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08/29/97 BERNARD J. WUJCIK v. YORKTOWNE DENTAL

August 29, 1997

BERNARD J. WUJCIK, D.D.S., APPELLANT
v.
YORKTOWNE DENTAL ASSOCIATES, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of York County, Civil Division at No. 92-SU-00441-01. Before CHRONISTER, J.

Before: Cavanaugh, Popovich and Olszewski, JJ.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed: August 29, 1997

This is an appeal from the order of the Court of Common Pleas of York County which denied appellant's motion for removal of a compulsory nonsuit. *fn1 We reverse and remand for trial.

Herein, appellant raises the following assertions of error: 1) The lower court erred in granting the compulsory nonsuit before appellant presented his case in violation of Pa.R.C.P. 230.1; 2) The lower court erred in refusing to permit appellant to present evidence of his damages via an estimate of the dental industry average for collection of accounts receivable; 3) The lower court erred in refusing to permit appellant to present evidence in accordance with the pre-trial order of the Honorable Richard H. Horn; 4) The lower court erred when it refused to permit appellant to present evidence of his damages via his own testimony and that of Dr. John Johnesse, a principal of appellee-corporation, and Lisa Grothouse, former billing and administrative clerk of the appellee-corporation. Upon review, we agree that the lower court should have permitted appellant to present evidence of his damages via his testimony and the testimony of representatives of appellee. However, we do reject appellant's claim that evidence of the dental industry average collection rate alone would be sufficient to prove his damages.

Before addressing the merits of appellant's appeal, a recitation of the history of this case is necessary. Appellant was employed for several years as a dentist by appellee. Although the parties had discussed a written employment contract, they could never agree to terms. Appellant provided dental services to appellee's patients based upon an oral agreement whereby appellant would receive thirty-five percent of the fees which were actually collected by appellee from those patients whom appellant treated. When appellant left the employ of appellee, two basic disputes arose. The first was whether appellant was entitled to receive his thirty-five percent of those fees for services which he rendered but which were collected after the date on which his employment ended. The second dispute concerned what the amount collected actually was and whether appellee was entitled to a set-off from that amount for certain expenses. Those disputes lead to this lawsuit which involves essentially the same issues.

A pre-trial conference was held in this matter before the Honorable Richard H. Horn. At this conference, appellant outlined his proposed method for proving damages. Appellant planned to testify that on the date his employment ended, he had generated $32,722.92 in accounts receivable. He also planned to testify that during his tenure, appellee normally collected 90% to 93% of the fees. Further, appellant proposed to offer, as proof of the amount collected by appellee, a survey from a dental trade magazine which stated that, on average, the nation's dentists collected 90% to 93% of their accounts receivable. Appellee objected to this method of proving the amount which it had actually collected. Unfortunately, the record is at best unclear what action if any Judge Horn took to resolve this issue. In his pre-trial order, Judge Horn, in pertinent part, stated:

The [appellant] will testify as to the amount he has coming to him based on work performed.

There is a question with respect to termination because not all of the accounts have been collected and Doctor Wujick will testify that approximately 90 to 93% of the accounts are collected. The proof will be received based upon a continuing course of conduct.

Pre-trial Order, filed Jan 30, 1996.

Subsequently, on the date scheduled for trial, the case was transferred to the Honorable John H. Chronister who held a brief pre-trial conference to become familiar with the case. Appellee provided the court with a trial memorandum in which it specifically objected to appellant's proposed method of proving damages.

Judge Chronister then informed appellant that his method of proving damages would fail as a matter of law because it was speculative. He was convinced that appellant needed to prove the actual amount which appellee had collected through the business records of appellee. This information could have been easily obtained through discovery. However, appellant apparently chose to prove his damages via the survey from the dental trade magazine and his own recollection concerning the amount he usually received.

Appellant objected to Judge Chronister ruling on his offer of proof and claimed that Judge Horn had earlier approved of such a method. After much Discussion, a review of Judge Horn's pre-trial order, and appellant's counsel's telephone conversation with Judge Horn, Judge Chronister concluded that Judge Horn ...


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