J-A12005-20

2021 PA Super 87

THE BERT COMPANY D/B/A 

NORTHWEST INSURANCE SERVICES

v.

MATTHEW TURK, WILLIAM COLLINS, 

JAMIE HEYNES, DAVID MCDONNELL, 

FIRST NATIONAL INSURANCE 

AGENCY, LLC, FIRST NATIONAL 

BANK, AND FNB CORPORATION

APPEAL OF: MATTHEW TURK, FIRST 

NATIONAL INSURANCE AGENCY, 

LLC, FIRST NATIONAL BANK, AND 

FNB CORPORATION

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 817 WDA 2019

Appeal from Judgment Entered June 3, 2019

In the Court of Common Pleas of Warren County Civil Division at No(s): 

AD 260 of 2017

THE BERT COMPANY D/B/A 

NORTHWEST INSURANCE SERVICES 

Appellant

v.

MATTHEW TURK, WILLIAM COLLINS, 

JAMIE HEYNES, DAVID MCDONNELL, 

FIRST NATIONAL INSURANCE 

AGENCY, LLC, FIRST NATIONAL 

BANK AND FNB CORPORATION 

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MATTHEW TURK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 975 WDA 2019
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THE BERT COMPANY, NORTHWEST 

BANK, AND NORTHWEST

BANCSHARES, INC.

APPEAL OF: THE BERT COMPANY 

D/B/A NORTHWEST INSURANCE 

SERVICES

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Appeal from the Judgment Entered June 3, 2019

In the Court of Common Pleas of Warren County Civil Division at No(s): 

260 OF 2017

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

CONCURRING/DISSENTING OPINION BY COLINS, J.: FILED: MAY 5, 2021

Because I disagree with the learned majority’s conclusions that the 

evidence at trial was sufficient to support the jury’s verdicts against appellants 

First National Bank (FN Bank), and FNB Corporation (FNB) and that the 

contract between The Bert Company d/b/a Northwest Insurance Services 

(Plaintiff) and appellant Matthew Turk provided for recovery of attorney fees 

incurred solely in litigation to recover damages, I dissent from the majority’s 

affirmation of the trial court’s judgments against FN Bank and FNB and dissent 

in part from its affirmance of the attorney fee award against Turk. In addition, 

while I agree with the majority’s conclusions that compensatory and punitive 

damages awards against appellants First National Insurance Agency, LLC 

(FNIA) and Turk must be affirmed, I would affirm the judgment against Turk 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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and the punitive damages awards against FNIA and Turk on different grounds 

than the majority.

Plaintiff’s Claims Against FN Bank and FNB 

Appellants argue that the evidence at trial was insufficient for the jury 

to find defendants FN Bank and FNB liable for conspiracy and unfair 

competition and that the awards of compensatory punitive damages against 

them therefore cannot stand. I agree.

Whether the trial court erred in denying these defendants’ motions for 

judgment notwithstanding the verdict (JNOV) is a question of law subject to 

our plenary review. Shamnoski v. PG Energy, 858 A.2d 589, 593 (Pa.

2004); Phillips v. A–Best Products Co., 665 A.2d 1167, 1170 (Pa. 1995). 

A trial court’s denial of JNOV is reversible error where, viewing the evidence 

admitted at trial in the light most favorable to the verdict winner and granting 

that party every favorable inference therefrom, there was not sufficient 

competent evidence to sustain the verdict. Shamnoski, 858 A.2d at 593, 602, 

606; Wenrick v. Schloemann–Siemag Aktiengesellschaft, 564 A.2d 

1244, 1246, 1248 (Pa. 1989); Diffenderfer v. Staner, 722 A.2d 1103, 1104

(Pa. Super. 1998). 

Both causes of action on which the jury found FN Bank and FNB liable 

require proof of intent to commit a wrongful act or intent to harm. Plaintiff’s 

unfair competition claim required proof that these defendants acted either 

with a purpose to cripple Plaintiff’s business or a purpose to have the 
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employees commit wrongs against Plaintiff. Reading Radio, Inc. v. Fink, 

833 A.2d 199, 212 (Pa. Super. 2003); Boyce v. Smith–Edwards–Dunlap 

Co., 580 A.2d 1382, 1390 (Pa. Super. 1990). A plaintiff has a cause of action 

for unfair competition against a competitor who hires away a group of its 

employees for the purpose of crippling and destroying the plaintiff’s business, 

rather than to benefit itself. Reading Radio, Inc., 833 A.2d at 212; Boyce, 

580 A.2d at 1390; Ozburn–Hessey Logistics, LLC v. 721 Logistics, LLC

(Ozburn-Hessey I), 13 F.Supp.3d 465, 476-78 (E.D. Pa. 2014). 

[S]ystematically inducing employees to leave their present 

employment is actionable “when the purpose of such enticement 

is to cripple and destroy an integral part of a competitive business 

organization rather than to obtain the services of particularly 

gifted or skilled employees.”

Reading Radio, Inc., 833 A.2d at 212 (quoting Albee Homes, Inc. v. 

Caddie Homes, Inc., 207 A.2d 768 (Pa. 1965)). Hiring a competitor’s 

employees for purposes of having them commit wrongful acts against their 

former employer can also support a cause of action for unfair competition, but 

it is an alternative basis for a cause of action for unfair competition, and is not 

an essential element where the plaintiff shows systematic hiring of employees 

to cripple and destroy the plaintiff’s business. Reading Radio, Inc., 833 A.2d

at 212. 

Evidence that a defendant offered employment to at-will employees of

a competitor for the purpose of acquiring valuable employees for its own 

business, however, is not sufficient to support a cause of action for unfair 
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competition even if the competitor is harmed by that action. Albee Homes, 

Inc. v. Caddie Homes, Inc., 207 A.2d 768, 771 (Pa. 1965); Reading Radio, 

Inc., 833 A.2d at 212; Boyce, 580 A.2d at 1390. Absent evidence of a 

purpose to cripple the competitor or have the employees commit wrongful 

acts against their former employer, the hiring away of even a large number of 

a competitor’s employees does not satisfy the elements of the tort of unfair 

competition and is not actionable. Albee Homes, Inc., 207 A.2d at 771-72 

(hiring of seven of competitor’s salesmen was not actionable where the record 

supported only the conclusion that the defendant’s purpose was to obtain 

experienced salesmen); Boyce, 580 A.2d at 1390 (defendant that hired “a 

substantial number” of plaintiff’s employees was entitled to nonsuit where 

there was “no evidence” that it did so “in order to cripple and destroy” plaintiff

rather than to obtain employees to start up its printing business); OzburnHessey Logistics, LLC v. 721 Logistics, LLC (Ozburn-Hessey II), 40 

F.Supp.3d 437, 453 (E.D. Pa. 2014) (no unfair competition cause of action for 

hiring nine of plaintiff’s employees where employees were hired for their value 

to the hiring company, not to harm plaintiff). 

A cause of action for civil conspiracy requires that the plaintiff prove that 

the defendant combined or agreed with one or more other parties to do an 

unlawful act or to do a lawful act by unlawful means or for an unlawful 

purpose. Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. 2008); Goldstein 

v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004). Proof of malice, 
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that the defendant had an intent to injure, is an essential element of a 

conspiracy claim. Skipworth v. Lead Industries Association, Inc., 690 

A.2d 169, 174 (Pa. 1997); Lackner v. Glosser, 892 A.2d 21, 35 (Pa. Super.

2006); Grose v. Procter & Gamble Paper Products, 866 A.2d 437, 440 

(Pa. Super. 2005); Goldstein, 854 A.2d at 590. 

Here, the evidence with respect to FN Bank and FNB showed that these 

defendants approved the hiring of Turk and as many as seven other 

employees of Plaintiff. Plaintiff’s Exs. 57, 60 (3/24/17 email), 61 at 2-3, 147, 

149, 151, 152, 159, 164, 168, 170, 171, 172, 174; N.T. Trial, 12/14/18, at 

226-28, 244-54; N.T. Trial, 12/17/18, at 95-96. In contrast to the evidence 

against FNIA, however, the record at trial was devoid of any evidence that FN 

Bank or FNB was aware of the effect on Plaintiff or considered that as a reason 

for hiring the employees in question. No FN Bank or FNB employees testified 

at trial and no witness testified that either of these defendants expressed or 

knew of an intent to cripple Plaintiff’s business. While there was evidence in 

communications between FNIA President Martin Muchnok and employees of 

Plaintiff that Muchnok had an intent to harm Plaintiff’s ability to service its 

customers and knew that Turk was soliciting customers of Plaintiff, no FN Bank 

or FNB employee was a party to any of those communications. See Plaintiff’s 

Exs. 54, 61 at 1, 62, 104. To the contrary, the documents to which FN Bank 

and FNB were parties showed only that the approval was based on the value 

of the employees to FNIA; these documents refer to the desirability of 
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expanding FNIA in the Erie, Pennsylvania area and project that hiring the 

employees would be profitable for FNIA. Plaintiff’s Exs. 57, 147, 149, 151, 

159, 170. The fact that FN Bank and FNB approved the hiring of a significant 

number of Plaintiff’s employees and did so for the purpose of quickly 

expanding FNIA’s geographical reach is neither tortious or sufficient to support 

an inference of intent to destroy a competitor. Albee Homes, Inc., 207 A.2d 

at 771; Boyce, 580 A.2d at 1390; Ozburn-Hessey II, 40 F.Supp.3d at 453 

(“coordinated lift-out” of employees of a competitor hired for their value to 

the company does not constitute unfair competition). 

Nor was there any evidence that FN Bank or FNB sought to have the 

employees from Plaintiff breach their non-solicitation agreements. The 

evidence showed that after FN Bank and FNB were informed of the nonsolicitation agreements, their analysis of the profitability of hiring the 

employees was based on an assumption that none of Plaintiff’s customers 

would transfer their business to FNIA during the one-year non-solicitation 

period under those agreements. Plaintiff’s Exs. 147, 159, 170. Neither FN 

Bank nor FNB was a party to Muchnok’s and Turk’s communications 

concerning moving customers of Plaintiff to FNIA. See Plaintiff’s Exs. 61 at 1, 

62. 

There was evidence that FN Bank and FNB were aware that FNIA was 

offering to buy a book of business from Plaintiff and approved the making of 

such an offer. Plaintiff’s Ex. 172; N.T. Trial, 12/14/18, at 264-65; N.T. Trial, 
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12/17/18, at 95-96. That fact, however, does not show an intent to injure 

Plaintiff. Plaintiff’s president admitted that it is a common and standard 

practice in the industry for a competitor who hires an insurance agency 

employee who has built up a book of business to offer to purchase that book 

of business. N.T. Trial, 12/11/18, at 115-16. 

Neither Plaintiff nor the majority point to any evidence from which the 

jury could find that FN Bank or FNB had an intent to harm Plaintiff rather than 

a permissible intent to obtain valuable employees for FNIA or that either of 

these companies intended to induce Plaintiff’s departing employees to violate 

their non-solicitation agreements. Rather, the evidence that the majority cites 

as supporting the verdict against FN Bank and FNB simply shows that these 

companies approved FNIA’s hiring of a group of Plaintiff’s employees that they 

believed would be valuable to FNIA and would expand its business and that 

they approved FNIA offering to purchase a book of business from Plaintiff. 

Neither of these facts constitutes tortious conduct or is sufficient to show the 

tortious intent required for unfair competition and conspiracy. 

The majority also concludes that the judgment against FN Bank can be 

sustained on the basis of vicarious liability for FNIA President Muchnok’s 

actions. Majority Opinion at 30-33. This basis for affirming the judgment fails 

for two reasons. First, it was not a theory that was asserted and presented 

to the jury at trial. Plaintiff did not base its claims against FN Bank and FNB 

on any contention that these defendants were vicariously liable for FNIA’s or
J-A12005-20

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Muchnok’s actions. Rather, Plaintiff made it clear at trial that its claims against 

FN Bank and FNB were based solely on these companies’ own acts and 

knowledge. N.T. Trial, 12/18/18, at 34-35. The jury was instructed that it 

“must decide whether punitive damages are to be assessed against each 

Defendant by that Defendant’s conduct alone.” N.T. Trial, 12/20/18, at 172. 

While the jury was instructed that a principal is liable for the acts of its agent, 

it was not instructed that an individual may be an agent of more than one 

principal. Id. at 150-54.1 

Secondly, even if the jury had found that FN Bank was vicariously liable 

on the ground that Muchnok was its agent, that could not support its additional 

$500,000 punitive damage awards against FN Bank and FNB. Vicarious 

liability for an agent’s acts and the agent’s liability are a single tort for which 

both defendants are liable, not separate claims. Mamalis v. Atlas Van 

Lines, Inc., 560 A.2d 1380, 1383 (Pa. 1989); Forbes v. King Shooters 

Supply, 230 A.3d 1181, 1189 n.11 (Pa. Super. 2020). “A claim of vicarious 

liability is inseparable from the claim against the agent since any cause of 

action is based on the acts of only one tortfeasor.” Mamalis, 560 A.2d at

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1 To the extent that the majority is holding that FN Bank or FNB can be liable 

not because Muchnok was their agent but because a conspirator is liable for 

co-conspirators’ actions, see Majority Opinion at 27, 32-33, that cannot 

support the verdicts against FN Bank and FNB because Plaintiff failed to prove 

an essential element of a cause of action for conspiracy, that FN Bank and

FNB had malice, an intent to injure Plaintiff. Skipworth, 690 A.2d at 174; 

Lackner, 892 A.2d at 35.
J-A12005-20

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1383. Thus, if the jury’s verdicts against FN Bank and FNB were based on 

vicarious liability for Muchnok’s conduct as their agent, the verdict could give 

rise to only a single, joint punitive damages award, not multiple cumulative 

awards, and the $500,000 punitive damages awards against FN Bank and FNB 

could not be added to and collected in addition to the $1.5 million punitive 

damages award against FNIA for the same conduct by Muchnok. 

Because the evidence at trial showed only that FN Bank and FNB 

approved FNIA’s hiring of employees that it considered to be economically 

valuable to FNIA and FNIA’s offer to purchase a book of business from Plaintiff 

and Plaintiff introduced no evidence from which the jury could infer that FN 

Bank or FNB had an intent to harm Plaintiff, rather than benefit FNIA, Plaintiff 

did not prove the essential elements of its conspiracy and unfair competition 

claims against FN Bank and FNB. Lackner, 892 A.2d at 35; Boyce, 580 A.2d 

at 1390. Accordingly, FN Bank and FNB were entitled to JNOV in their favor 

on these claims and the punitive damages awards against these defendants 

on these claims must be set aside. 

The Attorney Fees Award Against Turk

The trial court held that Plaintiff was entitled to attorney fees against 

Turk under Turk’s 2017 non-solicitation agreement and awarded Plaintiff a 

total of $361,093.74, consisting of $244,579.00 in attorney fees incurred by 

Plaintiff in the injunction proceedings and $116,514.74 in attorney fees 
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incurred by Plaintiff in litigating its damages claims. Trial Court Opinion, 

4/29/19 at 28. 

Turk challenges this award of attorney fees and costs on two grounds: 

(1) that his non-solicitation agreement only permits Plaintiff to recover 

attorney fees incurred in the injunction proceedings; and (2) that the trial 

court erred in the percentages of Plaintiff’s attorney fees and costs that it 

awarded against Turk. While I join in the majority’s rejection of the latter 

argument and its affirmance of the award of attorney fees for the injunction 

proceedings, I would reverse the $116,514.74 award of attorney fees incurred 

by Plaintiff in litigating its damages claims. 

As the majority correctly states, the issue of whether attorney fees in 

the damages litigation are recoverable under Turk’s non-solicitation 

agreement is a question of law over which our review is plenary and de novo. 

Under Pennsylvania law, litigants cannot recover their attorney fees from an 

opposing party unless there is an express statutory authorization for award of 

attorney fees, a clear agreement by the parties that attorney fees may be 

recovered, or some other established exception. Trizechahn Gateway LLC 

v. Titus, 976 A.2d 474, 482-83 (Pa. 2009); Lavelle v. Koch, 617 A.2d 319, 

323 (Pa. 1992); Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009). The 

burden is on the party seeking attorney fees to show that it has the right to 

recover such fees. Petow v. Warehime, 996 A.2d 1083, 1087 (Pa. Super. 

2010); Gall v. Crawford, 982 A.2d 541, 549 (Pa. Super. 2009). 
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Section 8(d) of Turk’s 2017 non-solicitation agreement contained the 

following provisions concerning remedies for breach of the agreement:

(i) I acknowledge that any violation of this Agreement may result 

in immediate termination of my Relationship with [Plaintiff] and 

may subject me to a civil action for money damages by [Plaintiff] 

for any and all losses sustained as a result of the unauthorized 

disclosure of any Confidential Information or other actions which 

breach any provision of this Agreement or any covenants 

contained herein. 

 

(ii) I recognize that [Plaintiff’s] remedies at law may be 

inadequate and that [Plaintiff] shall have the right to seek 

injunctive relief in addition to any other remedy available to it. If 

I breach this Agreement or any of the covenants contained herein, 

[Plaintiff] has the right to see[k] issuance of a court-ordered 

injunction as well as any and all other remedies and damages, to 

compel the enforcement of the terms stated herein. This provision 

with respect to injunctive relief shall not, however, diminish the 

right of [Plaintiff] to claim and recover damages in addition to 

injunctive relief. If court action is necessary to enforce this 

Agreement, I shall be responsible for [Plaintiff’s] 

reasonable attorney’s fees and costs; provided that 

[Plaintiff] prevails i[n] said enforcement action as 

determined by the appropriate court or tribunal before which 

matter is pending.

Plaintiff’s Ex. 26 at § 8(d) (emphasis added). 

Thus, the parties’ agreement here clearly permitted recovery of attorney 

fees, but only for “court action ... to enforce this Agreement.” This language 

is not broad and does not expressly provide that Plaintiff can recover attorney 

fees in any action brought under the agreement or for breach of the 

agreement. Compare Bayne, 965 A.2d at 269 (parties’ agreement provided 

for attorney fees “in an action brought for the recovery of rent or other 

money’s [sic] due or to become due under this lease or by reason of a breach 
J-A12005-20

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of any covenant herein contained or for the recovery of the possession of said 

premises, or to compel the performance of anything agreed to be done herein, 

or to recover for damages to said property, or to enjoin any act contrary to 

the provisions hereof”); Profit Wize Marketing v. Wiest, 812 A.2d 1270, 

1272 (Pa. Super. 2002) (“if Employer prevails in any suit or action under this 

Agreement, Employee shall reimburse Employer for its expenses incurred in 

connection with such suit or action, including without limitation, its attorney’s 

fees and costs”) (emphasis omitted).

The injunction proceedings were unquestionably “court action ... to 

enforce this Agreement;” the issue is whether the litigation that sought only 

to recover damages, rather than to compel compliance with the agreement, 

constitutes enforcement of the agreement. I conclude that it does not. 

The word “enforce” indicates an intent to allow attorney fees in 

proceedings brought to compel Turk to comply with the non-solicitation 

agreement and the obligations that it imposed, not to recover damages for a 

breach. See Merriam-Webster’s Collegiate Dictionary 413 (11th Ed. 

2003) (defining “enforce” as “constrain,” “compel,” and “carry out 

effectively”). An action for payment of money falls within a provision for 

attorney fees in an action to enforce a contract where the money sought 

consists of payments that the defendant is required to make under the 

contract. See Trizechahn Gateway LLC, 976 A.2d at 477, 482-84 (attorney 

fees in action for moneys due under lease were recoverable under agreement 
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“to pay a reasonable attorney’s fee if legal action is required to enforce 

performance by Tenant of any condition, obligation or requirement 

hereunder”). Here, however, the relief that Plaintiff sought in the damages 

litigation consisted of recovering compensation for harm caused by the breach 

of the agreement, not the compelling of payments required under the 

agreement or the compelling of compliance with any obligation under the 

agreement.

Moreover, the attorney fees provision is set forth in the section of the 

non-solicitation agreement, Section § 8(d)(ii), providing for injunctive relief, 

not the section that set forth Plaintiff’s right to bring an action for damages, 

Section § 8(d)(i). This fact would not compel the conclusion that attorney 

fees are limited to actions for injunctive relief if the language of the attorney 

fees provision clearly encompassed actions for damages. Trizechahn 

Gateway LLC, 976 A.2d at 482-84. The language “court action ... to enforce 

this Agreement,” however, does not clearly refer to damages actions, as 

opposed to enforcement of obligations under the agreement. The placement 

of the attorney fees provision in the section of the agreement authorizing 

injunctive relief to enforce compliance with the agreement therefore further 

suggests that the attorney fees provision was not intended as an authorization 

of attorney fees incurred in recovering damages for harm caused by a breach 

of the agreement. 
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Neither of the cases relied on by the majority, McMullen v. Kutz, 985 

A.2d 769 (Pa. 2009) and DiLucente Corp. v. Pennsylvania Roofing Co., 

655 A.2d 1035 (Pa. Super. 1995), supports its conclusion that the attorney 

fees provision in the 2017 non-solicitation agreement encompasses Plaintiff’s 

attorney fees in the damages litigation. In McMullen, the attorney fees that 

were awarded under a provision that “the party breaching this contract shall 

be responsible for payment of legal fees and costs incurred by the other in 

enforcing their rights under this Agreement” were incurred in obtaining 

payments that were owed the agreement, not consequential damages caused 

by a past breach of the agreement. 985 A.2d at 771-72. Thus, as in 

Trizechahn Gateway LLC, the proceeding in which the fees were incurred 

was an enforcement of a payment obligation under the contract and therefore 

fell within the attorney fees provision. DiLucente Corp. did not involve any 

contractual provision for payment of attorney fees and did not hold that a 

consequential damages claim constitutes an action to enforce a contract. 

Rather, it involved the issue of injunctive relief to enjoin an arbitration and did 

not discuss what constitutes enforcement of a contract at all. 

Because it was Plaintiff’s burden to show a clear agreement to pay the 

attorney fees that it sought and it showed only a clear agreement to pay 

attorney fees incurred in litigation to enforce compliance with Turk’s 

obligations under the non-solicitation agreement, the trial court’s award of 
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$116,514.74 in attorney fees incurred by Plaintiff in pursuing its damages 

claims must be set aside.

Plaintiff’s Tort Claims Against Turk

The sole basis for Turk’s claim that he is entitled to JNOV is the argument 

that Plaintiff’s breach of fiduciary duty and civil conspiracy claims against him 

are barred by the gist of the action doctrine. I agree with the majority that 

this argument fails, but for reasons different than those set forth by the 

majority. 

As the majority states, the gist of the action doctrine prohibits a plaintiff 

from suing and recovering in tort on claims that are in fact breach of contract 

claims. B.G. Balmer & Co. v. Frank Crystal & Co., 148 A.3d 454, 468 (Pa.

Super. 2016); Knight v. Springfield Hyundai, 81 A.3d 940, 950 (Pa. Super. 

2013); see also Bruno v. Erie Insurance Co., 106 A.3d 48, 60 (Pa. 2014). 

The existence of a contract between the parties, however, does not make all

claims for damages breach of contract claims. Bruno, 106 A.3d at 69; B.G. 

Balmer & Co., 148 A.3d at 469. The nature of the duty that the plaintiff 

alleges that the defendant breached is the critical factor in determining 

whether a tort claim is truly a breach of contract claim and therefore barred 

by the gist of the action doctrine. Bruno, 106 A.3d at 68. 

The majority holds that the gist of the action does not apply because 

some of Turk’s conduct on which Plaintiff’s claims for breach of fiduciary duty

and conspiracy were based occurred before Turk’s 2017 non-solicitation 
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agreement and because his solicitation of a prospective employee of Plaintiff 

did not violate the 2017 non-solicitation agreement. I do not agree that tort 

judgment against Turk can be upheld on this basis. 

Contrary to the majority’s statements, the record demonstrates that all 

the breaches of fiduciary duty and conspiracy claims that Plaintiff alleged were 

violations of provisions of Turk’s non-solicitation agreements. Before he 

entered into the 2017 non-solicitation agreement, Turk was already subject 

to a 2005 non-solicitation agreement and Plaintiff contended at trial that Turk 

was bound by the 2005 agreement. That 2005 agreement expressly 

prohibited the solicitation of employees and the disclosure of Plaintiff’s 

customer lists and commission and fee information during Turk’s employment. 

Plaintiff’s Ex. 3 ¶¶(2), (3). With respect to Turk’s later conduct, the solicitation 

of a prospective employee of Plaintiff violated Section 5 of the 2017 nonsolicitation agreement, which provided:

During my Relationship with [Plaintiff], I will not, alone or with 

others, directly or indirectly, work on, plan, prepare for, organize 

or engage in any consulting, employment or other business 

activity (whether or not for compensation) that is competitive with 

the business in which [Plaintiff] is involved or may hereafter 

become involved, nor will I engage in any other activity that 

conflicts with my obligations to [Plaintiff].

 Plaintiff’s Ex. 26 § 5. 

The fact that the tort claims were based on the same conduct that also 

breached the parties’ contracts does not, however, mandate the conclusion 

that they are barred by the gist of the action doctrine. Rather, the critical 
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issue is whether the tort claims are based on a violation of a social duty 

imposed by the law of torts that exists independent of the terms of the parties’ 

contract. Bruno, 106 A.3d at 68. Thus, where a tort claim is based on a 

fiduciary duty that exists by virtue of the defendant’s employment separate 

and apart from the terms of any contract between the parties, it is not barred 

even though the same conduct also constitutes a breach of an express 

contractual obligation. Teva Pharmaceuticals USA, Inc. v. Sandhu, 291 

F.Supp.3d 659, 678 (E.D.Pa. 2018) (breach of fiduciary duty claim for 

disclosing confidential information to competitor not barred by gist of the 

action doctrine even though same conduct violated employee’s confidentiality 

agreement).

2

 

Here, the breach of fiduciary duty and conspiracy claims against Turk

were premised on tort law duties that arose out of his position with Plaintiff, 

not on the provisions of his non-solicitation agreements. An employee owes 

his employer a duty of loyalty not to act during his employment for a 

competitor of his employer, even if he is not under any non-competition or 

non-solicitation agreement. AmQuip Crane Rental, LLC v. Crane & Rig 

Services, LLC, 199 A.3d 904, 913-15 (Pa. Super. 2018); Reading Radio, 

Inc., 833 A.2d at 204, 211. Turk, as Plaintiff’s Senior Vice President 

____________________________________________

2

 Although federal court decisions are not binding on this Court, we may rely 

on them for persuasive value. AmQuip Crane Rental, LLC v. Crane & Rig 

Services, LLC, 199 A.3d 904, 918 n.4 (Pa. Super. 2018). 
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Property/Casualty, therefore owed Plaintiff a duty to not assist Plaintiff’s 

competitor, FNIA. Turk’s solicitation of employees and customers to leave 

Plaintiff and go to FNIA and his work with FNIA to move the employees and 

customers from Plaintiff to FNIA and time the employee departures to 

maximize harm to Plaintiff violated this tort law duty. AmQuip Crane Rental, 

LLC, 199 A.3d at 913-15; Reading Radio, Inc., 833 A.2d at 211. 

Because Plaintiff’s breach of fiduciary duty and civil conspiracy claims 

against Turk were based on duties that arose under tort law and not from the 

provisions of his non-solicitation agreements, I would therefore hold that 

those claims are not barred by the gist of the action doctrine even though they 

were also breaches of those contracts. Teva Pharmaceuticals USA, Inc., 

291 F.Supp.3d at 678.

Constitutionality of the Punitive Damages Award

Appellants argue that the $2.8 million in punitive damages awarded by 

the jury is unconstitutionally disproportionate to Plaintiff’s compensatory 

damages under State Farm Mutual Automobile Insurance Co. v. 

Campbell, 538 U.S. 408 (2003), because it is over 10 times the amount of 

the $250,000 in compensatory damages that the jury found that Plaintiff 

suffered. In light of my conclusion that FN Bank and FNB are entitled to JNOV 

on all claims and that only the $300,000 punitive damage award against Turk 

and $1.5 million punitive damage award against FNIA should remain, the ratio 

of the total legally valid punitive damages awards, $1.8 million, to the 
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$250,000 in compensatory damages is 7.2 to 1, significantly less than 10 

times the compensatory award. I therefore do not find it necessary to consider 

the validity of a $2.8 million punitive damages award in this case or to address 

the majority’s analysis of whether the punitive damages awards may be 

separately analyzed for each defendant without considering their cumulative 

effect and do not join in the majority’s conclusions on these issues.

Appellants also contend that any ratio of punitive to compensatory 

damages above 2 to 1 is constitutionally excessive. That argument is without 

merit. In State Farm, the Supreme Court stated that “an award of more than 

four times the amount of compensatory damages might be close to the line of 

constitutional impropriety” and concluded that where the compensatory award 

was $1 million and contained a noneconomic, punitive element, analysis of 

the due process considerations “likely would justify a punitive damages award 

at or near the amount of compensatory damages.” 538 U.S. at 425, 429. The 

Court, however, declined to impose a specific ratio that punitive damages 

cannot exceed and held that “because there are no rigid benchmarks that a 

punitive damages award may not surpass, ratios greater than those we have 

previously upheld may comport with due process where ‘a particularly 

egregious act has resulted in only a small amount of economic damages.’” Id.

at 425 (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559 

(1996)).
J-A12005-20

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Here, the compensatory award consisted of solely economic damages 

with no punitive component. Moreover, the compensatory damages that the 

jury found that Plaintiff suffered were low in proportion to the harm that 

Plaintiff showed that FNIA and Turk sought to inflict on Plaintiff. While Plaintiff

ultimately suffered only $250,000 in damages, the amount of business that 

FNIA and Turk sought to make Plaintiff lose was at least $1.3 million. N.T. 

Trial, 12/11/18, at 51. The amount of the total punitive award, $1.8 million, 

while high in comparison to Plaintiff’s actual loss, is not extraordinary in 

comparison to the harm and gain that FNIA and Turk sought from their

conduct. Given these facts, a 7.2 to 1 ratio of punitive damages to 

compensatory damages is not unconstitutional under the decisions of the 

United States Supreme Court or our courts. See Empire Trucking Co. v. 

Reading Anthracite Coal Co., 71 A.3d 923, 938-39 & n.3 (Pa. Super. 2013) 

($1.5 million award in business tort case was not unconstitutionally 

disproportionate to $271,000 compensatory damages award).

For the foregoing reasons, I would vacate Plaintiff’s judgments against 

FN Bank and FNB and the trial court’s award of attorney fees against Turk 

insofar as it included attorney fees incurred by Plaintiff in its litigation of its 

damages claims and would affirm the breach of fiduciary duty judgment 

against Turk and the punitive damages awards against Turk and FNIA solely 

on the grounds discussed above.