J-A23042-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JAMES T. CARNEY,                         :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                Appellant                :
                                         :
         v.                              :
                                         :
VINIT KATHARDEKAR AND                    :
USHA RISHI,                              :
                                         :
                Appellees                      No. 67 WDA 2016


              Appeal from the Order Entered December 17, 2015
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD-12-021292

BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED NOVEMBER 02, 2016

      James T. Carney (Carney) appeals from order entered December 17,

2015, granting the motion for summary judgment filed by Vinit Kathardekar

and Usha Rishi (collectively, Appellees). After careful review, we affirm.

      The pertinent factual and procedural history of this case has been

summarized by the trial court as follows.

             From July of 2007 through May of 2011, [Carney], in his
      capacity as an attorney, provided various estate planning
      services to the late Dr. Drupadi Bhagwanani [Dr. Bhagwanani]
      and her husband. In January of 2011, during the course of
      [Carney’s] services, [Carney], Dr. Bhagwanani, and her husband
      reached an oral agreement that [Carney] would waive his estate
      planning fees in exchange for Dr. Bhagwanani naming him in her
      will as the contingent executor (her husband would be the first
      executor) or a contingent co-executor.      And likewise, Dr.
      Bhagwanani’s husband would name [Carney] as same in his will.
      [Carney’s] estimation is that the 5% of the gross estate he
      would have received as executor/co-executor would have


* Retired Senior Judge assigned to the Superior Court.
J-A23042-16


        amounted to $375,000. In May of 2011, [Carney] mailed Dr.
        Bhagwanani an updated will naming [Carney] as co-executor of
        her estate. As late as August of 2011, [Carney] was unsure
        whether Dr. Bhagwanani had executed the May 2011 will, and
        [Carney] has not averred that it was ever executed.

               In July 2011[,] Dr. Bhagwanani was diagnosed with
        cancer. Shortly after the diagnosis, Dr. Bhagwanani’s friend
        [Appellee] Usha Rishi moved in to care for both Dr. Bhagwanani
        and her husband, who was bed ridden at the time. In July of
        2011, when Rishi’s son-in-law, [Appellee] Vinit Kathardekar, was
        visiting Dr. Bhagwanani, she asked Kathardekar, an attorney, to
        draft a will for her. Kathardekar declined on the basis that
        estate planning was not his area of practice.          Ultimately,
        attorney Lloyd Welling was retained to draft a will for Dr.
        Bhagwanani. On August 1, 2011, Dr. Bhagwanani executed a
        will that named Kathardekar as the executor of her estate. On
        September 30, 2011, Dr. Bhagwanani sent [Carney] a letter
        terminating his services. On this basis, [Carney] initiated this
        action alleging that [Appellees] conspired to displace him in the
        will, and stating a claim for Tortious Inference with Contractual
        Relations. On October 15, 2015, [Appellees] filed a Motion for
        Summary Judgment, which [the trial court] granted on
        December 17, 2015.

Trial Court Opinion, 3/9/2016, at 1-2.

        This timely-filed appeal followed.1 Carney raises the following issues

on appeal, which we have reordered for ease of disposition.

        I.    Did the [trial court] err in finding that Carney presented no
              evidence to show purposeful action on behalf of
              [Appellees] specifically intended to harm the existing
              relationship between Carney and his client?

        II.   Did the [trial court] deny Carney due process of law by
              deciding the motion for summary judgment on the grounds
              other than those raised by [Appellees]?




1
    Both Carney and the trial court complied with Pa.R.A.P. 1925.


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J-A23042-16


     III.   Did the [trial court] err in granting summary judgment on
            the ground that Carney could not prove actual damage
            resulting from the interference?

     IV.    Did the [trial court] err in granting summary judgment on
            the ground that [Appellees] were privileged to interfere
            with the contractual attorney[-]client relationship between
            Carney and his client?

Carney’s Brief at 5 (unnecessary capitalization and emphasis omitted).

     We consider Carney’s issues mindful of the following.

     Our standard of review on an appeal from the grant of a motion
     for summary judgment is well-settled. A reviewing court may
     disturb the order of the trial court only where it is established
     that the court committed an error of law or abused its discretion.
     As with all questions of law, our review is plenary.

     In evaluating the trial court’s decision to enter summary
     judgment, we focus on the legal standard articulated in the
     summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
     where there is no genuine issue of material fact and the moving
     party is entitled to relief as a matter of law, summary judgment
     may be entered. Where the nonmoving party bears the burden
     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. 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. Lastly, we will review 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.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014)

(quoting Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super.

2008)).

     The following principles guide our review if this matter.




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J-A23042-16


      In order to successfully advance a cause of action for intentional
      interference with contractual relations, appellant must
      demonstrate the following: (1) the existence of a contractual
      relationship; (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 or justification for such interference;
      and (4) damages resulting from the defendant’s conduct.

Small v. Juniata College, 682 A.2d 350, 354 (Pa. Super. 1996).

      On appeal, Carney argues the trial court erred in finding that Carney

did not establish a genuine issue of material fact as to the second element of

the aforementioned tort.    Carney’s Brief at 22.    First, Carney avers “it is

undisputed that [on August 1, 2011, Appellees were] aware that [Dr.

Bhagwanani] had an ongoing relationship with an attorney.”             Id. at 23.

Carney argues that this alone is sufficient to show Appellees knowingly

interfered with a contractual relationship.     Id. at 23-26.        Furthermore,

Carney contends the trial court erred in failing to consider all factors set

forth in Restatement (Second) Torts, section 767, and ignoring “critical

pieces of evidence.”2 Id. at 26-28.

      In response, the trial court offered the following analysis:

      To satisfy the second element of a claim for intentional
      interference of contractual relations, [a plaintiff] must prove that
      a defendant “acted for the specific purpose of causing harm to [a
      plaintiff.]” [Carney] has pled that [Appellees] acted with the
      intent of “furthering their own interests.” [Carney] has not

2
  In his brief, Carney sets forth three critical pieces of evidence: (1) an
excerpt of the deposition of David Groetsch, Dr. Bhagwanani’s financial
advisor; (2) evidence that Appellee Kathardekar had seen the will drafted by
Carney, with Carney’s name on it; and (3) an affidavit from Carney that
avers he received a call from Kathardekar demanding he turn over all files
relative to Dr. Bhagwanani. Carney’s Brief at 27-28.


                                      -4-
J-A23042-16


     averred or offered any proof that [Appellees] had knowledge of
     [Carney’s] arrangement to waive his fees and that displacing
     him as an executor of Dr. Bhagwanani’s estate would lead to
     [Carney] effectively having performed his estate planning
     services for free. Therefore, [Carney] has not averred or offered
     proof that [Appellees] acted with the intent of harming him, and
     therefore has failed to satisfy the second element of his claim.

Trial Court Opinion, 3/9/2016, at 3 (citations removed).

     The trial court’s findings are supported by the record. While Carney

impassionedly argues that Appellees were aware of the attorney-client

relationship between himself and Dr. Bhagwanani, he has failed to provide

evidence that would demonstrate Appellees were aware that Carney had an

agreement to provide free legal services in exchange for being named as an

executor of Dr. Bhagwanani’s estate. Not only has Carney failed to produce

such evidence, he admitted he did not have any facts or information to

suggest that Appellees were aware of such an arrangement.

     [Appellees’ Counsel]: Do you have any facts or information that
     Usha Rishi was aware of the oral agreement that you allegedly
     entered into with [Dr, Bhagwanani] in January of 2011.

     [Carney]: No.

     [Appellees’ Counsel]: Do you have any information that Vinit
     Kathardekar was aware of the oral agreement that you had,
     allegedly, with [Dr. Bhagwanani] in January of 2011?

     [Carney]: No.

     [Appellees’ Counsel]: Do you have any reason to dispute that
     the first time Usha Rishi and Vinit Kathardekar became aware of
     this alleged oral agreement that you had with [Dr. Bhagwanani]
     in January of 2011 is when you filed your complaint against
     them?



                                    -5-
J-A23042-16


      [Carney]: I have no evidence to the contrary. They were
      certainly aware, however, of my relationship with Dr.
      [Bhagwanani], an attorney[-]client relationship.

Deposition of James Carney, 4/17/2015, 103-104.

      Here, merely knowing that there is an existing attorney-client

relationship is not enough to prove that Carney and Dr. Bhagwanani’s

unorthodox arrangement was known by Appellees.          As such, Carney is

unable to demonstrate that Appellees’ had the specific intent to harm Carney

by depriving him of the benefit of the oral agreement he entered into with

Dr. Bhagwanani.3    Thus, Carney’s claim fails.   See Glenn v. Point Park

College, 272 A.2d at 899 (“It must be emphasized that the tort we are

considering is an intentional one: the actor is acting as he does [for] the

purpose of causing harm to the plaintiff.”).

      Because we find the trial court did not err in concluding that Carney

failed to meet his burden to demonstrate that Appellees had a specific intent

to cause Carney harm, we find the remainder of his issues raised on appeal

moot. See, e.g., Pappas v. UNUM Life Ins. Co. of Am., 856 A.2d 183,

186 (Pa. Super. 2004) (citations omitted, emphasis added) (“[A] defendant

may establish a right to summary judgment by demonstrating the plaintiff’s


3
  We further note that all three “critical pieces of evidence,” cited supra,
involve interactions that occurred in mid to late August, 2011.          Dr.
Bhagwanani signed the will displacing Carney as executor on August 1,
2011. Therefore, the “critical evidence” provided by Carney does not
provide any proof that Appellees were aware of the existing will or
agreement when they assisted Dr. Bhagwanani in drafting and signing a new
one.


                                     -6-
J-A23042-16


inability to show an element essential to his claim. If the plaintiff fails to

contravene the defendant’s claim with evidence raising a factual dispute as

to that element, the defendant is entitled to entry of judgment as a matter

of law.”).

      Having concluded the trial court did not abuse its discretion in granting

Appellees’ motion for summary judgment, Carney is entitled to no relief from

this Court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/2/2016




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