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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 05, 2016

        Bochetto & Lentz, P.C. (“Bochetto”) appeals from an order granting

summary judgment in favor of A. Harold Datz and A. Harold Datz, P.C.

(“Datz”).1 After our review, we affirm.

        This Court has previously outlined the factual and procedural history of

this case:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Datz filed an application to strike Bochetto’s Statement of the Case and
Summary of the Argument pursuant to Pa.R.A.P. 2117 and 2118,
respectively, alleging they contained “scandalous and impertinent material
and argument included for the sole purpose of inflaming this Honorable
Court and drawing attention away from the precise issues on appeal.”
Application to Strike, 4/21/15, at ¶ 2. Bochetto filed an Answer. Our review
of this case is not hindered by the submissions before us. Therefore, we
deny Datz’s application to strike.
J-A16023-15


        [Bochetto] and [Datz] are competing civil litigation firms located
        in Philadelphia, Pennsylvania.    From July 2005 until his
        termination in February of 2009, Scott Sigman, Esquire
        [“Sigman[”]) was employed by [Bochetto] as an associate
        attorney.

        The following facts are undisputed. In June of 2007, while
        employed by [Bochetto], Sigman was contacted by Jillene
        Pasternak [(“Pasternak”)] regarding representation for her slip
        and fall personal injury claim. At some point thereafter Sigman
        referred the Pasternak case to Datz. No written agreement of
        this referral exists; however, the record shows that Pasternak
        retained Datz, and Datz later confirmed to Sigman that he was
        “on the case.”

        In February of 2009, Sigman was fired from [Bochetto] based on
        allegations that he was secretly engaging in client
        representations and referrals without notifying [Bochetto] or
        receiving [Bochetto]’s consent. Shortly thereafter, on April 20,
        2009, Pasternak’s case was settled by Datz. [Datz] received 40
        percent of the settlement proceeds, amounting to a combined
        fee of $86,000.00, from which Datz then gave Sigman a referral
        fee in the amount of $28,800.00 in a check dated April 30, 2009.
        This check was made out to Sigman at his home address.1

        On September 27, 2010, [Bochetto] initiated this action by filing
        a praecipe for writ of summons.          [On] October 19, 2010,
        [Bochetto] filed a civil complaint against Datz.[2]. After two sets
        of preliminary objections and an amended complaint, the causes
        of action remaining were tortious interference with prospective
        contractual relations, civil conspiracy to commit fraud,
        conversion, unjust enrichment, constructive trust, and aiding
        and abetting breach of fiduciary duty.

        _________________
              1
                The record reveals that [Datz] intended to mail the
           check to Sigman’s home address, but Sigman picked it up
           in person. In his deposition, Datz claimed that he had
           requested Sigman’s home address for [the firm’s]
           “Christmas card” and “announcement list.” However, Datz
____________________________________________


2
    Bochetto did not name Sigman in this action.



                                           -2-
J-A16023-15


          then admitted that the firm did not send out Christmas
          cards.

      During the course of discovery, the following relevant deposition
      testimony was taken and affidavits were produced. Sigman
      testified that, following his June 2007 discussion with Pasternak,
      he asked [] George Bochetto, Esquire ([a principal of Bochetto])
      whether Sigman could keep Pasternak’s case because (pursuant
      to his employment agreement with [Bochetto]) he would be
      entitled to one-third of the attorney fee and would get to learn
      about personal injury cases. According to Sigman, [George
      Bochetto] told him “to get rid” of the case because Bochetto did
      not want to handle slip and falls cases. Datz testified that he
      asked Sigman why [Bochetto] was not keeping Pasternak’s case,
      to which Sigman responded that [George Bochetto] had told him
      that [Bochetto] was not interested in handling slip and fall cases,
      and thus, to get rid of the case. Conversely, in his deposition,
      [George Bochetto] adamantly denied knowledge of a potential
      client named Pasternak and further denied having any
      conversation with Sigman regarding referral of the Pasternak
      case. [George Bochetto] further testified that Datz did not
      discuss the Pasternak referral with him.

      On November 21, 2011, after the close of discovery, [Datz] filed
      a motion for summary judgment. On April 27, 2012, the trial
      court issued an order granting summary judgment in favor of
      [Datz] as to all six counts of [Bochetto’s] complaint.

Bochetto & Lentz v. Datz, 82 A.3d 1079 (Pa. Super. 2013) (unpublished

memorandum), at 2-4 (internal citations, quotation marks, and certain

footnotes deleted).        Bochetto appealed and a divided panel of this Court,

finding genuine issues of fact precluded entry of summary judgment,

reversed and remanded for further proceedings. Id. at 5-16.

      In late June of 2011, while Bochetto’s claims against Datz were

pending, Sigman filed a lawsuit against Bochetto in Philadelphia County,

seeking   recovery    of    unpaid   fees   and   commissions.   Bochetto   filed

preliminary objections, which the trial court granted, finding Sigman’s claims

                                        -3-
J-A16023-15



were subject to compulsory arbitration. The court ordered Sigman’s claims

against Bochetto to proceed in binding arbitration. Thereafter, Bochetto filed

a counterclaim against Sigman alleging breach of contract, breach of

fiduciary duty, fraud, and interference with contractual relations. Bochetto

requested that the commissions owed to Sigman be offset by the fees

Bochetto lost because of Sigman’s improper referral of the Pasternak case to

Datz. The arbitrator agreed with this claim and determined further that if

Sigman had not referred the Pasternak case, Bochetto would have obtained

a fee of $86,400.00 (the fee recovered by Datz). The arbitrator also found

that Bochetto would have expended $43,200.00 in litigating the Pasternak

case. Thus, the arbitrator awarded Bochetto a $43,200.00 setoff against the

fees he found Bochetto owed Sigman.

      Bochetto filed a petition to vacate the arbitrator’s award, claiming it

contravened public policy.      The Court of Common Pleas of Philadelphia

County denied that petition and this Court affirmed.        See Sigman v.

Bochetto, 105 A.3d 38 (Pa. Super. 2014) (unpublished memorandum),

appeal denied, 112 A.3d 654 (Pa. 2015).

      Following this Court’s 2013 order remanding this matter for further

proceedings, Datz again filed a motion for summary judgment, this time

arguing that the arbitrator’s award to Bochetto for lost fees relating to the

Pasternak case barred Bochetto’s present claims. The trial court agreed and,

on October 16, 2014, entered summary judgment in favor of Datz. Bochetto

filed this appeal, raising five issues for our review:

                                      -4-
J-A16023-15


          1. Whether the trial court erred in distinguishing
             Richette v. Solomon, [187 A.2d 910 (Pa. 1963)],
             where the record contained genuinely disputed facts
             over material issues, including conflicting expert
             opinion evidence, as to the purposeful conduct of
             [Datz] in foisting an inadequate settlement on an
             unsuspecting lay client in the Pasternak matter,
             grossly undervaluing the claims so as to avoid
             having to file a public complaint, which enabled Datz
             to obtain a quick, easy and non-public settlement to
             line his own pockets and conceal the case and the
             fees from [Bochetto], facts which are virtually
             identical to the controlling precedent of Richette?

          2. Whether the trial court erred in distinguishing
             Richette where the trial court invaded the province
             of the jury in finding [Bochetto’s] damages claim
             against Datz to be “speculative” as a matter of law
             even though [Bochetto] presented very specific and
             non-speculative evidence as to its damages claim,
             including the very severe and permanent physical
             injuries to the client in the Pasternak matter, as well
             as expert opinion evidence detailing her injuries and
             damages?

          3. Whether the trial court erred in finding that
             [Bochetto] had been made whole, where Datz was
             liable to [Bochetto] for entirely different conduct
             than Sigman and under different theories of liability
             with different measures of damages than any that
             applied to Sigman?

          4. Whether the trial court erred in finding that
             [Bochetto’s] suit contravened public policy, where
             the trial court confused the damages sought by
             [Bochetto] in this matter (the fee-only portion of
             Datz’s inadequate settlement of a case acquired
             through malfeasance) with the damages of the
             potential plaintiff in the Pasternak matter?

          5. Whether – separate and apart from [Bochetto’s]
             right to recover compensatory damages against Datz
             – the trial court erred in failing to find [Bochetto]
             was entitled to recover punitive damages against
             Datz for his outrageous bad acts in conspiring with


                                   -5-
J-A16023-15


               his joint tortfeasor Sigman in stealing [Bochetto’s]
               potential client?

Appellant’s Brief, at 4-5.

      When reviewing an order granting summary judgment, we must

determine whether the trial court abused its discretion or committed an

error of law, and our scope of review is plenary. Petrina v. Allied Glove

Corp., 46 A.3d 795, 797 (Pa. Super. 2012).

      [W]e apply the same standard as the trial court, reviewing all
      the evidence of record to determine whether there exists a
      genuine issue of material fact. We view the record in the light
      most favorable to the non-moving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party. Only where there is no genuine issue
      as to any material fact and it is clear that the moving party is
      entitled to a judgment as a matter of law will summary
      judgment be entered. All doubts as to the existence of a
      genuine issue of a material fact must be resolved against the
      moving party. . . . Upon appellate review, we are not bound by
      the trial court’s conclusions of law, but may reach our own
      conclusions.

Id. at 797–98 (Pa. Super. 2012) (internal citations omitted).

      After a review of the record, the briefs of the parties, the applicable

law, and the well-reasoned opinion of the Honorable Gary Glazer, we

conclude Bochetto’s issues warrant no relief.      The trial court properly

disposes of the claims presented. See Trial Court Opinion and Order, filed

10/16/14, at 3-8 (trial court determined Richette did not apply because

there was no established attorney-client relationship between Bochetto and

Pasternak; Bochetto was compensated and made whole as a result of the

improper referral and its claim that damages were inadequate is based on

                                    -6-
J-A16023-15



speculation).3 Accordingly, we affirm the order granting summary judgment

in favor of Datz based on Judge Glazer’s opinion, and we direct the parties to

attach a copy of that opinion in the event of further proceedings.

       Order affirmed.

       Judge Platt joins the Memorandum.

       Judge Olson files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




____________________________________________


3
 That the facts presented here do not rise to the level warranting punitive
damages is implicit in the trial court’s grant of summary judgment.



                                           -7-
                                                                                  Circulated 01/28/2016 09:29 AM




     IN THE COURT OF COMMON PLEAS OF PHILADELPHIA                         COUNTY
             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                        CIVIL TRIAL DIVISION



BOCHETTO & LENTZ, P.C.                                SEPTEMBER TERM, 2010

                Plaintiff                             NO. 03044

                   v.                                 COMMERCE PROGRAM

A. HAROLD DATZ, ESQUIRE, and                          CONTROL NO. 14082207
A. HAROLD DATZ, P.C.

                Defendants



                                           OPINION

GLAZER,J.                                                                        October 16, 2014

       Before the court is the motion for summary judgment of defendants, A. Harold Datz,

Esquire and A. Harold Datz> P.C. ("Datz"). For the reasons set forth below. defendants' motion

is granted.

                        FACTS AND PROCEDURAL BACKGROUND

       The underlying facts of this prolonged dispute are set forth in the Superior Court's

opinion dated July 26, 2013. The factual statement contained therein is hereby incorporated by

reference. The Superior Court, which reversed the decision of the Honorable Arnold L. New,

held that there were genuine issues of material fact on the various claims against defendants.

However, neither the trial court nor the Superior Court addressed the issue of damages.

        The current action is a companion of the related suit Scott P. Sigman v. Bochettg & Lentz

(hereinafter referred to as the "Sigman action"). Sigman had been an associate at Bochetto &

Lentz (hereinafter referred to as "B&L") until he was terminated in 2009. During his term of

                                                 1

                                             000742a
employment, Sigman was contacted by JiJene Pasternak. who inquired about representation for

her personal injury claim. Rather than acting in accordance with proper procedures, Sigman,

who owed a duty ofloyalty    to his employer. instead surreptitiously referred the Pasternak matter

to A. Harold Datz, Esquire. Datz subsequently represented Pasternak, and reached a settlement

of $216,000. Datz received $86,400 based on his contingent fee with Pasternak, $28,800 of

which he gave to Sigman as a referral fee. Having learned of the improper referral by Sigman,

along with allegations of other impermissible referrals, B&L fired Sigman. On September 27,

2010, B&L commenced this action to recover damages arising from the Pasternak referral.

       On or around June 27, 2011, Sigman filed suit against B&L for breach of contract,

conversion, and unjust enrichment related to unpaid commissions and fees by B&L. After the

case was transferred to binding arbitration, B&L filed Counterclaims against Sigman alleging

breach of contract, breach of fiduciary duty, fraud, and interference with contractual relations.

One of the allegations by B&L included Sigman's improper referral of the Pasternak matter,

upon which B&L sought damages based on the diversion of attorneys' fees from B&L by Datz.

       In 2013, arbitrator Harris T. Bock, Esquire found that, but for Sigman's egregious

conduct, Sigman would have been awarded a total of$227 ,350.03 in fees based upon the various

cases he generated while employed at B&L. However, B&L was credited with several set-offs

which reduced the amount B&L owed to Sigman to $123,942.93. One of the set-offs included a

reduction of$43,200 based on the Pasternak referral. B&L was only entitled to a $43,200 set-off

instead of the entire $86,400 based on B&L's profit margin of 50%, thereby preventing a

windfall to B&L. B&L filed a motion to vacate the arbitration award, which was denied by this

court, and the denial was affirmed by the Superior Court.




                                                  2

                                               000743a
        The Office of Disciplinary Counsel also filed a complaint against Sigman in 2012, which

resulted in Sigman's suspension from the Bar and the requirement that he pay restitution to B&L.

B&L has since been authorized to withdraw from escrow an additional $19,200 that Sigman

improperly converted.1

        The instant action before the court is an outgrowth of the continuing saga of the fractured

relationship between Sigman and B&L. In this iteration of the dispute, plaintiff claims that if

B&L had represented the client rather than defendants, B&L would have received a higher

damage award and therefore was deprived of far higher attorneys' fees. While plaintiff filed this

action against defendants prior to the commencement of the Sigman action, plaintiff continues to

seek damages from an incident that was reso]ved in the Sigman action-the Pasternak referral.

Despite having been credited with $43,200 and the receipt of an additional $19,200, B&L

attempts to squeeze more juice from a different apple. Based upon plaintiffs receipt of damages

in the Sigman action, defendants filed the instant motion for summary judgment.

                                                 DISCUSSION

        Summary judgment shall be granted when, "there is no genuine issue of any material fact

as to a necessary element of the cause of action or defense .... " Pa.R.C.P. No. 1035.2.

Additionally, "[i]n considering the merits of a motion for summary judgment, a court views the

record in the light most favorable to the non-moving party, and all doubts as to the existence of a

genuine issue of material fact must be resolved against the moving party." Fine v. Checcio, 582

Pa. 253, 265, 870 A.2d 850, 857 (2005). Summary judgment may be granted only when the




I
  See Defendants' Motion for Summary Judgment. Plaintiff did not dispute that these funds were placed in escrow
and made available to them. As such, for purposes of assessing damages, this court accepts this to be true and shall
include the $19 ,200 within its calculation of damages already received by plaintiff.


                                                          3

                                                     000744a
judgment is "clear and free from doubt." Qheccio. 582 Pa. at 253 (2005) (citing     Marks v,
Tasman. 527 Pa. 132, 589 A.2d 205, 206 (1991)).

        Defendants' motion is mainly premised on the undisputed fact that plaintiff has already

recovered damages in connection with the improper referral. Defendants argue that those

damages have made B&L whole, and any additional damages would grant plaintiff the benefit of

a double recovery. Plaintiff attempts to distinguish the damages it seeks :from defendants by

characterizing them as lost profits having stemmed from the allegedly inadequate settlement by

Datz. B&L also proclaims that because their theory of inadequate settlement damages was

asserted prior to the filing of the Sigman complaint and resulting arbitration, B&L should not be

precluded from recovering under this theory of damages too. Based on their expert's report,

plaintiff values the Pasternak case above $1,000,000, which would have allegedly netted plaintiff

substantially more attorneys' fees. See Plaintiff's Answer to the Motion for Sununary Judgment,

Ex.F.

        Plaintiff argues they are entitled to further damages based on the holding in Richette v.

Solomon, 187 A.2d 910 (Pa. 1963). In Richette, a railroad worker was injured in line with his

employment, and engaged Richette to be his attorney in the matter against the railroad company,

and the two signed a power of attorney to that effect. A few days thereafter, the client was

coerced and threatened by his employer and union to revoke his power of attorney. With few

options, and having almost no education, the client settled the matter with his employer, on his

own, without Richette. Richette subsequently filed suit against the individuals who coerced his

client to terminate the attorney-client relationship, alleging illegal interference with the contract,

and sought compensatory and punitive damages. Richette valued the client's case around

$30,000, which would have provided him with $10,000 in attorney's fees. The jury awarded



                                                   4


                                              000745a
Richette $10,000 in compensatory damages and $15>000 in punitive damages. On appeal, the

Supreme Court of Pennsylvania upheld the compensatory damages verdict, but reduced the

punitive damage award.

       In order to view Richette as "remarkably similar' and controlling precedent that permits

plaintiff to recover additional damages due to an inadequate settlement would require this court

to shield its eyes from the glaring differences between the cases. First, Richette involved an

existing attorney-client relationship that was forcibly dissolved through the use of coercion and

deception. B&L never achieved such a bond with Pasternak, nor was Pasternak separated from

her retained attorney. Without question, it is illegal to tortiously interfere with an existing or

potential business contract. But interfering with an established attorney-client relationship is

substantially more serious than the alleged conduct that interfered with B&L's possibility of

representing Pasternak. Second, the client in Richette was essentially forced to resolve the

dispute without the advice or assistance of counsel, and as a result, was willing to accept an

inappropriately paltry settlement. Because the client was not represented, the court was required

to speculate how he might have fared had his attorney advocated on his behalf. Pasternak, on the

other hand, was represented by Datz. Datz made multiple demands. participated in mediation,

and ultimately settled the matter for $216,000. By claiming that Datz is liable to B&L for an

inadequate settlement due to the allegedly slipshod quality of his representation, B&L is

attempting to pursue what is essentially a legal malpractice case on behalf of Pasternak. It would

be improper to permit B&L to step into the shoes of Pasternak and recover those damages,

especially in light of Pasternak's declaration that she was "completely satisfied" with defendant's

advocacy. 2


2
 This statement was made through Pasternak's attorney in a letter to B&L in2011. See Defendants' Motion for
Summary Judgment. Ex. I.

                                                       s

                                                   000746a
        Plaintiff has also already been credited with the profit it would have received had it

negotiated the same outcome on behalf of Pasternak. Richette, prior to the jury award, had not

received any damages on behalf of his client. Only after our Supreme Court upheld the

compensatory damages, and reduced the punitive damages, had Richette been credited with the

fees he would have received had he represented his former client. Unlike Richette, plaintiff is

not before the court empty handed. As detailed above, B&L was able to reduce the amount it

was found liable to Sigman by $43,200. Moreover, the funds impermissibJy converted by

Sigman, S 19,200, have been awarded to B&L as well. B&L, having already received a

combined $62,400, is now in the same position as Richette after the Court upheld the jury award.

Richette holds that an attorney is permitted to recover fees, and plaintiff has done so already.

        Notwithstanding the differences between the current action and Richette. plaintiffs ·

theory of an inadequate settlement is based on multiple layers of speculation. As described

above, plaintiff did not accept Pasternak as a client. nor had Pasternak accepted plaintiff's

representation or fee agreement. While plaintiff now views Pasternak's case as a golden egg, it

is unknown whether both sides would have reached an agreement in 2007 . If plaintiff had

decided to accept Pasternak as a client, and if plaintiff would have successfully negotiated with

opposing counsel, it would still be impermissibly speculative to determine what amount the

parties would have settled on. Moreover, if plaintiff were unable to reach an agreement-as

Datz had done-and a trial ensued, then there is even less of a basis to calculate the judgment

value and plaintiff's fees.3

        B&L, with all due modesty, describes Datz's advocacy on behalf of Pasternak as

"mediocre, at best" and claims, with appropriate bravura, that B&L would have been able to

3
  Determining fees based on a trial would simultaneously require the finder of fact to estimate the extensive
preparation incurred by B&L leading up to trial, in order to properly ascertain B&L 's hypothetical profit, and not
just its revenue.

                                                           6


                                                      000747a
secure a substantially higher award. However, plaintiff overlooks a critical component of

negotiations-it is the client who decides whether to accept an offer, not the attorney.4

Pasternak's continued expression of her satisfaction with defendants' representation implies that

she was, and is, quite satisfied with the settlement. Because Pasternak had the final say in

accepting or rejecting a settlement offer, she might have accepted the same amount irrespective

of who represented her, B&L or Datz. Lawyers are to counsel and advise their clients to the best

of their ability, and despite plaintiff' s insistence that they would have obtained a better result

than defendants, the end result could have been the same. s In fact, Pasternak might have

received a lower award had plaintiff represented her.6 Determining the outcome of plaintiff s

hypothetical representation       in comparison to the actual result would be based on absolute

conjecture, and as such, plaintiff is unable to properly establish any element of damages."

        Finally, permitting this suit to continue would contravene public policy. There is no

question that Sigrnan's conduct was deplorable. The behavior of defendants was also less than

exemplary. But the conduct that was meant to be deterred has been deterred, through repayment

of fees lost and disciplinary proceedings.           Nevertheless, the reprehensible conduct of one does

not permit further questionable conduct by another. B&L's actions seem to demonstrate that this

matter is about relentlessly pursuing a vendetta and settling a score. Plaintiff, having already

received its pound of flesh-to which it was clearly entitled-must                   move on from this sad tale of

double-dealing. As noted by this court in B&L's case against Sigman, awarding plaintiff

•Pennsylvania's Rules of Professional Conduct states that "(a] lawyer shall abide by a client's decision whether to
settle a matter." 204 Pa.Code § 1.2.
s Perhaps Datz's swift resolution in the matter was precisely what Pasternak desired, even if it was at the expense of
a greater settlement amount.
& If plaintiff was permitted to continue with this suit, and a jury ultimately determined that the original settlement
was too high, would plaintiff be required to return a portion of fhe fees it has previousl y recovered? Additionally, if
a higher settlement amount were determined by the jury, would the client receive any of the windfall?
7
  This court embraces the axiom that judges are to act as gatekeepers. Even if plaintiff survived the instant Motion,
it is highly unlikely that this court would have permitted plaintiff to introduce their expert's valuation of the case due
to the same issue of gross speculation.

                                                             7


                                                       000748a
additional damages "would be redundant punishment and unjustly enrich B&L." Opinion dated

August 6, 2013, Control No. 13070540. Nor would the continuation of this case benefit or

protect the interests of the one who suffered the greatest harm, Jilene Pastemak.8 Having

received its due, it is time for plaintiff to "let it go!'

                                                 CONCLUSION

        Plaintiff is not entitled to receive additional damages from defendants based on the

awards in previous cases. Wrongdoers have been punished and injured parties have been made

whole. For all the aforementioned          reasons, defendants' motion for summary judgment is

granted.



                                                                BY THE COURT:




•Mrs.Pasternak, through her attorney, has unequivocally rejected plaintifrs request to examine her file and has
asked plaintiff to respect her privacy. ~ Defendants' Motion for Summary Judgment, Ex. J. Plaintiff should do
so. It is also difficult to imagine that plaintiff would remit any portion of its damage award to Mrs. Pasternak, the
true injured party herein.


                                                           8


                                                        000749a
