[J-120-2016] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
JEAN LOUISE VILLANI, INDIVIDUALLY : No. 66 MAP 2016
AND IN HER CAPACITY AS PERSONAL :
REPRESENTATIVE OF THE ESTATE OF : Appeal from the Order of the Chester
GUERINO VILLANI, DECEASED : County Court of Common Pleas, Civil
: Division, dated October 5, 2015
v. : amending the August 27, 2015 order at
: No. 2012-09795
JOHN SEIBERT, JR. AND MARY :
SEIBERT : ARGUED: December 6, 2016
--------------------------------------------- :
:
FREDERICK JOHN SEIBERT, JR. AND :
MARY SEIBERT :
:
v. :
:
JEAN LOUISE VILLANI AND THOMAS D. :
SCHNEIDER, ESQUIRE :
:
APPEAL OF: FREDERICK JOHN :
SEIBERT, JR. AND MARY SEIBERT :
CONCURRING OPINION
JUSTICE TODD DECIDED: April 26, 2017
I join the Majority Opinion in full, but write to make two additional points.
First, while I agree with the majority’s conclusion that the Dragonetti Act is not
unconstitutional as applied to attorneys, I underscore the issues the majority notes “may
bear closer review” in a future case — specifically, whether an attorney could be liable
under the Act for an award of punitive damages, and whether an attorney could be
liable despite a good faith argument that existing law should be changed. See Majority
Opinion at 23-24. Because the present challenge concerns a claim that attorneys have
generalized immunity to Dragonetti Act claims — an assertion we reject — and because
neither of the above more narrow issues are implicated by the facts of this case, the
majority appropriately does not address them. Yet, these questions focus on aspects of
the Dragonetti Act which, in my view, are most starkly in tension with our exclusive
authority to regulate the practice of law under Article V, Section 10(c) of the
Pennsylvania Constitution and will deserve close review when properly before our
Court.
My second observation also relates to Appellee’s concern that an attorney’s good
faith argument that existing law should be changed could lead to Dragonetti Act liability.
Section 8352 of the Act sets forth three scenarios under which a person has probable
cause for commencing or advancing litigation, and, thus, is not subject to liability.1 It
states:
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.
1
A prerequisite to liability under the Act is that the person act “in a grossly negligent
manner or without probable cause.” 42 Pa.C.S. § 8351.
[J-120-2016] [MO: Saylor, C.J.] - 2
42 Pa.C.S. § 8352. The concern forwarded by Appellee herein implicates the first
scenario, as Appellee offers that an attorney who seeks an “extension, modification or
reversal of existing law” as ethically permitted under the Rules of Professional Conduct2
might nonetheless be subject to Dragonetti Act liability because such a claim might not
be viewed as having been based upon a reasonable belief that “the claim may be valid
under the existing or developing law,” 42 Pa.C.S. § 8352(1) (emphasis added). See
Appellee’s Brief at 9. However, regardless of whether we might, in a future case,
construe “developing law” to encompass claims for an “extension, modification or
reversal of existing law” and, thus, preclude Dragonetti Act liability under Section
8352(1) on that basis, subsection (3) would appear to provide a safe harbor to attorneys
in such situations (as well as in other situtations). It specifically protects an “attorney of
record” who believes “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. § 8352(3). To Appellee’s concern, I would be hard-pressed to envision a
scenario in which an attorney who seeks, in good faith, the reversal of governing law
would be liable under the Act because he or she is nonetheless found to have “intended
to merely harass or maliciously injure the opposite party.”
2
See Pa.R.P.C. § 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for doing so that is
not frivolous, which includes a good faith argument for an extension, modification or
reversal of existing law.”).
[J-120-2016] [MO: Saylor, C.J.] - 3