J-A33012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID W. FISHER AND SELECTIVE 

INSURANCE COMPANY OF SOUTH 

CAROLINA

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

SCOTT A. EXLEY, BURSICH 

ASSOCIATES, INC., FRANK P. MURPHY 

AND MURPHY & DENGLER

Appellees No. 1170 EDA 2014

Appeal from the Order March 20, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2013-11954

BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED JANUARY 16, 2015

David W. Fisher and Selective Insurance Company of South Carolina 

(collectively Appellants) appeal from the trial court’s order sustaining, with 

prejudice, Frank P. Murphy and Murphy & Dengler’s (collectively Appellees) 

preliminary objections1and striking Appellants’ amended complaint with 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

In reviewing an order granting preliminary objections in the nature of a 

demurrer, the appellate court is presented with a purely legal question: 

whether the law says with certainty that no recovery is possible. Hess v. 

Fox, Rothschild, LLP, 925 A.2d 789 (Pa. Super. 2007). In determining 

whether the trial court properly sustained preliminary objections:

(Footnote Continued Next Page)
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prejudice in this Dragonetti Act2case. After careful review, we affirm on 

the well-reasoned opinion authored by the Honorable Bernard Moore.

In April 2006, Fisher, an insurance broker, allegedly disseminated 

defamatory statements to numerous third parties about Appellees in the 

Pottstown community. The statements were contained in a one-page 

newsletter entitled “The Pottstown Merky.” The newsletter accused 

Appellees Exley and Bursich Associates “of being involved in illegal 

transactions in dealings with various municipalities and non-profit 

businesses” and contained accusations that Exley and Bursich conspired with 

others to commit theft while engaged in “classic quid-pro-quo deals.” 

At the time of the publication, Exley was part-owner of Bursich 

Associates, a company that provided engineering and land surveying 

services, often for municipalities. On November 8, 2006, Appellees Exley 

(Footnote Continued) _______________________

The appellate court must examine the averments in the 

complaint, together with the documents and exhibits attached 

thereto, in order to evaluate the sufficiency of the facts averred. 

The impetus of the appellate court's inquiry is to determine the 

legal sufficiency of the complaint and whether the pleading 

would permit recovery if ultimately proven. The appellate court 

will reverse the trial court's decision regarding preliminary 

objections only where there has been an error of law or abuse of 

discretion. When sustaining the trial court's ruling will result in 

the denial of claim or a dismissal of suit, preliminary objections 

will be sustained only where the case if free and clear of doubt.

Id. at 806.

2 42 Pa.C.S.A. §§ 8351-8355.
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and Bursich filed a lawsuit3against Fisher alleging that he defamed4them by 

distributing the article to third persons. Appellees, Frank Murphy and 

Murphy & Dengler, were Exley and Bursich Associates’ legal counsel in the 

underlying defamation action. 

Fisher unsuccessfully moved for summary judgment; the case 

proceeded to trial before a jury. At trial Fisher’s deposition testimony was 

read into evidence; Fisher denied authoring the article, but admitted that he 

distributed a copy of it to his attorney and business partner and also posted 

a copy of it on a bulletin board in the local bank. Fisher also conceded that 

he did not know the truth of the article’s central allegations and, in fact, 

admitted that a particular accusation was indeed false. Fisher moved for 

nonsuit at the close of plaintiff’s case, which was denied. The jury ultimately 

returned a defense verdict.

____________________________________________

3 Exley et al. v. Fisher, No. 2006-28018, Montgomery County Court of 

Common Pleas.

4

In an action for defamation, the plaintiff has the burden of proving: (1) 

the defamatory character of the communication; (2) its publication by 

defendant; (3) its application to plaintiff; (4) the understanding by the 

recipient of its defamatory meaning; (5) the understanding by the recipient 

of it as intended to be applied to plaintiff; (6) special harm resulting to 

plaintiff from its publication; (7) abuse of a conditionally privileged occasion. 

Agriss v. Roadway Express, Inc., 483 A.2d 456, 461 (Pa. Super. 1984), 

citing 42 Pa.C.S. § 8343(a). Moreover, a publication is defamatory if it 

tends to blacken a person's reputation or expose him to public hatred, 

contempt, or ridicule, or injure him in his business or profession. Cosgrove 

Studio and Camera Shop, Inc. v. Pane, 182 A.2d 751 (Pa. 1962);
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Appellants filed the instant wrongful use of civil proceedings action 

against Appellants in connection with the underlying defamation lawsuit.5 In 

their amended complaint, Appellants6alleged that Appellees wrongfully 

instituted the defamation action against Fisher in an effort to harass and 

injure him without having a reasonable belief that Fisher was responsible for 

any allegedly defamatory comments made in the article or that Fisher 

distributed the article to the Pottstown community. Appellants also alleged 

that Appellees Murphy and Murphy & Dengler knew of their client’s lack of 

such reasonable belief in the facts against Fisher, yet refused to withdraw 

and continued to prosecute the defamation action. Finally, Fisher alleged 

that as a result of the defamation lawsuit, he suffered damage to his 

reputation and to the good will of his business.

In the Dragonetti action, Judge Moore granted Appellees’ preliminary 

objections and dismissed Appellants’ complaint with prejudice. Appellants 

filed the instant appeal, raising the following issues for our consideration:

(1) Did Fisher and Selective state a claim against the 

Defendants for wrongful use of civil proceedings under the 

____________________________________________

5 Selective, Fisher’s insurance carrier, tendered a defense to Fisher in the 

defamation lawsuit and retained a law firm to defend Fisher subject to a 

reservations of rights. Selective also provided a defense to allegations of 

non-covered punitive damages made by Appellees Exley and Bursich against 

Fisher in the defamation action.

6 Selective was a named plaintiff on the Dragonetti action as a result of the 

attorneys’ fees and costs it paid to defend Fisher in the underlying matter.
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Dragonetti Act, 42 Pa.C.S.A. § 8351, et seq., where their 

Amended Complaint alleged that Defendants lacked 

probable cause and acted with an improper purpose in 

initiating and continuing the underlying Defamation Action 

against David Fisher in Exley et al. v. Fisher, No. 06-

28018 (Montgomery Ct. Comm. Pl.)?

(2) Did the trial court commit an error of law in sustaining 

preliminary objections in the nature of a demurrer as to 

Plaintiff-Appellants’ Dragonetti claim where the trial court 

took judicial notice of extraneous facts from the notes of 

testimony in Exley et al. v. Fisher, No. 06-28018 

(Montgomery Ct. Comm. Pl.), which were neither pled in 

Fisher’s and Selective’s Amended Complaint or raised in 

Defendants’ Preliminary Objections?

(3) Did Plaintiff Selective Insurance Company of South 

Carolina (“Selective”) have standing to pursue its 

Dragonetti Act claims against Defendants where Selective 

paid most of Fisher’s defenses costs and possessed an 

equitable right of subrogation arising out of the express 

language of Selective’s insurance contract with Fisher?

(4) Did Plaintiff David Fisher appropriately plead damages for 

losses incurred by his business from Defendants’ 

underlying defamation lawsuit, where the alleged damages 

were incurred by him while operating as a sole 

proprietorship?

Wrongful use of civil proceedings is a tort arising when a person 

institutes civil proceedings with a malicious motive and lacking in probable 

cause. Rosen v. American Bank of Rolla, 627 A.2d 190, 191 (Pa. Super. 

1993). Pennsylvania codified this tort at 42 Pa.C.S.A. §§ 8351-55 (known 

as Dragonetti Act). Section 8351 of the Act reads as follows:

§ 8351. Wrongful use of civil proceedings

(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 [if]:
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(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 

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). An individual has probable cause under the Act 

when he reasonably believes in the existence of the facts upon which the 

claim is based and either:

(1) Reasonably believes that under those facts the claim may 

be valid under the existing or developing law;

(2) Believes to this effect in reliance upon the advice of 

counsel, sought in good faith and given after full disclosure 

of all relevant facts within his knowledge and information; 

or

(3) Believes as an attorney of record, in good faith that his 

procurement, initiation or continuation of a civil cause is 

not intended to merely harass or maliciously injure the 

opposite party.

42 Pa.C.S.A. § 8352 (Existence of probable cause). See also Bannar v. 

Miller, 701 A.2d 232, 238 (Pa. Super. 1997) (wrongful use of civil 

proceedings’ plaintiff must prove that defendant initiated or continued civil 

proceedings against plaintiff without probable cause or in grossly negligent 

manner, for improper purpose, and, that proceedings were terminated in 

favor of plaintiff).

Examining the averments in Appellants’ amended complaint, together 

with the documents and exhibits attached thereto, Hess, supra, we agree 
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with the trial court that Appellees did not institute the underlying defamation 

action without probable cause or in a grossly negligent manner. 42 

Pa.C.S.A. § 8352. Specifically, Appellants aver in their amended complaint 

that Exley denied any knowledge that Fisher published the article to anyone. 

See Appellants’ Amended Complaint, 7/30/13, at ¶16. However, the 

testimony cited to support this averment only references whether Fisher 

placed copies of the article in a local bank branch. See Deposition 

Transcript of Scott A. Exley, 5/7/08, at 28:1-14. The complaint mentions 

nothing about whether Fisher disseminated or published the article to other 

third persons personally, as alleged in the underlying defamation action and 

testified to at trial. The complaint also avers that Exley admitted that he 

knew of no reason why Fisher would even want to defame him, however, 

this again does not demonstrate that he filed the action without probable 

cause or in a grossly negligent manner. 42 Pa.C.S.A § 8351(a)(1). 

Moreover, the averments do not support the conclusion that Appellees 

commenced the defamation action to harass and/or injure Fisher or for some 

other improper purpose. Merely because Exley testified at his deposition 

that he did not claim that Fisher ever lied, Deposition Transcript of Schott A. 

Exley, 5/7/08, at 89:4-20, or that Exley had information that Fisher said or 

wrote any of the comments, id. at 89:21-23, does not mean that he did not 

disseminate the article to third persons. All that is necessary to “publish” 

defamatory material is its communication intentionally or by a negligent act 
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to one other than the person defamed. Gaetano v. Sharon Herald Co., 

231 A.2d 753 (Pa. 1967).

Finally, the fact that Appellants were unsuccessful in moving for 

summary judgment and non-suit, as well as the fact that the case was 

submitted to the jury for a determination on factual issues, further supports 

the concision that probable cause existed for Appellees to file the underlying 

defamation action. See Meiksin v. Howard Hanna Co., 590 A.2d 1303 

(Pa. Super. 1991) (where Dragonetti plaintiffs in prior lawsuit 

unsuccessfully moved pre-trial for summary judgment and had compulsory 

non-suit denied, probable cause existed as matter of law in prior lawsuit to 

defeat Dragonetti action). 

After a review of the parties’ briefs, the relevant case law, and record 

on appeal, we affirm the trial court’s order sustaining Appellees’ preliminary 

objections and dismissing, with prejudice, Appellants’ amended complaint 

based upon Judge Moore’s Pa.R.A.P. 1925(a) opinion. We instruct the 

parties to attach a copy of Judge Moore’s decision in the event of further 

proceeding in the matter.

Order affirmed.

WECHT, J. joins the Memorandum.

STRASSBURGER, J. files a Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/16/2015
Circulated 12/18/2014 09:31 AM

(1'.0'1" I ot '1) 

'" .' 

INTI'IE COURT OF COMMON PLEAS OF 

MONTG OMERY COUNTY, PENNSYLVANIA 

CIVIL DIVISION 

DAVID W. FISHER :md SELECTIVE 

INSURANCE COMPANY OF SOUTII 

CAROLINA 

v. 

SCOTT A. EXLEV, BURSIC H 

ASSOCIATES, INC., FRANK P. 

M Unr l-IV and M URPHY & DENGLER 

.. 

OPINION 

Moore. J. 

I. FACTS AND PROCEDURAL HlSTORV 

Sup . C I. No. 11 70 E DA 2014 

Comm. PI. O. No. 2013-11954 

"l/IIJoI

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JUli e 18, 2014 

This mall(';r involve." a claim for wrongful use o f civi l proceedings ("Drago nelli 

action" 42. Pa.C.S.A, § 835 1 ct seq.), arising trom a de fense verdict in an underlying 

defnmruion lawsuit. David W. Fisher, who \ws thc defendant in the undcrlying 

def.'lmillion action, and Selectivc Insurance Company ofSoulh Carolina appeal this 

court's orders that sustained the preliminary objec tions of the defendants and dism issed 

with prejudice the Amended Complaint of Fisher and Selective Jnsurance. 

TIle defendants in this mailer are Scott A Ex lcy and Bursich Associates, Inc., 

who were the two plain tilTs in the underlying dc fama tion nClion, and also Frank Murphy 

and Murphy & Denglcr, who were their legal counsel. AI the time of the underlying 

deramation lawsuit, Scott Exley was part-owner of Bursich Associates, which was a 

company that provided engineering and land surveying services, oftcn for mumcipalilies 

Exlcy nnd Bursich Associates allegcd that David Fishl.:r, who was an insurance broker, 

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IPa"" ~ of IJ) 

did knowingly, inlenlionally, voluntnrily Bnd maliciously distribute, publish and 

dissel'lliml.le defamaiulY :.IiHements €lgainst {hem in the Pottstown colYlllluniiy. 

Specifi ca lly. the all egations stemmed from n one-page newsletter, dated April 28, 

2006, entitled "The Pbustown Merky," an apparent pinyon words of the local newspaper 

"The Pottstown Mercury." The newsletter contained only one article. That article 

accused Ex ley and Bursich Associates of being invo lved in illegal transactions in their 

dealings with vurious mun icipalities and non-profit businesses. No author or source is 

named in the newslet ter. The article nppe,1rS under th e headlines "Troubles on Borough 

Council" and "Vlahos in it for personal ga;n," referring to Potlstown Borough Council 

and one ofils members nt the time, James Vlahos: The article reads in ful l, as follows: 

I low would you fee l if you were Jack Wolf while watch ing all your effoMS 

these past scveral years rendered mcaningless by the actions of "BIG" Jim 

Vlahos. 

In just a few short months, Big Jim has wreaked havoc in the borough. As 

he has done ill the past at New I "mover, he is planni ng 10 tum over the 

code enforcement department 10 Bursich Assoc iates. In this classic quid 

pro quo deal. Vlahos receives the insurance business at Bursich and 

Creative Hea lth. Scott Exley of Uurs'ich Associates, and Pottstown's 

engineer, personally awarded Vlahos this business to Vlahos in return fo r 

New Hanover's engineering work. Now they're at it again Dnd this time 

Big Jim is maneuvering Exley into a lucrative con tracl lo take over and 

perfonn the dulies of the code enforcement depilr1 ment. 

Remember these two are behind the debacle at the Ricketts Center. 

Everything they touch turns SOl,lr. For example, the recent 

lllbor/management troubles have been insti gated by Big Jim in a ploy 10 

t3ke over the borough's health insurance business. He plans to give Ihe 

insurance busine:;;s 10 his partner in crime, Davc Bultaro. They share in the 

proceeds of their joint scruns nil conducted loc311 y and perpetrated against 

not for profits. Their victims incl udc Creative Health, the YMCA, 

Brookside Country Cl ub. PAL and many other organizations. 

llow do (hey do il? ihrough accomplic<:s like Jim Konnick, Jeff 

B~'!;!!g O!1. Bob Om!"!! !!!~d Tom D'11"'_'1 The '!!O!!'!y !h.'!)' s!e!!.! i!l the 

2 

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backrooms of PottstOWil is shared by all and distributed to the othel 

members of their organization. 

All that's left is a pmh of destruction that includes the mess called the 

Ricketts Center, a Pottstown govenunent in shambles, unable to timct;on 

from one day to the next, and these money grabbing politicians using their 

positi ons and infl uence to line their pockets. 

Vlahos, I3crry, Exley, Br ant, Kormick. Devington, Du ttaro. Marsteller aoo 

the others do their business in the sh'adows behind the republican party and 

quasi legi ti mate businesses. Mr. Wo lf: lum the light Oil the.sc guys and 

expose them for whut and who tbey arc, You havc been and honest and 

hurd worki ng civil servant. Evcryonc in Pottstown knows thai you will do 

the right thi ng. 

This is the first edition oflhe lIew and improved Poustown Merky. We 

pub lish the news thai the Mercury doesn' t. 

Se~ Underlying Actio n, Trial Ex, P·I. 1 In sum, the article accused Exley and l3ursich 

Associotcs ofbcing inyolved in illegal quid pro quo deuls with V lahos, whom it alleged 

abused his borough council powers. The article specifi call y a lleged that Vlahos gave 

l3ursich Associates the work in the borollgh's code enforcement departmen t, and Oursich 

Associates in return gave Vlahos, nn insumnce brok:er, the insurance business at Bursieh 

Associates. fis her was a competitor of Vlahos' in the insura nce buslOcss. (N.T. 817/12. 

pp. 83-92).' 

Thereancr, Exley and Bursieh Associates filed a lawsuit against Fisher here in the 

Montgomery County Court of CommOn Pleas. a lleging that F'is her defamed them by 

distributing t he article to third persons, No prelimi nary objection~ or mOtion for 

judgment on the pleadings was ever filed by Fisher. Discovery \.ws condUCted, and 

The Underlymg ActiOn in tliis ease refers to SCOll A. Ex ley and Butslch 

Associa tes. Inc. v. David W. Fisher, which is dock:cted at 2006-28018 in the Montgomery 

County Court of COmmon Pica:;. 

1 1)le citations to the Notes of Testimony from 8/6/ 12, 87112, MI/12, and 819/12 all 

refer to the fOllr days of trial in Ihe underlying defamati on action, No. 2006·28018 

3 

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Fisher filed a mot jon for summary judgment, arguing therein that the defamation claim 

froiled as a maHI!i' of taw because (1) the article did not have a defamatory clmraclcr, (2) 

there was no publication of the article to a third person; (3) Ex ley and Bursich Associates 

could not present sufficient evidence of actual malice on the part of Fisher, which Fisher 

alleged they were required to show since, as Fisher argued, they were public ligures; and 

(4) Exley and Bursich Associates could not present sufficient ev iden ce to establish actual 

harm. 

The Honorable William J. Furber, Jr. denied Fisher's motion for summary 

judgment by an order dated November 10,2010, and allowed Ex ley and Bursich 

Associates' case 10 proceed. Before the trial, Fisher filed two motions in limine, one 

arguing Ihal the article was nol defamatory under Pennsylvania law, and Ihe second 

arguing that Exley and l3ursich Associates were public officials or public figures for 

purposes of de fa mali on analysis. The Honorable Enunanuel A. Bertin, who was the trial 

judge, denied bolh these motions. (N.T. 8/6112, p. 12; N.T. 818112, p. 66). 

At trial, Fisher's deposition testimony was read into evidence. At his deposition. 

while Fisher denied aUlhoring the article, he did admi t that he distributed a copy of it to 

his allomey and his rosiness partner. (N.T. 8/6/12, pp. 108-09). Fisher admitted thaI he 

posted a copy of the article on a bulletin board of a local bank, (N.T. 816112, p. 110). He 

also conceded that he did not know the truth of one of the article's central allegations: 

thaI Exley and Bursich Associates had previously engaged in a similar illegal quid pro 

quo deal when Vlahos had previously served as township supervisor in New Hanover 

Township. (N.T. 8/6/12, pp. III, 118). In closing argument, Fisl~r's counsel conceded 

4 
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!P~9" 5 ~r 111 

Ihat Ihis panicular accusation in the article Was false, in that Dursich Associates had 

never obt<lined work for New Hanover Township. (N.T. 8/9/12, p. 39). 

During Ihe defa11lalioll trial, Gregory Berry testified that, in a convcrsation with 

David Fisher al a local 7·1 1 store, Fisher said that he "put (the llJ1icles] up ... land) sent 

them and faxed them 10 everyone" he knew. (N.T. 8/6/12, p. 81). Indeed, Fisher added, 

according 10 Berry, Ihal he "would do .it again if another one CItme QUL" (N.T. 8/6112, p. 

81). FUr1hermore, Edward E. Panzeter, III, who worked at Dursich Associates as an 

employee of Exley's at the time Ihe article appeared, leslified at Irial that he picked up a 

copy of the article althe bank and found It to be "malicious." (N.T. 8/6/12, p. 70). 

AI the conclusion of the plaintiffs' case, ~isher moved for II nonsuit, which Judge 

l3ertin denied. (NT. 817/12, pp. 119·127). Fisher then proceeded 10 present his defense. 

The trial lasted !l totnl of fOllr lotal dllYs, and the jury returned 8 defense verdict in favor 

of Fisher. 

ARcr the defamation action had lJeen resolved in his favor, Fisher and Selective 

lnsuf<mce commenced the instant DragoneHi action, vin an Amended Complaint, 

claiming Ihat Exley and Bursic~ Associates, through their legal counsel of Frank Murp hy 

from the 18w finn Murphy & Dengler, commenced the defamation litigation to harass and 

IIljure Fisher, and without having a reasonable belief that Fisher de ramed them. Ex ley 

and Bursich Associates, and Murphy & Dengler, both filed preliminary objections, which 

this court susI;\incd. David Fisher and Selective Insurance Company now appeallhis 

courl's determination. 

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cPa.,., G o r J1I 

Il. DISCUSSION 

In order rut the Iriai court 10 adjudicate preliminary objections filed in D. 

Dragonclli case., thc conrl must take judicial noticc of and analyzc comprehensively the 

complete record of the underlying action and evaluate thc merits orthat claim. See e.g , 

Keystone Freight Corp. v. Stricker, 31 A.3d 967 (Pa. Super. Ct. 2011). Furthcnnore, it is 

ripe for this court to resolve a Drdgonetti case on preliminary objections. See Lerner v. 

Lerner, 954 A.2d 1229 (Pa Super. CI. 2008). Pederai Courl S, when applying 

Pennsylvania law, have routinely stricken Dragonetti claims on the basis of a demllrrer 

contained in motions to dismiss. See. e.g., Bobrick Corp v. San/Gila Products, IIlC., 698 

P.Supp.2d 479 (M.D.Pa. 2010); Villari Brandes & .Giannone. PC v. Wells Fargo Fin 

Leasing. Inc., No. 13-297,2013 WL 5468491 (E.D_Pa Sept 30, 2013); Arnder v. 

DimitroIJ, No. 11-3626. 2011 WL 4801924 (E.D.Pa. Oct 7, 201 I). 

The plaintiff's Amended Complaint is solely predicated upon what occurred in 

the underlying action and makes specific. reference 10 that litigation. Any procedural 

obJcction to this courI's determin ation of issues of probable causc, improper purpose and 

gross negligence have been waived since Ihese issues were raised by Ihe defense in 

preliminary ofijcc1ions Wilh- supponlng-ex1ii6ils attached anCldie plamtifI did not h1' • ---- ----

preliminary objections 10 the defendants' preliminary objections. See Richmond v. 

McHale, 35 A.3d, 782-83 (Pa. Super. CI. 20 12), quoting Preiser v Rosenzwej'g. 615 A.2d 

303,305 (Pa Super; CI. 1992). Accordingly, any possible challenge by the plainlifr OIl 

procedural grounds 10 the preliminary objections of the dcfendanls is waived. 

6 

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"[AJ party seckiue, redress under Dragonctti bears a heavy burden." Us. Express 

Lines, Ltd. V. Niggi1l.f, 281 F.3d 383, 394 (3d Cir. 2002). The Dragonelti Act provides, 

ill relevant part: 

§ 8351 Wrongrul usc or civH proeced ings 

(a) Elemen ts or ac.tion.-A person who takes part in the procurement. 

in itiatiOn or continuation of civil proceedings agni nSI another is subject to 

liubility to the other for wrongfu l usc of civil proceed ings: 

(I) 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 adjudication of the c laim in which the proceedings 

are based; and 

(2) The proceedi ngs have terminated in favor oflhe persoll against 

whom they arc brou ght. 

42 PaC.SA § 835 1 (a)(1 )-(2). 

Th~ AI;I t1efiJles prC!bablecause as follows: 

§ 8352. Exislen ce of probable ca use 

A person who takes part in the procurement, in itiation or continuation 

of civil proceedings against another has probable cause for doing so ifhe 

reasonably believes III the existence of Ihe fae ls upou wh ich lhe claim is 

based, and either; 

(I) Reasonably believes that under those facts the claim may be 

valid under the existing or developing law; 

(2) Believes to this effect in reliance upon the advice of counsel, 

sought in good faith und given nner fuJI disclosure of all relevant 

racts within his knowledge and information; or 

(3) Believes as an attorney ofrccord. in good faith that his 

procurement, initiation or continuation of a civil cause is nO{ 

1Il1ended 10 merely harass or maliciously i1uure Inc opposite party. 

42 PD .C.S. § 8352(1)·(3). 

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t"-9'!' or III 

To prevail in a Dragoneni claim. a plaintifTmust show that the defendant 

"maliciuuslY illSlilulcd prI.lcee<lings agilinsl!him]. that {the defendant1l ac~ed probable 

cause 10 inslilute the proceedings, and thaI the proceedings terminated in favor of {I he 

plaintlfT]." Keystone Freight Carp. 31 A.3d at 972 (citations omittcd). A Dragonetti Act 

plaintiff"l>ears the burden of proving thaI the primary purpose for which the proceedings 

were brought was nOI that of securing the proper discovery, joinder of parties, Or 

adjudica tion oflhe claim on which the proceedings were based." ld. at 972, citing 42 

Pa.C.S. § 8354(4). Likewise, "re]ven if an attorney lacked probable cause in filing a 

lawsuit on behalf of a client, he is not liable for wrongful use of civil ilroceedings unJess 

he filed the lawsuit with an improper purpose . Morris Y. DiPaolo, 930 .A.2d 500, 504 

(Pa Super. Ct. 2007). "[A] terminati on of civil proceedings by a competen t tribunal 

3dverse"to the person initialing them is nol evidence that they wen; urought Witllout 

probable cause." Rcst3tement (Second) of Torts § 675. cmt. b; Ludmer v. Nernberg, 640 

A.2d 939, 944 (P •. Sup«. Ct. 1994). 

Wilb regard to attorney liability on a Dragoneni action, "as long as an 3Uomcy 

believes Ihat there is a slight chance that his client's claims will be successful , it is not the 

3tlOmey's duty to prejudge the case." Keys/one Freighr Corp. 31 A.3d at. 973, ciling 

Morris, 930 A.2d lit 505. "Lawyers can oct safely act upon the f3CIS staled by their 

clients." Meiksin v J/oward Hanna Co, Inc., 590 A,2d 1303 (Pa. Super. CI. 1991). 

Upon review orthe underlying action, the lenst that can be said is that Ex ley nnd 

Bursi<;h Associates had a viable cause of action, and there is no legal basis to sustain a 

Dragonetli nellon m thiS case against them and the defendant law firm. Here. there was 

8 

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While the proceedings underlying the instant action did terminate with ajury verdict in 

favor of Fisher, it is clear that Exley. Dursich Associates and their lo't'l)'er believed in the 

existence of the facts upon which their claim was based and reasonably believed Ihnl 

under those facts their claim was cognizable under existing ton law. Indeed, the 

underlyiflg acti on proceeded all the way 10 a jury verdict. Fisher /lever filed preliminary 

objections. nor did he fi le a motion for judgment on the pleadings. His motion for 

summary judgment was denied, as was his motion for nonsuit al trinl. 

Exley and Bursich Associates' defamation action was founded upon the testimony 

of multiple witnesses, including Fisher himse lf. fisher admitted that he distributed the 

article to 01 least IWO persons and also admit ted that he posted the article on a bulleti n 

board at a Icc.a! bank. (N.T. 8/6/12. pp. 108-09). Furthermore, George Berry testified 

that Fisher staled to him that he inlemlt'!(\ In ~lrihllte the article hy faxing it to everyOne 

he knew. (N.T. 816/12, p. 8 1). Exley and Uursich Associates did not Jleed to show that 

Fisher authored the article himself to establish defamation. only that he pub lished it 10 0. 

third persoll. h, addition, Edward l'anzeler testified to Ihe defamatory nature ofthe 

article by stating he found it to be "malicious." (NT 816/12, p. 70). Such testimony 

-------oam=o"u .. n"·Od"'lo=IX"~ 6iilile cause, anasucn proOii61c cause was cOllltrrned by the friar coUi'fs---

denial of Fisher's motion fo r summary judgment and motion for nonsuit 

Indeed, Fisher's counsel conceded in his closing argument that FIsher made 1I 

"mistake" in posting the article atl he bank. (N.T. 8/9112, p. 44). FurthemlOte. fisher's 

counsel conceded in a post-lrial memoraudum that the "court concluded the publication 

was capable of defamatory meaning but properly left to the detcrmillation of the jury the 

question of whethe r (he article actual ly dcrume..:! U Exley or 13ursich U." See 

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Memorandum of Law in Opposition to PlaintifT's Motion for Post-Trial Relief, pp. 3·4, 

No. 2006-28018, Docket Emry 74. 

Furthermore. Exley and Bursich Associates did not act with gross negligence. 

"The presence of probable cause ... does not necessarily defeat the entire cause of action 

for wrongful lL<;e of civil proceedings, as the clear language of Section 8351 penuits a 

cause of action to be based on gross negligence or lack of probable cause." Keystone 

Freight Corp. 31 1\.3d at 973 (quotations omitted). TIle Superior Court has defined gross 

negligence as "the want of even scant care and the failure 10 exercise even that care 

which a careless person would use." /1arl l'. O'Malley. 781 A.2d 121'1, 12 18 (Pa. Super. 

CI. 200 1). A court is "precluded from considering any conclusions oflaw or inferences 

which ate not supported by the factual allegations contained;n th e complaint." Hart v. 

O'Malley, 647 A,2d 542, 553 (Po, Supe.. CI. 1994), aff'd676 A.2d 222 (Pa. 1996). A 

plaintiff, therefore, c;mnot maintain a cause of action for wrongful usc of civil 

proceeding; by merely stating "conclusions oflaw. unwarranted inferences from facts, 

argumentative allegations, and expressions of opinion." Neill v. Eberly, 620 A.2d 673, 

675 (Pa. COmmw. Ct. 1983). FurtlletlllOrC, the court "must not supply a fac t missing in 

the complaint" in order to cure a defect in the pleading. Hart, 647 A.2d at 553. Plaintiffs 

have not set forth the facts that are esscnlialto suppol11heir claim. 

Exley and Bursich Associates' factual and legal presentations in the underl ying 

litigation preclude a finding that they acted with gross negligence or an improper purpose 

in initiating and continuing the underlying defamation lawsuit. As discussed .supra, 

Exley and Bursich Associates prcsented carefully reaso ned arguments supported by 

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witness testimQny. Accordingly, Exley and Bursich Associates, and Murphy and Murphy 

& Dengler, did not act wilh gross negligence or an improper purpose. 

This instant case is co ntrolled by Meiksin v. lfoward Hallna Co., Inc. , 590 A.2d 

1303 (Pa. Super. CL 199 1), whe re the Superior Court upheld the tria l co urt's firding that 

there was probable cause as a maller of law in the underling action. Meiksin involved a 

Dragonetti Act claim by propcny owners against their real estate brokers and the b rokers' 

nuomeys for instit uting a lawsui t to recover withheld real estate commissions. Id at 

305~ 6. At issue in the Meiksin underlyi ng action was the existence of an oral contract 

extension thai would entitl e !he brokers to a commission iffound enforceable. Id. 'Ole 

brokers were unsuccessfu l in the ir lawsui t. Id. 1lJ(! propeny owners later sued the 

brokers and their aHomey, alleging that the underlyi ng lawsuit was bro ught without 

probablt: cause. Id. 

In Me i/(sin, the trial court granted summary judgment in favor of all the . 

Dragonelli defendants. Plaintiffs there argued that facmal issues Ihat were submitted 10 

the tact fi nder in the underlying action ncedt::d to be reviewed by aj ury inlhe Dragonelti 

case 10 detem line whether there was probable eause 10 institute the lawsuit. Oul lhe 

Superior Court rejected this analysis and held: 

[T)he existence of probable cause was present as a matter of law in view 

of the ex istence of a legitimate dispute of fact in the prior action for 

commissiOns. This was apparent from the denial of motions fo r summary 

judgment and compulsory non-su it in the prior action and the submission 

of disputed factual issues to thejury. 

Id. al 1306. 

The holding orthe S uperior Court In Meiksin is that the material facls rclevalllto 

the probable cause detenllillalion are simply whether there was a legitimate factual 

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dispute in the underlying action to be determined by the trier of facl. The Superior Court 

fun her held: 

The existence of probable cause is also demonstrated by the faclthal there 

was sufficient evidence [to require the factual dispule} be submilted to the 

jury for determination ... This suggests thlli there was competent 

evidence of sufficient quantity and quality to demonstrate probable cause 

for a reasonable belief that the action could be maintained. This be lief was 

confinned also by the court's denia l of motions in the \lTl derlyi ng aclion 

for summary judgment and compUlsory non·suil, motions which could 

have been granted only if there had been nO competent evidence sufficient 

to maintain the action. 

Id. at 07 ~ see also Hadden v. Gouldey, el af., 25 Montgomery County Law Reporter 

149 (20 12). qIJ'd55 A.3d 149 (Pa Super. CI. 2012); Lerner v. Lerner. 954 A.2d 1229 

(Pa. Super. Ct. 2008) (sustaining preliminary objections in nature of demurrer to 

Dragonelli claim). 

The underlying action was a routine defamation case with legitimate disputed 

factual issues. The defendants presented substantial evidence and well-reasoned 

arguments in support of the ir claims. According y~ this court properly sustained the 

defendants' preliminary objections and dismiSSed the case. 

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!PII.,)<,! Il or III 

III, CONCLUSION 

Based upolil he all of the foregoing reasons, this Court's delennination was 

proper and should be AfFIRMED. 

BY TIlE COURT: 

BERNARD ~~w A MOORE, J. 

Dale: June 18,2014 

Cc: Michael N. Onufruk, Esq. 

Paraskevouln V. Mamounas, Esq. 

Josh J.T. Byrne, Esq. 

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