J-A19012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NICHOLAS PINARDO, III IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOHNNIE DORSEY, III AND JOSEPH 

SILVESTRO, ESQUIRE,

Appellees No. 774 EDA 2016

Appeal from the Order Entered February 17, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 02307 March Term 2014

NICHOLAS PINARDO, III IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHNNIE DORSEY, III AND JOSEPH 

SILVESTRO, ESQUIRE,

Appellants No. 844 EDA 2016

Appeal from the Order Entered February 17, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 02307 March Term 2014

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 04, 2017

Appellant, Nicholas Pinardo, III, appeals and Appellees, Johnnie 

Dorsey, III and Joseph Silvestro, Esquire, cross-appeal from the trial court’s 

February 17, 2016 order directing Mr. Pinardo to pay Appellees $6,177.11 as 
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a result of this allegedly frivolous wrongful use of civil proceedings 

litigation.1 After careful review, we affirm in part, reverse in part, and 

vacate in part.

Mr. Pinardo — who had previously been Appellee Dorsey’s landlord —

brought the present action for wrongful use of civil proceedings against 

Appellee Dorsey and his attorney, Appellee Silvestro, following prior 

litigation between the parties concerning a landlord/tenant dispute. From 

what we can glean from the record and the parties’ briefs on appeal, the 

prior landlord/tenant proceedings underlying the present action transpired as 

follows. 

The prior landlord/tenant proceedings 

On June 23, 2008, Appellee Dorsey — who was not represented by 

Appellee Silvestro at that time — filed a claim against Mr. Pinardo in the 

Philadelphia Municipal Court, alleging that Mr. Pinardo illegally evicted him 

and seeking damages for conversion of property. See Mr. Pinardo’s Brief at 

____________________________________________

1 Although Mr. Pinardo filed a notice of appeal from the decisions dated 

December 3, 2014, July 7, 2015, November 19, 2015, February 1, 2016, 

and February 17, 2016, we consider his appeal to be taken from the 

February 17, 2016 order, as that order disposed of all parties and their 

remaining claims, including Appellees’ outstanding motion for sanctions and 

request for attorneys’ fees. See Pa.R.A.P. 341 (explaining that “an appeal 

may be taken as of right from any final order of a ... trial court[,]” and that 

“[a] final order is any order that ... disposes of all claims and of all parties”). 

Likewise, although Appellees appeal from both the trial court’s February 1, 

2016 and February 17, 2016 orders, we deem Appellees’ cross appeal as 

being taken from the February 17, 2016 order. 
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6-7; Appellees’ Brief at 7. Judgment was entered in favor of Appellee 

Dorsey, and Mr. Pinardo appealed the decision to the Court of Common Pleas

of Philadelphia County.2 Mr. Pinardo’s Brief at 6; Appellees’ Brief at 7. 

Around this time, Appellee Dorsey retained Appellee Silvestro as counsel. 

See Mr. Pinardo’s Brief at 7; Appellees’ Brief at 8. Subsequently, on appeal 

to the Court of Common Pleas of Philadelphia County, the case was 

dismissed for failure to file a timely complaint. Mr. Pinardo’s Brief at 7; 

Appellees’ Brief at 8. Thereafter, Appellees petitioned to have the judgment 

of non pros opened, but the trial court denied it. See Mr. Pinardo’s Brief at 

7; Appellees’ Brief at 8.3 

On July 22, 2008, Appellee Dorsey — who was also not represented by 

Appellee Silvestro at that juncture — filed a second claim in the Philadelphia 

Municipal Court, requesting the return of his security deposit from Mr. 

Pinardo. Mr. Pinardo’s Brief at 7; Appellees’ Brief at 7. Once again, 

judgment was entered in favor of Appellee Dorsey, and Mr. Pinardo appealed 

the decision to the Court of Common Pleas of Philadelphia County.4 Mr. 

Pinardo’s Brief at 7; Appellees’ Brief at 7. As mentioned above, Appellee

____________________________________________

2 The parties refer to this case as number “090203157.” Mr. Pinardo’s Brief 

at 6; Appellees’ Brief at 8. 

3 According to Mr. Pinardo, Appellees filed an untimely appeal from the trial 

court’s decision, which this Court quashed. Mr. Pinardo’s Brief at 7. 

4 The parties refer to this case as number “090203165.” Mr. Pinardo’s Brief 

at 7; Appellees’ Brief at 8. 
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Silvestro began representing Appellee Dorsey around that time. Mr. 

Pinardo’s Brief at 7; Appellees’ Brief at 7, 8. Like the case discussed above, 

this case was also dismissed for failure to file a timely complaint. Mr. 

Pinardo’s Brief at 7; Appellees’ Brief at 8. Appellees filed a petition to open 

the non pros judgment, and the trial court granted this petition. Mr. 

Pinardo’s Brief at 7; Appellees’ Brief at 8. However, the trial court later 

sustained Mr. Pinardo’s preliminary objections and dismissed Appellees’ 

complaint without prejudice. Mr. Pinardo’s Brief at 7; Appellees’ Brief at 8. 

On March 16, 2009, Appellees commenced new actions against Mr. 

Pinardo by filing two complaints.5 Mr. Pinardo’s Brief at 7-8; Appellees’ Brief 

at 8-9. But, shortly thereafter, Appellees voluntarily dismissed both cases 

because of some confusion surrounding proper docket information. Mr. 

Pinardo’s Brief at 7-8; Appellees’ Brief at 8-9. 

Finally, on April 29, 2010, Appellees filed another complaint against 

Mr. Pinardo, alleging, inter alia, that Mr. Pinardo prohibited Appellee Dorsey 

from taking his personal property from the leased premises.6 Mr. Pinardo’s 

Brief at 8-9; Appellees’ Brief at 9. In response, Mr. Pinardo filed preliminary 

objections, raising issues regarding res judicata and the failure of Appellees 

____________________________________________

5 The parties refer to these cases as numbers “090302471” and 

“090302473.” Mr. Pinardo’s Brief at 7-8; Appellees’ Brief at 8. 

6 The parties refer to this case as number “100404471.” See Mr. Pinardo’s 

Brief at 8; Appellees’ Brief at 9. 
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to attach a required writing to the complaint. Mr. Pinardo’s Brief at 9-10; 

Appellees’ Brief at 9-10. The trial court sustained Mr. Pinardo’s preliminary 

objections, and dismissed the complaint without prejudice. Mr. Pinardo’s 

Brief at 9; Appellees’ Brief at 9-10. In doing so, it explained:

It should first be noted that this court did not rely on the 

doctrine of res judicata in sustaining [Mr. Pinardo’s] preliminary 

objections. This fact is apparent from the court’s dismissal of 

the complaint specifically without prejudice. Nor did the court 

rely on [Mr. Pinardo’s] argument that there was a prior pending 

action. The court accepted [Appellee Dorsey’s] argument that 

the prior actions were filed mistakenly, and that they were 

discontinued in order for [Appellee Dorsey] to pursue the 

underlying action. 

However, the court could not overlook the preliminary objection 

regarding the failure to attach a required writing, as required by 

Pa.R.C.P. 1019(i).[7] This argument was the basis for dismissing 

the complaint without prejudice. [Appellee Dorsey] failed to 

attach a copy of the alleged lease agreement. [Appellee Dorsey] 

also failed to address why such agreement was not attached. 

Because of this procedural defect, this court sustained the 

preliminary objections and dismissed the complaint without 

prejudice. 

____________________________________________

7 Rule 1019(i) states:

When any claim or defense is based upon a writing, the pleader 

shall attach a copy of the writing, or the material part thereof, 

but if the writing or copy is not accessible to the pleader, it is 

sufficient so to state, together with the reason, and to set forth 

the substance in writing.

Pa.R.C.P. 1019(i). 
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See Appellee Silvestro’s Motion for Sanctions against Anthony Quinn, Esq. 

pursuant to Rule 1023.1, et seq., 10/6/2015, at Exhibit 3 (Trial Court Order 

in Case No. “100404471”, 1/18/2011, at 3).8

Thereafter, following further litigation, the trial court held a settlement 

conference with the parties on March 20, 2012. See Mr. Pinardo’s Brief at 

10; Appellees’ Brief at 10. At the conclusion of the settlement conference, 

the trial judge described the disposition of the case as follows:

Case settled. [Appellant] Pinardo will return escrow of $3500.00 

to [Appellee] Dorsey. Case is dismissed.

See Trial Worksheet, 3/20/2012 (single page); see also Mr. Pinardo’s Brief 

at 10; Appellees’ Brief at 10. Mr. Pinardo then returned the $3,500.00 to 

Appellee Dorsey. See Mr. Pinardo’s Brief at 10 (“After [Appellee Silvestro] 

lost all 5 cases, [Mr. Pinardo] returned the security according to the amounts 

agreed by the co-tenants and brokered by [the trial judge]. No personal 

payment was made by [Mr. Pinardo].”); Appellees’ Brief at 10 (“On March 

23, 2012, [Mr.] Pinardo’s counsel sent [Appellee] Silvestro the settlement 

check.”). 

The present wrongful use of civil proceeding action 

Following the conclusion of the underlying landlord/tenant 

proceedings, Mr. Pinardo subsequently brought an action for the wrongful 

____________________________________________

8 According to Mr. Pinardo, Appellees filed an appeal from this order, which 

this Court subsequently quashed as interlocutory. See Mr. Pinardo’s Brief at 

9 (citations omitted). 
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use of civil proceedings against Appellee Dorsey and his attorney, Appellee 

Silvestro. The trial court summarized the procedural history of the present 

case before us as follows:

[Mr. Pinardo] filed a complaint on July 19, 2014[,] claiming one 

count of Wrongful Use of Civil Process against [Appellees] 

Silvestro and Dorsey.

On May 4, 2015, [Appellee] Silvestro filed a Motion for Summary 

Judgment. 

On July 7, 2015, this [c]ourt granted [Appellee] Silvestro’s 

Motion for Summary Judgment, dismissing [Mr. Pinardo’s] claims 

against [Appellee] Silvestro with prejudice. 

On July 23, 2015, [Mr. Pinardo] filed a Motion for 

Reconsideration which the [c]ourt denied on July 29, 2015.

On September 22, 2015, a Default Judgment was entered in 

favor of [Mr. Pinardo] and against [Appellee] Dorsey for failure 

to file an Answer within the required time. 

On September 30, 2015, [Appellee] Dorsey petitioned the court 

to open judgment, citing lack of proper service. The Honorable 

Lisa M. Rau granted the petition on November 2, 2015.

On October 6, 2015, [Appellee] Silvestro filed a Motion for 

Sanctions against [Mr. Pinardo’s] attorney[,] Anthony Quinn, 

Esq. 

On November 19, 2015, [Appellee] Silvestro’s Motion for 

Sanctions was granted by this [c]ourt and [Appellee Silvestro] 

was instructed to submit invoices, within ten (10) days, 

demonstrating the amount of reasonable fees and costs incurred 

in defending against [Mr. Pinardo’s] frivolous complaint. 

On November 25, 2015, [Mr. Pinardo] filed an Amended 

Complaint to which a second set of Preliminary Objections was 

filed on behalf of both [Appellees].

On December 14, 2015, [Appellees] Silvestro and Dorsey filed a 

Motion for Sanctions against [Mr. Pinardo’s] attorney Anthony 

Quinn, Esq. in light of what they considered continued frivolous 

litigation on the part of [Mr. Pinardo].
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On February 1, 2016, this [c]ourt sustained [Appellees’] second 

Preliminary Objections and dismissed [Mr. Pinardo’s] Amended 

Complaint with prejudice as to both [Appellees]. [Appellees’] 

Motion for Sanctions was separately granted.

On February 17, 2016, upon consideration of [Appellee] 

Silvestro’s Motion for Sanctions filed on October 6, 2015, which 

was granted on November 19, 2015, and [Appellees] Silvestro 

and Dorsey’s later Motion for Sanctions on December 14, 2015, 

which was granted on February 1, 2016, this court entered an 

Order stating the following:

AND NOW this 17th day of February 2016, following the 

November 19, 2015 Order granting [Appellee] Joseph 

Silvestro’s Motion for Sanctions and upon consideration of 

[Appellee] Joseph Silvestro’s accounting of expenses 

incurred in defending against [Mr. Pinardo’s] final frivolous 

complaint in the underlying litigation, Pinardo III v. 

Dorsey III, et al., to which no response was made, it is 

hereby ORDERED and DECREED that Anthony Quinn, 

Esquire, shall pay $6177.11, representing the reasonable 

fees and costs incurred by Joseph Silvestro, within 20 days 

of the date on which this Order is entered in the docket.[9]

February 17, 2016 Order. 

Trial Court Opinion (TCO), 10/26/2016, at 1-3. Subsequently, on February 

26, 2016, Mr. Pinardo filed a timely notice of appeal and, on March 9, 2016, 

Appellees timely cross appealed. The trial court directed both parties to file 

concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and both parties timely complied. 

On appeal, Mr. Pinardo raises the following issues for our review:

____________________________________________

9 The trial court later clarified that the award of $6,177.11 “was intended to 

include consideration of [Appellee] Dorsey[.]” Trial Court Opinion 

Addressing Appellees’ Cross-Appeal, 10/26/2016, at 4. Its omission of 

Appellee Dorsey’s name in the February 17, 2016 order was a result of 

clerical error. See id. at 4-5. 
J-A19012-17

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I: Is effect of settlement between co-tenant’s [sic] competing 

demands for return of security a question that is properly 

reserved to the fact-finder, and not a proper ground upon 

which to grant demurrer[?]

II: Where [Appellees’] 4 case [sic] suffered non pros, 

dismissal, and orders to settle, must termination be 

substantive in order to “have terminated in favor of the 

person against whom they are brought[?]”

III: Did [Appellee Silvestro] act “in a grossly negligent 

manner” prosecuting 5 unsuccessful civil actions is subject 

[sic] to liability[?]

IV: Is favorable termination requirement satisfied where 

[Appellee Silvestro] brings 5 unsuccessful actions to force 

settlement[?]

V: Did [Appellees] prove [Mr. Pinardo] did not reasonably 

believe [Appellee Silvestro’s] conduct constituted gross 

negligence and did not reasonably believe the 

unsubstantiated allegations made in each of [Appellee 

Silvestro’s] 5 wrongful actions had no basis in law or 

fact[?]

Mr. Pinardo’s Brief at 5. 

In their cross appeal, Appellees raise a single issue for our review:

Are [Appellees] Silvestro and Dorsey, III entitled to 

recovery [of] the reasonable amount of attorneys’ fees and 

costs they incurred in defending themselves against [Mr.] 

Pinardo’s frivolous complaint and amended complaint? 

Appellees’ Brief at 4 (numbering omitted).

We address Mr. Pinardo’s issues first, and consider them out of order 

for ease of disposition. In issues II and IV above, Mr. Pinardo raises 

questions of what constitutes a favorable termination for purposes of 

sustaining an action for the wrongful use of civil proceedings. Because these 

issues involve a question of statutory interpretation, our review is de novo. 
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See Betts Industries, Inc. v. Heelan, 33 A.3d 1262, 1265 (Pa. Super. 

2011) (citation omitted). 

Before delving into Mr. Pinardo’s arguments on these issues, we 

provide a brief overview of the statute germane to his arguments. 

“[A]llegations of malicious prosecution invoke Pennsylvania's statutory law in 

the form of [the] wrongful use of civil proceedings statute or ‘Dragonetti 

Act.’” Freundlich & Littman, LLC v. Feierstein, 157 A.3d 526, 532 (Pa. 

Super. 2017) (citation omitted). We have previously “described wrongful 

use of civil proceedings as a tort arising when a person institutes civil 

proceedings with a malicious motive and lacking probable cause.” Id. 

(citation and internal quotation marks omitted). A cause of action for the 

wrongful use of civil proceedings requires, in pertinent part, the following 

elements:

(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 

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. § 8351(a) (emphasis added). 

In the case sub judice, Mr. Pinardo claims that “[t]he existence of a 

favorable termination depends on the unique circumstances of each case. 
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Here[, where Appellees’] cases suffered non pros, dismissal, adverse court 

orders and orders to settle, termination need not be substantive in order to 

have terminated in favor of the person against whom they are brought.” Mr. 

Pinardo’s Brief at 24 (internal quotation marks omitted). He avers that 

“filing bogus claims and dismissing them prior to trial is insufficient to 

preclude liability.” Id. at 29. He further contests whether “the 5 underlying 

actions and 2 underlying appeals had not terminated in [his] favor” merely 

because Appellees “abandoned the allegations of case #100404471[, the 

fifth and final case.]” Id. at 26 (citations omitted). 

The trial court, on the other hand, differed. First, it noted that “[t]he 

underlying cases upon which [Mr. Pinardo] bases his Wrongful Use of Civil 

Process suit did not terminate in [his] favor. [Mr. Pinardo] brought this 

lawsuit against [Appellees] in response to an underlying landlord-tenant 

matter that ended in settlement.” TCO at 4. Thus, it determined that Mr. 

Pinardo “could not establish that the underlying proceedings ended in a 

favorable termination.” Id. at 5. Further, with respect to the numerous, 

prior proceedings, the trial court explained:

[Mr. Pinardo] argues that there were multiple underlying cases 

filed by [Appellees] prior to settlement between the parties. 

However, these cases never reached a final determination 

on the merits. A settlement agreement was reached at the 

March 20, 2012 Settlement Conference.... As stated above, a 

suit ended by agreement in a non-litigious nature does

not reach a final adjudication on the merits and thus 

assigns fault to neither party. Without a favorable 

termination to [Mr. Pinardo], a wrongful civil process suit is 

inappropriate.... 
J-A19012-17

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Id. (emphasis added). 

We believe that the trial court’s reasoning is somewhat flawed, 

specifically its assertion that a final determination on the merits is 

required to establish a favorable termination. In making this statement, the 

trial court relied on D’Elia v. Folino, 933 A.2d 117 (Pa. Super. 2007). See 

TCO at 5. In D’Elia, a doctor brought a wrongful use of civil proceedings 

action against a woman — who was the plaintiff in a prior medical 

malpractice lawsuit against the doctor — and the legal counsel that 

represented her in that lawsuit. D’Elia, 933 A.2d at 119. The prior medical 

malpractice suit had ultimately settled after the trial court granted summary 

judgment in the doctor’s favor; specifically, the woman agreed to 

discontinue the suit against the doctor, including any appeal she may have 

taken from the summary judgment order, and the doctor promised to not 

pursue a wrongful use of civil proceedings case against her. Id. at 119-20. 

However, the doctor reserved his right to bring such action against the 

woman’s attorneys. Id. at 120. After the doctor filed a complaint against 

the woman’s counsel, the trial court dismissed it by sustaining the 

preliminary objections filed by the attorneys. Id. The doctor then appealed 

to this Court, raising issue with whether he has a right to bring a wrongful 

use of civil proceedings action against the attorneys when he “enter[ed] into 

a settlement agreement with the [woman] wherein the only consideration 

flowing to [her] is a promise not to subsequently sue [her] for Wrongful Use 

of Civil Proceedings[.]” Id. at 121. 
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On appeal, we affirmed the trial court’s decision to dismiss the doctor’s 

complaint. In doing so, we reasoned:

[T]he crux of the settlement was that [the woman] would waive 

her right to appeal the entry of summary judgment in [the 

doctor’s] favor, in exchange for [his] pledge that he would not 

sue her for wrongful use of civil proceedings. In other words, 

the purpose of the settlement agreement was to “speed up” the 

procedural requirements necessary for [the doctor’s] cause of 

action to accrue. Within the settlement agreement, [the doctor] 

expressly denied liability in the underlying suit, and [the woman] 

did not admit liability for wrongful use of civil proceedings 

regarding her initiation of the initial medical malpractice case 

against [the doctor] and his partners. 

Generally, when considering the question of “favorable 

termination” in a wrongful use of civil proceedings case, whether 

a withdrawal or abandonment constitutes a favorable, final 

termination of the case against who the proceedings are brought 

initially depends on the circumstances under which the 

proceedings are withdrawn. See Bannar v. Miller, 701 A.2d 

242, 247 (Pa. Super. 1997). A withdrawal of proceedings 

stemming from a compromise or agreement does not, as a 

matter of law, constitute a termination favorable to the party 

against whom proceedings have been brought originally. See 

Rosenfield v. Pennsylvania Auto. Ins. Plan, ... 636 A.2d 

1138, 1142 ([Pa. Super.] 1994). Likewise, contrary to [the 

doctor’s] argument, a wrongful use of civil proceedings suit may 

be dismissed on the grounds of an insufficiently “favorable 

termination” even if the attorney-defendant in the wrongful use 

of civil proceedings suit was not part of the settlement between 

the parties or even if the language of the settlement itself 

reserves a party’s right to initiate suit based on wrongful use of 

civil proceedings against a party’s attorney. Electronic Lab. 

Supply Co. v. Cullen, 712 A.2d 304, 310-11 (Pa. Super. 1998).

As we held in Cullen, where the parties to the underlying suit 

agree jointly to end the underlying suit in a non-litigious nature, 

the liability of the underlying defendant, i.e., the plaintiff in the 

wrongful use of civil proceedings suit, is never determined with 

finality. Cullen, 712 A.2d at 311. Therefore, the underlying suit 

is not a “favorable termination” within the meaning of 42 

Pa.C.S.[] § 8351. Id., 712 A.2d at 311. Although there was no 
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monetary payment made between [the doctor] and [the woman] 

as in a typical legal “compromise,” it is clear that the settlement 

agreement ended the underlying suit between [the woman], [the 

doctor], and his partners in a non-litigious fashion. 

Consequently, it is clear that [the doctor’s] liability, or lack 

thereof, was never and can never be determined with finality. 

As such, [the doctor] was not the “victor” in the underlying 

lawsuit, and he cannot, as a matter of law, prevail against [the 

woman’s counsel] in a wrongful use of civil proceedings suit. 

See id., 712 A.2d at 311. Therefore, the trial court’s dismissal 

of the suit on the basis of [the attorneys’] preliminary objections 

was proper. 

D’Elia, 933 A.2d at 122-23 (internal citation omitted). 

Despite the trial court’s insistence that Mr. Pinardo’s lawsuit fails 

because none of the underlying cases “reached a final determination on the 

merits[,]” see TCO at 5, the D’Elia Court does not state that termination on 

the merits is required under the wrongful use of civil proceedings statute. 

Instead, it explained that “whether a withdrawal or abandonment constitutes 

a favorable, final termination of the case ... depends on the circumstances 

under which the proceedings are withdrawn[,]” and that “[a] withdrawal of 

proceedings stemming from a compromise or agreement does not ... 

constitute a termination favorable to the party against whom proceedings 

have been brought originally.” Id. at 122 (citations omitted). 

To be sure, we have previously stated that “[a]lthough favorable 

termination is called for, there is no requirement that it be based upon the 

merits and to impose such a requirement would lead to unjust results....” 

Robinson v. Robinson, 525 A.2d 367, 371 (Pa. Super. 1987). By way of 

example, in Robinson, a woman filed two separate lawsuits against her 
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former husband: first, she brought suit in federal court alleging claims for, 

inter alia, rape, theft, fraud, and breach of a settlement agreement; second, 

she sued in New Jersey state court seeking to set aside a settlement 

agreement. Id. at 368. Shortly thereafter, the woman moved for a 

voluntary nonsuit, and the federal court dismissed the woman’s tort claims 

without prejudice so she could renew them in the New Jersey action. Id. A 

few months later, the ex-husband brought a wrongful use of civil 

proceedings action against the woman in Pennsylvania, but it was dismissed 

because “the federal court’s specific refusal to dismiss the claims with 

prejudice reflects that these claims have not been determined and are 

subject to further adjudication in an appropriate forum. The instant action 

therefore, is premature, pending final resolution of the claims in the New 

Jersey action.” Id. (citation omitted). Subsequently, the New Jersey action 

concluded, without the woman amending the pleadings to raise the issues 

initially brought in the federal action. Id. The ex-husband then brought, 

again, his claim for wrongful use of civil proceedings against the woman, 

asserting that the New Jersey action resulted in the federal action being 

terminated in his favor. Id. The trial court disagreed, determining that the 

federal proceedings did not terminate in his favor as required under the 

pertinent statute. Id. at 368-69. 

On appeal, we reversed, concluding that the trial court “erred ... in 

holding that since [the woman] chose not to pursue the claims in the New
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Jersey action and the merits were never litigated, there was no termination 

in favor of [the ex-husband].” Id. at 370. We elaborated: 

In the case of Woodyatt v. Bank of Old York Road, ... 182 

A.2d 500 ([Pa.] 1962), the court, in ruling on a common law 

claim of malicious prosecution, held that although one of the 

prerequisites to such an action is that the criminal prosecution 

upon which it is based be terminated favorably to the party 

seeking damages, this did not require that it be terminated on 

the merits. If the charges were abandoned or withdrawn by the 

prosecutor this was sufficient to satisfy the element of prior 

favorable termination. Woodyatt, ... 182 A.2d at 501. Citations 

omitted.

In Shaffer v. Stewart, ... 473 A.2d 1017 ([Pa. Super.] 1984), 

this Court, noting that the tort of malicious use of process has 

been codified at 42 Pa.C.S.[] §§ 8351-54, held that the 

favorable termination element was satisfied when the parties 

who filed a caveat to the probate of a will agreed to 

voluntarily dismiss their claims.

Shaffer also discussed the fact that Pennsylvania law was now 

in conformity with the Restatement (Second) of Torts § 674. A 

reading of that section and the comments indicates that civil 

proceedings may be considered terminated in favor of a person 

against whom they are brought by withdrawal of proceedings. 

This general rule is qualified by reference to sections 660-

661 which apply the rule that termination, other than by 

acquittal, is not sufficient to meet the requirement of a 

cause of action when it is the result of compromise, 

misconduct by the accused for the purpose of preventing a 

proper trial, abandonment out of mercy requested or accepted 

by the accused or when new proceedings based on the same 

offense have been instituted and have not been 

terminated in favor of the accused. Situations where 

abandonment is due to the impossibility of bringing the accused 

to trial also are distinguished.

Although Woodyatt dealt with criminal proceedings, the 

rationale applied is still appropriate when dealing with a wrongful 

use of civil proceedings action. Coupled with the holding in 

Shaffer and a review of § 674 of the Restatement (Second) of 

Torts, we find that the termination of the New Jersey action, in 

which [the woman] had the opportunity to raise the claims made 
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in the federal action and did not do so, must be considered a 

favorable termination for [the ex-husband] under the statute. 

Any other result would allow a party to initiate suit and then 

withdraw or abandon the claims before trial so as to escape 

potential liability. The statute provides protection against such 

action by imposing liability for the procurement, initiation or 

continuation of civil proceedings in a grossly negligent manner or 

without probable cause with improper purposes. Although 

favorable termination is called for, there is no 

requirement that it be based upon the merits and to 

impose such a requirement would lead to unjust results as 

set forth above.

In the present case, [the ex-husband] is attempting to impose 

liability on [the woman] for initiating the action in federal court. 

The court[’]s determination that the action was never terminated 

favorably to [the ex-husband] precludes him from pursuing the 

action even though the action was not pursued because of a 

decision by [the woman]. It is not argued that [the 

woman’s] decision was the result of a compromise 

between the parties nor are other circumstances shown 

which would qualify the rule that withdrawal is sufficient 

to constitute favorable termination. Under these 

circumstances we must find that [the ex-husband] has met the 

favorable termination requirement.

Robinson, 525 A.2d at 370-71 (emphasis added). Thus, despite the trial 

court’s above statements, it is evident that a termination need not be based 

on the merits in order to satisfy the wrongful use of civil proceedings 

statute. 

The Robinson Court, moreover, points us to the Restatement 

(Second) of Torts § 674 and its accompanying comment. That section sets 

forth the following:

One who takes an active part in the initiation, continuation or 

procurement of civil proceedings against another is subject to 

liability to the other for wrongful civil proceedings if

(a) he acts without probable cause, and primarily for a 

purpose other than that of securing the proper 
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adjudication of the claim in which the proceedings are 

based, and

(b) except when they are ex parte, the proceedings have 

terminated in favor of the person against whom they are 

brought.

Comment:

***

j. Termination in favor of the person against whom civil 

proceedings are brought. Civil proceedings may be 

terminated in favor of the person against whom they are 

brought under the rule stated in Clause (b), by (1) the

favorable adjudication of the claim by a competent tribunal, or 

(2) the withdrawal of the proceedings by the person bringing 

them, or (3) the dismissal of the proceedings because of 

his failure to prosecute them. A favorable adjudication 

may be by a judgment rendered by a court after trial, or 

upon demurrer or its equivalent. In either case the 

adjudication is a sufficient termination of the proceedings, unless 

an appeal is taken. If an appeal is taken, the proceedings are 

not terminated until the final disposition of the appeal and of any 

further proceedings that it may entail.

Whether a withdrawal or an abandonment constitutes a 

final termination of the case in favor of the person against 

whom the proceedings are brought and whether the 

withdrawal is evidence of a lack of probable cause for their 

initiation, depends upon the circumstances under which 

the proceedings are withdrawn. In determining the effect 

of withdrawal the same considerations are decisive as 

when criminal charges are withdrawn; and therefore §§ 

660-661 and 665, and the Comments under those 

Sections are pertinent to this Section. As to the right of 

restitution of money paid to compromise a claim brought without 

probable cause and in bad faith, see Restatement of Restitution, 

§ 71.

Restatement (Second) of Torts § 674 and accompanying comment 

(emphasis added). 
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We consider the reference therein to section 660 to be particularly 

significant to the matter at hand. It states:

A termination of criminal proceedings in favor of the accused 

other than by acquittal is not a sufficient termination to meet the 

requirements of a cause of action for malicious prosecution if

***

(d) new proceedings for the same offense have been 

properly instituted and have not been terminated in 

favor of the accused.

Comment:

g. Revival of prosecution. Whether new proceedings can 

properly be brought depends upon the law of criminal procedure 

in the jurisdiction in question. When the charge has been 

properly revived under the criminal procedure of the particular 

jurisdiction, there can be no liability under the rule stated in § 

653 until the new proceedings have terminated in favor of the 

accused. Thus the abandonment of criminal proceedings is 

not a termination in favor of the accused if they were 

abandoned for the purpose of bringing other proceedings 

for the same offense and other proceedings are thereafter 

instituted within a reasonable time. Such an 

abandonment may occur when the private prosecutor 

ascertains that the proceedings have been brought before a 

tribunal having no jurisdiction or only doubtful jurisdiction over 

the matter, or when a complaint has been imperfectly 

drawn and the proceedings are abandoned in order to 

permit the filing of a new and amended complaint. 

Proceedings may be abandoned after the public prosecutor’s 

discovery of a flaw in an indictment, for the purpose of obtaining 

a better indictment from the grand jury. In a word, the 

abandonment of particular proceedings does not 

constitute a final termination of the case in favor of the 

accused. Only an abandonment of the charge brought 

against him will suffice.

Restatement (Second) of Torts § 660 and accompanying comment 

(emphasis added). Therefore, abandoning a proceeding does not amount to 
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termination under the statute if subsequent proceedings are later brought 

for the same offense. Further, this comment specifically acknowledges that 

a termination is not sufficient where it has been abandoned in order to file a 

new, amended complaint. 

In the case sub judice, Mr. Pinardo claims that Appellee Silvestro 

“blundered his way through case #090203157, eventually terminating in non 

pros and [his] untimely appeal [being] quashed. [Appellee Silvestro] 

blundered his way through case #090203165, eventually terminating in 

dismissal of the complaint on preliminary objections, and denial of a 

subsequent petition to open.” Mr. Pinardo’s Brief at 25-26 (citations 

omitted). In addition, Mr. Pinardo alleges that, “Case #090302471 and 

#090302473 were voluntarily terminated by order to settle filed by 

[Appellee Silvestro]. No payment was made by [Mr. Pinardo].” Id. at 26 

(citations omitted). Finally, Mr. Pinardo describes that Appellee Silvestro 

“lost case #100404471 at arbitration and appealed. ... An agreement was 

signed by [Appellee Dorsey’s co-tenant] authorizing release of $3,500.00 of 

the $5,616.00 security to [Appellee Dorsey]. [The trial judge] dismissed the 

remaining ... charges.” Id. at 10. 

Based on the foregoing legal authority, we determine that the 

underlying proceedings did not terminate in favor of Mr. Pinardo. However, 

unlike the trial court, we do not reach this conclusion because a final 

adjudication on the merits was necessary. Rather, under Robinson and the 

pertinent sections of the Restatement cited above, the initial four cases did 
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not terminate in favor of Mr. Pinardo because Appellees subsequently 

instituted proceedings based on the same offense. See Comment to 

Restatement (Second) of Torts § 660 (“[T]he abandonment of criminal 

proceedings is not a termination in favor of the accused if they were 

abandoned for the purpose of bringing other proceedings for the same 

offense and other proceedings are thereafter instituted within a reasonable 

time.”). In addition, the parties resolved the fifth and final case — referred 

to by the parties as case number 100404471 — at a settlement conference 

before the trial judge. Under D’Elia, such a settlement does not constitute a 

termination in favor of Mr. Pinardo. See D’Elia, 933 A.2d at 122 (“A 

withdrawal of proceedings stemming from a compromise or agreement does 

not, as a matter of law, constitute a termination favorable to the party 

against whom proceedings have been brought originally.”) (citation 

omitted); Robinson, 525 A.2d at 370 (“[T]ermination, other than by 

acquittal, is not sufficient to meet the requirement of a cause of action when 

it is the result of compromise, ... or when new proceedings based on the 

same offense have been instituted and have not been terminated in favor of 

the accused.”). Consequently, we affirm the trial court’s determination that 

the underlying proceedings did not terminate in favor of Mr. Pinardo, and 

agree that he cannot sustain a wrongful use of civil proceedings action 

against Appellees. 

Next, in issue V above, Mr. Pinardo contests the trial court’s imposition 

of sanctions by challenging whether Appellees “prove[d] [Mr. Pinardo] did 
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not reasonably believe [Appellee Silvestro’s] conduct constituted gross 

negligence and did not reasonably believe the unsubstantiated allegations 

made in each of [Appellee Silvestro’s] 5 wrongful actions had no basis in law 

or fact.” Mr. Pinardo’s Brief at 5. He suggests that Appellee Silvestro did 

not “prove an improper purpose, that the legal contentions were not 

consistent with existing law, and that the factual allegations were false.” Id. 

at 30. We review the trial court’s decision for an abuse of discretion. See

Dean v. Dean, 98 A.3d 637, 644 (Pa. Super. 2014) (citations omitted). 

Here, the trial court granted Appellees’ motion for sanctions pursuant 

to Pennsylvania Rule of Civil Procedure 1023.1(c)(2). Rule 1023.1 states, in 

applicable part, the following:

(b) Every pleading, written motion, and other paper directed to 

the court shall be signed by at least one attorney of record in the 

attorney’s individual name, or, if the party is not represented by 

an attorney, shall be signed by the party. []

(c) The signature of an attorney or pro se party constitutes a 

certificate that the signatory has read the pleading, motion, or 

other paper. By signing, filing, submitting, or later advocating 

such a document, the attorney or pro se party certifies that, to 

the best of that person’s knowledge, information and belief, 

formed after an inquiry reasonable under the 

circumstances,

***

(2) the claims, defenses, and other legal contentions 

therein are warranted by existing law or by a nonfrivolous 

argument for the extension, modification or reversal of 

existing law or the establishment of new law,

***

(d) If, after notice and a reasonable opportunity to respond, the 

court determines that subdivision (c) has been violated, the 
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court may, subject to the conditions stated in Rules 1023.2 

through 1023.4,[10]impose an appropriate sanction upon any 

attorneys, law firms and parties that have violated subdivision 

(c) or are responsible for the violation.

Pa.R.C.P. 1023.1(b)-(d) (emphasis added). Further, Rule 1023.2 provides, 

in relevant part: 

(a) An application for sanctions under this rule shall be made by 

motion, shall be made separately from other applications and 

shall describe the specific conduct alleged to violate Rule 

1023.1(c).

(b) No such motion shall be filed unless it includes a certification 

that the applicant served written notice and demand to the 

attorney or pro se party who signed or filed the challenged 

pleading, motion or other paper. The certification shall have 

annexed a copy of that notice and demand, which shall 

identify with specificity each portion of the document 

which is believed to violate the provisions of this rule, set 

forth the basis for that belief with specificity, include a 

demand that the document or portion of the document, be 

withdrawn or appropriately corrected. An application for 

sanctions may be filed if the challenged paper, claim, defense, 

contention, allegation, or denial is not withdrawn or 

appropriately corrected within twenty-eight days after service of 

the written demand. If warranted, the court may award to the 

party prevailing on the motion the reasonable expenses and 

attorney’s fees incurred in presenting or opposing the motion.

Pa.R.C.P. 1023.2(a)-(b) (emphasis added). 

In explaining its basis for imposing sanctions, the trial court in this 

case reasoned:

[Appellee Silvestro’s counsel, Daniel Strick, Esq.] sent a letter on 

January 28, 2015 to [Mr. Pinardo’s] counsel. In his letter, 

[Appellee] Silvestro’s counsel announced his belief that the 

complaint was not warranted by existing law or by a non 

____________________________________________

10 In short, Rule 1023.4 relates to what the sanctions imposed may consist 

of, or include. Pa.R.C.P. 1023.4. 
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frivolous argument for the extension, modification, or reversal of 

existing law or the establishment of new law. See Pa.R.C.P. 

1023.1(c)(2). The letter sent by [Appellee Silvestro’s] counsel 

explained that [Mr. Pinardo] could not establish that the 

underlying cases terminated in [Mr. Pinardo’s] favor. The letter 

finally gave notice that a Motion for Sanctions would be 

forthcoming. [Mr. Pinardo] did not dismiss the complaint.

Mr. Strick, on behalf of [Appellee] Dorsey, sent another letter on 

October 2, 2015 after the default judgment against [Appellee] 

Dorsey was opened by the court. The October 2, 2015 letter 

reiterated the position set forth in [Appellee] Silvestro’s January 

28, 2015 letter. [Mr. Pinardo] did not dismiss the complaint. 

[Appellees] brought their Motion for Sanctions for the proper 

purpose under Pa.R.C.P. 1023.1(c)(2) and followed the 

necessary procedure of informing the opposing party in advance 

and with specificity of their intent to do so. [Mr. Pinardo] 

pushed forward with a lawsuit judicially determined to be 

frivolous, for which he was appropriately sanctioned by this 

[c]ourt.

TCO at 9-10 (citations to record omitted). 

In the letters sent on behalf of Appellee Silvestro on January 28, 2015, 

his counsel wrote — without citation to any specific authority in support —

the following:

As you are well aware, to succeed on the claims asserted against 

[Appellee] Silvestro, your client must establish: 1) the 

underlying proceedings were terminated in his favor, after a 

determination on the merits; 2) defendants caused those 

proceedings to be instituted against plaintiff without probable 

cause, and 3) the proceedings were instituted primarily for an 

improper cause. 

As a result of the procedural dismissals and the ultimate 

settlement of the underlying actions, the court never ruled on 

the merits of the underlying actions. Accordingly, there can 

be no debate that [Mr. Pinardo] will not be able to establish all of 

the elements against [Appellee] Silvestro.
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See Appellee Silvestro’s Motion for Sanctions against Anthony Quinn, Esq. 

Pursuant to Rule 1023.1, et seq., 10/6/2015, at Exhibit 4 (January 28, 2015 

Letter from Daniel S. Strick, Esq. to Anthony B. Quinn, Esq.) (emphasis 

added). Likewise, in the October 2, 2015 letter sent on behalf of Appellee 

Dorsey, his counsel states that Mr. Pinardo cannot establish that “the 

underlying proceedings were terminated in his favor, after a 

determination on the merits.” See Appellee Silvestro’s Motion for 

Sanctions against Anthony Quinn, Esq. Pursuant to Rule 1023.1, et seq., 

10/6/2015, at Exhibit 8 (October 2, 2015 Letter from Daniel S. Strick, Esq. 

to Anthony B. Quinn, Esq.) (emphasis added). 

Yet, as discussed supra, a judgment on the merits is not required to 

establish a claim for wrongful use of civil proceedings, which undermines the 

assertions made by Appellees’ attorney in the letters to Mr. Pinardo’s

attorney, as well as the trial court’s opinion. In light of Robinson, Shaffer, 

and the sections of the Restatement cited above, we do not believe that Mr. 

Pinardo’s inquiry into existing law was so unreasonable as to warrant 

sanctions, especially given that Appellees’ counsel inaccurately represented 

existing law in his notices pursuant to Pa.R.C.P. 1023.2.11 Therefore, we 

____________________________________________

11 Indeed, Mr. Pinardo asserts — somewhat facetiously we believe — that 

“[Appellee Silvestro] fails this prong[, Pa.R.C.P. 1023.1(c)(2),] because he 

had no evidence [Mr. Pinardo] and his counsel were on notice ... Shaffer...,

supra,...Robinson..., supra[, and] cases adopting Restatement (2nd) of 

Torts § ... 674...[,] are not the law in Philadelphia County or in [the trial 

judge’s] courtroom.” Mr. Pinardo’s Brief at 31. 
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believe that the trial court abused its discretion in granting Appellees’ 

motions for sanctions. As such, we reverse its orders imposing sanctions 

and vacate the February 17, 2016 order awarding attorneys’ fees.12

Order affirmed in part and reversed in part. Award of attorneys’ fees 

vacated. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/4/2017

____________________________________________

12 In light of our disposition, we need not address Mr. Pinardo’s remaining 

issues and Appellees’ cross-appeal.