J-A05020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ADAM J. HAMMOND & GERALD J. : IN THE SUPERIOR COURT OF
IWANEJKO, JR. : PENNSYLVANIA
:
Appellants :
:
v. :
:
UNITED STATES LIABILITY :
INSURANCE COMPANY & GROUP AND :
MARSHALL DENNEHEY WARNER :
COLEMAN & GOGGIN P.C. : No. 950 WDA 2019
Appeal from the Order Entered May 28, 2019
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): #2018-10233
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED MAY 07, 2020
Adam J. Hammond and Gerald J. Iwanejko, Jr., Esquire (collectively
“Plaintiffs”), appeal from the order that sustained preliminary objections filed
by United States Liability Insurance Company & Group (“USLI”) and Marshall
Dennehey Warner Coleman & Goggin P.C. (“Marshall Dennehey”) (collectively
“Defendants”) and dismissed Plaintiffs’ amended complaint. We affirm.
In 2011, Hammond worked with Transportation Compliance Associates,
Inc. (“TCA”) to develop computer software for tracking compliance with
hazmat transportation regulations. Pursuant to his business agreement with
TCA, Hammond purchased a professional liability insurance policy through
USLI and began consulting with software firm LANtek. After TCA opted to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A05020-20
discontinue its relationship with Hammond, TCA and LANtek filed a declaratory
judgment action to determine ownership of the regulatory compliance
software, and also asserted tort and contract claims against Hammond.
Hammond contacted USLI about the claims, but USLI denied coverage.
Hammond filed counterclaims, which TCA and LANtek claimed were raised in
bad faith warranting an award of attorney fees and costs. Hammond returned
to USLI and renewed his request for a defense and coverage with respect to
these new allegations of misconduct, but USLI again declined. TCA, LANtek,
and Hammond ultimately resolved the dispute by stipulation, and Hammond
obtained discharge of his outstanding financial obligations through
bankruptcy.
Hammond sued USLI in federal court for breach of contract and bad faith
based upon its refusal to provide a defense and coverage. USLI, represented
by Marshall Dennehey, prevailed in the action upon the grant of judgment on
the pleadings. Specifically, the district court determined that USLI properly
declined to defend Hammond based upon an intellectual property exclusion
contained in the relevant policy. See Hammond v. U.S. Liab. Ins. Co.,
14CV0847, 2015 WL 401503, at *12 (W.D.Pa. January 28, 2015) (indicating
that Section II of the business owner’s coverage of the policy “excludes
coverage for any ‘loss, cost, or expense’ arising out of any ‘infringement of
copyright, patent, trademark, trade secret or other intellectual property
rights’”). Hammond appealed to the Court of Appeals for the Third Circuit,
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J-A05020-20
arguing, inter alia, that the district court erroneously relied upon language
that is not actually found in the policy exclusion, while USLI advocated for
affirmance based upon the exclusion. Ultimately, the Third Circuit affirmed
the dismissal and the United States Supreme Court denied Hammond’s
petition for a writ of certiorari. See Hammond v. U.S. Liab. Ins. Co. & Grp.,
643 Fed.Appx. 92, 96 (3d Cir. 2016) (holding, in the alternative, that the
policy “bars coverage for ‘personal and advertising injury’ ‘arising out of any
infringement of copyright, patent, trademark, trade secret or other intellectual
property rights’”), cert. denied, 137 S.Ct. 182 (2016).
Plaintiffs thereafter initiated the instant action. In their amended
complaint, Hammond stated a claim against both Defendants for abuse of
process based upon their reliance in the Third Circuit upon the “loss, cost or
expense” language that is not found within the exclusion.1 Attorney Iwanejko
averred a count of intentional interference with contractual relations,
contending that Defendants’ misrepresentation about the “loss, cost or
____________________________________________
1 The record reflects that the intellectual property exclusion to the policy’s
business liability coverage provides: “This insurance does not apply to . . .
‘Personal and advertising injury’ . . . arising out of the infringement of
copyright, patent, trademark, trade secret or other intellectual property
rights.” See Amended Complaint, 4/23/19, at Exhibit C, Section II,
¶ B.1.p.(13). On the page of the policy immediately preceding that exclusion,
a different paragraph excludes coverage “With respect to any loss, cost or
expense” arising out of a demand or suit concerning testing or removal of
pollutants. See id. at Exhibit C, Section II, ¶ B.1.p.(11). However, whether
the difference in language impacts the applicability of the exclusion is not
relevant to the issue before us in this appeal.
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J-A05020-20
expense” language deprived him of his contingency fee in the underlying
litigation.
Defendants filed preliminary objections claiming that they are immune
from any tort liability that is premised upon the content of their pleadings in
the federal litigation because such statements in judicial proceedings are
absolutely privileged. The trial court agreed, and entered an order sustaining
Defendants’ preliminary objections and dismissing Plaintiffs’ amended
complaint with prejudice. Plaintiffs filed a timely notice of appeal, and both
Plaintiffs and the trial court complied with Pa.R.A.P. 1925.
Plaintiffs present the following question for our review:
Whether reversible error was committed in the decision to dismiss
the claims set forth in the Amended Complaint on the basis of
judicial privilege since it is contrary to applicable precedent . . .
holding that judicial privilege does not operate to bar abuse of
process and/or interference with contract claims under factual
circumstances similar to those involved in this case.
Plaintiffs’ brief at 10 (cleaned up).
We begin with a review of the applicable law.
Preliminary objections in the nature of a demurrer test the legal
sufficiency of the plaintiff’s complaint. The question presented by
the demurrer is whether, on the facts averred, the law says with
certainty that no recovery is possible. Thus, our scope of review
is plenary and our standard of review mirrors that of the trial
court. Accepting all material averments as true, we must
determine whether the complaint adequately states a claim for
relief under any theory of law.
Keller v. Bank of New York Mellon, 212 A.3d 52, 56 (Pa.Super. 2019)
(cleaned up).
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J-A05020-20
Upon a review of the certified record, the parties’ briefs and the relevant
law, we conclude that the opinion that the May 28, 2019 opinion authored by
the Honorable Dominick Motto thoroughly addresses and properly disposes of
Plaintiffs’ arguments. See Trial Court Opinion, 5/28/19, at 7, 9-12 (discussing
the applicable Pennsylvania precedent concerning judicial privilege and
correctly applying it to conclude that it bars Plaintiffs’ claims, which are based
solely upon a communication in a judicial proceeding); id. at 8-9
(distinguishing the non-binding federal court decisions upon which Plaintiffs
rely). Therefore, we adopt President Judge Motto’s May 28, 2019 opinion as
our own and affirm on the bases stated therein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/2020
-5-
Circulated 04/28/2020 01: 1 PM
ABAM J. HAMMOND and IN THE COURT OF COMMON PLEAS
GERALD J. IWANEJK01
LAWRENCE COUNTY, PENNSYLVANIA
Plaintiffs,
CIVIL DIVISION
v�.
NO, 10233 OF 2018, C.A.
UNITED STATES LIABlLXTY
INSURANCE COMPANY & GROUP, and
MARSHALL DENNEHEY WARNER
&1 GOGGIN P.C.,
Defendants.
APPEARANCES
For the Plaintiffs: Gerald J. Iwanejko, Esq.
229 Hi ckory, Hi-1-1 Dri"ve
Volant, PA 16156
For the Defendants: James A. McGovernt Esq.
Marshall, Dennehey, Warner
Coleman & Goggin
Union Trust Building
suite 700
Pittsburgh1 PA 15219
OPINION
MOIT0 1 P.J. May 28, 2019
This ca�e 1s before the court for disposition of the
Prelimi·nary Objections to Plaintiffs' Amended complaint filed on
behalf of the defendants, United States Liability Insurance
Company (hereinafter "USLI'') and Marshal 1, 'Dennehey � Warner t
Coleman & Goggin P.C. (hereinafter 1'Marsl)all nennehey") 1 which
�ssert that both Counts contained in Plaintiffs' Amended
tomplaint, abuse of process and intentional inrerference with a
contractual relationship, are legally insufficient as the alleged
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.JUDIC.IAL tortious conduct, consisting of alleged misrepresentations of
OISTRICT
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privile�1
contract language, was al1eged wrongful
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statements were made du!"'i rig t!'ie cou r s s of 1 i ti gati on in F'edera 1
court. Defendants' also contend that Plaintiffs' claims are
precluded by the doctrine of res judicata as Plaintiffs already
presented, during the litigation in Federal Court, their ,
�ontention Defendants used nonexistent language while asserting
the underlying claims were not covered by the insurance policy
pur�u�nt to the intellectual property exclusion.
The 'facts 'as alleged' i·n-the Amended·C�mpiaint are as follows:
i
from December 21, 2010 until December 12, 2011, the plaintiff,
Adam J. Hammond (hereinafter uHammond'1), wor-ksd as an independent
�oftware developer and consultant -for Transportation Compliance
,!\ssociates, Inc. (hereinafter .. TCA")1 which was engaged in
providing consu1ting services for transporting hazardous
�aterials. During that time, Hammond developed computer software
that facilitated compliance with HAZMAT transportation
,regulations. TCA and Hammond reached an agreement concerning
�xpanded licenses for the Regulatory compliance Software, in which
I
Hammond would receive fifty percent of the business to bt: obta.,ned
based upon the software. As part of that agreement, Hammond
purchased a Business owners & Technology Professional Liability
Insurance Po 1 icy for a one-year te rm commencing on November 21.
2011 through USLI.
Based upon the aforementionQd agreement with TCA, Hammond
·began consulting with LANtek, a software firm, by directing the
·design and programmi_ng of a new computer system for TCA' s use in
- '
:!!lj�g processing HAZMAT transportati en comp"! i ance , wlli ch was based upon
JUDICIAi.
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Hammond. Howeve.r, TCA eventually decided not to cantinu<:; its
bus iness relationship with Hammond. instead, TCA moved forward
with LANtek ,n implementing HAZMAT transportation comp1iance
software.
on December 16, 20111 TCA and LANtek filed a declaratory
judgment action in th€ United States District Court for the
Western District of Pennsylvania seeking the court declare them
�h� owners of the intellectu�1 propeit�"iights for the Regulatory
·-
�ornpliance software. they subsequently filed an Amehded com�laint
�ontaining claims for breach of contract 1 conversion and
rintentional interference with existing and prospective contractual
�elations. Hammond notified USLI of those pleadings and requested
indemnification or coverage under the insurance policy he
p�rchased. However1 USLI denied coverage for those claims.
Hammond filed an Answer and Counterclaims to TCA and LANtek's
Amended complaint asserting claims for violations of the
Pennsylvania uniform Trade secrets Act 1 unfair competitionj breach
�f contract or promissory estoppel, fraud and breach of fiduciary
duty. on April 25, 2012, the District Court granted in part TCA
and LANtek s motion to dismiss counterclaim and dismissed all of
1
Hammond's counterclaims except for the breach of contract or
promissory estoppel claim.
TCA and LANtek also filed an AnswEr to oefendant s 1
Count er-c l a+ms on May 9, 2012i which requested the Court "aware
Plaintiffs their reasonable attorney fe�s, expenses ·and costs for
sa RI:! Hammond Is bad faith and other wrongful conduct, pursuant to inter
JUDICIAL Fl ' f n 1 ri � 1 ·"' 1 r i · 1
blSi.FW:i a 7 i a 12 Pa. c. s , A. § 5tlo�· ·cfnfi' :{7'�. s. C. § 505. '' Hammond then
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notified USLI of the Answer to D�fendant1s counterclaims on May
161_ 2012, as he was requesting a defense or indemnification under
the malicious prosecution clause of the insurance policy based
upon the foregoing prayer for relief. The next day, USLI denied
coverage pursuant to the insurance policy. Hammond issued
Requests for Admissions to TCA, which included a paragraph in
which TCA admitted it was seeking recovery pursuant to the prayer
tor reiief 'for conduct that also suppo�ts ma"iicious prosecution
and/or abuse
I
of civil process, This response was provided to USLI
pn June 27, 2012, to obtain coverage under the mali�ious
I
·prosecution clause of the insurance policy. but coverage was again
�enie�. on June 21 20121 the parties reached a Joint Stipulated
Motion for the Entry of Final Judgment and Dismissal, which
dismissed with prejudice all pending claims and counterclaims.
on March 13, 2012, Hammond cbmmenced chapter 7 Bankruptcy
'proceedings based upon his inability to meet his financial
'obligatiohs for the attorney fees incurred during the
aforementioned litigation. on June 27, 2013, th� United states
Bankruptcy court for the central District of California discharged
·all of his outstanding financial obligations.
Hammond also initiated a suit in the United states District
:.court against USLI on June 26, 2014, for breach of contract and
bad faith for refusing to provide a defense for the underlying
'litigation under the malicious prosecution clause of the insurance
ipolicy. on December 11, 2014, USLI filed a Rule 12(c) Motion for
!IJRP ,udgment on the Pleadings 1 which was gran�ed by the court on
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t>lSl'RtC, January 28, 2015, based u���ffet1��fi-cation of an intellectual
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·property exclLlsion contained wi�hin the insurance policy that
exclud�s coverage arising out of any infringement of intellectual
property. Hammond fil�d and served a Notice of Appeal on February
5, 2015, andj during that appeal, Hammond asserted the District
Court committed reversible error because the prayer for relief
averred by TCA was sufficie�t to include malicious prosecution.
Hammond also argued that the District Court e:red in applying the
;nt�l�ect�al pr��erty ��t��sion �o def�at:insu�a�ce·coverag� based
upon the use of "1 oss , cosr or expense" l anguaGe I which i 5. not
found in that exclusion. on appeal, USLI a1so contended that the
., ..
bi strict court should be affirmed by utilizing the same .language .
ultima�ely, the Third Circuit court of Appeals affirmed the
decision of the District Court. Hammond then filed a Petition for
writ of certiorari with the United states supreme court on Julys�
2016, again contending that it was reversible error for the
·previous courts to use the "Tos s , cost or expanse" language, which
cannot be located in the intellectual property exclusion. The
Petition for writ of certiorari was denied on October 3, 2016.
Hammond and rwanejk� initiated this action against Defendants
by filing a Praecipe for Writ of Summons on March 9, 2018, which
was reissued on April 6, 2018, April 6, 2018, May 4, 2018, June l,
12018, June 29, 2018, July 27, 2018, August 24, 2018, and September
18 2018. Plain�iffs filed their compla;nt on October 2� 2018,
1
:which was reinstated by Plaintiffs on October 18, 2018, and was
served upo� Marshall oennehey on-November 7, 2018, and us�r on
SllFl3N\;;'MI9 8G089t,5t,GL
cause why P1aintiffs should not be permitted to file an Amended
Complaint upon both Defendantsi who did not respond to said rule.
AS a result, Plaintiffs were granted leave to fi1e an Amended
complaint, which they accomplished on April 23, 2019. In the
Complaint and Amended Complaint, Hammond asserted a claim against
Qefendants for abus� of process for allegedly referencing the
"loss, cost or expense" language not included in the intellectual
�roperty except�on. Iw��ejk� ave�s· a cla�m-fot inientionai
interference with a contractual relationship against oefendants as
he was counsel for Hammond in the underlying cases and was
deprived of his fifty percent contingency fee due to their alleged
misrepresentations of the language contained within the
intellectual property exception.
In their Preliminary Objections, Defendants contend the abuse
of process and intentional intErference with a contractual
relationship claims contained within Plaintiffs' Amended Complaint
�re legally insufficient as the alleged tortious conduct is
privileged as it occurred during the underlying litigation in
Federal court.
A demurrer will only be sustained in cases where the
,complaint fails to set forth a valid cause of action. Lerner v.
Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v.
[ronJ2,.tti, 426 Pa. Super. 60'7, 627 A.2d 1219, 1221 (1993)).
I
If a
'
.doubt exists regarding whether a demurrer should be sustained, the
/doubt must be resolved in favor of overruling the demurrer. R.W.
53RD v. Manzeki 585 Pa. 335, 351: 888 A.2d 740, 749 (2005) (citations
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�reliminary objection in the nature of a demurrer. Werner v.
�later-zvberk, 799 A.2d 776� 783 (Pa. super. 2002) (citing orner
v. Mallick, 515 Pa. 132) 1.35, 527 A.2d 521, 523 (1987)). "A
'speaking demurrer' is defined as 'one which, in order to sustain
itself, requires the aid of a fact not appearing on the face of
the pleading objected to, or in other words, which alleges or
assumes the existence of a fact not already pleaded1 and which
to�stiiutei �h� gro�nd �f bbjection and-is- �ondemned·b�th by the
common law and the code system of· the pleading."' Regal Indus>
t,orp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super.
ZOOS) (quoting Black's Law Dictionary 299 (6th ed. 1991)). The
Court is not permitted to consider a speaking demurrer in
rendering its decision on preliminary objections. rd.
Judicial privi1ege provides immunity for all communications
made during the course of judicial proceedings and are material to
the relief sought. schanne v. Addis, 121 A.3d 942, 947 (Pa,
�015). This privilege covers statements by parties, witnesses,
attorneys and judges. Id. The judt cfa'l privilege is abso l u te ,
regardless of the dec1ara�t1s intent, the falsity of the statement
br whether the statement.was made with malice. Id. This is meant
to guarantee access to the courts and permits the free
�r�iculation and resolution of legal rlaims.
dThe reasons for ihe absolute privilege are well
recognized. A judge must be free to administer the law
without fear of consequences. This independence would
be impaired were he to be in daily apprehension of
defamation suits. This privilege is also extended to
parties to afford freedom of access to the courts, to
!>JR1;> witnesses to encourage the·i r comp 1 ete and uni nti mi dated
testimor.y in cour�, �9d tR counse1 to enable him to bes�
Bi �� l���i�t���{;�rt�a o
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sanct�ons against defamatory ,;taternents, such as pe;rjury
or CC?nte(!lpt proceedings." sinder v, Trian§J___g_
Pwbl1cat1ons, IncL, 275 A.2d 53, 56 (Pa. 1 71).
The privilege extends beyond communications made in open
court to include pleadings and less formal communications such as
preliminary conferences. Pawlowski v. Smorto, 588 ·A.2d 36, 42
(Pa. Super. 1991). "The policy of providing for reasonably
unobstructed access to the relevant facts is no less compelling at
the pre-trial.stage of judi2:iai proce�di.ngs." Moses v.
�cwilliams. 549 A.2d 950, 958 (Pa. super. 1988). This protection
has traditionally been extended to communications issued in �he
regular course of judicial proceedings and are pertinent and
m�teria1 to the redress of relief sought. Post v. Mendel, 507
A.2d 351, 355 (Pa. 1986).
Plaintiffs cite to General Refr...9-£tories co. v, Fireman s Fund 1
Ins�-�1 337 �.3d 297 (3d cir. 2003) for the proposition that
judicial immunity does not extend to claims for abuse of process
as that claim is solely based upon a perversion of the judicial
process and immunity would impede a party s ability to assert such 1
a claim. While the Court in �ral R�f[g�tQfies co. determined
that judicial immunity did not preclude the plaintiff's abuse of
process claim, the court made it abundantly clear that most of the
�laintiff's claims were based upon the a�tions of rhe defendants
in the underlying litigation as opposed to statements made during
I
I
that pendency of t hat; case , Id. , 337 F. 3d at 312. The Court
s ta ted , ''\vhile some communications maybe privileged-allowing, for
�;! Fl Cl instance� immunity from defamation actions-conduct is clearly
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.JU.JCC.ptiblc to being abu::ic." Id. In the undcr�ring
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action," the defendants obs tructed discovery uti 1 "i zing "a cl ear
pattern of delay, stonewalling, ·dec�ption1 obfuscation and
pretense11 along with ignoring.court orders, permitting ·fa1se
testimony at depositions and misrepresenting facts to opposing
counsel. Often, the defendants provided incomplete responses or
unreasonable objections to reasonable discovery requests requiring
court intervention to which the defendants provided hundreds of
insignificant·, nonsensical or unintelligible pages �f materials.
Based upon the foregoing, the General Refr£ctories co. court the
plaintiffs alleged sufficient facts that th� d�fendants abused the
judicial process in a manner not protected by the judicial
privi"lege through their conduct in the underlying action, but the
�tatements made in court filings and during argument or trial
r.emained privileged. rd.
Plaintiffs further assert the court's decision 1n silver v.
Mendel, 894 F.2d 598 (3d Cir. 1990)j maintains that judicial
1mmunity does not preclude claims for 1ntentional interference
with a contractual relationship. In that matter, the plaintiff'5
Glaim was based upon conduct, which included improperl� filing a
bankruptcy petitionr as opposed to statements made during the
pendency of that litigation. As a result, the plaintiff's claim
for intentional interference with existing contractual relations
�as not barred by judicial immunity. Id,
rt is important to recognize that judicial immunity has been
�xtended to tort claims beyond defamation in relation to
,.u-iu Tn B,r::own v Pe] aware Va J J ev
JUOlCIAl.,
01sTR1cT Trans..12..l ant Program 1 539 A. 2d 1372 (Pa. super. 1988), an attorney
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�as su�d- for his representation of Brandywine Hospital in
obtaining permission to use an individual's heart and lungs for
transplantation by the Court because the hospital informed the
attorney �hat the decedentjs identity was unknown. The attorney
represented to the Court that the de(edent's identity was unknown
�nd the hospital was unable to seek consent from the decedent's
�ext-of-kin. The Court held a hearing and granted the petition.
fhe de��deni'� heart'�nd ki���;s were ��mov�� �nder-�he auspices
I ' •
qf the Delaware valley Transplant Program. Representatives of the
decedent then filed suit against numerous defendants, which
inclucled Delaware valley Transplant Program, Brandywine and the
attorney for the hospital for claims of mutilation of a corpse,
intentional infliction of emotional distress� civil conspiracy,
malicious wse of process, assault and batteryr and negl;gent
infliction of emotional distress. The attorney filed a demurrer
to all claims against him based upon judicial immunity 1 which was
sustained by the trial court. The plaintiffs appealed contending
�hat the trial court erroneously applied the concept of judicial
immunity by incorrectly extending it to the tort1ous behavior of
ihe attorney.
The Brown_ court explained that the_attorneyts only
i·nvolvement in the case was his preparation of the petition in
accordance with the client's instrLlCtions and his representation
a,t the hearing. Hence, hi� act:ions and statements were clearly
p�ivileged pursuant to the doctrine of judicial immunity as they
'5)�i;,
JUDICIA�
DIS'rRICT The court stated, ''cor.trary to the assertion of appellants, the
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�bsolute privilege accorded an attorney 1n representation of a
client in judicial proceedings is not limited to protection
against defamation actions. The immunity bars actions for
tortious behavior by an attorney other than defamatio�. so long as
it was a communication pertinent to any stage of a judicial
prcc:�eding." Id., 539 A.2d at 1374-1375. The Brown CoLlrt
emphasized that the central determination to be made is whether
the. perti��nt .communicati�� was undertaken in'connection with
representation of a client in a judicial proceeding. Id.
Therefore1 the court ruled that the trial court properly dismissed
the appellants' claims against the attorney because all of the
alleged tortious activities occurred in relation to a judicial
proceeding. Id.
In the case sub Judice, Plaintiffs have averred claims for
abuse of process and intentional interference with contractual
;.
relations arising from a matter in wh1ch Iwanejko represented
Hammond in a suit for breach of contract and bad faith filed 1n
Federal District Court against USLI 1
who was represented by
Marshall Dennehey. In that matter, Hammonds claims were based
tipon USLI's refusal to provide insurance coverage in another case.
I
the District court dismissed Hammond's claims because USLI
properly denied coverage based upon the intellectual properties
�xception in the insuran�e policy. In doing so, the District
dourt made reference to "Ioss , cost or expense" language, which
does not appear- in the inte'llectual property exclusion. Hammond
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OISTRIC::T argued the oistrict Court committ�d reversible error because the
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'prayer for relief averred by TCA was sufficient to include
malicious prosecution. Hammond also contended that the District
Court erred in applying the intellectual property exclusion to
defeat insurance coverage based upon the use of '1 oss, cost or
1
expense" language, which is not found in that exclusion, During
the appeal, USLI argued that the court of Appeals should affirm
the decision of the District court utilizing similar rationale as
the .District'c��rt �nd u�ed the "lossi c��t or exbens�·· ianguage,
even though, according to Plaintiff�, Defendants knew was not
contained within the intellectual property exception.
It is apparent that any alleged tortious conduct by
Defendants transpired during the pendency of the underlying
F.Ederal litigation as the statements made occurred in pleadings
�nd �uring oral argument before the Third Circuit Court of
Appeals. Moreover, those statements were material to the relief
being sought by Plaintiffs. As a result, judicial immunity
�PP
. l ·i es to Defendants references to the "loss I
cost or expense"
1anguage, which was not contained within the intellectual property
�xception to the USLI insurance policy. Plaintiff's reliance on
the concept that judicial immunity does not apply to abuse of
process and intentional interference with contractual relations
¢lairns based upon the decisions in Gene�al Refractories Co. and
�ilver
-.------- is misplaced as both of those case involved actual conduct
ijy the defendants, which included refusing to comply promptly with
.
discovery requests and the actual improper filing of a cause of
JU�l(:;IAL.
DISTRICT as the tortious conduct alleged by Plaintiffs are solely based
,AW.AEN't:I!!
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12
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�pon statements made by Defendants during the underly�ng
litigation in documents filed with the courts and made during oral
argument before the Third Circuit court of Appeals.
As stated in Brown, judicial immunity applies to all tort
¢laims1 not just defamation, and bars actions based upon
communications pertinent to any stage of a judicial proceeding.
Much like the claims against the attorney in Brown, the claims now
�eing as;�rt�d a�a�nst·D�fenda�t� afi��- exc1Js1��ly �ro� pertinent
. .
stat�ments made during the cours� of litigation and appeal iri the
underlying Federal court suit. Therefore 1 the statements made by
Qefendants in underlying case are privileged and Plaintiffs'
�laims in this case �re barred by judicial immunity.
also contend that Plaintiffs claims are
Defendants 1 1
precluded by the doctrine of res judicata as Plaintiffs already
pr�sented their contention Defendants referenced nonexistent
language while asserting the underlying claims were not covered by
I
�he insurance policy pursuant to the intellectual property
'
�xclusion during the litigation in Federal Court. oue to
P;laintiffs' claims being barred by judicial immunity, it is
4nnecessary to address Defendantsj contention those claims are
also precluded by the doctrine of r@s judicata. Moreover,
Pa.R.C.P. No. 1030 requires that affirmative defenses, including
tes judicata, must be raised in a responsive pleading under the
Heading ''New Matter", not preliminary objections, unless the
qomplaint sets forth in detail
11
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DISTRICT 176 A.3d 907, 926 (Pa. Super. 2017). It is apparent that
A.WRErtCE COUN'l"V
PENl'f9VL\rANIA
13
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Plaintiffs1
Amended Complaint describes the underlying litigation;
however, There are not �ufficient details to render it free from
doubt that res judjcatil applies to the causes of action currently
Qefore this Court. As result, it is not proper to address
$efendants' contention that Plaintiffs' claims are barred by the
I
doctrine of res judicata at this stage of the proceeding$.
I
Based upon the foregoing, Defendants' Preliminary Objections
io-.Plaintiff;,- Ame�ded Complaint are sus t ajned and vthe Counts.
lontained
I
within Plaintiffs' Amended Complaint are dismissed with
• d.
preju
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