Summary
noting that § 8351 is a codification of the common law cause of action for wrongful or malicious use of civil proceedings
Summary of this case from Polysciences, Inc. v. MasrudOpinion
No. 35 EAP 2019 No. 36 EAP 2019
12-22-2020
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: Messa & Associates, P.C. & Joseph Messa, Jr., Esquire 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 Executrix of the Estate of Rosalind Wilson, Deceased
OPINION
In these consolidated appeals we examine whether the Superior Court properly determined a request for contempt sanctions against opposing counsel raised in a post-trial motion in a lawsuit where neither counsel was a named party, constitutes actionable "civil proceedings" under the Dragonetti Act, 42 Pa.C.S. §§ 8351 - 8354 (the "Dragonetti Act" or the "Act"). For the reasons set forth herein, we conclude the Superior Court erred and reverse.
The Dragonetti Act, Act of Dec. 19, 1980, P.L. 1296, No. 232, § 1 (codified at 42 Pa.C.S. §§ 8351 -8354 ) provides, in relevant part:
I. The underlying medical malpractice action
The present appeal arises from a medical malpractice action in which appellees Nancy K. Raynor, Esq. and Raynor and Associates served as defense counsel for Dr. Jeffrey Gellar and Roxborough Emergency Physician Associates (collectively Roxborough). Appellants are the plaintiff in the underlying medical malpractice action, Rosalind W. Sutch, executrix of the estate of Rosalind Wilson (decedent), and her counsel in that lawsuit, Matthew D'Annunzio, Esq., Klehr, Harrison Harvey Branzburg, LLP, William T. Hill, Esq. (collectively, the D'Annunzio appellants) and Messa & Associates, P.C., and Joseph Messa, Jr., Esq. (collectively, the Messa appellants).
In July 2009, Sutch, by and through her counsel, the Messa appellants, filed the medical malpractice action alleging, inter alia , Roxborough failed to obtain a CT scan and timely diagnose decedent's lung cancer. The trial court granted Sutch's pre-trial motion in limine , and by order dated May 16, 2012, defendants were precluded "from presenting any evidence, testimony, and/or argument regarding decedent's smoking history" at trial. Sutch v. Roxborough Mem'l Hosp. , 142 A.3d 38, 45 (Pa. Super. 2016), appeal denied , 640 Pa. 378, 163 A.3d 399 (2016). During trial, Sutch's counsel requested an order from the trial judge directing Raynor to inform defense witnesses of the ban on testimony regarding decedent's smoking history before the witnesses took the stand. The trial judge replied: "Okay. Well, I don't have a response. They know the rules. So I assume — did you talk with them? Maybe you didn't bring that up this morning." Id. The court did not issue the requested order specifically directing Raynor to inform her witnesses of the ban on discussing decedent's smoking history before they took the stand. Id.
On the following day of trial, Raynor questioned the defense's expert witness John J. Kelly, D.O., regarding decedent's treatment by Roxborough. In response to Raynor's question regarding decedent's cardiac risk factors, Kelly stated decedent was a smoker, was hypertensive and had vascular disease. Id. at 47. After Raynor posed several additional questions to Kelly, Sutch's counsel, D'Annunzio, objected to the testimony, and outside the presence of the jury, argued, inter alia, Raynor should be held in contempt for her questioning and failure to comply with the pre-trial preclusion order. Raynor replied she had instructed Kelly not to mention decedent's smoking history, and her question regarding decedent's cardiac risk factors was intended to elicit testimony regarding vascular disease, not smoking. Id. at 49. Kelly testified he did not "remember any discussion ... at all[,]" with Raynor regarding the pre-trial in limine ruling prohibiting testimony related to decedent's smoking, and when asked whether he had a discussion with Raynor that day prior to testifying, he answered "I did have some brief discussion with Ms. Raynor today, but not regarding smoking, no." Id. at 48 ; N.T., 5/31/12 at 112-13.
Plaintiff's counsel Messa asked for a mistrial and/or sanctions against the defense, asserting Raynor acted recklessly, at a minimum, if not intentionally, in asking Kelly about decedent's cardiac risk factors and then lied to the court by stating she informed Kelly about the ban on testimony related to decedent's smoking history. Sutch , 142 A.3d at 50. The trial judge denied the request for a mistrial and instead provided a curative instruction to the jury. Id. at 52. The trial judge informed Raynor, however, that "sanctions [are] something I have to consider." Id . at 50 ; N.T., 5/31/12 at 120. At the end of trial, the jury returned a verdict in favor of Sutch and awarded her $190,000. Sutch , 142 A.3d at 53. Appellants filed post-trial motions seeking a new trial as well as an order holding Raynor in contempt and awarding sanctions in the aggregate amount of counsel fees and costs for the first trial ($1,349,063.67). The court granted the motion for a new trial.
In an unrelated proceeding, Ms. Raynor was disqualified from participating as counsel in the second trial and ordered to pay $44,693.25 in counsel fees to decedent's estate, a decision affirmed by the Superior Court. Sutch v. Roxborough Mem'l Hosp. , 151 A.3d 241, 257, 261 (Pa. Super. 2016), appeal denied 642 Pa. 107, 169 A.3d 1065 (2017). At the second trial, in the absence of references to decedent's smoking history, the jury awarded damages to plaintiff in the amount of $1,975,713.00. Id. at 248.
The trial court thereafter also conducted two days of hearings on the motion for contempt/sanctions. The court found Raynor to be in civil contempt and issued an order for sanctions in the amount of $946,195.16 to be divided among appellants as follows: $615,349.50 to D'Annunzio’s law firm, Klehr Harrison Harvey Branzburg, LLP; $160,612.50 to the Messa firm; and $170,235.16 to Sutch. Sutch , 142 A.3d at 62. Raynor and her firm filed an appeal to the Superior Court, and while the appeal was pending, appellants entered judgment on the order for sanctions and issued writs of attachment, executions in attachment and summonses upon various garnishees which effectively froze Raynor's personal and business bank accounts and placed a lien on her home. Pursuant to a properly filed petition, the Superior Court stayed all existing orders of execution and garnishment and any other future proceedings in the case. Sutch , 142 A.3d at 62-63. Ultimately, the Superior Court reversed the contempt order and vacated the sanctions imposed and the judgments taken to enforce the sanctions. Id. at 43, 79. Thereafter, Raynor and her firm commenced the current Dragonetti action against appellants.
In its order granting the new trial, the court deferred ruling on the companion contempt/sanctions motion; those proceedings took place on March 27 and 31, 2014. Sutch v. Roxborough Mem'l Hosp. , 91 A.3d 1273 (Pa. Super. 2013) (unpublished memorandum); Sutch v. Roxborough Mem'l Hospital , 142 A.3d 38 (Pa. Super. 2016).
II. The Dragonetti Action
A. Trial Court
The complaint filed by Raynor and her firm included three counts: 1) violation of the Dragonetti Act; 2) common law wrongful use of civil proceedings, and; 3) abuse of process. Raynor v. D'Annunzio , 205 A.3d 1252, 1257 (Pa. Super. 2019). The complaint asserted the Superior Court's central holdings in Sutch , 142 A.3d 38, "were 1) Raynor could not have intentionally violated [the trial court's] order to instruct every witness of the prohibition on mentioning smoking immediately before the witness took the stand because no such order existed, and 2) no evidence of record existed to prove that Raynor colluded with Dr. Kelly in an effort to flout the in limine ruling barring testimony about smoking." Raynor , 205 A.3d at 1257, quoting Trial Court Op., 8/29/17 at 5. "The crux of the Complaint is [appellants] knew their requests for sanctions and contempt were wholly unsupported by facts and law, yet they nevertheless pursued sanctions and contempt for the vindictive purpose of destroying Raynor's professional livelihood and personal life." Id., quoting Trial Court Op., 8/29/17, at 6.
The D'Annunzio and Messa appellants filed nearly identical preliminary objections to the complaint, asserting, as relevant here: (1) Raynor and her firm lacked standing to bring a Dragonetti claim because they were not a party to the underlying medical malpractice action; (2) demurrer to the Dragonetti claim because moving for sanctions or contempt does not constitute procurement, initiation or continuation of civil proceedings within the meaning of the Dragonetti Act; (3) demurrer to the Dragonetti claim because probable cause existed to pursue contempt and sanctions post-trial; (4) public policy prohibits a Dragonetti claim to be based solely on the pursuit of contempt and sanctions; (5) demurrer to the wrongful use of civil proceedings claim because such a claim has been subsumed by the Dragonetti Act; and (6) demurrer to the abuse of process claim on statute of limitations grounds and because there is no perversion of the legal process by pursuing a motion for contempt or sanctions. Id. at 1258, citing Trial Court Op., 8/29/17 at 6-7.
The trial court sustained all preliminary objections and dismissed the Dragonetti complaint with prejudice. With respect to the wrongful use of civil proceedings claim, the court noted "the Dragonetti Act is a constitutional statute that subsumes the common law tort of wrongful use of civil proceedings." Trial Court Op., 8/29/17 at 9, citing Matter of Larsen , 532 Pa. 326, 616 A.2d 529, 587 (1992) ("[t]he common law tort of malicious prosecution has been codified and modified as a statutory cause of action") and Villani v. Seibert , 639 Pa. 58, 159 A.3d 478, 491-93 (2017) (Dragonetti Act is not an unconstitutional infringement by legislature on judiciary's power to regulate attorney conduct). The court also dismissed the abuse of process claim, finding appellants’ post-trial motion which requested, in part, sanctions and/or contempt, was a legitimate use of process. Trial Court Op., 8/29/17 at 15-19 ("Essentially, abuse of process is the use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process."), citing , inter alia , McGee v. Feege , 517 Pa. 247, 535 A.2d 1020, 1026 (1987) ; Shaffer v. Stewart , 326 Pa.Super. 135, 473 A.2d 1017, 1019 (1984) ("there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions").
With respect to the claim alleging a violation of the Dragonetti Act, the court first noted the statute requires a person to take part in the "procurement, initiation or continuation of civil proceedings." Trial Court Op., 8/29/17 at 11. The court observed that case law and the historical context of the Dragonetti Act reveal that wrongful "civil proceedings" pursuant thereto exist only when a party initiates a lawsuit with malicious motive and lacking probable cause. Id. at 13-14, citing Werner v. Plater-Zyberk , 799 A.2d 776 (Pa. Super. 2002) ; Pawlowski v. Smorto , 403 Pa.Super. 71, 588 A.2d 36 (1991) ; P.J.A. v. H.C.N. , 156 A.3d 284 (Pa. Super. 2017) ; Rosen v. American Bank of Rolla , 426 Pa.Super. 376, 627 A.2d 190 (1993).
The court rejected appellees’ argument for a broad interpretation of what constitutes actionable civil proceedings based on the definition of "proceeding" contained in Section 102 of Title 42, where the Dragonetti Act is codified. 42 Pa.C.S. § 102. Section 102 defines a "proceeding" as including "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." 42 Pa.C.S. § 102 (emphasis added). The trial court noted an "action" is defined under Section 102 as "[a]ny action at law or equity." Trial Court Op., 8/29/17 at 12. The court determined appellees’ suggested reading would lead to an illogical result because the Dragonetti Act would not apply to actions at law, to which it expressly does apply. See 42 Pa.C.S. §§ 102 and 8351(a).
The court thus sustained the preliminary objections to Count I, and reasoned as follows:
[A] review of the text of the Dragonetti Act, the binding precedent from the appellate courts, and the common law upon which the Dragonetti Act is based, supports
the conclusion the phrase "procurement, initiation, or continuation of civil proceedings" means the filing of a civil action, and [does] not includ[e] a request for sanctions in a post-trial motion.
In the case sub judice , the Messa Defendants and the D'Annunzio Defendants did not commence an action for sanctions against Plaintiffs; rather the Messa Defendants and the D'Annunzio Defendants requested, within their post-trial motion, Plaintiffs be sanctioned and/or found in contempt. Requesting sanctions and/or a finding of contempt as part of a post-trial motion does not constitute the "procurement, initiation, or continuation of civil proceedings" under the Dragonetti Act because the request for sanctions, made in a post-trial motion, was not an action. Furthermore, since a request for sanctions contained within the post-trial motion was not a "civil proceeding" and since Plaintiffs were not parties in the Sutch matter, they lack standing to prosecute the instant suit.
Trial Court Op., 8/29/17 at 14-15.
Specifically with regard to whether Raynor and her firm had standing to bring the Dragonetti action, the trial court noted a court must generally consider whether a party has standing to bring a suit prior to determining the merits of the case. Trial Court Op., 8/29/17 at 10, citing, inter alia, Kuropatwa v. State Farm Ins. Co. , 554 Pa. 456, 721 A.2d 1067, 1069 (1998) ("A party seeking judicial resolution of a controversy in this Commonwealth must, as a prerequisite, establish ... standing to maintain the action."). The court observed the case presented "the rare scenario in which the [c]ourt must consider the merits of [Raynor's] claim before resolving the question of standing because [her] standing to bring the suit is dependent upon the definition of ‘procurement, initiation or continuation of civil proceedings’ adopted by the [c]ourt." Id.
B. Superior Court
On an appeal filed by Raynor and her firm, the Superior Court disagreed with the trial court's analysis and reversed in part. Raynor v. D'Annunzio , 205 A.3d at 1261-62. As to the question of whether civil proceedings that are actionable under the Dragonetti Act include contempt proceedings raised via post-trial motion, the panel held the trial court erred, and concluded the contempt motion in this case represented the procurement, initiation, or continuation of civil proceedings for purposes of Dragonetti liability. Id. The panel so held, in part, because a civil contempt proceeding is "similar" to a civil lawsuit, in that it places the burden of proof on the complaining party to establish, by a preponderance of the evidence, that the defendant is non-compliant with a court order. Id. at 1261. Moreover, the panel noted that proceedings on the motion for contempt took place after the order granting a new trial had been affirmed and the record was remanded. In the panel's opinion, the subsequent contempt proceedings were thus "tantamount" to a "civil proceeding," noting the parties exchanged pleadings, the court conducted a hearing, and adjudicated the matter. Id. The panel concluded, "we ... find that a contempt proceeding in this case following the remand of the record by this court does represent a ‘procurement, initiation, or continuation of civil proceedings’ as contemplated by the Dragonetti Act." Id.
The Superior Court affirmed the trial court's dismissal of the counts alleging wrongful use of civil proceedings and abuse of process, but there was no appeal of that decision and dismissal of those counts is not before us.
The Superior Court then turned to the second issue before it, i.e. , whether Raynor and her firm lacked standing to bring a Dragonetti action against plaintiffs’ counsel because those lawyers were not "parties" to the underlying medical malpractice action. The panel acknowledged Superior Court precedent that a Dragonetti claim " ‘cannot be maintained by one who is not an original party to the underlying action.’ " Id. at 1262, quoting Hart v. O'Malley , 436 Pa.Super. 151, 647 A.2d 542, 549 (1994) ( Hart I ), affirmed 544 Pa. 315, 676 A.2d 222 (2006) ( Hart II ). Nevertheless, the panel summarily concluded:
It is of no import, however, that [Raynor and her firm] were not original parties to the underlying medical malpractice lawsuit that gave rise to the request for a finding of contempt and sanctions. As discussed in detail above, [they] have established that they brought forward a viable cause of action pursuant to the Dragonetti Act. Because [Raynor and her firm] were the defendants in the contempt proceedings that gave rise to the Dragonetti cause of action presently before us and were the parties against whom sanctions were imposed, we find that [they] have standing.
Id .
III. The present Appeal
This Court accepted review of the following issues, as phrased by appellants:
1. Whether a request for contempt/sanctions against counsel (among others) contained within a motion for post-trial relief constitutes "civil proceedings" actionable under the Dragonetti Act?
2. Did the Superior Court attempt to create new Pennsylvania law — in contravention of a number of appellate decisions — giving [appellee], a disqualified attorney, standing to assert a cause of action under the Dragonetti Act when she was not a party to the underlying action?
Raynor v. D'Annunzio , ––– Pa. ––––, 219 A.3d 600 (2019).
A.
Arguments of the D'Annunzio and Messa appellants
With respect to the first issue before this Court, the D'Annunzio appellants assert Superior Court precedent provides the "procurement, initiation or continuation of civil proceedings" for purposes of Dragonetti Act liability requires filing a "civil action." The D'Annunzio appellants submit a "civil action" is not "each individual motion within a case." Brief of D'Annunzio Appellants at 35, citing Rosen , 627 A.2d at 193 (dismissing Dragonetti claim because "essence of the tort is the institution of a civil action[;]" and noting issuance of subpoena "did not constitute the commencement of a civil action ... as contemplated by the statute.") The D'Annunzio appellants assert "individual motions, filings, and the like will not support a Dragonetti claim[.]" Id. , citing Pawlowski , 588 A.2d at 39 (no claim available under the Act for filing preliminary objections); P.J.A. v. H.C.N. , 156 A.3d at 294 (defendant's new matter in custody case "does not readily fall within the normal category of pleadings that give rise to Dragonetti litigation.").
The Messa appellants echo this argument and observe the Superior Court's interpretation of the phrase "civil proceedings" is overbroad and contrary to Pennsylvania jurisprudence. Brief of the Messa Appellants at 17. The Messa appellants maintain the tort addressed by the Act arises only " ‘when a party institutes a lawsuit with a malicious motive and lacking probable cause.’ " Id. at 17-18, quoting McNeil v. Jordan , 586 Pa. 413, 894 A.2d 1260, 1274 (2006). They insist the Dragonetti Act does not contemplate claims arising from the filing of a motion, petition or application. Id ., citing Rosen , 627 A.2d at 193 ; Pawlowski , 588 A.2d at 38. The Messa appellants instead endorse the trial court's refusal to interpret the statutory definition of "proceeding" at 42 Pa.C.S. § 102 to include "motions, petitions or applications," and submit "[t]he trial court astutely rejected that interpretation because doing so would mean that the term ‘civil proceedings’ would result in the illogical exclusion of ‘actions.’ " Id. at 17 (emphasis deleted).
In addition, all appellants argue the plain language of the Act makes clear an intra-case motion does not constitute civil proceedings and observe Sections 8351-54 of the Act all specifically reference wrongful procurement, initiation or continuation of civil proceedings. Brief of D'Annunzio Appellants at 36-37, citing 42 Pa.C.S. §§ 8351 -54. Appellants compare the current Act to an earlier version (including Section 8355) that provided a mechanism by which parties and counsel could be sanctioned for a broader category of filings that included "pleadings, motions or other papers" not grounded in law or fact. Id. at 35-37, quoting former 42 Pa.C.S. § 8355 (suspended by Pa.R.Civ.P. 1023.1(e), effective July 1, 2002); see also Brief of Messa Appellants at 23 (observing language in former Section 8355 of the Act (now contained in Pa.R.Civ.P. 1023.1 ) indicates pleadings, motions and other papers were never intended to be encompassed within "civil proceedings" actionable under Sections 8351-54). Appellants maintain this revision clearly evidenced the legislature's intent to create a different scheme and alter the remedy available for the wrongful filing of pleadings, motions and other papers. Brief of D'Annunzio Appellants at 37. Appellants note Section 8355 would have been unnecessary if "motions and other papers" were encompassed in the Act as "civil proceedings." Id . Appellants insist the legislature did not envision piecemeal litigation under the Act resulting from the submission of individual motions, petitions or filings other than the commencement of a civil action, and further note this Court absolutely suspended Section 8355 of the Act and replaced it with Pa.R.Civ.P. 1023.1, which provides procedures and rules regarding sanctions for pleadings, written motions, and other papers directed to the court for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. See Pa.R.Civ.P. 1023.1(c)(1)-(4), (d). The D'Annunzio appellants further observe the Superior Court's decision, which fails to recognize the replacement of Section 8355 with Pa.R.Civ.P. 1023.1, vastly expanded the scope of the Act to apply to every unsuccessful motion for discovery, sanctions, or costs that results in a hearing, and every motion filed pursuant to Rule 1023.1. The D'Annunzio appellants note Section 8355 of the Act was the only plausible avenue for Dragonetti liability based on a post-trial motion for contempt and it has been suspended. Appellants argue the Superior Court's decision is squarely at odds with decades of settled precedent, creates new law, and unnecessarily expands the scope of the Act, which will open the courts to "ever more litigation about litigation." Reply Brief of the D'Annunzio Appellants at 2.
Rule 1023.1. Scope. Signing of Documents. Representations to the Court. Violation
...
(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,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,
(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,
(3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(d) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (c) has been violated, the court may, subject to the conditions stated in Rules 1023.2 through 1023.4, impose an appropriate sanction upon any attorneys, law firms and parties that have violated subdivision (c) or are responsible for the violation.
Pa.R.Civ.P. 1023.1(c)(1)-(4), (d). The Superior Court did not address this aspect of the case.
With respect to standing, the D'Annunzio appellants offer there may be instances in which a non-party lawyer may assert a claim under the Act, but this is not such a case. Observing "[a] requisite element of a Dragonetti claim is that ‘the proceedings have terminated in favor of the person against whom they are brought,’ " the D'Annunzio appellants assert Raynor and her firm lack standing to bring a claim under the Act because they do not meet the requirement of a fully-prevailing party below because their client, Sutch, won jury awards in both trials in the underlying medical malpractice matter, and Raynor was disqualified as counsel and sanctioned for her conduct in separate proceedings. Brief of D'Annunzio Appellants at 47, quoting 42 Pa.C.S. § 8351(a)(2) The Messa appellants similarly observe under a plain reading of the Act, a Dragonetti plaintiff must have been a party to the underlying action that terminated in his or her favor. Brief of Messa Appellants at 24, citing 42 Pa.C.S. § 8351(a) (Dragonetti claim arises out of "civil proceedings against another" where the "proceedings have terminated in favor of the person against whom they are brought"). The Messa appellants assert the Act "certainly does not permit counsel for a party to assert a cause of action independently." Id. at 24-25 (emphasis omitted), citing Pawlowski , 588 A.2d at 39 (Superior Court affirmed sustaining preliminary objections where Dragonetti plaintiff was not a party to underlying action but merely counsel); Rosen , 627 A.2d at 193 ("an action under 42 Pa.C.S.A § 8351 cannot be maintained by one who was not a party to the underlying action"); Hart I , 647 A.2d at 549 ("[c]ase law has consistently stated, in a variety of circumstances, that an action under [the Dragonetti Act] cannot be maintained by one who is not an original party to the underlying action"). The Messa appellants highlight the underlying medical malpractice action was not brought against Raynor, and in any event, that action did not terminate in favor of her clients; thus Raynor lacked standing to bring the Dragonetti action against appellants.
B. Arguments of appellees Raynor and her firm
Addressing the first issue presented, appellees acknowledge "Dragonetti Act claims are most commonly presented in the context of an entire civil action or case[,]" Brief of Appellees at 40, 43, but assert the Superior Court properly reversed the trial court's per se ruling Dragonetti liability occurs only in that context. Appellees argue, under the circumstances of this case, the Superior Court's determination that the sanction/contempt proceedings were "tantamount to the filing of a civil lawsuit[,]" was appropriate because "a civil contempt proceeding has all, or many, of the normal indicia of a civil lawsuit." Id. at 35, 36. Appellees emphasize the Act "is entitled ‘Wrongful use of civil proceedings,’ not ‘Wrongful use of a civil lawsuit.’ In defining the elements of [a] Dragonetti claim, the Act uses the term ‘civil proceedings,’ and ‘another;’ it does not use the terms ‘civil action,’ ‘civil case,’ ‘civil lawsuit,’ or ‘defendant.’ " Id. at 37. Appellees assert "if the Pennsylvania Legislature intended to restrict the Dragonetti Act's application exclusively to a person's improper procurement, initiation, or continuation of an entire civil lawsuit, it could have made that intention clear, through different word choices." Id. at 38.
While maintaining their position "is strongly grounded in the language of the Act" id. at 38, appellees insist appellants have waived their "legislative history argument" premised on the differences between the language contained in sections 8351-54 of the Act, referencing civil proceedings, and the language contained in former Section 8355 relating to pleadings, motions or other papers. Appellees assert the argument was never presented to the trial court, and although raised before the Superior Court, "the argument could play no proper part in the Superior Court's analysis, and it can play no part in this Court's resolution of [the consolidated] appeals." Id. at 39.
The Messa appellants maintain they have not waived any arguments regarding the "legislative history" of the Act because they raised those arguments in their Superior Court brief, where, as appellees, they had no burden of issue preservation. They further maintain appellees have offered no legal support for their assertion appellants cannot offer additional legal analysis for an issue properly preserved for appeal which goes directly to the basis of the demurrer sought in their preliminary objections.
On the merits, appellees posit the case law upon which appellants and the trial court relied does not stand for the proposition that "civil proceedings" must consist of a lawsuit for purposes of the Act. For instance, appellees assert the filings at issue in Pawlowski , supra (preliminary objections regarding service of writs), and P.J.A. , supra (filing new matter), were designed to bring a lawsuit to an end, and thus the Superior Court in both instances "found lacking ... the ‘procuring, initiation or continuance’ element[,]" of actionable "civil proceedings" and not the initiation of something less than a lawsuit. Brief of Appellees at 41. Appellees concede the Superior Court in Rosen held that the service of a subpoena on a third party could not serve as the basis for a claim under the Dragonetti Act because it did not constitute the commencement of a civil action against the underlying defendant, but claim Rosen is distinguishable from the instant case. Specifically, according to appellees, "[u]nlike this case, the plaintiff was not seeking redress from Mr. Rosen for an injury it had suffered[.]" Id. at 42. Thus, according to appellees, the Dragonetti action "was not tantamount to a lawsuit." Id. Appellees also distinguish Walasavage v. Nationwide Ins. Co. , 633 F.Supp. 378 (E.D. Pa. 1986), where the court held an insurer's filing of frivolous new matter could not serve as the basis for a Dragonetti claim because a "claim" is a "cause of action," but the new matter at issue was a "defense." Id. Here, appellees contend, the subject pleading was in fact a claim tantamount to a cause of action and thus a "civil proceeding" under the Act.
Appellees also rely on Krisa v. Equitable Life Assur. Soc. , 109 F.Supp.2d 316 (M.D. Pa. 2000) (defendant's motion to amend answer to include fraud counterclaim deemed civil proceeding for purposes of Dragonetti Act), and Shaffer v. Stewart , 326 Pa.Super. 135, 473 A.2d 1017 (1984) (caveat filed with Register of Wills to challenge/delay immediate probate of will deemed civil proceeding for purposes of Dragonetti Act). Appellees assert these cases demonstrate "that the improper ‘procurement, initiation or continuation’ of a motion, petition, or application like the Contempt Claim here, provides a fully sufficient basis for a Dragonetti claim, assuming all other elements of the statute are met." Brief of Appellees at 45 (emphasis omitted). With respect to standing, appellees argue it "is not an independent issue but, rather, relies on the determination of whether the underlying claim at issue comprises ‘civil proceedings’ as that term is used in the Act." Id. at 47. Appellees observe that under the Act a claim may be brought against " ‘a person who takes part in the procurement, initiation or continuation of civil proceedings against another .’ " Id. , quoting 42 Pa.C.S. § 8351 (emphasis supplied by appellees). Appellees assert "[s]o long as the Dragonetti plaintiff is an ‘other’ against whom a Dragonetti defendant procured, initiated or continued ‘civil proceedings,’ that plaintiff will have standing to bring a claim under the Act." Id.
Appellees cite to a number of unpublished federal district court cases which purportedly suggest "a Dragonetti Act defendant is not required to have procured, initiated or continued an entire civil action or case in order for a cognizable claim to be made under the Act." Brief of Appellees, at 43 (emphasis omitted), citing Norco v. Allstate Insurance Co. , 2012 WL 12887729, 2012 U.S. Dist. LEXIS 128343 (W.D. Pa. July 17, 2012) (settlement petition deemed civil proceeding for purposes of Dragonetti Act); A.G. Cullen Construction Inc. v. Traveler's Casualty and Surety Co. of America , 2009 WL 382501, 2009 U.S. Dist. LEXIS 11683 (W.D. Pa. Feb. 13, 2009) (motion for preliminary injunction deemed civil proceeding for purposes of Dragonetti Act); Pirkle v. Ogontz Controls Co. , 1992 WL 170884, 1992 U.S. Dist. LEXIS 9591 (E.D. Pa. July 8, 1992) (same). We note the majority of opinions issued by federal circuit courts are unpublished and designated by those courts as non-precedential. A recent United States Supreme Court dissent highlights the controversy surrounding circuit courts issuing unpublished opinions, as the practice allows a circuit court to intentionally avoid creating binding case law. See Plumley v. Austin , 574 U.S. 1127, 135 S. Ct. 828, 831, 190 L.Ed.2d 923 (2015) (Thomas, J., dissenting).
Appellees reject appellants’ contention the Superior Court's decision will drastically expand litigation under the Dragonetti Act because the decision was specific to this case where the contempt/sanctions motion was "tantamount" to a civil action. Raynor , 205 A.3d at 1261. According to appellees, not all motions and pleadings are tantamount to a civil action, and discovery motions are unlikely to fall under the Act's ambit. Appellees conclude the Act is a valuable shield against baseless or frivolous claims, and this Court has already rejected the attempt to immunize attorneys from its purview. Brief of Appellees at 51, citing Villani , supra .
IV. Analysis
Our standard of review in this appeal arising from an order sustaining preliminary objections in the nature of a demurrer is de novo , and our scope of review is plenary. See Ladd v. Real Estate Commission , ––– Pa. ––––, 230 A.3d 1096, 1103 (2020), citing Mazur v. Trinity Area Sch. Dist. , 599 Pa. 232, 961 A.2d 96, 101 (2008). "We recognize a demurrer is a preliminary objection to the legal sufficiency of a pleading and raises questions of law; we must therefore ‘accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts.’ A preliminary objection in the nature of a demurrer ‘should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.’ " Id. (internal citations omitted), quoting Yocum v. Commonwealth, Pennsylvania. Gaming Control Bd. , 639 Pa. 521, 161 A.3d 228, 234 (2017).
The Dragonetti Act is a codification of the common law cause of action for wrongful or malicious use of civil proceedings: a Dragonetti defendant may be held liable when he "takes part in the procurement, initiation or continuation of civil proceedings against another" and in doing so "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." 42 Pa.C.S. § 8351(a), (a)(1). For a successful claim under the Act, the underlying proceedings must have terminated in favor of the Dragonetti plaintiff. Id. § 8351(a)(2). However, a Dragonetti defendant establishes probable cause for bringing the underlying civil proceedings if 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.
Notwithstanding the legislature's use of the amorphous term "civil proceedings," Dragonetti Act case law initially developed to allow those who had been named as defendants in civil actions to sue those who sued them if they could properly plead the actions were a wrongful use of civil proceedings. Standing to bring a Dragonetti action thus was limited to those who were named defendants in the underlying lawsuit. See e.g. Rosen , 627 A.2d 190 ; Hart II , 676 A.2d 222.
In Rosen and Hart II , standing as a party was examined prior to whether a "civil proceeding" existed pursuant to the Act, and in both cases, standing was the determinative fact in whether a "civil proceeding" existed. In Rosen , the Dragonetti plaintiff (Rosen) was an attorney who had, in the underlying action, been subpoenaed to give a deposition regarding a settlement he had made for one of his clients. The Superior Court opined Rosen did not have standing under the Act because he was not a "party" to the underlying lawsuit, and no "civil proceeding was procured, instituted or continued against Rosen." Rosen , 627 A.2d at 193. In Hart II , this Court recognized an exception to the rule that only a named party could sue under the Act. In that case, the Court ruled landowners who were not named parties but whose property rights were adversely affected by an injunction issued against them in the underlying proceedings, ex parte , had standing to pursue relief under the Act. Hart II , 676 A.2d at 225.
A. Statutory Construction of the term "Civil Proceeding" under the Act
We first determine whether the challenged filing in the underlying suit — here, a post-trial motion seeking a finding of contempt and sanctions — qualifies as the "procurement, initiation or continuation of civil proceedings" contemplated under the Act. We are guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991, and our goal is to ascertain and effectuate the legislature's intent. 1 Pa.C.S. § 1921(a). "The best indication of legislative intent is the plain language of the statute." Roverano v. John Crane, Inc. , ––– Pa. ––––, 226 A.3d 526, 535 (2020), citing Matter of Private Sale of Prop. by Millcreek Twp. Sch. Dist. , 646 Pa. 339, 185 A.3d 282, 290-91 (2018). "In ascertaining the plain meaning, we consider the statutory language in context and give words and phrases their ‘common and approved usage.’ " Id. , quoting Commonwealth by Shapiro v. Golden Gate Nat'l Senior Care LLC , 648 Pa. 604, 194 A.3d 1010, 1027 (2018). When the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). " ‘Only if the statute is ambiguous, and not explicit, do we resort to other means of discerning legislative intent.’ " Roverano , 226 A.3d at 535, quoting Millcreek Twp. Sch. Dist. , 185 A.3d at 291 ; 1 Pa.C.S. § 1921(c).
When "the words of the statute are not explicit, the General Assembly's intent is to be ascertained by considering matters other than statutory language, like the occasion and necessity for the statute; the circumstances of its enactment; the object it seeks to attain; the mischief to be remedied; former laws; consequences of a particular interpretation; contemporaneous legislative history; and legislative and administrative interpretations." Pa. Associated Builders & Contrs., Inc. v. Commonwealth Dep't of Gen. Servs. , 593 Pa. 580, 932 A.2d 1271, 1278 (2007) ; 1 Pa.C.S. § 1921(c). "The [Statutory Construction] Act provides that ‘[w]ords and phrases shall be construed according to the rules of grammar and according to their common and approved usage’; and that ‘technical words and phrases and such others as have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning or definition.’ " Id. , quoting 1 Pa.C.S. § 1903(a). "Further, if the General Assembly defines words that are used in a statute, those definitions are binding." Id. , citing Commonwealth v. Kimmel , 523 Pa. 107, 565 A.2d 426, 428 (1989). The Act allows a court to presume that the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable; that the General Assembly intends the entire statute to be certain and effective, and intends to favor the public interest as against any private interest. 1 Pa.C.S. § 1922(1), (2), (5). Moreover, the Act sets forth rules for a court to follow when provisions in or among statutes are in conflict and cannot be reconciled. 1 Pa.C.S. §§ 1933 -36.
The plain language of the Act imposes liability on a person who "takes part in the procurement, initiation or continuation of civil proceedings against another[,]" if that person "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." 42 Pa.C.S. § 8351(a)(1) (emphasis added). Moreover under Section 8352 of the Act, a person who "takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes," among other things, "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. § 8352 (emphasis added). Significantly, although the Act does not define the words "proceeding" "claim" or "cause," the phrase "procurement, initiation or continuation of civil proceedings" as it appears at Sections 8351(a)(1) and 8352 is applied to "claim[s] in which the proceedings are based" and the "procurement, initiation or continuation of a civil cause." Consequently, to the extent proceedings, claims, and causes may be separately defined, we find the term "civil proceedings" as used in the Act to be ambiguous.
To resolve this ambiguity, we look to Title 42 of the Judicial Code, in which the Act is contained, and which provides a definitions section. See 42 Pa.C.S. § 102. The Judicial Code provides the following instructive definitions: "matter" is defined as an "[a]ction, proceeding or appeal," and a "proceeding" is defined as "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 . (emphasis added). We note the "proceeding" at issue here is a post-trial motion for contempt, which may be described as an "application," rather than a "declaration" or "petition." See id. However, although a proceeding can encompass any "petition or other application" — presumably including a post-trial motion for civil contempt — a "proceeding" cannot include an "action," which is defined and commonly understood as any action in law or equity, or to put a finer point on it, any cause of action in law or equity. Thus, "civil proceedings" as referenced in the Act cannot include both the filing of motions within a case and the filing of complaints to initiate a case because those separate legal undertakings are independently defined under the Judicial Code to exclude one another.
The Judicial Code further defines "action" as "[a]ny action at law or in equity." 42 Pa.C.S. § 102. An "appeal" is defined as "[a]ny petition or other application to a court for review of subordinate governmental determinations. ... Where required by the context, the term includes proceedings on petition for review." Id.
We reiterate the rules of statutory construction indicate we must presume the legislature does not intend a result that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. § 1922(1). We recently held the Act "manifests a legislative purpose to compensate victims of frivolous and abusive litigation[.]" Villani , 159 A.3d at 491, citing Dooner v. DiDonato , 601 Pa. 209, 971 A.2d 1187, 1201 (2009) (common law tort laws "necessarily perform an important remedial role in compensating victims of torts"). This legislative purpose would indeed be undermined if frivolous and abusive "civil proceedings" included motions but excluded the actions at law or equity within which they are lodged. Moreover, such an interpretation would be contrary to our decisions applying the Act that consistently uphold Dragonetti claims for the commencement of actions at law, while rejecting purported Dragonetti claims for intra-case filings, such as preliminary objections or subpoenas. Compare, e.g. Villani , 159 A.3d at 479-80 (Dragonetti Act properly brought to challenge wrongful initiation of quiet title action and ejectment proceedings); Hart II , 676 A.2d at 225 (Dragonetti Act properly brought to challenge ex parte proceeding seeking injunction), with Rosen, 627 A.2d at 193 (issuance of subpoena did not qualify as commencement of civil action for claim under Act); Pawlowski , 588 A.2d at 39 (no claim available under Act for filing preliminary objections); P.J.A. v. H.C.N. , 156 A.3d at 294 (defendant's new matter in custody case "does not readily fall within the normal category of pleadings that give rise to Dragonetti litigation."). Consequently, the intra-case filing at issue in this case — the post-trial motion for contempt — does not qualify as an actionable "civil proceeding" as contemplated under the Act.
Furthermore, appellees cannot escape the fact that a separate civil rule specifically authorizes sanctions for pleadings, written motions, and other papers directed to the court that are presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, see Pa.R.Civ.P. 1023.1(c)(1)-(4), (d). If motions filed within lawsuits were considered to be actionable "civil proceedings," it would render either the rule or the Act superfluous, which is contrary to established rules of statutory construction. See Matter of Employees of Student Servs., Inc. , 495 Pa. 42, 432 A.2d 189, 195 (1981) ("whenever possible each word in a statutory provision is to be given meaning and not to be treated as surplusage"); 1 Pa.C.S. 1921(a) ("[e]very statute shall be construed, if possible, to give effect to all its provisions").
We conclude, therefore, that intra-case filings, such as the subject post-trial motion for contempt and/or sanctions — do not constitute the "procurement, initiation or continuation of civil proceedings" as contemplated under the Dragonetti Act. The Superior Court erred when it held otherwise.
B. Raynor's Standing to Bring a Claim under the Act
The second issue upon which we granted review is whether appellees had standing to bring a claim under the Act when they were not parties in the underlying medical malpractice litigation. The lower tribunals addressed standing after determining whether filing a motion for contempt is actionable as the procurement, initiation or continuation of civil proceedings. As the trial court determined a motion for contempt cannot be characterized in that manner, it summarily determined Raynor and her firm lacked standing to bring the Dragonetti claim. The Superior Court, on the other hand, upon determining a motion for contempt is "tantamount" to the procurement, initiation or continuation of civil proceedings, summarily determined Raynor and her firm had standing to bring the Dragonetti action. See, e.g., Hart II , 676 A.2d at 225 ("one who was not a party to the underlying action cannot sue under [Dragonetti]"). We agree that standing becomes relevant only when the challenged filing constitutes the procurement, initiation or continuation of civil proceedings under the Act.
Accordingly, given our holding on the first issue above, we need not reach or resolve the issue of standing.
The order of the Superior Court is reversed and the matter is remanded to the trial court for the entry of summary judgment in favor of appellants.
We note this rancorous dispute and protracted litigation between the parties has gone on long enough, and given our resolution of the issues, it is fair to say we expect the matter to end here, and we would take a dim view of further proceedings.
Justices Baer, Todd, Wecht and Mundy join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Saylor files a dissenting opinion in which Justice Donohue joins.
JUSTICE WECHT, concurring
Much 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 upon 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." Instead of issuing that straightforward and eminently reasonable order, the trial court inexplicably punted, commenting vaguely that "the defendants are on notice of that request." The 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 that the phrase "civil proceedings" in Section 8351 of the Dragonetti Act is not transformed into a catch-all for every conceivable act to which litigants might resort in a given case. Such "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" that would "subject [the other] to liability ... for wrongful use of civil proceedings." 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."
Sutch v. Roxborough Mem'l Hosp. , 142 A.3d 38, 45 (Pa. Super. 2016).
See, e.g. , U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 394 (3d Cir. 2002) (explaining that the tort of wrongful use of civil proceedings "as applied in Pennsylvania conforms with section 674 of the Second Restatement of Torts"); Rosen v. Am. Bank of Rolla , 426 Pa.Super. 376, 627 A.2d 190, 192 (1993) ("The statutory definition of the tort is now in agreement with the Restatement (Second) of Torts, § 674.").
Id. (quoting Notes of Testimony, 5/30/2012, A.M. Session, at 5-6).
To the degree that the majority suggests that Villani or any other decision of this Court has already embraced the proposition that the Dragonetti Act cannot apply to intra-case proceedings, see Majority Opinion, at 55–56, I respectfully disagree.
Id.
Poor legislative draftsmanship has once again complicated our task. We must parse the lawmakers’ language finely here in order to derive their intention. Because the Dragonetti Act does not define a "civil proceeding," we must look elsewhere to glean its meaning. The General Assembly has supplied a generic list of definitions to be employed throughout the Judicial Code, 42 Pa.C.S. §§ 101, et seq. Unsurprisingly, if somewhat perversely, that statutory provision itself invites the nonuniform application of words otherwise defined when "the context clearly indicates" that an alternative meaning should be used. Id. § 102. As pertains to this case, Section 102 of the Code provides:
Subject to additional definitions contained in subsequent provisions of this title which are applicable to specific provisions of this title, the following words and phrases 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 definition is less than helpful. Consider, 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" applicable 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 colloquial 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.
I would be remiss were I to overlook this Court's role in displacing the Dragonetti Act's legislatively designed sanctions. Compared to the now-suspended Section 8355 of the Judicial Code, 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 provision 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." PA. CONST. 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 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 General Assembly lacks the plenary rulemaking authority that the United States Congress possesses. Rather, I believe that this Court should revisit Rule 1023.1. We should explore giving the rule the sort of bite that might ensure its deterrent component registers among those who need the inducement not to abuse civil process.
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 party 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 an 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 for 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, the 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 successful 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).
See Sibbach v. Wilson & Co. , 312 U.S. 1, 9-10, 61 S.Ct. 422, 85 L.Ed. 479 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating 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.
CHIEF JUSTICE SAYLOR, dissenting
I respectfully dissent. While I agree with the majority that the term "civil proceedings" as used in the Dragonetti Act is ambiguous, I disagree with its conclusion that the present post-trial motion -- seeking more than a million dollars in contempt sanctions -- does not qualify as an actionable civil proceeding.
Initially, the majority recognizes that, under the applicable statutory definition provided at Section 102 of the Judicial Code, the contempt proceedings comfortably are civil "proceedings" under the Dragonetti Act. See Majority Opinion, at 54–55 (explaining that, subject to a material exception, proceedings encompass "every declaration, petition or other application which may be made to a court under law" (quoting 42 Pa.C.S. § 102 )). Because, however, the definition does not encompass actions -- but clearly the Dragonetti Act was intended to apply to actions -- the majority reasons that "proceedings," for purposes of the Dragonetti Act, should be read as entirely excluding intra-case filings (such as Appellants’ post-trial motion for contempt). See id. at 55.
Although I concur that strict application of the Section 102 definition would be unreasonable, I do not believe that the Court, in disregarding it, is faced with the either-or proposition suggested by the majority. Rather, it seems more likely to me that the Legislature chose the broader term to encompass both actions and certain intra-case proceedings.
In this regard, the Dragonetti Act closely tracks the language of Section 674 of the Restatement Second of Torts, from which it seems most likely to have been derived. Accordingly, courts have referenced the commentary to the Restatement in interpreting the Pennsylvania enactment.1 The comments from the Restatement make clear that an action for wrongful use may be based on intra-case proceedings qualifying as ancillary ones:
f. Ancillary proceedings. A particular civil proceeding may be ancillary to other proceedings .... Even though the principal proceedings are properly brought, the ancillary proceeding may be wrongfully initiated. In this case the wrongful procurement and execution of the ancillary process subjects the person procuring it to liability under the rule stated in this Section.
Restatement (Second) of Torts § 674, cmt. f (Am. Law Inst. 1977).
Although I certainly would not hold that all petitions, motions, and applications trigger ancillary proceedings for purposes of the Dragonetti Act, presently, I support the Superior Court's conclusion that Appellants’ high-stakes contempt petition was "tantamount to the filing of a civil lawsuit." Raynor v. D'Annunzio , 205 A.3d 1252, 1261 (Pa. Super. 2019) (explaining that, "[i]n a fashion similar to a civil lawsuit, the parties exchanged pleadings, and the trial court held a hearing, issued an adjudication of contempt, and imposed sanctions").
The majority also takes the position that acceptance that some intra-case matters may implicate the Dragonetti Act would render the sanctions provisions of Rule of Civil Procedure 1023.1 or the Act itself superfluous. See Majority Opinion, at 55–56. In my view, however, the availability of discretionary, sanctions-based relief does not supplant the substantive entitlement to compensatory damages prescribed by the Legislature. See generally Villani v. Seibert , 639 Pa. 58, 80, 159 A.3d 478, 491 (2017) (explaining that the Dragonetti Act "manifests a legislative purpose to compensate victims of frivolous and abusive litigation and, therefore, has a strong substantive, remedial thrust").2 Indeed, the Note to Rule 1023.1 specifically explains that " Section 8351 et seq. relating to wrongful use of civil proceedings" provides "additional relief from dilatory or frivolous proceedings." Pa.R.C.P. No. 1023.1, Note (emphasis added).
Finally, the majority does not reach the issue of Appellee's standing to assert the Dragonetti action as its holding renders the argument obsolete. Conversely, I would hold that Appellee had standing to bring the action for wrongful use of civil proceedings. Generally, standing under the Dragonetti Act requires that the complainant be a party to the underlying action. See Hart v. O'Malley , 544 Pa. 315, 322, 676 A.2d 222, 225 (1996). However, this Court recognized in Hart II that there is an "exception to that rule in recognition of the nature and effect of certain civil proceedings." Id. That exception exists when a "civil proceeding operate[s] against a non-party in a direct and particular way as fully as against a party[.]" Id.
Here, although Appellees were not parties to the underlying action that gave rise to the Dragonetti claim, the trial court imposed a sanction of nearly $950,000, which was eventually overturned on appeal. Nevertheless, Appellants moved for the issuance of writs of attachment, execution in attachment, and summonses upon various garnishees, including Citizen's Bank, where Appellees had numerous bank accounts. Particularly, given the severity of the sanction and the ensuing enforcement actions by Appellants, Appellees were aggrieved in a direct and specific fashion.
Justice Donohue joins this dissenting opinion.
§ 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:
(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.