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Helpin v. Trustees of the University of Pennsylvania

April 1, 2009

MARK L. HELPIN
v.
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, MARJORIE JEFFCOAT, THOMAS FREITAG AND LAWRENCE M. LEVIN
APPEAL OF: TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA
MARK L. HELPIN, APPELLANT
v.
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, MARJORIE JEFFCOAT, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES, THOMAS FREITAG, IN HIS OFFICIAL AND PERSONAL CAPACITY AND LAWRENCE M. LEVIN, IN HIS OFFICIAL AND PERSONAL CAPACITIES



Appeal from the Order Entered December 13, 2007 In the Court of Common Pleas of Philadelphia County Civil Division at No.: No. 00702 September Term, 2005. Appeal from the Order Entered December 13, 2007 In the Court of Common Pleas of Philadelphia County Civil Division at No.: 00702 September Term, 2005.

The opinion of the court was delivered by: Bender, J.

BEFORE: BENDER, PANELLA and KELLY, JJ.

OPINION

¶ 1 The Trustees of the University of Pennsylvania, Marjorie Jeffcoat, in her Individual and Official Capacities, Thomas Freitag, in his Official and Personal Capacities, and Lawrence M. Levin, in his Official and Personal Capacities (collectively "Penn"), appeal the judgment entered in favor of Mark L. Helpin (Dr. Helpin) on his claims of breach of contract and constructive discharge after removal from his position as director of the pediatric dental clinic operated by the University at the Children's Hospital of Philadelphia (CHOP). Dr. Helpin cross-appeals, contending that the trial court erred in declining to award pre-judgment interest on the award in question, some $4,040,000. Following careful considerations of the parties' respective arguments, we find that neither demonstrated reversible error. Accordingly, we affirm the judgment of the trial court.

¶ 2 The trial court, the Honorable Marlene Lachman, provided the following factual and procedural history in her Opinion Pursuant to Pa.R.A.P. 1925(a) dated June 30, 2008. We find the trial court's recitation consistent with the record and accordingly reproduce it here:

This case revolves around the employment relationship between Plaintiff Dr. Mark L. Helpin and the University of Pennsylvania's School of Dental Medicine ("Dental School") operated by Defendants the Trustees of the University of Pennsylvania ("Penn"), Dr. Marjorie Jeffcoat, and Dr. Lawrence M. Levin. Plaintiff claims that Penn constructively discharged him by reassigning him from the Dental School dental clinic at Children's Hospital of Philadelphia ("CHOP") to a different Penn dental clinic in Bryn Mawr.

Following a three-week trial between June 4 and June 22, 2007, the jury found in favor of the Plaintiff on Count Two of his Amended Complaint alleging breach of contract. In so doing the jury determined (1) that Penn breached its employment contract with Plaintiff by constructively discharging him without "just cause," and (2) that Penn breached the terms of a 1989 contract with Plaintiff whereby Plaintiff was to receive 50% of the net profits from the operation of Penn's dental clinic at CHOP. The jury awarded Plaintiff $4.04 million in damages.

Penn filed a post-trial motion seeking a judgment notwithstanding the verdict [JNOV] or a new trial. Plaintiff filed his own "Motion for Post-Trial Relief and to Award Interest." This Court denied all of the post-trial motions and entered judgment on the jury's verdict on December 10, 2007. Penn filed a timely notice of appeal and Plaintiff conditionally cross-appealed.

The focal point of this case is Plaintiff's Exhibit P-1, which will be referred to as "the offer letter." The offer letter is on the letterhead of the University of Pennsylvania School of Medicine and is dated September 1, 1989. In the letter[,] Raymond J. Fonseca, Dean of the University of Pennsylvania School of Dental Medicine, offered Plaintiff a faculty appointment as Assistant Professor of Pediatric Dentistry, Clinician Educator track and designation as Director of the Division of Pediatric Dentistry in the Departmental Dental Care Systems. Plaintiff was to be named chairman if the Dental School created a separate Department of Pediatric Dentistry. Plaintiff was expected to spend 80% of his time reestablishing Penn's relationship with [CHOP]. Plaintiff's start date was October 1, 1989[,] and his starting salary was $60,000. The letter stated in part:

In the future, patient care activities at CHOP will offer you the opportunity for bonuses and salary increases, with 50% of CHOP Dental's net operations available to you for such increments. I envision that a large portion of your future salary will, in fact, be derived from the net operations and success you will have at CHOP. I assure you this financial and salary/bonus arrangement will continue even if you no longer serve as Director or Chairman.

Despite this letter, Penn actually gave Plaintiff only an appointment as a Lecturer of Pedodontics/Dental Care Systems in the Academic Support Staff for a period of three years. This appointment was in a September 25, 1989 letter . . . . On October 7, 1991, Plaintiff was reappointed to this position for a period of one year.

In September 1992[,] Plaintiff received an appointment as an Assistant Professor of Dental Care Systems and Pediatric Dentistry in the Standing Faculty-Clinical Educator-of the Dental School for a period of three years. This position continued to be "subject to the stipulations given in Guidelines for Appointment and Promotions, January 8, 1995, or as amended."

Effective July 1, 1996, Plaintiff was promoted to Associate Professor of Dental Care Systems and Pediatric Dentistry in the Standing Faculty-Clinician Educator-of the Dental School. Plaintiff testified that it was not until he attained this appointment that he had a continuing appointment. He was therefore covered under the University policy that he would have a job for life unless Penn had just cause for termination pursuant to the University Handbook or he was not able to generate enough income to offset his salary or expenses.

On July 1, 2003, Defendant Dr. Marjorie Jeffcoat replaced Dr. Fonseca as Dean of the School of Dental Medicine. In November 2003[,] she removed Plaintiff as Chair of the Department of Pediatric Dentistry, combined that Department with the Department of Restorative Dentistry and appointed Peter Berthold as Chair. In December 2003, Dean Jeffcoat and Dr. Berthold told Plaintiff he was being reassigned with the Dental School's Dental Network away from CHOP and to the Penn dental clinic in Bryn Mawr, effective January 2004.

Effective July 2004, Plaintiff's new compensation letter reduced his compensation. Like all previous letters, it was based on the number and nature of billable procedures performed. Because Plaintiff was in the Bryn Mawr boondocks instead of at CHOP, his billable procedures diminished, resulting in a decrease in compensation.

In September 2004, Plaintiff gave notice of his intention to resign from the Penn faculty effective the end of 2004. He contended that his resignation was forced due to (1) the intolerable conditions surrounding his reassignment from the CHOP Dental Clinic to Bryn Mawr, and (2) the reduction of his overall compensation because the practice component of his salary was no longer linked to CHOP Dental Clinic net operations. Plaintiff accepted new employment as of January 2005 with the Carolinas Medical Center. Plaintiff relocated to North Carolina. In June 2005, Plaintiff voluntarily left Carolinas for personal reasons.

Plaintiff then accepted a position at Temple University as Director of the Department of Pediatric Dentistry.

Trial Court Opinion, 6/3/0/08, at 1-4 (internal citations omitted).

¶ 3 On appeal, Penn challenges Judge Lachman's refusal to grant JNOV on the assertion that the evidence adduced was not legally sufficient to sustain the causes of action Dr. Helpin pled. Penn argues, in the alternative, that it is entitled to a new trial due, among other things, to two of the trial court's rulings on the evidence, the first admitting the damages testimony of Dr. Helpin's expert witness, Edwin Rosenthol, and the second refusing admission of a chart used by Penn's expert Brian Sullivan, to counter Rosenthol's testimony. Penn's brief states its questions as follows:

1. Did the trial court err in failing to enter judgment as a matter of law or in failing to order a new trial for Defendants on Plaintiff's claim that he was contractually entitled to receive a portion of the profits of the Dental Clinic at [CHOP], even after Plaintiff ceased working at the clinic and after he resigned from his employment at [Penn]?

2. Did the trial court err in failing to enter judgment as a matter of law or in failing to order a new trial on Plaintiff's claim that he was constructively discharged from his employment at [Penn]?

3. In the alternative, did the trial court err in failing to offer Plaintiff a remittitur of damages, in an amount equivalent to what he would have earned in lost profits for the time he was transferred from the [CHOP] Dental Clinic until his resignation from his employment at [Penn]?

4. Did the trial court err in permitting opinion testimony by Plaintiff's expert, Edwin Rosenthol, concerning Plaintiff's alleged lost profits, given that the only factual support for such opinions was Plaintiff's "dreams" or aspirations about what he hoped to achieve at the Dental Clinic at [CHOP] where he no longer worked?

5. Did the trial court err in striking certain exhibits and testimony from Defendants' damages expert, Brian Sullivan, thus depriving the jury of an opportunity to hear evidence about how Plaintiff's damages model was inflated, speculative and unrealistic?

Brief for Appellant Trustees of the University of Pennsylvania, at 4-5.

¶ 4 Dr. Helpin has provided a counter-statement of the questions as well as two questions in support of his cross-appeal:

A. Whether the trial court properly denied Penn's motion for [JNOV] where the jury's verdict was supported by competent evidence?

B. Whether the trial court properly denied Penn's motion for a new trial where the record contained ample evidence to support the jury's verdict, and her evidentiary rulings were legally correct and resulted in no harm to Penn?

C. Whether the trial court properly denied Penn's request for a remittitur of damages where the jury's verdict was not so grossly excessive as to shock our sense of justice?

D. Whether the trial court erred as a matter of law and abused its discretion in denying Dr. Helpin's request for prejudgment interest?

E. In the event that Penn is successful in obtaining any appellate relief from the verdict or judgment in this action, whether the trial court erred as a matter of law in granting a non-suit on Count IV of Dr. Helpin's Amended Complaint?

Brief for Appellee/Cross-Appellant Mark L. Helpin, at 5.*fn1

¶ 5 Before proceeding to the merits of the parties' claims, we pause to note the pervasive violation of the Rules of Appellate Procedure apparent in Penn's recitation of the factual and procedural history of this case. Whereas Appellate Rule 2117(b) prohibits inclusion of argument in a party's statement of the case, Penn's statement, which spans the first 22 pages of its submission, is rife with contention, its characterizations of the record sharply skewed. Such tendentious statements are wholly inappropriate and do not advance a party's case, as they offer this Court no real guidance in considering the issues. Moreover, they violate the plain language of Rule 2117(b), which expressly directs that "[t]he statement of the case shall not contain any argument."*fn2 Although we proceed to the merits of the parties' claims in ...


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