Wishnefsky, B. v. Evans, A.

• Court: Superior Court of Pennsylvania
• Decided: July 10, 2015
• Docket: 155 MDA 2015
• Status: Unpublished

Opinion

J-S34031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRUCE L. WISHNEFSKY IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

ALBERT J. EVANS, JAMES J. RILEY, ANDREW H. KOPPEL, JOHN J. CARROLL, SUNNY HANYON BRUNT, AND RILEY AND FANELLI, P.C.

Appellees No. 155 MDA 2015

Appeal from the Order entered October 20, 2014 In the Court of Common Pleas of Schuylkill County Civil Division at No: S-1081-2001

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 10, 2015

Bruce L. Wishnefsky appeals pro se from an order granting summary

judgment to Appellees. We affirm.

Wishnefsky is a former paralegal serving 45 to 90 years in prison for

crimes of horrific child abuse.1 In 2001, he filed a complaint alleging breach

of contract and civil violations of the Racketeering in Corrupt Organizations ____________________________________________

1 See Commonwealth v. Wishnefsky, 750 A.2d 379 (Pa. Super. 1999) (unpublished memorandum) (affirming the judgment of sentence), appeal denied, 758 A.2d 1199 (Pa.), cert. denied sub nom. Wishnefsky v. Pennsylvania, 531 U.S. 949 (2000); Commonwealth v. Wishnefsky, 821 A.2d 138 (Pa. Super. 2003) (affirming the denial of post-conviction relief); Wishnefsky v. Meyers, No. 4-CIV-03-0417, 2005 WL 1498502 (M.D. Pa. June 22, 2005) (denying habeas relief and denying a certificate of appealability), modified, 2005 WL 2031182 (M.D. Pa. Aug. 18, 2005). J-S34031-15

(RICO) Act, 18 U.S.C. § 1962(c) and (d), against Appellees. The gravamen

of his claims is that he and Appellees entered into an unethical fee-splitting.

Lawyers cannot share fees with non-lawyers. See Pa.R.P.C. 5.4.

Wishnefsky has litigated at least two other lawsuits rejecting similar

claims. In Wishnefsky v. Riley and Fanelli, P.C., 799 A.2d 827 (Pa.

Super. 2002), this Court held that public policy precluded enforcement of

Wishnefsky’s fee-splitting agreement, to the extent it actually existed. In

Wishnefsky v. Carroll, 44 F. App’x 581 (3d Cir. 2002), the Third Circuit

affirmed the dismissal of his civil RICO claim against Carroll and Riley.

Wishnefsky filed the instant action in 2001. The pleadings closed in

2002, yet Wishnefsky never attempted to take discovery. On April 29, 2014,

the trial court denied Wishnefsky’s motion for leave to file a seventh

amended complaint. The parties filed cross-motions for summary judgment.

The trial court denied Wishnefsky’s motion on August 8, 2014, and granted

Appellee’s motion on October 20, 2014. This appeal followed.

Before we may consider the merits, we must determine whether the

order granting summary judgment to Appellees is a final order, which

implicates our jurisdiction to hear this appeal. See Pridgen v. Parker

Hannifin Corp., 974 A.2d 1166, 1171 (Pa. Super. 2009) (“[Q]uestions as to

the appealability of an order go to the jurisdiction of the court asked to

review the order.”). We have jurisdiction over appeals from final orders

entered by the courts of common pleas. 42 Pa.C.S.A. § 742. A final order is

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any order that “disposes of all claims and of all parties.” Pa.R.A.P.

341(b)(1) (emphasis added).

Wishnefsky never served original process on defendants John J.

Carroll, a private investigator, or Sunny Hanyon Brunt, a client of Riley and

Fanelli P.C. Wishnefsky admits that the trial court lacks personal jurisdiction

over them and that the relevant statutes of limitations have run. Appellees

filed a motion for summary judgment on behalf of all defendants, but the

trial court noted that Appellees did not provide authority for moving for

summary judgment on behalf of Carroll and Brunt. Nevertheless, the trial

court entered the following order:

AND NOW, this 20th day of October, 2014, it is hereby ORDERED [that] summary judgment [be] entered in favor of Defendants and against Plaintiff on all claims.

Trial Court Order, 10/20/14 (emphasis added). Thus, the order has the

effect of dismissing all claims in, and parties to, this lawsuit and is a final

order.2 We therefore have jurisdiction over this appeal.

On appeal, Wishnefsky first contends the trial court erred in denying

his motion to file a seventh amended complaint. We review the denial of

leave to amend a complaint for an abuse of discretion. See TCPF Ltd.

P’ship v. Skatell, 976 A.2d 571, 574 (Pa. Super. 2009). Given that we

conclude below that Wishnefsky’s claims fail as a matter of law, we find no ____________________________________________

2 Wishnefsky did not object to the dismissal of his claims against Brunt and Carroll.

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abuse of discretion in denying leave to amend. “[A] court is not required to

allow amendment of a pleading if a party will be unable to state a claim on

which relief could be granted.” Werner v. Zazyczny, 681 A.2d 1331, 1338

(Pa. 1996).

Next, Wishnefsky argues the trial court erred in granting summary

judgment. We review an order granting summary judgment using the same

legal standard as the trial court, and we apply a plenary scope of review.

Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84 (Pa. Super.

2015) (en banc). A party is entitled to summary judgment if an adverse

party who will bear the burden of proof at trial has failed to produce

evidence sufficient to support his cause of action. Pa.R.C.P. No. 1035.2(2).

The trial court properly dismissed this action for several reasons.

First, Wishnefsky produced no evidence to support his claims. 3 Second, the

claims fail as a matter of law. In addition to the fact that Wishnefsky has no

evidence to support any elements of breach of contract, any agreement is

void as against public policy:

[a]lthough courts will generally not enforce contracts which are against public policy where the parties are in pari delicto, this is not to say a court must enforce an agreement when the parties are not in pari delicto. [T]he interest of the public, rather than ____________________________________________

3 Wishnefsky’s own self-serving affidavit is not sufficient evidence to defeat a motion for summary judgment, because it redundantly regurgitates the allegations of his complaint. The affidavit of Charlotte Basenfelder, a character witness from his 1998 criminal trial, is wholly irrelevant.

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the equitable standing of the individual parties, is of determining importance.

Assuming, without deciding, that [Appellant] is correct in [his] contention that the mere difference in the status of the parties suffices to establish that they were not in pari delicto, we do not believe that the public interest will be served by accepting [his] argument and enforcing the contract. Under [Appellant’s] theory, every fee-sharing agreement between an attorney and a nonattorney which violates [the fee-splitting prohibition] would be enforceable by the lay party since, by definition, such agreements will always involve an attorney and a nonattorney. Although consistent enforcement of such contracts against breaching attorneys might deter attorneys from entering fee- sharing agreements, presumably most lawyers are already deterred from such conduct by the existence of [the disciplinary rule] and by the possibility of sanctions that its violation carries. By refusing in every case to assist the lay party, the courts may deter laypersons as well as attorneys from attempting such agreements. We believe that, in this way the public will be protected more effectively from the potential harms posed by fee-sharing agreements.

Wishnefsky, 799 A.2d at 830 (quoting O'Hara v. Ahlgren, Blumenfeld &

Kempster, 537 N.E.2d 730, 737-38 (Ill. 1989)). Assuming that it exists,

the fee-sharing arrangement is unenforceable as a matter of public policy.

See id. at 829-31. Therefore, we reject this current claim for the same

reasons as stated 13 years ago. See id.

Wishnefksy’s civil RICO claims meet the same fate as the civil RICO

claim dismissed in his prior case by the Third Circuit. A civil claim under

RICO § 1962(c) requires proof of “(1) conduct (2) of an enterprise (3)

through a pattern (4) of racketeering activity.” Nat’l Sec. Sys., Inc. v.

Iola, 700 F.3d 65, 105 (3d Cir. 2012) (quoting Sedima, S.P.R.L. v. Imrex

Co., 473 U.S. 479, 496 (1985)) (footnote omitted). To have standing to

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bring a civil RICO claim, plaintiffs “must satisfy additional standing criterion

set forth in section 1964(c) of the statute. Section 1964(c) confers standing

upon ‘any person injured in his business or property by reason of a violation

of section 1962 of this chapter . . . [.]’” In re Schering Plough Corp.

Intron/Temodar Consumer Class Action, 678 F.3d 235, 246 (3d Cir.

2012) (quoting 18 U.S.C. § 1964(c)) (other internal quotation omitted).

In addition to lacking any evidentiary support, Wishnefsky’s RICO

claims fail because, among many other reasons, he does not identify any

“racketeering activity” by Appellees that caused him injury. Under RICO,

“racketeering activity” means, inter alia, “any act or threat involving murder,

kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene

matter, or dealing in a controlled substance or listed chemical (as defined in

section 102 of the Controlled Substances Act[4]), which is chargeable under

State law and punishable by imprisonment for more than one year.” 18

U.S.C. § 1961(1)(A). Here, the only activity that Wishnefsky alleges is that

Appellees failed to pay him fees as promised. Wishnefsky has never said

how Appellees’ actions are criminal and therefore constitute racketeering.

To the contrary, he has insisted (perhaps to support his spurious breach of

contract claim) that the fee-splitting arrangement was not illegal. His RICO

____________________________________________

4 21 U.S.C. § 802.

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claims are specious, and we find the trial court did not err in dismissing

them.

Finally, Wishnefsky claims the trial court erred in using the legal

principles applied by the Third Circuit in his prior case, contending that an

intervening Supreme Court decision, Bridge v. Phoenix Bond &

Indemnity Co., 553 U.S. 639 (2008), changed the law. Bridge concerned

RICO claims predicated on mail fraud. See id. at 641-42 (“The question

presented in this case is whether a plaintiff asserting a RICO claim

predicated on mail fraud must plead and prove that it relied on the

defendant’s alleged misrepresentations.”) (emphasis added). Thus, Bridge

is completely irrelevant to Wishnefksy’s RICO claim.

This interminable case is, at best, meritless nuisance litigation. 5 The

trial court did not err in denying Wishnefsky leave to file a seventh amended

complaint, or in finding all claims legally deficient.

5 Given our disposition, we need not address whether we may affirm for other reasons, such as res judicata or the statutes of limitations.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/10/2015

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