J-A16023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BOCHETTO & LENTZ, P.C.                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

A. HAROLD DATZ, ESQUIRE, AND A.
HAROLD DATZ, P.C.

                         Appellee                  No. 3165 EDA 2014


                  Appeal from the Order October 16, 2014
           In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): 03044 September Term, 2010


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

DISSENTING MEMORANDUM BY OLSON, J.:            FILED FEBRUARY 05, 2016

      The Learned Majority concurs in the trial court’s assessment that the

claims asserted by Appellant, Bochetto & Lentz, P.C., merit no relief

because: (1) there was no established attorney-client relationship between

Appellant and Jillene Pasternak (“Pasternak”); (2) Appellant received

compensation and was made whole as a result of damages recovered based

upon Scott Sigman’s (“Sigman”) improper referral of Pasternak’s case to A.

Harold Datz (“Datz”); and, (3) Appellant’s damage claim is impermissibly

speculative.   After careful review of the certified record and the parties’

submissions, I, too, understand and appreciate the conclusions reached by

the trial court. I believe that Appellant’s claims may be driven more by the

desire to settle scores than to recover losses. Nevertheless, as the Majority

acknowledges, summary judgment may be entered only where there is no


* Retired Senior Judge assigned to the Superior Court.
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genuine issue of material fact and it is clear that the moving party is entitled

to judgment as a matter of law.         Majority Memorandum at 6, quoting

Petrina v. AlliedGlove Corp., 46 A.3d 795, 797-798 (Pa. Super. 2012).

With that standard in mind, I am unable to agree that the substantive law

that applies in this case supports summary dismissal in favor of Datz. For

this reason, I respectfully dissent.

      I begin my discussion with the Majority’s first conclusion that our

Supreme Court’s decision in Richette v. Solomon, 187 A.2d 910 (Pa. 1963)

does not apply because there was no attorney-client relationship between

Appellant and Pasternak. In Richette, a railroad worker fractured his ankle

while at work. When efforts to resolve his claim proved unsuccessful, the

worker retained Richette as counsel on a contingent fee basis. After learning

that the worker retained Richette, representatives of the railroad company

and its union coerced the worker to rescind his contingent fee agreement

with Richette.   Subsequently, the representatives of the company and the

union convinced the worker to settle his claims for $8,500.00. Thereafter,

Richette filed suit against the representatives of the company and union,

alleging that they tortiously interfered with his contractual relationship with

the worker.

      At trial, Richette testified that he was entitled to a fee of $10,000.00

based on the contention that he could have recovered $30,000.00 on behalf

of the worker.    The jury awarded Richette $10,000.00 in compensatory


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damages and $15,000.00 in punitive damages.         On appeal, our Supreme

Court upheld the jury’s compensatory award but reduced its punitive

damage award to $5,000.00.1 The Court rejected the defendants’ argument

that the jury’s compensatory award was excessive in view of Richette’s

testimony as to the value of the case and the severity of the worker’s injury.

        Based upon my reading of Richette, I would conclude that where an

attorney asserts a claim that the defendant tortiously interfered with a

contractual relationship with a client, the attorney may seek damages in the

form of fees that could have been obtained based upon a higher case

valuation than an allegedly inadequate settlement.2 As in Richette, such a

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1
    Only a single Justice dissented in Richette.
2
  This Court previously held that where a group of attorneys broke away
from a personal injury law firm and the trial court determined that they
tortiously interfered with the law firm’s clients, the firm was permitted to
seek damages equal to its anticipated revenue. Applying Richette in that
case, we explained:

        We hold that, pursuant to established tort principles and to
        Richette, [the personal injury law firm] must be awarded a
        money judgment reasonably equivalent to the anticipated
        revenue protected from outside interference that [it] would have
        received pursuant to the contracts had the cases remained [at
        the] firm. To so value the cases is not mere speculation; see
        Richette. For cases originally referred to the [law] firm by one
        of the breakaway attorneys, the money judgment should be half
        of what [the firm’s] reasonable expectation would be; this
        comports with the employment agreements granting the
        breakaway attorneys half of these fees as a referral fee.

Joseph D. Shein, P.C. v. Myers, 576 A.2d 549, 558 (Pa. Super. 1990).



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claim may be supported by testimony regarding the attorney’s valuation of

the case which may, in turn, rely on evidence of the severity of the client’s

injuries. The trial court’s effort to distinguish Richette, on grounds that no

attorney-client   relationship   ran   between   Appellant   and   Pasternak,   is

unavailing.

      Under Pennsylvania law, tortious interference claims extend to

prospective contractual relations.     Thompson Coal Co. v. Pike Coal Co.,

412 A.2d 466, 471 (Pa. 1979) (tort of interference with prospective business

relations is established where the plaintiff shows:          (1) a prospective

contractual relation; (2) the purpose or intent to harm the plaintiff by

preventing the relation from occurring; (3) the absence of privilege or

justification on the part of the defendant; and, (4) actual damages resulting

from the defendant's conduct); Glenn v. Point Park College, 272 A.2d

895, 898-99 (Pa. 1971) (prospective contractual relationship requires

reasonable likelihood or probability, i.e. something more than a mere hope

or innate optimism); InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d

616, 627 (Pa. Super. 2006). Given that tortious interference claims extend

to prospective contractual relationships, I am not persuaded by the

alternative grounds offered by the trial court for distinguishing Richette,

including the fact that the client in Richette was unrepresented at the time

of the settlement and that the attorney-plaintiff in that case had not

recovered any money when the jury issued its award. In sum, the trial court


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failed to identify valid grounds for differentiating Richette from the instant

case.

        I find it interesting that the Majority affirms the trial court’s refusal to

follow Richette because Appellant never consummated an attorney-client

relationship with Pasternak.       Yet, the Majority recognizes that Appellant

sought recovery of lost fees by raising a tortious interference claim against

Sigman before the arbitrator. Majority Memorandum at 4. The Majority also

acknowledges that, “The arbitrator agreed with this claim and determined

further that if Sigman had not referred the Pasternak case, [Appellant]

would have obtained a fee of $86,400.00 (the fee recovered by Datz).” Id.

The obvious premise of the arbitrator’s ruling was that, but for Sigman’s

tortious interference, Pasternak would have retained Appellant in her

personal injury action. I would not allow Sigman’s tortious conduct to serve

as grounds for barring Appellant’s recovery, as the trial court did.

        The Majority next affirms the trial court’s determination that Appellant

was made whole by the arbitration award entered against Sigman. In this

case, Appellant filed a complaint against Datz alleging that he, along with

Sigman, collectively orchestrated a tortious plan to interfere with Appellant’s

prospective attorney-client relationship with Pasternak.        In developing the

damage component of its claim, Appellant asserted that Datz obtained an

inadequate settlement (i.e., $216,000.00) on behalf of Pasternak. Appellant

therefore alleged that it was entitled to recover a fee based upon its


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assessment that Pasternak’s underlying claims were more properly valued in

excess of $1,000,000.00. Before these claims were resolved, however, the

litigation between Sigman and Appellant proceeded to arbitration.      During

the arbitration proceedings, Appellant asserted a nearly identical tortious

interference claim against Sigman, but predicated its damages upon the

actual fees recovered by Datz. The arbitrator concluded that this claim was

meritorious and awarded Appellant an amount equal to that sum. Appellant

now claims that, notwithstanding the finality of the arbitration award, it is

entitled to recover damages from Datz based upon its enhanced valuation of

Pasternak’s claims.     Appellant reasons that such a sum represents

Appellant’s lost profits stemming from the inadequate recovery obtained by

Datz. The trial court disagreed, finding that Appellant’s claims against Datz

could not withstand summary judgment since Appellant already obtained the

recovery to which it is entitled. Based upon Richette, and our prior decision

in Schein, supra, I cannot agree with the trial court’s conclusion, as

Appellant is entitled to seek its reasonably expected revenue from the

Pasternak case.

      Lastly, the Majority accepts the trial court’s determination that

Appellant’s claims were speculative. In its opinion, the trial court expressed

skepticism as to whether Appellant would be able to demonstrate that

Pasternak would have retained Appellant as counsel, whether Appellant

would have successfully negotiated a settlement with opposing counsel, and


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whether Appellant could establish a monetary value that would have

resolved the case. Trial Court Opinion, 10/16/14, at 6-7. In line with these

observations, the trial court concluded, “Determining the outcome of

[Appellant’s] hypothetical representation in comparison with the actual result

would be based on absolute conjecture, and as such, [Appellant] is unable to

properly establish any element of damages.” Id. at 7. The trial court also

noted that its concerns about excessive speculation would likely lead it to

exclude the case valuation offered by Appellant’s expert. Id. at 7 n.7.

       Given our well-settled standard of review over summary judgment

rulings, I am unable to endorse the trial court’s examination of the record.

“The question of whether damages are speculative has nothing to do with

the difficulty in calculating the amount, but deals with the more basic

question    of   whether      there    are     identifiable   damages.”   Newman

Development Group of Pottstown, LLC v. Genuardi’s Family Market,

Inc., 98 A.3d 645, 661 (Pa. Super. 2014). Here, Appellant came forward

with case valuations similar to those that were presented in Richette, as

well as testimony that it would have accepted the Pasternak case.           Such

evidence is not impermissibly speculative.3 See Schein, supra. Moreover,

on summary judgment, it is not the task of the trial court (or this Court) to

assess the probative force of the non-moving party’s evidence; instead, the
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3
 The arbitrator’s award itself lends credence to the conclusion that Appellant
sustained tangible losses.



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function of the court is to view the evidence in the light most favorable to

the nonmovant and determine whether it has come forward with some

evidence to establish the elements of its claims. As Appellant met this basic

requirement, its claims should withstand summary judgment.

     For each of these reasons, I would vacate the trial court’s order and

remand for further proceedings. Accordingly, I must respectfully dissent.




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