J-A28013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT N. HARTENSTINE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JERYL BULLOCK AND JAMES F. CARNEY,
ESQUIRE
Appellee No. 250 EDA 2015
Appeal from the Judgment Entered December 23, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2014-17098
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 03, 2016
In this appeal, Appellant, Robert N. Hartenstine, specifically challenges
the order entered in the Montgomery County Court of Common Pleas, which
sustained the preliminary objections filed by Appellee, James F. Carney,
Esquire (“Attorney Carney”) and dismissed Mr. Hartenstine’s complaint for
wrongful use of civil proceedings and abuse of process.1 We affirm in part,
reverse in part, and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
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1
The court’s order sustaining Attorney Carney’s preliminary objections was
made final by the court’s entry of default judgment against the remaining
defendant, Jeryl Bullock, and the assessment of damages in the amount of
$68,734.00. (See Judgment entered 12/23/14; R.R. at 137a). We discuss
this concept more fully later in the disposition. Ms. Bullock is not a party to
this appeal.
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Mr. Hartenstine and Jeryl Bullock began dating around 1990. During their
relationship, Ms. Bullock primarily lived in a mobile home on property owned
by Mr. Hartenstine in Lower Pottsgrove Township, Pennsylvania. Mr.
Hartenstine resided at his home in Philadelphia throughout the relationship.
The parties dispute when the relationship ended; Mr. Hartenstine claims the
relationship ceased in 2000, while Ms. Bullock contends the relationship
concluded in 2008. Following dissolution of their relationship, Mr.
Hartenstine asked Ms. Bullock to pay the real estate taxes and insurance if
she wanted to continue living in her mobile home on his property. Ms.
Bullock did not comply with Mr. Hartenstine’s request and, in March 2011,
Ms. Bullock blocked his access to the property.
On or around May 5, 2011, Mr. Hartenstine filed an eviction action
against Ms. Bullock. Mr. Hartenstine subsequently withdrew the eviction
complaint while the parties attempted to reach a settlement. When
settlement efforts proved unsuccessful, Mr. Hartenstine filed a second
eviction action on September 16, 2011, scheduled to be heard on October 3,
2011. On October 3, 2011, Attorney Carney appeared in court as counsel
for Ms. Bullock. Before the court commenced the hearing on the eviction
action, Attorney Carney informed the court he had filed a divorce complaint
on September 30, 2011, on behalf of Ms. Bullock against Mr. Hartenstine.
Attorney Carney served Mr. Hartenstine with the divorce complaint at that
time. The divorce complaint alleged Ms. Bullock and Mr. Hartenstine were
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married at common law, and sought, inter alia, equitable distribution,
alimony, and alimony pendente lite. Based on the filing of the divorce
complaint, the court determined the matter should proceed in family court
and dismissed Mr. Hartenstine’s eviction complaint without prejudice.
On January 24, 2012, Mr. Hartenstine filed preliminary objections to
the divorce complaint, claiming the complaint failed to provide the time and
place of the alleged common-law marriage. The court granted Ms. Bullock
leave to amend, and on February 21, 2012, Attorney Carney filed an
amended divorce complaint on Ms. Bullock’s behalf. The amended divorce
complaint alleged: “The parties are married at common law on August 4,
1995[,] in Baltimore, Maryland.” (See Amended Divorce Complaint at 1 ¶ 4,
attached as Exhibit B to Mr. Hartenstine’s Complaint against Attorney Carney
and Ms. Bullock, filed 6/5/14; R.R. at 21a).
On July 20, 2012, Mr. Hartenstine filed a petition for declaratory
judgment, seeking a court ruling that no common-law marriage existed. Ms.
Bullock filed a response on August 20, 2012. The court held hearings on the
petition on June 10-11, 2013. On July 8, 2013, the family court issued
findings of fact and conclusions of law, granting Mr. Hartenstine’s request for
declaratory relief. The family court concluded, inter alia, that Ms. Bullock
failed to prove she and Mr. Hartenstine uttered the necessary words of
present intent to create a common-law marriage. (See Family Court’s
Findings of Facts and Conclusions of Law at 2 ¶ 1, attached as Exhibit D to
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Mr. Hartenstine’s Complaint against Attorney Carney and Ms. Bullock; R.R.
at 36a). Following the family court’s ruling, Mr. Hartenstine recommenced
the eviction action on August 26, 2013. The court granted Mr. Hartenstine
possession in the eviction action on September 17, 2013.
In Mr. Hartenstine’s complaint against Ms. Bullock and Attorney
Carney, filed on June 5, 2014, he alleged wrongful use of civil proceedings
(in violation of the Dragonetti Act at 42 Pa.C.S.A. § 8351 et seq.) and abuse
of process. At count one (wrongful use of civil proceedings), Mr. Hartenstine
averred, inter alia, Attorney Carney and Ms. Bullock acted without probable
cause and in a grossly negligent manner when they filed the divorce
complaint because they claimed Mr. Hartenstine and Ms. Bullock formed a
common-law marriage in a state that does not recognize common-law
marriage. At count two (abuse of process), Mr. Hartenstine asserted, inter
alia, Attorney Carney and Ms. Bullock wrongfully used the divorce action as a
tactical weapon against Mr. Hartenstine, in response to the eviction action,
to coerce Mr. Hartenstine to drop or settle the eviction action. Mr.
Hartenstine also sought punitive damages at both counts of the complaint.
On July 22, 2014, Attorney Carney filed preliminary objections based
on legal insufficiency. Regarding the wrongful use of civil proceedings count,
Attorney Carney claimed, inter alia, he had probable cause to initiate the
divorce action on behalf of Ms. Bullock where there was a “legal path” to a
finding of common-law marriage under the facts of this case, even where the
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court ultimately decided no common-law marriage existed. Attorney Carney
maintained the family court’s lengthy evaluation of the arguments and
evidence presented over the course of a two-day hearing demonstrated
Attorney Carney had some legal basis for filing the divorce action on Ms.
Bullock’s behalf. Attorney Carney averred Mr. Hartenstine’s complaint
contained no support for gross negligence. With respect to the abuse of
process count, Attorney Carney contended, inter alia, Mr. Hartenstine failed
to show Attorney Carney committed any act unauthorized by the divorce
proceeding. Attorney Carney further moved to strike the request for
punitive damages at both counts of the complaint where Mr. Hartenstine
failed to allege facts demonstrating Attorney Carney acted with malice.
The court sustained Attorney Carney’s preliminary objections on
December 19, 2014, and dismissed Mr. Hartenstine’s claims against him.
On December 23, 2014, the court entered default judgment against Ms.
Bullock for her failure to respond to the complaint and assessed damages
against her in the amount of $68,734.00. Mr. Hartenstine timely filed a
notice of appeal on January 7, 2015. On January 14, 2015, the court
ordered Mr. Hartenstine to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b); he timely complied on February 3,
2015.
Mr. Hartenstine raises the following issues for our review:
WAS THE ORDER APPEALED FROM A FINAL ORDER SUCH
THAT THE PENNSYLVANIA SUPERIOR COURT HAS
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JURISDICTION TO HEAR THIS APPEAL?
DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR
COMMIT AN ERROR OF LAW BY SUSTAINING A
PRELIMINARY OBJECTION TO A DRAGONETTI ACT
VIOLATION WHERE THE COMPLAINT PROPERLY PLED THE
ABSENCE OF PROBABLE CAUSE AND [ATTORNEY
CARNEY’S] GROSS NEGLIGENCE IN FILING A DIVORCE
ACTION EVEN THOUGH PENNSYLVANIA LAW DID NOT
RECOGNIZE THE EXISTENCE OF A COMMON LAW
MARRIAGE WHERE THE ALLEGED MARRIAGE OCCURRED
IN A STATE WHICH DID NOT RECOGNIZE COMMON LAW
MARRIAGE AND THE MARRIAGE WAS NOT OTHERWISE
RECOGNIZED?
DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR
COMMIT AN ERROR OF LAW BY SUSTAINING A
PRELIMINARY OBJECTION TO AN ABUSE OF PROCESS
CLAIM WHERE THE COMPLAINT PROPERLY PLED THAT
[ATTORNEY CARNEY] INSTITUTED AND MAINTAINED A
DIVORCE ACTION FOR THE IMPROPER PURPOSE OF
COERCING A SETTLEMENT IN ANOTHER UNRELATED
PENDING MATTER DESPITE THE ABSENCE OF A LEGALLY
RECOGNIZABLE MARRIAGE TO SUPPORT A REQUEST FOR
A DIVORCE?
DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR
COMMIT AN ERROR OF LAW BY SUSTAINING A
PRELIMINARY OBJECTION TO A DEMAND FOR PUNITIVE
DAMAGES, SINCE THE COMPLAINT SET FORTH
ALLEGATIONS OF OUTRAGEOUS AND MALICIOUS
CONDUCT INCLUDING THE SERVICE OF [A] LEGALLY
UNSUPPORTABLE DIVORCE COMPLAINT AT AN EVICTION
PROCEEDING?
(Mr. Hartenstine’s Brief at 4-5).2
In his first issue, Mr. Hartenstine argues the December 19, 2014 order
sustaining Attorney Carney’s preliminary objections resolved all claims
____________________________________________
2
For purposes of disposition, we have reordered Mr. Hartenstine’s issues.
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against Attorney Carney. Mr. Hartenstine asserts the court entered a default
judgment against Ms. Bullock on December 23, 2014, which resolved all
claims against the sole remaining defendant, so Mr. Hartenstine can now
challenge the court’s previous order sustaining Attorney Carney’s preliminary
objections. Mr. Hartenstine concludes this Court has jurisdiction in this
matter, and the appeal should proceed. We agree.
“The appealability of an order directly implicates the jurisdiction of the
court asked to review the order.” In re Estate of Considine v. Wachovia
Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009). As a result, “this Court has
the power to inquire at any time, sua sponte, whether an order is
appealable.” Id.; Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668,
673 (Pa.Super. 2007). “An appeal may be taken from: (1) a final order or
an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory order
as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission
(Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral order
(Pa.R.A.P. 313).” In re Estate of Cella, 12 A.3d 374, 377 (Pa.Super.
2010) (some internal citations omitted). Pennsylvania Rule of Appellate
Procedure 341 defines “final orders” and states:
Rule 341. Final Orders; Generally
(a) General rule. Except as prescribed in
subdivisions (d), and (e) of this rule, an appeal may be
taken as of right from any final order of an administrative
agency or lower court.
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(b) Definition of final order. A final order is any
order that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute; or
(3) is entered as a final order pursuant to subdivision
(c) of this rule.
(c) Determination of finality. When more than one
claim for relief is presented in an action, whether as a
claim, counterclaim, cross-claim, or third-party claim [or
when multiple parties are involved,] the trial court…may
enter a final order as to one or more but fewer than all of
the claims [and parties] only upon an express
determination that an immediate appeal would facilitate
resolution of the entire case. Such an order becomes
appealable when entered. In the absence of such a
determination and entry of a final order, any order…that
adjudicates fewer than all the claims [and parties] shall
not constitute a final order. …
Pa.R.A.P. 341(a)-(c) (effective July 1, 2014).3 Thus, “[u]nder Rule 341, a
final order can be one that disposes of all the parties and all the claims, is
expressly defined as a final order by statute, or is entered as a final order
pursuant to the trial court’s determination under Rule 341(c).” Estate of
Cella, supra at 378.
“[O]rders [sustaining] preliminary objections and disposing of only
some but not all of the underlying parties…are interlocutory and
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3
This version of Rule 341 was in effect when Mr. Hartenstine filed the notice
of appeal in this case. The current version of Rule 341 omits the prior
subsection (b)(2), which was rescinded. The remainder of Rule 341(a)-(c) is
substantially the same. See Pa.R.A.P. 341(a)-(c) (amended December 14,
2015; effective April 1, 2016).
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unappealable.” Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa.Super. 2003).
When a subsequent order or judgment disposes of the claims as to the
remaining party, however, the prior interlocutory order becomes “final” and
appealable for purposes of Rule 341. See, e.g., Strausser v. PRAMCO,
III, 944 A.2d 761 (Pa.Super. 2008) (explaining that where multiple
defendants in single action are removed from case in piecemeal fashion by
separate orders sustaining those defendants’ preliminary objections, each
order sustaining preliminary objections becomes appealable when suit is
resolved against final defendant); B.K. ex rel. S.K. v. Chambersburg
Hosp., 834 A.2d 1178 (Pa.Super. 2003), appeal denied, 577 Pa. 705, 847
A.2d 1276 (2004) (stating in action involving multiple defendants, order
granting summary judgment as to one party becomes appealable after
disposition of claims involving remaining parties); Gutteridge v. A.P.
Green Services, Inc., 804 A.2d 643 (Pa.Super. 2002), appeal denied, 574
Pa. 748, 829 A.2d 1158 (2003) (explaining trial court order declaring case
settled as to all remaining parties renders final for purposes of Rule 341
prior summary judgments in favor of some defendants).
Instantly, on March 31, 2015, this Court issued a per curiam rule to
show cause why the appeal should not be quashed as interlocutory where
the trial court’s December 19, 2014 order sustaining Attorney Carney’s
preliminary objections did not resolve the claims against all parties. Mr.
Hartenstine responded on April 10, 2015, explaining the court’s subsequent
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entry of default judgment and damages against Ms. Bullock on December
23, 2014 resolved the claims against the last remaining defendant and
rendered the prior order final and appealable. On April 21, 2015, this Court
discharged the rule to show cause, permitted the appeal to proceed, and
advised Mr. Hartenstine that he should be prepared to discuss the
jurisdictional issue on appeal. Our review of the record confirms the court’s
December 23, 2014 entry of default judgment against Ms. Bullock resolved
all claims against the sole remaining party, and made “final” and appealable
the December 19, 2014 order sustaining Attorney Carney’s preliminary
objections. See Pa.R.A.P. 341(b)(1); Strausser, supra; B.K., supra;
Gutteridge, supra. Thus, we have no jurisdictional impediments and will
review the merits of Mr. Hartenstine’s claims.
In his second issue, Mr. Hartenstine concedes Pennsylvania recognizes
common-law marriages contracted on or before January 1, 2005, in which
the party seeking to establish common-law marriage must show an instance
where an exchange of words in the present tense was spoken with the
specific purpose to create a legal relationship of husband and wife. Mr.
Hartenstine argues that under Pennsylvania law, the validity of a marriage is
determined by the law of the place where it was celebrated; and a marriage
invalid in the state where it was purportedly formed is invalid in all other
states. Mr. Hartenstine asserts Maryland does not recognize common-law
marriage and contends Attorney Carney filed the divorce complaint on the
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fundamentally flawed premise that Mr. Hartenstine and Ms. Bullock could
have entered into a common-law marriage in a state that does not recognize
common-law marriage. Mr. Hartenstine submits Attorney Carney lacked
probable cause to file the divorce complaint because the required “words of
present intent” allegedly took place in a state that does not recognize
common-law marriage. Mr. Hartenstine highlights that the court informed
Attorney Carney during a status conference in the divorce action that
Maryland does not recognize common-law marriage, but Attorney Carney
continued to litigate the divorce action anyway. Mr. Hartenstine insists
Attorney Carney knew or should have known with the exercise of due
diligence that Maryland does not recognize common-law marriage and any
alleged common-law marriage entered into in Maryland would be invalid in
Pennsylvania.
Mr. Hartenstine also avers “conduct evidence,” including evidence of
cohabitation and reputation in the community, is insufficient to prove he and
Ms. Bullock entered into a common-law marriage because such evidence is
admissible to prove common-law marriage only where one of the parties to
the alleged marriage is unavailable to testify about the “words of present
intent.” Even if “conduct evidence” were admissible in this case, Mr.
Hartenstine contends neither the divorce complaint nor the amended divorce
complaint contained any allegation that Mr. Hartenstine and Ms. Bullock
cohabitated or had a reputation in the community as husband and wife. Mr.
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Hartenstine emphasizes the sole basis for the supposed common-law
marriage pled in the divorce complaint and amended divorce complaint was
the alleged “words of present intent” exchanged in Maryland. Mr.
Hartenstine submits he sufficiently pled in his complaint that Attorney
Carney acted without probable cause in filing the divorce action on behalf of
Ms. Bullock for the wrongful purpose of obtaining a settlement in the
underlying eviction action. Alternatively, Mr. Hartenstine argues Attorney
Carney was grossly negligent in filing the divorce action where he knew or
should have known as a family law practitioner that the alleged common-law
marriage formed in Maryland could not be valid in Pennsylvania. Mr.
Hartenstine concludes the trial court committed legal error when it sustained
Attorney Carney’s preliminary objections to count one of the complaint for
wrongful use of civil proceedings, and this Court must reverse the order
sustaining preliminary objections. We disagree.
The relevant scope and standard of review in examining a challenge to
an order sustaining preliminary objections in the nature of a demurrer are as
follows:
Our review of a trial court’s sustaining of preliminary
objections in the nature of a demurrer is plenary.
Such preliminary objections should be sustained only
if, assuming the averments of the complaint to be
true, the plaintiff has failed to assert a legally
cognizable cause of action. We will reverse a trial
court’s decision to sustain preliminary objections
only if the trial court has committed an error of law
or an abuse of discretion.
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All material facts set forth in the complaint as well as
all inferences reasonably [deducible] therefrom are
admitted as true for the purpose of this review. 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.
Regarding a demurrer, this Court has held:
A demurrer is an assertion that a complaint does not
set forth a cause of action or a claim on which relief
can be granted. A demurrer by a defendant admits
all relevant facts sufficiently pleaded in the complaint
and all inferences fairly deducible therefrom, but not
conclusions of law or unjustified inferences. In ruling
on a demurrer, the court may consider only such
matters as arise out of the complaint itself; it cannot
supply a fact missing in the complaint.
Where the complaint fails to set forth a valid cause of
action, a preliminary objection in the nature of a demurrer
is properly sustained.
Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super. 2008) (emphasis in
original) (internal citations omitted).
Pennsylvania’s Dragonetti Act provides in pertinent part, as follows:
§ 8351. Wrongful use of civil proceedings
(a) Elements of action.—A person who takes part in
the procurement, initiation or continuation of civil
proceedings against another is subject to liability to the
other for wrongful use of civil proceedings:
(1) he acts in a grossly negligent manner or without
probable cause and primarily for a purpose other than that
of securing the proper discovery, joinder of parties or
adjudication of the claim in which the proceedings are
based; and
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(2) the proceedings have terminated in favor of the
person against whom they are brought.
* * *
§ 8352. Existence of probable cause
A person who takes part in the procurement, initiation or
continuation of civil proceedings against another has
probable cause for doing so if he reasonably believes in the
existence of the facts upon which the claim is based, and
either:
(1) reasonably believes that under those facts the
claim may be valid under the existing or developing law;
(2) believes to this effect in reliance upon the advice
of counsel, sought in good faith and given after full
disclosure of all relevant facts within his knowledge and
information; or
(3) believes as an attorney of record, in good faith
that his procurement, initiation or continuation of a civil
cause is not intended to merely harass or maliciously
injure the opposite party.
* * *
§ 8354. Burden of proof
In an action brought pursuant to this subchapter the
plaintiff has the burden of proving, when the issue is
properly raised, that:
(1) The defendant has procured, initiated or
continued the civil proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his
action.
(4) The primary purpose for which the proceedings
were brought was not that of securing the proper
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discovery, joinder of parties or adjudication of the claim on
which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in
section 8353 (relating to damages).
42 Pa.C.S.A. §§ 8351(a); 8352; 8354. To withstand a demurrer, a wrongful
use of civil proceedings complaint must at least include the factual
allegations required to carry the burden of proof set forth at Section 8354.
Gentzler v. Atlee, 660 A.2d 1378, 1381 (Pa.Super. 1995), appeal denied,
543 Pa. 694, 670 A.2d 142 (1995). At this stage in the proceedings,
however, the questions of whether the facts alleged in the complaint can be
proved or whether the plaintiff actually suffered any damages are not before
us; we must simply decide whether the plaintiff’s allegations make out a
cause of action under the applicable law. Id. “The existence of probable
cause is a matter of law for the court to decide and is a proper objection for
a defendant…to raise on preliminary objections.” Id. at 1382.
“A party has probable cause to bring an action when he ‘reasonably
believes’ in the facts on which it is based and in the viability of the legal
theory under which it is brought.” Id. (emphasis in original). In other
words:
If [the defendant] had a reasonable belief in the facts on
which the claim was based and in the validity of the claim
under existing or developing law, then [the plaintiff’s]
cause of action for wrongful use cannot succeed. On the
other hand, if [the defendant] lacked reasonable belief in
the facts alleged or the validity of the claim under existing
or developing law, and made the claim for an improper
purpose, then [the plaintiff’s] cause of action for wrongful
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use may proceed.
Id. Additionally:
Insofar as attorney liability is concerned, as long as
an attorney believes that there is a slight chance
that his client’s claims will be successful, it is not the
attorney’s duty to prejudge the case. Lawyers can
safely act upon the facts stated by their clients.
That being said, the plaintiff in a wrongful use of civil
proceedings action need not obtain the defendant’s
outright ‘confession’ of improper purpose; an improper
purpose may be inferred where the action is filed without
justification. Thus, a claim for wrongful use of civil
proceedings will lie if the trier of fact could reasonably
conclude that the defendant initiated the underlying
lawsuit without probable cause.
Perelman v. Perelman, 125 A.3d 1259, 1264 (Pa.Super. 2015) (internal
citations and quotation marks omitted). “[A]n attorney is entitled to rely in
good faith upon the statement of facts made to him by his client, and is not
under a duty to institute an inquiry for the purpose of verifying his
statement before giving advice thereon.” Kit v. Mitchell, 771 A.2d 814,
822 (Pa.Super. 2001), appeal dismissed as improvidently granted, 577 Pa.
69, 842 A.2d 368 (2004). “Lawyers can safely act upon facts stated by their
clients. They do not incur liability to third persons for filing civil proceedings
when the evidence of those facts is later found not credible by the court or
jury whose duty it is to try the case.” Meiksin v. Howard Hanna Co.,
Inc., 590 A.2d 1303, 1307 (Pa.Super. 1991), appeal denied, 528 Pa. 644,
600 A.2d 196 (1991). See also Kit, supra (affirming grant of judgment
notwithstanding verdict in favor of attorney on plaintiff’s wrongful use of civil
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proceedings claim; attorney had probable cause to seek enforcement of child
support order on behalf of his client, despite attorney’s knowledge that
plaintiff was not child’s biological father, under then-existing legal theories of
res judicata and paternity by estoppel). Compare Korn v. Epstein, 727
A.2d 1130 (Pa.Super. 1999), appeal denied, 560 Pa. 707, 743 A.2d 921
(1999) (affirming verdict against attorney for wrongful use of civil
proceedings, where attorney had pursued individual lawyers of law firm for
debt collection on behalf of court-reporter client; attorney lacked probable
cause to sue individual lawyers in absence of written and signed agreement
by lawyers to assume personal liability for law firm’s debt; attorney had
made several comments to individual lawyers about settling debt after
attorney filed suit; trial court could reasonably infer attorney’s pursuit of
action amounted to improper effort to extract settlement from individual
lawyers to pay debt); Gentzler, supra (reversing order sustaining
attorney’s preliminary objections to plaintiff’s wrongful use of civil
proceedings complaint, where attorney had filed lack of informed consent
and negligence complaint against plaintiff on behalf of attorney’s client
without probable cause or in grossly negligent manner; attorney’s lack of
informed consent claim had no legal support where plaintiff was treating
physician of attorney’s client and did not actually perform surgical procedure
at issue which required obtaining client’s informed consent; attorney’s
negligence claim also lacked legal support where attorney knew prior to
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filing suit plaintiff was not responsible for ordering administration of blood
products to client).
“The presence of probable cause, however, does not necessarily defeat
the entire cause of action for wrongful use of civil proceedings, as the clear
language of [42 Pa.C.S.A. §] 8351 permits a cause of action to be based on
gross negligence or lack of probable cause.” Keystone Freight Corp. v.
Stricker, 31 A.3d 967, 973 (Pa.Super. 2011) (emphasis in original). “Gross
negligence is defined, inter alia, as a lack of slight diligence or care, or a
conscious, voluntary act or omission in reckless disregard of a legal duty and
of the consequences to another party…” Hart v. O’Malley, 781 A.2d 1211,
1218 (Pa.Super. 2001). “Gross negligence has also been described as the
want of even scant care and the failure to exercise even that care which a
careless person would use.” Id. (internal citation and quotation marks
omitted). See also Keystone Freight, supra (affirming summary
judgment in favor of executrix and her attorneys in wrongful use of civil
proceedings suit; executrix and her attorneys had probable cause and did
not exercise gross negligence in bringing wrongful death/survival action
against trucking company, where they presented carefully reasoned
arguments supported by expert testimony for their claim of trucking
company’s negligence; trucking company also failed to produce any evidence
that executrix and attorneys commenced action for improper purpose).
Section 1103 of the Domestic Relations Code discusses the viability of
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common-law marriage in Pennsylvania and provides:
§ 1103. Common-law marriage
No common-law marriage contracted after January 1,
2005, shall be valid. Nothing in this part shall be deemed
or taken to render any common-law marriage otherwise
lawful and contracted on or before January 1, 2005,
invalid.
23 Pa.C.S.A. § 1103. Prior to its abolition, “[a] common-law marriage
[could] only [have been] created by an exchange of words in the present
tense, spoken with the specific purpose that the legal relationship of
husband and wife is created by such exchange.” Bell v. Ferraro, 849 A.2d
1233, 1235 (Pa.Super. 2004). “The burden to prove a common-law
marriage rests on the proponent of the marriage and such a claim must be
reviewed with great scrutiny.” Id. See also In re Estate of Rees, 480
A.2d 327 (Pa.Super. 1984) (explaining that words in praesenti are usually
required to establish common-law marriage relationship). “The common-law
marriage contract does not require any specific form of words, and all that is
essential is proof of an agreement to enter into the legal relationship of
marriage at the present time.” Staudenmayer v. Staudenmayer, 552 Pa.
253, 262, 714 A.2d 1016, 1020 (1998).
Generally, words in the present tense are required to
prove common-law marriage. Because common-law
marriage cases arose most frequently because of claims
for a putative surviving spouse’s share of an estate,
however, we developed a rebuttable presumption in favor
of a common-law marriage where there is an absence of
testimony regarding the exchange of verba in praesenti.
When applicable, the party claiming a common-law
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marriage who proves: (1) constant cohabitation; and, (2)
a reputation of marriage which is not partial or divided but
is broad and general, raises the rebuttable presumption of
marriage. Constant cohabitation, however, even when
conjoined with general reputation are not marriage, they
are merely circumstances which give rise to a rebuttable
presumption of marriage.
Id. at 262-63, 714 A.2d at 1020-21 (internal citations, quotation marks, and
footnotes omitted).
The rule permitting a court to find common-law marriage based on
reputation and cohabitation alone is one of necessity, applied only in cases
where other proof is unavailable. Estate of Rees, supra. “The ‘necessity’
that would require the introduction of evidence concerning cohabitation and
reputation of marriage is the inability to present direct testimony regarding
the exchange of verba in praesenti.” Staudenmayer, supra at 263, 714
A.2d at 1021. See also 20 Pa.C.S.A. § 2209 (stating: “A person who is or
claims to be the surviving spouse shall be a competent witness as to all
matters pertinent to his rights under this chapter other than the creation of
his status as the surviving spouse”); Estate of Stauffer, 504 Pa. 626, 476
A.2d 354 (1984) (holding Dead Man’s Act prohibited purported wife’s
testimony regarding exchange of “words of present intent” with her alleged
common-law husband). In other words, the rebuttable presumption in favor
of common-law marriage based on sufficient proof of cohabitation and
reputation of marriage is permitted as a remedial measure, where the
parties are otherwise unable to testify regarding the necessary “words of
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present intent.” Staudenmayer, supra at 264, 714 A.2d at 1021.
However, where the parties are available to testify
regarding verba in praesenti, the burden rests with the
party claiming a common-law marriage to produce clear
and convincing evidence of the exchange of words in the
present tense spoken with the purpose of establishing the
relationship of husband and wife, in other words, the
marriage contract. In those situations, the rebuttable
presumption in favor of a common-law marriage upon
sufficient proof of constant cohabitation and reputation for
marriage, does not arise.
By requiring proof of verba in praesenti where both parties
are able to testify, we do not discount the relevance of
evidence of constant cohabitation and reputation of
marriage. When faced with contradictory testimony
regarding verba in praesenti, the party claiming a
common-law marriage may introduce evidence of constant
cohabitation and reputation of marriage in support of his or
her claim. We merely hold that if a putative spouse who is
able to testify and fails to prove, by clear and convincing
evidence, the establishment of the marriage contract
through the exchange of verba in praesenti, then that
party has not met its “heavy” burden to prove a common-
law marriage, since he or she does not enjoy any
presumption based on evidence of constant cohabitation
and reputation of marriage.
Id. (internal footnote omitted) (holding appellant was not entitled to
rebuttable presumption in favor of common-law marriage through evidence
of constant cohabitation and reputation of marriage where she was available
to testify, and did testify (albeit unconvincingly), concerning exchange of
“words of present intent” between parties; thus, appellant failed to meet
burden to prove common-law marriage).
In general, the law of the state in which a marriage is celebrated
governs the validity of the marriage. Jewett v. Jewett, 175 A.2d 141, 142
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(Pa.Super. 1961). Ordinarily, a marriage valid in the state where it is
contracted is valid everywhere. Sullivan v. American Bridge Co., 176 A.
24, 25 (Pa.Super. 1935). The corollary of the general rule (if a marriage is
invalid in the state where it is contracted then it is invalid everywhere),
however, has been subject to some exceptions. See id. (affirming grant of
workers’ compensation benefits to claimant where claimant proved she
entered into common-law marriage with decedent; notwithstanding
claimant’s and decedent’s exchange of “words of present intent” in
Maryland, which does not recognize common-law marriage, immediately
following exchange of words, claimant and decedent constantly cohabitated
together in New Jersey and Pennsylvania, during time when those states
recognized common-law marriage, and held themselves out to community as
husband and wife; evidence presented made clear that decedent recognized
and regarded claimant as his wife).4 Compare Cooney v. W.C.A.B., 94
____________________________________________
4
In Sullivan, this Court relied on the United States Supreme Court decision
in Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865 (1907)
(holding decedent and putative spouse entered into common-law marriage in
New Jersey; following decedent and putative spouse’s invalid marriage
ceremony in Virginia for lack of proper license, they continuously cohabitated
as husband and wife and uniformly held themselves out as sustaining that
relation; evidence made clear that decedent recognized putative spouse as
his wife and held her out as such; decedent and putative spouse’s conduct
towards each other while they lived in New Jersey was equivalent, in law, to
declaration by each that they did, and during their joint lives were to,
occupy relation of husband and wife; such declaration was as effective to
establish status of marriage in New Jersey, as if it had been made by “words
of present intent” after they became domiciled in that state).
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A.3d 425 (Pa.Cmwlth. 2014), appeal denied, ___ Pa. ___, 109 A.3d 680
(2015) (affirming denial of workers’ compensation benefits to claimant
where she failed to prove she entered into common-law marriage with
decedent; decedent and claimant exchanged “words of present intent” in
2003 in Wyoming, which does not recognize common-law marriage; when
claimant and decedent moved to Pennsylvania in 2009 (cohabitating and
holding themselves out as “husband and wife”), common-law marriage was
already abolished; thus, decedent and claimant failed to perform acts which
would satisfy proof of common-law marriage while in state that recognized
common-law marriage at that time).
Instantly, Mr. Hartenstine’s underlying eviction action against Ms.
Bullock was scheduled to be heard on October 3, 2011. On that date,
Attorney Carney appeared in court as counsel for Ms. Bullock and served Mr.
Hartenstine with a divorce complaint. The divorce complaint alleged Ms.
Bullock and Mr. Hartenstine were married at common law, and sought, inter
alia, equitable distribution, alimony, and alimony pendente lite. Based on
the filing of the divorce complaint, the court determined the matter should
proceed in family court and dismissed Mr. Hartenstine’s eviction complaint
without prejudice.
On January 24, 2012, Mr. Hartenstine filed preliminary objections to
the divorce complaint, claiming the complaint failed to provide the time and
place of the alleged common-law marriage. The court granted Ms. Bullock
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leave to amend, and on February 21, 2012, Attorney Carney filed an
amended divorce complaint on Ms. Bullock’s behalf. The amended divorce
complaint alleged: “The parties are married at common law on August 4,
1995[,] in Baltimore, Maryland.” (See Amended Divorce Complaint at 1 ¶ 4,
attached as Exhibit B to Mr. Hartenstine’s Complaint against Attorney Carney
and Ms. Bullock; R.R. at 21a.)
On April 25, 2012, Ms. Bullock gave deposition testimony that on
August 4, 1995, she and Mr. Hartenstine exchanged “words of present
intent” at the Omni Hotel as follows: “We were sitting on the bed. We were
holding hands and [Mr. Hartenstine] said, we are married, you are my wife.
And I said, I will always love you. You are my husband.” (See Deposition
testimony of Ms. Bullock at 6, attached as Exhibit C to Mr. Hartenstine’s
Complaint against Attorney Carney and Ms. Bullock; R.R. at 31a.) Ms.
Bullock further testified that she and Mr. Hartenstine “lived together as
husband and wife” since 1991, and that Ms. Bullock’s daughter “assumed”
Ms. Bullock and Mr. Hartenstine were married.5 (Id. at 9; R.R. at 34a.)
Following a two-day hearing on June 10-11, 2013,6 the family court
issued findings of fact and conclusions of law on July 8, 2013. Specifically,
____________________________________________
5
Exhibit C to Mr. Hartenstine’s Complaint against Attorney Carney and Ms.
Bullock is only a brief excerpt of Ms. Bullock’s deposition testimony.
6
The certified record does not contain the notes of testimony from these
hearings.
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the family court found:
FINDINGS OF FACT
1. The parties traveled to Baltimore, Maryland for
[Mr. Hartenstine’s] birthday with [Ms. Bullock’s] daughter
on or about August 4, 1995.
2. [Ms. Bullock] contends that while they were in a
hotel room, [Mr. Hartenstine] stated to her “we are
married, you are my wife” to which [Ms. Bullock] replied “I
will always love you, you are my husband.”
3. Several of [Mr. Hartenstine’s] close friends
testified at the time of [the] hearing that [Ms. Bullock] and
[Mr. Hartenstine] never referred to each other as husband
and wife in the presence of close friends or public events.
4. Conversely, [Ms. Bullock and Ms. Bullock’s]
daughter testified that the parties introduced each other as
husband and wife at events.
5. [Ms. Bullock’s] daughter testified that she
believed [Ms. Bullock] and [Mr. Hartenstine] were married
since [Mr. Hartenstine] gave [Ms. Bullock] greeting cards
using the word “wife” and their behavior in living together
and sharing household and familial responsibilities. In
fact, [Ms. Bullock’s] daughter believed [Mr. Hartenstine]
was her biological father.
6. [Ms. Bullock] never told anyone she was married.
7. [Mr. Hartenstine] gave [Ms. Bullock] a wedding
band sometime after 1995 which [Ms. Bullock] wore until
2008.
8. One of [Mr. Hartenstine’s] friends testified that he
never saw [Ms. Bullock] wear her wedding band.
(However, this [c]ourt must countenance this with the fact
that this friend saw [Ms. Bullock] on camping trips where
jewelry [is] not customarily worn for safety purposes).
9. The parties lived together from 1995-2008.
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10. During the parties’ relationship, [Ms. Bullock]
mostly stayed on the parties’ farm and not with [Mr.
Hartenstine].
11. The parties’ former housekeeper testified that she
never saw any of [Ms. Bullock’s] clothes in the parties’
residence.
12. The parties filed as single on their tax returns
from the years 1996 to 1997.
13. The parties filed joint tax returns from the years
1998 to 2008.
(See Family Court’s Findings of Facts and Conclusions of Law at 2, attached
as Exhibit D to Mr. Hartenstine’s Complaint against Attorney Carney and Ms.
Bullock; R.R. at 36a.) Ultimately, the family court concluded Ms. Bullock
failed to prove by clear and convincing evidence the existence of a valid
common-law marriage.
Significantly, at the time Attorney Carney initiated the divorce action
on behalf of Ms. Bullock, he relied on information from his client, inter alia:
(1) Ms. Bullock and Mr. Hartenstine exchanged “words of present intent” on
August 4, 1995, in Baltimore, Maryland; (2) Ms. Bullock and Mr. Hartenstine
lived together in Pennsylvania as husband and wife since 1991, and
continued to live together in Pennsylvania after the exchange of words in
1995; (3) Ms. Bullock’s daughter believed Mr. Hartenstine and Ms. Bullock
were married and thought Mr. Hartenstine was her biological father; (4) Mr.
Hartenstine gave Ms. Bullock a wedding ring sometime after 1995; and (5)
Mr. Hartenstine and Ms. Bullock held themselves out as husband and wife at
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events. Attorney Carney was entitled to rely in good faith on the facts
disclosed by his client when he filed the divorce action, and to proceed with
the divorce action so long as he believed the common-law marriage theory
had even a slight chance of success. See Perelman, supra; Kit, supra;
Meiksin, supra.
Notwithstanding Mr. Hartenstine’s and Ms. Bullock’s alleged exchange
of “words of present intent” in a state that does not recognize common-law
marriage, under our Court’s analysis in Sullivan, Attorney Carney
reasonably believed a marriage contracted in a state that does not recognize
common-law marriage might be valid in Pennsylvania under the
circumstances described by his client. See 42 Pa.C.S.A. § 8352(1);
Sullivan, supra. In addition to relying on Sullivan, in his post-hearing
letter brief submitted in the divorce action, Attorney Carney cited numerous
cases from other jurisdictions to support his position. 7 (See Post-Hearing
Letter Brief at 1-3, attached as Exhibit C to Attorney Carney’s Preliminary
Objections, filed 7/22/14; R.R. at 93a-95a.) According to the family court’s
findings of fact, Ms. Bullock presented evidence that she and Mr. Hartenstine
lived together as husband and wife in Pennsylvania prior to the abolition of
common-law marriage in 2005, and enjoyed a reputation in the community
____________________________________________
7
Attorney Carney also cites and relies on Cooney in his appellate brief. The
Commonwealth Court had not yet decided Cooney at the time Attorney
Carney filed the divorce action on behalf of Ms. Bullock.
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of husband and wife during that time.8 These facts might have been
sufficient to establish common-law marriage under the law if believed by the
fact-finder. See 23 Pa.C.S.A. § 1103; Sullivan, supra.
Likewise, the record does not indicate a complete lack of diligence by
Attorney Carney or the failure to exercise the care even a careless person
would use in initiating the divorce action. See Hart, supra. To the
contrary, the record shows Attorney Carney presented during the divorce
proceedings careful arguments based on a reasonable interpretation of the
law. See Keystone Freight, supra. Thus, Mr. Hartenstine cannot show
Attorney Carney acted without probable cause or was grossly negligent in
____________________________________________
8
Ordinarily, testimony/evidence concerning Ms. Bullock’s and Mr.
Hartenstine’s cohabitation and reputation in the community would have been
inadmissible where both parties to the divorce action were able to testify
about the “words of present intent.” See Staudenmayer, supra; Estate
of Rees, supra. If Mr. Hartenstine disputed Ms. Bullock’s testimony about
the “words of present intent,” however, the court could have considered
cohabitation/reputation testimony. See Staudenmayer, supra. Because
the certified record does not contain the notes of testimony from the divorce
action hearings, we are unable to verify whether Mr. Hartenstine disputed
Ms. Bullock’s allegations about the “words of present intent” or even
objected to her testimony/evidence concerning cohabitation/reputation. It is
an appellant’s responsibility to ensure the certified record contains all
relevant notes of testimony. See Kessler v. Broder, 851 A.2d 944
(Pa.Super. 2004), appeal denied, 582 Pa. 676, 868 A.2d 1201 (2005)
(explaining it remains appellant’s responsibility to ensure that complete
record is produced for appeal; appellant’s failure to ensure certified record
contains sufficient information to conduct proper review may constitute
waiver of issues). To the extent Mr. Hartenstine complains on appeal the
family court should not have considered evidence of cohabitation/reputation,
that claim is not properly before this Court and we decline to comment on
the family court’s admission of evidence in the absence of a complete record
from those proceedings. See id.
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bringing or continuing the divorce claim on behalf of Ms. Bullock. See id.
See also Kit, supra. Compare Korn, supra; Gentzler, supra.
Therefore, Mr. Hartenstine’s second issue on appeal merits no relief.
In his third issue, Mr. Hartenstine argues Attorney Carney initiated the
divorce proceedings in response to the eviction proceedings, to coerce Mr.
Hartenstine into settling or dropping the eviction action. Mr. Hartenstine
asserts Attorney Carney’s decision to serve Mr. Hartenstine with the divorce
complaint at the hearing scheduled in the eviction proceedings was a
calculated move designed to coerce settlement. Mr. Hartenstine emphasizes
that his personal relationship with Ms. Bullock ended more than ten years
before Attorney Carney initiated the divorce action.9 Mr. Hartenstine claims
Ms. Bullock’s attempt to reach an agreement with Mr. Hartenstine after he
began the initial eviction action demonstrates the divorce action is meritless,
where Ms. Bullock did not contend she was Mr. Hartenstine’s common-law
wife during those attempted negotiations. Mr. Hartenstine insists Attorney
Carney’s attempt to extract a settlement in the eviction action by filing the
divorce complaint constituted a perversion of legal process. Mr. Hartenstine
maintains he suffered significant financial harm in defending the divorce
action, as well as physical and emotional stress. Mr. Hartenstine submits he
sufficiently pled in his complaint that Attorney Carney used legal process
____________________________________________
9
This averment contradicts Ms. Bullock’s contention that the relationship
ended in 2008.
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primarily to accomplish a purpose for which it was not intended, and that Mr.
Hartenstine suffered harm as a result. Mr. Hartenstine concludes the trial
court erred when it sustained Attorney Carney’s preliminary objections to
count two of the complaint for abuse of process, and this Court must reverse
the order sustaining preliminary objections. We agree.
Pennsylvania law defines a cause of action for abuse of process as
follows:
The tort of “abuse of process” is defined as the use of legal
process against another primarily to accomplish a purpose
for which it is not designed. To establish a claim for abuse
of process it must be shown that the defendant (1) used a
legal process against the plaintiff; (2) primarily to
accomplish a purpose for which the process was not
designed; and (3) harm has been caused to the plaintiff.
This tort differs from that of wrongful use of civil
proceedings in that, in the former, the existence of
probable cause to employ the particular process for its
intended use is immaterial. The gravamen of abuse of
process is the perversion of the particular legal process for
a purpose of benefit to the defendant, which is not an
authorized goal of the procedure. In support of this claim,
the [plaintiff] must show some definite act or threat not
authorized by the process, or aimed at an objective not
legitimate in the use of the process...; and there is no
liability where the defendant has done nothing more than
carry out the process to its authorized conclusion, even
though with bad intentions.
Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super. 1998), appeal denied,
556 Pa. 711, 729 A.2d 1130 (1998) (internal citations and quotation marks
omitted).
The gravamen of the misconduct for which the liability
stated…is imposed is not the wrongful procurement of legal
process or the wrongful initiation of criminal or civil
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proceedings; it is the misuse of process, no matter how
properly obtained, for any purpose other than that which it
was designed to accomplish. Therefore, it is immaterial
that the process was properly issued, that it was obtained
in the course of proceedings that were brought with
probable cause and for a proper purpose, or even that the
proceedings terminated in favor of the person instituting or
initiating them. The subsequent misuse of the process,
though properly obtained, constitutes the misconduct for
which the liability is imposed….
Rosen v. American Bank of Rolla, 627 A.2d 190, 192 (Pa.Super. 1993)
(internal citations omitted). “Abuse of process is, in essence, the use of
legal process as a tactical weapon to coerce a desired result that is not the
legitimate object of the process.” Werner v. Plater-Zyberk, 799 A.2d 776,
785 (Pa.Super. 2002), appeal denied, 569 Pa. 722, 806 A.2d 862 (2002).
The classic example [of abuse of process] is the initiation
of a civil proceeding to coerce the payment of a claim
completely unrelated to the cause of action sued upon. It
is not enough that the defendant had bad or malicious
intentions or that the defendant acted from spite or with
an ulterior motive. Rather, there must be an act or threat
not authorized by the process, or the process must be
used for an illegitimate aim such as extortion, blackmail, or
to coerce or compel the plaintiff to take some collateral
action.
Al Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 192 (Pa.Super.
1994) (internal citations and quotation marks omitted).
Instantly, Mr. Hartenstine alleged in his complaint at count two:
44. [Mr. Hartenstine] incorporates the foregoing
paragraphs as if set forth at length herein.
45. As set forth more fully above, [Ms.] Bullock,
through [Attorney] Carney, filed a Divorce Complaint
alleging that a common-law marriage was formed in a
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state that does not recognize common-law marriage.
[46.] [Ms. Bullock and Attorney Carney] wrongfully
used the Divorce Action as a tactical weapon against [Mr.]
Hartenstine in response to the Eviction Action in an
attempt to coerce [Mr.] Hartenstine into dropping the
Eviction Action or making a monetary settlement.
[47.] [Ms. Bullock and Attorney Carney] acted
maliciously and outrageously, and their conduct warrants
the imposition of punitive damages.
[48.] [Mr.] Hartenstine suffered significant emotional
distress over the nearly two year period which the Divorce
Action spanned and is entitled to emotional damages.
[49.] [Mr.] Hartenstine suffered substantial damages as
follows:
a. The payment of $56,464 in attorney’s fees;
b. Lost property rental from January 1, 2010 to
September 17, 2013 of $18,400;
c. Lost refinancing opportunity of $5,000;
d. Forced liquidation of stock costing him $17,000
due to an untimely sale and tax payment;
e. Mental pain and anguish that [led] to severe
dental problems costing $12,000;
f. Emotional pain that interfered with his
personal relationships.
(See Mr. Hartenstine’s Complaint against Attorney Carney and Ms. Bullock
at 10-11 ¶¶ 44-49; R.R. at 12a-13a.)10 The Complaint makes clear Mr.
Hartenstine alleged that Attorney Carney, acting on behalf of Ms. Bullock:
____________________________________________
10
Some of the paragraph formatting in the complaint is out of order.
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(1) used legal process against Mr. Hartenstine by filing a divorce complaint
against him on behalf of Ms. Bullock; (2) primarily to coerce Mr. Hartenstine
to drop or settle the underlying eviction action against Ms. Bullock; and (3)
specific harm, including but not limited to, emotional distress, lost property
rental revenue, and attorney’s fees. See id.; Shiner, supra.
At this early stage in the proceedings, we must accept all facts in the
complaint as true. See Lerner, supra. The facts as alleged in Mr.
Hartenstine’s complaint, if true, could entitle him to relief on his abuse of
process claim against Attorney Carney, where Mr. Hartenstine specifically
pled that Attorney Carney proceeded in the divorce action with the
illegitimate aim to coerce or compel Mr. Hartenstine to drop or settle the
underlying eviction action. See Werner, supra; Al Hamilton
Contracting, supra. Our determination that Attorney Carney had probable
cause to initiate the divorce action is immaterial to whether Attorney Carney
committed abuse of process by continuing with the divorce action for an
illegitimate purpose. See Rosen, supra. Based on Mr. Hartenstine’s
allegations in the complaint, we cannot say the denial of relief on his abuse
of process claim is so clear and free of doubt to sustain Attorney Carney’s
preliminary objections. See Lerner, supra. Accordingly, we reverse that
part of the trial court’s order sustaining Attorney Carney’s preliminary
objections with respect to Mr. Hartenstine’s abuse of process claim and
remand for further proceedings on that claim.
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In his fourth issue, Mr. Hartenstine argues Attorney Carney specializes
in the practice of family law, and he should have known a marriage contract
between Mr. Hartenstine and Ms. Bullock could not exist under the law
governing common-law marriage. Mr. Hartenstine reiterates that Attorney
Carney instituted, maintained, and prosecuted the divorce action for the
sole, illegitimate purpose of forcing Mr. Hartenstine to settle or drop the
eviction action. Mr. Hartenstine contends Attorney Carney’s actions
constitute outrageous and malicious conduct warranting punitive damages.
Mr. Hartenstine concedes that a request for punitive damages is a derivative
claim based on the success or failure of his wrongful use of civil proceedings
and abuse of process claims. Mr. Hartenstine concludes this Court must
reverse the trial court’s order sustaining Attorney Carney’s preliminary
objections and reinstate Mr. Hartenstine’s claim for punitive damages at
both counts of the complaint. We disagree.
The Dragonetti Act provides for specific damages:
§ 8353. Damages
When the essential elements of an action brought pursuant
to this subchapter have been established as provided in
section 8351 (relating to wrongful use of civil
proceedings), the plaintiff is entitled to recover for the
following:
(1) The harm normally resulting from any arrest or
imprisonment, or any dispossession or interference with
the advantageous use of his land, chattels or other things,
suffered by him during the course of the proceedings.
(2) The harm to his reputation by any defamatory
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matter alleged as the basis of the proceedings.
(3) The expense, including any reasonable attorney
fees, that he has reasonably incurred in defending himself
against the proceedings.
(4) Any specific pecuniary loss that has resulted from
the proceedings.
(5) Any emotional distress that is caused by the
proceedings.
(6) Punitive damages according to law in appropriate
cases.
42 Pa.C.S.A. § 8353.
“Punitive damages are, by definition, penal in nature, and not for the
purpose of providing additional compensation.” Hart, supra at 1217.
Rather, “punitive damages are an ‘extreme remedy’ available only in the
most exceptional circumstances.” Doe v. Wyoming Valley Health Care
System, Inc., 987 A.2d 758, 768 (Pa.Super. 2009).
Punitive damages may be appropriately awarded only
when the plaintiff has established that the defendant has
acted in an outrageous fashion due to either the
defendant’s evil motive or his reckless indifference to the
rights of others. A defendant acts recklessly when his
conduct creates an unreasonable risk of physical harm to
another and such risk is substantially greater than that
which is necessary to make his conduct negligent. Thus, a
showing of mere negligence, or even gross negligence, will
not suffice to establish that punitive damages should be
imposed. Rather, the plaintiff must adduce evidence which
goes beyond a showing of negligence, evidence sufficient
to establish that the defendant’s acts amounted to
intentional, willful, wanton or reckless conduct….
Id. In determining whether punitive damages are warranted, “we must
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analyze whether the complaint’s allegations establish that the actor actually
knew or had reason to know of facts which created a high risk of physical
harm to plaintiff. Further, the defendant must have proceeded to act in
conscious disregard of or indifference to that risk.” Field v. Philadelphia
Elec. Co., 565 A.2d 1170, 1182 (Pa.Super. 1989) (explaining imposition of
punitive damages is appropriate only where defendant’s conduct is
egregious; reversing order sustaining preliminary objections to claim for
punitive damages where complaint alleged, inter alia, defendant deliberately
operated nuclear plant in such manner that plaintiff was exposed to
dangerous levels of radiation, defendant lied to plaintiff about his potential
exposure to radiation, defendant deliberately exposed plaintiff to dangerous
levels of radiation again several months later, and defendant caused plaintiff
to be fired after he reported defendant’s actions to nuclear regulatory
commission).
Instantly, Mr. Hartenstine’s request for punitive damages derived from
his wrongful use of civil proceedings and abuse of process claims. The trial
court found both claims were legally insufficient, so the court sustained
Attorney Carney’s preliminary objections to the claim for punitive damages
based on that finding. Due to our disposition regarding Mr. Hartenstine’s
wrongful use of civil proceedings claim, we affirm the trial court’s order
sustaining Attorney Carney’s preliminary objections to the claim for punitive
damages at count one of the complaint.
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Regarding Mr. Hartenstine’s abuse of process claim at count two, Mr.
Hartenstine does not allege facts in his complaint which rise to the level of
conduct warranting imposition of punitive damages. (See Mr. Hartenstine’s
Complaint against Attorney Carney and Ms. Bullock at 10-11 ¶¶ 44-49; R.R.
at 12a-13a.) While Mr. Hartenstine describes Attorney Carney’s conduct as
“outrageous” and “malicious,” he does not plead facts demonstrating
Attorney Carney’s actions amounted to willful, wanton or reckless conduct.
See Doe, supra. Compare Field, supra. Therefore, the extreme remedy
of punitive damages is improper under the facts alleged at count two of the
complaint. See Doe, supra; Hart, supra; Field, supra. Accordingly, we
affirm the court’s order sustaining Attorney Carney’s preliminary objections
to the count for wrongful use of civil proceedings and for punitive damages
at both counts of the complaint; we reverse the trial court’s order sustaining
Attorney Carney’s preliminary objections to the abuse of process count and
remand for further proceedings on that count of the complaint against
Attorney Carney.
Judgment affirmed in part and reversed in part. Case remanded for
further proceedings. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2016
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