J-A14012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARCHINACO/BRACKEN, LLC

Appellant

v.

SAMUEL J. CORDES D/B/A SAMUEL J.

CORDES & ASSOCIATES

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 942 WDA 2019

Appeal from the Order Entered May 20, 2019

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

No(s): Docket No. GD-16-002943

BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 19, 2020

Appellant, Archinaco/Bracken, LLC (“A/B”), appeals from the May 20,

2019 order entering summary judgment in favor of Appellee, Samuel J.

Cordes, doing business as Samuel J. Cordes and Associates (“Cordes”), and

dismissing A/B’s second amended third-party complaint with prejudice. After

review, we affirm. The trial court summarized the relevant facts and procedural history of

this case as follows:

In February 2013, Janice Prewitt (“Prewitt”) hired A/B to

represent her because she asserted her employer had illegally

recorded her telephone calls. (Complaint, ¶¶ 6,19). A/B and

Prewitt investigated the wiretapping but ultimately decided not to

initiate litigation at that time. A/B continued to assist Prewitt with

issues pertaining to her employment.

Around the first quarter of 2014, Prewitt noticed that

attorney Archinaco was not returning her calls. (Prewitt
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Deposition, 24). Around May 2014, Prewitt was dissatisfied with

the atmosphere at her workplace, and grew more frustrated with

A/B’s services because she perceived that A/B was not returning

her calls (Prewitt Deposition, 50-56). Prewitt began to look for a

new attorney.

On August 27, 2014 Prewitt was terminated from her

employment[.] (Complaint, ¶ 61). On the same day, Prewitt met

with attorney Bracken of A/B to discuss her termination from her

employment but did not inform him of her dissatisfaction with

A/B’s services. (Prewitt Deposition, 68). Following the meeting,

Prewitt sent an e-mail to attorney Bracken requesting him to not

take any action until she decided what she wanted to do. Prewitt

was considering options other than A/B. Prewitt requested her fee

agreement from A/B which she sent to her friend, attorney Mark

Santo. (Prewitt Deposition 83, 84). Attorney Santo recommended

Cordes and represented that he heard that Cordes was one of the

best employment law firms in Pittsburgh. (Prewitt Dep. 88). At

some point between August 27 and September 5, Prewitt met with

Cordes and decided she wanted to move forward with Cordes as

her attorney. (Prewitt Deposition, 93-94). On September 5, 2014,

Prewitt terminated her relationship with A/B.

On December 23, 2014, Cordes filed a complaint [against

Prewitt’s former employer] on Prewitt’s behalf asserting that

Prewitt had been terminated on account of her race and asserting

violations of federal and state wiretap laws. Upon learning of

Prewitt’s retention of Cordes, attorney Archinaco of A/B sent a

letter to Cordes asserting an attorney lien [of $ 16,790 for 33.4

hours of service] relating to his previous representation of Prewitt.

(Complaint, ¶ 98). [Prewitt’s lawsuit against her former employer,

wherein she was represented by Cordes, settled in June of 2015.]

Cordes then filed a declaratory judgment action seeking to

determine whether Prewitt or A/B is entitled to the [$16,790]

asserted in the attorney lien. In response, A/B filed, inter alia, the

instant Third-Party Complaint against Cordes claiming Cordes had

interfered with A/B’s relationship with Prewitt.

* * *

On February 26, 2016, Prewitt filed a declaratory judgment

action seeking to determine whether Prewitt or A/B was entitled
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to the disputed $16,790.[1] On March 18, 2016, A/B filed a Third- Party Complaint to join Cordes as a Third-Party Defendant,

asserting claims of intentional interference.[2] On May 2, 2017,

Cordes filed [a] Motion for Summary Judgment.

Trial Court Opinion, 10/28/19, at 2-3. On April 3, 2018, A/B filed a motion to amend its third party complaint

to include a count of quantum meruit against Cordes. On May 7, 2018, the

trial court granted A/B’s motion and permitted A/B to file an amended

complaint. A/B filed its second amended complaint on May 14, 2018.

Cordes filed preliminary objections to A/B’s second amended complaint

on June 4, 2018, and on September 19, 2018, A/B filed a brief in opposition. On October 30, 2018, the trial court sustained in part and overruled in part

Cordes’s preliminary objections. The trial court sustained Cordes’s preliminary

objection seeking to limit the maximum amount that A/B could recover in its

claim for quantum meruit at $16,790 and overruled the preliminary objections

in all other respects.

A/B filed a motion for reconsideration or in the alternative a motion to

amend the complaint on January 15, 2019. On March 7, 2019, the trial court

filed an opinion and order denying A/B’s motion. Thereafter, Cordes filed a

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1 Due to A/B’s lien demand of $16,790, Cordes placed $16,790 in an escrow

account on July 6, 2016.

2 The trial court entered an order severing the instant case, A/B’s declaratory

judgment action against Cordes, from the cause of action that Prewitt filed

against A/B. Order, 11/21/17.
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supplemental motion for summary judgment on April 1, 2019. On April 5,

2019, the trial court scheduled a hearing on Cordes’s motion for summary

judgment. On May 1, 2019, A/B filed a response in opposition to Cordes’s

motion for summary judgment. At the conclusion of the May 20, 2019 hearing, the trial court granted

Cordes’s motion for summary judgment and dismissed A/B’s second amended

third-party complaint with prejudice. This timely appeal followed.3

On appeal, A/B asserts that the trial court erred in granting summary

judgment in favor of Cordes and in failing to grant A/B’s motion for

reconsideration or its motion to amend its complaint. A/B’s Brief at 6. A/B

avers that the trial court’s ruling was based on an incomplete record because

the pleadings remained open at the time summary judgment was entered, and although the settlement agreement between Prewitt and her former

employer was produced for in camera review, the amount of the settlement

was redacted. Id. at 20. Additionally, A/B claims that the trial court erred in

concluding that A/B was unable to prove Cordes intentionally interfered with

A/B’s contract with Prewitt, and the trial court failed to provide its basis for

____________________________________________

3 The trial court did not direct A/B to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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ruling in favor of Cordes with respect to A/B’s quantum meruit claim.4 Id. at

20-21.“The question of whether summary judgment is warranted is one of law,

and thus our standard of review is de novo and our scope of review is plenary.” City of Philadelphia v. Cumberland County Bd. of Assessment Appeals, 81 A.3d 24, 44 (Pa. 2013). Moreover, the following principles are well settled:

We may reverse if there has been an error of law or an abuse of

discretion. ... We must view the record in the light most favorable

to the nonmoving party and all doubts as to the existence of a

genuine issue of material fact must be resolved against the

moving party. Furthermore, in evaluating the trial court’s decision

to enter summary judgment, we focus on the legal standard

articulated in the summary judgment rule. 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

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4 A/B’s statement of questions presented, which is required pursuant to

Pa.R.A.P. 2116, states as follows: “1. Whether the lower court abused its

discretion in failing to grant A/B’s Motion for Reconsideration or Alternatively

Motion to Amend Complaint? 2. Whether the lower court committed an error

of law or abused its discretion in granting summary judgment in favor of

Cordes?” A/B’s Brief at 6. These issues are vague and fail to illustrate the

bases upon which A/B believes the trial court erred. On these grounds, we

could find waiver. See Krebs v. United Refining Co. of Pennsylvania, 893

A.2d 776, 797 (Pa. Super. 2006) (stating that any issue not set forth in or

suggested by the statement of questions involved will not be considered on

appeal); see also Pa.R.A.P. 2116(a) (providing, inter alia, “No question will

be considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”). However, A/B expounds on its claims of error in

the summary of the argument and argument portions of its brief, and we

conclude that appellate review is not precluded. Accordingly, we decline to

find waiver.
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the entitlement of the moving party to judgment as a matter of

law.

Carlino East Brandywine, L.P. v. Brandywine Village Association, 197

A.3d 1189, 1199-1200 (Pa. Super. 2018) (citation omitted).

Our standard of review of a trial court’s order denying a party leave to

amend a pleading is limited to considering whether the trial court erred as a

matter of law or abused its discretion. Schwarzwaelder v. Fox, 895 A.2d

614, 621 (Pa. Super. 2006). Pennsylvania Rule of Civil Procedure 1033(a)

permits amendment of pleadings and provides that “[a] party, either by filed

consent of the adverse party or by leave of court, may at any time ... amend

the pleading.” However, although Rule 1033(a) provides a method for

amending a pleading, it does not provide a party the automatic right to do so. See id. (requiring consent or leave of court to amend a pleading). While the

right to amend should not be withheld when there is some reasonable

possibility that the amendment can be accomplished successfully, “where

allowance of an amendment would ... be a futile exercise, the [pleading] may

be properly dismissed without allowance for amendment.” Wiernik v. PHH

U.S. Mortg. Corp., 736 A.2d 616, 624 (Pa. Super. 1999).

First, we address A/B’s claim that the trial court erred in ruling on

Cordes’s motion for summary judgment because the pleadings remained

open. A/B’s Brief at 33. A/B provides no basis upon which this Court may

conclude that pleadings remain open merely because A/B attached a notice to

plead to its May 1, 2019 “Material Facts In Opposition To Samuel J. Cordes
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D/B/A Samuel J. Cordes & Associates’ Motion For Summary Judgment.” After

review, we cannot conclude that A/B’s Material Facts In Opposition filing

constitutes a pleading as defined by the Rules of Civil Procedure. See

Pa.R.C.P. 1017(a) (defining pleadings as a complaint and answer, a reply if

the answer contains new matter, a counterclaim or a cross-claim, a counterreply if the reply to a counterclaim or cross-claim contains new matter, and a

preliminary objection and a response thereto). Therefore, we discern no error

of law in the trial court ruling on Cordes’s motion for summary judgment

merely because A/B attached a notice to plead to a court filing.

Second, there is no merit to A/B’s argument that the trial court ruled on

Cordes’s motion for summary judgment on an incomplete record. A/B’s Brief

at 23-27. A/B asserts that the trial court erred in concluding that A/B was

limited to recovering only $16,790, the amount in its lien letter, because at

the time of its ruling, the trial court was not aware that Cordes received a sixfigure fee for representing Prewitt. Id.

Although the amount of the settlement received by Prewitt from her

former employer was redacted, that amount had no bearing in A/B’s suit

against Cordes. There is no basis upon which A/B was entitled to any damages

based on the amount received in Prewitt’s settlement with her former

employer. The trial court stated:

No Pennsylvania law, however, gives [A/B] the right to recover a

proportion of a contingent fee.
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No Pennsylvania appellate court has ever awarded a

proportionate share of a contingency fee to a firm

discharged by the client well prior to the occurrence of the

contingency, for the simple reason that a client may

discharge an attorney at any time, for any reason. Once the

contractual relationship has been severed, any recovery

must necessarily be based on the work performed pursuant

to the contract up to that point. Where the contingency has

not occurred, the fee has not been earned.

Mager v. Bultena, 797 A.2d 948, 958 (Pa. Super. 2002).

Trial Court Memorandum and Order, 3/7/19, at 3.

On appeal, A/B argues that Mager was decided prior to Meyer,

Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone

Middleman, P.C., 179 A.3d 1093 (Pa. 2018), and is inapplicable. A/B’s Brief

at 28. We disagree.

The decision in Meyer, Darragh did not overrule the holding from

Mager, and as will be discussed in greater detail below, Meyer, Darragh

applies only where the predecessor counsel (A/B) proves the successor

counsel (Cordes) received and retained a benefit from the predecessors

counsel’s efforts; i.e., unjust enrichment. Id. at 1105. Moreover, we agree

with the trial court’s conclusion that A/B was limited to recovering $16,790

because that is the amount A/B claimed it was owed in its lien letter. Trial

Court Memorandum and Order, 3/7/19, at 3. It was not until A/B learned that

Cordes may have received a larger-than-expected contingency fee that A/B

initiated the underlying action in which it sought a larger fee.
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The trial court also illustrated why the amount of Cordes’s fee was

immaterial to A/B’s fee as follows:

[A/B] suspects (or knows) that Cordes’s fee was substantial, but

what if Cordes’s fee was only $5,000, or some amount

substantially lower than [A/B’s] hourly bill? In that situation, it

would not benefit [A/B] to insist that [its]s damages were limited

to a proportion of the contingent fee. Instead, [A/B] would benefit

only if [it] insisted that it would be fair for [its] damages to be the

number of hours worked multiplied by a reasonable fee. The

damage analysis for a quantum meruit claim should not be based

upon who would benefit most in any given set of circumstances,

but instead should be based upon the reasonable value of

services. Therefore, where we know what [A/B] billed for [its] “hourly” services, knowing the value of Cordes’[s] fee does not

change the damages analysis.

Trial Court Memorandum and Order, 3/7/19, at 4, n.1.

The amount of Prewitt’s settlement and the contingency fee

subsequently received by Cordes had no bearing on the amount A/B may have

been owed. Thus, we conclude that there is no merit to A/B’s assertion that

the trial court granted summary judgment on an incomplete record.

Next, we address A/B’s argument that the trial court erred in concluding

that A/B was unable to prove Cordes intentionally interfered with A/B’s

contract with Prewitt. A/B’s Brief at 20. The necessary elements of tortious

interference with a contract 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 privilege or justification on the

part of the defendant; and (4) the occasioning of actual damage

as a result of defendant’s conduct.
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Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 982 A.2d

94, 98 (Pa. Super. 2009) (citations and quotation marks omitted). A/B argues

that the trial court erred in concluding that A/B failed to establish that Cordes’s

actions were intentional and improper. A/B’s Brief at 36.

The trial court addressed this issue as follows:

A. A/B has failed to provide evidence that Cordes intended

to harm A/B’s contractual relationship.

A/B has failed to produce any evidence that Cordes had any

specific intent to persuade Prewitt to terminate A/B. This [c]ourt

finds A/B’s allegations that attorney Santo was instructed by

Cordes to specifically target Prewitt to terminate A/B are based on

speculation and are unsupported by any factual evidence. This

[c]ourt further finds that no evidence was presented that Cordes

even knew that Prewitt was represented by A/B before meeting

with her as a prospective client. Therefore, A/B has failed to

produce sufficient evidence to support the element of intent.

B. A/B has failed to produce evidence that Cordes’s actions

were improper.

A/B has equally failed to produce sufficient evidence of any

improper conduct by Cordes.

The Superior Court in Phillips [v. Selig, 959 A.2d 420, 424,

(Pa. Super. 2008),] found that an attorney “coveting” another’s

business and taking steps to procure it for himself does not

constitute per se interference with contractual relations. Id. at

431. The court recognized that Section 768 of the Restatement

(Second) of Torts sanctions reasonable competition between

competitors. A lawyer’s right to compete with others implies his

or her right to seek to divert business from competitors. Id. To

assess whether the interference is improper, the following factors

are to be considered:

(a) the nature of the actor’s conduct; (b) the actor’s motive;

(c) the interests of the others with which the actor’s conduct

interferes; (d) the interests sought to be advanced; (e) the

social interests in protecting the freedom of action of the
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actor and the contractual interests of the other; (f) the

proximity or remoteness of the actor’s conduct to the

interference; and (g) the relations between the parties.

Phillips, 959 A.2d at 432.

First, this [c]ourt finds nothing improper about the nature

of Cordes’s conduct. Cordes simply met with a prospective client

who had been referred to him by a third party. A/B agrees that

there is nothing improper about Cordes speaking with Prewitt and

agreeing to represent her ([A/B] Dep. 19-23). A/B advances a

theory that Cordes instructed Attorney Santo to somehow

persuade Prewitt to terminate her agreement with A/B and to hire

Cordes instead (A/B’s Brief p.7). Yet, A/B submitted no evidence

that Cordes knew of Prewitt before Attorney Santo had referred

her. There is likewise no evidence that Cordes contacted Santo

and requested that he send Prewitt his contact information. There

is no evidence that Cordes or Attorney Santo made any negative

or disparaging statements about A/B to Prewitt. Prewitt testified

that it was her decision to terminate her relationship with A/B

because she was dissatisfied with A/B’s services. (Prewitt Dep.

90). Although, Prewitt stated that she did forward the A/B fee

agreement to Cordes, she does not recall whether it occurred prior

to her terminating A/B (Prewitt: 128:4-13). This [c]ourt finds that

there is nothing improper about the nature of Cordes’s conduct.

Second, Cordes’s motive was to perform work for Prewitt.

Taking steps to procure business is not improper. Phillips, 959

A.2d at 432.

Third, although Cordes’s conduct interfered with A/B’s

interest in continuing to represent a client, an attorney’s

relationship with a client is not absolute and is subject to the

client’s will. [Phillips, 959 A.2d 431, n.6.] The fact that a client can

terminate the representation at any time creates a limitation on

the level of protection that the interest to continue representation

will receive. The fact that Prewitt decided to terminate

representation on her own establishes that Cordes did nothing to

interfere with A/B’s interest.

Fourth, by agreeing to meet with Prewitt, Cordes sought to

advance his interest in obtaining a new client upon a referral from

a third party. Given that there is no evidence that Cordes [utilized]
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improper means to advance this interest, this [c]ourt finds that

this interest to be legitimate.

Fifth, the social interests protecting Cordes’s conduct are

embodied by society’s interest in competition within the legal field

and a client’s interest in being represented by the attorney of her

choosing. Given that A/B’s contractual interests are limited by the

client’s right to terminate the representation at any time,

competition justifies protecting Cordes’s actions in meeting with

Prewitt in light of the absence of any indication that Cordes

instituted improper means.

Sixth, while a third party committing an act upon the

instruction of the defendant would be enough to satisfy the

proximity factor, this is not the case here. There is no evidence

that Cordes instructed Attorney Santo to solicit Prewitt as a client.

Seventh, the relations between the parties do not point in

any direction. Neither Cordes nor Attorney Santo have a

relationship with A/B. A/B and Prewitt had a relationship which

Prewitt had the right to terminate at any time.

Trial Court Opinion, 10/28/19, at 5-7.

After reviewing the record in the light most favorable to A/B as the

nonmoving party, we agree with the trial court’s conclusion. Carlino East

Brandywine, L.P., 197 A.3d at 1199-1200. A/B could not establish the

elements of intent and improper conduct, which are necessary components of

a claim for tortious interference with a contract. Walnut Street Associates,

Inc., 982 A.2d at 98. Moreover, there is no amendment that would advance

A/B’s claims because A/B already valued its service to Prewitt at $16,790. Accordingly, A/B is due no relief on this claim of error.

In its final issue, A/B avers that the trial court erred in granting Cordes’s

motion for summary judgment because it failed to provide its basis for ruling
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with respect to A/B’s quantum meruit claim. After review, we conclude that

this claim is meritless.

At the outset, we note that when A/B filed its third-party complaint

against Cordes on March 18, 2016, A/B did not include a claim based on

quantum meruit. Although we are not aware of authority prohibiting such a

claim, we note that while this case was pending in the trial court, the Supreme

Court of Pennsylvania rendered its decision in Meyer, Darragh. In Meyer, Darragh, our Supreme Court held that under certain

circumstances, a predecessor firm could recover damages in quantum meruit

against a successor firm in a contingent fee dispute. Meyer, Darragh, 179

A.3d at 1095. In the instant case, on May 7, 2018, the trial court granted

A/B’s motion to amend its third-party complaint. On May 14, 2018, A/B filed

its second amended complaint in which it sought to recover damages in

quantum meruit from Cordes pursuant to Meyer, Darragh. In its preliminary

objections to A/B’s second amended third-party complaint, Cordes objected

to retroactive application of Meyer, Darragh. Preliminary Objections, 6/4/18

at 4. On October 30, 2018, the trial court sustained Cordes’s preliminary

objection limiting the amount that A/B could recover in quantum meruit to

$16,790, and it overruled the preliminary objections in all other respects. Order, 10/30/18. However, the trial court did not mention Meyer, Darragh. In its brief on appeal, Cordes provides a thorough discussion in

opposition to the retroactive application of Meyer, Darragh, relative to
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recovery in quantum meruit. However, we conclude that we need not

determine whether Meyer, Darragh applies retroactively, because we

conclude that Meyer, Darragh does not apply at all. Meyer, Darragh held that predecessor counsel could recover damages

in quantum meruit against successor counsel in a contingent fee dispute only

where the facts demonstrate unjust enrichment. Id. at 1105. Therefore, in

the instant case, in order for Meyer, Darragh to apply and allow A/B to

recover in quantum meruit, A/B was required to show that Cordes received

and retained a benefit from A/B’s efforts. Id.

As stated, A/B already placed a value on its services to Prewitt in the

amount of $16,790. Any legal fees received by Cordes from the subsequent

settlement with Prewitt’s former employer had no bearing on A/B’s fee. Moreover, the only evidence of A/B’s legal work produced on Prewitt’s behalf

is a “draft complaint,” which consists of a timeline of events terminating in

July of 2013, more than one year before Prewitt was terminated by her former

employer. N.T., 11/2/16, at 64-67; (A/B’s Exhibit 9). There is no indication

that A/B conducted any work for Prewitt following Prewitt’s termination from

her former employer. There is no basis upon which A/B can establish that any

work it conducted on behalf of Prewitt benefitted Cordes. In sum, A/B cannot

establish unjust enrichment, and therefore, Meyer, Darragh does not apply.

Because there was no unjust enrichment, no additional discussion of quantum

meruit by the trial court was warranted, and A/B’s final issue fails.
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After review, we discern no error in the order denying A/B’s motion for

reconsideration or to amend, and granting summary judgment in favor of

Cordes. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2020