J. A16042/18

2019 PA Super 72

NANCY K. RAYNOR, ESQUIRE AND 

RAYNOR & ASSOCIATES, P.C.,

:

:

IN THE SUPERIOR COURT OF

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 

OF THE ESTATE OF ROSALIND WILSON, 

DECEASED

:

:

:

:

:

:

:

:

:

No. 3313 EDA 2017

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] 
J. A16042/18

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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).
J. A16042/18

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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.

 

4 The first trial began on May 21, 2012 and ended on June 8, 2012. See 

Sutch, 142 A.3d at 45, 53.
J. A16042/18

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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