J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

BRUCE L. WISHNEFSKY

Appellant

v.

FANELLI, EVANS AND PATEL, P.C. :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 335 MDA 2021

Appeal from the Order Entered January 29, 2021

In the Court of Common Pleas of Schuylkill County Civil Division at

No(s): S

- 628

- 2018

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: DECEMBER 7, 2021

Bruce L. Wishnefsky ( “ Wishnefsky ” ) appeals

, pro se

, from the Order

sustaining Preliminary Objections to Wishnefsky’s Fourth Amended Complaint,

filed by Fanelli, Evans and Patel, P.C. ( “ the Law Firm ” ), and dismissing

Wishnefsky ’ s Fourth Amended Complaint with prejudice. We affirm.

The parties have extensively litigated the fee dispute underlying the

instant appeal. In its most recent iteration, Wishnefsky’s Fourth Amended

Compla i nt averred the following. I n 1993, the Law Firm agreed to pay

Wishnefsky a forwarding fee for referring cases to the Law Firm. Fourth

Amended Complaint, 1/4/21, at ¶ 2. Under this arrangement, the Law Firm

would pay Wishnefsky one

- third of the compensation that the Law Firm

ultimately rec eived from the forwarded cases

. Id.J

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-

I n January 1994, Wishnefsky borrowed $3,000.00 from the Law Firm,

which “ would be subtracted from any forwarding fees due Wishnefsky from

[the Law Firm]. ” Id. at ¶ 13. However, Wishnefsky averred that , after the

La w Firm had accrued significant fees in matters forwarded by Wishnefsky,

the Law Firm refused to tender payment. Id. at ¶ 30. At that time, the Law

Firm advised Wishnefsky that “ payment of the forwarding fee might be

improper. ” Id.

Subsequently, Wishnefsky threatened to forward a potential new case

to another law firm. Id. at ¶ 31. T he Law Firm proposed that if Wishnefsky

became an employee of the Law Firm, he could recover his forwarding fee s

.

Id. at ¶ 37. T he Law Firm agreed to pay Wishnefsky a salary for six months,

based upon an annual salary of $70,000. Id. at ¶ 38. “ At the end of that

period[, Wishnefsky ’ s] services would be terminated [,] and he would receive

a $25,000.00 severance payment from [the Law Firm]. As part of this

compensation plan[, Wishnefsky] was to waive any claim he had to forwarding

fees. ” Id. In accordance with this plan, Wishnefsky was placed on the Law

Firm ’ s payroll in March 1996. Id. at ¶ 39. In April 1996, however, the Law

Firm reverted to its earlier arrangement with Wishnefsky

. Id. at ¶ 8.

In August 1998, the Law Firm received a fee of $150,000.00 as a result

of a matter that had been for warded by Wishnefsky. Id. at ¶ 58. However,

the Law Firm di d not pay Wishnefsky this or other forw arding fee s

. Id. at

¶ 59. Since that time, Wishnefsky has filed multiple

, unsuccessful legalJ

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- 3

-

actions to recover his forwarding fee s

. See Trial Court Opinion, 1/29/21, at

6

- 8 (summarizing the prior, unsuccessful actions filed by Wishnefsky)

.

In the pre sent action, Wishnefsky filed a pro se Complaint in the nature

of a bill in equity, alleging claims for unjust enrichment and restitution.

Ultimately, Wishnefsky filed his Fourth Amended Complaint on January 4,

2021 , while the Law Firm’s Preliminary Objections to the Third Amended

Complaint were pending before the trial court . On January 8, 2021, the Law

Firm filed Preliminary Objections in the nature of demurrers to Wish nefsky ’ s

Fourth Amended Complaint , based on, inter alia

, res judicata and the statute

of limitations. In an Opinion and Order filed on January 29, 2021, the trial

court sustained the Law Firm ’ s Preliminary Objections and dismissed

Wishnefsky’s Fourth Amen ded Complaint with prejudice

. 1 Trial Court Order,

1/29/21. On February 5, 2021, after the trial court had dismissed

W i s h nefsky ’ s Fourth Amended Complaint with prejudice, Wishnefsky filed

Preliminary Objections to the Law Firm ’ s Preliminary Objections to the Fourth

Amended Complaint.

Wishnefsky subsequently filed a timely pro se Notice of A ppeal of the

trial court ’ s January 29, 2021, Order, followed by a court

- ordered Pa.R.A.P.

_________________ __________ ______ ____ _______

1 The trial court dismissed the Law Firm’s Preliminary Objections to the Third

Amended Complaint as moot.J

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-

1925(b) Concise Statement of matters complained of on appeal. 2 On March

1, 2021, the trial court dismissed Wishnefsky ’ s February 5, 2021, Preliminary

Objections as moot, as the trial court already had entered its final Order in

the matter

. See Trial Court Order, 3/1/21.

Wishnefsky presents the following claims for our review:

I. Whether the trial court erred when it denied [Wishnefsky]

due process [,] when it ruled on [the Law Firm ’ s] Preliminary

Objections before it ruled on [Wishnefsky ’ s] Preliminary

Objections to Preliminary Objections[?]

II. Whether the trial court erred when it held that [Wishnefsky]

had a full and fair opportunity to litigate his claims, when it

did not identify any facts that support this conclusion[?]

III. Whether the trial court erred when it did not give any

consideration to the fact th at [Wishnefsky] had alleged in

his Complaint that in the case of SCF Consulting LLC v.

Barrack

, Rodos v. Bacine , 175 A.3d 273 ([Pa.] 2017)

[(“ SCF Consulting ”), ] the [Pennsylvania] Supreme Court

rejected Wishnefsky v. Riley & Fanelli, P.C. , 799 A.2d

827 (Pa . Super. 2002)[?]

IV. Whether the trial court erred when it held that the instant

matter appears to be a breach of contract claim, not an

unjust enrichment claim[?]

_________________ __________ ______ ____ _______

2 Our review of the record discloses that Wishnefsky ’ s was in prison at the

time he filed his Notice of Appeal. Wishnefsky’s Notice of Appeal is date

stamped March 1 0 , 2021. Wishnefsky appended to his docketing statement

a cash slip from prison authorities dated February 23, 2021. The Certificate

of Service attached to Wishnefsky ’ s Notice of Appeal bears the same date.

Because Wishnefsky is pro se and incarcerated

, we conclude that he is entitled

to the benefit of the “ prisoner mailbox rule. ” See Pa.R.A.P. 121(f) (providing

that filings by such litigants a re “ deemed filed as of the date of the prison

postmark or the date the filing was delivered to the prison authorities for

purposes of mailing, as documented by properly executed prisoner cash slip

or other reasonably verifiable evidence. ” ).J

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-

Brief for Appellant at 2 (some capitalization changed).

The applicable standard of review is as follows:

In determining whether the trial court properly sustained

preliminary objections

, the appellate court must examine the

averments in the complaint, together with the documents and

exhibits attached thereto, in order to evaluate the sufficiency of

the facts averred. The impetus of our inquiry is to determine the

legal sufficiency of th e complaint and whether the pleading would

permit recovery if ultimately proven. This Court will reverse the

trial court ’ s decision regarding preliminary objections only where

there has been an error of law or abuse of discretion. When

sustaining the tri al court ’ s ruling will result in the denial of claim

or a dismissal of suit, preliminary objections will be sustained only

where the case i[s] free and clear of doubt.

Weiley v. Albert Einstein Med. Center

, 51 A.3d 202, 208 (Pa. Super. 2012)

(citation omi tted).

Wishnefsky first claims that the trial court improperly ruled on the Law

Firm’s Preliminary Objections to the Fourth Amended Complaint, without

considering his own Preliminary Objections to the Law Firm’s Preliminary

Objections

. Brief for Appellant at 4. Wishnefsky points out that “ [p]rocedural

due process requires notice and the opportunity to be heard. ” Id. (citation

omitted). Wishnefsky asserts that he did not receive the Law Firm ’ s

Preliminary Objections until January 13

, 2021, and “ as a result, the [trial]

court issued it[]s January 29, 2021, Opinion and [O]rder before [he] was able

to respond. ” Id. at 4

- 5.

As this Court has explained,

[a] preliminary objection in the nature of a demurrer is properly

granted where the contested pleading is legally insufficient.

Preliminary objections in the nature of a demurrer require theJ

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-

court to resolve the issues solely on the basis of the pleadings; no

testimony or other evidence outside of the complaint may be

considere d to dispose of the legal issues presented by the

demurrer. All material facts set forth in the pleading and all

inferences reasonably deducible therefrom must be admitted as

true.

....

Thus, the question presented by the demurrer is whether, on the

facts averred, the law says with certainty that no recovery is

possible. Where a doubt exists as to whether a demurrer should

be sustained, this doubt should be resolved in favor of overruling

it.

Weiley

, 51 A.3d at 208

- 09 (citations and internal quotation ma rks omitted).

Our review of the record discloses that Wishnefsky ’ s Preliminary

Objections to the Law Firm ’ s Preliminary Objections to the Fourth Amended

Complaint averred two bases for relief: (a) t he Law Firm’s assertions that the

affirmative defenses of res judicata and the statute of limitations should have

been pled in new matter; and (b) the Law Firm ’ s demurrers are support ed by

multiple exhibits and

, therefore constitute impermissible “ speaking

demurrers. ” Plaintiff ’ s Preliminary Objections to Defendant ’ s Preliminary

Objections, 2/5/21, at 1.

Our review of the record further discloses that the trial court dismissed

Wishnefsky ’ s Fourth Amended Complaint as barred by the doctrine of res

judicata

. Trial Court Order, 1/29/21, at 1. Thus, t he trial court did not

consider the issue regarding the statute of limitations in its ruling. As such,

Wishnefsky ’ s challenge

, based upon the trial court’s ruling on the statute of

limitations Preliminary Objection

, is unsupported by the record

.J

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-

Regarding Wishnefsky ’ s P reliminary O bjection to t he Law Firm ’ s res

judicata P reliminary O bjection

, we observe the following. “ In ruling on a

demurrer, the [trial] court may consider only such matters as arise out of the

complaint itself; it cannot supply a fact missing in the complaint.” Hall v.

Goodman Co.

, 456 A.2d 1029, 1034

- 35 (Pa. Super. 1983) (citation omitted).

I n his Fourth Amended Complaint, Wishnefsky included a section

entitled “ IMPEDIMENTS TO AN EARLIER PROSECUTION OF THIS CLAIM. ”

Fourth Amended Complaint, 1/4/21, at 10. In this section, Wishnefsky

described his prior, unsuccessful causes of action for the same fees:

60. [Wishnefsky] filed suit in [the trial c]ourt against [the Law

Firm] alleging breach of contract in January of 1999, S

- 21

- 1999[.]

[Wishnefsky ’ s Fourth ] [A] mended [C] omplaint added counts for

fraud and breach of an employment agreement. [The Law Firm]

raised the defense of the contract being illegal [,] and the

Honorable Cyrus Palmer Dolbin [(“Judge Dolbin”)] overruled this

[P] reliminary [O] bjection

. On a [M] otion for summary judgment

raising the defense of in pari delicto

, Judge Dolbin granted [the

Law Firm ’ s M ]otion for summary judgment. On May 15, 2 012, the

Superior Court affirmed in a precedential [O]pinion, [ see

Wishnefsky ] 799 A.2d at 827, and [Wishnefsky ’ s P ]etition for

allowance of appeal was denied on November 13, 2002, [ see ] 813

A.2d 844 [(Pa. 2002), ] by the Supreme Court of Pennsylvania.

... .

64. During August of 1999, [Wishnefsky] filed suit against [the

Law Firm] in the U.S. District Court for the Middle District of

Pennsylvania, No. 4:99

- CV

- 1494, alleging Civil R[ICO] claims.

The District Cour t dismissed the case on initial screening, relying

primarily on R.P.C. [ sic ] 5.4. The Third Circuit affirmed, for similar

reasons[,] on August 13, 2002, [ see Wishnefsky v. Carroll

, 44

Fed Appx. 5 81 (3d Cir. 2002),] although [the federal judge

, ] who

wrote the opinion for the panel, said “ the fact that there was an

understanding appears to be beyond dispute. ” Id. at 582.J

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-

65. On May 25, 2001, [Wishnefsky ] filed a [C] omplaint with a

Civil R[ acketeering ] claim

... [and] for breach of a contract against

[the Law Firm] in [the trial court], No. S

- 1081

- 2001. [The Law

Firm] argued in pari delicto as a defense.

....

67(A). On October 20, 2014, the Honorable Jacquelin Russell

granted summary judgment to [the Law Firm] in the S

- 1081

- 2001[] case.

67(B)

. [Wishnefsky] filed a [N] otice of [A] ppeal

....

....

68. The Superior Court affirmed this decision in an unreported

memorandum[, Wishnefsky v. Evans

, 125 A.3d 446 (Pa. Super.

2015) (unpublished memorandum),] on July 10, 2015, and the

Supreme Court of Pennsylvania denied [Wishnefsky ’ s P ]etition for

allowance of appeal on December 7, 2015, [ see id.

, appeal

denied

, ] 128 A.3d 221 [(Pa. 2015)]

.

Fourth Amended Complaint, 1/4/21, at 10

- 11. These prior actions formed the

bas i s of the Law Firm ’ s res judicata P reliminary O bjection to the Fourth

Amended Complaint. Preliminary Objections to Fourth Amended Complaint,

1/8/21, ¶¶ 1

- 16.

In its January 29, 2021, Opinion, the trial court addressed whether the

Law Firm’s Preliminary Objection constituted a “speaking demurrer,” the same

claim raised in Wishnefsky’s Preliminary Objections to the Law Firm’ s

Preliminary Objections

. The trial court stated, “b ecause [Wishnefsky]

thoroughly documented his prior lawsuits in the Fourth Amended Complaint,

[the Law Firm] has properly raised the de fense of res judicata in its Preliminary

Objections

. ” Trial Court Opinion, 1/29/21, at 11.J

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-

Our review discloses that the trial court considered only the averments

in Wishnefsky’s Fourth Amended Complaint

, when it analyzed and sustained

the Law Firm’s res judicata Preliminary Objection. See Trial Court Opinion,

1/29/21, at 5

- 6. As such, we discern no due process violation requiring relief,

where the trial court fully had considered and resolved the objection raised by

Wishnefsky in his own Preliminary Objections. Consequently, Wishnefsky is

not entitled to relief on his first claim. See id.

In his second claim, Wishnefsky argues that the trial court erred when

it concluded that, in the prior causes of action, Wishnefsky had a full and fair

opportunity to litigate his claim

. Brief for Appellant at 5. Wishnefsky asserts

that the trial court improperly failed to identify any facts that support its

conclusion. Id. According to Wishnefsky

,

while the trial court an d appeals court proceedings in Wishnefsky

v. Riley & Fanelli, P.C.

, 799 A.2d 827 (Pa. Super. 2002), were

full and fair, the appeal in Wishnefsky v. Evans

... was not, since

the Memorandum Opinion was written by a biased judge, [The

Honorable Victor P.] Stabil e, who put great emphasis [on

Wishnefsky’s] irrelevant criminal case in his Memorandum

Opinion.

Brief for Appellant at 6. Wishnefsky also appears to claim that the death of

James J. Riley, Esquire (“Attorney Riley”), 3 whom Wishnefsky had sued in

_________________ __________ ______ ____ _______

3 Attorney Ril ey was a partner at the Law Firm, and a person with whom

Wishnefsky had negotiated his forwarding fee. Attorney Riley died while the

appeal was pending in Wishnefsky v. Evans

.J

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-

Wishnef

sky v. Evans

, had “deprived the court of jurisdiction.” Brief for

Appellant at 6.

Our review of the record discloses that Wishnefsky’s allegations of bias

by Judge Stabile are not supported by any evidence in the record. A n

appellate court may consider only those facts which have been duly certified

in the record on appeal. Ruspi v. Glatz , 69 A.3d 680, 691 (Pa. Super. 2013)

(citation o mitted). Those items that do not appear of record do not exist for

appellate purposes. Stumpf v. Nye , 950 A.2d 1032, 1041 (Pa. Super. 2008).

Consequently, we cannot grant Wishnefsky relief on this claim. See id.

Moreover, i n its Opinion, the trial court addressed Wishnefsky’s claim

and concluded that it lacks merit. See Trial Court Opinion, 1/29/21

, at 9

- 11

(summarizing the prior causes of action, and setting forth the law regarding

res judicata ), 11

- 16 (applying the law regarding res judicata and concluding

that the doctrine applies to bar Wishnefsky’s present cause of action). We

agree with the sound reas oning of the trial court, as set forth in its Opinion,

and affirm on this basis regarding Wishnefsky’s second claim. See id.

In his third claim

, Wishnefsky argues that the trial court erred in not

considering the fact that the Supreme Court has since rejected its holding in

Wishnefsky v. Riley & Fanelli, P.C.

, when it decided SCF Consulting

. Brief

for Appellant at 6. Wishnefsky asserts that in SCF Consulting

, a majority of

the justices concluded that fee

- sharing agreements between a lawyer and a

non

- lawyer are not per se unenforceable. Id. at 7. Wishnefsky argues that,J

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-

because the Supreme Court changed the law, the Superior Court’s prior

holding in Wishnefsk y v. Riley & Fanelli, P.C.

, no longer precludes litigation

on this issue. Id.

In its Opinion filed on May 3, 2021, the trial court addressed and

rejected this claim:

[W]e find [Wishnefsky’s ] argument to be without merit because

(1) we dismissed the instant cause of action on the basis of res

judicata

, and further explained that his unjust enrichment claim is

also barred because [Wishnefsky] failed to alternatively plead this

claim in his pre vious breach of contract litigation against [the Law

Firm] to recover the [] referral fees; and (2) the Pennsylvania

Supreme Court did not reject Wishnefsky v. Riley and Fanelli,

P.C.

, ... in SCF Consulting

... ; instead[,] the Pennsylvania

Supreme Court held that fee

- splitting agreements between non

attorneys, entered in violation of the Rules of Professional

Conduct, are not per se unenforceable. Our Supreme Court

further explained that the determination of wh ether such fee

splitting agreements are unenforceable may turn on factual

findings concerning the non

- law

- firm party’s “culpability, or the

degree thereof, relative to the alleged ethical violation.” SCF

Consulting, LLC

, ... 175 A.3d at 277.

Trial Court Op inion, 5/3/21, at 4

- 5. Thus, the trial court found no merit to

Wishnefsky’s claim. See id. We agree with the sound reasoning of the trial

court, as set forth above, and affirm on this basis as to Wishnefsky’s third

claim. See id.

In is fourth claim, W ishnefsky challenges the trial court’s determination

that W i shnefsky’s present claim is a breach of contract claim. Brief for

Appellant at 7. In support, Wishnefsky argues that, since he is asking for an

accounting and restitution, “remedies that are not available in a breach of

contract claim, the claim cannot be a breach of contract claim.” Id.J

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-

Wishnefsky again cites SCF Consulting as permitting an equity claim of

unjust enrichment, whe re a contract is unenforceable as against public policy.

Id.

In its Opinion

, the trial court addressed the applicability of the doctri ne

of res judicata and, in particular, the “identity of the cause of action.” See

Trial Court Opinion, 1/29/21, at 13

- 15. Although the trial court stated that

“the instant action appears to be a breach of contract claim, not an unjust

enrichment claim[,]” see id. at 14, the trial court further stated the following:

[It] is noted that, [Wishnefsky’s] unjust enrichment [FN] claim is

also barred because the Pennsylvania Superior Court has held that

breach of contra c t claims and unjust enrichment claims must be

pled alternatively. [Wishnefsky’s] unjust enrichment claim [s] and

breach of cont ract claims are alternate theories of recovering,

meaning they are different means to recover the same damages

or relief for a single harm arising from the same facts and

circumstances; therefore, [Wishnefsky] had an obligation to raise

these claims at the same time. Additionally, the doctrine of res

judicata will bar a party from raising issues in subsequent litigation

that could have been litigated in the first suit, but were not.

[FN] The Pennsylvania Superior Court has held that “theories of

breach o f contract and unjust enrichment must be pleaded

alternatively in order to allow recovery under the latter theory

where an express contract cannot be proven....” Lugo v. Farmers

Pride, Inc.

, ... 967 A.2d 963, 970 ([Pa. Super.] 2009) [(emphasis

in original)].

... “If a plaintiff fails to prove a cause of action on an

express contract, he may not then attempt to prove his case in

quasi

- contract, unless his complaint originally, or as amended[,]

sets forth a cause of action in quasi

- cont ract.” Birchwood Lakes

Community Ass’n, Inc. v. Comis

, ... 442 A.2d 304, 308 ([Pa.

Super.] 1982).J

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-

Id. at 14

- 15 ( one citation omitted, footnote and emphasis in original). When

read in context, the statement challenged by Wishnefsky affords him no relief,

for the reasons stated in the trial court’s Opinion. 4 See id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/ 0 7/2021

_________________ __________ ______ ____ _______

4 We further observe that “ r es judicata will bar subsequent claims that could

have been litigated in the prior action, but which actually were not....” Chada

v. Chada

, 756 A.2d 39, 43 (Pa. Super. 2000) (citation omitted).

Consequently, a party “cannot sit out one cause of action and then forc e the

opposing party into another action over an issue that both could and should

have been raised in the first place.” Stuart v. Decision One Mortgage Co

. , LLC

, 975 A.2d 1151, 1154 (Pa. Super. 2009) (citation omitted).Circulated 11/09/2021 12:30 PM