J-A20037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BRIAN DOWLING                            :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellant              :
                                          :
              v.                          :
                                          :
 PENNSYLVANIA PSYCHIATRIC                 :
 INSTITUTE, MICHAEL J. FELICE, AND        :
 WANDA GEESEY                             :
                                          :
                   Appellee               :        No. 102 MDA 2019

              Appeal from the Order Entered January 10, 2019
              In the Court of Common Pleas of Dauphin County
                 Civil Division at No(s): 2012-CV-10599-CV


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                  FILED NOVEMBER 18, 2019

     Appellant, Brian Dowling, appeals from the order entered in the Dauphin

County Court of Common Pleas, which granted summary judgment in favor of

Appellees, Pennsylvania Psychiatric Institute (“PPI”), Michael J. Felice, and Wanda

Geesey, in this breach of contract action. We affirm.

     A prior decision of this Court set forth the facts of this appeal as follows:

        In 2008, [Appellant] was hired as the Director of Finance for
        [Appellee] PPI…. During certain periods, [Appellant] served as
        the de facto Chief Financial Officer (“CFO”).

        On September 13, 2010, [Appellant] interviewed [Appellee]
        Felice for the position of CFO. [Appellant] did not recommend
        [Appellee] Felice for the position, concluding that [Appellee]
        lacked appropriate interpersonal skills and experience in two
        different business areas. [Appellee] Felice nevertheless was
        hired in 2011 for the CFO position, and [Appellant] thereafter
        trained him.
J-A20037-19


         [Appellee] Felice initially had a positive relationship with
         [Appellant] but grew to resent him as [Appellee] PPI employees
         continued to seek assistance from [Appellant]. As his relationship
         with [Appellant] deteriorated, [Appellee] Felice became close
         with [Appellee] Geesey, Director of Human Resources for
         [Appellee] PPI. [Appellee] Geesey disliked [Appellant] due to
         events occurring in 2012.

         In 2012, [Appellee] PPI hired an interim Chief Executive Officer
         and retained MSA Executive Search (“MSA”), an executive search
         practice, to find a permanent CEO. [Appellee] Geesey was
         appointed by [Appellee] PPI as one of the members of the search
         committee and was the only member of the search committee
         who worked for [Appellee] PPI. Jane Groves, an Executive Vice
         President and Senior Advisor for MSA, subsequently met with
         [Appellee] PPI personnel, including [Appellant], to discuss the
         search process. … [Purportedly] Groves told [Appellant] that his
         submission would be kept confidential, such that no one at
         [Appellee] PPI would know that [Appellant] applied for the job,
         with the exception of the search committee. On July 6, 2012, in
         reliance upon Groves’ express representation, [Appellant]
         submitted his resume for the CEO position.

         On Friday July 13, 2012, Groves informed [Appellant] that she
         was going to speak to the search committee about [his] interest
         in becoming CEO. On Monday July 16, 2012, [Appellee] Felice,
         in [Appellee] Geesey’s presence, terminated [Appellant’s]
         employment.

Dowling    v.   Pennsylvania    Psychiatric    Institute,   No.   473   MDA   2014,

unpublished memorandum at 1-2 (Pa.Super. filed June 8, 2015) (internal quotation

marks and citations to record omitted).

      Procedurally, Appellant filed a writ of summons on December 13, 2012, and

a complaint against Appellees on January 8, 2013. In the complaint, Appellant

asserted against Appellee PPI claims for breach of employment contract and/or

confidentiality agreement and promissory estoppel;          Appellant asserted an

intentional interference with contractual claim against Appellees Geesey and Felice.

                                       -2-
J-A20037-19


       Appellees filed preliminary objections in the nature of a demurrer to

Appellant’s complaint. The trial court sustained Appellees’ preliminary objections

and permitted Appellant to file an amended complaint, which Appellant filed on July

11, 2013. Appellees filed preliminary objections in the nature of a demurrer to the

amended complaint.         The court sustained Appellees’ preliminary objections and

dismissed the amended complaint. Appellant appealed and, on June 8, 2015, this

Court reversed and remanded for the parties to conduct discovery on Appellant’s

claims for breach of confidentiality agreement, promissory estoppel, and intentional

interference with contractual relations.1

       Following remand, Appellees filed an answer and new matter to the amended

complaint on April 25, 2016. After discovery closed, Appellees filed a motion for

summary judgment on September 18, 2018. In their summary judgment motion,

Appellees attached as exhibits several affidavits and depositions transcripts,

including Appellant’s deposition transcript and his performance evaluations from

2009 to 2011. On November 7, 2018, Appellant filed an opposition to Appellee’s

summary judgment motion.

       The trial court granted summary judgment in favor of Appellees on January



____________________________________________


1 In its June 8, 2015 memorandum, this Court determined that Appellant had
abandoned his claim for a breach of an employment contract, because Appellant
did not challenge on the appeal the trial court’s dismissal of that claim. In one of
his questions presented on appeal, Appellant explained he brought a claim for
breach of contract against Appellees “where the contract sued upon was not an
employment contract, but a confidentiality agreement formed orally between
Appellant…and Appellee [PPI]’s agent, Jane Groves[.]” Dowling, supra at 2.

                                               -3-
J-A20037-19


10, 2019. On January 15, 2019, Appellant filed a timely notice of appeal. The

court ordered Appellant on January 17, 2019, to file a concise statement of errors

complained of on appeal, per Pa.R.A.P. 1925(b). On February 19, 2019, Appellant

filed a petition for leave to file a concise statement nunc pro tunc, which the court

granted on February 21, 2019. Appellant filed a concise statement nunc pro tunc

on March 4, 2019.

      Appellant raises the following issues for our review:

         WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW
         WITH RESPECT TO COUNT I BY NOT CONSIDERING ALL OF THE
         FACTS OF RECORD AND REASONABLE INFERENCES THEREFROM
         IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY[?]
         FURTHER WHETHER ERROR OF LAW WAS COMMITTED BY
         GRANTING SUMMARY JUDGMENT WHEN THERE WERE DISPUTED
         ISSUES OF MATERIAL FACT[?]

         WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW
         WITH RESPECT TO COUNT II BY NOT CONSIDERING ALL OF THE
         FACTS OF RECORD AND REASONABLE INFERENCES THEREFROM
         IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY[?]
         FURTHER WHETHER ERROR OF LAW WAS COMMITTED BY
         GRANTING SUMMARY JUDGMENT WHEN THERE WERE DISPUTED
         ISSUES OF MATERIAL FACT[?]

         WHETHER THE TRIAL COURT COMMITTED AN ERROR OF [LAW]
         WITH RESPECT TO COUNT III BY NOT CONSIDERING ALL OF THE
         FACTS OF RECORD AND REASONABLE INFERENCES THEREFROM
         IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY[?]
         FURTHER WHETHER ERROR OF LAW WAS COMMITTED BY
         GRANTING SUMMARY JUDGMENT WHEN THERE WERE DISPUTED
         ISSUES OF MATERIAL FACT[?]

(Appellant’s Brief at 5).

      Our standard of review of an order granting summary judgment requires us

to determine whether the trial court abused its discretion or committed an error of


                                        -4-
J-A20037-19


law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347 (Pa.Super. 2006).

        Judicial discretion requires action in conformity with law on facts
        and circumstances before the trial court after hearing and
        consideration. Consequently, the court abuses its discretion if, in
        resolving the issue for decision, it misapplies the law or exercises
        its discretion in a manner lacking reason. Similarly, the trial court
        abuses its discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000) (internal

citations and quotation marks omitted). Our scope of review is plenary. Pappas

v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S.

938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of

summary judgment,

        [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.

        Motions for summary judgment necessarily and directly implicate
        the plaintiff’s proof of the elements of [a] cause of action.
        Summary judgment is proper if, after the completion of discovery
        relevant to the motion, including the production of expert reports,
        an adverse party who will bear the burden of proof at trial has
        failed to produce evidence of facts essential to the cause of action
        or defense which in a jury trial would require the issues to be
        submitted to a jury. In other words, whenever there is no
        genuine issue of any material fact as to a necessary element of
        the cause of action or defense, which could be established by
        additional discovery or expert report and the moving party is
        entitled to judgment as a matter of law, summary judgment is
        appropriate. Thus, a record that supports summary judgment
        either (1) shows the material facts are undisputed or (2) contains

                                        -5-
J-A20037-19


         insufficient evidence of facts to make out a prima facie cause of
         action or defense.

         Upon appellate review, we are not bound by the trial court’s
         conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) (internal

citations and quotation marks omitted).

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

law, and the well-reasoned opinion the Honorable John J. McNally, III, we conclude

Appellant’s issues merit no relief. The trial court opinion comprehensively discusses

and properly disposes of the questions presented. (See Trial Court Opinion, filed

January 10, 2019, at 2-7) (relying on Appellant’s deposition, the court found: (1-

3) Appellant admitted his sole support for all of his claims was Appellee Geesey’s

alleged smirk when Appellee Felice fired Appellant; knowledge of Appellant’s

candidacy cannot be imputed to Appellees Felice or Geesey based solely on Appellee

Geesey’s facial expression; Appellant failed to present evidence beyond mere

speculation to demonstrate Appellees Felice and Geesey, as agents of Appellee PPI,

intended to harm Appellant by interfering with alleged confidentiality agreement;

therefore, all of Appellant’s claims fail).   The record supports the trial court’s

rationale. See Chenot, supra. Accordingly, we affirm on the basis of the trial

court opinion.

      Order affirmed.




                                        -6-
J-A20037-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2019




                          -7-
                                                                   lt\i1AGt:-o'                          ·
                                                                                  · -,       Circulated 10/25/2019 11 08 AM




                                                              IN THE COURT OF COMMON PLEAS OF
                                                              DAUPHIN COUNTY, PENNSYLVANIA


                                                              NO. 2012-CV-10599-CV
                     v.
    PENNSYLVANIA PSYCHIATRIC                                                                                                          ... -�·
                                                                 CIVIL ACTION-LAW                                                      �,..:    ;
    INSTITUTE, MICHAEL J. FELICE,                                                                                                              .     ',     ..   /.

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    and WANDA GEESEY,
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                                            OPINION AND ORDER

           Upon consideration of Defendants, Pennsylvania Psychiatric Institute ("PPI"), Michael J.

Felice ("Felice"), and Wanda Geesey ("Geesey") Motion for Summary Judgment, Plaintiffs

Response thereto, and after entertaining oral argument, this Court finds the following:

PROCEDURAL AND FACTUAL HISTORY


           This Court hereby adopts and incorporates the Superior Court's recitation of the procedural

and factual history of this case as set forth in its Opinion in Dowling v. Pennsylvania Psychiatric

Institute. et al, No. 473 MDA 2014 (Pa. Super 2015). On appeal from a demurrer granted in favor

of Defendants, the Superior Court reversed the trial court, accepting as true all well-pled facts and

finding that Plaintiff pled the requisite elements of his causes of action. The Court remanded this

case in order to afford Plaintiff the opportunity to conduct discovery so that he may produce

evidence in support of his Breach of a Contract claim related to an alleged confidentiality

agreement, 1 Promissory Estoppel claim, and a claim for Intentional Interference With Contractual


I   The Court found that Plaintiff had abandoned his claim for a breach of an employment agreement and we agree.

                                                        1 of 8

                                                                                                                                                          \
Relationship. On remand, the parties engaged in discovery which has since been completed.

Defendants now move this Court for summary judgment based upon the following issues:


                I.     Whether PPI is entitled to summary judgment on the
                       grounds that Plaintiff has failed to produce evidence of
                       facts essential to a breach of contract cause of action.


               II.     Whether PPI is entitled to summary judgment on the
                       grounds that" Plaintiff has failed to produce evidence of
                       facts essential to a cause of action for promissory
                       estoppel.


               III.    Whether Felice and Geesey are entitled to summary
                       judgment on the grounds that Plaintiff has failed to
                       produce evidence of facts essential to an interference
                       with contractual relations cause of action.



SUMMARY JUDGMENT STANDARD


       After the relevant pleadings are closed, but within such time as not to unreasonably delay

trial, any party may move for summary judgment in whole or in part as a matter oflaw if, after the

completion of discovery relevant to the motion, including the production of expert reports, an

adverse party who will bear the burden of proof at trial has failed to produce evidence of facts

essential to the cause of action or defense which in a jury trial would require the issues to be

submitted to a jury. (Pa.R.C.P 1035.2(2)). A motion for summary judgment made under this

subdivision is based on an assertion that the record contains insufficient evidence of facts to make

out a prima facie cause of action and consequently there would be no issue to submit to a jury.

(See, Explanatory Comment to Pa.R.C.P. 1035.2.).


       "Where the non-moving party bears the burden of proof on an issue, he may not merely

rely on his pleadings or answers to survive summary judgment." Estate of Young v. Louis,

                                               2 of8
�OJ./.\.3ol 111 (Po.. )uR•r.ao1�·   "-   Failure of a non-moving party to adduce sufficient evidence on an

issue essential to his case and on which he bears the burden of proof establishes the entitlement of

the moving party to judgment as a matter of law." Id. at 8.


I.        Whether Plaintiff has prodnced snfficient evidence of facts essential to snstain a
          breach of contract action.

          On appeal from a demurrer granted in favor of Defendants, the Superior Court ruled that:


                    Dowling has not had the opportunity to conduct discovery because
                    the trial court dismissed his case at the most preliminary stage of the
                    lawsuit. Dowling should, at the very least, be accorded the
                    opportunity to depose the individuals who were involved in these
                    events before his action is dismissed. Through the conduct of
                    depositions and dissemination of interrogatories and requests for
                    production of documents, Dowling may well prove his case."
Dowling v. Pennsylvania Psychiatric Institute, No. 473 MDA 2014 (Pa. Super. 2015). On remand,

the parties engaged in the exchange of discovery which concluded in August of 2018.


          It is well-settled law that in order to successfully maintain a cause of action for breach of

contract a plaintiff must establish: (1) the existence of a contract, including its essential terms, (2)

a breach of a duty imposed by the contract, and (3) resultant damages. (Albert v. Erie Ins.

Exchange, 65 A.3d 923, 928 (Pa. Super. 2013)).


         Plaintiff contends that an oral contract was formed between he and PPI, through PPI's

alleged agent, Jane Groves ("Groves"). He testified at his deposition, (and bolsters with his

affidavit) that Groves assured him that his candidacy for the CEO position would remain

confidential with and among themembers of the search committee because he was an internal

candidate. (Dowling transcript, October 25, 2017 at p.92). Of particular note, during discovery

Plaintiff chose not to take the deposition of Groves, the Executive Vice President and Senior

Advisor of MSA Executive Search ("MSA"), the individual with whom he is alleged to have


                                                       3 of8
entered into the confidentiality agreement upon which his causes of action are based. However, in

her affidavit, Groves swears that at no time during the conversations with Plaintiff did she tell him

that, except for the Board's Search Committee, no one at PP! would know if he submitted his

resume for the position of CEO. (Groves Affidavit, attached to Defendants' Motion for Summary

Judgment at p.363-364). At oral argument in opposition to the present motion, Plaintiff counsel

argued that Plaintiff would not have submitted his application but for her assurance of

confidentiality. This Court is concerned about the nature and lack of evidence with regard to the

formation and terms of the alleged confidentiality agreement but recognizes that the credibility of

Plaintiff and Groves is an issue for the jury, as is the question regarding the existence of an agency

relationship between Groves and PPL Borough of Nanty-Glo v. American Surety Co. of New

York, 163 A. 523; Walton v. Johnson, 66 A.3d 782 (Pa. Super. 2013).


        Next, Plaintiff argues that the alleged confidentiality agreement was breached when

Geesey and Felice learned of his candidacy and as a result, he was fired. Plaintiff would like the

Court to infer, based upon the circumstances surrounding Felice firing him, namely, Geesey' s

facial expression, that Geesey and Felice had to have known at that time ofhis candidacy for CEO.

(See, Plaintiffs Brief in Opposition, p. 22). However, Plaintiff points to no evidence, beyond a

smirk, to support that Felice or Geesey knew that Plaintiff applied for the CEO position prior to

his termination. Plaintiff admitted during his deposition that other than Geesey's facial expressions

at the time he was fired, he had no facts to support his claim that the promise of confidentiality

was breached. Plaintiff testified as follows:


               Q:      Brian, did you say to Jane Groves: "I know that Wanda
                       Geesey knew I applied for the CEO job and that is why I was
                       fired"?
               A:      It's likely I said that.


                                                  4of8
                  Q:     Okay. Were there any-
                  A:     Because of Wanda's facial expressions during my firing.
                  Q:     Okay. Was there any other reason, any other facts in your
                         possession to give rise to that statement?
                  A:     No facts.
                  Q:     Okay. And did Groves say to you I don't know how Wanda
                         could have known since all the resumes were sent directly to
                         my search company and I - meaning Groves- hadn't spoken
                         with Geesey about the candidate?
                  A:     That sounds -
                  Q:     Did she say that to you?
                  A:     That sounds fair
(Dowling Transcript, Exhibit G to Defendant's Motion for Summary Judgment, p. 257) ( emphasis

added).


          Plaintiffs claim of breach of confidentiality is based solely on speculation and conclusory

allegations which cannot, as a matter of law, create issues of material fact, and therefore cannot

survive summary judgment. (See, Blumenstock, 811 A.2d at 1040). Plaintiff's failure to adduce

sufficient evidence as to breach, an issue essential to his case and on which he bears the burden of

proof, establishes Defendants' entitlement to judgment as a matter of law. (See, Estate of Young,

supra.)


II.       Whether Plaintiff has produced evidence of facts essential to a cause of action for
          promissory estoppel
          Plaintiff's Amended Complaint asserts that, "in the event that it is determined that a fully

integrated contract between Dowling and PPI does not exist for want of consideration, then

Dowling asserts a claim for promissory estoppel against PPL" (Amended Complaint, ,r34).

Plaintiff alleges that PPI, by way of its agent Groves, made a promise to him that, except for the

search committee, no one at PPI would know if he submitted his resume for the CEO position


                                                 5 of8
which PPI should have reasonably expected to induce action on his part. (Amended Complaint,

,r35). Plaintiff submitted his resume in reliance on this promise. (Amended Complaint, i!36)

Injustice can be avoided only by enforcing this promise because but for this promise, Plaintiff

would still be employed. (Amended Complaint, i!37).


       The essential elements of a cause of action for promissory estoppel: (1) the promisor made

a promise that he should have reasonably expected to induce action or forbearance on the part of

the promisee; (2) the promisee actually took action or refrained from taking action in reliance on

the promise; and (3) injustice can be avoided only by enforcing the promise. Crouse v. Cyclops

Industries, 745 A.2d 606 (Pa. 2000). The doctrine of promissory estoppel is invoked to avoid

injustice if there is no enforceable agreement between the parties in that it is not supported by

consideration. Id. at 610. In support of his promissory estoppel claim, Plaintiff asserts that:


               Jane Groves made a promise to keep Brian's CEO candidacy
               confidential and she reasonably expected to induce him to submit
               his resume based upon that promise. Brian sent his resume to Groves
               in reliance on the promise that this action would remain confidential.
               The first working day after Groves said that she would report Brian's
               candidacy to the search committee, he was fired in Geesey's
               presence by Felice without reason and in violation of the procedures
               of the corporate handbook.




(Plaintiffs Brief in Opposition to Defendants' Motion for Summary Judgment, p. 23).

       However, as set forth above at length, Plaintiff points to no evidence that the alleged

confidentiality agreement was breached, except for Plaintiffs observation that Geesey had a smirk

on her face at the time Felice fired him, which Plaintiff would like the Court to infer that this

indicated that Geesey and Felice had to know his candidacy and that is why he was fired. Of course,

knowledge of Plaintiffs candidacy cannot be imputed on either Felice or Geesey based solely on


                                                6 of8
Geesey's facial expression. Such speculation cannot serve as a basis to enforce the alleged

agreement ·in equity. Promissory estoppel is invoked in order to avoid injustice, it permits an

equitable remedy to a contract dispute. Crouse v. Cyclops Indus., 745 A.2d at 610. In this case,

Plaintiff fails to point to any concrete evidence of injustice as he has produced no evidence to

support the alleged breach of the confidentiality agreement. Accordingly, Plaintiffs promissory

estoppel claim cannot survive summary judgment.


III.   Whether Felice and Geesey are entitled to summary judgment on the grounds that
       Dowling has failed to produce evidence of facts essential to an interference with
       contractual relations cause of action
       The four elements necessary for an intentional interference with a contractual relationship

claim are: (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 a privilege of justification on the part of the defendant;

(4) The occasioning of actual damages as a result of the defendant's conduct. Foster v. UPMC

Southside Hospital, 2 A.3d 655, 665-666 (Pa. Super.amoj.


        Again, we find no evidence of record beyond mere speculation to demonstrate an intent to

harm Plaintiff by interfering with the alleged confidentiality agreement. Accordingly, Plaintiff's

Intentional Interference With a Contractual Relationship claim must fail.




                                                7 of8
 BRIAN DOWLING,                                  IN THE COURT OF COMMON PLEAS OF
                                                 DAUPHIN COUNTY, PENNSYLVANIA
                Plaintiff


               v.
 PENNSYLVANIA PSYCHIATRIC
 INSTITUTE, MICHAEL J. FELICE,
 and WANDA GEESEY,

               Defendants




                                           ORDER

                              \O�ay
       AND NOW, THIS                of January 2019, upon consideration of Defendants'

Motion for Summary Judgement, Plaintiffs Response thereto, and after entertaining oral argument

it is hereby ORDERED that Defendants' Motion for Summary Judgment is GRANTED.




Distribution:
Richard C. Seneca, Esq., PO Box 333,680 Yorktown Road, Lewisberry, PA 17339
David B. Dowling, Esq., 2320 North 2nd Street, PO Box 60457, Harrisburg, PA 17106
Dauphin County Court Administrator




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