Miller v. St. Luke's Univ. Health Network

J-A05036-16

2016 PA Super 134

HARRY H. MILLER, EXECUTOR OF THE IN THE SUPERIOR COURT OF
ESTATE OF REGINA C. MILLER, PENNSYLVANIA
DECEASED,

Appellant

v.

ST. LUKE’S UNIVERSITY HEALTH
NETWORK: ST. LUKE’S HOSPITAL OF
BETHLEHEM, PENNSYLVANIA D/B/A/ ST.
LUKE’S HOSPITAL; ST. LUKE’S HOSPITAL
& HEALTH NETWORK: SUSAN
SCHANTZ: RICHARD A. ANDERSON:
BLANK ROME, LLP: DAVID M. LOBACH,
II: SEYMOUR TRAUB AND ROBERT WAX,

Appellees

LESLIE A. HALL, EXECUTOR OF THE
ESTATE OF MARYILYN J. HALL,
DECEASED,

Appellant
v.

ST. LUKE’S UNIVERSITY HEALTH
No. 1193 EDA 2015
NETWORK: ST. LUKE’S HOSPITAL OF
BETHLEHEM, PENNSYLVANIA D/B/A ST.
LUKE’S HOSPITAL; ST. LUKE’S HOSPITAL
& HEALTH NETWORK: SUSAN SCHANTZ:
RICHARD A. ANDERSON: BLANK ROME,
LLP: DAVID M. LOBACH, II: SEYMOUR
TRAUB AND ROBERT WAX

Appeal from the Order Dated March 27, 2015
In the Court of Common Pleas of Lehigh County
J-A05036-16

Civil Division at No(s): 2013-C-993; 2013-C-994
===============================================
HARRY H. MILLER, EXECUTOR OF THE IN THE SUPERIOR COURT OF
ESTATE OF REGINA C. MILLER, PENNSYLVANIA
DECEASED,

Appellant

v.

ST. LUKE’S UNIVERSITY HEALTH
NETWORK: ST LUKE’S HOSPITAL OF
BETHLEHEM, PENNSYLVANIA D/B/A/ ST.
LUKE’S HOSPITAL; ST. LUKE’S HOSPITAL
& HEALTH NETWORK: SUSAN SCHANTZ;
RICHARD A. ANDERSON: BLANK ROME,
LLP: DAVID M. LOBACH, II: SEYMOUR
TRAUB AND ROBERT WAX,

Appellees

LESLIE A. HALL, EXECUTOR OF THE
ESTATE OF MARILYN J. HALL,
DECEASED,

Appellant
v.

ST. LUKE’S UNIVERSITY HEALTH
NETWORK: ST. LUKE’S HOSPITAL OF
BETHLEHEM, PENNSYLVANIA D/B/A ST. No. 1312 EDA 2015
LUKE’S HOSPITAL; ST. LUKE’S HOSPITAL
& HEALTH NETWORK: SUSAN SCHANTZ:
RICHARD A. ANDERSON: BLANK ROME,
LLP: DAVID M. LOBACH, II: SEYMOUR
TRAUB AND ROBERT WAX,

APPEAL OF: ST. LUKE’S UNIVERSITY
HEALTH NETWORK: ST. LUKE’S
HOSPITAL OF BETHLEHEM,
PENNSYLVANIA D/B/A ST. LUKE’S
HOSPITAL: ST. LUKE’S HOSPITAL &

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J-A05036-16

HEALTH NETWORK: SUSAN SCHANTZ:
RICHARD A. ANDERSON: BLANK ROME,
LLP

Appeal from the Order Dated March 27, 2015
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2013-C-993 & 2013-C-994

BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED June 24, 2016

These cases involve cross-appeals taken from the Order denying the

parties’ respective motions for post-trial relief after a jury determined

Appellants/Cross-Appellees had proven the tortious conduct of

Appellees/Cross-Appellants in this Dragonetti Act litigation but had failed to

prove they suffered resultant damages. Herein, Appellants contend that

damages must be awarded where the jury found tortious conduct on the

part of Appellees in the underlying proceedings, as the Dragonetti Act

presumes damages flow from proof of wrongful use of civil proceedings. In

their cross-appeal, Appellees argue that damages are an element to the

Dragonetti Act cause of action, such that Appellants’ failure to prove

damages to the satisfaction of the jury requires that judgment be entered in

Appellees’ favor. We affirm.

* Former Justice specially assigned to the Superior Court.

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The trial court provides an apt history of the case as follows:

These cases are part of the continuing legal sequelae of
admitted serial-killer Charles Cullen’s employment as a nurse in
the Coronary Care Unit at Defendant St. Luke’s Hospital from
June 5, 2000, until June 5, 2002. Cullen resigned his
employment with St. Luke’s when told he was suspected by the
hospital’s front-line nursing staff of administering unauthorized
medications to patients. Cullen was subsequently employed by
the Somerset, New Jersey, Medical Center, which, in October
2003, fired him for suspicion of causing abnormal chemistries
[in] its patients. In response to questioning by the New Jersey
State Police, Cullen confessed in December 2003 to having killed
patients in New Jersey and Pennsylvania, including five patients
while he was employed at St. Luke’s Hospital.

As testimony later revealed, before Cullen admitted to
having killed the five patients at St. Luke’s, front-line nurses at
St. Luke’s were frustrated by St. Luke’s response to their
concern that Cullen had been harming patients with diverted
medications; one of the nurses brought her concern to the
attention of the District Attorney of Lehigh County, whose
investigation bore little fruit; and death certificates had been
issued in each of those cases in which Cullen admitted to having
killed patients that their cause of death was consistent with the
progression of the respective diseases for which they had been
receiving treatment at St. Luke’s.

Cullen’s confession caused concern among families of other
patients who died during their hospitalization at St. Luke’s and
whose medical charts indicated Cullen treated them or may have
had access to them while patients at St. Luke’s. They
questioned whether their family members had also been victims
of Cullen’s diabolical actions. Among them were the families of
Regina Miller and Marilyn Hall. They retained counsel to obtain
that information and proceeded to file suit against Cullen and St.
Luke’s, Harry H. Miller, Executor of the Estate of Regina c. Miller,
Deceased v. St. Luke’s Hospital and St. Luke’s Hospital and
Health Network and Charles Cullen, No. 2004-C-2048V, and
Robert E. Hall, Jr., and Leslie A. Hall, Co-Executors of the Estate
of Marilyn J. Hall, Deceased v. St. Luke’s Hospital and St. Luke’s

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Hospital and Health Network and Charles Cullen, No. 2004-C-
2052V, as did other families.

After extensive discovery, Messrs. Miller and Hall’s cases,
among other cases, were dismissed on July 1, 2009, when
summary judgment was granted to St. Luke’s for lack of expert
testimony to establish a prima facie case of negligence. The
Superior Court affirmed on June 30, 2010. Nos. 3463 EDA 2009
and 3467 EDA 2009. These wrongful death cases are referred to
as “St. Luke’s I.”

Subsequent to the dismissal of the St. Luke’s I cases, St.
Luke’s filed suit against Messrs. Miller and Hall, their attorneys
and the doctor, John Shane, M.D., who authored a certificate of
merit in each case to proceed with the actions against St. Luke’s.
St. Luke’s claimed wrongful use of civil proceedings (Dragonetti
Act, 42 Pa.C.S.A. § 8351 et seq.), abuse of process, fraudulent
misrepresentation, civil conspiracy and RICO violations. []
These cases are referred to as “St. Luke’s II.” After depositions
taken in 2013, in which Messrs. Miller and Hall asserted they
relied on the advice of counsel in pursuing St. Luke’s I, St.
Luke’s voluntarily discontinued their claims against them, but not
against their attorneys or Dr. Shane []

Messrs. Miller and Hall (hereinafter referred to as the
“Plaintiffs”) then filed the within actions against St. Luke’s and
its attorneys, Blank Rome LLP, alleging abuse of process and
wrongful use of civil proceedings in St. Luke’s II claiming St.
Luke’s brought and prosecuted St. Luke’s II to intimidate them,
undermine their counsel’s work in other cases pending against
St. Luke’s at the time the St. Luke’s II cases were filed, chill the
efforts of potential plaintiffs and their counsel in future medical
malpractice actions against St. Luke’s, and advance St. Luke’s
political agenda of advocating tort reform. These cases are
referred to as “St. Luke’s III.”

These cases were tried together between June 16, and July
1, 2014, on the claim of wrongful use of civil proceedings as
embodied by the Dragonetti Act.[fn] On July 1, 2014, the jury

[fn]
By order of January 24, 2014, the court struck down
Plaintiff’s claim of abuse of process.

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J-A05036-16

found St. Luke’s did not have probable cause to continue St.
Luke’s II and, further, initiated or continued St. Luke’s II for an
improper purpose. It awarded no damages to the Plaintiffs and
found the conduct of St. Luke’s was not outrageous. As a result,
the court entered an order and molded verdict that, in relevant
part, reads the jury “found Defendants . . . to have acted
without probable cause and for an improper purpose but also
found that Plaintiffs suffered no damages as a result of said
Defendant’s conduct,” and “we the jurors impaneled in the
above-captioned cases, find in favor of Plaintiffs and against
Defendants . . . in no amount.”

St. Luke’s and Plaintiffs filed post-trial motions. St. Luke’s
contend[ed] it was entitled to judgment because (a) there was
no dispute of material fact that it commenced and pursued its
underlying Dragonetti actions in St. Luke’s II with probable
cause and for a proper purpose, and (b) damages are an
element of a Dragonetti claim, and the jury found Plaintiffs
suffered no damages. Plaintiffs contend[ed] a violation of the
Dragonetti Act presumes damages, and the court erred in not
instructing the jury on presumed or nominal damages.[fn]

[fn]
St. Luke’s contends Plaintiffs failed to preserve any claim for
post-trial review on the basis of an improper charge. It notes,
notwithstanding Plaintiffs’ assertions to the contrary, Plaintiffs
neither filed with the court [n]or served upon St. Luke’s any
proposed jury instructions in contravention of the court’s case
management orders nor did they object pre-trial to St. Luke’s
request that Pa.SSJI (Civ) § 17.90B not be read to the jury.
They did, however, preserve their objections at the charging
conference on June 27, 2014, and again after the jury was
charged by requesting the court read Pa.SSJI (Civ) § 1790 in its
entirety. See Harmen ex rel Harmen v. Borah, 756 A.2d
1116, 1124 (Pa. 2000) (“It is axiomatic that, in order to
preserve an issue for review, litigants must make timely and
specific objection during trial and raise the issue in post-trial
motions.”) (citing Takes v. Metropolitan Edison Co., 695
A.2d 397, 400 (Pa. 1997); McMillen v. 84 Lumber, Inc., 649
A.2d 932, 934 (Pa. 1994); Reilly v. Southeastern
Pennsylvania Transp. Auth., 489 A.2d 1291, 1296 (Pa. 1985).

They also contend[ed] the award of no damages was
inconsistent with the evidence presented as to the amount of

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J-A05036-16

their loss. They request[ed] a new trial limited to the amount of
damages only. [By its order and opinion of March 27, 2015, the
trial court denied the parties’ respective motions for post-trial
relief.]

Trial Court Opinion, filed March 27, 2015, at 2-5.

Appellants filed a timely appeal and Appellees cross-appealed.

Appellant raises one issue for our review:

Did the trial court err as a matter of law when it refused to
instruct the jury on the law of presumed damages as set forth in
the Standard Civil Jury Instruction on Damages in an action for
Wrongful Use of Civil Proceedings arising under the Dragonetti
Act, 42 Pa.C.S. § 8351, et seq.; or, in simpler terms, is the law
of damages in an action for wrongful use of civil proceedings
accurately described in Standard Civil Jury Instruction 17.90B?

Appellant’s brief at 4.

Though it is Appellant who contests the exclusion of Pennsylvania

Standard Civil Jury Instruction 17.90B (“Pa.SSJI (Civ) 17.90B”)1 from jury
____________________________________________

1
Standard Civil Jury Instruction 17.90B provides:

You may presume that the plaintiff suffered both injury to his
reputation and the emotional distress, mental anguish, and
humiliation that would normally result from conduct such as the
defendant’s. This means you need not have proof that the
plaintiff suffered any particular injury to his reputation or that he
plaintiff in fact suffered emotional distress, mental anguish, and
humiliation in order to award him damages for such harm.

In determining the amount of an award upon such presumed
injury to the plaintiff’s reputation and the plaintiff’s suffering of
emotional distress, mental anguish, and humiliation, you may
consider the character of the plaintiff and his general standing
and reputation in the community. You may also consider the
publicity that attended the defendant’s act. [If the defendant
(Footnote Continued Next Page)

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J-A05036-16

instructions given at trial, only Appellees included Pa.SSJI (Civ) 17.90B

among the proposed jury instructions filed with the court. Appellants did,

however, join Appellees’ request for the instruction during the charging

conference, but the trial court responded to the joint request with concern

that Pa.SSJI (Civ) 17.90B’s presumption of damages failed to comport with

the requirement in Section 8354 that a plaintiff bears the burden of proving

eligible damages set forth in Section 8353.

Nevertheless, after lengthy debate between counsel for Appellant and

the court, the court offered to give the Pa.SSJI (Civ) 17.90B instruction if

both parties requested it. Appellees, however, decided to withdraw their
_______________________
(Footnote Continued)

made a public retraction of this [charge] [claim] or apology to
those who learned of his [charge] [claim], such fact, together
with the timeliness and adequacy of the retraction or apology, is
important in determining the probable harm to the plaintiff’s
reputation.] [You may also take into account the defendant’s
unsuccessful assertion of probable cause as a matter likely to
affect the plaintiff’s reputation.] [You may also consider what
probable effect the defendant’s conduct had on the plaintiff’s
trade, business, or profession and the harm the plaintiff
sustained as a result of that conduct.]

The motive and purpose of the defendant, his belief or
knowledge of the falsity of the publication, and the conduct of
the plaintiff are not to be considered by you in determining the
amount of damages to which the plaintiff is entitled. Such
factors are only important in deciding whether you will award
punitive damages against the defendant and, if you decide to
make such an award, the amount of damages.

Pennsylvania Suggested Standard Civil Jury Instruction 17.90B (4 th
Edition), Pa.SSJI (Civ), § 17.90B.

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support for the instruction in favor of the charge authored by the court.

Accordingly, the court instructed the jury with its self-authored charge on

Wrongful Use of Civil Proceedings. See infra.

The question before us, therefore, is whether the trial court properly

declined to instruct the jury that Dragonetti Act damages are presumed to

flow from a defendant’s wrongful use of civil proceedings in favor of

instructing, instead, that a plaintiff who proves wrongful use still carries the

burden of proving resultant damages. Our review of challenges to jury

instructions is well-settled.

Under Pennsylvania law, our standard of review when
considering the adequacy of jury instructions in a civil case is to
determine whether the trial court committed a clear abuse of
discretion or error of law controlling the outcome of the case. It
is only when the charge as a whole is inadequate or not clear or
has a tendency to mislead or confuse rather than clarify a
material issue that error in a charge will be found to be a
sufficient basis for the award of a new trial.

Further, a trial judge has wide latitude in his or her choice of
language when charging a jury, provided always that the court
fully and adequately conveys the applicable law.

Philips v. Lock, 86 A.3d 906, 916–17 (Pa.Super. 2014).

In the instant case, the trial court gave the following instruction

relating to damages in a Wrongful Use of Civil Proceedings claim:

Under the law, the Plaintiff in each of [the] two cases [before
you] has the burden of proving his claim. . . . In a civil case, the
Plaintiff must prove his claims by a legal standard called a
preponderance of the evidence. The preponderance of the
evidence means that a fact is more likely true than not.

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***
The Plaintiffs, Mr. Hall and Mr. Miller, have the burden of proving
that each of the following is more likely true than not[:] [o]ne,
the Defendants did not have probable cause to initiate or
continue the lawsuit which we have called St. Luke’s II, against
the Plaintiff; two, the Defendants initiated, or continued that
lawsuit for an improper purpose; and three, the Plaintiff suffered
harm as a result of the Defendants’ conduct.

***
The fact that I am instructing you about damages does not imply
any opinion on my part as to whether damages should be
awarded. Each Plaintiff, Mr. Hall and Mr. Miller, is entitled to be
fairly and adequately compensated for all harm he suffered as
the result of the Defendant’s conduct.

The injuries for which you may compensate the Plaintiff by an
award of damages against the Defendants include[:] one, the
harm to the Plaintiff’s reputation, that you find resulted from the
Defendant’s conduct; and two, the emotional stress, mental
anguish, and humiliation that you find the Plaintiff suffered as
the result of the Defendant’s conduct, as well as the bodily
harm[,] if any, to the Plaintiff, that you find was caused by such
suffering.

The motive and purpose of the Defendant are not to be
considered by you in determining the amount of damages to
which Plaintiff is entitled. Any damages you deem appropriate to
award[] are solely to compensate the Plaintiff[] and not to
punish the Defendants.

N.T., 6/30/2014 at 121-22, 134.

Appellants contend the court’s charge contravenes language in the

Dragonetti Act entitling a plaintiff to recover enumerated damages once he

or she has proven the two essential elements of the action—neither of which

are damages—defined in Section 8351, infra. Nor does the policy of

deterrence underlining the Act’s purpose support the court’s instruction,

Appellants argue, as requiring plaintiffs to demonstrate specific examples of

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reputational harm and emotional distress before damages may be awarded

leaves open the “absurd” consequence of a mere “paper judgment, a

veritable slap on the wrist” befalling a defendant shown to have engaged in

wrongful use of proceedings.

Both the trial court and Appellees deny that the Dragonetti Act

presumes damages upon proof a defendant wrongfully used civil proceedings

as defined in Section 8351, infra. They maintain the court properly

instructed the jury in accordance with the Act as a whole when it advised

that a plaintiff who proves a defendant’s wrongful conduct is entitled to

compensation upon proof he or she suffered one or more of the enumerated

damages prescribed under the statute. With specific reference to the statute

itself, the trial court construes the Dragonetti Act as clear and free from all

ambiguity on the issue of damages where it provides “the plaintiff has the

burden of proving . . . [t]he plaintiff has suffered damages as set forth in

Section 8353 (relating to damages).” 42 Pa.C.S.A. § 8354, infra. We agree.

Because the question of whether the court’s instruction comports with

the Dragonetti Act turns on a construction of the Act, itself, the issue before

us concerns a matter of law. Thus, our standard of review is de novo and

our scope of review is plenary. See Commonwealth v. Spence, 91 A.3d

44, 46 (Pa. 2014) (citation omitted).

When construing a [statutory provision] utilized by the General
Assembly in a statute, our primary goal is “to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S. §
1921(a). “Every statute shall be construed, if possible, to give

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effect to all its provisions.” Id. However, “[w]hen the words of
a statute are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit. Id.
§ 1921(b). “Words and phrases shall be construed according to
rules of grammar and according to their common and approved
usage.” Id. § 1903(a). In other words, if a term is clear and
unambiguous, we are prohibited from assigning a meaning to
that term that differs from its common everyday usage for the
purpose of effectuating the legislature's intent.

Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa.Super. 2014). Accord

Strausser Enters., Inc. v. Segal & Morel, Inc., 89 A.3d 292, 297

(Pa.Super. 2014) (citation omitted) (“Under the Statutory Construction Act,

the object of all statutory construction is to ascertain and effectuate the

General Assembly's intention. When the words of a statute are clear and

free from all ambiguity, the letter of the statute is not to be disregarded

under the pretext of pursuing its spirit.”). Moreover, while titles or headings

are not controlling in statutory construction, they may be used as an aid in

ascertaining intent. 1 Pa.C.S. § 1924; Gerland v. Gerland, 703 A.2d 70,

73 (Pa.Super. 1997); Commonwealth v. Williams, 624 A.2d 171, 173

(Pa.Super. 1993).

Pennsylvania's Dragonetti Act defines a complaint for wrongful use of

civil proceedings under the Act 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

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parties or adjudication of the claim in which the proceedings are
based; and (2) The proceedings have terminated in favor of the
person against whom they are brought.

42 Pa.C.S.A. § 8351. The scheme clarifies the term “probable cause” as

used herein.

§ 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.

42 Pa.C.S.A. § 8352. The statute also enumerates eligible damages under

such an action:

§ 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 matter alleged
as the basis of the proceedings.

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(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. Importantly, the statute makes clear:

§ 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 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. § 8354.

As noted, Appellants center their position upon language within

Section 8353 providing that a plaintiff who has proven a defendant’s

wrongful use of civil proceedings under Section 8351 is “entitled to recover

for” certain damages enumerated in Section 8353. If Section 8353

represented the entirety of the statute’s discussion of damages in a

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Dragonetti Act claim, one could reasonably conclude the General Assembly

intended the presumption of such damages on nothing more than a

plaintiff’s proof of Section 8351 elements essential to the cause of action.

The statutory scheme, however, modifies Section 8353 with ensuing

Section 8354, which requires a plaintiff to bear the burden of proving, inter

alia, that he or she has suffered damages as set forth in Section 8353, when

the issue is properly raised. When read in pari materia, which, we find from

the plain language of the scheme, was clearly the General Assembly’s intent,

Sections 8353 and 8354 entitle a plaintiff who has established a defendant’s

wrongful use of civil proceedings to recover any of the prescribed statutory

damages he or she places in issue and demonstrates by a preponderance of

the evidence.

Construing the Act, instead, simply to presume damages from proof of

defendant’s wrongful conduct under Section 8351 would render the Section

8354 component part of the damages-related statutory scheme superfluous,

a nullity serving no purpose. Our rules of statutory construction, however,

do not permit us to invalidate a clearly expressed requirement in this

manner, nor may we disregard Section 8354’s directive that a plaintiff must

prove Section 8353 damages by a preponderance of the evidence where

such directive may be read in harmony with the “entitled to recover”

damages language of Section 8353. See, e.g., Commonwealth v. Office

of Open Records, 103 A.3d 1276, 1287-88 (Pa. 2014) (declining to

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construe one provision to nullify immediately preceding provision when rules

of statutory construction require reading provisions in harmony where both

can be made to stand together).

Accordingly, we discern no intent from the plain wording of the

statutory framework of the Dragonetti Act to presume damages upon proof

of a defendant’s wrongful conduct as defined in Section 8351. Had the

General Assembly intended presumed damages, it would not have fashioned

Section 8354 to place the onus upon a plaintiff to put in issue any damages

delineated under Section 8353 and to prove such damages by a

preponderance of the evidence. Read together, therefore, Sections 8353

and 8354 entitle a plaintiff, who prevails in his or her Section 8351 phase of

the action, to those statutorily prescribed damages which are properly

placed in issue and proven by a preponderance of the evidence.

In leaving it to the jury to decide whether Appellants proved by a

preponderance of the evidence that Appellant’s wrongful use of civil

procedure in St. Luke’s II caused harm to Appellees compensable under the

statute, the trial court properly conformed its instruction on damages to the

requirements of the Dragonetti Act. We, therefore, dismiss Appellant’s

challenge to the jury charge as meritless.2
____________________________________________

2
Because we deem the trial court’s instruction a fair and accurate reflection
of the law, we affirm on this basis and need not engage in an analysis of
Standard Civil Jury Instruction SCJI 17.90B. To the extent the trial court
(Footnote Continued Next Page)

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In Appellees’ cross-appeal, they raise the following pertinent issues:3

2. Whether the Trial Court’s denial of Defendant-Appellees’ []
motion for post-trial relief should be reversed where
Defendants are entitled to the entry of judgment in their
favor because the jury found in its July 1, 2014 verdicts
that Plaintiffs [Appellants] had failed to prove a requisite
element of their claims—the existence of damages?

3. Whether the Trial Court’s denial of [Appellees’] motion for
post-trial relief should be reversed where [Appellees] are
entitled to the entry of judgment in their favor because
[Appellants] failed to advance evidence on summary
judgment and at trial sufficient to warrant submission of
their Dragonetti claims to the jury?

Appellees’ brief at 3.

Appellees first claim they were entitled to entry of judgment in their

favor when the jury returned a verdict awarding Appellants no damages.

According to Appellees, the requisite elements to an action under the

Dragonetti Act are set forth in Section 8354, supra, which lists five burdens

of proof assumed by a plaintiff. Because Appellants failed to carry the fifth

and final one, placing a burden upon a plaintiff to prove he or she suffered

damages enumerated in Section 8353, they failed to establish all requisite

_______________________
(Footnote Continued)

analyzed the standard instruction in its March 27, 2015 Opinion, we agree
with its observation that standard instructions promulgated by the Civil
Instructions Subcommittee of the Pennsylvania Supreme Court Committee
for Proposed Standard Jury Instructions are not submitted to the High Court
for approval and are, therefore, are only suggested.
3
Our resolution of Appellant’s appeal obviates the need to address
Appellees’ first and fourth issues, which pertain to Appellants’ claim for
damages.

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elements to the wrongful use of civil proceedings action, Appellees maintain.

We disagree.

The heading to Section 8351(a), “elements of action,” unambiguously

provides that an action for wrongful use of civil proceedings comprises the

following elements: 1) the underlying proceedings were terminated in their

favor; 2) defendants caused those proceedings to be instituted against

plaintiffs without probable cause; and 3) the proceedings were instituted

primarily for an improper cause. See, e.g., Sabella v. Estate of Milides,

992 A.2d 180, 188 (Pa.Super. 2010) (quoting Hart v. O'Malley, 647 A.2d

542, 547 (Pa.Super. 1994)). See also Kit v. Mitchell, 771 A.2d 814 (Pa.

Super. 2001) (“Wrongful use of civil proceedings is a tort which arises when

a party institutes a lawsuit with a malicious motive and lacking probable

cause.” . . . The elements of the tort are set forth at 42 Pa.C.S.A. § 8351.”)

(internal quotation marks and citations omitted).

At the same time, however, this Court has recognized the delineation

of an additional factor described elsewhere in the statute—Section 8354—

that a plaintiff must show in order to recover in the action, namely, that the

plaintiff has suffered damages. Id. (referring to Section 8354) (citing Mi-

Lor, Inc. v. DiPentino, 439 Pa.Super. 636, 654 A.2d 1156, 1158 (1995).

A bifurcated, two-phase action, therefore, appears to be contemplated in the

Dragonetti Act, wherein the plaintiff must, first, prove the elements of the

underlying tort, expressed in Section 8351, upon which application of the

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remainder of the statutory scheme hinges and then, second, prove he or she

actually suffered one or more of the damages for which the statutory

scheme entitles recovery. Without making both demonstrations, a plaintiff

cannot recover compensation on the cause of action. Relatedly, the

Pennsylvania Supreme Court has stated:

This concern for dilatory, vexatious, or otherwise abusive
litigation conduct is reflected elsewhere in Pennsylvania law.
Specifically, our “Dragonetti Act,” 42 Pa.C.S. §§ 8351-55,
provides a statutory basis for relief for wrongful use of civil
proceedings.[] Under the Act, “[w]rongful use of civil
proceedings is a tort which arises when a party institutes a
lawsuit with a malicious motive and lacking probable cause.”
Ludmer v. Nernberg, 433 Pa.Super. 316, 640 A.2d 939, 942
(1994), appeal denied, 541 Pa. 652, 664 A.2d 542 (1995),
cert. denied sub nom Nernberg v. Ludmer, 517 U.S. 1220,
116 S.Ct. 1849, 134 L.Ed.2d 950 (1996) (internal quotation
marks omitted). “[T]he gravamen of this tort is the perversion
of legal process to benefit someone in achieving a purpose which
is not an authorized goal of the procedure in question.” Werner
v. Plater-Zyberk, 799 A.2d 776, 785 (Pa.Super. 2002). In
establishing entitlement to relief, a plaintiff under the Dragonetti
Act bears the burden of proving:

(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
discovery, joinder of parties or adjudication of the
claim on which the proceedings were based.
(5) The plaintiff has suffered damages....

42 Pa.C.S. § 8354 . . . . Thus, whether civil proceedings have
been tortiously used hinges on an aggrieved party's ability to

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demonstrate that the suitor instituted proceedings without
probable cause to do so. 42 Pa.C.S. 8354.

McNeil v. Jordan, 894 A.2d 1260, 1274-1275 (2006) (emphasis added).

In light of the foregoing, we discern no error with the entry of

judgment in favor of Appellants on their wrongful use of civil proceedings

cause of action, as defined in Section 8351, for the jury returned a verdict

finding Appellants had satisfied all essential elements to the action with

evidence that Appellees tortuously used civil proceedings in instituting and

advancing its underlying St. Luke’s II action. It was, nevertheless, the jury’s

prerogative to find Appellants failed to prove they suffered damages—as is

required under a separate part of the Act—as a result of Appellees’ tortious

conduct.

In Appellees’ remaining issue, they ask this Court to reverse the trial

court’s denial of their motion for post-trial relief asking for entry of judgment

notwithstanding the verdict for want of sufficient evidence to support

judgment in Appellants’ favor.

Our standard of review of an order denying judgment n.o.v. is
whether, reading the record in the light most favorable to the
verdict winner and granting the benefit of every favorable
inference, there is sufficient competent evidence to support the
verdict. Wenrick v. Schloemann-Siemag
Aktiengesellschaft, et al., 523 Pa. 1, 564 A.2d 1244 (1989).
Any conflict in the evidence must be resolved in the verdict
winners' favor. Jones v. Constantino, 429 Pa.Super. 73, 631
A.2d 1289 (1993), alloc. denied, 538 Pa. 671, 649 A.2d 673
(1994). Judgment n.o.v. may be granted only in clear cases
where the facts are such that no two reasonable minds could fail
to agree that the verdict was improper. Pirozzi v. Penske

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Olds-Cadillac-GMC, Inc., 413 Pa.Super. 308, 605 A.2d 373
(1992).

Bannar v. Miller, 701 A.2d 242, 246 (Pa.Super. 1997).

In the first part to its claim, Appellees contend a Dragonetti claim

requires expert testimony as a matter of law to assist the finder of fact in its

assessment of whether defendants instituted and pursued the underlying

action in accordance with an appropriate standard of professional care. See

Appellees’/Cross-Appellants’ brief at 31. In this regard, Appellees analogize

the necessity of an expert in this context to the general requirement of

expert testimony in legal malpractice cases under Pennsylvania law.

Appellees’/Cross-Appellants’ brief at 32.

To support their contention, Appellees cite to Schmidt v. Currie, 470

F.Supp. 2d 477, 483 (E.D.Pa. 2005), in which the federal district court

observed “the Pennsylvania Superior Court has . . . recently reiterated that

expert testimony to establish the standard of care in a [Dragonetti] action is

required unless the ‘issue is simple and the lack of skill obvious.’” Id. at 482

(citing Bannar v. Miller, 701 A.2d 242 (Pa. Super. 1997)). Only where the

lack of skill is so obvious as to be within the ordinary experience and

comprehension of a non-professional jury is an expert not required,

Schmidt observed. Id. at 483.

In Bannar, this Court rejected the argument that an expert was

required as a matter of law in the Dragonetti action before it where the

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Appellant failed to establish that the issues were too complex or beyond the

knowledge of the jury:

Our Supreme Court has established that in actions for legal
malpractice expert testimony is not required where the issues
are not “beyond the knowledge of the average person.” Rizzo
v. Haines, 520 Pa. 484, 501-02, 555 A.2d 58, 66 (1989).
Appellants make no contention the issues were complex or
beyond the knowledge of the average person. “Where the issue
is simple, and the lack of skill obvious, the ordinary experience
and comprehension of lay persons can establish the standard of
care.” Id. at 501, 555 A.2d at 66. Therefore, there was no
need for expert testimony on the issue of professional negligence
in this particular case.

Bannar at 249 (Pa. Super. 1997).

Here, Appellees baldly assert the underlying matters did not involve

simple matters of credibility, but rather required the jury “to navigate the

contours of professional legal judgment and determine whether to initiate or

continue a civil action against the [P]laintiff[s]….” Banner, however, did not

limit the scope of matters resting within the jury’s comprehension to those

involving issues of credibility, and Appellant fails to explain why the jury’s

experience and comprehensions in the present case would not have enabled

it to understand the evidence offered and establish the standard of care

therefrom. Moreover, to the degree Appellant attempts to infer the

necessity of an expert in a Dragonetti action from the requirement of

submitting a certificate of merit in a legal malpractice claim, we reject the

comparison, as we have held a claim of wrongful use of civil proceedings

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does not set forth a claim for legal malpractice, thus obviating the need for a

certificate of merit. Sabella, 992 A.2d at 189.

Appellees also seek judgment on the claim Appellants offered

insufficient evidence either directly establishing or allowing for the inference

that Appellees pursued their Dragonetti action in St. Luke’s II without

probable cause and for improper purpose. We reject this claim.

The touchstone of Appellees’ probable cause position focuses on the

2007 depositions of Appellants-as-plaintiffs in their wrongful death action

(St. Luke’s I), in which Appellants testified they had relied on counsel’s

advice in commencing their litigation. Appellees acknowledge a plaintiff’s

good faith reliance on the advice of counsel establishes the “probable cause”

defense to a Dragonetti Action, see Section 8352(2), supra, but they deny

the mere assertion of such reliance establishes the defense when a plaintiff

otherwise invokes attorney/client privilege that precludes further inquiry into

such advice. Without access to details underlying counsels’ advice to

Appellants in St. Luke’s I, Appellees argue, they could not possibly evaluate

whether Appellants actually sought and relied upon counsels’ advice in good

faith, as required under Section 8352(2).

Instead, it was not until they pursued their Dragonetti Action against

Appellants in St. Luke’s II and secured Appellants’ waiver of attorney/client

privilege during depositions that the role counsels’ advice had on Appellants’

decision to pursue the wrongful death action in St. Luke’s I became clear,

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Appellees maintain. Having only then ascertained Appellants’ sincere

reliance on counsels’ advice, Appellees posit, they discontinued their suit

against Appellants. Therefore, Appellees conclude, because Appellants failed

to establish their own probable cause to pursue the wrongful death action in

St. Luke’s I until supplying full disclosure during depositions in the St. Luke’s

II Dragonetti action pursued by Appellees, Appellees had probable cause to

institute and pursue their St. Luke’s II action up until the point Appellants

established their good faith reliance on counsels’ advice.

“An action for wrongful use of civil proceedings will be upheld if the

trier of fact could reasonably conclude that the defendant initiated the

underlying lawsuit without probable cause.” Broadwater v. Sentner, 725

A.2d 779, 784 (Pa.Super. 1999) (quoting Gentzler v. Atlee, 660 A.2d

1378, 1384 n. 9 (1995)). In the case sub judice, Appellants sought to prove

Appellees’ absence of probable cause to initiate the St. Luke’s II action 4 with

evidence that Appellants had instituted their respective St. Luke’s I wrongful

death actions: (1) with the support of a medical expert’s certificate of merit;

(2) amid substantiated reports that the hospital had neglected to heed

nursing staff members’ serious concerns about Nurse Cullen, who had

treated Appellants’ respective decedents; and (3) on the advice of counsel,
____________________________________________

4
See Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 86 (Pa.Super.
1995) (holding Dragonetti Act plaintiff has burden of proving absence of
probable cause).

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according to their respective testimonies offered during depositions taken in

their wrongful death actions. Evidence of Appellees’ press release

announcing they had commenced a wrongful use of civil proceedings action

against Appellants, Appellants’ lawyers, and the physician who supplied the

certificate of merit in St. Luke’s I for, inter alia, for conspiratorial conduct

consistent violative under the RICO statutes was further admitted as

evidence of Appellees’ state of mind in initiating the St. Luke’s II suit. Given

the totality of such evidence, with particular consideration devoted to

Appellees’ failure to point to anything in the record that would have cast

doubt upon the sincerity of Appellants’ respective claims they, as laypersons,

relied in good faith on their counsels’ advice, we discern no reason to disturb

the jury’s determination that Appellees acted without probable cause in

pursuing its claim of wrongful use of civil proceedings.

The same body of evidence militates in favor of upholding the

sufficiency of evidence of an improper purpose to the St. Luke’s II action

against Appellants Hall and Miller. Pennsylvania law allows a finder of fact to

infer improper purpose from want of probable cause to maintain or continue

the proceedings. Buchleitner v. Perer, 794 A.2d 366, 377 (Pa.Super.

2002) (citations omitted). Here, it was within the province of the jury to

infer from the evidence a primary purpose to the St. Luke’s II action of

specifically retaliating against Appellants Miller and Hall as well as generally

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deterring or intimidating the public at-large with respect to filing a

negligence-based claim based on the Nurse Cullen controversy.5

For the foregoing reasons, we affirm the Order upholding the judgment

entered below.

Order AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2016

____________________________________________

5
Because it was, likewise, within the province of the jury to disbelieve the
testimony of Appellees’ attorneys as to their primary purpose for instituting
and pursuing the St. Luke’s II action against Appellants Miller and Hall, we
deem Appellees’ Section 8352(3) argument relating to their attorneys’
probable cause defense unavailing, as well.

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