Hartenstine, R. v. Bullock, J.

• Court: Superior Court of Pennsylvania
• Decided: June 3, 2016
• Docket: 250 EDA 2015
• Status: Unpublished

Opinion

J-A28013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT N. HARTENSTINE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

JERYL BULLOCK AND JAMES F. CARNEY, ESQUIRE

Appellee No. 250 EDA 2015

Appeal from the Judgment Entered December 23, 2014 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2014-17098

BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 03, 2016

In this appeal, Appellant, Robert N. Hartenstine, specifically challenges

the order entered in the Montgomery County Court of Common Pleas, which

sustained the preliminary objections filed by Appellee, James F. Carney,

Esquire (“Attorney Carney”) and dismissed Mr. Hartenstine’s complaint for

wrongful use of civil proceedings and abuse of process.1 We affirm in part,

reverse in part, and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. ____________________________________________

1 The court’s order sustaining Attorney Carney’s preliminary objections was made final by the court’s entry of default judgment against the remaining defendant, Jeryl Bullock, and the assessment of damages in the amount of $68,734.00. (See Judgment entered 12/23/14; R.R. at 137a). We discuss this concept more fully later in the disposition. Ms. Bullock is not a party to this appeal. J-A28013-15

Mr. Hartenstine and Jeryl Bullock began dating around 1990. During their

relationship, Ms. Bullock primarily lived in a mobile home on property owned

by Mr. Hartenstine in Lower Pottsgrove Township, Pennsylvania. Mr.

Hartenstine resided at his home in Philadelphia throughout the relationship.

The parties dispute when the relationship ended; Mr. Hartenstine claims the

relationship ceased in 2000, while Ms. Bullock contends the relationship

concluded in 2008. Following dissolution of their relationship, Mr.

Hartenstine asked Ms. Bullock to pay the real estate taxes and insurance if

she wanted to continue living in her mobile home on his property. Ms.

Bullock did not comply with Mr. Hartenstine’s request and, in March 2011,

Ms. Bullock blocked his access to the property.

On or around May 5, 2011, Mr. Hartenstine filed an eviction action

against Ms. Bullock. Mr. Hartenstine subsequently withdrew the eviction

complaint while the parties attempted to reach a settlement. When

settlement efforts proved unsuccessful, Mr. Hartenstine filed a second

eviction action on September 16, 2011, scheduled to be heard on October 3,

2011. On October 3, 2011, Attorney Carney appeared in court as counsel

for Ms. Bullock. Before the court commenced the hearing on the eviction

action, Attorney Carney informed the court he had filed a divorce complaint

on September 30, 2011, on behalf of Ms. Bullock against Mr. Hartenstine.

Attorney Carney served Mr. Hartenstine with the divorce complaint at that

time. The divorce complaint alleged Ms. Bullock and Mr. Hartenstine were

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married at common law, and sought, inter alia, equitable distribution,

alimony, and alimony pendente lite. Based on the filing of the divorce

complaint, the court determined the matter should proceed in family court

and dismissed Mr. Hartenstine’s eviction complaint without prejudice.

On January 24, 2012, Mr. Hartenstine filed preliminary objections to

the divorce complaint, claiming the complaint failed to provide the time and

place of the alleged common-law marriage. The court granted Ms. Bullock

leave to amend, and on February 21, 2012, Attorney Carney filed an

amended divorce complaint on Ms. Bullock’s behalf. The amended divorce

complaint alleged: “The parties are married at common law on August 4,

1995[,] in Baltimore, Maryland.” (See Amended Divorce Complaint at 1 ¶ 4,

attached as Exhibit B to Mr. Hartenstine’s Complaint against Attorney Carney

and Ms. Bullock, filed 6/5/14; R.R. at 21a).

On July 20, 2012, Mr. Hartenstine filed a petition for declaratory

judgment, seeking a court ruling that no common-law marriage existed. Ms.

Bullock filed a response on August 20, 2012. The court held hearings on the

petition on June 10-11, 2013. On July 8, 2013, the family court issued

findings of fact and conclusions of law, granting Mr. Hartenstine’s request for

declaratory relief. The family court concluded, inter alia, that Ms. Bullock

failed to prove she and Mr. Hartenstine uttered the necessary words of

present intent to create a common-law marriage. (See Family Court’s

Findings of Facts and Conclusions of Law at 2 ¶ 1, attached as Exhibit D to

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Mr. Hartenstine’s Complaint against Attorney Carney and Ms. Bullock; R.R.

at 36a). Following the family court’s ruling, Mr. Hartenstine recommenced

the eviction action on August 26, 2013. The court granted Mr. Hartenstine

possession in the eviction action on September 17, 2013.

In Mr. Hartenstine’s complaint against Ms. Bullock and Attorney

Carney, filed on June 5, 2014, he alleged wrongful use of civil proceedings

(in violation of the Dragonetti Act at 42 Pa.C.S.A. § 8351 et seq.) and abuse

of process. At count one (wrongful use of civil proceedings), Mr. Hartenstine

averred, inter alia, Attorney Carney and Ms. Bullock acted without probable

cause and in a grossly negligent manner when they filed the divorce

complaint because they claimed Mr. Hartenstine and Ms. Bullock formed a

common-law marriage in a state that does not recognize common-law

marriage. At count two (abuse of process), Mr. Hartenstine asserted, inter

alia, Attorney Carney and Ms. Bullock wrongfully used the divorce action as a

tactical weapon against Mr. Hartenstine, in response to the eviction action,

to coerce Mr. Hartenstine to drop or settle the eviction action. Mr.

Hartenstine also sought punitive damages at both counts of the complaint.

On July 22, 2014, Attorney Carney filed preliminary objections based

on legal insufficiency. Regarding the wrongful use of civil proceedings count,

Attorney Carney claimed, inter alia, he had probable cause to initiate the

divorce action on behalf of Ms. Bullock where there was a “legal path” to a

finding of common-law marriage under the facts of this case, even where the

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court ultimately decided no common-law marriage existed. Attorney Carney

maintained the family court’s lengthy evaluation of the arguments and

evidence presented over the course of a two-day hearing demonstrated

Attorney Carney had some legal basis for filing the divorce action on Ms.

Bullock’s behalf. Attorney Carney averred Mr. Hartenstine’s complaint

contained no support for gross negligence. With respect to the abuse of

process count, Attorney Carney contended, inter alia, Mr. Hartenstine failed

to show Attorney Carney committed any act unauthorized by the divorce

proceeding. Attorney Carney further moved to strike the request for

punitive damages at both counts of the complaint where Mr. Hartenstine

failed to allege facts demonstrating Attorney Carney acted with malice.

The court sustained Attorney Carney’s preliminary objections on

December 19, 2014, and dismissed Mr. Hartenstine’s claims against him.

On December 23, 2014, the court entered default judgment against Ms.

Bullock for her failure to respond to the complaint and assessed damages

against her in the amount of $68,734.00. Mr. Hartenstine timely filed a

notice of appeal on January 7, 2015. On January 14, 2015, the court

ordered Mr. Hartenstine to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b); he timely complied on February 3,

2015.

Mr. Hartenstine raises the following issues for our review:

WAS THE ORDER APPEALED FROM A FINAL ORDER SUCH THAT THE PENNSYLVANIA SUPERIOR COURT HAS

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JURISDICTION TO HEAR THIS APPEAL?

DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR COMMIT AN ERROR OF LAW BY SUSTAINING A PRELIMINARY OBJECTION TO A DRAGONETTI ACT VIOLATION WHERE THE COMPLAINT PROPERLY PLED THE ABSENCE OF PROBABLE CAUSE AND [ATTORNEY CARNEY’S] GROSS NEGLIGENCE IN FILING A DIVORCE ACTION EVEN THOUGH PENNSYLVANIA LAW DID NOT RECOGNIZE THE EXISTENCE OF A COMMON LAW MARRIAGE WHERE THE ALLEGED MARRIAGE OCCURRED IN A STATE WHICH DID NOT RECOGNIZE COMMON LAW MARRIAGE AND THE MARRIAGE WAS NOT OTHERWISE RECOGNIZED?

DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR COMMIT AN ERROR OF LAW BY SUSTAINING A PRELIMINARY OBJECTION TO AN ABUSE OF PROCESS CLAIM WHERE THE COMPLAINT PROPERLY PLED THAT [ATTORNEY CARNEY] INSTITUTED AND MAINTAINED A DIVORCE ACTION FOR THE IMPROPER PURPOSE OF COERCING A SETTLEMENT IN ANOTHER UNRELATED PENDING MATTER DESPITE THE ABSENCE OF A LEGALLY RECOGNIZABLE MARRIAGE TO SUPPORT A REQUEST FOR A DIVORCE?

DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR COMMIT AN ERROR OF LAW BY SUSTAINING A PRELIMINARY OBJECTION TO A DEMAND FOR PUNITIVE DAMAGES, SINCE THE COMPLAINT SET FORTH ALLEGATIONS OF OUTRAGEOUS AND MALICIOUS CONDUCT INCLUDING THE SERVICE OF [A] LEGALLY UNSUPPORTABLE DIVORCE COMPLAINT AT AN EVICTION PROCEEDING?

(Mr. Hartenstine’s Brief at 4-5).2

In his first issue, Mr. Hartenstine argues the December 19, 2014 order

sustaining Attorney Carney’s preliminary objections resolved all claims ____________________________________________

2 For purposes of disposition, we have reordered Mr. Hartenstine’s issues.

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against Attorney Carney. Mr. Hartenstine asserts the court entered a default

judgment against Ms. Bullock on December 23, 2014, which resolved all

claims against the sole remaining defendant, so Mr. Hartenstine can now

challenge the court’s previous order sustaining Attorney Carney’s preliminary

objections. Mr. Hartenstine concludes this Court has jurisdiction in this

matter, and the appeal should proceed. We agree.

“The appealability of an order directly implicates the jurisdiction of the

court asked to review the order.” In re Estate of Considine v. Wachovia

Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009). As a result, “this Court has

the power to inquire at any time, sua sponte, whether an order is

appealable.” Id.; Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668,

673 (Pa.Super. 2007). “An appeal may be taken from: (1) a final order or

an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory order

as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission

(Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral order

(Pa.R.A.P. 313).” In re Estate of Cella, 12 A.3d 374, 377 (Pa.Super.

2010) (some internal citations omitted). Pennsylvania Rule of Appellate

Procedure 341 defines “final orders” and states:

Rule 341. Final Orders; Generally

(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.

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(b) Definition of final order. A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) is expressly defined as a final order by statute; or

(3) is entered as a final order pursuant to subdivision (c) of this rule.

(c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim [or when multiple parties are involved,] the trial court…may enter a final order as to one or more but fewer than all of the claims [and parties] only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order…that adjudicates fewer than all the claims [and parties] shall not constitute a final order. …

Pa.R.A.P. 341(a)-(c) (effective July 1, 2014).3 Thus, “[u]nder Rule 341, a

final order can be one that disposes of all the parties and all the claims, is

expressly defined as a final order by statute, or is entered as a final order

pursuant to the trial court’s determination under Rule 341(c).” Estate of

Cella, supra at 378.

“[O]rders [sustaining] preliminary objections and disposing of only

some but not all of the underlying parties…are interlocutory and ____________________________________________

3 This version of Rule 341 was in effect when Mr. Hartenstine filed the notice of appeal in this case. The current version of Rule 341 omits the prior subsection (b)(2), which was rescinded. The remainder of Rule 341(a)-(c) is substantially the same. See Pa.R.A.P. 341(a)-(c) (amended December 14, 2015; effective April 1, 2016).

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unappealable.” Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa.Super. 2003).

When a subsequent order or judgment disposes of the claims as to the

remaining party, however, the prior interlocutory order becomes “final” and

appealable for purposes of Rule 341. See, e.g., Strausser v. PRAMCO,

III, 944 A.2d 761 (Pa.Super. 2008) (explaining that where multiple

defendants in single action are removed from case in piecemeal fashion by

separate orders sustaining those defendants’ preliminary objections, each

order sustaining preliminary objections becomes appealable when suit is

resolved against final defendant); B.K. ex rel. S.K. v. Chambersburg

Hosp., 834 A.2d 1178 (Pa.Super. 2003), appeal denied, 577 Pa. 705, 847

A.2d 1276 (2004) (stating in action involving multiple defendants, order

granting summary judgment as to one party becomes appealable after

disposition of claims involving remaining parties); Gutteridge v. A.P.

Green Services, Inc., 804 A.2d 643 (Pa.Super. 2002), appeal denied, 574

Pa. 748, 829 A.2d 1158 (2003) (explaining trial court order declaring case

settled as to all remaining parties renders final for purposes of Rule 341

prior summary judgments in favor of some defendants).

Instantly, on March 31, 2015, this Court issued a per curiam rule to

show cause why the appeal should not be quashed as interlocutory where

the trial court’s December 19, 2014 order sustaining Attorney Carney’s

preliminary objections did not resolve the claims against all parties. Mr.

Hartenstine responded on April 10, 2015, explaining the court’s subsequent

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entry of default judgment and damages against Ms. Bullock on December

23, 2014 resolved the claims against the last remaining defendant and

rendered the prior order final and appealable. On April 21, 2015, this Court

discharged the rule to show cause, permitted the appeal to proceed, and

advised Mr. Hartenstine that he should be prepared to discuss the

jurisdictional issue on appeal. Our review of the record confirms the court’s

December 23, 2014 entry of default judgment against Ms. Bullock resolved

all claims against the sole remaining party, and made “final” and appealable

the December 19, 2014 order sustaining Attorney Carney’s preliminary

objections. See Pa.R.A.P. 341(b)(1); Strausser, supra; B.K., supra;

Gutteridge, supra. Thus, we have no jurisdictional impediments and will

review the merits of Mr. Hartenstine’s claims.

In his second issue, Mr. Hartenstine concedes Pennsylvania recognizes

common-law marriages contracted on or before January 1, 2005, in which

the party seeking to establish common-law marriage must show an instance

where an exchange of words in the present tense was spoken with the

specific purpose to create a legal relationship of husband and wife. Mr.

Hartenstine argues that under Pennsylvania law, the validity of a marriage is

determined by the law of the place where it was celebrated; and a marriage

invalid in the state where it was purportedly formed is invalid in all other

states. Mr. Hartenstine asserts Maryland does not recognize common-law

marriage and contends Attorney Carney filed the divorce complaint on the

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fundamentally flawed premise that Mr. Hartenstine and Ms. Bullock could

have entered into a common-law marriage in a state that does not recognize

common-law marriage. Mr. Hartenstine submits Attorney Carney lacked

probable cause to file the divorce complaint because the required “words of

present intent” allegedly took place in a state that does not recognize

common-law marriage. Mr. Hartenstine highlights that the court informed

Attorney Carney during a status conference in the divorce action that

Maryland does not recognize common-law marriage, but Attorney Carney

continued to litigate the divorce action anyway. Mr. Hartenstine insists

Attorney Carney knew or should have known with the exercise of due

diligence that Maryland does not recognize common-law marriage and any

alleged common-law marriage entered into in Maryland would be invalid in

Pennsylvania.

Mr. Hartenstine also avers “conduct evidence,” including evidence of

cohabitation and reputation in the community, is insufficient to prove he and

Ms. Bullock entered into a common-law marriage because such evidence is

admissible to prove common-law marriage only where one of the parties to

the alleged marriage is unavailable to testify about the “words of present

intent.” Even if “conduct evidence” were admissible in this case, Mr.

Hartenstine contends neither the divorce complaint nor the amended divorce

complaint contained any allegation that Mr. Hartenstine and Ms. Bullock

cohabitated or had a reputation in the community as husband and wife. Mr.

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Hartenstine emphasizes the sole basis for the supposed common-law

marriage pled in the divorce complaint and amended divorce complaint was

the alleged “words of present intent” exchanged in Maryland. Mr.

Hartenstine submits he sufficiently pled in his complaint that Attorney

Carney acted without probable cause in filing the divorce action on behalf of

Ms. Bullock for the wrongful purpose of obtaining a settlement in the

underlying eviction action. Alternatively, Mr. Hartenstine argues Attorney

Carney was grossly negligent in filing the divorce action where he knew or

should have known as a family law practitioner that the alleged common-law

marriage formed in Maryland could not be valid in Pennsylvania. Mr.

Hartenstine concludes the trial court committed legal error when it sustained

Attorney Carney’s preliminary objections to count one of the complaint for

wrongful use of civil proceedings, and this Court must reverse the order

sustaining preliminary objections. We disagree.

The relevant scope and standard of review in examining a challenge to

an order sustaining preliminary objections in the nature of a demurrer are as

follows:

Our review of a trial court’s sustaining of preliminary objections in the nature of a demurrer is plenary. Such preliminary objections should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. We will reverse a trial court’s decision to sustain preliminary objections only if the trial court has committed an error of law or an abuse of discretion.

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All material facts set forth in the complaint as well as all inferences reasonably [deducible] therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Regarding a demurrer, this Court has held:

A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint.

Where the complaint fails to set forth a valid cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super. 2008) (emphasis in

original) (internal citations omitted).

Pennsylvania’s Dragonetti Act provides in pertinent part, 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:

(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

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(2) the proceedings have terminated in favor of the person against whom they are brought.

* * *

§ 8352. Existence of probable cause

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 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.

§ 8354. Burden of proof

In an action brought pursuant to this subchapter the plaintiff has the burden of proving, when the issue is properly raised, that:

(1) The defendant has procured, initiated or continued the civil proceedings against him.

(2) The proceedings were terminated in his favor.

(3) The defendant did not have probable cause for his action.

(4) The primary purpose for which the proceedings were brought was not that of securing the proper

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discovery, joinder of parties or adjudication of the claim on which the proceedings were based.

(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages).

42 Pa.C.S.A. §§ 8351(a); 8352; 8354. To withstand a demurrer, a wrongful

use of civil proceedings complaint must at least include the factual

allegations required to carry the burden of proof set forth at Section 8354.

Gentzler v. Atlee, 660 A.2d 1378, 1381 (Pa.Super. 1995), appeal denied,

543 Pa. 694, 670 A.2d 142 (1995). At this stage in the proceedings,

however, the questions of whether the facts alleged in the complaint can be

proved or whether the plaintiff actually suffered any damages are not before

us; we must simply decide whether the plaintiff’s allegations make out a

cause of action under the applicable law. Id. “The existence of probable

cause is a matter of law for the court to decide and is a proper objection for

a defendant…to raise on preliminary objections.” Id. at 1382.

“A party has probable cause to bring an action when he ‘reasonably

believes’ in the facts on which it is based and in the viability of the legal

theory under which it is brought.” Id. (emphasis in original). In other

words:

If [the defendant] had a reasonable belief in the facts on which the claim was based and in the validity of the claim under existing or developing law, then [the plaintiff’s] cause of action for wrongful use cannot succeed. On the other hand, if [the defendant] lacked reasonable belief in the facts alleged or the validity of the claim under existing or developing law, and made the claim for an improper purpose, then [the plaintiff’s] cause of action for wrongful

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use may proceed.

Id. Additionally:

Insofar as attorney liability is concerned, as long as an attorney believes that there is a slight chance that his client’s claims will be successful, it is not the attorney’s duty to prejudge the case. Lawyers can safely act upon the facts stated by their clients.

That being said, the plaintiff in a wrongful use of civil proceedings action need not obtain the defendant’s outright ‘confession’ of improper purpose; an improper purpose may be inferred where the action is filed without justification. Thus, a claim for wrongful use of civil proceedings will lie if the trier of fact could reasonably conclude that the defendant initiated the underlying lawsuit without probable cause.

Perelman v. Perelman, 125 A.3d 1259, 1264 (Pa.Super. 2015) (internal

citations and quotation marks omitted). “[A]n attorney is entitled to rely in

good faith upon the statement of facts made to him by his client, and is not

under a duty to institute an inquiry for the purpose of verifying his

statement before giving advice thereon.” Kit v. Mitchell, 771 A.2d 814,

822 (Pa.Super. 2001), appeal dismissed as improvidently granted, 577 Pa.

69, 842 A.2d 368 (2004). “Lawyers can safely act upon facts stated by their

clients. They do not incur liability to third persons for filing civil proceedings

when the evidence of those facts is later found not credible by the court or

jury whose duty it is to try the case.” Meiksin v. Howard Hanna Co.,

Inc., 590 A.2d 1303, 1307 (Pa.Super. 1991), appeal denied, 528 Pa. 644,

600 A.2d 196 (1991). See also Kit, supra (affirming grant of judgment

notwithstanding verdict in favor of attorney on plaintiff’s wrongful use of civil

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proceedings claim; attorney had probable cause to seek enforcement of child

support order on behalf of his client, despite attorney’s knowledge that

plaintiff was not child’s biological father, under then-existing legal theories of

res judicata and paternity by estoppel). Compare Korn v. Epstein, 727

A.2d 1130 (Pa.Super. 1999), appeal denied, 560 Pa. 707, 743 A.2d 921

(1999) (affirming verdict against attorney for wrongful use of civil

proceedings, where attorney had pursued individual lawyers of law firm for

debt collection on behalf of court-reporter client; attorney lacked probable

cause to sue individual lawyers in absence of written and signed agreement

by lawyers to assume personal liability for law firm’s debt; attorney had

made several comments to individual lawyers about settling debt after

attorney filed suit; trial court could reasonably infer attorney’s pursuit of

action amounted to improper effort to extract settlement from individual

lawyers to pay debt); Gentzler, supra (reversing order sustaining

attorney’s preliminary objections to plaintiff’s wrongful use of civil

proceedings complaint, where attorney had filed lack of informed consent

and negligence complaint against plaintiff on behalf of attorney’s client

without probable cause or in grossly negligent manner; attorney’s lack of

informed consent claim had no legal support where plaintiff was treating

physician of attorney’s client and did not actually perform surgical procedure

at issue which required obtaining client’s informed consent; attorney’s

negligence claim also lacked legal support where attorney knew prior to

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filing suit plaintiff was not responsible for ordering administration of blood

products to client).

“The presence of probable cause, however, does not necessarily defeat

the entire cause of action for wrongful use of civil proceedings, as the clear

language of [42 Pa.C.S.A. §] 8351 permits a cause of action to be based on

gross negligence or lack of probable cause.” Keystone Freight Corp. v.

Stricker, 31 A.3d 967, 973 (Pa.Super. 2011) (emphasis in original). “Gross

negligence is defined, inter alia, as a lack of slight diligence or care, or a

conscious, voluntary act or omission in reckless disregard of a legal duty and

of the consequences to another party…” Hart v. O’Malley, 781 A.2d 1211,

1218 (Pa.Super. 2001). “Gross negligence has also been described as the

want of even scant care and the failure to exercise even that care which a

careless person would use.” Id. (internal citation and quotation marks

omitted). See also Keystone Freight, supra (affirming summary

judgment in favor of executrix and her attorneys in wrongful use of civil

proceedings suit; executrix and her attorneys had probable cause and did

not exercise gross negligence in bringing wrongful death/survival action

against trucking company, where they presented carefully reasoned

arguments supported by expert testimony for their claim of trucking

company’s negligence; trucking company also failed to produce any evidence

that executrix and attorneys commenced action for improper purpose).

Section 1103 of the Domestic Relations Code discusses the viability of

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common-law marriage in Pennsylvania and provides:

§ 1103. Common-law marriage

No common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.

23 Pa.C.S.A. § 1103. Prior to its abolition, “[a] common-law marriage

[could] only [have been] created by an exchange of words in the present

tense, spoken with the specific purpose that the legal relationship of

husband and wife is created by such exchange.” Bell v. Ferraro, 849 A.2d

1233, 1235 (Pa.Super. 2004). “The burden to prove a common-law

marriage rests on the proponent of the marriage and such a claim must be

reviewed with great scrutiny.” Id. See also In re Estate of Rees, 480

A.2d 327 (Pa.Super. 1984) (explaining that words in praesenti are usually

required to establish common-law marriage relationship). “The common-law

marriage contract does not require any specific form of words, and all that is

essential is proof of an agreement to enter into the legal relationship of

marriage at the present time.” Staudenmayer v. Staudenmayer, 552 Pa.

253, 262, 714 A.2d 1016, 1020 (1998).

Generally, words in the present tense are required to prove common-law marriage. Because common-law marriage cases arose most frequently because of claims for a putative surviving spouse’s share of an estate, however, we developed a rebuttable presumption in favor of a common-law marriage where there is an absence of testimony regarding the exchange of verba in praesenti. When applicable, the party claiming a common-law

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marriage who proves: (1) constant cohabitation; and, (2) a reputation of marriage which is not partial or divided but is broad and general, raises the rebuttable presumption of marriage. Constant cohabitation, however, even when conjoined with general reputation are not marriage, they are merely circumstances which give rise to a rebuttable presumption of marriage.

Id. at 262-63, 714 A.2d at 1020-21 (internal citations, quotation marks, and

footnotes omitted).

The rule permitting a court to find common-law marriage based on

reputation and cohabitation alone is one of necessity, applied only in cases

where other proof is unavailable. Estate of Rees, supra. “The ‘necessity’

that would require the introduction of evidence concerning cohabitation and

reputation of marriage is the inability to present direct testimony regarding

the exchange of verba in praesenti.” Staudenmayer, supra at 263, 714

A.2d at 1021. See also 20 Pa.C.S.A. § 2209 (stating: “A person who is or

claims to be the surviving spouse shall be a competent witness as to all

matters pertinent to his rights under this chapter other than the creation of

his status as the surviving spouse”); Estate of Stauffer, 504 Pa. 626, 476

A.2d 354 (1984) (holding Dead Man’s Act prohibited purported wife’s

testimony regarding exchange of “words of present intent” with her alleged

common-law husband). In other words, the rebuttable presumption in favor

of common-law marriage based on sufficient proof of cohabitation and

reputation of marriage is permitted as a remedial measure, where the

parties are otherwise unable to testify regarding the necessary “words of

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present intent.” Staudenmayer, supra at 264, 714 A.2d at 1021.

However, where the parties are available to testify regarding verba in praesenti, the burden rests with the party claiming a common-law marriage to produce clear and convincing evidence of the exchange of words in the present tense spoken with the purpose of establishing the relationship of husband and wife, in other words, the marriage contract. In those situations, the rebuttable presumption in favor of a common-law marriage upon sufficient proof of constant cohabitation and reputation for marriage, does not arise.

By requiring proof of verba in praesenti where both parties are able to testify, we do not discount the relevance of evidence of constant cohabitation and reputation of marriage. When faced with contradictory testimony regarding verba in praesenti, the party claiming a common-law marriage may introduce evidence of constant cohabitation and reputation of marriage in support of his or her claim. We merely hold that if a putative spouse who is able to testify and fails to prove, by clear and convincing evidence, the establishment of the marriage contract through the exchange of verba in praesenti, then that party has not met its “heavy” burden to prove a common- law marriage, since he or she does not enjoy any presumption based on evidence of constant cohabitation and reputation of marriage.

Id. (internal footnote omitted) (holding appellant was not entitled to

rebuttable presumption in favor of common-law marriage through evidence

of constant cohabitation and reputation of marriage where she was available

to testify, and did testify (albeit unconvincingly), concerning exchange of

“words of present intent” between parties; thus, appellant failed to meet

burden to prove common-law marriage).

In general, the law of the state in which a marriage is celebrated

governs the validity of the marriage. Jewett v. Jewett, 175 A.2d 141, 142

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(Pa.Super. 1961). Ordinarily, a marriage valid in the state where it is

contracted is valid everywhere. Sullivan v. American Bridge Co., 176 A.

24, 25 (Pa.Super. 1935). The corollary of the general rule (if a marriage is

invalid in the state where it is contracted then it is invalid everywhere),

however, has been subject to some exceptions. See id. (affirming grant of

workers’ compensation benefits to claimant where claimant proved she

entered into common-law marriage with decedent; notwithstanding

claimant’s and decedent’s exchange of “words of present intent” in

Maryland, which does not recognize common-law marriage, immediately

following exchange of words, claimant and decedent constantly cohabitated

together in New Jersey and Pennsylvania, during time when those states

recognized common-law marriage, and held themselves out to community as

husband and wife; evidence presented made clear that decedent recognized

and regarded claimant as his wife).4 Compare Cooney v. W.C.A.B., 94

____________________________________________

4 In Sullivan, this Court relied on the United States Supreme Court decision in Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865 (1907) (holding decedent and putative spouse entered into common-law marriage in New Jersey; following decedent and putative spouse’s invalid marriage ceremony in Virginia for lack of proper license, they continuously cohabitated as husband and wife and uniformly held themselves out as sustaining that relation; evidence made clear that decedent recognized putative spouse as his wife and held her out as such; decedent and putative spouse’s conduct towards each other while they lived in New Jersey was equivalent, in law, to declaration by each that they did, and during their joint lives were to, occupy relation of husband and wife; such declaration was as effective to establish status of marriage in New Jersey, as if it had been made by “words of present intent” after they became domiciled in that state).

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A.3d 425 (Pa.Cmwlth. 2014), appeal denied, ___ Pa. ___, 109 A.3d 680

(2015) (affirming denial of workers’ compensation benefits to claimant

where she failed to prove she entered into common-law marriage with

decedent; decedent and claimant exchanged “words of present intent” in

2003 in Wyoming, which does not recognize common-law marriage; when

claimant and decedent moved to Pennsylvania in 2009 (cohabitating and

holding themselves out as “husband and wife”), common-law marriage was

already abolished; thus, decedent and claimant failed to perform acts which

would satisfy proof of common-law marriage while in state that recognized

common-law marriage at that time).

Instantly, Mr. Hartenstine’s underlying eviction action against Ms.

Bullock was scheduled to be heard on October 3, 2011. On that date,

Attorney Carney appeared in court as counsel for Ms. Bullock and served Mr.

Hartenstine with a divorce complaint. The divorce complaint alleged Ms.

Bullock and Mr. Hartenstine were married at common law, and sought, inter

alia, equitable distribution, alimony, and alimony pendente lite. Based on

the filing of the divorce complaint, the court determined the matter should

proceed in family court and dismissed Mr. Hartenstine’s eviction complaint

without prejudice.

On January 24, 2012, Mr. Hartenstine filed preliminary objections to

the divorce complaint, claiming the complaint failed to provide the time and

place of the alleged common-law marriage. The court granted Ms. Bullock

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leave to amend, and on February 21, 2012, Attorney Carney filed an

amended divorce complaint on Ms. Bullock’s behalf. The amended divorce

complaint alleged: “The parties are married at common law on August 4,

1995[,] in Baltimore, Maryland.” (See Amended Divorce Complaint at 1 ¶ 4,

attached as Exhibit B to Mr. Hartenstine’s Complaint against Attorney Carney

and Ms. Bullock; R.R. at 21a.)

On April 25, 2012, Ms. Bullock gave deposition testimony that on

August 4, 1995, she and Mr. Hartenstine exchanged “words of present

intent” at the Omni Hotel as follows: “We were sitting on the bed. We were

holding hands and [Mr. Hartenstine] said, we are married, you are my wife.

And I said, I will always love you. You are my husband.” (See Deposition

testimony of Ms. Bullock at 6, attached as Exhibit C to Mr. Hartenstine’s

Complaint against Attorney Carney and Ms. Bullock; R.R. at 31a.) Ms.

Bullock further testified that she and Mr. Hartenstine “lived together as

husband and wife” since 1991, and that Ms. Bullock’s daughter “assumed”

Ms. Bullock and Mr. Hartenstine were married.5 (Id. at 9; R.R. at 34a.)

Following a two-day hearing on June 10-11, 2013,6 the family court

issued findings of fact and conclusions of law on July 8, 2013. Specifically,

5 Exhibit C to Mr. Hartenstine’s Complaint against Attorney Carney and Ms. Bullock is only a brief excerpt of Ms. Bullock’s deposition testimony. 6 The certified record does not contain the notes of testimony from these hearings.

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the family court found:

FINDINGS OF FACT

1. The parties traveled to Baltimore, Maryland for [Mr. Hartenstine’s] birthday with [Ms. Bullock’s] daughter on or about August 4, 1995.

2. [Ms. Bullock] contends that while they were in a hotel room, [Mr. Hartenstine] stated to her “we are married, you are my wife” to which [Ms. Bullock] replied “I will always love you, you are my husband.”

3. Several of [Mr. Hartenstine’s] close friends testified at the time of [the] hearing that [Ms. Bullock] and [Mr. Hartenstine] never referred to each other as husband and wife in the presence of close friends or public events.

4. Conversely, [Ms. Bullock and Ms. Bullock’s] daughter testified that the parties introduced each other as husband and wife at events.

5. [Ms. Bullock’s] daughter testified that she believed [Ms. Bullock] and [Mr. Hartenstine] were married since [Mr. Hartenstine] gave [Ms. Bullock] greeting cards using the word “wife” and their behavior in living together and sharing household and familial responsibilities. In fact, [Ms. Bullock’s] daughter believed [Mr. Hartenstine] was her biological father.

6. [Ms. Bullock] never told anyone she was married.

7. [Mr. Hartenstine] gave [Ms. Bullock] a wedding band sometime after 1995 which [Ms. Bullock] wore until 2008.

8. One of [Mr. Hartenstine’s] friends testified that he never saw [Ms. Bullock] wear her wedding band. (However, this [c]ourt must countenance this with the fact that this friend saw [Ms. Bullock] on camping trips where jewelry [is] not customarily worn for safety purposes).

9. The parties lived together from 1995-2008.

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10. During the parties’ relationship, [Ms. Bullock] mostly stayed on the parties’ farm and not with [Mr. Hartenstine].

11. The parties’ former housekeeper testified that she never saw any of [Ms. Bullock’s] clothes in the parties’ residence.

12. The parties filed as single on their tax returns from the years 1996 to 1997.

13. The parties filed joint tax returns from the years 1998 to 2008.

(See Family Court’s Findings of Facts and Conclusions of Law at 2, attached

as Exhibit D to Mr. Hartenstine’s Complaint against Attorney Carney and Ms.

Bullock; R.R. at 36a.) Ultimately, the family court concluded Ms. Bullock

failed to prove by clear and convincing evidence the existence of a valid

common-law marriage.

Significantly, at the time Attorney Carney initiated the divorce action

on behalf of Ms. Bullock, he relied on information from his client, inter alia:

(1) Ms. Bullock and Mr. Hartenstine exchanged “words of present intent” on

August 4, 1995, in Baltimore, Maryland; (2) Ms. Bullock and Mr. Hartenstine

lived together in Pennsylvania as husband and wife since 1991, and

continued to live together in Pennsylvania after the exchange of words in

1995; (3) Ms. Bullock’s daughter believed Mr. Hartenstine and Ms. Bullock

were married and thought Mr. Hartenstine was her biological father; (4) Mr.

Hartenstine gave Ms. Bullock a wedding ring sometime after 1995; and (5)

Mr. Hartenstine and Ms. Bullock held themselves out as husband and wife at

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events. Attorney Carney was entitled to rely in good faith on the facts

disclosed by his client when he filed the divorce action, and to proceed with

the divorce action so long as he believed the common-law marriage theory

had even a slight chance of success. See Perelman, supra; Kit, supra;

Meiksin, supra.

Notwithstanding Mr. Hartenstine’s and Ms. Bullock’s alleged exchange

of “words of present intent” in a state that does not recognize common-law

marriage, under our Court’s analysis in Sullivan, Attorney Carney

reasonably believed a marriage contracted in a state that does not recognize

common-law marriage might be valid in Pennsylvania under the

circumstances described by his client. See 42 Pa.C.S.A. § 8352(1);

Sullivan, supra. In addition to relying on Sullivan, in his post-hearing

letter brief submitted in the divorce action, Attorney Carney cited numerous

cases from other jurisdictions to support his position. 7 (See Post-Hearing

Letter Brief at 1-3, attached as Exhibit C to Attorney Carney’s Preliminary

Objections, filed 7/22/14; R.R. at 93a-95a.) According to the family court’s

findings of fact, Ms. Bullock presented evidence that she and Mr. Hartenstine

lived together as husband and wife in Pennsylvania prior to the abolition of

common-law marriage in 2005, and enjoyed a reputation in the community

7 Attorney Carney also cites and relies on Cooney in his appellate brief. The Commonwealth Court had not yet decided Cooney at the time Attorney Carney filed the divorce action on behalf of Ms. Bullock.

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of husband and wife during that time.8 These facts might have been

sufficient to establish common-law marriage under the law if believed by the

fact-finder. See 23 Pa.C.S.A. § 1103; Sullivan, supra.

Likewise, the record does not indicate a complete lack of diligence by

Attorney Carney or the failure to exercise the care even a careless person

would use in initiating the divorce action. See Hart, supra. To the

contrary, the record shows Attorney Carney presented during the divorce

proceedings careful arguments based on a reasonable interpretation of the

law. See Keystone Freight, supra. Thus, Mr. Hartenstine cannot show

Attorney Carney acted without probable cause or was grossly negligent in ____________________________________________

8 Ordinarily, testimony/evidence concerning Ms. Bullock’s and Mr. Hartenstine’s cohabitation and reputation in the community would have been inadmissible where both parties to the divorce action were able to testify about the “words of present intent.” See Staudenmayer, supra; Estate of Rees, supra. If Mr. Hartenstine disputed Ms. Bullock’s testimony about the “words of present intent,” however, the court could have considered cohabitation/reputation testimony. See Staudenmayer, supra. Because the certified record does not contain the notes of testimony from the divorce action hearings, we are unable to verify whether Mr. Hartenstine disputed Ms. Bullock’s allegations about the “words of present intent” or even objected to her testimony/evidence concerning cohabitation/reputation. It is an appellant’s responsibility to ensure the certified record contains all relevant notes of testimony. See Kessler v. Broder, 851 A.2d 944 (Pa.Super. 2004), appeal denied, 582 Pa. 676, 868 A.2d 1201 (2005) (explaining it remains appellant’s responsibility to ensure that complete record is produced for appeal; appellant’s failure to ensure certified record contains sufficient information to conduct proper review may constitute waiver of issues). To the extent Mr. Hartenstine complains on appeal the family court should not have considered evidence of cohabitation/reputation, that claim is not properly before this Court and we decline to comment on the family court’s admission of evidence in the absence of a complete record from those proceedings. See id.

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bringing or continuing the divorce claim on behalf of Ms. Bullock. See id.

See also Kit, supra. Compare Korn, supra; Gentzler, supra.

Therefore, Mr. Hartenstine’s second issue on appeal merits no relief.

In his third issue, Mr. Hartenstine argues Attorney Carney initiated the

divorce proceedings in response to the eviction proceedings, to coerce Mr.

Hartenstine into settling or dropping the eviction action. Mr. Hartenstine

asserts Attorney Carney’s decision to serve Mr. Hartenstine with the divorce

complaint at the hearing scheduled in the eviction proceedings was a

calculated move designed to coerce settlement. Mr. Hartenstine emphasizes

that his personal relationship with Ms. Bullock ended more than ten years

before Attorney Carney initiated the divorce action.9 Mr. Hartenstine claims

Ms. Bullock’s attempt to reach an agreement with Mr. Hartenstine after he

began the initial eviction action demonstrates the divorce action is meritless,

where Ms. Bullock did not contend she was Mr. Hartenstine’s common-law

wife during those attempted negotiations. Mr. Hartenstine insists Attorney

Carney’s attempt to extract a settlement in the eviction action by filing the

divorce complaint constituted a perversion of legal process. Mr. Hartenstine

maintains he suffered significant financial harm in defending the divorce

action, as well as physical and emotional stress. Mr. Hartenstine submits he

sufficiently pled in his complaint that Attorney Carney used legal process ____________________________________________

9 This averment contradicts Ms. Bullock’s contention that the relationship ended in 2008.

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primarily to accomplish a purpose for which it was not intended, and that Mr.

Hartenstine suffered harm as a result. Mr. Hartenstine concludes the trial

court erred when it sustained Attorney Carney’s preliminary objections to

count two of the complaint for abuse of process, and this Court must reverse

the order sustaining preliminary objections. We agree.

Pennsylvania law defines a cause of action for abuse of process as

The tort of “abuse of process” is defined as the use of legal process against another primarily to accomplish a purpose for which it is not designed. To establish a claim for abuse of process it must be shown that the defendant (1) used a legal process against the plaintiff; (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff. This tort differs from that of wrongful use of civil proceedings in that, in the former, the existence of probable cause to employ the particular process for its intended use is immaterial. The gravamen of abuse of process is the perversion of the particular legal process for a purpose of benefit to the defendant, which is not an authorized goal of the procedure. In support of this claim, the [plaintiff] must show some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process...; and 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.

Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super. 1998), appeal denied,

556 Pa. 711, 729 A.2d 1130 (1998) (internal citations and quotation marks

omitted).

The gravamen of the misconduct for which the liability stated…is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil

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proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. Therefore, it is immaterial that the process was properly issued, that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose, or even that the proceedings terminated in favor of the person instituting or initiating them. The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed….

Rosen v. American Bank of Rolla, 627 A.2d 190, 192 (Pa.Super. 1993)

(internal citations omitted). “Abuse of process is, in essence, the use of

legal process as a tactical weapon to coerce a desired result that is not the

legitimate object of the process.” Werner v. Plater-Zyberk, 799 A.2d 776,

785 (Pa.Super. 2002), appeal denied, 569 Pa. 722, 806 A.2d 862 (2002).

The classic example [of abuse of process] is the initiation of a civil proceeding to coerce the payment of a claim completely unrelated to the cause of action sued upon. It is not enough that the defendant had bad or malicious intentions or that the defendant acted from spite or with an ulterior motive. Rather, there must be an act or threat not authorized by the process, or the process must be used for an illegitimate aim such as extortion, blackmail, or to coerce or compel the plaintiff to take some collateral action.

Al Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 192 (Pa.Super.

1994) (internal citations and quotation marks omitted).

Instantly, Mr. Hartenstine alleged in his complaint at count two:

44. [Mr. Hartenstine] incorporates the foregoing paragraphs as if set forth at length herein.

45. As set forth more fully above, [Ms.] Bullock, through [Attorney] Carney, filed a Divorce Complaint alleging that a common-law marriage was formed in a

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state that does not recognize common-law marriage.

[46.] [Ms. Bullock and Attorney Carney] wrongfully used the Divorce Action as a tactical weapon against [Mr.] Hartenstine in response to the Eviction Action in an attempt to coerce [Mr.] Hartenstine into dropping the Eviction Action or making a monetary settlement.

[47.] [Ms. Bullock and Attorney Carney] acted maliciously and outrageously, and their conduct warrants the imposition of punitive damages.

[48.] [Mr.] Hartenstine suffered significant emotional distress over the nearly two year period which the Divorce Action spanned and is entitled to emotional damages.

[49.] [Mr.] Hartenstine suffered substantial damages as follows:

a. The payment of $56,464 in attorney’s fees;

b. Lost property rental from January 1, 2010 to September 17, 2013 of $18,400;

c. Lost refinancing opportunity of $5,000;

d. Forced liquidation of stock costing him $17,000 due to an untimely sale and tax payment;

e. Mental pain and anguish that [led] to severe dental problems costing $12,000;

f. Emotional pain that interfered with his personal relationships.

(See Mr. Hartenstine’s Complaint against Attorney Carney and Ms. Bullock

at 10-11 ¶¶ 44-49; R.R. at 12a-13a.)10 The Complaint makes clear Mr.

Hartenstine alleged that Attorney Carney, acting on behalf of Ms. Bullock: ____________________________________________

10 Some of the paragraph formatting in the complaint is out of order.

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(1) used legal process against Mr. Hartenstine by filing a divorce complaint

against him on behalf of Ms. Bullock; (2) primarily to coerce Mr. Hartenstine

to drop or settle the underlying eviction action against Ms. Bullock; and (3)

specific harm, including but not limited to, emotional distress, lost property

rental revenue, and attorney’s fees. See id.; Shiner, supra.

At this early stage in the proceedings, we must accept all facts in the

complaint as true. See Lerner, supra. The facts as alleged in Mr.

Hartenstine’s complaint, if true, could entitle him to relief on his abuse of

process claim against Attorney Carney, where Mr. Hartenstine specifically

pled that Attorney Carney proceeded in the divorce action with the

illegitimate aim to coerce or compel Mr. Hartenstine to drop or settle the

underlying eviction action. See Werner, supra; Al Hamilton

Contracting, supra. Our determination that Attorney Carney had probable

cause to initiate the divorce action is immaterial to whether Attorney Carney

committed abuse of process by continuing with the divorce action for an

illegitimate purpose. See Rosen, supra. Based on Mr. Hartenstine’s

allegations in the complaint, we cannot say the denial of relief on his abuse

of process claim is so clear and free of doubt to sustain Attorney Carney’s

preliminary objections. See Lerner, supra. Accordingly, we reverse that

part of the trial court’s order sustaining Attorney Carney’s preliminary

objections with respect to Mr. Hartenstine’s abuse of process claim and

remand for further proceedings on that claim.

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In his fourth issue, Mr. Hartenstine argues Attorney Carney specializes

in the practice of family law, and he should have known a marriage contract

between Mr. Hartenstine and Ms. Bullock could not exist under the law

governing common-law marriage. Mr. Hartenstine reiterates that Attorney

Carney instituted, maintained, and prosecuted the divorce action for the

sole, illegitimate purpose of forcing Mr. Hartenstine to settle or drop the

eviction action. Mr. Hartenstine contends Attorney Carney’s actions

constitute outrageous and malicious conduct warranting punitive damages.

Mr. Hartenstine concedes that a request for punitive damages is a derivative

claim based on the success or failure of his wrongful use of civil proceedings

and abuse of process claims. Mr. Hartenstine concludes this Court must

reverse the trial court’s order sustaining Attorney Carney’s preliminary

objections and reinstate Mr. Hartenstine’s claim for punitive damages at

both counts of the complaint. We disagree.

The Dragonetti Act provides for specific damages:

§ 8353. Damages

When the essential elements of an action brought pursuant to this subchapter have been established as provided in section 8351 (relating to wrongful use of civil proceedings), the plaintiff is entitled to recover for the following:

(1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings.

(2) The harm to his reputation by any defamatory

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matter alleged as the basis of the proceedings.

(3) The expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings.

(4) Any specific pecuniary loss that has resulted from the proceedings.

(5) Any emotional distress that is caused by the proceedings.

(6) Punitive damages according to law in appropriate cases.

42 Pa.C.S.A. § 8353.

“Punitive damages are, by definition, penal in nature, and not for the

purpose of providing additional compensation.” Hart, supra at 1217.

Rather, “punitive damages are an ‘extreme remedy’ available only in the

most exceptional circumstances.” Doe v. Wyoming Valley Health Care

System, Inc., 987 A.2d 758, 768 (Pa.Super. 2009).

Punitive damages may be appropriately awarded only when the plaintiff has established that the defendant has acted in an outrageous fashion due to either the defendant’s evil motive or his reckless indifference to the rights of others. A defendant acts recklessly when his conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent. Thus, a showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed. Rather, the plaintiff must adduce evidence which goes beyond a showing of negligence, evidence sufficient to establish that the defendant’s acts amounted to intentional, willful, wanton or reckless conduct….

Id. In determining whether punitive damages are warranted, “we must

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analyze whether the complaint’s allegations establish that the actor actually

knew or had reason to know of facts which created a high risk of physical

harm to plaintiff. Further, the defendant must have proceeded to act in

conscious disregard of or indifference to that risk.” Field v. Philadelphia

Elec. Co., 565 A.2d 1170, 1182 (Pa.Super. 1989) (explaining imposition of

punitive damages is appropriate only where defendant’s conduct is

egregious; reversing order sustaining preliminary objections to claim for

punitive damages where complaint alleged, inter alia, defendant deliberately

operated nuclear plant in such manner that plaintiff was exposed to

dangerous levels of radiation, defendant lied to plaintiff about his potential

exposure to radiation, defendant deliberately exposed plaintiff to dangerous

levels of radiation again several months later, and defendant caused plaintiff

to be fired after he reported defendant’s actions to nuclear regulatory

commission).

Instantly, Mr. Hartenstine’s request for punitive damages derived from

his wrongful use of civil proceedings and abuse of process claims. The trial

court found both claims were legally insufficient, so the court sustained

Attorney Carney’s preliminary objections to the claim for punitive damages

based on that finding. Due to our disposition regarding Mr. Hartenstine’s

wrongful use of civil proceedings claim, we affirm the trial court’s order

sustaining Attorney Carney’s preliminary objections to the claim for punitive

damages at count one of the complaint.

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Regarding Mr. Hartenstine’s abuse of process claim at count two, Mr.

Hartenstine does not allege facts in his complaint which rise to the level of

conduct warranting imposition of punitive damages. (See Mr. Hartenstine’s

Complaint against Attorney Carney and Ms. Bullock at 10-11 ¶¶ 44-49; R.R.

at 12a-13a.) While Mr. Hartenstine describes Attorney Carney’s conduct as

“outrageous” and “malicious,” he does not plead facts demonstrating

Attorney Carney’s actions amounted to willful, wanton or reckless conduct.

See Doe, supra. Compare Field, supra. Therefore, the extreme remedy

of punitive damages is improper under the facts alleged at count two of the

complaint. See Doe, supra; Hart, supra; Field, supra. Accordingly, we

affirm the court’s order sustaining Attorney Carney’s preliminary objections

to the count for wrongful use of civil proceedings and for punitive damages

at both counts of the complaint; we reverse the trial court’s order sustaining

Attorney Carney’s preliminary objections to the abuse of process count and

remand for further proceedings on that count of the complaint against

Attorney Carney.

Judgment affirmed in part and reversed in part. Case remanded for

further proceedings. Jurisdiction is relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/3/2016

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