J-A08035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PHILADELPHIA CONTRIBUTIONSHIP : IN THE SUPERIOR COURT OF
INSURANCE COMPANY : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 42 EDA 2019
KEVIN H. WRIGHT, ESQUIRE :
Appeal from the Order Entered November 30, 2018
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03173 Aug. Term 2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MAY 12, 2020
Appellant, Philadelphia Contributionship Insurance Company (PCIC),
appeals from the order of the Philadelphia County Court of Common Pleas
sustaining the objections in the form of demurrer to its complaint bringing a
claim under the Dragonetti Act. 1 We affirm.
We must begin with a description of the prior litigation that led to the
current dispute. Most Dragonetti Act cases have one layer of underlying
litigation, but this one has two such layers. This Court has previously
summarized the facts of the initial litigation as follows:
1 42 Pa.C.S. §§ 8351-8354 is also known as the Dragonetti Act.
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In July 2015, [Margaret Kiely, acting as attorney-in-fact]
negotiated an oral employment contract for home aid services on
behalf of [Christine] Feinstein with Nydia Parkin. Upon agreeing
to terms, Parkin commenced employment. In February 2016,
however, Feinstein allegedly attacked Parkin, causing injuries.
Thereafter, [Kiely] terminated Parkin's employment.
In May 2016, Parkin . . . filed a complaint in five counts: asserting
Assault and Battery, Intentional Infliction of Emotional Distress
(IIED), Breach of Contract, False Imprisonment, and Punitive
Damages. See Complaint, 12/30/16, Exh. C (Parkin v.
Feinstein, Montg. Cty. Ct. of Common Pleas, Dkt. No. 2016-
10061, 5/19/16).
Kiely on Behalf of Feinstein v. Philadelphia Contributionship Ins. Co.,
206 A.3d 1140, 1142 (Pa. Super. 2019).
Kiely sued PCIC, Feinstein’s homeowner and umbrella insurer, for failing
to defend Feinstein in Parkin’s suit. Nonsuit was entered in favor of PCIC and
this Court affirmed on March 26, 2019, holding that Feinstein’s documented
mental health issues did not render the attack accidental rather than
intentional, and thus that PCIC was justified in refusing to defend Feinstein.
Id. This declaratory judgment action (and not the tort action that preceded
it) is the underlying action for purposes of this matter. It is the declaratory
judgment action that PCIC argues was a wrongful use of civil proceedings.
Attorney Wright’s firm represented Kiely in the declaratory judgment action
that followed the tort action brought by Parkin, Feinstein’s home health aide
(Attorney Wright is Appellee in this matter).
Meanwhile, PCIC brought two Dragonetti actions in Philadelphia’s Court
of Common Pleas. The first (the DiPasquale Action), brought by PCIC and
Laurie DiPasquale, a PCIC claims adjuster, for wrongful use of civil proceedings
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under 42 Pa.C.S. § 8351 et seq. and false light under the Restatement
(Second) of Torts § 652E, was dismissed on preliminary objections on October
3, 2018. The Honorable Frederica Massiah-Jackson in 1706000645 filed a
memorandum explaining why preliminary objections to the claims brought by
PCIC and Laurie DiPasquale, a PCIC claims adjuster, for wrongful use of civil
proceedings under 42 Pa.C.S. § 8351 et seq. and false light under the
Restatement (Second) of Torts § 652E, were sustained. Judge Massiah-
Jackson concluded that Attorney Wright is entitled to absolute immunity for
communications, including pleadings, issued in the regular course of judicial
proceedings.2 Tr. Ct. Op. of 1706000645, 10/3/18, at 2. The judge also
concluded that the Dragonetti Act claim was unsupportable. Id. at 6-11. PCIC
appealed, and this Court recently affirmed Judge Massiah-Jackson’s judgment,
at 3111 EDA 2018.
PCIC’s second Dragonetti Act case was assigned to the Honorable Linda
Carpenter, who likewise sustained preliminary objections on November 29,
2018, citing Judge Massiah-Jackson’s ruling in the DiPasquale Action. This
action involves a single claim under the Dragonetti Act against Attorney
Wright.
Judge Carpenter’s order sustaining preliminary objections points out
that the parties in this action are also parties in the DiPasquale Action, which
2PCIC did not plead False Light in this matter, confining the claim to the
Dragonetti Act.
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also involves a Dragonetti Act claim. Tr. Ct. Order, 11/29/18, n. 1. She rested
on the reasoning of Judge Massiah-Jackson’s opinion in sustaining preliminary
objections. PCIC filed a notice of appeal on December 18, 2018, and the
docket does not reflect that Judge Carpenter filed an order pursuant to
Pa.R.A.P. 1925(b).
PCIC raises the following issues:
The lower court erred because it failed to consider all the material
facts set forth in the complaint as true, refusing to give all
inferences reasonably deducible therefrom, in direct violation of
the law.
The lower court erred because it used its own personal
experiences in sustaining the preliminary objections.
This Honorable Court denied [Attorney Wright’s] appeal of the
[u]nderlying [b]ad [f]aith trial verdict and confirmed that the case
had no merit.
PCIC’s Brief at i.
Attorney Wright argues that PCIC’s complaint does not allege facts
sufficient to make out a Dragonetti Act claim, and that although his client did
not prevail in the failure to defend action, that does not render the action
without probable cause.
We first analyze whether Judge Carpenter was justified in her reliance
on Judge Massiah-Jackson’s determination in the DiPasquale Action.
In sustaining preliminary objections, Judge Carpenter reasoned that the
coordinate jurisdiction rule bound her to Judge Massiah-Jackson’s ruling.
Under the coordinate jurisdiction rule, “judges of coordinate jurisdiction should
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not overrule each other's decisions.” Zane v. Friends Hosp., 836 A.2d 25,
29 (Pa.2003). The rule “falls within the ambit of the ‘law of the case doctrine.’”
Riccio v. American Republic Ins. Co., 683 A.2d 1226, 1230 (Pa.
Super.1996) (citing Commonwealth v. Starr, 664 A.2d 1326, 1331
(Pa.1995)). Per Starr, law of the case doctrine “refers to a family of rules
which embody the concept that a court involved in the later phases of a
litigated matter should not reopen questions decided by another judge of that
same court or by a higher court in the earlier phases of the matter.” Id. at
1331.
We find Judge Carpenter’s application of the coordinate jurisdiction rule
to be appropriate, given that the sole claim – a Dragonetti Act count arising
from the declaratory judgment litigation brought by Attorney Wright – was
also at issue in the DiPasquale Action, and both parties to the litigation (PCIC
and Attorney Wright) were also parties in the DiPasquale Action. This
application of the coordinate jurisdiction rule is straightforward.
Next we turn to PCIC’s arguments that the trial court failed to apply the
proper standard and went beyond the four corners of the complaint in
evaluating preliminary objections. In order to bring a Dragonetti claim, the
claimant must plead facts sufficient to establish, if true, that there was no
probable cause for the underlying action or that it was brought in a grossly
negligent manner. See 42 Pa.C.S. § 8351(a).
“In considering a demurrer, reviewing courts accept all well-pleaded
material averments and all inferences fairly deducible from them, but they
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need not accept any of the complaint's conclusions of law or argumentative
allegations.” Hudson v. Pennsylvania Bd. of Prob. & Parole, 204 A.3d
392, 395 (Pa. 2019). “This Court will reverse the trial court's decision
regarding preliminary objections only where there has been an error of law or
abuse of discretion.” Clausi v. Stuck, 74 A.3d 242, 246 (Pa. Super. 2013)
(quotation omitted).
As stated above, while trial courts must accept all well-pleaded material
averments in the complaint and all inferences fairly deducible from them, they
need not accept conclusions of law or argumentative allegations. The
complaint in this case makes many conclusory allegations about Attorney
Wright’s behavior and state of mind in the declaratory judgment action. The
complaint hinges upon a characterization of the declaratory judgment action
as lacking a good faith basis.
While it is generally true that trial courts may not take judicial notice in
one case of records of another case, see Kelly v. Kelly, 887 A.2d 788 (Pa.
Super. 2005), Dragonetti claims must be a limited exception. This is because
the elements of a Dragonetti claim include that “the proceedings have
terminated in favor of the person against whom they are brought.” 42 Pa.C.S.
§ 8351(a)(2). This Court has taken notice of its own rulings when those
proceedings subsequently form the basis of a Dragonetti action. See, e.g.,
Hvizdak v. Linn, 190 A.3d 1213 (Pa. Super. 2018) (affirming grant of
preliminary objection to Dragonetti claim; “We further note that our [earlier]
memorandum in [appellee’s] appeal does not state or suggest that [the]
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appeal was frivolous or in bad faith.”), rearg. denied (Aug. 21, 2018),
appeal denied, 204 A.3d 364 (Pa. 2019).
Hvizdak described two exceptions to the general rule against judicial
notice at the demurrer stage:
Ordinarily, when reviewing an order sustaining a demurrer to a
complaint, we cannot take judicial notice of records from other
cases. Styers v. Bedford Grange Mut. Ins. Co., 900 A.2d 895,
899 (Pa. Super. 2006). However, there are exceptions to this
rule. First, we can take judicial notice of other proceedings
involving the same parties. Estate of Schulz, 392 Pa. 117, 139
A.2d 560, 563 (1958). The two prior decisions involve the same
parties and therefore are subject to judicial notice. Second, “[i]t
is appropriate for a court to take notice of a fact . . . which is
incorporated into the complaint by reference to a prior court
action.” Styers, 900 A.2d at 899 . . . . Since virtually every
paragraph in Husband's third amended complaint concerns the
divorce litigation, he has effectively incorporated the entire
divorce proceeding, and our decisions therein, into his third
amended complaint.
Hvizdak, 190 A.3d at 1218 n. 1.
Both exceptions noted in Hvizdak apply here. Thus, Judge Massiah-
Jackson did not err in referring to the declaratory judgment action that PCIC
also makes reference to in the complaint, and PCIC’s argument to the contrary
is inapposite.3
3 PCIC also argues that Judge Massiah-Jackson improperly referred to
“personal experiences” in sustaining preliminary objections. PCIC’s Brief at
11. PCIC cites a single paragraph at the end of an 11-page opinion,
commenting on the significant legal fees PCIC claims to have expended in the
declaratory judgment action. The language to which PCIC refers is either
knowledge of the legal system that is so bound up with the role of judging
that it would be impossible and inadvisable to ask judges to set it aside (i.e.,
the knowledge that sometimes individuals are named in suits that are against
entities rather than the named individual as a person) or mere dicta. Because
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The Hvizdak Court noted that “our . . . memorandum in [the underlying
litigation] does not state or suggest that [a]ppellees' appeal was frivolous or
in bad faith.” Hvizdak, 190 A.3d at 1230. The same is true here; this Court’s
opinion in the declaratory judgment appeal, while resolving the case in favor
of PCIC, did not indicate any bad faith on the part of the appellants in that
matter (represented by Attorney Wright’s firm). It noted that both parties
filed for summary judgment, which was denied, and that the matter then
proceeded to a jury trial. Kiely, 206 A.3d at 1144. The Court’s extensive
discussion of the insurance coverage issue was not ornamental, but was
necessitated by Ms. Feinstein’s genuine, albeit unprevailing, argument that
her mental impairment was such that she was not capable of intentional action
at the time of the assault.
Finally, we address PCIC’s third claim, wherein it argues that “if this very
Court has determined that PCIC, the insurance carrier in the underlying case
had no duty under the policy to cover Feinstein, [PCIC] has clearly [] met the
prima facie elements of the Dragonetti Act . . . and the Complaint should be
reinstated as a matter of law.” PCIC’s Brief at 12.
When a Pennsylvania court does not find in favor of a claimant, that
does not render the claim so suspect that a Dragonetti action should follow.
Section 8352 specifies that an attorney bringing a civil proceeding has
probable cause if they reasonably believe the underlying facts, and either
Judge Massiah-Jackson’s reasoning stands even if the language to which PCIC
objects were set aside, no further analysis is warranted.
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reasonably believe that under those facts the claim may be valid under the
existing or developing law, or believe in good faith that pressing the claim is
not intended to merely harass or maliciously injure the opposite party. 42
Pa.C.S. § 8352. “Absence of probable cause is an indispensable element of a
Dragonetti claim.” Keystone Freight Corp. v. Stricker, 31 A.3d 967, 972
(Pa. Super. 2011).
This argument, if accepted, could have a substantial and pernicious
chilling effect on many types of litigation. Perhaps most seriously, it has the
potential to deter civil rights litigation brought on behalf of disenfranchised
people seeking justice. Such work can be arduous and often confronts long
odds, but nothing about it is frivolous. Repugnant to this Court as a matter
of policy, this argument fails as a matter of law.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/12/2020
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