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

J-S26031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
BRUCE L. WISHNEFSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant
Vv.
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 4] 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 q 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 4 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
q 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.! 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.
1 The trial court dismissed the Law Firm’s Preliminary Objections to the Third
Amended Complaint as moot.
J-S26031-21
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[? |
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]jreliminary [O]bjection. On a [M]otion for summary judgment
raising the defense of in pari delicto, Judge Dolbin granted [the
Law Firm’s Motion 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]letition 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, 14, 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”),2 whom Wishnefsky had sued in
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.-1i-
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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!"! 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.* See id.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Est
Prothonotary
Date: 12/07/2021
4 We 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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[-Aq~2 Cipaies Vester Yo Ly f hily Any Circulated 11/09/2021 12:30 PM
IN THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY, PA
CIVIL ACTION LAW
BRUCE L. WISHNEFSKY, NO. S-628-2018
Plaintiff
Vv,
FANELLI, EVANS & PATEL, P.C. ; cae
fik/a RILEY & FANELLI, P.C., on
Defendant =i ge
rd on
a ‘ a
OPINION OF COURT =
GOODMAN, J.
I. BACKGROUND
A. Procedural History
On or about April 9, 2018, Plaintiff initiated this action by filing a complaint in the nature
of a bill in equity against Defendant, in which Plaintiff's sole claim was unjust enrichment and
restitution. The Defendant Fanelli, Evans & Patel, P.C. f/k/a Riley & Fanelli, P.C. (the “Law
Firm”) filed preliminary objections to the complaint, on or about May 23, 2018, raising the
issues of improper service and res judicata. On or about June 4, 2018, Plaintiff filed an
Amended Complaint in which he set forth the same factual allegations and legal claims as he had
in his original complaint. Defendant filed preliminary objections to the Amended Complaint, on
or about June 12, 2018, again asserting improper service and res judicata,
On or about July 5, 2018, Plaintiff filed his Second Amended Complaint in the Nature of
a Bill in Equity (“Second Amended Complaint”). The Law Firm filed Preliminary Objections to
Plaintiff's Second Amended Complaint on or about July 18, 2018. On or about August 9, 2018,
the Plaintiff filed preliminary objections to the Defendant’s preliminary objections. Defendant
filed an Answer to the Plaintiff's preliminary objections on or about August 21, 2018. This
Court issued an Order, or about October 10, 2018, granting Defendant’s preliminary objection as
to improper service and struck service. Additionally, in the October 10, 2018 Order, this Court
dismissed all other preliminary objections by Plaintiff and Defendant. The October 10, 2018
Order also afforded Plaintiff the opportunity to reinstate and serve the Second Amended
Complaint upon Defendant.
On or about October 21, 2020, Plaintiff filed a Praecipe to Reinstate Second Amended
Complaint. On or about October 28, 2020, an Affidavit of Return was filed indicating that
service of the Second Amended Complaint was made by the Sheriff's Department of Schuylkill
County upon Defendant on October 26, 2020. The Defendant filed Preliminary Objections to
Plaintiff's Second Amended Complaint on or about November 10, 2020.
On or about December 3, 2020, Plaintiff filed his Third Amended Complaint in the
Nature of a Bill in Equity (“Third Amended Complaint”), as well as, a Praecipe to change his
mailing address. On or about December 07, 2020, this Court issued an Order dismissing
Defendant’s Preliminary Objections to Plaintiffs Second Amended Complaint as moot.
On or about December 08, 2020, Defendant filed Preliminary Objections to Plaintiff's
Third Amended Complaint. On or about December 11, 2020, Defendant filed its Praecipe to
Attach a Notice to Plead to Defendant’s Preliminary Objections to Plaintiff's Third Amended
Complaint. On or about January 4, 2021, Plaintiff filed his Fourth Amended Complaint in the
Nature of a Bill in Equity (“Fourth Amended Complaint”). Defendant filed Preliminary
Objections to Plaintiff's Fourth Amended Complaint on or about January 08, 2021.
Before this Court are Defendant’s Preliminary Objections to the Third Amended
Complaint and Defendant’s Preliminary Objections to the Fourth Amended Complaint. This
Court has determined that because of the filing of Plaintiffs Fourth Amended Complaint,
Defendant’s Preliminary Objections to the Third Amended Complaint are dismissed as moot. As
such, this Court will address Plaintiffs Fourth Amended Complaint and Defendant's Preliminary
Objections to said amended complaint.
Defendant argues Plaintiff's Fourth Amended Complaint should be denied and dismissed
with prejudice because (1) his claims are barred by Res Judicata; (2) Plaintiff's failure to raise
the claim of unjust enrichment in his previous actions constitutes a waiver of that claim; (3) the
doctrine of unjust enrichment is inapplicable in this matter because Plaintiff has alleged that an
express oral contract existed between the parties; and (4) the statute of limitations for the claim
of unjust enrichment has expired long ago. Defendant also argues that Paragraphs 3-5, 8-12, 14-
15, 22, 27, 29-30, 32-37, 41-49, 52-58 and 63 of the Fourth Amended Complaint should be
stricken for the inclusion of scandalous and impertinent matters.
B. Plaintiff's Factual Allegations in the Fourth Amended Complaint
On or about December 03, 2020, Plaintiff filed the Third Amended Complaint, which
was essentially his Second Amended Complaint recited verbatim except for the inclusion of
Paragraph 71.1 where Plaintiff indicates that in 2018, he filed a petition to open-judgment in a
prior litigation, at No. S-1081-2001, which was denied. According to Plaintiff, he appealed this
order to the Superior Court, which affirmed on May 24, 2019. Plaintiffs petition for allowance
of appeal to the Pennsylvania Supreme Court was denied on March 11, 2020.
In his Fourth Amended Complaint, Plaintiff attempts to address some of the deficiencies
in the Third Amended Complaint that were raised by Defendant in its preliminary objections.
However, Plaintiff's Fourth Amended Complaint essentially recites the Third Amended
Complaint verbatim.’
' The changes that Plaintiff made in the Fourth Amended Complaint are summarized as follows:
(1) Plaintiff struck Paragraphs 17 through 21 from his complaint, which included allegations regarding the
John Hancock Mutual Life Insurance Company settlement. These paragraphs, however, were not
relevant to the matter at hand;
3
In the Fourth Amended Complaint, the Plaintiff sets forth a lengthy factual and
procedural history, which is summarized as follows. In 1993, the Plaintiff began performing
work for Riley and Fanelli, P.C. (“Riley and Fanelli”)’ through his company Pine Hill Advisory
Corp. Attorney Riley informed Plaintiff that he would receive a referral fee, which equated to 33
1/3% of the legal fees Riley and Fanelli received, for any cases that Plaintiff referred to them.
Plaintiff alleges that he referred a bankruptcy matter to Riley and Fanelli in March 1993, and that
he received payment of the agreed upon referral fee. Plaintiff alleges that he continued to refer
cases to Riley and Fanelli.
Additionally, Plaintiff alleges that during August 1995, he learned about a matter in which
Jacob Hanyon suffered severe burn injuries when a lighter, manufactured by Zippo
Manufacturing, Co. (“Zippo”), ignited his Walt Disney Co. (“Disney”) licensed underwear top
that was not fire resistant, hereinafter referred to as the “Hanyon Referral”. The Plaintiff alleges
that he referred the matter to Riley and Fanelli, and was informed that he would receive his
agreed upon referral fee. According to Plaintiff, during January 1996, Riley and Fanelli settled
another matter, which Plaintiff refers to as the O’Neil Referral. Plaintiff avers that he referred
the O’Neil Referral to the law firm, and that, for the first time, Attorney Riley informed Plaintiff
the referral fee was improper. Additionally, Plaintiff alleges that the law firm indicated it would
not pay him the referral fee. Plaintiff further alleges that he threatened to transfer his referrals to
(2) Plaintiff struck Paragraph 40 of his complaint, which contained allegations regarding arguments
between Attorney Fanelli and Attorney Riley that were not relevant to the instant matter;
(3) Plaintiff amended Paragraph 41 ofhis complaint so that it only included an averment that he was
arrested on April 9, 1996 for various charges in Carbon County;
(4) Plaintiff struck Paragraphs 55-57 from his complaint, and amended them to include new allegations
regarding litigation initiated by Richard Lubart, Esq., an attorney from Massachusetts, against Riley
and Fanelli; and
(5) Plaintiff renumbered Paragraph 71.1 of his complaint as 71.2. Additionally, he included a new quote
from the dissenting opinion in SCF Consulting, LLC v. Barrack, Rodos & Bacine, 644 Pa, 273, 175
A.3d 273 (2017).
? In his Fourth Amended Complaint, Plaintiff asserts that in 2005, Riley and Fanelli, P.C., changed its name to
Fanelli, Evans and Patel, P.C.
4
another firm, and as a result, Riley and Fanelli ultimately paid the O’Neil Referral fee to another
attorney, who then paid Plaintiff.
In his Fourth Amended Complaint, Plaintiff alleges that he sought to have the Hanyon
Referral transferred to another law firm. Plaintiff avers that he subsequently worked out an
arrangement with Riley and Fanelli, to work around the prohibition of the referral fee, where he
would become an employee of the law firm at a pay rate of $70,000.00 per year for a six month
time period, and would then receive severance pay, in the amount of $25,000.00. Plaintiff
further alleges that, as a part of the compensation plan, he agreed to waive any claim he had
regarding the referral fees,
Plaintiff asserts that he was placed on Riley and Fanelli’s payroll in March of 1996.
According to Plaintiff, he was later arrested on April 6, 1996. Plaintiff further alleges that
Attorney Riley paid Plaintiff's $20,000.00 bail, but subsequently fired him. Plaintiff avers that
he requested that the cost of his bail be subtracted from the severance payment that was owed to
him by Riley and Fanelli. However, Plaintiff alleges that Attorney Riley refused his request, and
instead, Attorney Riley demanded that the $20,000.00 be paid back to him. According to
Plaintiff, he again attempted to have the Hanyon Referral transferred to another law firm, but
was unsuccessful.
Additionally, Plaintiff alleges that he learned that the Hanyon claim against Zippo was
settled on July 2, 1997, for $600,000.00, and that Riley and Fanelli had received a fee of
$150,000.00. According to Plaintiff, he wrote Attorney Riley on August 20, 1998, and
September 17, 1998, demanding payment of the $50,000.00 forwarding fee due to him, which
Plaintiff never received. According to the Plaintiff, he also learned that Union Underwear Co.,
Allison Manufacturing, and Jamesway Corp. had been added as defendants to Hanyon’s action
against Zippo. According to Plaintiff, Hanyon’s claims against Union Underwear Co. and
5
Jamesway Corp. were settled in February and March of 1999, but Plaintiff did not know the
amount of the settlements. Plaintiff further asserts that Hanyon’s claim against Allison
Manufacturing was settled for $300,000.00 in May 1999.
Plaintiff argues that Defendant was unjustly enriched because of the following: (1)
Plaintiff conferred a benefit upon Defendant when he referred the Hanyon Referral to Riley and
Fanelli; (2) Defendant was fully aware of the conferred benefit, which is evidenced by Defendant
filing suit on Hanyon’s behalf in the U.S. District Court for the District of New Jersey against
Zippo Manufacturing, Walt Disney Co, Union Underwear, Allison Manufacturing, and
Jamesway Corp; (3) Defendant received substantial legal fees related to its representation of
Hanyon in the above referenced litigation, but Defendant invoked the doctrine of in pari delecto
and refused to pay Plaintiff the agreed upon referral fees; and (4) Defendant’s refusal to pay
Plaintiff is unjust because Riley and Fanelli received a substantial benefit without compensating
Plaintiff for said benefit, therefore, Defendant has been unjustly enriched. Plaintiff requests that
this Court order Defendant to pay Plaintiff restitution in an amount that is equal to 33 1/3% of
the legal fees Defendant received from the Hanyon and Klemka’ referrals. ,
C. Prior Litigation
In his Fourth Amended Complaint, Plaintiff includes a section entitled
“IMPEDIMENTS TO AN EARLIER PROSECUTION OF THIS CLAIM”, in which he
describes, in detail, the previous lawsuits that he initiated against Defendant in an attempt to
recover the Hanyon Referral fees that are at issue before this Court today, Plaintiff asserts the
following, verbatim, in his complaint:
44 Jthough Plaintiff demands restitution related to the Klemka Referral, he has failed to raise a cause of action or
provide facts in his Fourth Amended Complaint that would demonstrate an unjust enrichment claim related to the
Klemka Referral. Count I of Plaintiff's Fourth Amended Complaint raises an unjust enrichment claim with regard
to an alleged conferred benefit upon Defendant when Plaintiff referred the Hanyon Referral to the law firm,
however, it does not state a claim related to the Klemka Referral.
6
60. Plaintiff filed suit in this Court against Riley and Fanelli alleging breach of
contract in January of 1999, S-21-1999, Plaintiffs 4" amended complaint added
counts for fraud and breach of an employment agreement. Riley and Fanelli raised
the defense of the contract being illegal and the Honorable Cyrus Palmer Dolbin
overruled this preliminary objection. On a motion for summary judgment raising
the defense of in pari delicto, Judge Dolbin granted Defendant’s motion for
summary judgment. On May 16, 2012, the Superior Court affirmed in a
precedential opinion 799 A.2d 827 and Plaintiff's petition for allowance of appeal
was denied on November 13, 2002, 813 A.2d 844 in the Supreme Court of
Pennsylvania.‘
64. During August of 1999, Plaintiff filed suit against Riley and Carroll in the
U.S. District Court for the Middle District of Pennsylvania, No. 4:99-CV-1494,
alleging Civil Rico claims. The District Court dismissed the case on initial
screening, relying primarily on [Rule of Professional Conduct] 5.4. The Third
Circuit affirmed, for similar reasons on August 13, 2002, 44 Fed. Appx. 581,°
although Judge Rendell, who wrote the opinion for the panel, said “the fact that
there was an understanding appears to be beyond dispute.” Id. at 582.
65. On May 25, 2001, Plaintiff filed a complaint with a Civil Rico claim
against, inter alia, Evans and Riley for breach of a contract against Riley and
Fanelli in this Court, No. S-1081-2001. Defendants argued in pari delicto as a
defense.
67(A). On October 20, 2014, the Honorable Jacquelinfe] Russell granted
summary judgment to Defendants in the S-1081-2001, case of Plaintiff v. Evans,
Riley, and Riley and Fanelli, P.C.
67(B). Plaintiff filed a notice of appeal and also filed a concise statement of
errors on appeal on December 4, 2014.
67(C). Riley passed away on December 7, 2014. Since no notice of death was
filed and no personal representative entered an appearance, the Court lost subject
matter jurisdiction at that time.
67(D). The certified record was forwarded to Superior Court on or about January
8, 2015.
68. The Superior Court affirmed this decision in an unreported memorandum
No. 155 MDA 2015, on July 10, 2015,° and the Supreme Court of Pennsylvania
* The citation is Wishnefsky v. Riley & Fanelli, P.C., 2002 PA Super 153, ] 2, 799 A.2d 827, 828 (Pa. Super. Ct.
2002), appeal denied Wishnefsky v, Riley & Fanelli, P.C., 572 Pa, 709, 813 A.2d 844 (2002).
> Wishnefsky v, Carroll, 44 F. App'x 581 (3d Cir.2002).
* Wishnefsky v. Evans, 155 MDA 2015, 2015 WL 6941510, at *3 (Pa. Super. Ct. July 10, 2015).
7
sone Plaintiff's petition for allowance of appeal on December 7, 2015, 128 A.3d
IL. DISCUSSION
In Defendant’s Preliminary Objections to the Fourth Amended Complaint, the Law Firm
raises five preliminary objections. In its first preliminary objection, Defendant asserts that
Plaintiff's action is legally insufficient because it is barred by the doctrine of res judicata, and
Defendant requests that the Fourth Amended Complaint be denied and dismissed with prejudice.
The second preliminary objection asserts that Plaintiff's claim is legally insufficient, and that it
also fails to conform to law or rule of court, because Plaintiff failed to join the instant unjust
enrichment claim as a cause of action in his previous litigation against Defendant. Defendant
requests that the Fourth Amended Complaint be denied and dismissed with prejudice. In its third
preliminary objection, Defendant asserts that Plaintiff's claim for unjust enrichment is legally
insufficient because Plaintiff has alleged that there was an express oral contract between the
parties, therefore, the doctrine of unjust enrichment is inapplicable. Defendant again requests
that the Fourth Amended Complaint be denied and dismissed with prejudice. In its fourth
preliminary objection, Defendant argues that Plaintiff's unjust enrichment claim is legally
insufficient because it is barred by the statute of limitations. Defendant argues that the Hanyon
Referral, and the facts and circumstances giving rise to Plaintiff's alleged claim, occurred
between 1995 and 1997, therefore, the claim is barred because the statute of limitations for an
unjust enrichment claim is four years. Defendant’s fifth preliminary objection requests that
Paragraphs 3-5, 8-12, 14-15, 22, 27, 29-30, 32-37, 41-49, 52-58 and 63 of the Fourth Amended
Complaint be stricken for including scandalous and impertinent matters.
” Wishnefsky v. Evans, 633 Pa. 789, 128 A.3d 221 (2015).
A. Plaintiff’s Unjust Enrichment Claim is Barred by the Doctrine of Res Judicata
In his Fourth Amended Complaint, Plaintiff raises a claim for unjust enrichment and
demands restitution based upon allegations that the Defendant was paid $150,000.00 in relation
to the settlement of the Hanyon Referral. Plaintiff further asserts that he demanded $50,000.00
as a referral fee for the Hanyon Referral in 1998. Additionally, he contends that Defendant also
received legal fees in the Hanyon Matter for settlement claims between three additional parties;
however, Plaintiff did not know the exact amount of the alleged legal fees received by
Defendant. According to Plaintiff, Defendant was unjustly enriched because Defendant did not
pay Plaintiff the agreed upon referral fee, which equates to 33 1/3% of the legal fees that it
received from the Hanyon Referral.
In his Fourth Amended Complaint, Plaintiff also asserts that he has already attempted to
collect the Hanyon Referral fees in previous litigations before this Court and the U.S. District
Court for the Middle District of Pennsylvania. However, Plaintiff has been unsuccessful. In
Defendant’s preliminary objections, the Law Firm argues that Plaintiff's unjust enrichment claim
is legally insufficient, and is barred by the doctrine of res judicata, because it is essentially a
breach of contract claim, not an unjust enrichment claim. Additionally, Plaintiff argues that the
unjust enrichment claim would also be barred by the doctrine of res judicata because Plaintiff
had an obligation to raise this cause of action in his previous lawsuits against Defendant.
The doctrine of res judicata was judicially created to reflect the courts’ refusal to “tolerate
a multiplicity of litigation.” Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super. 225, 236,
464 A.2d 1313, 1318 (1983). The doctrine “provides that where a final judgment on the merits
exists, a future lawsuit on the same cause of action is precluded.” JS. v. Bethlehem Area Sch.
Dist., 794 A.2d 936, 939 (Pa.Cmwlth. 2002). Additionally, res judicata bars a party from raising
issues in subsequent litigation that could have been litigated in the first suit, but were not. Day v.
Volkswagenwerk Aktiengesellschaft, 318 Pa. Super at 232, 464 A.2d at 1316, 318.
Res Judicata will bar an action where the party asserting the defense can demonstrate the
following four concurrent conditions:
(1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of
persons and parties to the action; and (4) identity of the quality or capacity of the parties
suing or sued. Stevenson v. Silverman, 417 Pa. 187, 208 A.2d 786, cert. denied, 382 U.S.
833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1965)). The essential inquiry is whether the ultimate
and controlling issues have been decided in a prior proceeding in which the present
parties had an opportunity to appear and assert their rights. Hochman vy. Mortgage
Finance Corp., 289 Pa. 260, 137 A. 252 (1927).
Callery v. Mun. Auth. of Blythe Twp., 432 Pa. 307, 311-12, 243 A.2d 385, 387 (1968).
“The doctrine of res judicata applies to and is binding, not only on actual parties to the
litigation, but also to those who are in privity with them. A final valid judgment upon the
merits by a court of competent jurisdiction bars any future suit between the same parties
or their privies on the same cause of action.” Stevenson v. Silverman, supra, 417 Pa. at
190, 208 A.2d at 788 (citations omitted) (emphasis in original).
Day v. Volkswagenwerk Aktiengeselischaft, 318 Pa. Super at 233, 464 A.2d at 1317.
“TU]nless the circumstances necessary to sustain a plea of res judicata appear on the face
of the complaint, the defense must be raised in an answer and not by preliminary
objections.” Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 310, 243 A.2d
385, 386 (1968). Where the complaint makes reference to the prior action on which the
defense of res judicata may rest, the defense may be raised by preliminary objection-but
not otherwise. Callery v. Blythe Township Municipal Authority, supra.
WW
Logan v. Patton, 70 Pa.Cmwith. 359, 400, 453 A.2d 369, 370 (1982).
This Court finds that, because Plaintiff has thoroughly documented his prior lawsuits in
the Fourth Amended Complaint, Defendant has properly raised the defense of res judicata in its
preliminary objections. Looking to the state court actions, which are referenced in the complaint
as S-21-1999 and S-1081-2001°, Plaintiff recites the same factual allegations in both of those
actions, almost verbatim, as he does in the instant complaint. In the Fourth Amended Complaint,
Plaintiff asserts that he is suing Defendant because he is owed referral fees from the Hanyon
Referral. Likewise, Plaintiff has already brought prior actions before this Court regarding the
unpaid Hanyon Referral fees. In the 8-21-1999 matter, the Plaintiff raised a breach of contract
claim against Riley and Fanelli, P.C. for the law firm’s alleged failure to pay him the agreed
upon $50,000.00 referral fee once Hanyon settled his claim against Zippo. In the S-1081-2001
matter, the Plaintiff alleged a breach of contract claim for his portion of the unknown legal fees
that the Defendant received in settling the Hanyon Referral matter with Union Underwear and
Jamesway Corp. Therefore, because Plaintiff thoroughly documented his previous actions
against Defendant in the instant complaint, this Court is satisfied that the circumstances
necessary to sustain a plea of res judicata appear on the face of Plaintiff’s Fourth Amended
Complaint.
*This case was initiated in the Schuylkill County Court of Common Pleas and docketed at Wishnefsky v. Riley and
Fanelli, P.C.,$-21-1999, The trial court Order dated August 07, 2001, granted the defendant’s motion for summary
judgment, entered judgment against Wishnefsky and in favor of the defendant, and dismissed Wishnefsky’s cross-
motion for summary judgment. Wishenfsky appealed the matter to the Pennsylvania Superior Court; however, the
trial court’s decision was affirmed. See Wishnefsky v. Riley & Fanelli, P.C., 2002 PA Super 153, 4 2, 799 A.2d 827,
$28 (Pa. Super. Ct, 2002), appeal denied Wishnefsky v. Riley & Fanelli, P.C., 572 Pa, 709, 813 A.2d 844 (2002).
"This case was initiated in the Schuylkill County Court of Common Pleas and docketed at Wishnefsky v. Evans, S-
1081-2001. Wishnefsky filed a complaint alleging breach of contract and civil violations of the RICO Act against
defendants. The trial court’s October 20, 2014 Order granted summary judgment in favor of defendants, explaining
that Wishnefsky was attempting to litigate claims based on the same and/or slightly modified facts that were the
subject of prior actions. Wishnefsky appealed to the Pennsylvania Superior Court; however, the trial court’s
decision was affirmed. See Wishnefsky v. Evans, 155 MDA 2015, 2015 WL 6941510, at *3 (Pa. Super. Ct. July 10,
2015).
11
Because the defense of res judicata can properly be raised by preliminary objections in
this matter, we will now focus on whether the Plaintiffs action is barred by said doctrine. For
the doctrine of res judicata to apply, Defendant must demonstrate the following four concurrent
conditions: (1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of
persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or
sued.
This Court finds that the Defendant has demonstrated that the first and second concurrent
conditions of a res judicata defense are met. In its preliminary objections, Defendant argues that
the “identity of the thing being sued upon” in the instant action and Plaintiff's previous actions is
the nonpayment of the Hanyon Referral fees. The Defendant also argues that the “identity of the
cause of action” in the instant matter and Plaintiff's previous actions is a breach of contract
claim, According to Defendant, the cause of action in the instant matter is essentially a breach of
contract claim, and not an unjust enrichment claim, because Plaintiff alleges in the Fourth
Amended Complaint that there was a valid oral argument between the parties with regard to the
Hanyon Referral fee, and that Defendant’s refusal to pay the referral fee was contrary to the
alleged agreement. Defendant argues that it is clear that Plaintiff's claim arises solely from an
alleged contract; therefore, the doctrine of unjust enrichment is inapplicable to the instant matter.
In the alternative, Defendant argues that if an unjust enrichment claim is applicable, the claim
will still be barred by the doctrine of res judicata because Plaintiff had an obligation to assert this
claim in his previous actions against Defendant.
In the instant matter, Plaintiff has raised a claim of unjust enrichment and demands
restitution alleging that Defendant has failed to pay him 33 1/3% of the legal fees that the Law
Firm collected in relation to the Hanyon Referral. Plaintiffs earlier actions against Defendant
differ slightly in that they raise claims for breach of contract. In the previous litigation, as well
IZ
as in the instant matter, Plaintiff has asserted that the parties had an oral agreement under which
he would receive a share of the legal fees for the Hanyon Referral.
“An unjust enrichment claim is not based upon the existence of contract, but instead is an
alternative to a contract claim.” Vacula v. Chapman, 230 A.3d 431, 437, 2020 PA Super 50(2020).
A claim for unjust enrichment arises from a quasi-contract. A quasi-contract imposes a
duty, not as a resuit of any agreement, whether express or implied, but in spite of the
absence of an agreement, when one party receives unjust enrichment at the expense of
another,
The elements of unjust enrichment are benefits conferred on defendant by plaintiff,
appreciation of such benefits by defendant, and acceptance and retention of such benefits
under such circumstances that it would be inequitable for defendant to retain the benefit
without payment of value. Whether the doctrine applies depends on the unique factual
circumstances of each case. In determining if the doctrine applies, we focus not on the
intention of the parties, but rather on whether the defendant has been unjustly enriched.
Stoeckinger v. Presidential Fin. Corp. of Delaware Valley, 948 A.2d 828, 833 (Pa.Super.
2008) (cleaned up, emphasis added).
Vacula v. Chapman, 230 A.3d at 437.
It is clear that the “identity of the thing sued upon”, which is the nonpayment of the
Hanyon Referral fees is the same in both the instant matter and in Plaintiff's previous litigation
against Defendant. Therefore, we find that Defendant has demonstrated that the first concurrent
condition of a res judicata defense is met.
As to the second concurrent condition, this court believes that Defendant also has
demonstrated that the “identity of the cause of action” in the instant litigation and in Plaintiff's
previous actions are the same. Although Plaintiff attempts to frame the cause of action in the
instant matter as a claim for unjust enrichment, it is obvious that he is attempting to re-litigate his
breach of contract claims. In his Fourth Amended Complaint, Plaintiff again asserts that he and
a
Defendant originally had an oral agreement that Plaintiff would be paid a referral fee, in the
amount of 33 1/3% of the legal fees that Defendant received from the Hanyon Referral matter.
Plaintiff further asserts that after he was informed that the referral fee was improper, he entered
into an employment agreement with Defendant, which waived his rights to the referral fees, in an
attempt to avoid the prohibited fee sharing arrangement between the parties. In the instant
matter, Plaintiff is now raising a claim of unjust enrichment because he never received the
Hanyon Referral fee, and is demanding restitution, in the amount of 33 1/3% of the legal fees
that Defendant received from the Hanyon settlements. As already explained above, in Plaintiffs
previous litigation he asserted breach of contract claims related to the nonpayment of the Hanyon
Referral fees. This Court agrees with Defendant that the instant matter appears to be a breach of
contract claim, not an unjust enrichment claim. Therefore, we find that the second concurrent
condition of a res judicata defense is met.
However, it is noted that, Plaintiff's unjust enrichment!® claim is also barred because the
Pennsylvania Superior Court has held that breach of contract claims and unjust enrichment
claims must be pled alternatively. Plaintiff's unjust enrichment claim and breach of contracts
claims are alternate theories of recovery, meaning they are different means to recover the same
damages or relief for a single harm arising from the same facts and circumstances; therefore,
Plaintiff 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
'° 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. 2009 Pa.Super. 5, { 16, 967 A.2d 963, 970 (2009) citing Birchwood Lakes
Community Ass'n, Inc. v. Comis, 296 Pa,Super.77, 442 A.2d 304, 308-309 (1982). “Ifa 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, Ine. v. Comis, 296 Pa, Super.77, 86, 442 A.2d 304, 308(1982).
14
litigated in the first suit, but were not. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super
at 232, 464 A.2d at 1316, 318.
We find that the third and fourth concurrent conditions of a res judicata defense are also
met because Defendant has demonstrated that the “identity of persons and parties to the action”
and “the identity of the quality or capacity of the parties suing or sued” is the same. The original
actions included breach of contract claims against Riley and Fanelli, P.C by the Plaintiff
Wishnefsky. In the instant matter, Plaintiff is suing Fanelli, Evans and Patel, P.C., f/k/a Riley
and Fanelli, P.C. Further, in his Fourth Amended Complaint, Plaintiff acknowledged that in
2005, Riley and Fanelli, P.C., changed its name to Fanelli, Evans and Patel, P.C. Thus, it is clear
that the Defendant in the instant matter is the same law firm that Plaintiff sued in his previous
actions. Therefore, this Court finds that the “identity of persons and parties to the action” are the
same. It is also clear that, in the instant matter, Defendant is being sued in the same capacity as
it was by Plaintiff in his previous lawsuits. Therefore, we find that “the identity of the quality or
capacity of the parties suing or sued” in the instant matter and Plaintiff's previous lawsuits is the
same; thus, the fourth concurrent condition is met.
It is further noted that Plaintiff has alleged that both of his prior actions were finally
resolved on their merits. In $-21-1999, the Honorable Cyrus Palmer Dolbin granted the
Defendant’s motion for summary judgment. Upon the Plaintiff's appeal, the Superior Court
affirmed the trial court order in a precedential opinion at Wishnefsky v. Riley & Fanelli, P.C.,
2002 PA Super 153, 799 A.2d 827 (2002). The Plaintiff appealed to the Pennsylvania Supreme
Court, which denied the appeal at Wishnefsky v. Riley & Fanelli, P.C., 372 Pa. 709, 813 A.2d
844(2002). In the S-1081-2001 case, the Honorable Jacqueline Russell granted summary
judgment to Defendants by Order dated October 20, 2014. The Pennsylvania Superior Court
affirmed in an unpublished opinion at Wishnefsky v. Evans, 155 MDA 2015, 2015 WL 6941510,
1d
at *3 (Pa. Super. Ct. July 10, 2015), and the Pennsylvania Supreme Court denied allowance of
appeal in Wishnefsky v. Evans, 633 Pa. 789, 128 A.3d 221 (2015). The doctrine of res judicata
“provides that where a final judgment on the merits exists, a future lawsuit on the same cause of
action is precluded.” JS. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa.Cmwilth. 2002).
Additionally, res judicata bars a party from raising issues in subsequent litigation that could have
been litigated in the first suit, but were not. It could not be more clear that the Plaintiff has
already had the opportunity to litigate the claims set forth herein, and that his instant unjust
enrichment claim is barred by the doctrine of res judicata. The Plaintiff had a full and fair
opportunity to litigate his claims, and they were finally resolved through the Pennsylvania
appellate courts.
As this Court has determined that the doctrine of res judicata is applicable to the instant
matter, Plaintiff's Fourth Amended Complaint must be dismissed with prejudice. Given this
disposition, we need not address Defendant’s remaining preliminary objections. Therefore,
Defendant’s Preliminary Objections 2-5 are deemed moot.
Accordingly, we enter the following Order:
16