J-A33012-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID W. FISHER AND SELECTIVE IN THE SUPERIOR COURT OF INSURANCE COMPANY OF SOUTH PENNSYLVANIA CAROLINA
Appellants
v.
SCOTT A. EXLEY, BURSICH ASSOCIATES, INC., FRANK P. MURPHY AND MURPHY & DENGLER
Appellees No. 1170 EDA 2014
Appeal from the Order March 20, 2014 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2013-11954
BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 16, 2015
David W. Fisher and Selective Insurance Company of South Carolina
(collectively Appellants) appeal from the trial court’s order sustaining, with
prejudice, Frank P. Murphy and Murphy & Dengler’s (collectively Appellees)
preliminary objections1 and striking Appellants’ amended complaint with
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 In reviewing an order granting preliminary objections in the nature of a demurrer, the appellate court is presented with a purely legal question: whether the law says with certainty that no recovery is possible. Hess v. Fox, Rothschild, LLP, 925 A.2d 789 (Pa. Super. 2007). In determining whether the trial court properly sustained preliminary objections:
(Footnote Continued Next Page) J-A33012-14
prejudice in this Dragonetti Act2 case. After careful review, we affirm on
the well-reasoned opinion authored by the Honorable Bernard Moore.
In April 2006, Fisher, an insurance broker, allegedly disseminated
defamatory statements to numerous third parties about Appellees in the
Pottstown community. The statements were contained in a one-page
newsletter entitled “The Pottstown Merky.” The newsletter accused
Appellees Exley and Bursich Associates “of being involved in illegal
transactions in dealings with various municipalities and non-profit
businesses” and contained accusations that Exley and Bursich conspired with
others to commit theft while engaged in “classic quid-pro-quo deals.”
At the time of the publication, Exley was part-owner of Bursich
Associates, a company that provided engineering and land surveying
services, often for municipalities. On November 8, 2006, Appellees Exley
_______________________ (Footnote Continued)
The appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of the appellate court's inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. The appellate court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case if free and clear of doubt.
Id. at 806. 2 42 Pa.C.S.A. §§ 8351-8355.
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and Bursich filed a lawsuit3 against Fisher alleging that he defamed4 them by
distributing the article to third persons. Appellees, Frank Murphy and
Murphy & Dengler, were Exley and Bursich Associates’ legal counsel in the
underlying defamation action.
Fisher unsuccessfully moved for summary judgment; the case
proceeded to trial before a jury. At trial Fisher’s deposition testimony was
read into evidence; Fisher denied authoring the article, but admitted that he
distributed a copy of it to his attorney and business partner and also posted
a copy of it on a bulletin board in the local bank. Fisher also conceded that
he did not know the truth of the article’s central allegations and, in fact,
admitted that a particular accusation was indeed false. Fisher moved for
nonsuit at the close of plaintiff’s case, which was denied. The jury ultimately
returned a defense verdict.
3 Exley et al. v. Fisher, No. 2006-28018, Montgomery County Court of Common Pleas. 4 In an action for defamation, the plaintiff has the burden of proving: (1) the defamatory character of the communication; (2) its publication by defendant; (3) its application to plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to plaintiff; (6) special harm resulting to plaintiff from its publication; (7) abuse of a conditionally privileged occasion. Agriss v. Roadway Express, Inc., 483 A.2d 456, 461 (Pa. Super. 1984), citing 42 Pa.C.S. § 8343(a). Moreover, a publication is defamatory if it tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule, or injure him in his business or profession. Cosgrove Studio and Camera Shop, Inc. v. Pane, 182 A.2d 751 (Pa. 1962);
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Appellants filed the instant wrongful use of civil proceedings action
against Appellants in connection with the underlying defamation lawsuit. 5 In
their amended complaint, Appellants6 alleged that Appellees wrongfully
instituted the defamation action against Fisher in an effort to harass and
injure him without having a reasonable belief that Fisher was responsible for
any allegedly defamatory comments made in the article or that Fisher
distributed the article to the Pottstown community. Appellants also alleged
that Appellees Murphy and Murphy & Dengler knew of their client’s lack of
such reasonable belief in the facts against Fisher, yet refused to withdraw
and continued to prosecute the defamation action. Finally, Fisher alleged
that as a result of the defamation lawsuit, he suffered damage to his
reputation and to the good will of his business.
In the Dragonetti action, Judge Moore granted Appellees’ preliminary
objections and dismissed Appellants’ complaint with prejudice. Appellants
filed the instant appeal, raising the following issues for our consideration:
(1) Did Fisher and Selective state a claim against the Defendants for wrongful use of civil proceedings under the ____________________________________________
5 Selective, Fisher’s insurance carrier, tendered a defense to Fisher in the defamation lawsuit and retained a law firm to defend Fisher subject to a reservations of rights. Selective also provided a defense to allegations of non-covered punitive damages made by Appellees Exley and Bursich against Fisher in the defamation action. 6 Selective was a named plaintiff on the Dragonetti action as a result of the attorneys’ fees and costs it paid to defend Fisher in the underlying matter.
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Dragonetti Act, 42 Pa.C.S.A. § 8351, et seq., where their Amended Complaint alleged that Defendants lacked probable cause and acted with an improper purpose in initiating and continuing the underlying Defamation Action against David Fisher in Exley et al. v. Fisher, No. 06- 28018 (Montgomery Ct. Comm. Pl.)?
(2) Did the trial court commit an error of law in sustaining preliminary objections in the nature of a demurrer as to Plaintiff-Appellants’ Dragonetti claim where the trial court took judicial notice of extraneous facts from the notes of testimony in Exley et al. v. Fisher, No. 06-28018 (Montgomery Ct. Comm. Pl.), which were neither pled in Fisher’s and Selective’s Amended Complaint or raised in Defendants’ Preliminary Objections?
(3) Did Plaintiff Selective Insurance Company of South Carolina (“Selective”) have standing to pursue its Dragonetti Act claims against Defendants where Selective paid most of Fisher’s defenses costs and possessed an equitable right of subrogation arising out of the express language of Selective’s insurance contract with Fisher?
(4) Did Plaintiff David Fisher appropriately plead damages for losses incurred by his business from Defendants’ underlying defamation lawsuit, where the alleged damages were incurred by him while operating as a sole proprietorship?
Wrongful use of civil proceedings is a tort arising when a person
institutes civil proceedings with a malicious motive and lacking in probable
cause. Rosen v. American Bank of Rolla, 627 A.2d 190, 191 (Pa. Super.
1993). Pennsylvania codified this tort at 42 Pa.C.S.A. §§ 8351-55 (known
as Dragonetti Act). Section 8351 of the Act reads as follows:
§ 8351. Wrongful use of civil proceedings
(a) Elements of action. --A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]:
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(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
42 Pa.C.S.A. § 8351(a). An individual has probable cause under the Act
when he reasonably believes in the existence of the facts upon which the
claim is based and either:
(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.
42 Pa.C.S.A. § 8352 (Existence of probable cause). See also Bannar v.
Miller, 701 A.2d 232, 238 (Pa. Super. 1997) (wrongful use of civil
proceedings’ plaintiff must prove that defendant initiated or continued civil
proceedings against plaintiff without probable cause or in grossly negligent
manner, for improper purpose, and, that proceedings were terminated in
favor of plaintiff).
Examining the averments in Appellants’ amended complaint, together
with the documents and exhibits attached thereto, Hess, supra, we agree
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with the trial court that Appellees did not institute the underlying defamation
action without probable cause or in a grossly negligent manner. 42
Pa.C.S.A. § 8352. Specifically, Appellants aver in their amended complaint
that Exley denied any knowledge that Fisher published the article to anyone.
See Appellants’ Amended Complaint, 7/30/13, at ¶16. However, the
testimony cited to support this averment only references whether Fisher
placed copies of the article in a local bank branch. See Deposition
Transcript of Scott A. Exley, 5/7/08, at 28:1-14. The complaint mentions
nothing about whether Fisher disseminated or published the article to other
third persons personally, as alleged in the underlying defamation action and
testified to at trial. The complaint also avers that Exley admitted that he
knew of no reason why Fisher would even want to defame him, however,
this again does not demonstrate that he filed the action without probable
cause or in a grossly negligent manner. 42 Pa.C.S.A § 8351(a)(1).
Moreover, the averments do not support the conclusion that Appellees
commenced the defamation action to harass and/or injure Fisher or for some
other improper purpose. Merely because Exley testified at his deposition
that he did not claim that Fisher ever lied, Deposition Transcript of Schott A.
Exley, 5/7/08, at 89:4-20, or that Exley had information that Fisher said or
wrote any of the comments, id. at 89:21-23, does not mean that he did not
disseminate the article to third persons. All that is necessary to “publish”
defamatory material is its communication intentionally or by a negligent act
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to one other than the person defamed. Gaetano v. Sharon Herald Co.,
231 A.2d 753 (Pa. 1967).
Finally, the fact that Appellants were unsuccessful in moving for
summary judgment and non-suit, as well as the fact that the case was
submitted to the jury for a determination on factual issues, further supports
the concision that probable cause existed for Appellees to file the underlying
defamation action. See Meiksin v. Howard Hanna Co., 590 A.2d 1303
(Pa. Super. 1991) (where Dragonetti plaintiffs in prior lawsuit
unsuccessfully moved pre-trial for summary judgment and had compulsory
non-suit denied, probable cause existed as matter of law in prior lawsuit to
defeat Dragonetti action).
After a review of the parties’ briefs, the relevant case law, and record
on appeal, we affirm the trial court’s order sustaining Appellees’ preliminary
objections and dismissing, with prejudice, Appellants’ amended complaint
based upon Judge Moore’s Pa.R.A.P. 1925(a) opinion. We instruct the
parties to attach a copy of Judge Moore’s decision in the event of further
proceeding in the matter.
Order affirmed.
WECHT, J. joins the Memorandum.
STRASSBURGER, J. files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/16/2015
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(1'.0'1" I ot '1)
'" .' INTI'IE COURT O F COMMON PLE AS OF MONTG OMERY COUNTY, PENNSYLVANIA CIVIL DIVISION
DAVID W. FISH ER :md SEL ECTIVE S up . C I. No. 11 70 E DA 2014 INSURANCE COMPANY OF SOUT II CAROLI NA . Comm. PI. O. No. 2013-11954
v. SCOTT A. EXLEV, BURSIC H IIII f.:t~~~'~~11111 "l/IIJoI I!H4.ooS0 {oIll1l/1l~ 'I:l4M1 0,..... '98409" ~ ASSOCIATES, INC., FRANK P. Ft.""1..2I~21}9 r.-.:;sooll M Unr l-I V and M URPHY & DENG LER M,~t t,.n-. - M"""01I'~.'"
OPINION
M oore. J. JUli e 18, 2014
I. FA CTS AND PROCEDURA L Hl STORV
This mall(';r involve." a claim for wrongful use o f civi l proceedings ("Drago nelli
action" 42. Pa.C.S.A , § 835 1 ct seq.), arising trom a de fense verdict in an underlying
defnmruion lawsuit. David W. Fisher, who \ws thc defendant in the undcrlying
def.'lmillion action, and Selectivc Insurance Company ofSoulh Carolina appeal this
court's orders that sustained the preliminary objec tions of the defendants and dism issed
with prejudice the Amended Comp laint of Fisher a nd Selective Jnsurance.
TIle defendants in this mailer are Scott A Ex lcy and Bursich Associates, Inc.,
who were the two plain tilTs in the underlying dc fama tion nClion, and also Frank Murphy
and Murphy & Denglcr, who were their legal counsel. AI the time of the underlying
deramation lawsuit, Scott Exley was part-owner of Bursich Associates, which was a
company that provided engineering and land surveying services, oftcn for mumcipalilies
Exlcy nnd Bursich Associates a llegcd that David Fishl.:r, who was an insurance broker,
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IPa"" ~ of IJ)
did knowingly, inlenlionally, voluntnri ly Bnd maliciously distribute, publish and
dissel'lliml.le defamaiulY :.IiHements €lgainst {hem in the Pottstown colYlllluniiy.
Speci fi ca lly. the all egations stemmed from n one-page news letter, dated April 28,
2006, entitled "The Pbustown Merky," an apparent pinyon words of the local newspaper
"The Pottstown Mercury." T he newsletter contained only one article. That art icle
accused Ex ley and Bursich Associates of being invo lved in illegal transactions in their
dealings with vurious mun icipalities and non-profit businesses. No author or source is
named in the newslet ter. The article nppe,1rS under th e headlines "Troubles on Borough
Council" and "V lahos in it for personal ga;n," referring to Potlstown Borough Counci l
and one ofils members nt the ti me, James Vlahos: The article reads in ful l, as follows:
I low would you fee l if you were Jack Wolf while watch ing all your effoMS these past scveral years rendered mcaningless by the actions of "BIG" Jim Vlahos.
In just a few short months, Big Jim has wreaked havoc in the borough. As he has done ill the past at New I "mover, he is planni ng 10 tum over the code enforcement department 10 Bursich Assoc iates. In this classic quid pro quo deal. Vlahos receives the insurance business at Bursich and Creative Hea lth. Scott Exley of Uurs'ich Associates, and Pottstown's engineer, personally awarded Vlahos thi s business to Vlahos in return fo r New Hanover's engineering work. Now they're at it again Dnd this time Big Jim is maneuvering Exley into a lucrative con tracl lo take over and perfonn the dulies of the code enforcement depilr1 ment.
Remember these two are behind the debacle at the Ricketts Center. Everything they touch turns SOl,lr. For example, the recent lllbor/management t roubles have been ins ti gated by Big Jim in a ploy 10 t3ke over the borough's health insurance business. He plans to give Ihe insurance busine:;;s 10 his partner in crime, Davc Bultaro. They share in the proceeds of their jo int scruns nil conducted loc311y and perpetrated against not for profi ts. Their vict ims incl udc Creative Health, the YMCA, Brookside Country Cl ub. PAL and many other organizat ions.
llow do (hey do il? ihrough accomplic<:s like Jim Konnick, Jeff B~'!;!!g! O!1. Bob Om!"!! !!!~d Tom D'11"'_'1 The '!!O!!'!y !h.'!)' s!e!!.! i!l the
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backrooms of PottstOWil is shared by all and distributed to the othel members of their organization.
A ll that's left is a p mh of d estruction that includ es the mess called the Ricketts Center, a Po ttstown govenunent in shambles, unable to timct ;on from one day to the next, and these money grabbing politicians using their posi ti ons and infl uence to line their pockets.
Vlahos, I3crry, Exley, Br ant, Kormick. Devington, Du ttaro. Marsteller aoo the others d o their business in the sh'adows behind the re publican party and quasi legi ti mate businesses. Mr. Wo lf: lum the ligh t Oil the.sc guys and expose them for whut and who tbey arc, You havc been and honest and hurd worki ng civi l servant. Evcryonc in Pottstown knows thai you will do the right thi ng.
T his is the first edition oflhe lIew and improved Poustown Merky. We pub lish the news thai the Mercury d oesn' t.
Se~ Underlying Actio n, Trial Ex, P·I. 1 In sum, the article accused Exley and l3ursich
Associotcs ofbcing inyolved in illegal quid pro quo deuls w ith V lahos, w hom it alleged
abused his borough council powers. The article speci fi call y a lleged that Vlahos gave
l3ursich Associates the work in the borollgh' s code enforcement departmen t, and Oursich
Associates in return gave Vlahos, nn insumnce brok:er, the insurance business at Bursieh
Associates. fis her was a competitor of Vlahos' in the insura nce buslOcss. (N.T. 817/12.
pp. 83-92).'
Thereancr, Exley and Bursieh Associates filed a lawsuit against Fisher here in the
Montgomery County Court of CommOn Pleas. a lleging that F'is her defamed them by
distributing t he article to third persons, No prel imi nary objection~ or mOtion for
judgment on the pleadings was ever filed by Fisher. Discovery \.ws condUCted, and
The Underlymg ActiOn in tliis ease refers to SCOll A. Ex ley and Butslch Associa tes. Inc. v. David W. Fisher, which is dock:cted at 2006-28018 in the Montgomery County Court of COmmon Pica:;. 1 1)le citations to the Notes of Testimony from 8/6/ 12, 87112, MI/12, and 819/12 all refer to the fOllr days of trial in Ihe underlying defamati on action, No. 2006·28018 3
547:1 Circulated 12/18/2014 09:31 AM
Fisher filed a mot jon for summary judgment, arguing therein that the defamation claim
froiled as a maHI!i' of taw because (1) the article did not have a defamatory clmraclcr, (2)
there was no publication of the article to a third person; (3) Ex ley and Bursich Associates
could not present sufficient evidence of actual malice on the part of Fisher, which Fisher
alleged they were required to show since, as Fisher argued, they were public ligures; and
(4) Exley and Bursich Associates could not present sufficient ev iden ce to establish actual
harm.
The Honorable William J. Furber, Jr. denied Fisher's motion for summary
judgment by an order dated November 10,2010, and allowed Ex ley and Bursich
Associates' case 10 proceed. Before the trial, Fisher filed two motions in limine, one
arguing Ihal the article was nol defamatory under Pennsylvania law, and Ihe second
arguing that Exley and l3ursich Associates were public official s or public figures for
purposes of de fa mali on analysis. The Honorable Enunanuel A. Bertin, who was the trial
judge, denied bolh these motions. (N .T. 8/6112, p. 12; N.T. 818112, p. 66).
At trial, Fisher' s deposition testimony was read into evidence. At his deposition.
while Fisher denied aUlhoring the article, he did admi t that he distributed a copy of it to
his allomey and his rosiness partner. (N.T. 8/6/ 12, pp. 108-09). Fisher admitted thaI he
posted a copy of the article on a bulletin board of a local bank , (N.T. 816112, p. 110). He
also conceded that he did not know the truth of one of the article' s central allegations :
thaI Exley and Bursich Associates had previously engaged in a similar illegal quid pro
quo deal when Vlahos had previously served as township supervisor in New Hanover
Township. (N.T. 8/6/12, pp . III , 118). In closing argument, Fisl~r's counsel conceded
4 Circulated 12/18/2014 09:31 AM
!P~9" 5 ~r 111
Ihat Ihis panicular accusation in the article Was false, in that Dursich Associates had
never obt
During Ihe defa11lalioll trial, Gregory Berry testified that, in a convcrsation with
David Fisher al a local 7·1 1 store, Fisher said that he "put (the llJ1icles] up ... land) sent
them and faxed them 10 everyone" he knew. (N.T. 8/6/12, p. 81). Indeed, Fisher added,
according 10 Berry, Ihal he "would do .it again if another one CItme QU L" (N.T. 8/6112, p.
81). FUr1hermore, Edward E. Panzeter, III, who worked at Dursich Associates as an
employee of Exley's at the time Ihe article appeared, leslified at Irial that he picked up a
copy o f the article althe bank and found It to be "malicious." (N.T. 8/6/12, p. 70).
AI the conclusion of the plaintiffs' case, ~isher moved for II nonsuit, which Judge
l3ertin denied. (NT. 817/ 12, pp. 119·127). Fisher then proceeded 10 present his defense.
The trial lasted !l totnl of fOllr lotal dllYs, and the jury returned 8 defense verdict in favor
of Fisher.
ARcr the defamation action had lJeen resolved in his favor, Fisher and Selective
lnsuf
claiming Ihat Exley and Bursic~ Associates, through their legal counsel of Frank Murp hy
from the 18w finn Murphy & Dengler, commenced the defamation litigation to harass and
IIljure Fisher, and without having a reasonable belief that Fisher de ramed them . Ex ley
and Bursich Associates, and Murphy & Dengler, both filed preliminary objections, which
this court susI;\incd. David Fisher and Selective Insurance Company now appeallhi s
courl's determination.
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cPa.,., G o r J1I
Il. DISCUSSION
In order rut the Iriai court 10 adjudicate preliminary objections filed in D.
Dragonclli case., thc conrl must take judicial noticc of and analyzc comprehensively the
complete record of the underlying action and evaluate thc merits or that claim. See e.g ,
Keystone Freight Corp. v. Stricker, 31 A.3d 967 (Pa. Super. Ct. 2011). Furthcnnore, it is
ripe for this court to resolve a Drdgonetti case on preliminary objections. See Lerner v.
Lerner, 954 A.2d 1229 (Pa Super. CI. 2008). Pederai Courl S, when applying
Pennsylvania law, have routinely stricken Dragonetti claims on the basis of a demllrrer
contained in motions to dismiss. See. e.g., Bobrick Corp v. San/Gila Products, IIlC., 698
P.Supp.2d 479 (M .D.Pa. 2010) ; Villari Brandes & .Giannone. PC v. Wells Fargo Fin
Leasing. Inc., No. 13-297,2013 WL 5468491 (E.D_Pa Sept 30, 2013); Arnder v.
DimitroIJ, No. 11-3626. 2011 WL 4801924 (E.D.Pa. Oct 7, 201I).
T he plaintiff's Amended Complaint is solely predicated upon what occurred in
the underlying action and makes specific. reference 10 that litigation. Any procedural
obJcction to this courI 's determ in ation of issues of probable causc, improper purpose and
gross negligence have been waived since Ihese issues were raised by Ihe defense in
preliminary ofijcc1ions Wilh- supponlng-ex1ii6ils attached anCldie plamtifI did not h1• - - -- - - - - ' preliminary objections 10 the defendants' preliminary objections. See Richmond v.
McHale, 35 A.3d, 782-83 (Pa. Super. CI. 20 12), quoting Preiser v Rosenzwej'g. 615 A.2d
303,305 (Pa Super; CI. 1992). Accordingly, any possible challenge by the plainlifr OIl
procedural grounds 10 the preliminary objections of the dcfendanls is waived .
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"[AJ party seckiue, redress under Dragonctti bears a heavy burden." Us. Express Lines, Ltd. V. Niggi1l.f, 281 F.3d 383, 394 (3d Cir. 2002). The Dragonelti Act provides,
ill relevant part:
§ 8351 W rong rul usc o r civH proeced ings
(a) Elem en ts o r ac.t ion .-A person who takes part in the procurement. in itiatiOn or continuation of civil proceedings agni nSI another is subject to liubility to the other for wrongfu l usc of civi l proceed ings:
( I) He acts in a grossly negligent manner or without probable cause and primarily fOr a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the c laim in which the proceedings are based; and
(2) The proceedi ngs have term inated in favor of lhe persoll against whom they arc brou ght.
42 PaC.SA § 835 1(a)(1 )-(2).
Th~ AI;I t1efiJles prC!bablecause as follows:
§ 8352. Ex islen ce of probable ca use
A person who takes part in the procurement, in itiation or continuation of civil proceedings against another has probable cause for doing so ifhe reasonably believes III the existence of Ihe fae ls upou wh ich lhe claim is based, and either;
( I) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith und given nner fuJI disclosure of all relevant racts within his knowledge and information; or
(3) Believes as an attorney ofrccord. in good faith that his procurement, initiation or continuation of a civi l cause is nO{ 1Il1ended 10 merely harass or maliciously i1uure Inc opposite party.
42 PD .C.S. § 8352(1)·(3).
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t"-9'!' or III
To prevail in a Dragoneni claim. a plaintifTmust show that the defendant
"maliciuuslY illSlilulcd prI.lcee
cause 10 inslilute the proceedings, and thaI the proceedings terminated in favor of {Ihe
plaintlfT]." Keystone Freight Carp. 31 A.3d at 972 (citations omi ttcd). A Dragonetti Act
plaintiff"l>ears the burden of proving thaI the primary purpose for which the proceed ings
were brought was nOI that of securing the proper discovery, j oinder of parties, Or
adjudica tion oflhe claim on which the proceedings were based." ld. at 972, citing 42
Pa.C.S. § 8354(4). Likewise, "re]ven if an attorney lacked probable cause in fil ing a
lawsuit on behalf of a client, he is not liable for wrongful use of civi l ilroceedings unJess
he filed the lawsuit wi th an improper purpose . Morris Y. DiPaolo, 930 .A.2d 500, 504
(Pa Super. Ct. 2007). "[A] term inati on of civil proceedings by a competen t tribunal
3dverse"to the person initial ing them is nol evidence that they wen; urought Witllout
probable cause." Rcst3tement (Second) of Torts § 675. cmt. b; Ludmer v. Nernberg, 640
A.2d 939, 944 (P•. Sup«. Ct. 1994).
Wilb regard to attorney liabili ty on a Dragoneni action, "as long as an 3Uomcy
believes Ihat there is a slight chance that his client's claims will be success ful , it is not the
3tlOmey's duty to prejudge the case." Keys/one Freigh r Corp. 3 1 A.3d at. 973, ciling
Morris, 930 A.2d lit 505 . "Lawyers can oct safely act upon the f3CIS staled by their
clients." Meiksin v J/oward Hanna Co, Inc., 590 A,2d 1303 (Pa. Super. CI. 1991).
Upon review or the underlying action, the lenst that can be said is that Ex ley nnd
Bursi<;h Associates had a viable cause of action, and there is no legal basis to sustain a
Dragonetli nellon m thi S case against them and the defendant law firm . Here. there was
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. , .. ~ 'I o. IJ )
Whi le the proceedings underlying the instant action did terminate with ajury verdict in
favor of Fisher, it is clear that Exley. Dursich Associates and their lo't'l)'er believed in the
existence of the facts upon which their claim was based and reasonably believed Ihnl
under those facts their claim was cognizable under existing ton law. Indeed, the
underlyiflg acti on proceeded all the way 10 a jury verdict. Fisher /lever filed preliminary
objections. nor did he fi le a motion for judgment on the pleadings. His motion for
summary judgment was denied, as was his motion for nonsuit al trinl.
Exley and Bursich Associates' defamation action was founded upon the testimony
of multiple witnesses, including Fisher himse lf. fisher admitted that he distributed the
article to 01 least IWO persons and also admit ted that he posted the article on a bulle ti n
board at a Icc.a! bank . (N.T. 8/6/12. pp. 108-09). Furthermore, George Berry testified
that Fisher staled to him that he inlemlt'!(\ In d i ~lrihllte the article hy faxing it to everyOne
he knew. (N.T. 816/12, p. 8 1). Exley and Uursich Associates did not Jleed to show that
Fisher authored the article himself to establish defamation. only that he pub lished it 10 0.
third persoll . h, addition, Edward l'anzeler testified to Ihe defamatory nature ofthe
art icle by stating he found it to be " malicious." (NT 816/12, p. 70). Such testimony
- - - - - - - oam=o"u..n"'·Od"'lo=IX"~·6iilile cause, anasucn proOii61c cause was cOllltrrned by the friar coUi'fs- - -
denial of Fisher's motion fo r s ummary judgment and motion for nonsuit
Indeed, Fisher's counsel conceded in his closing argument that FIsher made 1I
" mi stake" in posting the article atl he bank. (N.T. 8/9112, p. 44). FurthemlOte. fisher's
counsel conceded in a post-lrial memoraudum that the "court concluded the publication
was capable of defamatory meaning but properly left to the detcrmillation of the jury the
question of whethe r (he article actual ly dcrume..:! U Exley or 13ursich U." See
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!h'1" 1 0 o. II)
Memorandum of Law in Opposition to PlaintifT's Motion for Post-Trial Relief, pp. 3·4,
No. 2006-28018, Docket Emry 74 .
Furthermore. Exley and Bursich Associates did not act with gross negligence.
"The presence of probable cause ... does not necessarily defeat the entire cause of action
for wrongful lL<;e of civil proceedings, as the clear language of Section 8351 penuits a
cause of action to be based on gross negligence or lack of probable cause." Keystone
Freight Corp. 3 1 1\.3d at 973 (quotations omitted). TIle Superior Court has defined gross
negligence as "the want of even scant care and the failure 10 exercise even that care
which a careless person would use." /1arl l'. O'Malley. 781 A.2d 121'1, 12 18 (Pa. Super.
CI. 200 1). A court is "precluded from considering any conclusions oflaw or inferences
which ate not supported by the factual allegations contained;n th e complaint." Hart v.
O'Malley, 647 A,2d 542, 553 (Po , Supe.. CI. 1994), aff'd676 A.2d 222 (Pa. 1996). A
plaintiff, therefore, c;mnot maintain a cause of action for wrongful usc of civil
proceeding; by merely stating "conclusion s oflaw. unwarranted inferences from facts,
argumentative allegations, and expressions of opinion." Neill v. Eberly, 620 A.2d 673,
675 (Pa. COmmw. Ct. 1983). FurtlletlllOrC, the court "must not supply a fac t missing in
the complaint" in order to cure a defect in the pleading. Hart, 647 A.2d at 553. Plaintiffs
have not set forth the facts that are esscnlialto suppol11hei r claim.
Exley and Bursich Associates' factu al and legal presentations in the underl ying
litigation preclude a finding that they acted with gross negligence or an improper purpose
in initiating and continuing the underlying defamation lawsuit. As discussed .supra,
Exley and Bursich Associates prcsented carefully reaso ned arguments s upported by
554:1 Circulated 12/18/2014 09:31 AM
' ' IJC' II of U)
witness testimQny. Accordingly, Exley and Bursich Associates, and Murphy and M urphy
& Dengler, did not act wilh g ross negligence o r an imprope r purpose.
This instant case is co ntrolled by Meiksin v. lfoward Hallna Co., Inc. , 590 A.2d
1303 ( Pa. Super. C L 199 1), whe re the S uperior Court upheld the tria l co urt's fird ing that
there was probable cause as a maller of law in the underl ing action. Meiksin involved a
D ragonetti Act c laim by propcny owners a gainst the ir real esta te brokers a nd the b rokers'
nuom eys for instit uting a lawsui t to recover withheld real estate com missions. Id at
1 305~ 06. At issue in the Meiksin underlyi ng action was the existence of an oral contract
extension thai would ent itl e !he brokers to a commission iffo und enforceable. Id. 'Ole
brokers were unsuccessfu l in the ir lawsui t. Id. 1lJ(! propeny owners later sued the
brokers and their aHomey, alleging that the underlyi ng lawsuit was bro ught without
probablt: cause. Id.
In Me i/(sin, the trial court granted summary judgm ent in favor of all the .
Dragonelli defendants. Plaintiffs there argued that facmal issues Ihat were s ubmi tted 10
the tact fi nder in the underlying action ncedt::d to be reviewed by aj ury inlhe Dragonelti
case 10 detem line whether there was probable eause 10 ins titute the lawsuit. Oul lhe
S uperior Court rejected this analysis and held:
[T)he existence of probable cause was present as a matter of law in view of the ex istence of a legitim ate dispute of fact in the prior action for comm issiOns. This was apparent from the denial of m otions fo r summary judgment and compu lsory non-su it in the prior action a nd the submission of disputed factual issues to thejury.
Id. al 1306.
T he holding orthe S uperior Court In Meiksin is that the material facls rclevalllto
the probable cause detenllillalion are simply whether there was a legitimate factual
II
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dispute in the underlying action to be determined by the trier of facl. The Superior Court
fun her held:
The existence of probable cause is also demonstrated by the faclthal there was sufficient evidence [to require the factual di spule} be submilted to the jury for determination ... This suggests thlli there was competent evidence of sufficient quantity and quality to demonstrate probable cause for a reasonable belief that the action could be maintained. This be lief was confinned also by the court's denia l o f motions in the \lTl derlyi ng aclion for summary judgment and compUlsory non·suil, motions which coul d have been granted only if there had been nO competent evidence sufficient to maintain the action.
Id. at 1 307~ see also Hadden v. Gouldey, el af., 25 Montgomery County Law Reporter
149 (20 12). qIJ'd55 A.3d 149 (Pa Super. CI. 2012); Lerner v. Lerner. 954 A.2d 1229
(Pa. Super. Ct. 2008) (sustaining preliminary objections in nature of demurrer to
Dragonelli claim).
The underlying action was a routine defamation case with legitim ate disputed
factual issues. The defendants presented substantial evidence and well-reasoned
arguments in support of the ir claims. Accordingl y~ thi s court properly sustained the
defendants' preliminary object ions and dismiSSed the case.
J2
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!PII.,)<,! Il or III
III, CONCLUS ION
Based upolil he all of the foregoing reasons, this Court's delennination was
proper and should be AfFIRMED.
BY TIlE COURT:
~~w BERNARD A MOORE, J.
Dale: June 18,2014 Cc: Michael N. Onu fruk, Esq. Paraskevouln V. Mamounas, Esq. Josh J.T. Byrne, Esq.
557.1