J. A17031/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BOOMERANG RECOVERIES, LLC, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

:

GUY CARPENTER & COMPANY, LLC 

AND MARSH & McLENNAN 

COMPANIES, INC.

:

:

:

No. 2557 EDA 2018

Appeal from the Judgment Entered August 16, 2018,

in the Court of Common Pleas of Philadelphia County

Civil Division at No. December Term, 2014, No. 1381

BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 25, 2019

Boomerang Recoveries, LLC appeals from the August 16, 2018 

judgment entered in the Court of Common Pleas of Philadelphia County in

favor of Guy Carpenter & Company, LLC (“GC”),

1 after the trial court denied

appellant’s motion to remove the nonsuit. We affirm.

The trial court set forth the factual history as follows:

GC has served as [Farmers Insurance Company of 

Flemington’s (“Farmers”)] reinsurance broker for a 

number of years, working on behalf of Farmers to 

procure catastrophic loss reinsurance policies. In 

 

1 We note that Marsh & McLennan Companies, Inc. (“Marsh & McLennan”) are 

not a party to this appeal. The record reveals that in an order entered October 

4, 2016, the trial court bifurcated appellant’s claim of piercing the corporate 

veil (alter ego) against Marsh & McLennan from appellant’s claims against GC. 

(See trial court order, 10/3/16.)
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exchange, Farmers pays GC a brokerage fee equal to 

10% of its reinsurance premium payments. 

In early June 2013, Farmers hired [appellant] to 

conduct a review of its reinsurance premium 

payments for the years 2003 to 2013 in an effort to 

discover whether it had overpaid on its reinsurance 

premiums. Specifically, [appellant] was to provide 

“reinsurance review, recast, and recovery 

submissions to recover additional dollars for Farmers

. . . .” For its efforts, [appellant] would receive 35% 

of any amount “actually collected” by Farmers 

“through the recovery submission process.”

[Appellant] conducted its review and submitted its 

findings through two reports delivered to Farmers on 

January 6, 2014 and January 15, 2014, respectively. 

A corrected report for the years 2003 to 2007 was 

sent January 23, 2014. The reports collectively 

explained that Farmers had overpaid its reinsurance 

providers a sum of $2,246,014.65 during the relevant 

time period.

Upon receiving these reports, Farmers’ controller, 

Michele Lukens (“Lukens”), forwarded them to 

David Thomas (“Thomas”) and Eric Yeager 

(“Yeager”), the Managing Director and Senior Vice 

President of GC, respectively. Lukens asked Thomas 

and Yeager to review [appellant’s] findings and 

contact [appellant] should they have any questions. 

Notably, they were not asked to submit [appellant’s] 

findings to Farmers’ reinsurance providers for 

recovery.

On January 24, 2014, Thomas and Yeager met with 

Lukens and Farmers’ CEO, Scott St. Angel 

(“St. Angel”), to conduct a “post renewal debrief.” 

Also on the agenda was a review of [appellant’s] 

reports. [Appellant] was not present at the meeting, 

though it is worth noting that [appellant] was advised 

of the meeting in a January 22, 2014 email from 

Yeager.
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In discussing [appellant’s] reports, Thomas and 

Yeager pointed out two areas where [appellant]

discovered errors in how GC had been calculating 

Farmers’ reinsurance premiums – and admitted it 

should correct for those errors. GC did not, however, 

agree with how [appellant] calculated Farmers’

Burglary, Robbery, and Theft (“BRT”) deduction, and 

that disagreement has been the linchpin in the parties’

instant dispute.

GC explained [appellant’s] method for calculating 

Farmers’ BRT deduction (“the Boomerang method”) 

was different from the method GC – and thus, Farmers 

and its reinsurers – had been following in the previous 

years (“the GC method”). GC explained how it and 

[appellant] each calculated the BRT deduction by 

showing those calculations in a side-by-side chart 

using Farmers’ 2013 reinsurance payments as an

example. That chart revealed the Boomerang method 

would result in a higher possible recovery for Farmers 

than the GC method – that is, if the reinsurers 

ultimately agreed with [appellant’s] calculations.

During their explanation of the two methods, neither 

Thomas nor Yeager commented on which method 

Farmers should use. They simply presented a 

side-by-side comparison of the two methods and 

allowed Farmers to decide which method to follow. At

no point in time did they describe [appellant’s]

method as incorrect, unethical, or improper.

St. Angel testified he was not “led to believe anything”

and that he formed his own opinion and made his own 

decision to disregard the Boomerang method. 

Similarly, Lukens swore in her deposition that GC 

simply explained [appellant’s] interpretation of BRT 

and did not disparage [appellant’s] calculation in any

way.

Farmers ultimately decided [to] follow the GC method 

for calculating BRT. St. Angel’s rationale was simple 

– “if it ain’t broke, don’t fix it.” Lukens shared 

St. Angel’s rationale, as she was concerned that 

Farmers’ reinsurers would look to conduct an audit on 
J. A17031/19

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all of Farmers’ reinsurance premiums if Farmers 

began using a different BRT calculation method, such 

as the one [appellant] proposed. Notably, Lukens’

concern about an audit existed prior to the 

January 24, 2014 meeting with GC, as the risk of an 

audit was a question she raised to GC without 

prompting.

After deciding to use the GC method to calculate BRT, 

Farmers requested that GC conduct its own review of 

Farmers’ reinsurance premium payments from 2003 

to 2013 using the GC method. That review took place 

between January and June 2014.

In May 2014, Farmers informed [appellant] it was not 

following [appellant’s] calculations and explained the 

reasoning behind its decision. [Appellant] attempted 

to persuade Farmers the GC method was incorrect in 

a detailed email, but Farmers did not alter its decision.

The relationship between Farmers and [appellant]

ended unceremoniously in the summer of 2014. In 

July 2014, following a request for payment from 

[appellant], St. Angel sent an email to [appellant] 

further reiterating Farmers’ position regarding 

[appellant’s] calculations. In that email, St. Angel 

explained his belief that [appellant’s] calculations 

were “one-sided[,”] taking into account only those 

factors that benefitted Farmers, rather than “taking 

into account all factors.” He further explained that 

Farmers “values its reputation for maintaining the 

highest ethical standards and Farmers has no 

intention of pursuing any questionable recoveries or 

sums not owed.”

[Appellant] contends these beliefs expressed by 

St. Angel in July 2014 were improperly influenced by 

actions taken and statements made by GC during the 

January 24, 2014 meeting. This suit followed.

Trial court opinion, 8/2/18 at 2-6 (citations to the record and original brackets

omitted).
J. A17031/19

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The record reveals that appellant initiated an action against GC and 

Marsh & McLennan on December 9, 2014. Appellant amended its complaint 

numerous times during the course of litigation. In its seventh amended 

complaint (“complaint”), appellant claimed, inter alia, tortious interference 

by GC with the contractual relationship appellant had with Farmers. In the 

complaint, appellant averred, inter alia, that as a result of GC’s alleged 

tortious interference, appellant was denied fees owed by Farmers based upon 

two reinsurance review findings reports submitted to Farmers in January 2014 

and a supplemental findings report submitted to Farmers in June 2015. (See

appellant’s seventh amended complaint, 5/9/2016 at 38-44.)

The trial court granted GC’s motion for partial summary judgment and 

dismissed the portion of appellant’s tortious interference claim based upon the

June 2015 supplemental findings report. The trial court also granted 

GC’s motion in limine to exclude evidence relating to non-party Co-Operative 

Insurance Company of Vermont (“Co-Operative Insurance”).

During the jury trial, the trial court granted GC’s motion for compulsory 

nonsuit made pursuant to Pa.R.Civ.P. 230.1 and entered the nonsuit in favor 

of GC on June 13, 2018. Appellant filed a timely motion to remove the nonsuit 

pursuant to Rule 227.1(a)(3), which the trial court denied. On August 16, 

2018, upon appellant’s filing of a praecipe, judgment in favor of GC was 

entered.
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Appellant filed a timely notice of appeal. The trial court did not order 

appellant to file a concise statement of errors complained of on appeal. 

However, the trial court filed a Rule 1925(a) opinion relying on its August 2, 

2018 order and opinion denying appellant’s motion to remove the nonsuit.

Appellant raises the following issues for our review:

[1.] Did the [trial] court err by granting [GC’s] 

motion in limine when the proposed evidence 

was probative and not prejudicial?[

2]

[2.] Did the [trial] court err when it entered a 

nonsuit in favor of [GC] after the [trial] court 

ignored evidence, accepted [GC’s] 

interpretation of the evidence, and otherwise 

acted as a factfinder?

[3.] Did the [trial] court err by entering partial 

summary judgment in favor of [GC] after the 

[trial] court ignored the relevant law?

Appellant’s brief at 4.3

This court has defined the elements of tortious interference with a 

contractual relationship as follows:

(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 privilege or 

justification on the part of the defendant; and (4) the 

 

2 We note that although the trial court granted several of GC’s motions

in limine, a review of appellant’s brief demonstrates appellant only 

challenges the motion in limine to exclude evidence relating to Co-Operative 

Insurance.

3 For ease of disposition, we have re-ordered and re-numbered appellant’s 

issues.
J. A17031/19

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occasioning of actual damage as a result of 

defendant’s conduct.

Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923, 

933 (Pa.Super. 2013) (original brackets omitted), citing Restatement 

(Second) of Torts § 766 (1979). This court in Empire Trucking explained:

“The second element requires proof that the 

defendant acted ‘for the specific purpose of causing 

harm to the plaintiff.’” Phillips v. Selig, 959 A.2d 

420, 429 (Pa.Super.2008) []. The second element of 

this cause of action is closely intertwined with the third 

element, which requires a showing that [a]ppellant’s 

actions were not privileged. See Restatement 

(Second) of Torts § 766. Thus, in order to succeed in 

a cause of action for tortious interference with a 

contract, a plaintiff must prove not only that a 

defendant acted intentionally to harm the plaintiff, but 

also that those actions were improper. . . .

Courts require a showing of both harm and improper 

conduct because we have recognized that some 

intentionally harmful conduct is done “at least in part 

for the purpose of protecting some legitimate interest 

which conflicts with that of the plaintiff.” Phillips, 

959 A.2d at 430

Empire Trucking, 71 A.3d at 933-934.

Appellant first claims the trial court erred in granting the motion 

in limine to exclude evidence of an email from GC to Co-Operative Insurance.

When reviewing rulings on motion in limine, we apply 

the scope of review appropriate to the particular 

evidentiary matter. . . . In reviewing a challenge to 

the admissibility of evidence, we will only reverse a 

ruling by the trial court upon a showing that it abused 

its discretion or committed an error of law.
J. A17031/19

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Rachlin v Edmison, 813 A.2d 862, 869 (Pa.Super. 2002) (en banc) 

(citations omitted).

An abuse of discretion is not merely an error of 

judgment, but if in reaching a conclusion the law is 

overridden or misapplied, or the judgment exercised 

is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill-will, as shown by the evidence or 

the record, discretion is abused.

Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa.Super. 

1995), citing Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934).

Pennsylvania Rule of Evidence 401 states, “[e]vidence is relevant if: 

(a) it has any tendency to make a fact more or less probable than it would be 

without the evidence; and (b) the fact is of consequence in determining the 

action.” Pa.R.Evid. 401.

Here, appellant argues “[t]his evidence is relevant[] because it 

demonstrates that [the Boomerang method] . . . is accurate . . . .” 

(Appellant’s brief at 57.) However, whether the Boomerang method is 

accurate or is the better calculation method is not a fact of consequence in a

tortious interference action. As the trial court, in excluding the email 

evidence,4 explained, “[t]he superiority of either method, however, is frankly 

irrelevant to the determination of this court. Farmers’ decision to discontinue 

its relationship with [appellant] and to follow the GC method was not 

 

4 We note that the email stated, in part, “[GC has] reviewed the results of 

[appellant’s] analysis and generally speaking their approach to calculating 

subject premium is correct – from a contractual perspective . . . .” (See

appellant’s reproduced record, Vol. 2 at RR2238-2240.) 
J. A17031/19

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motivated by a belief the [GC] method was superior . . . .” (Trial court 

opinion, 8/2/18 at 7.)

We find no abuse of discretion or error of law in the trial court’s 

conclusion to exclude the email evidence. Appellant has failed to meet its 

burden, and therefore, appellant’s claim that the trial court erred in granting 

the motion in limine fails.

Appellant next claims the trial court erred in denying the motion to 

remove the nonsuit. When presented with a challenge to the order denying a 

motion to remove a nonsuit, this court will only reverse that order if there has 

been an abuse of discretion or an error of law. See Rachlin, 813 A.2d at 868.

A motion for compulsory non-suit allows a defendant 

to test the sufficiency of a plaintiff’s evidence and may 

be entered only in cases where it is clear that the 

plaintiff has not established a cause of action; in 

making this determination, the plaintiff must be given 

the benefit of all reasonable inferences arising from 

the evidence. When so viewed, a non-suit is properly 

entered if the plaintiff has not introduced sufficient 

evidence to establish the necessary elements to 

maintain a cause of action; it is the duty of the trial 

court to make this determination prior to the 

submission of the case to the jury. When this Court 

reviews the grant of a non-suit, we must resolve all 

conflicts in the evidence in favor of the party against 

whom the non-suit was entered.

A compulsory non-suit is proper only where the facts 

and circumstances compel the conclusion that the 

defendants are not liable upon the cause of action 

pleaded by the plaintiff.

Id. (emphasis, original brackets, and citations omitted).
J. A17031/19

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Here, the trial court concluded that appellant failed to establish the 

second and third prongs of its tortious interference claim.5 The trial court 

explained, “[a]t the close of [appellant’s] case, [the trial] court found 

[appellant] had not provided the jury with one witness, email, or document 

‘that remotely, inferentially, or circumstantially showed that [GC] had a 

specific intent to harm [appellant].’” (Trial court opinion, 8/2/18 at 1.) 

Furthermore, the trial court, in concluding GC’s actions with Farmers were 

proper and privileged, stated:

[Appellant] has not identified one lie or misleading 

statement made by GC to Farmers. GC conducted this 

review at the behest of Famers [sic] and the 

undisputed evidence showed GC conducted that 

review fully and honestly. An objective explanation of 

both methods was provided, which allowed Farmers 

to make an informed decision. There was simply no 

bad act presented that suggested GC acted outside 

“the rules of the game.”

Id. at 15.

Appellant baldly asserts that “telling Farmers to conceal what [GC] was 

doing from [appellant]; lying to Farmers about [appellant’s] work product; 

instructing Farmers to ignore [appellant’s] methodology; and performing a 

phony audit in order to make [appellant] look bad” was direct evidence of 

GC’s intent to harm appellant’s contractual relationship with Farmers. 

(Appellant’s brief at 32.) Appellant further alleged that GC’s conduct, which 

 

5 The record reveals that appellant has established the first prong by evidence 

of its contract with Farmers. (See appellant’s reproduced record, Vol. 1 at 

RR0153.)
J. A17031/19

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allegedly included among other things, failing to advise Farmers that the 

Boomerang method was acceptable, was deceptive and self-dealing and, 

therefore, not privileged and justified. (Id. at 38-44.) A review of the record, 

however, does not support appellant’s argument.

The record reveals that the president and CEO of Farmers, St. Angel, 

when asked why Farmers chose to continue using the GC method versus the 

Boomerang method for calculating Farmers’ BRT deduction, stated, “[t]he 

rationale behind my decision was more to the effect of if it ain’t broke, don’t 

fix it. If we’re not doing it incorrectly, there’s no point in changing.” (Notes 

of testimony, 6/5/18, morning session at 126.) Farmers had its own opinion 

on which method to use and made its own decision. (Id. at 124.) St. Angel

further explained that part of the decision was based upon Farmers’ own 

review in which it determined that appellant’s report only identified areas in 

which Farmers had over-paid premiums but failed to identify areas where 

Farmers may have under-paid premiums and would owe additional money. 

(Id. at 129.) GC explained to Farmers that both the Boomerang calculation 

method and the GC calculation method were correct and ultimately it was 

Farmers’ decision on how they wanted to proceed. (Id. at 37, 85-87.) 

When giving appellant the benefit of all reasonable inferences arising 

from the evidence, the evidence supports the trial court’s conclusion that 

appellant failed to present sufficient evidence to establish a tortious 

interference cause of action; specifically, appellant failed to demonstrate that
J. A17031/19

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GC acted improperly and with the intent to harm appellant’s contractual 

relationship with Farmers. We discern no error of law or abuse of discretion 

in the trial court’s denying of appellant’s motion to remove the nonsuit. 

Consequently, appellant’s claim lacks merit.

In its final issue, appellant claims the trial court erred in granting GC’s 

motion for partial summary judgment, thereby dismissing appellant’s cause of 

action for alleged tortious interference based upon appellant’s June 2015 

supplemental findings report submitted to Farmers. We need not address this 

issue in light of appellant’s failure to present sufficient evidence to establish a 

cause of action for tortious interference. Therefore, appellant’s claim the trial 

court erred in granting the motion for partial summary judgment is moot.

6

Judgment affirmed.

 

6 We note that even if appellant was able to present evidence to establish a 

claim for tortious interference based upon its January 2014 reinsurance review 

findings reports, the trial court did not err or commit an abuse of discretion in 

granting the motion for partial summary judgment. A review of the record 

demonstrates that Farmers terminated its contract with appellant in July 2014,

and therefore, the supplemental findings report appellant produced in June 

2015 cannot be the basis of a claim for damages in a tortious interference 

cause of action since no contractual relationship between appellant and 

Farmers existed at the time the report was produced. See Empire Trucking, 

71 A.3d at 933 (explaining that the first element of a tortious interference 

claim is the existence of a contractual relationship between the complainant 

and a third party).
J. A17031/19

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/25/19