Bochetto & Lentz v. Datz, H.

J-A16023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BOCHETTO & LENTZ, P.C. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
A. HAROLD DATZ, ESQUIRE, AND A.
HAROLD DATZ, P.C.
Appellee No. 3165 EDA 2014
Appeal from the Order October 16, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03044 September Term, 2010
BEFORE: LAZARUS, OLSON AND PLATT,* JJ.
DISSENTING MEMORANDUM BY OLSON, J.: FILED FEBRUARY 05, 2016
The Learned Majority concurs in the trial court’s assessment that the
claims asserted by Appellant, Bochetto & Lentz, P.C., merit no relief
because: (1) there was no established attorney-client relationship between
Appellant and Jillene Pasternak (“Pasternak”); (2) Appellant received
compensation and was made whole as a result of damages recovered based
upon Scott Sigman’s (“Sigman”) improper referral of Pasternak’s case to A.
Harold Datz (“Datz”); and, (3) Appellant’s damage claim is impermissibly
speculative. After careful review of the certified record and the parties’
submissions, I, too, understand and appreciate the conclusions reached by
the trial court. I believe that Appellant’s claims may be driven more by the
desire to settle scores than to recover losses. Nevertheless, as the Majority
acknowledges, summary judgment may be entered only where there is no
* Retired Senior Judge assigned to the Superior Court.
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genuine issue of material fact and it is clear that the moving party is entitled
to judgment as a matter of law. Majority Memorandum at 6, quoting
Petrina v. AlliedGlove Corp., 46 A.3d 795, 797-798 (Pa. Super. 2012).
With that standard in mind, I am unable to agree that the substantive law
that applies in this case supports summary dismissal in favor of Datz. For
this reason, I respectfully dissent.
I begin my discussion with the Majority’s first conclusion that our
Supreme Court’s decision in Richette v. Solomon, 187 A.2d 910 (Pa. 1963)
does not apply because there was no attorney-client relationship between
Appellant and Pasternak. In Richette, a railroad worker fractured his ankle
while at work. When efforts to resolve his claim proved unsuccessful, the
worker retained Richette as counsel on a contingent fee basis. After learning
that the worker retained Richette, representatives of the railroad company
and its union coerced the worker to rescind his contingent fee agreement
with Richette. Subsequently, the representatives of the company and the
union convinced the worker to settle his claims for $8,500.00. Thereafter,
Richette filed suit against the representatives of the company and union,
alleging that they tortiously interfered with his contractual relationship with
the worker.
At trial, Richette testified that he was entitled to a fee of $10,000.00
based on the contention that he could have recovered $30,000.00 on behalf
of the worker. The jury awarded Richette $10,000.00 in compensatory
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damages and $15,000.00 in punitive damages. On appeal, our Supreme
Court upheld the jury’s compensatory award but reduced its punitive
damage award to $5,000.00.1 The Court rejected the defendants’ argument
that the jury’s compensatory award was excessive in view of Richette’s
testimony as to the value of the case and the severity of the worker’s injury.
Based upon my reading of Richette, I would conclude that where an
attorney asserts a claim that the defendant tortiously interfered with a
contractual relationship with a client, the attorney may seek damages in the
form of fees that could have been obtained based upon a higher case
valuation than an allegedly inadequate settlement.2 As in Richette, such a
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1
Only a single Justice dissented in Richette.
2
This Court previously held that where a group of attorneys broke away
from a personal injury law firm and the trial court determined that they
tortiously interfered with the law firm’s clients, the firm was permitted to
seek damages equal to its anticipated revenue. Applying Richette in that
case, we explained:
We hold that, pursuant to established tort principles and to
Richette, [the personal injury law firm] must be awarded a
money judgment reasonably equivalent to the anticipated
revenue protected from outside interference that [it] would have
received pursuant to the contracts had the cases remained [at
the] firm. To so value the cases is not mere speculation; see
Richette. For cases originally referred to the [law] firm by one
of the breakaway attorneys, the money judgment should be half
of what [the firm’s] reasonable expectation would be; this
comports with the employment agreements granting the
breakaway attorneys half of these fees as a referral fee.
Joseph D. Shein, P.C. v. Myers, 576 A.2d 549, 558 (Pa. Super. 1990).
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claim may be supported by testimony regarding the attorney’s valuation of
the case which may, in turn, rely on evidence of the severity of the client’s
injuries. The trial court’s effort to distinguish Richette, on grounds that no
attorney-client relationship ran between Appellant and Pasternak, is
unavailing.
Under Pennsylvania law, tortious interference claims extend to
prospective contractual relations. Thompson Coal Co. v. Pike Coal Co.,
412 A.2d 466, 471 (Pa. 1979) (tort of interference with prospective business
relations is established where the plaintiff shows: (1) a prospective
contractual relation; (2) the purpose or intent to harm the plaintiff by
preventing the relation from occurring; (3) the absence of privilege or
justification on the part of the defendant; and, (4) actual damages resulting
from the defendant's conduct); Glenn v. Point Park College, 272 A.2d
895, 898-99 (Pa. 1971) (prospective contractual relationship requires
reasonable likelihood or probability, i.e. something more than a mere hope
or innate optimism); InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d
616, 627 (Pa. Super. 2006). Given that tortious interference claims extend
to prospective contractual relationships, I am not persuaded by the
alternative grounds offered by the trial court for distinguishing Richette,
including the fact that the client in Richette was unrepresented at the time
of the settlement and that the attorney-plaintiff in that case had not
recovered any money when the jury issued its award. In sum, the trial court
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failed to identify valid grounds for differentiating Richette from the instant
case.
I find it interesting that the Majority affirms the trial court’s refusal to
follow Richette because Appellant never consummated an attorney-client
relationship with Pasternak. Yet, the Majority recognizes that Appellant
sought recovery of lost fees by raising a tortious interference claim against
Sigman before the arbitrator. Majority Memorandum at 4. The Majority also
acknowledges that, “The arbitrator agreed with this claim and determined
further that if Sigman had not referred the Pasternak case, [Appellant]
would have obtained a fee of $86,400.00 (the fee recovered by Datz).” Id.The obvious premise of the arbitrator’s ruling was that, but for Sigman’s
tortious interference, Pasternak would have retained Appellant in her
personal injury action. I would not allow Sigman’s tortious conduct to serve
as grounds for barring Appellant’s recovery, as the trial court did.
The Majority next affirms the trial court’s determination that Appellant
was made whole by the arbitration award entered against Sigman. In this
case, Appellant filed a complaint against Datz alleging that he, along with
Sigman, collectively orchestrated a tortious plan to interfere with Appellant’s
prospective attorney-client relationship with Pasternak. In developing the
damage component of its claim, Appellant asserted that Datz obtained an
inadequate settlement (i.e., $216,000.00) on behalf of Pasternak. Appellant
therefore alleged that it was entitled to recover a fee based upon its
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assessment that Pasternak’s underlying claims were more properly valued in
excess of $1,000,000.00. Before these claims were resolved, however, the
litigation between Sigman and Appellant proceeded to arbitration. During
the arbitration proceedings, Appellant asserted a nearly identical tortious
interference claim against Sigman, but predicated its damages upon the
actual fees recovered by Datz. The arbitrator concluded that this claim was
meritorious and awarded Appellant an amount equal to that sum. Appellant
now claims that, notwithstanding the finality of the arbitration award, it is
entitled to recover damages from Datz based upon its enhanced valuation of
Pasternak’s claims. Appellant reasons that such a sum represents
Appellant’s lost profits stemming from the inadequate recovery obtained by
Datz. The trial court disagreed, finding that Appellant’s claims against Datz
could not withstand summary judgment since Appellant already obtained the
recovery to which it is entitled. Based upon Richette, and our prior decision
in Schein, supra, I cannot agree with the trial court’s conclusion, as
Appellant is entitled to seek its reasonably expected revenue from the
Pasternak case.
Lastly, the Majority accepts the trial court’s determination that
Appellant’s claims were speculative. In its opinion, the trial court expressed
skepticism as to whether Appellant would be able to demonstrate that
Pasternak would have retained Appellant as counsel, whether Appellant
would have successfully negotiated a settlement with opposing counsel, and
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whether Appellant could establish a monetary value that would have
resolved the case. Trial Court Opinion, 10/16/14, at 6-7. In line with these
observations, the trial court concluded, “Determining the outcome of
[Appellant’s] hypothetical representation in comparison with the actual result
would be based on absolute conjecture, and as such, [Appellant] is unable to
properly establish any element of damages.” Id. at 7. The trial court also
noted that its concerns about excessive speculation would likely lead it to
exclude the case valuation offered by Appellant’s expert. Id. at 7 n.7.
Given our well-settled standard of review over summary judgment
rulings, I am unable to endorse the trial court’s examination of the record.
“The question of whether damages are speculative has nothing to do with
the difficulty in calculating the amount, but deals with the more basic
question of whether there are identifiable damages.” Newman
Development Group of Pottstown, LLC v. Genuardi’s Family Market,
Inc., 98 A.3d 645, 661 (Pa. Super. 2014). Here, Appellant came forward
with case valuations similar to those that were presented in Richette, as
well as testimony that it would have accepted the Pasternak case. Such
evidence is not impermissibly speculative.3 See Schein, supra. Moreover,
on summary judgment, it is not the task of the trial court (or this Court) to
assess the probative force of the non-moving party’s evidence; instead, the
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3
The arbitrator’s award itself lends credence to the conclusion that Appellant
sustained tangible losses.
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function of the court is to view the evidence in the light most favorable to
the nonmovant and determine whether it has come forward with some
evidence to establish the elements of its claims. As Appellant met this basic
requirement, its claims should withstand summary judgment.
For each of these reasons, I would vacate the trial court’s order and
remand for further proceedings. Accordingly, I must respectfully dissent.
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