J. A16042/18
2019 PA Super 72
NANCY K. RAYNOR, ESQUIRE AND : IN THE SUPERIOR COURT OF
RAYNOR & ASSOCIATES, P.C., : PENNSYLVANIA
:
Appellants :
:
v. :
:
MATTHEW D'ANNUNZIO, ESQUIRE; :
KLEHR HARRISON HARVEY :
BRANZBURG LLP; :
WILLIAM T. HILL, ESQUIRE; :
MESSA & ASSOCIATES, P.C.; :
JOSEPH MESSA, JR., ESQUIRE AND :
ROSALIND W. SUTCH, AS EXECUTRIX : No. 3313 EDA 2017
OF THE ESTATE OF ROSALIND WILSON,:
DECEASED :
Appeal from the Order, August 29, 2017,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 00211, January Term 2017
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED MARCH 08, 2019
Nancy K. Raynor, Esq., and Raynor & Associates, P.C. (collectively,
“appellants”), appeal from the August 29, 2017 order entered by the Court of
Common Pleas of Philadelphia County sustaining preliminary objections filed
by Matthew D’Annunzio, Esq.; Klehr Harrison Harvey Branzburg LLP;
William T. Hill, Esq.; Messa & Associates, P.C.; Joseph Messa, Jr., Esq.; and
Rosalind W. Sutch, as executrix of the Estate of Rosalind Wilson, deceased
(collectively, “appellees”), and dismissing appellants’ complaint with
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prejudice. After careful review, we affirm in part, reverse in part, and remand
for further proceedings.
The trial court provided the following synopsis of the relevant facts and
procedural history:
This case evolves from the acrimonious relationship
between opposing counsel in the matter of Sutch v.
Roxborough [Mem’l Hosp.], et al., July Term 2009
No. 901. In the underlying case, [appellants] served
as defense counsel for Dr. Jeffrey Gellar and
Roxborough Emergency Physician Associates.
[Appellees] were the plaintiff’s counsel and plaintiff,
respectively, in the underlying action. The Superior
Court described the facts underlying the instant case
as a “contempt narrative [that] took on a life of its
own . . . [in which Mr. Messa, and Mr. D’Annunzio]
presented their conclusions with transparent venom,
bloom, innuendo and increased outrage, refreshed
periodically with personal attacks on Ms. Raynor.”
Sutch v. Roxborough [Mem’l Hosp.], 142 A.3d 38,
79 (Pa.Super. 2016).
According to the Complaint, [Ms.] Sutch, through her
counsel[, Messrs.] D’Annnzio, Hill, and Messa, filed
suit against inter alia Roxborough Memorial Hospital,
Roxborough Emergency Physician Associates, and
Dr. Jeffrey Gellar (collectively referred to as
“Roxborough”), alleging Roxborough’s failure to
obtain a recommended CT scan during a May 3, 2007
emergency room visit resulted in a missed opportunity
to diagnose and treat Decedent Rosaline [sic] Wilson’s
lung cancer. The Sutch trial commenced on May 21,
2012. As a result of a pre-trial ruling on a motion
in limine, [Ms.] Raynor and Roxborough were
precluded from presenting evidence or argument
regarding Rosaline [sic] Wilson’s history of smoking.
At the start of the defense case, [Messrs.] Messa and
D’Annunzio requested an order from the trial judge,
the Honorable Paul Panepinto, directing [Ms.] Raynor
to inform her witnesses of the ban on smoking
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immediately before they took the stand.
Judge Panepinto responded:
[COURT]: Okay. Well, I don’t have a
response. They know the rules. So I
assume – did you talk with them? Maybe
you didn’t bring that up this morning.
During the defense case-in-chief, [Ms.] Raynor asked
Roxborough’s expert, John J. Kelly, D.O., about
Ms. Wilson’s cardiac risk factors. Dr. Kelly’s response
included that she was a smoker. Outside of the
presence of the jury, [Messrs.] Messa and D’Annunzio
objected to Dr. Kelly’s testimony because it mentioned
Ms. Wilson’s smoking history. Judge Panepinto
conducted a colloquy of Dr. Kelly, who testified that
he did not recall being instructed by [Ms.] Raynor
about the pre-trial in limine ruling concerning
smoking. Following Judge Panepinto’s colloquy with
Dr. Kelly, [Mr.] D’Annunzio argued [Ms.] Raynor
should be held in contempt for disregarding direct,
specific, instructions from the trial court that
immediately before taking the stand, each witness
should be instructed not to mention smoking.
[Ms.] Raynor responded that she had instructed
Dr. Kelly not to mention smoking, and her question
was not intended to elicit testimony concerning
smoking; rather the question was meant to elicit
testimony concerning vascular disease and other
issues with Ms. Wilson’s carotid artery.
The following day, Judge Panepinto held an
in camera conference concerning the reference to
smoking. At the conference, [Mr.] Messa argued
i) [Ms.] Raynor acted intentionally or recklessly in
asking the question, ii) [Ms.] Raynor lied to the Court
when she stated that she had informed Dr. Kelly about
the preclusion of testimony related to smoking, and
iii) the Court should grant a mistrial, or in the
alternative, grant sanctions such as striking Dr. Kelly’s
testimony, striking Dr. Geller’s entire defense,
disqualifying [Ms.] Raynor as counsel, and/or
providing a curative instruction. Judge Panepinto
denied the request for a mistrial and chose to give a
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curative instruction to the jury. On June 8, 2012, the
jury returned a verdict in favor of [Ms.] Sutch for
$190,000.
[Ms.] Sutch, through her counsel[, Messrs.] Messa
and D’Annunzio, filed post-trial motions seeking a new
trial due to Dr. Kelly’s smoking reference, and, in the
event Judge Panepinto granted the new trial, seeking
sanctions against [Ms.] Raynor and her clients in the
amount of [counsel] fees and costs incurred in
preparing for and attending the original trial.
Judge Panepinto granted the request for a new trial.
Trial court opinion, 8/29/17 at 1-4 (footnote and citations to the record
omitted).
This court affirmed the trial court’s order granting a new trial on
November 4, 2013. See Sutch v. Roxborough Mem’l Hosp., 91 A.3d 1273
(Pa.Super. 2013) (unpublished memorandum).
Subsequently, on March 11, 2014, the trial court
ordered a hearing on [appellees’] motion for
contempt/sanctions, limited to issues concerning
whether sanctions should be imposed. The order
stated, “Any evidence with regard to the type of
sanctions to be imposed, monetary or otherwise will
be held under advisement pending the scheduling of
a subsequent hearing if necessary.” (See Trial Court
Order, filed March 11, 2014, at 1[].) On March 14,
2014, Ms. Raynor filed a motion to determine the
nature of the sanctions sought by [appellees.
Appellees] responded and specified costs and fees
under 42 Pa.C.S.A. § 2503(7) for dilatory, obdurate,
or vexatious conduct; civil contempt; and direct
criminal contempt.
Sutch v. Roxborough Mem’l Hosp., 142 A.3d 38, 55 (Pa.Super. 2016)
(citation omitted). Prior to the hearing, the trial court indicated that it would
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not take up the matter as a criminal proceeding for criminal contempt. Id. at
56.
On March 27, 2014 and March 31, 2014,
Judge Panepinto conducted hearings on whether
[Ms.] Raynor should be held in contempt or
sanctioned; at those hearings, [Messrs.] Messa and
D’Annunzio presented only the notes of testimony
from the first Sutch trial. According to [appellants,
Messrs.] Messa and D’Annunzio improperly argued,
both in briefing and at oral argument, that
[Ms.] Raynor deliberately violated an order requiring
her to inform all of her witnesses of the ban on
discussing [Ms.] Wilson’s history of smoking
immediately before those witnesses took the stand
even though the only order that existed was the order
excluding references to smoking. Judge Panepinto
issued an Order dated May 2, 2014, and docketed
May 5, 2014, that sanctions shall be imposed upon
[Ms.] Raynor. [Messrs.] Messa and D’Annunzio,
together with their respective firms, filed a brief
requesting a total of $1,349,063.67 in sanctions.
[Appellants] filed a response, challenging the
requested amounts. Without holding an additional
hearing as to the amount of the sanction,
Judge Panepinto issued an order docketed on
November 4, 2014 sanctioning [appellants] in the
amount of $946,195.16, divided as follows:
$615,349.50 to Klehr Harrison, $160,612.50 to the
Messa Firm, and $170,235.16 to [Ms.] Sutch.
[Appellants] filed an appeal to the Superior Court.
On January 8, 2015, while the appeal to the Superior
Court was pending, [Messrs.] Messa and D’Annunzio
entered judgment on Judge Panepinto’s November 4,
2014 Order and the next day issued writs of
attachment, executions in attachment, and summons
upon various garnishees, which had the effect of
freezing [Ms.] Raynor’s personal and law firm bank
accounts and placing a lien upon [Ms.] Raynor’s home.
The Superior Court, by Order dated February 18,
2015, stayed all existing execution and garnishment
actions, as well as any future proceedings in the case,
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thereby permitting [appellants] access to their bank
accounts. By Opinion dated June 15, 2016, the
Superior Court reversed Judge Panepinto’s Orders of
May 2, 2014 and November 4, 2014, thereby vacating
all sanctions and judgments taken thereon. According
to the Complaint, the Superior Court’s central holdings
were 1) [Ms.] Raynor could not have intentionally
violated Judge Panepinto’s order to instruct every
witness of the prohibition on mentioning smoking
immediately before the witness took the stand
because no such order existed, and 2) no evidence of
record existed to prove that [Ms.] Raynor colluded
with Dr. Kelly in an effort to flout the in limine ruling
barring testimony about smoking. The Supreme
Court denied the Petition for Allowance of Appeal.[1]
[Appellants] commenced the instant case by Writ of
Summons on January 3, 2017. The Complaint, filed
April 6, 2017, sounds in 1) violation of the Dragonetti
Act,[2] 2) common law wrongful use of civil
proceedings, and 3) abuse of process. The crux of the
Complaint is [appellees] knew their requests for
sanctions and contempt were wholly unsupported by
facts and law, yet they nevertheless pursued
sanctions and contempt for the vindictive purpose of
destroying [Ms.] Raynor’s professional livelihood and
personal life.
[Mr.] D’Annunzio, Klehr Harrison Harvey Branzburg
LLP, [Mr.] Hill, []and [Ms.] Sutch [] (collectively, “the
D’Annunzio [appellees]”) filed Preliminary Objections
arguing 1) [Ms.] Sutch was improperly added as a
party because she was named in the Complaint but
not the Writ of Summons, 2) demurrer to all claims
against [Ms.] Sutch because there are no allegations
of any actions taken by [Ms.] Sutch, 3) [appellants]
lack standing to bring a Dragonetti claim because they
were not a party to the underlying action, 4) demurrer
to the Dragonetti claim because moving for sanctions
or contempt does not constitute “procurement,
1 Sutch v. Roxborough Mem’l Hosp., 163 A.3d 399 (Pa. 2016).
2 42 Pa.C.S.A. §§ 8351-8354.
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initiation or continuation of civil proceedings” within
the meaning of the Dragonetti Act, 5) demurrer to the
Dragonetti claim because Judge Panepinto’s Order of
May 2, 2014 established that probable cause existed
to seek sanctions and/or contempt, 6) public policy
prohibits a Dragonetti claim based on the pursuit of
sanctions and/or contempt, 7) demurrer to the
common law wrongful use of civil proceedings claim
because such a claim has been subsumed by the
Dragonetti Act, 8) demurrer to the abuse of process
claim because it is barred by the statute of limitations,
9) demurrer to the abuse of process claim because
there is no perversion of the legal process by pursuing
the request for sanctions and/or contempt, and
10) paragraph 111 should be stricken as scandalous
and impertinent.
[] Messa & Associates, P.C. and [Mr.] Messa
(collectively “the Messa [appellees]”) filed Preliminary
Objections arguing 1) [appellants] lack standing to
bring a Dragonetti claim because they were not a
party to the underlying action, 2) demurrer to the
Dragonetti claim because moving for sanctions or
contempt does not constitute “procurement, initiation
or continuation of civil proceedings” within the
meaning of the Dragonetti Act, 3) demurrer to the
Dragonetti claim because probable cause existed to
seek sanctions and/or contempt, 4) demurrer to the
common law wrongful use of civil proceedings claim
because such a claim has been subsumed by the
Dragonetti Act, 5) demurrer to the abuse of process
claim because it is barred by the statute of limitations,
and 6) demurrer to the abuse of process claim
because there is no perversion of the legal process by
pursuing the request for sanctions and/or contempt.
[Appellants] filed Responses in Opposition to both sets
of Preliminary Objections. Additionally, [appellants]
filed Preliminary Objections to the Messa [appellees’]
Preliminary Objections and Preliminary Objections to
the D’Annunzio [appellees’] Preliminary Objections in
which they argue the preliminary objection to the
abuse of process claim based on the statute of
limitations should be stricken because the statute of
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limitation[s], an affirmative defense, cannot be raised
by preliminary objection. The Messa [appellees] and
the D’Annunzio [appellees], respectfully, opposed
[appellants’] Preliminary Objections to their
Preliminary Objections.
Trial court opinion, 8/29/17 at 4-7 (footnotes and citations to the record
omitted).
On August 29, 2017, the trial court sustained appellees’ preliminary
objections and dismissed appellants’ complaint with prejudice. Appellants
filed a notice of appeal to this court on September 27, 2017. The trial court
did not order appellants to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Pursuant to Pa.R.A.P. 1925(a), the trial
court filed an opinion, in which it incorporated the contents of its opinion and
order dated August 29, 2017.
Appellants raise the following issues for our review:
1. Is the term “civil proceedings,” as used in
Section 8351(a) of the Dragonetti Act,
sufficiently broad to encompass the wrongful
use of a civil proceeding other than an entire
lawsuit, i.e., something other than a civil action
complaint?
2. Did [appellants], as the parties against whom a
wrongful civil proceeding was initiated,
procured, and continued, have standing to bring
a claim under the Dragonetti Act?
3. May two claims that are mutually exclusive be
properly maintained, when they are plainly pled
in the alternative and a legal challenge to one of
the mutually exclusive claims is predicted to
occur in the appellate courts, where the
[appellants] asserting the two mutually
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exclusive claims intend only to rely on the
second claim if the legal challenge to the first
results in the unavailability of the first claim in
[appellants’] case?
4. Did [appellants] sufficiently plead their abuse of
process claim by alleging that [appellees] used
a civil process primarily to accomplish a purpose
that was improper, not legitimate, and/or not
the purpose for which the process was
designed?
Appellants’ brief at 6-7.
Appellants appeal from an order sustaining preliminary objections.
Accordingly, we are governed by the following standard:
[O]ur standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error
of law. When considering the appropriateness of a
ruling on preliminary objections, the appellate court
must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test
the legal sufficiency of the complaint. When
considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as
true, as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained only
in cases in which it is clear and free from doubt that
the pleader will be unable to prove facts legally
sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the
preliminary objections.
Richmond v. McHale, 35 A.3d 779, 783 (Pa.Super. 2012), quoting
Wayne M. Chiurazzi Law Inc. v. MRO Corp., 27 A.3d 1272, 1277
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(Pa.Super. 2011), rev’d on other grounds, 97 A.3d 275 (Pa. 2014) (citations
omitted).
I.
First, appellants argue that the trial court erred when it held that a
“civil proceeding” for the purposes of a cause of action pursuant to the
Dragonetti Act does not encompass contempt proceedings. (Appellants’ brief
at 25.) Specifically, appellants aver that there is no “per se rule that
Dragonetti claims can never be based on the ‘procurement, initiation or
continuation’ of something less than an entire civil action.” (Id. at 32-33
(emphasis omitted).) The trial court concluded that “[r]equesting sanctions
and/or finding of contempt as part of a post-trial motion does not constitute
the ‘procurement, initiation, or continuation of civil proceedings’ under the
Dragonetti Act because the request for sanctions, made in a post-trial motion,
was not an action.” (Trial court opinion, 8/29/17 at 15.)
In short, the question before this court is whether “civil proceedings” as
contemplated by the Dragonetti Act include the initiation of contempt
proceedings and accompanying requests for sanctions. Appellants rely on
both Black’s Law Dictionary and the Judiciary Code to argue that a
“proceeding” is defined “not only as a complete remedy, but also as a mere
procedural step that is part of a larger action or special proceeding.”
(Appellants’ brief at 30, citing Black’s Law Dictionary, 2155 (8th ed. 2004).)
Appellants also cite to Section 102 of the Judiciary Code, which defines
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“proceedings” to “include[] every declaration, petition, or other application
which may be made to a court under law or usage under special statutory
authority, but the term does not include an action or an appeal.” (Appellants’
brief at 30 n.7, quoting 42 Pa.C.S.A. § 102.) “Action” is defined as “any action
at law or in equity.” 42 Pa.C.S.A. § 102. The statute also provides that the
aforementioned definitions set forth in the Judiciary Code shall apply “unless
the context clearly indicates otherwise.” Id.
Appellees, however, take the position that a civil proceeding can only
encompass the initiation of “a lawsuit with malicious motive and lacking
probable cause.” (D’Annunzio appellees’ brief at 22, quoting Werner v.
Plater-Zyberk, 799 A.2d 776, 792 (Pa.Super. 2002) (citations omitted).)
Appellees further argue that applying the definition of “proceeding” as found
in the Judiciary Code would produce an illogical and unworkable result which
would run afoul of the presumption in ascertaining legislative intent set forth
in 1 Pa.C.S.A. § 1922(1) (stating that “the General Assembly does not intend
a result that is absurd, impossible of execution, or unreasonable).
(D’Annunzio appellees’ brief at 29-30; Messa appellees’ brief at 18.)
The trial court agreed with appellees, finding that appellants’ proposed
definition of “proceeding” was unworkable and would lead to an illogical result
when applied and, therefore, must fail. The trial court further noted under
appellants’ proposed definition,
while useful for their position in the case sub judice,
conflicts with the binding precedent of th[e]
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Commonwealth’s appellate courts. See, e.g.,
Bannar v. Miller, 701 A.2d 242 (Pa.Super. 1997)
(finding sufficient evidence existed to support the
jury’s finding that the defendants had filed the
underlying lawsuit against the plaintiff for an improper
purpose). While [appellants’] reliance on Section
102’s definition of proceedings is creative, it is clear,
in the context of the case sub judice, the broad
definition of “proceeding” contained within Section
102 cannot be utilized.
Trial court opinion, 8/29/17 at 12-13. Further, the trial court noted that under
appellants’ proposed definition of “proceeding,” “the Dragonetti Act would not
apply to a lawsuit because ‘actions’ are specifically excluded from the
definition of ‘proceedings.’” (Id. at 12.)
The trial court found that:
a review of the text of the Dragonetti Act, the binding
precedent from the appellate courts, and the common
law upon which the Dragonetti Act is based, supports
the conclusion [that] the phrase “procurement,
initiation, or continuation of civil proceedings” means
the filing of a civil action, and not including a request
for sanctions in a post-trial motion.
Id. at 14.
The Dragonetti Act created the following cause of action:
(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
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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(a).
For the following reasons, we find that the trial court committed an error
of law, and we further find that a contempt proceeding in this case following
the remand of the record by this court does represent a “procurement,
initiation, or continuation of civil proceedings” as contemplated by the
Dragonetti Act.
The purpose of a civil lawsuit is so that an injured party may be
compensated and/or made whole by the party legally responsible for damages
and/or injuries. See, e.g., Solarchick ex rel. Solarchick v. Metro. Life
Ins. Co., 430 F. Supp. 2d 511, 516 (W.D.Pa. 2006) (applying Pennsylvania
law). Further, Section 2503 of the Judiciary Code entitles a participant to
attorneys’ fees for dilatory, obdurate, or vexatious conduct. See 42 Pa.C.S.A.
§ 2503(7). In that regard, both a civil lawsuit and a motion for contempt
requesting sanctions under Section 2503(7) put an individual’s basic
fundamental right of property in legal jeopardy. Indeed, a civil contempt
proceeding, similar to a civil lawsuit, places the burden of proof on the
complaining party to establish, by a preponderance of the evidence, that the
defendant is in noncompliance with a court order. MacDougall v.
MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012), appeal denied, 75 A.3d
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1282 (Pa. 2013), citing Lachat v. Hinchcliffe, 769 A.2d 481, 489 (Pa.Super.
2001). Much like in a civil lawsuit, before holding an individual in civil
contempt, “the court must undertake (1) a rule to show cause; (2) an answer
and hearing; (3) a rule absolute; (4) a hearing on the contempt citation; and
(5) an adjudication of contempt.” Lachat, 769 A.2d at 489, citing McMahon
v. McMahon, 706 A.2d 350, 356 (Pa.Super. 1998).
Here, appellees, initially in a post-trial motion,3 sought a finding of
contempt against appellants and requested $1,349,063.67 in attorneys’ fees
and costs. The trial court first granted appellees’ motion for a new trial, which
we affirmed on November 4, 2013. See Sutch, 91 A.3d 1273 (unpublished
memorandum). Following the remand of the record by this court, the trial
court noted “that [appellees were] proceeding against Ms. Raynor in civil
contempt for compensatory damages and under 42 Pa.C.S.A. § 2503(7)
(counsel fees as a sanction for dilatory, vexatious, and obdurate behavior).”
Sutch, 142 A.3d at 56 (emphasis in original). The trial court subsequently
held a hearing on March 27, 2014 and March 31, 2014, in order to determine
whether Ms. Raynor was in civil contempt and/or was subject to sanctions.
The trial court ultimately sanctioned appellants a total of $946,195.16. We
find that a motion seeking a finding of contempt and a request for sanctions
3 In the post-trial motion, appellees, on behalf of the plaintiff in the underlying
medical malpractice litigation, also “requested a new trial because (1) the
[trial] court erred in denying [p]laintiff’s motion for a mistrial based on
Dr. Kelly’s violation of the smoking preclusion order and/or (2) the ‘grossly
inadequate verdict’” of $190,000. Sutch, 142 A.3d at 53.
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is, separate and distinct from post-trial motions alleging trial court error filed
in the underlying lawsuit for the purposes of the Dragonetti Act, tantamount
to the filing of a civil lawsuit. In a fashion similar to a civil lawsuit, the parties
exchanged pleadings, and the trial court held a hearing, issued an adjudication
of contempt, and imposed sanctions.
Accordingly, we find that seeking an adjudication of contempt and
requesting sanctions constitutes the procurement, initiation, or continuation
of civil proceedings as contemplated by the Dragonetti Act. Therefore, the
trial court committed an error of law, and we reverse. While we make no
determination as to whether appellants will be successful on the merits, they
are entitled to their day in court.
II.
In their second issue on appeal, appellants contend that the trial court
erred when it determined that appellants did not have standing to bring a
cause of action under the Dragonetti Act because they were not parties to the
underlying civil action. (Appellants’ brief at 36.)
Indeed, we have previously stated that a cause of action under the
Dragonetti Act “cannot be maintained by one who is not an original party to
the underlying action.” Hart v. O’Malley, 647 A.2d 542, 549 (Pa.Super.
1994), affirmed, 676 A.2d 222 (Pa. 1996). It is of no import, however, that
appellants were not original parties to the underlying medical malpractice
lawsuit that gave rise to the request for a finding of contempt and sanctions.
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As discussed in detail above, appellants have established that they brought
forward a viable cause of action pursuant to the Dragonetti Act. Because
appellants were the defendants in the contempt proceedings that give rise to
the Dragonetti cause of action presently before us and were the parties against
whom sanctions were imposed, we find that appellants have standing.
III.
Appellants next contend that the trial court erred when it sustained the
preliminary objections in the form of a demurrer to the common law wrongful
use of civil proceedings brought forward in appellants’ complaint. In its
opinion, the trial court concluded that “until the appellate courts hold the
Dragonetti Act is unconstitutional or does not subsume the common law tort
of wrongful use of civil proceedings, the common law tort of wrongful use of
civil proceedings is not a viable cause of action in this Commonwealth.” (Trial
court opinion, 8/29/17 at 9.)
At the time appellants filed their complaint, a constitutional challenge to
the Dragonetti Act was pending before our supreme court. See Villani v.
Seibert, 159 A.3d 478 (Pa. 2017). The Supreme Court of Pennsylvania
ultimately held that the Dragonetti Act is constitutional and that attorneys
may be found liable for wrongful use of civil proceedings claims. Id. at 492.
Specifically, our supreme court concluded that the Dragonetti Act did not
infringe upon the Supreme Court of Pennsylvania’s constitutionally prescribed
power to regulate the practice of law within the Commonwealth, insofar as
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such wrongful use of civil proceedings actions may be advanced against
attorneys. Id. at 492-493. As the trial court stated, appellants’ “inclusion of
the common law wrongful use of civil proceedings claim was a reasonable
precautionary measure in light of the possibility the Villani court may [have
held] the Dragonetti Act unconstitutional.” (Trial court opinion, 8/29/17 at 8.)
The trial court, however, concluded that because our supreme court held
the Dragonetti Act to be constitutional, and because appellants failed to
identify any other cases currently pending before our supreme court
challenging the constitutionality of the Dragonetti Act, the preliminary
objections to their common law wrongful use of civil proceedings claim must
be sustained. Because our supreme court held that the Dragonetti Act is
constitutional as to attorneys, it is not necessary to address the third issue on
appeal on its merits, as the Dragonetti Act subsumes any common law
wrongful use of civil proceedings claim.
IV.
Finally, appellants claim that the trial court erred when it sustained
appellees’ preliminary objections in the nature of a demurrer to Count III of
their complaint, which alleged abuse of process.
Appellants contend that the trial court erred in granting appellees’
preliminary objections in the nature of a demurrer to their abuse of process
claim because their complaint sufficiently alleged an abuse of process cause
of action, as it properly included allegations that appellees used the contempt
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proceeding for the improper purposes of (1) harassing, embarrassing, and
damaging appellants’ reputation; and (2) collecting attorneys’ fees to which
they were not entitled in light of the contingent-fee agreement that appellees
entered into with the plaintiff in the underlying medical malpractice action,
which caused appellants harm. (Appellants’ brief at 44.)
The common law cause of action for abuse of process
“is defined as the use of legal process against another
‘primarily to accomplish a purpose for which it is not
designed.’” Rosen v. American Bank of Rolla, []
627 A.2d 190, 192 (Pa.Super. 1993) (citation
omitted).
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.
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. Thus,
the 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[, 799 A.2d at 785] (citations omitted). See
Weiss v. Equibank, [] 460 A.2d 271, 276
([Pa.Super.] 1983) (“If the plaintiff sues the
defendant on a valid cause of action but brings the
suit, for example, not to collect his just debt but for a
collateral purpose such as blackmail the action is a
malicious abuse of process.”).
P.J.A. v. H.C.N., 156 A.3d 284, 288 (Pa.Super. 2017).
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Appellants first claim that appellees initiated contempt proceedings for
the improper purpose of causing personal and professional harm. (See
appellants’ brief at 44.) In support, appellants point out that when this court
considered their appeal of the underlying contempt and sanctions order, we
noted that “[e]ach time [the attorney appellees] brought the contempt issue
before the [trial] court, they presumed what they were initially required to
prove and presented their conclusions with transparent venom, bloom,
innuendo and increased outrage, refreshed periodically with personal attacks
on Ms. Raynor.” (Appellant’s brief at 21, 44) (some brackets in original)
quoting Sutch, 142 A.3d at 79.
Our cases, however, hold that a defendant cannot be held liable for
abuse of process when the defendant “has done nothing more than carry out
the process to its authorized conclusion, even though with bad intentions.”
Shaffer v. Stewart, 473 A.2d 1017, 1019 (Pa.Super. 1984), quoting
Di Sante v. Russ Fin. Co., 380 A.2d 439, 441 (Pa.Super. 1977) (citation
omitted); see also Hart, 647 A.2d at 552 (collecting cases). Indeed, the trial
court noted that even if a plaintiff in an abuse of process cause of action can
establish that a defendant was “consumed with hatred for [plaintiff], and that
[defendant] thought of little else through his waking hours, he still has not
created a genuine issue as to whether the primary purpose of the suit was
anything other than [carrying the process to its authorized conclusion.]” (Trial
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court opinion, 8/29/17 at 18-19, citing Rosen v. Tabby, 1997 WL 667147
(E.D.Pa. 1997) (applying Pennsylvania law).)
Appellants next claim that appellees initiated the contempt proceeding
for the improper purpose of collecting attorneys’ fees to which they would not
have otherwise been entitled due to the contingent-fee agreement they
entered into with the plaintiff below. (Appellants’ brief at 44, 47.) This
argument is a red herring of sorts because it tends to divert attention from
the stated purpose of the contempt proceedings, which was to recover
compensatory damages. Sutch, 142 A.3d at 56. “Compensatory damages
are ‘damages awarded to a person as compensation, indemnity or restitution
for harm sustained by him.’” Colodonato v. Consol. Rail Corp., 470 A.2d
475, 479 (Pa. 1983), quoting Restatement (Second) of Torts, § 903 (1979).
The fact that appellees entered into a contingent-fee agreement with plaintiff
below has no bearing on the compensatory damages they sought to recover
in the contempt proceeding, which would include costs associated with having
to re-try a lengthy and complex medical malpractice case, the first trial of
which spanned 19 days.4
Therefore, the trial court did not commit an error of law when it granted
appellees’ preliminary objections in the nature of a demurrer to Count III of
appellants’ complaint.
4The first trial began on May 21, 2012 and ended on June 8, 2012. See
Sutch, 142 A.3d at 45, 53.
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Order affirmed in part and reversed in part. Remanded for further
proceedings consistent with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/19
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