Wishnefsky, B. v. Fanelli, Evans and Patel, P.C.

J-S26031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRUCE L. WISHNEFSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
FANELLI, EVANS AND PATEL, P.C. : No. 335 MDA 2021
Appeal from the Order Entered January 29, 2021
In the Court of Common Pleas of Schuylkill County Civil Division at
No(s): S-628-2018
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: DECEMBER 7, 2021
Bruce L. Wishnefsky (“Wishnefsky”) appeals, pro se, from the Order
sustaining Preliminary Objections to Wishnefsky’s Fourth Amended Complaint,
filed by Fanelli, Evans and Patel, P.C. (“the Law Firm”), and dismissing
Wishnefsky’s Fourth Amended Complaint with prejudice. We affirm.
The parties have extensively litigated the fee dispute underlying the
instant appeal. In its most recent iteration, Wishnefsky’s Fourth Amended
Complaint averred the following. In 1993, the Law Firm agreed to pay
Wishnefsky a forwarding fee for referring cases to the Law Firm. Fourth
Amended Complaint, 1/4/21, at ¶ 2. Under this arrangement, the Law Firm
would pay Wishnefsky one-third of the compensation that the Law Firm
ultimately received from the forwarded cases. Id.
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In January 1994, Wishnefsky borrowed $3,000.00 from the Law Firm,
which “would be subtracted from any forwarding fees due Wishnefsky from
[the Law Firm].” Id. at ¶ 13. However, Wishnefsky averred that, after the
Law Firm had accrued significant fees in matters forwarded by Wishnefsky,
the Law Firm refused to tender payment. Id. at ¶ 30. At that time, the Law
Firm advised Wishnefsky that “payment of the forwarding fee might be
improper.” Id.
Subsequently, Wishnefsky threatened to forward a potential new case
to another law firm. Id. at ¶ 31. The Law Firm proposed that if Wishnefsky
became an employee of the Law Firm, he could recover his forwarding fees.
Id. at ¶ 37. The Law Firm agreed to pay Wishnefsky a salary for six months,
based upon an annual salary of $70,000. Id. at ¶ 38. “At the end of that
period[, Wishnefsky’s] services would be terminated[,] and he would receive
a $25,000.00 severance payment from [the Law Firm]. As part of this
compensation plan[, Wishnefsky] was to waive any claim he had to forwarding
fees.” Id. In accordance with this plan, Wishnefsky was placed on the Law
Firm’s payroll in March 1996. Id. at ¶ 39. In April 1996, however, the Law
Firm reverted to its earlier arrangement with Wishnefsky. Id. at ¶ 8.
In August 1998, the Law Firm received a fee of $150,000.00 as a result
of a matter that had been forwarded by Wishnefsky. Id. at ¶ 58. However,
the Law Firm did not pay Wishnefsky this or other forwarding fees. Id. at
¶ 59. Since that time, Wishnefsky has filed multiple, unsuccessful legal
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actions to recover his forwarding fees. See Trial Court Opinion, 1/29/21, at
6-8 (summarizing the prior, unsuccessful actions filed by Wishnefsky).
In the present action, Wishnefsky filed a pro se Complaint in the nature
of a bill in equity, alleging claims for unjust enrichment and restitution.
Ultimately, Wishnefsky filed his Fourth Amended Complaint on January 4,
2021, while the Law Firm’s Preliminary Objections to the Third Amended
Complaint were pending before the trial court. On January 8, 2021, the Law
Firm filed Preliminary Objections in the nature of demurrers to Wishnefsky’s
Fourth Amended Complaint, based on, inter alia, res judicata and the statute
of limitations. In an Opinion and Order filed on January 29, 2021, the trial
court sustained the Law Firm’s Preliminary Objections and dismissed
Wishnefsky’s Fourth Amended Complaint with prejudice.1 Trial Court Order,
1/29/21. On February 5, 2021, after the trial court had dismissed
Wishnefsky’s Fourth Amended Complaint with prejudice, Wishnefsky filed
Preliminary Objections to the Law Firm’s Preliminary Objections to the Fourth
Amended Complaint.
Wishnefsky subsequently filed a timely pro se Notice of Appeal of the
trial court’s January 29, 2021, Order, followed by a court-ordered Pa.R.A.P.
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1The trial court dismissed the Law Firm’s Preliminary Objections to the Third
Amended Complaint as moot.
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1925(b) Concise Statement of matters complained of on appeal.2 On March
1, 2021, the trial court dismissed Wishnefsky’s February 5, 2021, Preliminary
Objections as moot, as the trial court already had entered its final Order in
the matter. See Trial Court Order, 3/1/21.
Wishnefsky presents the following claims for our review:
I. Whether the trial court erred when it denied [Wishnefsky]
due process[,] when it ruled on [the Law Firm’s] Preliminary
Objections before it ruled on [Wishnefsky’s] Preliminary
Objections to Preliminary Objections[?]
II. Whether the trial court erred when it held that [Wishnefsky]
had a full and fair opportunity to litigate his claims, when it
did not identify any facts that support this conclusion[?]
III. Whether the trial court erred when it did not give any
consideration to the fact that [Wishnefsky] had alleged in
his Complaint that in the case of SCF Consulting LLC v.
Barrack, Rodos v. Bacine, 175 A.3d 273 ([Pa.] 2017)
[(“SCF Consulting”),] the [Pennsylvania] Supreme Court
rejected Wishnefsky v. Riley & Fanelli, P.C., 799 A.2d
827 (Pa. Super. 2002)[?]
IV. Whether the trial court erred when it held that the instant
matter appears to be a breach of contract claim, not an
unjust enrichment claim[?]
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2 Our review of the record discloses that Wishnefsky’s was in prison at the
time he filed his Notice of Appeal. Wishnefsky’s Notice of Appeal is date
stamped March 10, 2021. Wishnefsky appended to his docketing statement
a cash slip from prison authorities dated February 23, 2021. The Certificate
of Service attached to Wishnefsky’s Notice of Appeal bears the same date.
Because Wishnefsky is pro se and incarcerated, we conclude that he is entitled
to the benefit of the “prisoner mailbox rule.” See Pa.R.A.P. 121(f) (providing
that filings by such litigants are “deemed filed as of the date of the prison
postmark or the date the filing was delivered to the prison authorities for
purposes of mailing, as documented by properly executed prisoner cash slip
or other reasonably verifiable evidence.”).
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Brief for Appellant at 2 (some capitalization changed).
The applicable standard of review is as follows:
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading would
permit recovery if ultimately proven. This Court will reverse the
trial court’s decision regarding preliminary objections only where
there has been an error of law or abuse of discretion. When
sustaining the trial court’s ruling will result in the denial of claim
or a dismissal of suit, preliminary objections will be sustained only
where the case i[s] free and clear of doubt.
Weiley v. Albert Einstein Med. Center, 51 A.3d 202, 208 (Pa. Super. 2012)
(citation omitted).
Wishnefsky first claims that the trial court improperly ruled on the Law
Firm’s Preliminary Objections to the Fourth Amended Complaint, without
considering his own Preliminary Objections to the Law Firm’s Preliminary
Objections. Brief for Appellant at 4. Wishnefsky points out that “[p]rocedural
due process requires notice and the opportunity to be heard.” Id. (citation
omitted). Wishnefsky asserts that he did not receive the Law Firm’s
Preliminary Objections until January 13, 2021, and “as a result, the [trial]
court issued it[]s January 29, 2021, Opinion and [O]rder before [he] was able
to respond.” Id. at 4-5.
As this Court has explained,
[a] preliminary objection in the nature of a demurrer is properly
granted where the contested pleading is legally insufficient.
Preliminary objections in the nature of a demurrer require the
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court to resolve the issues solely on the basis of the pleadings; no
testimony or other evidence outside of the complaint may be
considered to dispose of the legal issues presented by the
demurrer. All material facts set forth in the pleading and all
inferences reasonably deducible therefrom must be admitted as
true.
….
Thus, the question presented by the demurrer is whether, on the
facts averred, the law says with certainty that no recovery is
possible. Where a doubt exists as to whether a demurrer should
be sustained, this doubt should be resolved in favor of overruling
it.
Weiley, 51 A.3d at 208-09 (citations and internal quotation marks omitted).
Our review of the record discloses that Wishnefsky’s Preliminary
Objections to the Law Firm’s Preliminary Objections to the Fourth Amended
Complaint averred two bases for relief: (a) the Law Firm’s assertions that the
affirmative defenses of res judicata and the statute of limitations should have
been pled in new matter; and (b) the Law Firm’s demurrers are supported by
multiple exhibits and, therefore constitute impermissible “speaking
demurrers.” Plaintiff’s Preliminary Objections to Defendant’s Preliminary
Objections, 2/5/21, at 1.
Our review of the record further discloses that the trial court dismissed
Wishnefsky’s Fourth Amended Complaint as barred by the doctrine of res
judicata. Trial Court Order, 1/29/21, at 1. Thus, the trial court did not
consider the issue regarding the statute of limitations in its ruling. As such,
Wishnefsky’s challenge, based upon the trial court’s ruling on the statute of
limitations Preliminary Objection, is unsupported by the record.
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Regarding Wishnefsky’s Preliminary Objection to the Law Firm’s res
judicata Preliminary Objection, we observe the following. “In ruling on a
demurrer, the [trial] court may consider only such matters as arise out of the
complaint itself; it cannot supply a fact missing in the complaint.” Hall v.
Goodman Co., 456 A.2d 1029, 1034-35 (Pa. Super. 1983) (citation omitted).
In his Fourth Amended Complaint, Wishnefsky included a section
entitled “IMPEDIMENTS TO AN EARLIER PROSECUTION OF THIS CLAIM.”
Fourth Amended Complaint, 1/4/21, at 10. In this section, Wishnefsky
described his prior, unsuccessful causes of action for the same fees:
60. [Wishnefsky] filed suit in [the trial c]ourt against [the Law
Firm] alleging breach of contract in January of 1999, S-21-1999[.]
[Wishnefsky’s Fourth] [A]mended [C]omplaint added counts for
fraud and breach of an employment agreement. [The Law Firm]
raised the defense of the contract being illegal[,] and the
Honorable Cyrus Palmer Dolbin [(“Judge Dolbin”)] overruled this
[P]reliminary [O]bjection. On a [M]otion for summary judgment
raising the defense of in pari delicto, Judge Dolbin granted [the
Law Firm’s M]otion for summary judgment. On May 15, 2012, the
Superior Court affirmed in a precedential [O]pinion, [see
Wishnefsky] 799 A.2d at 827, and [Wishnefsky’s P]etition for
allowance of appeal was denied on November 13, 2002, [see] 813
A.2d 844 [(Pa. 2002),] by the Supreme Court of Pennsylvania.
….
64. During August of 1999, [Wishnefsky] filed suit against [the
Law Firm] in the U.S. District Court for the Middle District of
Pennsylvania, No. 4:99-CV-1494, alleging Civil R[ICO] claims.
The District Court dismissed the case on initial screening, relying
primarily on R.P.C. [sic] 5.4. The Third Circuit affirmed, for similar
reasons[,] on August 13, 2002, [see Wishnefsky v. Carroll, 44
Fed Appx. 581 (3d Cir. 2002),] although [the federal judge,] who
wrote the opinion for the panel, said “the fact that there was an
understanding appears to be beyond dispute.” Id. at 582.
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65. On May 25, 2001, [Wishnefsky] filed a [C]omplaint with a
Civil R[acketeering] claim … [and] for breach of a contract against
[the Law Firm] in [the trial court], No. S-1081-2001. [The Law
Firm] argued in pari delicto as a defense.
….
67(A). On October 20, 2014, the Honorable Jacquelin Russell
granted summary judgment to [the Law Firm] in the S-1081-
2001[] case.
67(B). [Wishnefsky] filed a [N]otice of [A]ppeal ….
….
68. The Superior Court affirmed this decision in an unreported
memorandum[, Wishnefsky v. Evans, 125 A.3d 446 (Pa. Super.
2015) (unpublished memorandum),] on July 10, 2015, and the
Supreme Court of Pennsylvania denied [Wishnefsky’s P]etition for
allowance of appeal on December 7, 2015, [see id., appeal
denied,] 128 A.3d 221 [(Pa. 2015)].
Fourth Amended Complaint, 1/4/21, at 10-11. These prior actions formed the
basis of the Law Firm’s res judicata Preliminary Objection to the Fourth
Amended Complaint. Preliminary Objections to Fourth Amended Complaint,
1/8/21, ¶¶ 1-16.
In its January 29, 2021, Opinion, the trial court addressed whether the
Law Firm’s Preliminary Objection constituted a “speaking demurrer,” the same
claim raised in Wishnefsky’s Preliminary Objections to the Law Firm’s
Preliminary Objections. The trial court stated, “because [Wishnefsky]
thoroughly documented his prior lawsuits in the Fourth Amended Complaint,
[the Law Firm] has properly raised the defense of res judicata in its Preliminary
Objections.” Trial Court Opinion, 1/29/21, at 11.
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Our review discloses that the trial court considered only the averments
in Wishnefsky’s Fourth Amended Complaint, when it analyzed and sustained
the Law Firm’s res judicata Preliminary Objection. See Trial Court Opinion,
1/29/21, at 5-6. As such, we discern no due process violation requiring relief,
where the trial court fully had considered and resolved the objection raised by
Wishnefsky in his own Preliminary Objections. Consequently, Wishnefsky is
not entitled to relief on his first claim. See id.In his second claim, Wishnefsky argues that the trial court erred when
it concluded that, in the prior causes of action, Wishnefsky had a full and fair
opportunity to litigate his claim. Brief for Appellant at 5. Wishnefsky asserts
that the trial court improperly failed to identify any facts that support its
conclusion. Id. According to Wishnefsky,
while the trial court and appeals court proceedings in Wishnefsky
v. Riley & Fanelli, P.C., 799 A.2d 827 (Pa. Super. 2002), were
full and fair, the appeal in Wishnefsky v. Evans … was not, since
the Memorandum Opinion was written by a biased judge, [The
Honorable Victor P.] Stabile, who put great emphasis [on
Wishnefsky’s] irrelevant criminal case in his Memorandum
Opinion.
Brief for Appellant at 6. Wishnefsky also appears to claim that the death of
James J. Riley, Esquire (“Attorney Riley”),3 whom Wishnefsky had sued in
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3 Attorney Riley was a partner at the Law Firm, and a person with whom
Wishnefsky had negotiated his forwarding fee. Attorney Riley died while the
appeal was pending in Wishnefsky v. Evans.
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Wishnefsky v. Evans, had “deprived the court of jurisdiction.” Brief for
Appellant at 6.
Our review of the record discloses that Wishnefsky’s allegations of bias
by Judge Stabile are not supported by any evidence in the record. An
appellate court may consider only those facts which have been duly certified
in the record on appeal. Ruspi v. Glatz, 69 A.3d 680, 691 (Pa. Super. 2013)
(citation omitted). Those items that do not appear of record do not exist for
appellate purposes. Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super. 2008).
Consequently, we cannot grant Wishnefsky relief on this claim. See id.Moreover, in its Opinion, the trial court addressed Wishnefsky’s claim
and concluded that it lacks merit. See Trial Court Opinion, 1/29/21, at 9-11
(summarizing the prior causes of action, and setting forth the law regarding
res judicata), 11-16 (applying the law regarding res judicata and concluding
that the doctrine applies to bar Wishnefsky’s present cause of action). We
agree with the sound reasoning of the trial court, as set forth in its Opinion,
and affirm on this basis regarding Wishnefsky’s second claim. See id.In his third claim, Wishnefsky argues that the trial court erred in not
considering the fact that the Supreme Court has since rejected its holding in
Wishnefsky v. Riley & Fanelli, P.C., when it decided SCF Consulting. Brief
for Appellant at 6. Wishnefsky asserts that in SCF Consulting, a majority of
the justices concluded that fee-sharing agreements between a lawyer and a
non-lawyer are not per se unenforceable. Id. at 7. Wishnefsky argues that,
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because the Supreme Court changed the law, the Superior Court’s prior
holding in Wishnefsky v. Riley & Fanelli, P.C., no longer precludes litigation
on this issue. Id.
In its Opinion filed on May 3, 2021, the trial court addressed and
rejected this claim:
[W]e find [Wishnefsky’s] argument to be without merit because
(1) we dismissed the instant cause of action on the basis of res
judicata, and further explained that his unjust enrichment claim is
also barred because [Wishnefsky] failed to alternatively plead this
claim in his previous breach of contract litigation against [the Law
Firm] to recover the [] referral fees; and (2) the Pennsylvania
Supreme Court did not reject Wishnefsky v. Riley and Fanelli,
P.C., … in SCF Consulting …; instead[,] the Pennsylvania
Supreme Court held that fee-splitting agreements between non-
attorneys, entered in violation of the Rules of Professional
Conduct, are not per se unenforceable. Our Supreme Court
further explained that the determination of whether such fee-
splitting agreements are unenforceable may turn on factual
findings concerning the non-law-firm party’s “culpability, or the
degree thereof, relative to the alleged ethical violation.” SCF
Consulting, LLC, … 175 A.3d at 277.
Trial Court Opinion, 5/3/21, at 4-5. Thus, the trial court found no merit to
Wishnefsky’s claim. See id. We agree with the sound reasoning of the trial
court, as set forth above, and affirm on this basis as to Wishnefsky’s third
claim. See id.
In is fourth claim, Wishnefsky challenges the trial court’s determination
that Wishnefsky’s present claim is a breach of contract claim. Brief for
Appellant at 7. In support, Wishnefsky argues that, since he is asking for an
accounting and restitution, “remedies that are not available in a breach of
contract claim, the claim cannot be a breach of contract claim.” Id.
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Wishnefsky again cites SCF Consulting as permitting an equity claim of
unjust enrichment, where a contract is unenforceable as against public policy.
Id.
In its Opinion, the trial court addressed the applicability of the doctrine
of res judicata and, in particular, the “identity of the cause of action.” See
Trial Court Opinion, 1/29/21, at 13-15. Although the trial court stated that
“the instant action appears to be a breach of contract claim, not an unjust
enrichment claim[,]” see id. at 14, the trial court further stated the following:
[It] is noted that, [Wishnefsky’s] unjust enrichment[FN] claim is
also barred because the Pennsylvania Superior Court has held that
breach of contract claims and unjust enrichment claims must be
pled alternatively. [Wishnefsky’s] unjust enrichment claim[s] and
breach of contract claims are alternate theories of recovering,
meaning they are different means to recover the same damages
or relief for a single harm arising from the same facts and
circumstances; therefore, [Wishnefsky] had an obligation to raise
these claims at the same time. Additionally, the doctrine of res
judicata will bar a party from raising issues in subsequent litigation
that could have been litigated in the first suit, but were not.
[FN]The Pennsylvania Superior Court has held that “theories of
breach of contract and unjust enrichment must be pleaded
alternatively in order to allow recovery under the latter theory
where an express contract cannot be proven….” Lugo v. Farmers
Pride, Inc., … 967 A.2d 963, 970 ([Pa. Super.] 2009) [(emphasis
in original)]. … “If a plaintiff fails to prove a cause of action on an
express contract, he may not then attempt to prove his case in
quasi-contract, unless his complaint originally, or as amended[,]
sets forth a cause of action in quasi-contract.” Birchwood Lakes
Community Ass’n, Inc. v. Comis, … 442 A.2d 304, 308 ([Pa.
Super.] 1982).
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Id. at 14-15 (one citation omitted, footnote and emphasis in original). When
read in context, the statement challenged by Wishnefsky affords him no relief,
for the reasons stated in the trial court’s Opinion.4 See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/07/2021
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4We further observe that “res judicata will bar subsequent claims that could
have been litigated in the prior action, but which actually were not....” Chada
v. Chada, 756 A.2d 39, 43 (Pa. Super. 2000) (citation omitted).
Consequently, a party “cannot sit out one cause of action and then force the
opposing party into another action over an issue that both could and should
have been raised in the first place.” Stuart v. Decision One Mortgage Co.,
LLC, 975 A.2d 1151, 1154 (Pa. Super. 2009) (citation omitted).
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