[ J

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IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

NANCY K. RAYNOR, ESQUIRE AND RAYNOR & ASSOCIATES, P.C.

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

APPEAL OF: MESSA & ASSOCIATES

, P.C. & JOSEPH MESSA, JR., ESQUIRE :

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: No. 35 EAP 2019

Appeal from the Judgment of Superior Court entered on March 8,
2019 at No. 3313 EDA 2017 (reargument denied May 14, 2019) affirming, reversing and remanding
the Orde r entered on August 29, 2017 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 0211 January Term, 2017.

ARGUED: May 27, 2020

NANCY K. RAYNOR, ESQUIRE AND RAYNOR & ASSOCIATES, P.C.

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

APPEAL OF: MATTHEW D'ANNUNZIO, ESQUIRE, KLEHR HARRISON HARVEY BRANZBURG LLP, WILLIAM T. HILL, ESQUIRE, AND ROSALIND W. SUTCH, AS :

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: No. 36 EAP 2019

Appeal from the Judgment of Superior Court entered on March 8,
2019 at No . 3313 EDA 2017 (reargument denied May 14, 2019) affirming, reversing and remanding the Order entered on August 29, 2017 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 0211 January Term, 2017.

ARGUED: May 27, 2020[ J

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EXECUTRIX OF THE ESTATE OF ROSALIND WILSON, DECEASED :

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CONCURRING O PINION

JUSTICE WECHT DECIDED: December 22, 2020

M uch of the mischief in this case was set in motion by the trial court’s failure to

fulfill a simple but important obligation: to rule up on the request by plaintiff’s counsel for

“an order directing defense counsel to speak with their defense witnesses about the

smoking preclusion immediately before those witnesses took the stand.” 1 Instead of

issuing th at straightforward and eminently reasonable order, the trial court inexplicably

punted, commenting vaguely that “the defendants a re on notice of that request.” 2 T he

court abdicated its judicial role and precipitated the conflict now before us

. And so this

simmering conflict has now made its way here

.

A bright line is available, ensuring tha t the phrase “civil proceedings” in Section

8351 of the Dragonetti Act 3 is not transformed into a catch

- all for every conceivable act

to which litigants might resort in a given case. S uch “proceedings” are properly limited to

claims (complaints, petitions for injunctive relief , and the like ) and counterclaims

— i.e.

,
actions that invoke the jurisdiction of a court. This comports with the statute’s use of the

words “procurement” and “initiation” when describing the prohibited acts taken “against

another” tha t would “subject [the other] to liability

. . . for wrongful use of civil

proceedings.” 4 Contempt hearings and motions for sanctions, by contrast, are ancillary

to the underlying civil action and thus do not fall within the ambit of “civil proceedings

. ”

1 Sutch v. Roxborough Mem’l Hosp. , 142 A.3d 38, 45 (Pa. Super. 2016).

2 Id. (quoting Notes of Testimony, 5/30/2012, A.M. Session, at 5

- 6).

3 42 Pa.C.S. § 8351(a).

4 Id.[ J

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P oor legislative draftsmanship has once again complicated our task. We must

parse the lawmakers’ language finely here in order to derive the ir inten tion

. Because the

Dragonetti Act does not define a “civil proceeding,” we must look elsewhere to glean its

meaning. T he General Assembly has supplied a generic list of definitions to be employed

throughout the Judicial Code

, 42 Pa.C.S. § § 101, et seq. U nsurprisingly, if somewhat

perversely, that statutory provision itself invites the non uniform application o f words

otherwise defined when “the context clearly indicates” that an alternative meaning should

be used. Id. § 102. As pertains to this case, S ection 102 of the Code provides:

Subject to additional definitions contained in subsequent provisions of this title which are applicable to specific provis ions of this title, the following words and phrase s when used in this title shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

. . .

“Proceeding.” Includes every declaration, petition or other application which may be made to a court under law or usage or under special statutory authority, but the term does not include an action or an appeal.

Id.

As applied to the Dragonetti Act , this de finition is less than helpful. C onsider, for

instance, a person who wrongfully initiates civil proceedings against another . Section

8351 of the Dragonetti Act expressly denotes such a claim as , itself, “an action.”

Id. § 8351(b). But the definition of “proceeding” applicab le to the entire Judicial Code

makes clear that “the term does not include an action.” Id. § 102 (emphasis added)

.
Consequently , one’s wrongful use of the Dragonetti Act to harass another through the

judicial system, although a “proceeding” in the colloq uial sense, is really an “action” and

not a “proceeding” as far as the Judicial Code is concerned. Hmmm. Perhaps these

confounding incongruities are, like moles, unwhackable to the last. I join the Majority’s

resolution of these muddled terms

, secure in the knowledge that the General Assembly

is empowered to clarify their meanings by redrafting the relevant statutes.[ J

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I would be remiss were I to overlook this Court’s role in displacing the Dragonetti

Act’s legislatively designed sanctions. C ompared to the now

- suspended Section 8355 of

the Judicial Code, 5 this Court’s equivalent , Pennsylvania Rule of Civil Procedure 1023.1

,

is a weak sister indeed

. Significantly, Section 8355 contained an express penalty for the

violation of its provisions . Had this pr ovision stood, it would have been a more robust

deterrent to vexatious litigation tactics than Rule 1023.1. But this Court holds exclusive

constitutional authority “to prescribe general rules governing

. . . all officers of the Judicial

Branch.” P A

. C ONS T

. art. V, § 10(c). Consequently, Section 8355 was displaced by this

Court’s enactment of Rule 1023.1, which , like its federal analogue, Rule 11 of the Federal

5 Section 8355 (“Certification of pleadings, motions and other papers”) provided:

Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual
name and his address shall be stated. A pa rty who is not represented by an attorney shall sign his pleading, motion or other paper and state his
address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature
of a n attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that, to the best of his knowledge, information and belief, it is well

- grounded in fact and is warranted by existing law or a good

- faith argument f or the extension, modification or reversal of existing law; and that it is not interposed in bad faith or for any improper purpose, such as to harass another, to maliciously injure another or to cause unnecessary delay or increase in the cost of litigation

. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or

movant. If a pleading, motion or other paper is signed in violation of this section, t he court shall award to the successful party costs and reasonable attorney fees and may, in addition, impose a civil penalty which shall not exceed $10,000. Such costs, fees and civil penalty shall be in addition to any other judgment awarded to the succe ssful party and shall be imposed upon the person who signed the pleading, motion or other paper, or a represented party, or both. This section is in addition to and shall not be construed to limit any other remedies or sanctions provided by law.

42 Pa.C.S . § 8355 (effective until June 30, 2002), suspended by Pa.R.C.P. 1023.1(e).[ J

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Rules of Civil Procedure, leaves the question of sanctions entirely discretionary, rendering

it toothless , or at least defanged . I do not question this Court’s broad rule

- making powers ;

it is well

- established that the G eneral A ssembly lacks the plen ary rulemaking authority

that the United States Congress possesses

. 6 Rather, I believe that t his Court should

revisit Rule 1023.1 . We should explore giving the rule the sort of bite that might ensure

it s deterrent component registers among those who need the inducement not to abuse

civil process.

6 See Sibbach v. Wilson & Co. , 312 U.S. 1, 9

- 10 (1941) (“Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by deleg ating to this or other federal courts the authority to make rules not inconsistent with the statutes or Constitution of the United States . . . .”) (footnote omitted) ; accord 28 U.S.C. § 2072

.