J-A24020-16

                                   2017 PA Super 34



P.J.A.                                              IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

H.C.N.

                            Appellee                     No. 3199 EDA 2015


               Appeal from the Order Entered September 18, 2015
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2014-C-3694


BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION PER CURIAM:                                 FILED FEBRUARY 13, 2017

         P.J.A. appeals from the order entered September 18, 2015, in the

Court of Common Pleas of Lehigh County, sustaining the preliminary

objections of H.C.N. and dismissing P.J.A.’s amended complaint with

prejudice. P.J.A.’s amended complaint set forth an abuse of process action

and a “Dragonetti” action.1 P.J.A. claims the trial court erred in (1) holding
____________________________________________


1
 “Abuse of process is a state common law claim. However, allegations of
malicious prosecution invoke Pennsylvania’s statutory law in the form of the
wrongful use of civil proceedings statute or ‘Dragonetti Act.’ §§ 42 Pa.C.S.A.
8351-8355.” Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super.
2002).

         An action for wrongful use of civil proceedings differs from an
         action for abuse of process. The gist of an action for abuse of
         process is the improper use of process after it has been issued,
         that is, a perversion of it. Malicious use of civil process has to do
         with the wrongful initiation of such process. Wrongful use of civil
(Footnote Continued Next Page)
J-A24020-16



that P.J.A.’s abuse of process claim was barred by the statute of limitations,

(2) deciding, at the preliminary objection stage, the factual question of

whether P.J.A.’s abuse of process claim adequately pleaded H.C.N.’s

improper purpose, and (3) concluding that P.J.A.’s Dragonetti claim failed to

satisfy the element of a termination in his favor in the underlying

proceedings. See P.J.A.’s Brief at 4. Based upon the following, we affirm.

      The trial court has summarized the background of this case, as

follows:

      The parties married in February of 2006. Their marriage lasted
      until March of 2007, at which time they separated and initiated
      divorce proceedings.      There is one child born from their
      marriage, [Child], born in August of 2006.

      From March of 2007 to the present, the parties have continually
      engaged in extraordinarily contentious litigation in their custody
      action, Lehigh County Case No. 2007-FC-0427. Throughout the
      preceding eight years, the parties demonstrated a consistent
      inability to meaningfully co-parent their mutual child, leading to
      countless custody petitions, petitions for special relief, and
      allegations of contempt between the parties. Both parties
      continuously call on the courts to make determinations about all
      major aspects of [Child’s] life, including, inter alia, religious
      affiliation and training, daycare, selection of an appropriate
      school, sports, and whether and under what circumstances the
      child can ride the school bus. Because of the ongoing series of
      petitions and court appearances, both parties have spent
      innumerable hours in court engaging in protracted hearings.
                       _______________________
(Footnote Continued)

      proceedings is a tort which arises when a person institutes civil
      proceedings with a malicious motive and lacking probable cause.

Sabella v. Milides, 992 A.2d 180, 187-88 (Pa. Super. 2010) (quotations
and citations omitted).



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J-A24020-16


     They have also incurred significant legal costs through counsel
     fees, filing fees, and their presence in court as it impacts upon
     their respective careers.

     In the instant litigation, [P.J.A.] initiated this matter by filing a
     pro se Writ of Summons on November 17, 2014. He filed a pro
     se complaint against [H.C.N.] on December 31, 2014 alleging
     Abuse of Process and Wrongful Use of Civil Proceedings in the
     parties’ custody action. [H.C.N.] filed preliminary objections to
     [P.J.A.’s] complaint. The Court scheduled oral argument on
     [H.C.N.’s] preliminary objections. On April 14, 2015, Attorney
     Todd Mosser entered his appearance and appeared on [P.J.A.’s]
     behalf on the same day for oral argument. Attorney Mosser
     requested time to file an Amended Complaint. The Court struck
     the original complaint without prejudice and granted Attorney
     Moser time to file an Amended Complaint.

     On May 4, 2015, [P.J.A.] filed his Amended Complaint. [H.C.N.]
     filed the instant Preliminary Objections on May 26, 2015, and
     [P.J.A.] filed a response on June 16, 2015. The Court heard oral
     argument on September 8, 2015.

     On September 18, 2015, the Court entered an order with an
     opinion sustaining the preliminary objections and dismissing the
     case with prejudice.

     [P.J.A.] filed a Notice of Appeal on October 16, 2015. The Court
     directed him to file a Concise Statement of Matters Complained
     of on Appeal, which he filed on November 6, 2015.

Trial Court Opinion, 11/30/2015, at 1–4 (footnote omitted).

     At the outset, we state our standard of review:

     Our review of a challenge to a trial court’s decision to grant
     preliminary objections is guided by the following standard:

         [o]ur standard of review of an order of the trial court
         overruling or granting preliminary objections is to
         determine whether the trial court committed an error of
         law. When considering the appropriateness of a ruling on
         preliminary objections, the appellate court must apply the
         same standard as the trial court.



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J-A24020-16


            Preliminary objections in the nature of a demurrer test
            the legal sufficiency of the complaint. When considering
            preliminary objections, all material facts set forth in the
            challenged pleadings are admitted as true, as well as all
            inferences reasonably deducible therefrom. Preliminary
            objections which seek the dismissal of a cause of action
            should be sustained only in cases in which it is clear and
            free from doubt that the pleader will be unable to prove
            facts legally sufficient to establish the right to relief. If
            any doubt exists as to whether a demurrer should be
            sustained, it should be resolved in favor of overruling the
            preliminary objections.


Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation

omitted).

                              ABUSE OF PROCESS

      P.J.A. first contends the trial court erred in determining his abuse of

process claim was barred by the statute of limitations. There is no dispute

that an abuse of process claim is subject to a two-year statute of limitations.

42 Pa.C.S. § 5524(1). Here, what is in contention is the date upon which

that two-year time period began to run.

      The limitations period for any claim begins to run “from the time the

cause of action accrued.” 42 Pa.C.S. § 5502(a).           As the Supreme Court

explained in Fine v. Checcio, 870 A.2d 850 (Pa. 2005):

      In Pennsylvania, a cause of action accrues when the plaintiff
      could have first maintained the action to a successful conclusion.
      Thus, we have stated that the statute of limitations begins to run
      as soon as the right to institute and maintain a suit arises. ...
      Once a cause of action has accrued and the prescribed statutory
      period has run, an injured party is barred from bringing his
      cause of action.




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J-A24020-16



Id. at 857 (internal citations omitted). Accord Kapil v. Ass'n of

Pennsylvania State Coll. & Univ. Faculties, 470 A.2d 482, 485 (Pa.

1983) (“The true test in determining when a cause of action arises or

accrues is to establish the time when the plaintiff could have first maintained

the action to a successful conclusion.”).

      The common law cause of action for abuse of process “is defined as

the use of legal process against another ‘primarily to accomplish a purpose

for which it is not designed.’” Rosen v. American Bank of Rolla, 627 A.2d

190, 192 (Pa. Super. 1993) (citation omitted).

            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.

      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. Thus, the gravamen of this tort
      is the perversion of legal process to benefit someone in
      achieving a purpose which is not an authorized goal of the
      procedure in question.

Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002) (citations

omitted).    See Weiss v. Equibank, 460 A.2d 271, 276 (Pa. Super. 1983

(“If the plaintiff sues the defendant on a valid cause of action but brings the

suit, for example, not to collect his just debt but for a collateral purpose

such as blackmail the action is a malicious abuse of process.”). Therefore, it

follows that, in an abuse of process case, the statute of limitations is




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J-A24020-16



triggered when the defendant uses “legal process” against the plaintiff for an

improper purpose, which, in turn, causes harm to the plaintiff.

      Here, the trial court determined P.J.A.’s cause of action for abuse of

process arose on July 3, 2012, and, because P.J.A. did not file a writ of

summons until November 17, 2014, his claim was time-barred by the two

year statute of limitations.    The trial court explained its reasoning, as

follows:


      In [P.J.A.’s] Amended Complaint, [P.J.A.] averred that on June
      28, 2012, he filed a petition in the parties’ custody case
      requesting leave of Court to enroll the parties’ child in a summer
      camp program. [H.C.N.] filed an Answer with New Matter on July
      3, 2012. In her New Matter, [H.C.N.] requested sole legal
      custody of the parties’ child. [P.J.A.] alleged [H.C.N.] made
      several “knowingly false allegations” in support of her request for
      sole legal custody. The Amended Complaint in this case asserted
      [H.C.N.] falsely alleged that [P.J.A.] baptized the parties’ child
      without [H.C.N.’s] knowledge or consent, and further alleged
      that [P.J.A.] covertly enrolled the parties’ child in kindergarten.
      [P.J.A.] averred that [H.C.N.’s] “true purpose in initiating that
      legal process [the New Matter] was to attempt to destroy
      [P.J.A.’s] good name and reputation; to disrupt [P.J.A.’s] work
      obligations; and to compel [P.J.A.] to incur significant financial
      expense and emotional distress.” (Amended Complaint, at ¶ 36.)

                                    ****

      The statute of limitations applicable to a claim for Abuse of
      Process is two years. 42 Pa.C.S.A. §5524(1). The date that a
      claim for Abuse of Process accrues is different from the date
      when a claim for Wrongful Use of Civil Proceedings accrues.
      Wrongful Use of Civil Proceedings claims accrue on the date of
      termination of the allegedly wrongful suit because a necessary
      element of the claim is that the prior suit terminated in the
      current Appellant’s favor. By contrast, Abuse of Process claims
      accrue on the date the alleged abuse occurred.


                                     -6-
J-A24020-16


     In this case, [P.J.A.] identified [H.C.N.’s] New Matter she filed in
     conjunction with her Answer on July 3, 2012, as the allegedly
     abusive filing. Because that filing is the alleged abuse about
     which [P.J.A.] now complains, the cause of action accrued on
     July 3, 2012. Therefore, the statute of limitations ran until July
     3, 2014. [P.J.A.] did not initiate his claim until November 17,
     2014, when he filed a Writ of Summons. At that point, his claim
     for Abuse of Process was time-barred.

     On appeal, [P.J.A.] argues that the damages he is seeking in the
     form of legal fees were not realized prior to the rejection of
     [H.C.N.’s] allegedly false claims. He also notes that “it is error
     to require an abuse of process plaintiff to immediately file an
     abuse of process lawsuit while the validity of the underlying
     process has yet to be determined.” [P.J.A.] does not cite any
     authority for this proposition of law, and the Court cannot
     substantiate it with its own independent research.

                                    ****

     Based upon [the] definition of Abuse of Process, the rationale
     behind a cause of action under that theory accruing upon the
     filing of the documents allegedly seeking to accomplish an
     unlawful purpose for which the purpose was not intended
     becomes clear. Once those documents are filed, the tort has
     occurred. The subsequent occurrence of legal fees may impact
     upon damages, but it does not impede a litigant’s ability to plead
     the cause of action or the requisite elements thereof. [P.J.A.]
     could allege as a component of harm that his reputation was
     harmed, for example, or that he will incur attorney’s fees to
     defend against the abusive filing. This does not change the
     timing for the application of the statute of limitations.

Trial Court Opinion, 11/30/2015, at 6–9 (citations omitted).

     P.J.A. contends he could not have maintained an abuse of process suit

until it was shown that the process was abused, and “[t]hat did not occur

until March 27, 2013, when the [trial] court rejected H.C.N.’s request for

primary legal custody[.]” P.J.A.’s Brief at 11. He argues, “Any suggestion

that P.J.A. was required to file his abuse of process claim immediately upon

                                    -7-
J-A24020-16


receiving H.C.N.’s false allegations in her New Matter is problematic. Such an

approach encourages extra, possibly premature litigation where it might not

be necessary or warranted [and also] forces an abuse of process plaintiff to

make a claim before his damages are actually suffered.” Id. at 11–12. In

support of his position, P.J.A. argues:

      The better approach is found in Shivone v. Wash. Mut. Bank,
      F.A., 2008 U.S. Dist. LEXIS 59212 (E.D. Pa. 2008). There, the
      court observed that “The date of the last significant event giving
      rise to a cause of action determines the point at which the
      statute of limitations begins to run” citing Resolution Trust
      Corp. v. Farmer, 865 F.Supp. 1143, 1149 (E.D. Pa. 1994). The
      Farmer court stated, “For tort actions, the general rule in
      Pennsylvania is that the statute begins to run when the cause of
      action arises, as determined by the occurrence of the final
      significant event necessary to make the claim suable,” citing
      Foley v. Pittsburgh-Des Moines Co., 68 A.2d 517 (Pa. 1949);
      Bell v. Brady, 31 A.2d 547 (Pa. 1943); Shaffer’s Estate, 76 A.
      716 (Pa. 1910)

Id. at 12.

      P.J.A. maintains H.C.N.’s filing of her new matter “was not the last or

final significant event, but rather, that action was the first significant event.”

P.J.A.’s Brief at 12 (italics in original). He maintains “[H.C.N.’s] decision to

subsequently litigate [her averments] as well constituted the continuing

abuse of process.” Id. at 13.

      Having carefully considered the arguments presented by P.J.A., we

find no basis upon which to disturb the trial court’s decision that determined

P.J.A.’s abuse of process claim was time-barred.

      At the outset, it is important to note that termination in the underlying

proceeding in favor of the current plaintiff is not an element of an abuse of

                                      -8-
J-A24020-16


process claim.      See Werner, supra.           Furthermore, we find the federal

district court cases cited by P.J.A. do not support his position.

       In Shivone v. Wash. Mut. Bank, F.A., 2008 U.S. Dist. LEXIS 59212

(E.D. Pa. Aug. 5, 2008), the plaintiff filed numerous tort claims, including

abuse of process and wrongful use of civil proceedings.2 These claims were

based upon a mortgage foreclosure action which had been commenced in

March, 2004, and discontinued in June, 2004, and which the plaintiff became

aware of on April, 2006. The plaintiff contended the 2004 action contained,

inter alia, materially false information, and the praecipe for discontinuance

falsely represented the matter had been settled with her consent. Id. at *3.

The Shivone Court held, “The date of the last significant event giving rise

to a cause of action determines the point at which the statute of

limitations begins to run.”       Id. at *8 (emphasis supplied). Addressing the

tort claims collectively, the Shivone Court determined the plaintiff’s 2007

action was filed beyond the two year statute of limitations because

“[t]he last significant event giving rise to a potential cause of action occurred

on or about June 8, 2004 when Defendants filed the Praecipe to discontinue

the 2004 mortgage foreclosure action.” Id. at *8-9.



____________________________________________


2
  As will be discussed more fully below, an action for wrongful use of civil
proceedings requires a favorable termination of the underlying proceeding in
favor of the current plaintiff. See 42 Pa.C.S. § 8351(a)(2).



                                           -9-
J-A24020-16


      At issue in Resolution Trust Corp. v. Farmer, 865 F.Supp. 1143,

1149 (E.D. Pa. 1994), were a bank receiver’s tort actions against the bank’s

former officers and directors, and attorneys, based upon certain unsound

loan transactions. The Honorable Marjorie Rendell stated, “For tort actions,

the general rule in Pennsylvania is that the statute begins to run when the

cause of action arises, as determined by the occurrence of the final

significant event necessary to make the claim suable.” Farmer, 865

F.Supp 1149 (emphasis supplied). Although the bank’s receiver had argued

that the claims accrued when the bank wrote off the losses as a result of the

transactions, Judge Rendell found “[the bank] sustained a legally cognizable

injury long before it chose to recognize the losses … At the moment the

money left the bank, [the bank] suffered enough legal injury to trigger the

running of the statute of limitations.” Id. at 1150.

      The Shivone and Farmer decisions are consistent with Pennsylvania

case law holding that once the plaintiff knows of any damages, the statute of

limitations begins to run. See Adamski v. Allstate Ins. Co., 738 A.2d

1033, 1041-42 (Pa. Super. 1999) (“[O]ur Court has repeatedly held that, for

purposes of the statute of limitations, a claim accrues when a plaintiff is

harmed and not when the precise amount or extent of damages is

determined.”). Therefore, we conclude Shivone and Farmer do not help to

advance P.J.A.’s argument. Furthermore, “It is well settled that this Court is

not bound by the decisions of federal court, other than the United States


                                     - 10 -
J-A24020-16


Supreme Court, … however, we may use them for guidance to the degree we

find them useful and not incompatible with Pennsylvania law.” Eckman v.

Erie Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011).

       We agree with the trial court that P.J.A.’s abuse of process claim

accrued upon the date H.C.N. filed the answer with new matter, July 3,

2012, containing the allegedly false allegations, and not the later date,

March 27, 2013, when the trial court denied H.C.N.’s request for sole legal

custody. Accordingly, we reject P.J.A.’s claim that the trial court erred in

determining that his abuse of process claim, instituted on November 17,

2014, was barred by the two year statute of limitations.3

                      WRONGFUL USE OF CIVIL PROCEEDINGS

       In his final issue, P.J.A. claims the trial court erred in concluding that

he failed to state a wrongful use of civil proceedings action by failing to show

the underlying proceedings terminated in his favor.

       “An action for wrongful use of civil proceedings differs from an
       action for abuse of process.” Hart v. O'Malley, 436 Pa. Super.
       151, 647 A.2d 542, 546 (Pa.Super. 1994). “The gist of an action
       for abuse of process is the improper use of process after it has
       been issued, that is, a perversion of it. Malicious use of civil
       process has to do with the wrongful initiation of such process.”
       Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 627
       A.2d 190, 192 (Pa.Super. 1993) (internal citations omitted).
       “Wrongful use of civil proceedings is a tort which arises when a
____________________________________________


3
  Due to our disposition of P.J.A.’s first argument, we need not address
P.J.A.’s second argument that the trial court erred in deciding, at the
preliminary objection stage, the factual question of whether P.J.A.’s abuse of
process claim adequately pleaded H.C.N.’s improper purpose.



                                          - 11 -
J-A24020-16


      person institutes civil proceedings with a malicious motive and
      lacking probable cause.” Pennsylvania codified the tort 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

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

      42 Pa.C.S.A. § 8351(a)(1)-(2). A successful cause of action for
      wrongful use of civil proceedings must prove three elements: 1)
      the underlying proceedings were terminated in their favor; 2)
      defendants caused those proceedings to be instituted against
      plaintiffs without probable cause; and 3) the proceedings were
      instituted primarily for an improper cause. Hart, supra at 547.

Sabella v. Milides, 992 A.2d 180, 187–188 (Pa. Super. 2010).

      Here, P.J.A. alleged that H.C.N. is liable for wrongful use of civil

proceedings because, in 2012, she responded to his petition seeking to

enroll the child in a summer camp by filing “New Matter” that contained

scurrilous allegations about P.J.A. and sought termination of the parties’

joint legal custody, so that she could gain sole legal custody of the child.

P.J.A. further alleged that H.C.N.’s claim that she should gain sole legal

custody was rejected by the trial court, and that the trial court’s decision

constitutes a termination of the custody proceeding in his favor.



                                    - 12 -
J-A24020-16



      Specifically, in Count I, “Wrongful Use of Civil Proceedings – 42

Pa.C.S.A. § 8351,” P.J.A. alleged:

      27. All prior averments of this Complaint are incorporated by
      reference as set forth fully herein.

      28. [H.C.N.] used the legal process against [P.J.A.], to wit, filing
      New Matter seeking sole legal custody of [child], which forced a
      full blown custody trial.

      29. Upon information and belief, [H.C.N.’s] true purpose in
      initiating that legal process was to attempt to destroy [P.J.A.’s]
      good name and reputation; to disrupt [P.J.A.’s] work obligations;
      and to compel [P.J.A.] to incur significant financial expense and
      emotional distress.

      30. The true purposes outlined above in ¶29 were improper
      bases for [H.C.N.’s] New Matter and request for sole legal
      custody.

      31. The proceedings terminated in favor of [P.J.A.], as his
      request to allow his son to attend the summer camp of his
      choice during his custodial time was granted; and [H.C.N.’s]
      request for sole legal custody was denied.

      32. [H.C.N.’s] actions caused [P.J.A.] to incur in excess of
      $55,000 in attorney’s fees.

      33. [H.C.N.’s] actions as described infra [sic] were wanton and
      outrageous, manifesting a flagrant disregard for [P.J.A.’s] rights
      and meriting an award of punitive damages.

P.J.A.’s First Amended Complaint, 5/4/2015, at ¶¶ 27–33.

      P.J.A. argues his amended complaint states a cause of action for

wrongful use of civil proceedings, because




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J-A24020-16


        the Amended Complaint avers that [H.C.N.’s] request in her New
        Matter (which contained knowingly false allegations) for sole
        custody was denied - in favor of [P.J.A.] - on March 27, 2013.
        See Amended Complaint, ¶31 and Exhibit ‘C.’[4] That same Order
        granted [sic] [P.J.A.’s] request to allow his son to go to the
        summer camp of his choosing during his own custodial time.
        Id.[5] The Amended complaint further avers that [H.C.N]. filed
        her New Matter without probable cause.           See, Amended
        Complaint at ¶26. The Amended Complaint also alleges that
        [H.C.N.] initiated her New Matter for an improper purpose. See,
        Amended Complaint at ¶¶29-30. Thus, the Amended Complaint
        sufficiently states a cause of action for wrongful use of civil
        proceedings.

P.J.A.’s Brief at 15-16.

        The trial court observed that “[t]here is a paucity of case law

nationwide addressing whether and under what circumstances a custody

dispute can be said to have terminated in a party’s favor for purposes of
____________________________________________


4
    The custody order, stated, in relevant part:

           The request stated by defendant, [H.C.N.] (Mother), in her
           new matter filed on July 3, 2012, to be made sole legal
           custodian is DENIED, and the parties shall continue to share
           legal custody of their minor child[.]

Order, 3/27/2013, at ¶1, attached as Exhibit “C” to P.J.A.’s Amended
Complaint, 5/4/2015.
5
    In fact, the order stated:

        Father’s request in his petition filed on June 28, 2013, and
        Mother’s oral request that the court designate a summer camp
        program for the child are DENIED; and each parent shall
        hereafter determine how the child shall spend his time over that
        parent’s respective summer custody time.

Id. at ¶3.




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J-A24020-16



subsequently pursuing a cause of action for Wrongful Use of Civil

Proceedings or comparable actions in other states.”         Trial Court Opinion,

11/30/2015, at 9. The trial court identified Logan v. Lille, 728 A.2d 995

(Pa. Cmwlth. 1999), which involved a wrongful use of civil proceedings

action filed by a father, after the child’s mother had filed a custody petition

alleging sexual abuse and caused his visitation rights to be temporarily

suspended. The trial court pointed out:

      The Commonwealth Court affirmed [the order sustaining
      mother’s preliminary objections], reasoning that the wrongful
      use [of civil proceedings action] was unsubstantiated due, in
      part, to the fact that in the custody proceedings, father’s
      visitation rights were temporarily suspended, which did not
      constitute a favorable ruling for purposes of the subsequent
      wrongful use claim.

Id. at 10, citing Logan, 728 A.2d at 1000. Here, the trial court determined

P.J.A.’s averment in his amended complaint that the proceedings terminated

in his favor was “belied by the record.” Id. at 10.

      Analyzing P.J.A.’s claim, the trial court stated that in the underlying

proceeding P.J.A. had countered H.C.N.’s new matter request seeking sole

legal custody of the parties’ child with his own request for sole legal custody.

The trial court reasoned that, as both parties’ requests had been denied,

P.J.A. could not prove there was a favorable termination in his favor. See

id. at 10–11.    On this basis, the trial court determined P.J.A. could not

maintain an action for wrongful use of civil proceedings.




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J-A24020-16


       While our reasoning differs from the trial court’s, we agree with the

trial court’s ultimate conclusion to dismiss P.J.A.’s claim for wrongful use of

civil proceedings.6 As more fully discussed below, we conclude that P.J.A. is

unable to pursue a viable Dragonetti claim because H.C.N.’s “New Matter” is

not the type of pleading that gives rise to an action under the Dragonetti

Act.

       The history of these proceedings dates to the parties’ separation in

March 2007. The record shows that the parties have jockeyed for custody

since the time their marriage fell apart.

       H.C.N.’s request for sole custody in the “New Matter” she filed in 2012

was yet another riposte in that series of parries. H.C.N. responded to P.J.A.’s

petition to have the child attend a summer camp by including in her New

Matter a series of historical complaints about how she believed P.J.A. was

not properly complying with the joint custody order and, in her ad damnum

clause, she coupled several more incident-specific requests for relief with a

general request that the court “[a]ward Mother sole Legal Custody of the

parties’ minor child.”      Notably, H.C.N. did not make that request in any

formal petition. Predictably, P.J.A. responded to this request in H.C.N.’s New

Matter with his own “counter-petition” requesting that he be granted sole


____________________________________________


6
  An appellate court may affirm the trial court on any basis if the result is
correct. See Lerner v. Lerner, 954 A.2d 1229, 1240 (Pa. Super. 2008).



                                          - 16 -
J-A24020-16


legal custody and primary physical custody. Those pleadings therefore were

consistent with the parties’ normal back and forth.

      For Dragonetti purposes, it is significant that H.C.N.’s New Matter does

not readily fall within the normal category of pleadings that give rise to

Dragonetti litigation. The statute makes actionable misconduct in “the

procurement, initiation or continuation of civil proceedings.” 42 Pa.C.S. §

8351(a).   In normal litigation, “New Matter” does none of those things.

Rather, “New Matter” is a part of an answer to a pleading that sets forth

affirmative defenses. Pa.R.C.P. 1030. Although there is little law on the

subject, a common sense interpretation of the statute makes clear that it

should not apply to answers or defensive pleadings, because such

documents are designed to bring an action to an end, not to “procure,”

“initiate,” or “continue” it. See generally Walasavage v. Nationwide Ins.

Co., 633 F. Supp. 378, 380 (E.D. Pa. 1986) (discussing view that Dragonetti

Act does not create cause of action for a “malicious defense”).

      Here, however, the trial court treated the request for sole custody in

H.C.N.’s “New Matter” as the equivalent of a counterclaim seeking a

modification of a custody order. Our Court has held that the filing of a

counterclaim may constitute the “continuation” of litigation for purposes of a

Dragonetti action, but we have directed that “an action for the wrongful use

of a counterclaim demands that courts examine such claims closely, lest the

defendant be punished for nothing more than defending himself or herself


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against a claim made by another.” Mi-Lor, Inc. v. DiPentino, 654 A.2d

1156, 1158 (Pa. Super. 1995). The rules applicable to custody actions

require a formal request for modification of a custody order to be in the form

of a petition, Pa.R.C.P. 1915.15(b), and that a counterclaim be in the form

of an initial pleading, Pa.R.C.P. 1915.5(b). H.C.N.’s New Matter did not

comply with these requirements.

      The trial court chose to treat the “New Matter” as serving the function

of such a pleading in light of the parties’ litigation history and their repeated

custody claims.     Nevertheless, we exercise caution in treating the “New

Matter” as a formal counterclaim giving rise to a Dragonetti action.

Exercising that caution in light of our direction in Mi-Lor, we conclude that,

given the parties’ litigation history, this is not the type of pleading that the

Dragonetti Act was intended to cover.

      The parties’ litigation history makes clear that their competing claims

for custody of their child are only the tip of the iceberg. The record shows

that the parties have squabbled and litigated incessantly, not only over

primary physical custody and legal custody, but over just about every

minute detail of their child’s life. The court opinions issued in the various

proceedings document a disheartening inability of adult parents to try to get

along for their child’s benefit and a persistent penchant to resort to repeated

litigation in an effort to get their way.




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      Viewed in this context, we conclude that H.C.N.’s 2012 “New Matter”

requesting sole custody is not the type of pleading that should be subject to

a Dragonetti action. First, the request was nothing new: H.C.N. and P.J.A.

each have sought sole custody on several occasions. Nor was the trial court’s

denial of that request anything new: the court has steadfastly attempted to

preserve a joint custody arrangement that will further the child’s best

interests, despite incessant squabbling by the parents that has interfered

with that goal.

      It is also noteworthy that H.C.N. did not file a formal counterclaim, but

instead merely included in her New Matter complaints along the same lines

that she had voiced in the past, coupled with a request for relief — sole

custody — that she had sought in the past. Although H.C.N.’s request could,

at some level, be viewed as a “continuation” of the ongoing custody fight

under Section 8351(a) of the Dragonetti Act, it is essentially more of the

same conduct in which both sides have engaged since their marriage ended.

H.C.N. again voiced complaints and sought sole custody; P.J.A. again

responded with his own complaints and request for sole custody; and, once

again, the trial court, with seemingly endless patience, responded with an

order continuing joint custody.

      Allowing H.C.N.’s “New Matter” to now be characterized as a basis for

a new element of warfare between the parties — a tort action for wrongful

use of civil proceedings — would serve no salutary purpose under the


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statute. We have disapproved in the past of allowing the Dragonetti Act to

be used “to engage the court in another episode in the long saga of

disagreements between the parties” or to “waste . . . judicial resources to

mediate the historically confused relationship between the parties.” Lerner

v. Lerner, 954 A.2d 1229, 1240 (Pa. Super. 2008). That is the case here.

      This does not mean that the parties have no recourse if either of them

use the custody proceedings improperly. The Custody Act contains its own

mechanism for addressing a party’s bad faith. Specifically, Section 5339

permits a court to “award reasonable interim or final counsel fees, costs and

expenses to a party if the court finds that the conduct of another party was

obdurate, vexatious, repetitive or in bad faith.”    23 Pa.C.S. § 5339.     The

parties’ extensive litigation history shows that neither of them is shy about

charging the other with the slightest misconduct under the statute, and the

trial court, with its extensive knowledge of the parties and their history, is

fully able to assess whatever claims of misconduct the parties make during

the custody proceedings.

      In sum, we agree with the trial court that P.J.A.’s claim for abuse of

process is barred by the statute of limitations, and we affirm the trial court’s

dismissal of P.J.A.’s claim of wrongful use of civil proceedings because, in

light of the history of these proceedings and our admonition in Mi-Lor,

H.C.N.’s filing of her New Matter was not the type of litigation conduct that

gives rise to an action under the Dragonetti Act.


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       Finally, we address H.C.N.’s request, made in her brief, for counsel

fees in connection with this appeal. See H.C.N.’s Brief at 22–25. This Court

may grant such relief “if it determines that an appeal is frivolous or taken

solely for delay or that the conduct of the participant against whom costs are

to be imposed is dilatory, obdurate or vexatious.”          Pa.R.A.P. 2744.    Here,

while we have rejected P.J.A.’s contentions of trial court error, we decline to

find that this appeal warrants an award of counsel fees to H.C.N. pursuant to

Rule 2744.

       Accordingly, we affirm the order of the trial court sustaining H.C.N.’s

preliminary     objections    and    dismissing    the   amended   complaint    with

prejudice.

       Order affirmed. Motion for correction of reply brief granted.7

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




____________________________________________


7
  P.J.A.’s reply brief has been considered by this Court in resolving the
appeal.



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