee [handbook]

until months after he started. The handbook is dated September

1, 2006 and Kaplan signed it on September 11, 2006.

Kaplan had meetings with Weinstein and others at WAG several

times each week. The first Kaplan became aware of any problem

was January 8, 2007. Kaplan thought the business was doing very

well, but was now being told that there would be no compensation

bonus. Kaplan expected a production bonus but Weinstein and

WAG prepared the financial statements so that no production

bonus was reflected. Kaplan never received a bonus while

working for WAG.

Kaplan questioned the financial statements because there were

certain expenses on it such as the purchase of a vehicle that

pushed the [appraisal] division’s net income down purposefully.

Kaplan was surprised as he expected to earn more. After the

meeting on January 8, 2007, Kaplan went out to lunch with

Weinstein and his wife, and Weinstein told Kaplan that Weinstein

had a new plan to make more money [that involved changes to

billing].

This was not the first time that WAG’s business model was

changing. WAG’s business model changed every 90 days. They

would clear the office and then hire four or five new people who

had to be trained and who had inappropriate educational

backgrounds and skills for appraisal work. After the third and

fourth business plan, Kaplan got used to it. Weinstein intended to

open more offices in other areas of the Commonwealth but that

never came to fruition. Kaplan supervised anywhere from 2 to 5

appraisers during his time with WAG.

Kaplan testified that in the new business model presented in early

2007, everyone was moved to a salesperson position and was

expected to do 90% in sales and 10% in appraisals. Kaplan

questioned the plan as untenable.

During further meetings, Kaplan was given verbal ultimatums of

giving up his other prior business and moving to York. Kaplan was

presented with a new contract. Kaplan’s staff was moved to

-5-

J-A14037-22

another room or floor of the office building. Kaplan was left with

no staff. Weinstein terminated a very good appraiser.

Kaplan sent Weinstein a faxed memo on February 28, 2007. The

memo outlines the ultimatums he had been given by Weinstein.

The basic ultimatum was that everyone had to move to sales or

leave. Kaplan wanted to continue to perform his duties as Senior

Vice President of the appraisal division but he no longer had any

appraisers to supervise, no staff and no appraisals to perform.

Some employees stayed on and some left.

Kaplan was given 24 hours to decide whether to sign the new

contract and move to York. At the time, Kaplan’s family continued

to live in Frackville and his wife was undergoing cancer

treatments. Kaplan was then given a week to decide and could

have six months to move to York. Kaplan’s wife was hospitalized

following most the treatments and Kaplan was unable to speak

with her. Weinstein wanted Kaplan to close his appraisal business

in Frackville and to sell his apartment buildings. Weinstein wanted

the money Kaplan earned from teaching.

Kaplan did not want to terminate the existing Agreement and

wanted to continue working. Under the new contract, many

benefits would be lost including health care for Kaplan and his

family, dues, travel expenses, and professional memberships.

After [Kaplan’s] February 28, 2007 fax to Weinstein, they had

several more meetings. Their last meeting was on March 2, 2007

in York.

Kaplan was told that his ideas to keep going were not going to

work. Weinstein was not interested in any [of Kaplan’s] creative

solutions. Weinstein offered Kaplan $100,000 for 40 appraisals.

When Kaplan asked what kind of appraisals, Weinstein told Kaplan

to get his things and leave. When Kaplan asked for a severance,

Weinstein became angry and cut the meeting off. It was clear to

Kaplan that he had been terminated. Kaplan picked up his things

and left. Kaplan sent a letter to the staff stating that his electronic

signature was not to be used after March 2, 2007.

Kaplan never received two weeks’ written notice required by the

Agreement. Kaplan did not receive the $80,000 salary set forth

in paragraph 5. Kaplan devoted sufficient time to WAG and did

-6-

J-A14037-22

not take on any new employment while a WAG employee. Kaplan

honored the two year non-competition clause.

On cross-examination, Kaplan reiterated that he was fired on

March 2, 2007. On March 6, 2007, he received a letter from a law

firm on behalf of WAG directing him to return to work. [Kaplan

had already told WAG that he had retained counsel]. Kaplan

stated that he was fired in the same manner as other WAG

employees and that he was involved in one termination which

occurred the same way his did. Kaplan did not return to work

because he would have had to sign a new “business requirements”

contract and he did not agree with it.

Next, Attorney Ronald D. Butler (“Attorney Butler”) testified. . . .

He had no direct involvement with the hiring of Kaplan[,] but he

did draft employee documents for Weinstein, [who would

typically] use them as templates and modify them as needed.

Attorney Butler was contacted by Weinstein regarding Kaplan in

mid-February of 2007. They discussed performance and non-

performance issues[, but] the issue of firing Kaplan did not arise.

. . . . [Butler testified that the] March 5, 2007 letter [was drafted

at Weinstein’s request] and was intended to set forth WAG’s

position on its dissatisfaction with Kaplan and request that he

would return to work with additional duties.

Weinstein was then called to testify as of cross[-examination]. . .

. [He testified that] WAG hired Kaplan as the senior vice president

of WAG’s appraisal group. Prior to that, he knew Kaplan and

developed a relationship with him over several years. He signed

the [2006 Employment] Agreement on behalf of WAG.

...

[Weinstein testified] that Kaplan was paid $6,667.00 per month

as advance compensation. This could be considered a draw or a

loan. At the end of 2006, Kaplan’s goal of business revenue in

excess of $750,000 was not going to be achieved. Weinstein

admitted that he did not ask Kaplan to repay the loaned salary.

[According to Weinstein,] [c]oncerns arose in December of 2006

into January of 2007 [that,] [a]lthough the appraisal revenue was

approximately $400,000 over the six month period since Kaplan

started, it became dubious that Kaplan could achieve the goals set

-7-

J-A14037-22

forth the in the Agreement. If the revenue was less than

$750,000, Kaplan would not be paid.

Weinstein agreed that Kaplan needed support staff and appraisers

to do his job at WAG. Weinstein denied that he switched business

plans or withdrew support staff and appraisers from Kaplan.

Business was light, and WAG was more than capable of hiring

more staff an appraisers [if needed].

Weinstein admitted that he received Kaplan’s February 28, 2007

fax. Weinstein admitted that he did not respond to the fax in

writing. Weinstein called Kaplan and asked for a meeting. They

held a meeting on March 2, 2007. At the meeting, [according to

Weinstein], Kaplan said his attorney told him just to listen and

take notes. Kaplan then left[, Weinstein testified, saying] there

was nothing left to say. Weinstein checked Kaplan’s office and all

of Kaplan’s remaining personal possessions were removed.

Weinstein denied terminating Kaplan on March 2, 2007. . . .

Weinstein testified that Kaplan had breached paragraph 3 of the

Agreement because Kaplan was not devoting his entire time and

attention to WAG. Weinstein admitted that he did not send the

memo to Kaplan outlining the breaches and how to remedy them.

Weinstein admitted that potential new agreements were

presented to Kaplan[,] and [he claimed he] had confidence in

Kaplan and remained open for discussion until March 15, 2007.

[Weinstein asserted] Kaplan had increasing family needs and a

long commute, and Kaplan’s family concerns had become his

priority. [He] testified that he had asked Kaplan to move to York

or at least closer several times prior. [He] denied giving Kaplan

an ultimatum that he sign the new agreement or leave. . . .

Weinstein agreed[, however,] that Kaplan said that he was being

terminated.

[Weinstein testified that he] expected Kaplan to be present at

work Monday through Friday and was surprised to learn at some

point that Kaplan spent Thursdays out of the office teaching his

classes. He considered that a breach of paragraph 3 [of the 2006

Agreement and its proviso prohibiting work for a different

employer. Weinstein claimed that when he confronted Kaplan

about this, Kaplan refused to quit teaching. Weinstein admitted,

however, that there were no writings in Kaplan’s file regarding

Weinstein’s concerns.]

-8-

J-A14037-22

Weinstein maintained, however, that Kaplan was not growing the

business as they had discussed [and as also discussed in the

Agreement, which contemplates revenues up to $2,000,000,

Weinstein testified. So business growth was contemplated

therein, he said.]

Weinstein admitted that Kaplan worked a total of eight months

and nine days for WAG. The appraisal group’s revenues were

$460,201.61 for that time period, or for the last six months of

2006 [which, to the trial court’s point, represented the more

accurate time period in which Kaplan exercised supervisory

control over a fully staffed appraisal division prior to the 2007

restructuring of the WAG business model and its reallocation of

personnel to sales]. . . . However, [Weinstein testified,] that

number had to be adjusted for employee expenses directly related

to that division, and also for allocation of time and materials

between divisions, ultimately resulting in a net loss to the entire

company.

...

Gary Graham testified. Graham is the chief operating officer of

WAG and has been employed by WAG for 28 years. [Graham

testified that] Kaplan was not terminated at the March 2, 2007

meeting, which Graham also attended. [He explained that] WAG

has a process for terminating WAG employees which includes

requiring them to submit their building key and parking passes, to

forward their emails, to end remote access to documents, and to

have their voicemail terminated and forwarded to his extension.

None of this happened to Kaplan on March 2, 2007. A departing

employee is also generally accompanied to retrieve their personal

possessions from their office. A WAG employee who was being

terminated knew they were being terminated[, Graham said]; it

would not be a matter of belief.

On cross[-examination], Graham did recall Kaplan saying that he

had to sign the new agreement or he would be terminated.

Graham did not recall seeing the March 5, 2007 Weinstein memo

regarding the conditions under which Kaplan would remain

employed by WAG.

...

-9-

J-A14037-22

After Defendants rested, the transcripts were prepared, the

parties submitted proposed findings of fact and conclusions of law,

and [the trial court] rendered a verdict in favor of the Plaintiff

[Kaplan] in the amount of $80,000, which was, on June 23, 2021,

molded to $148,133.70 to include [pre-judgment] interest.

[Specifically, the trial court] entered [its] verdict because [it]

found the Plaintiff, Alan Kaplan, to be credible, and [it] found the

testimony of Elliott Weinstein not to be credible. [The trial court

offered the following account of the evidence as reason to support

its decision:]

The evidence showed that Kaplan was hired as senior

vice-president of the appraisal division of WAG

pursuant to the terms of the final [June 2006]

Agreement. Kaplan attended weekly meetings, was

never asked to do more than the work he had been

doing, or to move, or to give up teaching, or anything

else, until the end of 2006/early 2007.

[At that time in early 2007], Kaplan believed that the

appraisal division had performed well and that he was

going to receive additional compensation. Instead, he

was told that the division was operating at a loss and

that he would have to agree to spend 90% of his time

in business development and only 10% on appraisal

work and staff management and supervisions, and

sign a new contract to that effect. He was told he

could not continue to work under the current contract

and its terms.

Weinstein was not able to explain adequately the

profit and loss figures for the real estate appraisal

division of his company, which Weinstein had printed

from Quickbooks. At times, his testimony appeared

to be directly contradictory to his prior testimony.

In order to earn additional compensation, the

Agreement calls for a minimum gross annual revenue

for WAG of above $750,000. At the end of 2006,

halfway through its fiscal year, the appraisal group

alone had gross revenue of $460,210.61, which is

more than half of that figure, but according to

Weinstein, the appraisal division suffered a loss

- 10 -

J-A14037-22

because of all of the expenses of running the business

of WAG.

Weinstein’s testimony that Kaplan actually owed WAG

money was simply not credible. Weinstein alone had

the discretion as to how the expenses of the company

and its divisions were to be allocated. Kaplan’s

testimony that Weinstein allocated the entire cost of

a company vehicle to that one period of time

demonstrates that Weinstein was possibly

manipulating the numbers to make it appear that the

appraisal division was not doing as well as Kaplan

thought.

[The trial court] found credible Kaplan’s testimony

that he had to either agree to a new contract or be

terminated. Graham heard Kaplan say that.

Weinstein knew that Kaplan thought he was being

terminated, and took no action, although he had

authored a memo dated February 19, 2007 (that he

never gave to Kaplan) setting forth Weinstein’s

position on the circumstances under which Kaplan

could continue working. There was no evidence from

either Plaintiff or Defendant that Kaplan could

continue working under the terms of the [2006]

Agreement.

Weinstein told Kaplan that it was either change to the

new model or Weinstein would revert to the business

model used before Kaplan was hired. Weinstein took

away Kaplan’s staff including his staff scheduler and

the appraisers.

Kaplan sent Weinstein a fax on February 28, 2007

setting forth the circumstances as he understood

them:

that he was to move to a new business

model; that his staff had been taken

away; that he had to move to York (while

his wife was battling cancer); and that he

had to give up all other sources of income,

including teaching and all of the other

business work he was permitted to do

- 11 -

J-A14037-22

under the current [2006] Agreement, or

leave WAG.

[The trial court] found credible Kaplan’s testimony

that he was told to leave during the March 2, 2007

meeting, after Kaplan requested a severance.

Weinstein’s subsequent actions were taken to make it

look as if Kaplan had left of his own volition.

The [2006] Agreement provides in paragraph 8 that if

the Agreement “is terminated by Employer without

just cause, Employer will compensate Employee in

accordance with Paragraph 5 herein, for a period of

(1) year from the date of written notice.”

[The trial court] found that Kaplan’s February 28,

2007 fax to Weinstein was written notice that Kaplan

was being terminated without just cause. [The trial

court] found no evidence that Kaplan was being

terminated for cause. For these reasons, we found in

favor of the Plaintiff [Kaplan] on his claims in the

amount of $80,000.00 and against WAG on its

counterclaim.

Trial Court Opinion, 10/25/21, at 1-16. After the trial court’s denial of WAG’s

post-trial motions, this appeal followed.

Appellant WAG presents the following questions for this Court’s

consideration:

I. Whether the trial court erred as a matter of law in not fully

applying the provisions of Pa.R.C.P. 218 and granting

Weinstein’s Motion for a Nonsuit under Pa.R.C.P. 230.1

when the Plaintiff failed to appear at the call of the case for

trial?

II. Whether the competent evidence in the record establishes

that Kaplan’s employment was terminated by Weinstein?

III. Whether the trial court erred as a matter of law in failing to

apply an adverse inference against Kaplan as a result of his

- 12 -

J-A14037-22

failure to provide in discovery notes he took and maintained

regarding the March 2, 2007 meeting?

IV. Whether the trial court erred as a matter of law in

interpreting the advanced compensation provision in the

employment agreement as a salary and awarding a

severance a result?

V. Whether the trial court erred as a matter of law in denying

Weinstein’s counterclaim in the absence of any contrary

evidence and when Weinstein met its burden of proof?

VI. Whether the trial court erred as a matter of law in awarding

pre-judgment interest?

Brief for Appellant at 7-8.

WAG first contends the trial court erroneously made conflicting rulings

under Pa.R.Civ.P. 218 in addressing Kaplan’s failure to appear at the non-jury

trial. Specifically, WAG asserts that both its motion for nonsuit regarding

Kaplan’s civil action and its motion to proceed ex parte on its own countersuit

turned on what it views as the pivotal question in any Rule 218 inquiry,

namely, whether a party is unready for trial without a satisfactory excuse.

Because the trial court necessarily found Kaplan lacked a satisfactory excuse

when it granted WAG’s motion to proceed on the counterclaim, WAG maintains

that a consistent application of Rule 218 required the trial court to grant WAG’s

motion for nonsuit on the same underlying finding. We disagree with WAG’s

interpretation of Rule 218.

- 13 -

J-A14037-22

“To the extent [an] issue[] involve[s] interpretation and application of

the Rules of Civil Procedure, which are questions of law, we employ a de

novo standard of review and plenary scope of review.” C.H.Z. v. A.J.Y., 262

A.3d 604, 607 (Pa. Super. 2021). See also Jones v. Riviera, 866 A.2d 1148,

1150 (Pa. Super. 2005).

Rule 218 provides, in relevant part:

Rule 218. Party Not Ready When Case is Called for Trial

(a) Where a case is called for trial, if without satisfactory excuse

a plaintiff is not ready, the court may enter a nonsuit on motion

of the defendant or a non pros on the court's own motion.

(b) If without satisfactory excuse a defendant is not ready, the

plaintiff may

(1) proceed to trial . . . .

(c) A party who fails to appear for trial shall be deemed to be not

ready without satisfactory excuse.

Note: The mere failure to appear for trial is a ground for the entry

of a nonsuit or a judgment of non pros or the reinstatement of a

compulsory arbitration award.

A nonsuit is subject to the filing of a motion under Rule

227.1(a)(3) for post-trial relief to remove the nonsuit and a

judgment of non pros is subject to the filing of a petition under

Rule 3051 for relief from a judgment of non pros.

....

Pa.R.C.P. No. 218 and explanatory note.

Read in its entirety, Rule 218 permits, but does not require, entry of

nonsuit for a plaintiff’s failure to appear at trial. The ultimate decision in this

regard is left to the sound discretion of the trial court, as the rule plainly

- 14 -

J-A14037-22

provides that a court “may enter a nonsuit or a judgment of non pros” if,

without satisfactory excuse, a plaintiff is not ready. Rule 218(a) (emphasis

added).1

Such permissive language reflects the intent to give an option to, rather

than to impose an obligation upon, the court, and nowhere in the remainder

of the rule is the court’s exercise of discretion under subsection (a) specifically

qualified or limited. See Lorino v. Workers' Comp. Appeal Bd., 266 A.3d

487, 493 (Pa. 2021) (“The term ‘shall’ establishes a mandatory duty, whereas

the term ‘may’ connotates an act that is permissive, but not mandated or

required.”); Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa.

1997) (“The statutory word ‘may’ as contrasted with ‘shall’ signals a

discretionary rather than a mandatory act.”) (citing 1 Pa.C.S. § 1921(b)). If

____________________________________________

1 Pursuant to subsection (c), failing to appear is per se unreadiness without a

satisfactory excuse, and the explanatory note further clarifies that the failure

to appear is a ground for, inter alia, nonsuit or non pros. There is no dispute

that Kaplan failed to appear for the first day of his non-jury trial.

- 15 -

J-A14037-22

the rule required the sanction of nonsuit whenever plaintiffs lack a satisfactory

excuse for failing to appear at trial, its words would indicate so. 2, 3

____________________________________________

2In fact, WAG actually rewrites Rule 218 to make its argument. Specifically,

WAG writes:

The words of Rule 218 are clear that unless a “satisfactory excuse”

exists when a plaintiff is not ready when a case is called to trial

the entry of nonsuit or non pros is the appropriate remedy.

Brief of Appellant at 41. This, of course, is not the language of Rule 218. Rule

218 states not that nonsuit or non pros is the appropriate remedy for failing

to appear, but only that failing to appear provides a ground for nonsuit or non

pros, sanctions to which a court may resort.

3 WAG directs us to no controlling decision, and we are aware of none, that

interprets Rule 218(a) and (c) to require a trial court to grant a defense motion

for nonsuit or to enter judgment non pros when a plaintiff fails to appear for

trial. Instead, our decisions have recognized only that the rule confers

authority upon a trial court to enter nonsuit in the exercise of its discretion.

See, e.g., Frempong v. Phillips, 272 A.3d 485 at *3 (Pa. Super. filed

January 19, 2022) (non-precedential decision cited for its observation that

Rule 218(a) and (c) “state[] that a trial court may enter a judgment of non

pros against a plaintiff who fails to appear for trial.”) (emphasis added); Allen

v. Herr, 264 A.3d 376 at *3 (non-precedential decision cited for its

observation that “Rule 218(a) permits a court to enter a judgment of non pros

on its own motion . . . .”) (emphasis added); Valle v. Margle, 241 A.3d 372,

at *3 (Pa. Super. filed Oct. 7, 2020) (non-precedential decision cited for its

acknowledgment, in dicta, that a court may enter nonsuit for a plaintiff’s

failure to appear at trial).

Recognizing the discretion afforded a trial court by Rule 218(a) and (c) is not

only supported by the plain wording of the rule itself but also consonant with

related rules of civil procedure and interpretive decisional law permitting a

trial court to open a judgment of non pros upon its consideration of a plaintiff’s

explanation for failing to appear and other relevant factors. See Faison v.

Turner, 858 A.2d 1244, 1246-47 (Pa. Super. 2004) (setting forth factors a

trial court should consider when determining whether a failure to appear

should be excused); Petrone v. Whirlwind, Inc., 664 A.2d 172, 175 (Pa.

Super. 1995) (identifying a distinction between a “sufficient excuse for failing

(Footnote Continued Next Page)

- 16 -

J-A14037-22

In contrast, when addressing a defendant’s failure to appear, Rule 218

is worded not in terms of what the trial court may do but, instead, in terms of

what the plaintiff may do. Specifically, subsection (b) provides that a “plaintiff

may proceed to trial” if a defendant is without a satisfactory excuse for being

unready. Rule 218(b). In granting WAG’s request to proceed with an ex parte

presentation of its case in counterclaim, the trial court again simply followed

the prescription of Rule 218.

The record before us demonstrates the trial court’s recognition that Rule

218 prescribes different options and procedures depending on whether the

non-attending party is a plaintiff or a defendant. For the reasons discussed,

we conclude that no error attended the trial court’s decision to allow WAG to

proceed unilaterally and ex parte on its counterclaim but to deny WAG’s

motion for nonsuit regarding Kaplan’s claim.

____________________________________________

to appear” and an excuse which may “at the least [be sufficient] to avoid a

non pros.”); Banks v. Cooper, 171 A.3d 798 (Pa. Super. 2017) (relying on

Petrone in holding trial court erroneously entered order denying plaintiffs’

petition to open judgment of non pros without first considering counsel’s

explanation for not appearing at trial and other factors that could suffice to

avoid judgment of non pros).

In this regard, we note that prior to denying the motion for nonsuit, the trial

court in the case sub judice received information correlating to the Faison

factors, such as counsel’s explanation that he failed to appear because neither

he nor his staff received the order for trial, that in 25 years he has never

before failed to appear for trial, that he intended no delay, and that he was

prepared for trial, which the court ordered would commence the next morning.

- 17 -

J-A14037-22

In WAG’s second issue, it argues that the trial court erred in concluding

Kaplan had been involuntarily terminated when the record demonstrated that

Kaplan simply quit.4 In so claiming, WAG essentially challenges the trial

court’s determinations as to witness credibility and the weight of the evidence.

Our review in a non-jury case is limited to “whether the

findings of the trial court are supported by competent evidence

and whether the trial court committed error in the application of

law.” Bonenberger v. Nationwide Mut. Ins. Co., [ ] 791 A.2d

378, 380 ([Pa. Super.] 2002). We must grant the court's findings

of fact the same weight and effect as the verdict of a jury and,

accordingly, may disturb the non-jury verdict only if the court's

findings are unsupported by competent evidence or the court

committed legal error that affected the outcome of the

trial. See Terletsky [v. Prudential Property & Casualty Ins.

Co.], 649 A.2d [680,] 686 [(Pa. Super. 1994)]. It is not the role

of an appellate court to pass on the credibility of witnesses; hence

we will not substitute our judgment for that of the

factfinder. See Bonenberger, 791 A.2d at 381. Thus, the test

we apply is “not whether we would have reached the same result

on the evidence presented, but rather, after due consideration of

the evidence which the trial court found credible, whether the trial

court could have reasonably reached its conclusion.” Bergman

v. United Servs. Auto. Ass'n, [ ] 742 A.2d 1101, 1104 ([Pa.

Super.] 1999).

Hollock v. Erie Ins. Exch., 842 A.2d 409, 413-14 (Pa. Super. 2004).

According to WAG, the trial court’s conclusion that Mr. Kaplan provided

credible testimony on the issue of termination, while Mr. Weinstein’s related

testimony proved incredible, finds no support in the record. To this point,

WAG posits that the court’s Pa.R.A.P. 1925(a) opinion fails to refer to specific

____________________________________________

4 WAG has subsumed within this issue its third enumerated issue pertaining

to the court’s refusal to apply an adverse inference to Kaplan’s failure to

produce the notes from the March 2, 2007 meeting.

- 18 -

J-A14037-22

aspects of the parties’ testimonies that uphold the court’s credibility

determinations and offers, instead, only generalized, “conclusionary”

statements without reference to competent evidence.

WAG, therefore, asks this Court to conduct an independent review of

the record to determine what the controlling and credible facts of the case sub

judice. See, e.g., Puleo v. Thomas, 624 A.2d 1075, 1077 (Pa. Super. 1993)

(holding where trial court “is deficient in failing to detail factual findings in a

manner which will permit meaningful review”, a reviewing court may perform

such review). In this vein, WAG directs us to those parts of the record which,

it believes, established that Mr. Kaplan was not involuntarily terminated.

First offered is the trial court’s finding that “Kaplan’s February 28, 2007

fax to Weinstein was written notice that Kaplan was being terminated without

just cause.” See TCO at 16. WAG assails this conclusion as both nonsensical,

as one cannot author a written notice of one’s own involuntary termination,

and illogical, because Kaplan’s fax referred to a tentative agreement to

attempt resolution in the coming weeks. Brief of Appellant, at 46. Moreover,

WAG points to Kaplan’s own testimony that he was terminated several days

later at the March 2nd meeting as inconsistent with the court’s conclusion that

the February 27th fax supplied such notice.

Kaplan responds that ample evidence admitted at trial supported the

trial court’s determination that he was involuntarily terminated without cause

on March 2, 2007, when Weinstein refused to reconsider decisions that Kaplan

had memorialized in his fax and, instead, settled on his executive plan to

- 19 -

J-A14037-22

restructure WAG to the demise of Kaplan’s appraisal division and,

consequently, the 2006 Employment Agreement. N.T., 8/4/20, at 95-125.

For example, Kaplan alludes to his testimony regarding the early 2007

meetings where Weinstein announced the business model would change to a

90% sales/10% appraisals split. N.T., 8/4/20, at 94, 103, 105. Repurposing

his staff in this manner, Kaplan testified, deprived him of the in-house

workforce needed to write the number of appraisals necessary to meet the

stated goals of the Employment Agreement. N.T. 8/4/20 at 99. This

fundamental change in the business model, therefore, completely frustrated

the purpose of the Employment Agreement he had entered with WAG.

To both memorialize his understanding of Weinstein’s new

proposals/demands and express his resulting concerns, Kaplan wrote his fax

of February 27, 2007, which stated as follows:

I just wanted to commit to writing my understanding right now.

Weinstein Appraisal Group has moved to a business development

model. The staff appraisers were given a choice of going into

business development, with a specialty or leaving the company.

Under the business development, the staff reports to Gary

[Graham] and there is currently no specialty work booked. Kaylee

has moved upstairs [with sales] and Leslie, although physically

downstairs, is working for upstairs.

This effectively leaves my department with no employees. I am

ready, willing, and able to perform my duties under my current

contract, however, there is no work for me in terms of supervising

appraisers. . . .

I am not required to be in York at this time [under the 2006

contract] except for Monday morning business development

- 20 -

J-A14037-22

meetings and so I have moved my computer equipment back to

Frackville per your statement.

The choices you have given me at this time are to stay with my

current contract, however, my job would be 90% business

development (sales) not appraisal work, I would be required to

move to York immediately (6 months), and give up all other

sources of income or leave the company. . . .

I have requested we come up with a creative solution. You have

given me two proposals, one for the short term, 1 year, and one

for long term. These are in draft and we are both seeking legal

advice, which will take some time, to find a workable solution. We

tentatively agreed to try and resolve by March 15th. In the

meantime, if any of us has some creative alternatives we are to

bring these ideas up for discussion so we can resolve this

amicably.

If this is not the case please let me know.

Kaplan Faxed Memo dated 2/27/2007.

Whether the fax served as “actual notice” of Kaplan’s involuntary

termination is beside the point. The import of the trial court’s opinion is,

instead, that the court accepted Kaplan’s fax and trial testimony regarding the

subsequent March 2, 2007 meeting as fair, accurate, and consistent accounts

of Weinstein’s unilateral decision to depart from the terms of the 2006

Employment Agreement in favor of forming a revised plan that eliminated

Kaplan’s appraisal division and wholly redefined Kaplan’s role at WAG.

Cited in the fax were how new demands upon Kaplan reinforced the

termination of both the 2006 Agreement and the understanding between

Kaplan and Weinstein as to how Kaplan otherwise had been conducting his

personal and professional affairs while the Agreement was in effect. For the

first time, Weinstein now insisted Kaplan move to York despite knowing Kaplan

- 21 -

J-A14037-22

and his wife faced difficulties associated with her lymphoma diagnosis and

treatment. N.T. at 105-106. He also required Kaplan to end well-known,

longstanding business interests that had not been prohibited in the 2006

Agreement but were now referenced as breaches of the 2006 Agreement, take

on new obligations in their stead, and turn over all income earned from

teaching. N.T. at 107-116.

Each of Weinstein’s newly proposed agreements referenced in Kaplan’s

fax explicitly stated “employee and employer ratified an Employment

Agreement in June, 2006, that both employee and employer mutually agree

is hereby deemed null and void with no additional rights or obligations of either

employee or employer.” N.T. at 113-14. Corresponding to these proposed

agreements, moreover, was the March 5, 2007 letter from Weinstein’s

attorney reiterating that Weinstein sought to modify the Employment

Agreement and conditioned Kaplan’s continued employment on his acceptance

of six conditions, most of which were contained in the proposed agreements.

N.T. at 114-120

Therefore, we find that the trial court opinion clearly explains that it

accepted as true the factual account Kaplan offered in both his fax and trial

testimony and that it viewed such facts as supporting Kaplan’s perception that

he was no longer the head of WAG’s appraisal division as had been

contemplated in the February 26, 2006 Employment Agreement. The

combination of fundamental changes to WAG’s business model, the resultant

elimination of Kaplan’s appraisal staff, the redefining of Kaplan’s

- 22 -

J-A14037-22

responsibilities as comprising 90% sales and only 10% appraisals, and the

introduction of new obligations that would bear significantly on his professional

and personal life completely frustrated the purpose of the 2006 Employment

Agreement and effected a de facto, no-cause termination of Kaplan’s position

as WAG’s head of the appraisal division. Accordingly, we discern no merit to

WAG’s contention otherwise. 5, 6

____________________________________________

5 We note, further, that the same references to the record supplied the trial

court with specific evidentiary basis to support its determination, thus belying

WAG’s claim of a generalized, non-specific trial court rationale undeserving of

this Court’s deference under our traditional weight-of-the-evidence standard

of review.

6 WAG offers several additional, ancillary arguments aimed at the court’s

credibility determinations.

First, WAG argues that if Kaplan truly wished to remain an employee at WAG

but incorrectly believed he had been terminated, then his response to Mr.

Weinstein’s subsequent assertion at the March 2nd meeting that he had not

been terminated would have been to return to work “expressing appreciation

and thanks that he still had a job.” Brief for Appellant at 48. Kaplan’s failure

to do so provides another example of how the trial court’s opinion that Kaplan

was involuntarily terminated lacks logic, WAG maintains.

This passage ignores the trial court’s observation, however, that it was

precisely the comprehensive changes Weinstein was imposing that left Kaplan

without the “job” he was given by virtue of the 2006 Employment Agreement.

WAG’s criticism of the trial court’s decision also relies on the testimony of

Weinstein and Graham that none of the protocols followed by WAG in the

event of an employee’s termination, such as confiscation of keys and being

escorted from the building, was undertaken on March 2, 2007.

The absence of such formalities would be relevant in a case involving an

allegation of overt firing. Here, however, Kaplan’s theory always has been

that Weinstein’s actions and the necessary consequences of such actions,

(Footnote Continued Next Page)

- 23 -

J-A14037-22

As noted, WAG argues that Kaplan’s testimony regarding the parties’

actions and statements made during the March 2, 2007 meeting should have

been viewed in light of an adverse inference against Kaplan for his failure to

comply with defense counsel’s discovery request to produce his written notes

of the meeting.7 Specifically, the trial court found that Kaplan possessed the

notes, admitted he had referred to his notes prior to trial to refresh his

memory of the March 2, 2007 meeting, and failed to provide the notes to

defense counsel. Yet, WAG complains, the trial court declined to apply an

adverse inference that the notes would have been unfavorable to Kaplan had

he produced them at trial.

As an appellate court, we review the trial court's application

of relevance and prejudice standards for abuse of discretion.

Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa. Super. 2015).

“[A]n abuse of discretion is not merely an error of judgment, but

is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result

of bias, prejudice, ill-will[,] or partiality, as shown by the evidence

or the record.” Commonwealth v. Cameron, 780 A.2d 688, 692

(Pa. Super. 2001).

____________________________________________

taken together as described, amounted to the elimination of Kaplan’s position

created in the 2006 Agreement. We therefore agree with Kaplan’s argument

on this point that the absence of formal, explicit protocols normally associated

with an overt termination was not relevant to, let alone dispositive of, the

issue presented in the case sub judice.

7 As noted previously, WAG presents its adverse inference argument as its

third enumerated question presented, but there is no corresponding argument

section delineated in WAG’s Brief for Appellant. For ease of discussion,

therefore, we address this question within the context of the trial court’s

findings of fact and credibility determinations as they related to the central

issue before us, i.e., whether WAG terminated Kaplan by unilaterally

dissolving the 2006 Employment Agreement.

- 24 -

J-A14037-22

Hammons v. Ethicon, Inc., 190 A.3d 1248, 1282 (2018), aff'd, 240 A.3d

537 (Pa. 2020).

In non-jury trials, we presume the court is “imbued with the knowledge

of the law that he would have given in a formal charge in a jury case.” Id. at

1280 (citations omitted). Here, the trial court was therefore “imbued with the

knowledge of the law” on spoliation of or the conscious failure to produce

evidence and the sanction of an adverse inference instruction that informs a

jury/finder of fact it may infer, if it chooses to do so, “that the destroyed

evidence would have been unfavorable to the position of the offending party.”

Id. at 1280-81. The rationale for this inference is “nothing more than the

commonsense observation that a party who has notice that evidence is

relevant to litigation and who proceeds to destroy evidence is more likely to

have been threatened by” the proof in question. Id at 1281 (quoting Parr v.

Ford Motor Co., 109 A.3d 682, (Pa. Super. 2014)).

We find no error with the court’s decision against applying an adverse

inference with respect to Kaplan’s notes of the March 2, 2007 meeting with

Weinstein. Acting as the finder of fact, the trial court was free to choose

whether or not to infer from Kaplan’s failure to produce his notes of the March

2, 2007 meeting that the notes were unfavorable to him.

In examining both the record and the trial court’s opinion, we see the

trial court carefully considered the extensive testimonies presented by both

parties that centered on the timeframe proximate to the March 2, 2017

- 25 -

J-A14037-22

meeting in question and determined, on this basis, that an adverse inference

was not warranted.

Specifically, the trial court found that given the continuity of Weinstein’s

standpoint with respect to Kaplan both before and after the March 2, 2017

meeting, it was reasonable to conclude he had said nothing during the March

2, 2017 meeting to alter his plans for restructuring WAG and significantly

changing Kaplan’s role within WAG in the process. In the trial court’s granular

review of the competing testimonies between Kaplan and Weinstein, it noted

Kaplan’s testimony remained consistent with his prior assertions and

observations made in the memo he faxed to Weinstein just days before the

meeting, whereas Weinstein was at times self-contradictory and incredible.

Our review of this record reveals no reason to disturb the trial court’s exercise

of discretion in this instance.

In WAG’s third issue, it contends the trial court misread and

misunderstood the 2006 Employment Agreement when it found Kaplan was

entitled under the Agreement’s terms to a severance payment equal to his

annual salary of $80,000. We disagree.

Because contract interpretation is a question of law, our standard of

review is de novo, and the scope of review is plenary. Ragnar Benson Inc.

v. Hempfield Twp. Mun. Auth., 916 A.2d 1183, 1188 (Pa. Super. 2007).

Our Supreme Court has set forth the principles

governing contract interpretation as follows:

- 26 -

J-A14037-22

The fundamental rule in contract interpretation is to ascertain the

intent of the contracting parties. In cases of a written contract,

the intent of the parties is the writing itself. Under ordinary

principles of contract interpretation, the agreement is to be

construed against its drafter. When the terms of a contract are

clear and unambiguous, the intent of the parties is to be

ascertained from the document itself. While unambiguous

contracts are interpreted by the court as a matter of law,

ambiguous writings are interpreted by the finder of fact.

Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468-69

(Pa. 2006) (citations omitted).

As it did at trial, WAG asserts that Kaplan had no contractual claim to

compensation-based severance pay because under the compensation formula

set forth in the Agreement’s Paragraph 5(a), Kaplan was actually entitled to

$0 annual compensation. This was so, WAG explained, because Kaplan’s

annual compensation was based on the net operating income he generated,

and the appraisal division under his leadership had realized net operating

income of less than $0 to that point in the fiscal year.

The trial court noted its skepticism of WAG’s computations, however,

observing first that Kaplan’s division had earned well over $400,000 in gross

revenues in its first six months, which was at least on schedule, if not ahead

of schedule, to meet the first year goal of $750,000 it had been assigned. The

idea that WAG had set a goal only to say later that work performed at a pace

to meet the goal had generated no net income and, thus, entitled Kaplan to

no annual compensation was highly suspect to the trial court.

The trial court thus focused on evidence that Weinstein was engaging in

behavior that both interfered with the appraisal division’s ability to earn gross

- 27 -

J-A14037-22

revenues and added questionable expenses that served to reduce the

division’s net operating income.. Specifically noted in this regard were

Weinstein’s routine changing of personnel, his frequent adoption of new

business plans within the appraisal division’s ranks, and his unilateral control

over expenditures—including his purchase of a new luxury vehicle that Kaplan

denounced as unnecessary.

Therefore, the trial court’s conclusion that Kaplan was entitled to a

severance payment equal to his annualized payment of advanced

compensation under the Agreement did not reflect a “misunderstanding” of

the Employment Agreement’s scheme for computing employee compensation

and determining eligibility for compensation-based severance pay. Rather, it

reflected the trial court’s reasonable rejection of WAG’s evidence that Kaplan

had earned $0 in net operating income despite evidence that he was on pace

to meet goals. To support this conclusion, the trial court made findings of fact

that Weinstein had manipulated—whether intentionally or inadvertently—

calculations necessary to the computation scheme by adversely affecting both

the revenue and expense side of the appraisal division’s ledger. We discern

no error with the court’s doing so.8

____________________________________________

8 Our determination that Kaplan was entitled to severance pay likewise

resolves in Kaplan’s favor WAG’s fifth enumerated question presented

(addressed in Roman numeral IV of WAG’s argument section), claiming the

court erred in denying its counterclaim seeking recovery of Kaplan’s advanced

compensation.

- 28 -

J-A14037-22

Finally, WAG contends that even if Kaplan were entitled to severance

pay, he would be entitled only to 9/12ths of the $80,000 in advance payments

he would have received had he worked the full year. We find this assertion in

conflict with Paragraph 8 of the Agreement, which provides, in pertinent part,

“If this Agreement is terminated by Employer without just cause, Employer

will compensate Employee in accordance with Paragraph 5 herein, for a period

of one (1) year from date of written notice.”

Contrary to WAG’s argument, the Agreement does not state that Kaplan

will receive a severance pay equal to the pay he received over the previous

year. Instead, it says WAG will compensate him for a period of one year in

accordance with the rate identified in Paragraph 5.9 Paragraph 5(c) sets forth

that WAG “agrees to monthly advance compensation payments” to Kaplan “at

a minimum of $6,667 per month ($80,000 annualized).” Therefore, under

this Paragraph 5 advance compensation formula, it was appropriate for the

trial court to award Kaplan an $80,000 severance payment.

In WAG’s final argument, it submits that the trial court erred in awarding

pre-judgment interest because the amount of severance was not a set sum.

____________________________________________

9 As the trial court had already determined that the net operating income

amounts relevant to the present matter were unreliable for purposes of

calculating Kaplan’s compensation pursuant to Paragraph 5(a), it was

reasonable for the court to refer to Paragraph 5(c) to ascertain Kaplan’s

contractual compensation for purposes of this action. Further supporting the

court’s use of Kaplan’s advance compensation for this purpose was Weinstein’s

testimony that it was the practice of WAG to allow terminated employees to

keep as their compensation the advances they received during their employ.

- 29 -

J-A14037-22

In framing its position, WAG alludes to decisional law holding that the amount

in controversy must be either a fixed sum or a sum mathematically

ascertainable before pre-judgment interest may attach. Brief for Appellant at

68, citing Frank B. Bozzo Inc. v. Electric Weld Division, 498 A.2d 895,

899 (Pa. Super. 1985). Where, however, the contract action is to recover an

amount unascertainable, the defendant is unable to make a tender because

he does not know what amount will satisfy his obligation. Id.

As explained above, we concur with the trial court’s conclusion that the

severance award owed Kaplan is $80,000.00, which is a discernable, fixed

amount under the Employment Agreement. Under the authority relied upon

by WAG, it follows that pre-judgment interest is recoverable in the present

case.

For the foregoing reasons, we AFFIRM.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/22/2022

- 30 -