Dowling, B. v. Pennsylvania Psychiatric Institute

J-A20037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRIAN DOWLING : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
PENNSYLVANIA PSYCHIATRIC :
INSTITUTE, MICHAEL J. FELICE, AND :
WANDA GEESEY :
:
Appellee : No. 102 MDA 2019
Appeal from the Order Entered January 10, 2019
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2012-CV-10599-CV
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED NOVEMBER 18, 2019
Appellant, Brian Dowling, appeals from the order entered in the Dauphin
County Court of Common Pleas, which granted summary judgment in favor of
Appellees, Pennsylvania Psychiatric Institute (“PPI”), Michael J. Felice, and Wanda
Geesey, in this breach of contract action. We affirm.
A prior decision of this Court set forth the facts of this appeal as follows:
In 2008, [Appellant] was hired as the Director of Finance for
[Appellee] PPI…. During certain periods, [Appellant] served as
the de facto Chief Financial Officer (“CFO”).
On September 13, 2010, [Appellant] interviewed [Appellee]
Felice for the position of CFO. [Appellant] did not recommend
[Appellee] Felice for the position, concluding that [Appellee]
lacked appropriate interpersonal skills and experience in two
different business areas. [Appellee] Felice nevertheless was
hired in 2011 for the CFO position, and [Appellant] thereafter
trained him.
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[Appellee] Felice initially had a positive relationship with
[Appellant] but grew to resent him as [Appellee] PPI employees
continued to seek assistance from [Appellant]. As his relationship
with [Appellant] deteriorated, [Appellee] Felice became close
with [Appellee] Geesey, Director of Human Resources for
[Appellee] PPI. [Appellee] Geesey disliked [Appellant] due to
events occurring in 2012.
In 2012, [Appellee] PPI hired an interim Chief Executive Officer
and retained MSA Executive Search (“MSA”), an executive search
practice, to find a permanent CEO. [Appellee] Geesey was
appointed by [Appellee] PPI as one of the members of the search
committee and was the only member of the search committee
who worked for [Appellee] PPI. Jane Groves, an Executive Vice
President and Senior Advisor for MSA, subsequently met with
[Appellee] PPI personnel, including [Appellant], to discuss the
search process. … [Purportedly] Groves told [Appellant] that his
submission would be kept confidential, such that no one at
[Appellee] PPI would know that [Appellant] applied for the job,
with the exception of the search committee. On July 6, 2012, in
reliance upon Groves’ express representation, [Appellant]
submitted his resume for the CEO position.
On Friday July 13, 2012, Groves informed [Appellant] that she
was going to speak to the search committee about [his] interest
in becoming CEO. On Monday July 16, 2012, [Appellee] Felice,
in [Appellee] Geesey’s presence, terminated [Appellant’s]
employment.
Dowling v. Pennsylvania Psychiatric Institute, No. 473 MDA 2014,
unpublished memorandum at 1-2 (Pa.Super. filed June 8, 2015) (internal quotation
marks and citations to record omitted).
Procedurally, Appellant filed a writ of summons on December 13, 2012, and
a complaint against Appellees on January 8, 2013. In the complaint, Appellant
asserted against Appellee PPI claims for breach of employment contract and/or
confidentiality agreement and promissory estoppel; Appellant asserted an
intentional interference with contractual claim against Appellees Geesey and Felice.
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Appellees filed preliminary objections in the nature of a demurrer to
Appellant’s complaint. The trial court sustained Appellees’ preliminary objections
and permitted Appellant to file an amended complaint, which Appellant filed on July
11, 2013. Appellees filed preliminary objections in the nature of a demurrer to the
amended complaint. The court sustained Appellees’ preliminary objections and
dismissed the amended complaint. Appellant appealed and, on June 8, 2015, this
Court reversed and remanded for the parties to conduct discovery on Appellant’s
claims for breach of confidentiality agreement, promissory estoppel, and intentional
interference with contractual relations.1
Following remand, Appellees filed an answer and new matter to the amended
complaint on April 25, 2016. After discovery closed, Appellees filed a motion for
summary judgment on September 18, 2018. In their summary judgment motion,
Appellees attached as exhibits several affidavits and depositions transcripts,
including Appellant’s deposition transcript and his performance evaluations from
2009 to 2011. On November 7, 2018, Appellant filed an opposition to Appellee’s
summary judgment motion.
The trial court granted summary judgment in favor of Appellees on January
____________________________________________
1 In its June 8, 2015 memorandum, this Court determined that Appellant had
abandoned his claim for a breach of an employment contract, because Appellant
did not challenge on the appeal the trial court’s dismissal of that claim. In one of
his questions presented on appeal, Appellant explained he brought a claim for
breach of contract against Appellees “where the contract sued upon was not an
employment contract, but a confidentiality agreement formed orally between
Appellant…and Appellee [PPI]’s agent, Jane Groves[.]” Dowling, supra at 2.
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10, 2019. On January 15, 2019, Appellant filed a timely notice of appeal. The
court ordered Appellant on January 17, 2019, to file a concise statement of errors
complained of on appeal, per Pa.R.A.P. 1925(b). On February 19, 2019, Appellant
filed a petition for leave to file a concise statement nunc pro tunc, which the court
granted on February 21, 2019. Appellant filed a concise statement nunc pro tunc
on March 4, 2019.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW
WITH RESPECT TO COUNT I BY NOT CONSIDERING ALL OF THE
FACTS OF RECORD AND REASONABLE INFERENCES THEREFROM
IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY[?]
FURTHER WHETHER ERROR OF LAW WAS COMMITTED BY
GRANTING SUMMARY JUDGMENT WHEN THERE WERE DISPUTED
ISSUES OF MATERIAL FACT[?]
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW
WITH RESPECT TO COUNT II BY NOT CONSIDERING ALL OF THE
FACTS OF RECORD AND REASONABLE INFERENCES THEREFROM
IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY[?]
FURTHER WHETHER ERROR OF LAW WAS COMMITTED BY
GRANTING SUMMARY JUDGMENT WHEN THERE WERE DISPUTED
ISSUES OF MATERIAL FACT[?]
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF [LAW]
WITH RESPECT TO COUNT III BY NOT CONSIDERING ALL OF THE
FACTS OF RECORD AND REASONABLE INFERENCES THEREFROM
IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY[?]
FURTHER WHETHER ERROR OF LAW WAS COMMITTED BY
GRANTING SUMMARY JUDGMENT WHEN THERE WERE DISPUTED
ISSUES OF MATERIAL FACT[?]
(Appellant’s Brief at 5).
Our standard of review of an order granting summary judgment requires us
to determine whether the trial court abused its discretion or committed an error of
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law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on facts
and circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion if, in
resolving the issue for decision, it misapplies the law or exercises
its discretion in a manner lacking reason. Similarly, the trial court
abuses its discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000) (internal
citations and quotation marks omitted). Our scope of review is plenary. Pappas
v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S.
938, 122 S. Ct. 2618, 153 L. Ed. 2d 802 (2002). In reviewing a trial court’s grant of
summary judgment,
[W]e apply the same standard as the trial court, reviewing all the
evidence of record to determine whether there exists a genuine
issue of material fact. We view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary judgment
be entered. All doubts as to the existence of a genuine issue of
a material fact must be resolved against the moving party.
Motions for summary judgment necessarily and directly implicate
the plaintiff’s proof of the elements of [a] 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
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insufficient evidence of facts to make out a prima facie cause of
action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) (internal
citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the applicable
law, and the well-reasoned opinion the Honorable John J. McNally, III, we conclude
Appellant’s issues merit no relief. The trial court opinion comprehensively discusses
and properly disposes of the questions presented. (See Trial Court Opinion, filed
January 10, 2019, at 2-7) (relying on Appellant’s deposition, the court found: (1-
3) Appellant admitted his sole support for all of his claims was Appellee Geesey’s
alleged smirk when Appellee Felice fired Appellant; knowledge of Appellant’s
candidacy cannot be imputed to Appellees Felice or Geesey based solely on Appellee
Geesey’s facial expression; Appellant failed to present evidence beyond mere
speculation to demonstrate Appellees Felice and Geesey, as agents of Appellee PPI,
intended to harm Appellant by interfering with alleged confidentiality agreement;
therefore, all of Appellant’s claims fail). The record supports the trial court’s
rationale. See Chenot, supra. Accordingly, we affirm on the basis of the trial
court opinion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2019
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· -, Circulated 10/25/2019 11 08 AM
IN THE COURT OF COMMON PLEAS OF
DAUPHIN COUNTY, PENNSYLVANIA
NO. 2012-CV-10599-CV
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OPINION AND ORDER
Upon consideration of Defendants, Pennsylvania Psychiatric Institute ("PPI"), Michael J.
Felice ("Felice"), and Wanda Geesey ("Geesey") Motion for Summary Judgment, Plaintiffs
Response thereto, and after entertaining oral argument, this Court finds the following:
PROCEDURAL AND FACTUAL HISTORY
This Court hereby adopts and incorporates the Superior Court's recitation of the procedural
and factual history of this case as set forth in its Opinion in Dowling v. Pennsylvania Psychiatric
Institute. et al, No. 473 MDA 2014 (Pa. Super 2015). On appeal from a demurrer granted in favor
of Defendants, the Superior Court reversed the trial court, accepting as true all well-pled facts and
finding that Plaintiff pled the requisite elements of his causes of action. The Court remanded this
case in order to afford Plaintiff the opportunity to conduct discovery so that he may produce
evidence in support of his Breach of a Contract claim related to an alleged confidentiality
agreement, 1 Promissory Estoppel claim, and a claim for Intentional Interference With Contractual
I The Court found that Plaintiff had abandoned his claim for a breach of an employment agreement and we agree.
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Relationship. On remand, the parties engaged in discovery which has since been completed.
Defendants now move this Court for summary judgment based upon the following issues:
I. Whether PPI is entitled to summary judgment on the
grounds that Plaintiff has failed to produce evidence of
facts essential to a breach of contract cause of action.
II. Whether PPI is entitled to summary judgment on the
grounds that" Plaintiff has failed to produce evidence of
facts essential to a cause of action for promissory
estoppel.
III. Whether Felice and Geesey are entitled to summary
judgment on the grounds that Plaintiff has failed to
produce evidence of facts essential to an interference
with contractual relations cause of action.
SUMMARY JUDGMENT STANDARD
After the relevant pleadings are closed, but within such time as not to unreasonably delay
trial, any party may move for summary judgment in whole or in part as a matter oflaw 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. (Pa.R.C.P 1035.2(2)). A motion for summary judgment made under this
subdivision is based on an assertion that the record contains insufficient evidence of facts to make
out a prima facie cause of action and consequently there would be no issue to submit to a jury.
(See, Explanatory Comment to Pa.R.C.P. 1035.2.).
"Where the non-moving party bears the burden of proof on an issue, he may not merely
rely on his pleadings or answers to survive summary judgment." Estate of Young v. Louis,
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�OJ./.\.3ol 111 (Po.. )uR•r.ao1�· "- Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of proof establishes the entitlement of
the moving party to judgment as a matter of law." Id. at 8.
I. Whether Plaintiff has prodnced snfficient evidence of facts essential to snstain a
breach of contract action.
On appeal from a demurrer granted in favor of Defendants, the Superior Court ruled that:
Dowling has not had the opportunity to conduct discovery because
the trial court dismissed his case at the most preliminary stage of the
lawsuit. Dowling should, at the very least, be accorded the
opportunity to depose the individuals who were involved in these
events before his action is dismissed. Through the conduct of
depositions and dissemination of interrogatories and requests for
production of documents, Dowling may well prove his case."
Dowling v. Pennsylvania Psychiatric Institute, No. 473 MDA 2014 (Pa. Super. 2015). On remand,
the parties engaged in the exchange of discovery which concluded in August of 2018.
It is well-settled law that in order to successfully maintain a cause of action for breach of
contract a plaintiff must establish: (1) the existence of a contract, including its essential terms, (2)
a breach of a duty imposed by the contract, and (3) resultant damages. (Albert v. Erie Ins.
Exchange, 65 A.3d 923, 928 (Pa. Super. 2013)).
Plaintiff contends that an oral contract was formed between he and PPI, through PPI's
alleged agent, Jane Groves ("Groves"). He testified at his deposition, (and bolsters with his
affidavit) that Groves assured him that his candidacy for the CEO position would remain
confidential with and among themembers of the search committee because he was an internal
candidate. (Dowling transcript, October 25, 2017 at p.92). Of particular note, during discovery
Plaintiff chose not to take the deposition of Groves, the Executive Vice President and Senior
Advisor of MSA Executive Search ("MSA"), the individual with whom he is alleged to have
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entered into the confidentiality agreement upon which his causes of action are based. However, in
her affidavit, Groves swears that at no time during the conversations with Plaintiff did she tell him
that, except for the Board's Search Committee, no one at PP! would know if he submitted his
resume for the position of CEO. (Groves Affidavit, attached to Defendants' Motion for Summary
Judgment at p.363-364). At oral argument in opposition to the present motion, Plaintiff counsel
argued that Plaintiff would not have submitted his application but for her assurance of
confidentiality. This Court is concerned about the nature and lack of evidence with regard to the
formation and terms of the alleged confidentiality agreement but recognizes that the credibility of
Plaintiff and Groves is an issue for the jury, as is the question regarding the existence of an agency
relationship between Groves and PPL Borough of Nanty-Glo v. American Surety Co. of New
York, 163 A. 523; Walton v. Johnson, 66 A.3d 782 (Pa. Super. 2013).
Next, Plaintiff argues that the alleged confidentiality agreement was breached when
Geesey and Felice learned of his candidacy and as a result, he was fired. Plaintiff would like the
Court to infer, based upon the circumstances surrounding Felice firing him, namely, Geesey' s
facial expression, that Geesey and Felice had to have known at that time ofhis candidacy for CEO.
(See, Plaintiffs Brief in Opposition, p. 22). However, Plaintiff points to no evidence, beyond a
smirk, to support that Felice or Geesey knew that Plaintiff applied for the CEO position prior to
his termination. Plaintiff admitted during his deposition that other than Geesey's facial expressions
at the time he was fired, he had no facts to support his claim that the promise of confidentiality
was breached. Plaintiff testified as follows:
Q: Brian, did you say to Jane Groves: "I know that Wanda
Geesey knew I applied for the CEO job and that is why I was
fired"?
A: It's likely I said that.
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Q: Okay. Were there any-
A: Because of Wanda's facial expressions during my firing.
Q: Okay. Was there any other reason, any other facts in your
possession to give rise to that statement?
A: No facts.
Q: Okay. And did Groves say to you I don't know how Wanda
could have known since all the resumes were sent directly to
my search company and I - meaning Groves- hadn't spoken
with Geesey about the candidate?
A: That sounds -
Q: Did she say that to you?
A: That sounds fair
(Dowling Transcript, Exhibit G to Defendant's Motion for Summary Judgment, p. 257) ( emphasis
added).
Plaintiffs claim of breach of confidentiality is based solely on speculation and conclusory
allegations which cannot, as a matter of law, create issues of material fact, and therefore cannot
survive summary judgment. (See, Blumenstock, 811 A.2d at 1040). Plaintiff's failure to adduce
sufficient evidence as to breach, an issue essential to his case and on which he bears the burden of
proof, establishes Defendants' entitlement to judgment as a matter of law. (See, Estate of Young,
supra.)
II. Whether Plaintiff has produced evidence of facts essential to a cause of action for
promissory estoppel
Plaintiff's Amended Complaint asserts that, "in the event that it is determined that a fully
integrated contract between Dowling and PPI does not exist for want of consideration, then
Dowling asserts a claim for promissory estoppel against PPL" (Amended Complaint, ,r34).
Plaintiff alleges that PPI, by way of its agent Groves, made a promise to him that, except for the
search committee, no one at PPI would know if he submitted his resume for the CEO position
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which PPI should have reasonably expected to induce action on his part. (Amended Complaint,
,r35). Plaintiff submitted his resume in reliance on this promise. (Amended Complaint, i!36)
Injustice can be avoided only by enforcing this promise because but for this promise, Plaintiff
would still be employed. (Amended Complaint, i!37).
The essential elements of a cause of action for promissory estoppel: (1) the promisor made
a promise that he should have reasonably expected to induce action or forbearance on the part of
the promisee; (2) the promisee actually took action or refrained from taking action in reliance on
the promise; and (3) injustice can be avoided only by enforcing the promise. Crouse v. Cyclops
Industries, 745 A.2d 606 (Pa. 2000). The doctrine of promissory estoppel is invoked to avoid
injustice if there is no enforceable agreement between the parties in that it is not supported by
consideration. Id. at 610. In support of his promissory estoppel claim, Plaintiff asserts that:
Jane Groves made a promise to keep Brian's CEO candidacy
confidential and she reasonably expected to induce him to submit
his resume based upon that promise. Brian sent his resume to Groves
in reliance on the promise that this action would remain confidential.
The first working day after Groves said that she would report Brian's
candidacy to the search committee, he was fired in Geesey's
presence by Felice without reason and in violation of the procedures
of the corporate handbook.
(Plaintiffs Brief in Opposition to Defendants' Motion for Summary Judgment, p. 23).
However, as set forth above at length, Plaintiff points to no evidence that the alleged
confidentiality agreement was breached, except for Plaintiffs observation that Geesey had a smirk
on her face at the time Felice fired him, which Plaintiff would like the Court to infer that this
indicated that Geesey and Felice had to know his candidacy and that is why he was fired. Of course,
knowledge of Plaintiffs candidacy cannot be imputed on either Felice or Geesey based solely on
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Geesey's facial expression. Such speculation cannot serve as a basis to enforce the alleged
agreement ·in equity. Promissory estoppel is invoked in order to avoid injustice, it permits an
equitable remedy to a contract dispute. Crouse v. Cyclops Indus., 745 A.2d at 610. In this case,
Plaintiff fails to point to any concrete evidence of injustice as he has produced no evidence to
support the alleged breach of the confidentiality agreement. Accordingly, Plaintiffs promissory
estoppel claim cannot survive summary judgment.
III. Whether Felice and Geesey are entitled to summary judgment on the grounds that
Dowling has failed to produce evidence of facts essential to an interference with
contractual relations cause of action
The four elements necessary for an intentional interference with a contractual relationship
claim are: (1) The existence of a contractual relationship between the complainant and a third
party; (2) An intent on the part of the defendant to harm the plaintiff by interfering with that
contractual relationship; (3) The absence of a privilege of justification on the part of the defendant;
(4) The occasioning of actual damages as a result of the defendant's conduct. Foster v. UPMC
Southside Hospital, 2 A.3d 655, 665-666 (Pa. Super.amoj.
Again, we find no evidence of record beyond mere speculation to demonstrate an intent to
harm Plaintiff by interfering with the alleged confidentiality agreement. Accordingly, Plaintiff's
Intentional Interference With a Contractual Relationship claim must fail.
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BRIAN DOWLING, IN THE COURT OF COMMON PLEAS OF
DAUPHIN COUNTY, PENNSYLVANIA
Plaintiff
v.
PENNSYLVANIA PSYCHIATRIC
INSTITUTE, MICHAEL J. FELICE,
and WANDA GEESEY,
Defendants
ORDER
\O�ay
AND NOW, THIS of January 2019, upon consideration of Defendants'
Motion for Summary Judgement, Plaintiffs Response thereto, and after entertaining oral argument
it is hereby ORDERED that Defendants' Motion for Summary Judgment is GRANTED.
Distribution:
Richard C. Seneca, Esq., PO Box 333,680 Yorktown Road, Lewisberry, PA 17339
David B. Dowling, Esq., 2320 North 2nd Street, PO Box 60457, Harrisburg, PA 17106
Dauphin County Court Administrator
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