Wishnefsky v. Carroll , 44 F. App'x 581 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
8-13-2002
Wishnefsky v. Carroll
Precedential or Non-Precedential: Non-Precedential
Docket No. 99-4065
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Recommended Citation
"Wishnefsky v. Carroll" (2002). 2002 Decisions. Paper 493.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/493
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
NO. 99-4065
__________
BRUCE L. WISHNEFSKY,
Appellant
v.
JOHN J. CARROLL;
JAMES J. RILEY
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 99-cv-01494)
District Judge: Honorable James F. McClure, Jr.
__________
Submitted Under Third Circuit LAR 34.1(a)
on August 2, 2002
Before: ROTH, RENDELL, and AMBRO, Circuit Judges
(Filed: August 13, 2002)
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Bruce L. Wishnefsky appeals a 12(b)(6) dismissal of his RICO claim against
attorneys John J. Carroll and James J. Riley. The District Court granted the dismissal
because it determined Wishnefsky suffered no RICO injury and, alternatively, he failed to
state a claim upon which relief can be granted. We will affirm the District Court’s
dismissal.
Wishnefsky, who is not an attorney, alleges that he entered into an agreement with
Riley, a practicing attorney now with the law firm of Riley & Fanelli, whereby Riley
agreed to pay Wishnefsky a percentage of the legal fees generated by the clients
Wishnefsky referred to him. The alleged agreement began in the 1980s and continued
through part of the 1990s with Riley paying twenty-five, and later thirty-three and a third,
percent of all legal fees generated by clients whom Wishnefsky had referred. Such an
agreement would be in violation of Pennsylvania Rule of Professional Conduct 5.4(a).
Beginning in February of 1992 Riley allegedly began misrepresenting the true
amount of fees owed to Wishnefsky under their arrangement. In 1994, Wishnefsky
referred the case of Jacob Hanyon to Riley under the promise of payment pursuant to
their understanding. Wishnefsky avers that Riley never intended to pay. Wishnefsky
alleges a civil RICO violation based on Riley & Fanelli’s fraudulent misrepresentations of
the amount of fees owed to him, and claims injury "in his property" based on Riley’s
fraudulent inducement to refer the Hanyon case to him.
The District Court exercised jurisdiction over this case pursuant to 28 U.S.C.
1331 as a civil RICO claim involves a federal question arising under 18 U.S.C. 1961 et
seq. We have jurisdiction to review the District Court’s dismissal pursuant to 28 U.S.C.
1291. In reviewing a 12(b)(6) dismissal we exercise plenary review. Langford v. City of
Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000).
The claim was properly dismissed because Wishnefsky could not prove all of the
elements of a civil RICO claim. Addressing only one aspect, there was no injury under
civil RICO. To establish a civil RICO claim, there must be an injury to one’s business or
property. 18 U.S.C. 1964(c). Wishnefsky’s claim is not based on injury, but on the fact
that Riley failed to pay money owed to him. We note that Wishnefsky couches his claim
in terms of there having been misrepresentations made to him, but the fact that there was
an understanding appears to be beyond dispute. "Where, as here, the only property to
which a plaintiff alleges injury is an expectation interest that would not have existed but
for the alleged RICO violation, it would defy logic to conclude that the requisite
causation exists." Heinold v. Perlstein, 651 F.Supp. 1410, 1412 (E.D. Pa. 1987). Further,
it is against the Pennsylvania Rules of Professional Conduct for an attorney to pay a non-
attorney a referral fee. Therefore, Wishnefsky’s property interest if indeed he had any
in the money is illusory.
Accordingly, we will AFFIRM the District Court’s order.
___________________________
TO THE CLERK OF COURT:
Please file the foregoing Not Precedential Opinion.
Marjorie O. Rendell
Circuit Judge