J. A17031/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BOOMERANG RECOVERIES, LLC,                :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                        Appellant         :
                                          :
                   v.                     :
                                          :
GUY CARPENTER & COMPANY, LLC              :          No. 2557 EDA 2018
AND MARSH & McLENNAN                      :
COMPANIES, INC.                           :


            Appeal from the Judgment Entered August 16, 2018,
            in the Court of Common Pleas of Philadelphia County
            Civil Division at No. December Term, 2014, No. 1381


BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 25, 2019

      Boomerang Recoveries, LLC appeals from the August 16, 2018

judgment entered in the Court of Common Pleas of Philadelphia County in

favor of Guy Carpenter & Company, LLC (“GC”),1 after the trial court denied

appellant’s motion to remove the nonsuit. We affirm.

      The trial court set forth the factual history as follows:

            GC has served as [Farmers Insurance Company of
            Flemington’s (“Farmers”)] reinsurance broker for a
            number of years, working on behalf of Farmers to
            procure catastrophic loss reinsurance policies. In


1We note that Marsh & McLennan Companies, Inc. (“Marsh & McLennan”) are
not a party to this appeal. The record reveals that in an order entered October
4, 2016, the trial court bifurcated appellant’s claim of piercing the corporate
veil (alter ego) against Marsh & McLennan from appellant’s claims against GC.
(See trial court order, 10/3/16.)
J. A17031/19


          exchange, Farmers pays GC a brokerage fee equal to
          10% of its reinsurance premium payments.

          In early June 2013, Farmers hired [appellant] to
          conduct a review of its reinsurance premium
          payments for the years 2003 to 2013 in an effort to
          discover whether it had overpaid on its reinsurance
          premiums. Specifically, [appellant] was to provide
          “reinsurance       review,    recast,   and     recovery
          submissions to recover additional dollars for Farmers
          . . . .” For its efforts, [appellant] would receive 35%
          of any amount “actually collected” by Farmers
          “through the recovery submission process.”

          [Appellant] conducted its review and submitted its
          findings through two reports delivered to Farmers on
          January 6, 2014 and January 15, 2014, respectively.
          A corrected report for the years 2003 to 2007 was
          sent January 23, 2014.      The reports collectively
          explained that Farmers had overpaid its reinsurance
          providers a sum of $2,246,014.65 during the relevant
          time period.

          Upon receiving these reports, Farmers’ controller,
          Michele Lukens (“Lukens”), forwarded them to
          David Thomas      (“Thomas”)    and   Eric   Yeager
          (“Yeager”), the Managing Director and Senior Vice
          President of GC, respectively. Lukens asked Thomas
          and Yeager to review [appellant’s] findings and
          contact [appellant] should they have any questions.
          Notably, they were not asked to submit [appellant’s]
          findings to Farmers’ reinsurance providers for
          recovery.

          On January 24, 2014, Thomas and Yeager met with
          Lukens and Farmers’ CEO, Scott St. Angel
          (“St. Angel”), to conduct a “post renewal debrief.”
          Also on the agenda was a review of [appellant’s]
          reports. [Appellant] was not present at the meeting,
          though it is worth noting that [appellant] was advised
          of the meeting in a January 22, 2014 email from
          Yeager.




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          In discussing [appellant’s] reports, Thomas and
          Yeager pointed out two areas where [appellant]
          discovered errors in how GC had been calculating
          Farmers’ reinsurance premiums – and admitted it
          should correct for those errors. GC did not, however,
          agree with how [appellant] calculated Farmers’
          Burglary, Robbery, and Theft (“BRT”) deduction, and
          that disagreement has been the linchpin in the parties’
          instant dispute.

          GC explained [appellant’s] method for calculating
          Farmers’ BRT deduction (“the Boomerang method”)
          was different from the method GC – and thus, Farmers
          and its reinsurers – had been following in the previous
          years (“the GC method”). GC explained how it and
          [appellant] each calculated the BRT deduction by
          showing those calculations in a side-by-side chart
          using Farmers’ 2013 reinsurance payments as an
          example. That chart revealed the Boomerang method
          would result in a higher possible recovery for Farmers
          than the GC method – that is, if the reinsurers
          ultimately agreed with [appellant’s] calculations.

          During their explanation of the two methods, neither
          Thomas nor Yeager commented on which method
          Farmers should use.       They simply presented a
          side-by-side comparison of the two methods and
          allowed Farmers to decide which method to follow. At
          no point in time did they describe [appellant’s]
          method as incorrect, unethical, or improper.

          St. Angel testified he was not “led to believe anything”
          and that he formed his own opinion and made his own
          decision to disregard the Boomerang method.
          Similarly, Lukens swore in her deposition that GC
          simply explained [appellant’s] interpretation of BRT
          and did not disparage [appellant’s] calculation in any
          way.

          Farmers ultimately decided [to] follow the GC method
          for calculating BRT. St. Angel’s rationale was simple
          – “if it ain’t broke, don’t fix it.” Lukens shared
          St. Angel’s rationale, as she was concerned that
          Farmers’ reinsurers would look to conduct an audit on


                                   -3-
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            all of Farmers’ reinsurance premiums if Farmers
            began using a different BRT calculation method, such
            as the one [appellant] proposed. Notably, Lukens’
            concern about an audit existed prior to the
            January 24, 2014 meeting with GC, as the risk of an
            audit was a question she raised to GC without
            prompting.

            After deciding to use the GC method to calculate BRT,
            Farmers requested that GC conduct its own review of
            Farmers’ reinsurance premium payments from 2003
            to 2013 using the GC method. That review took place
            between January and June 2014.

            In May 2014, Farmers informed [appellant] it was not
            following [appellant’s] calculations and explained the
            reasoning behind its decision. [Appellant] attempted
            to persuade Farmers the GC method was incorrect in
            a detailed email, but Farmers did not alter its decision.

            The relationship between Farmers and [appellant]
            ended unceremoniously in the summer of 2014. In
            July 2014, following a request for payment from
            [appellant], St. Angel sent an email to [appellant]
            further reiterating Farmers’ position regarding
            [appellant’s] calculations. In that email, St. Angel
            explained his belief that [appellant’s] calculations
            were “one-sided[,”] taking into account only those
            factors that benefitted Farmers, rather than “taking
            into account all factors.” He further explained that
            Farmers “values its reputation for maintaining the
            highest ethical standards and Farmers has no
            intention of pursuing any questionable recoveries or
            sums not owed.”

            [Appellant] contends these beliefs expressed by
            St. Angel in July 2014 were improperly influenced by
            actions taken and statements made by GC during the
            January 24, 2014 meeting. This suit followed.

Trial court opinion, 8/2/18 at 2-6 (citations to the record and original brackets

omitted).



                                      -4-
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      The record reveals that appellant initiated an action against GC and

Marsh & McLennan on December 9, 2014. Appellant amended its complaint

numerous times during the course of litigation.      In its seventh amended

complaint (“complaint”), appellant claimed, inter alia, tortious interference

by GC with the contractual relationship appellant had with Farmers. In the

complaint, appellant averred, inter alia, that as a result of GC’s alleged

tortious interference, appellant was denied fees owed by Farmers based upon

two reinsurance review findings reports submitted to Farmers in January 2014

and a supplemental findings report submitted to Farmers in June 2015. (See

appellant’s seventh amended complaint, 5/9/2016 at 38-44.)

      The trial court granted GC’s motion for partial summary judgment and

dismissed the portion of appellant’s tortious interference claim based upon the

June 2015 supplemental findings report.        The trial court also granted

GC’s motion in limine to exclude evidence relating to non-party Co-Operative

Insurance Company of Vermont (“Co-Operative Insurance”).

      During the jury trial, the trial court granted GC’s motion for compulsory

nonsuit made pursuant to Pa.R.Civ.P. 230.1 and entered the nonsuit in favor

of GC on June 13, 2018. Appellant filed a timely motion to remove the nonsuit

pursuant to Rule 227.1(a)(3), which the trial court denied. On August 16,

2018, upon appellant’s filing of a praecipe, judgment in favor of GC was

entered.




                                     -5-
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      Appellant filed a timely notice of appeal. The trial court did not order

appellant to file a concise statement of errors complained of on appeal.

However, the trial court filed a Rule 1925(a) opinion relying on its August 2,

2018 order and opinion denying appellant’s motion to remove the nonsuit.

      Appellant raises the following issues for our review:

            [1.]   Did the [trial] court err by granting [GC’s]
                   motion in limine when the proposed evidence
                   was probative and not prejudicial?[2]

            [2.]   Did the [trial] court err when it entered a
                   nonsuit in favor of [GC] after the [trial] court
                   ignored      evidence,     accepted       [GC’s]
                   interpretation of the evidence, and otherwise
                   acted as a factfinder?

            [3.]   Did the [trial] court err by entering partial
                   summary judgment in favor of [GC] after the
                   [trial] court ignored the relevant law?

Appellant’s brief at 4.3

      This court has defined the elements of tortious interference with a

contractual relationship as follows:

            (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 privilege or
            justification on the part of the defendant; and (4) the

2 We note that although the trial court granted several of GC’s motions
in limine, a review of appellant’s brief demonstrates appellant only
challenges the motion in limine to exclude evidence relating to Co-Operative
Insurance.

3 For ease of disposition, we have re-ordered and re-numbered appellant’s
issues.


                                       -6-
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           occasioning of actual       damage     as   a   result   of
           defendant’s conduct.

Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923,

933 (Pa.Super. 2013) (original brackets omitted), citing Restatement

(Second) of Torts § 766 (1979). This court in Empire Trucking explained:

           “The second element requires proof that the
           defendant acted ‘for the specific purpose of causing
           harm to the plaintiff.’” Phillips v. Selig, 959 A.2d
           420, 429 (Pa.Super.2008) []. The second element of
           this cause of action is closely intertwined with the third
           element, which requires a showing that [a]ppellant’s
           actions were not privileged. See Restatement
           (Second) of Torts § 766. Thus, in order to succeed in
           a cause of action for tortious interference with a
           contract, a plaintiff must prove not only that a
           defendant acted intentionally to harm the plaintiff, but
           also that those actions were improper. . . .

           Courts require a showing of both harm and improper
           conduct because we have recognized that some
           intentionally harmful conduct is done “at least in part
           for the purpose of protecting some legitimate interest
           which conflicts with that of the plaintiff.” Phillips,
           959 A.2d at 430

Empire Trucking, 71 A.3d at 933-934.

     Appellant first claims the trial court erred in granting the motion

in limine to exclude evidence of an email from GC to Co-Operative Insurance.

           When reviewing rulings on motion in limine, we apply
           the scope of review appropriate to the particular
           evidentiary matter. . . . In reviewing a challenge to
           the admissibility of evidence, we will only reverse a
           ruling by the trial court upon a showing that it abused
           its discretion or committed an error of law.




                                     -7-
J. A17031/19

Rachlin v Edmison, 813 A.2d 862, 869 (Pa.Super. 2002) (en banc)

(citations omitted).

            An abuse of discretion is not merely an error of
            judgment, but if in reaching a conclusion the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will, as shown by the evidence or
            the record, discretion is abused.

Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa.Super.

1995), citing Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934).

      Pennsylvania Rule of Evidence 401 states, “[e]vidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be

without the evidence; and (b) the fact is of consequence in determining the

action.” Pa.R.Evid. 401.

      Here, appellant argues “[t]his evidence is relevant[] because it

demonstrates that [the Boomerang method] . . .             is accurate . . . .”

(Appellant’s brief at 57.)    However, whether the Boomerang method is

accurate or is the better calculation method is not a fact of consequence in a

tortious interference action.    As the trial court, in excluding the email

evidence,4 explained, “[t]he superiority of either method, however, is frankly

irrelevant to the determination of this court. Farmers’ decision to discontinue

its relationship with [appellant] and to follow the GC method was not


4 We note that the email stated, in part, “[GC has] reviewed the results of
[appellant’s] analysis and generally speaking their approach to calculating
subject premium is correct – from a contractual perspective . . . .” (See
appellant’s reproduced record, Vol. 2 at RR2238-2240.)


                                     -8-
J. A17031/19

motivated by a belief the [GC] method was superior . . . .”             (Trial court

opinion, 8/2/18 at 7.)

      We find no abuse of discretion or error of law in the trial court’s

conclusion to exclude the email evidence. Appellant has failed to meet its

burden, and therefore, appellant’s claim that the trial court erred in granting

the motion in limine fails.

      Appellant next claims the trial court erred in denying the motion to

remove the nonsuit. When presented with a challenge to the order denying a

motion to remove a nonsuit, this court will only reverse that order if there has

been an abuse of discretion or an error of law. See Rachlin, 813 A.2d at 868.

            A motion for compulsory non-suit allows a defendant
            to test the sufficiency of a plaintiff’s evidence and may
            be entered only in cases where it is clear that the
            plaintiff has not established a cause of action; in
            making this determination, the plaintiff must be given
            the benefit of all reasonable inferences arising from
            the evidence. When so viewed, a non-suit is properly
            entered if the plaintiff has not introduced sufficient
            evidence to establish the necessary elements to
            maintain a cause of action; it is the duty of the trial
            court to make this determination prior to the
            submission of the case to the jury. When this Court
            reviews the grant of a non-suit, we must resolve all
            conflicts in the evidence in favor of the party against
            whom the non-suit was entered.

            A compulsory non-suit is proper only where the facts
            and circumstances compel the conclusion that the
            defendants are not liable upon the cause of action
            pleaded by the plaintiff.

Id. (emphasis, original brackets, and citations omitted).




                                      -9-
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      Here, the trial court concluded that appellant failed to establish the

second and third prongs of its tortious interference claim.5    The trial court

explained, “[a]t the close of [appellant’s] case, [the trial] court found

[appellant] had not provided the jury with one witness, email, or document

‘that remotely, inferentially, or circumstantially showed that [GC] had a

specific intent to harm [appellant].’”    (Trial court opinion, 8/2/18 at 1.)

Furthermore, the trial court, in concluding GC’s actions with Farmers were

proper and privileged, stated:

             [Appellant] has not identified one lie or misleading
             statement made by GC to Farmers. GC conducted this
             review at the behest of Famers [sic] and the
             undisputed evidence showed GC conducted that
             review fully and honestly. An objective explanation of
             both methods was provided, which allowed Farmers
             to make an informed decision. There was simply no
             bad act presented that suggested GC acted outside
             “the rules of the game.”

Id. at 15.

      Appellant baldly asserts that “telling Farmers to conceal what [GC] was

doing from [appellant]; lying to Farmers about [appellant’s] work product;

instructing Farmers to ignore [appellant’s] methodology; and performing a

phony audit in order to make [appellant] look bad” was direct evidence of

GC’s intent to harm appellant’s contractual relationship with Farmers.

(Appellant’s brief at 32.) Appellant further alleged that GC’s conduct, which


5The record reveals that appellant has established the first prong by evidence
of its contract with Farmers. (See appellant’s reproduced record, Vol. 1 at
RR0153.)


                                     - 10 -
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allegedly included among other things, failing to advise Farmers that the

Boomerang method was acceptable, was deceptive and self-dealing and,

therefore, not privileged and justified. (Id. at 38-44.) A review of the record,

however, does not support appellant’s argument.

      The record reveals that the president and CEO of Farmers, St. Angel,

when asked why Farmers chose to continue using the GC method versus the

Boomerang method for calculating Farmers’ BRT deduction, stated, “[t]he

rationale behind my decision was more to the effect of if it ain’t broke, don’t

fix it. If we’re not doing it incorrectly, there’s no point in changing.” (Notes

of testimony, 6/5/18, morning session at 126.) Farmers had its own opinion

on which method to use and made its own decision. (Id. at 124.) St. Angel

further explained that part of the decision was based upon Farmers’ own

review in which it determined that appellant’s report only identified areas in

which Farmers had over-paid premiums but failed to identify areas where

Farmers may have under-paid premiums and would owe additional money.

(Id. at 129.) GC explained to Farmers that both the Boomerang calculation

method and the GC calculation method were correct and ultimately it was

Farmers’ decision on how they wanted to proceed. (Id. at 37, 85-87.)

      When giving appellant the benefit of all reasonable inferences arising

from the evidence, the evidence supports the trial court’s conclusion that

appellant failed to present sufficient evidence to establish a tortious

interference cause of action; specifically, appellant failed to demonstrate that



                                     - 11 -
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GC acted improperly and with the intent to harm appellant’s contractual

relationship with Farmers. We discern no error of law or abuse of discretion

in the trial court’s denying of appellant’s motion to remove the nonsuit.

Consequently, appellant’s claim lacks merit.

      In its final issue, appellant claims the trial court erred in granting GC’s

motion for partial summary judgment, thereby dismissing appellant’s cause of

action for alleged tortious interference based upon appellant’s June 2015

supplemental findings report submitted to Farmers. We need not address this

issue in light of appellant’s failure to present sufficient evidence to establish a

cause of action for tortious interference. Therefore, appellant’s claim the trial

court erred in granting the motion for partial summary judgment is moot.6

      Judgment affirmed.




6 We note that even if appellant was able to present evidence to establish a
claim for tortious interference based upon its January 2014 reinsurance review
findings reports, the trial court did not err or commit an abuse of discretion in
granting the motion for partial summary judgment. A review of the record
demonstrates that Farmers terminated its contract with appellant in July 2014,
and therefore, the supplemental findings report appellant produced in June
2015 cannot be the basis of a claim for damages in a tortious interference
cause of action since no contractual relationship between appellant and
Farmers existed at the time the report was produced. See Empire Trucking,
71 A.3d at 933 (explaining that the first element of a tortious interference
claim is the existence of a contractual relationship between the complainant
and a third party).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/25/19




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