J. A1 6 0 42 /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 E DA 20 17

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 0 8 , 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 file d
by Matt hew 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 withJ. A1 6 0 42 /18

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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 a crimonious 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. M essa, 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).

Accordi ng 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 “Roxboro ugh”), 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’Annunzi o requested an order from the trial judge, the Honorable Paul Panepinto, directing [Ms.] Raynor to inform her witnesses of the ban on smokingJ. A1 6 0 42 /18

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- immediately before they took the stand. Judge Panepinto responded:
[COURT]: Okay. Well, I don’t have a respons e. 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 te stified 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 n ot 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 instruc tion. Judge Panepinto denied the request for a mistrial and chose to give aJ. A1 6 0 42 /18

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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 cli ents 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 [app ellees’] 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 s cheduling 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. Roxbor

o ugh Mem’l Hosp. , 142 A.3d 38, 55 (Pa.Super. 2016)
(citation omitted). Prior to the hearing, the trial court indicated that it wouldJ. A1 6 0 42 /18

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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 h earings, [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 viol ated 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 s hall be imposed upo n [Ms.] Raynor. [Messrs.] Messa and D’Annunzio , together with their respective firms, filed a brief requesting a total of $1,349,063.67 in sanc tions. [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 $946,1 95.16, 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,J. A1 6 0 42 /18

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- thereby permitting [appellants] acc ess 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 Cou rt’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 inst ant 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 t heir request s 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, Kl ehr 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 th e 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.J. A1 6 0 42 /18

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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 be cause 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 pursu ing 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 b y 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 [appelle es’] 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 ofJ. A1 6 0 42 /18

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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 2 9, 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 s tatement 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 a ction 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 maint ained, 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 mutuallyJ. A1 6 0 42 /18

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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 acc omplish 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 st andard:

[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, th e 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 ple adings 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 objection s

.
Richmond v. McHale , 35 A.3d 779, 783 (P a.Super. 2012), quoting
Wayne M. Chiurazzi Law Inc. v. MRO Corp. , 27 A.3d 1272, 1277J. A1 6 0 42 /18

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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 con stitute
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 accom panying requests for sanctions. Appellants rely on

both Black’s Law Dictionary and the Ju diciary 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 definesJ. A1 6 0 42 /18

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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 Jud iciary 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 ap pellees’ brief at 22, quoting Werner v.

Plater
- Zyberk , 799 A.2d 776, 792 (Pa.Super. 2002) (citation s omitted)

. )
Appellees further argue that applying the definition of “proceeding” as found
in the Judiciary Code would produce an illogical and unworkable r esult 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 appell ees’ 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

ap pellants’ proposed definition,

w hile useful for their position in the case sub judice , conflicts with the binding precedent of th[e]J. A1 6 0 42 /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 proce edings 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

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. Further, the trial court note d that under
appellants’ pro posed 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 i ncluding 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 ano ther 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 orJ. A1 6 0 42 /18

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- adjudi cation 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.P a. 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 c ontempt
requesting sanctions under Section 2503 (7) put an individual’s basic
fundamental rig ht 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.3dJ. A1 6 0 42 /18

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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 c ontempt. ” 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 cos ts

. 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 recor d 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 , 14 2 A.3d at 56 (emphasis in original)

. T he 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 a ppellants 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.J. A1 6 0 42 /18

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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 Dragonet ti 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 seekin g 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 mak e no
determination as to whether appellants will be successful on the merits, they
are entitled to their day in court.

I I

.
In their second issue on appeal, appellants contend that the trial court
erred when it determined that appellants did not have stand ing 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), aff

irme d , 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.J. A1 6 0 42 /18

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As discussed in detail above, appellant s 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 part ies 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 proceedi ngs 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 l aw 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 o ur 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 49 2.
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 asJ. A1 6 0 42 /18

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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 Vil lani 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

identi fy 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 t he trial court erred when it sustained
appellees’ preliminary objections in the nature of a demurrer to Count III of
their complaint, w hich alleged abuse of process.

A ppellants 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 contemptJ. A1 6 0 42 /18

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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 entitl ed in light of the contingent

- fee agreem ent 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 a nother ‘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 de sired 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. A1 6 0 42 /18

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A ppellants first claim that appellees initiated contempt proceedings for

t he 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 b ad 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 th e primary purpose of the suit was
anything other than [carrying the process to its authorized conclusion.]” (TrialJ. A1 6 0 42 /18

- 20

-

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 t hat appellees initiated the contempt proceeding
for the improper purpose of collecting attorneys’ fees to which they would not

have othe rwise been entitled due to the contingen t

- 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 , 14 2 A

. 3d at 56

. “ Compensatory damages

ar e ‘ 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 Tor ts, § 903 (1979)

. The fact that appe llees entered int o a contingent

- fee agreement with plaintiff

below ha s 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 f irst trial of

which spanned 1 9 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 S utch , 142 A.3d at 45, 53.J. A1 6 0 42 /18

- 21

-

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