J-S56016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 EARL CALVIN HANDFIELD, II               :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 WILLIAM E. HOWELL, III, ESQ.            :    No. 1479 EDA 2019
 DAVID N. VAN DER GOES PHD ALBU          :
 QUANT, LLC                              :

               Appeal from the Order Entered April 25, 2019
  In the Court of Common Pleas of Chester County Civil Division at No(s):
                               2019-03958


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                      FILED FEBRUARY 11, 2020

      Appellant Earl Calvin Handfield, II, appeals pro se from the orders

dismissing his complaint as frivolous under Pa.R.C.P. 240(j) and denying his

application for leave to proceed in forma pauperis. Appellant contends that

his complaint stated viable claims against Appellees William E. Howell, III,

Esq. (Attorney Howell), David N. van der Goes (Dr. van der Goes), and Albu

Quant, LLC. We affirm.

      We state the background of this matter based on the allegations in

Appellant’s complaint. In 2009, a jury found Appellant guilty of first-degree

murder for killing Corey Jennings (the decedent), and the trial court sentenced

Appellant to life imprisonment (the criminal matter).     Appellant’s Compl.,

4/19/19, at ¶ 8. The Pennsylvania Crime Victims Compensation Fund (CVC)

paid approximately $12,361 to the decedent’s children. Id. at ¶ 11.
J-S56016-19



        In 2016, the decedent’s daughter, who was a minor when Appellant

killed the decedent, commenced a wrongful death action against Appellant

after she reached the age of majority.              Id. at ¶ 12.          Attorney Howell

represented the decedent’s daughter in the wrongful death action. Id. at ¶

14. Dr. van der Goes, who owned Albu Quant, LLC, prepared a report stating

that the decedent’s death caused his children to lose $361,217.80, which

represented the decedent’s projected income over his projected “work life.”

Id. at ¶¶ 4-5, 20, 76 & Ex. 14 (Albu Quant report, 7/27/17).                    Appellant

represented himself in the wrongful death action, and he received a copy of

the Albu Quant report. Id. at ¶¶ 15, 20.

        The wrongful death action proceeded to a jury trial in August 2017. Id.

at ¶ 24. At trial, Dr. van der Goes testified against Appellant as a damages

expert. Id. According to Appellant, “on August 17[, 2017,] the jury rul[ed]

in [Appellant’s] favor finding that he was not liable to pay any money in

damages.     The jury’s verdict stated that [Appellant] owed zero dollars for

every count that was charged.” Id. at ¶ 25.

        On April 19, 2019, Appellant filed the instant pro se complaint naming

Albu Quant, LLC, Dr. van Der Goes, and Attorney Howell as defendants. In

his complaint, Appellant raised the following claims: Count 1—wrongful use of

civil    proceedings1      against     Attorney         Howell;   Count      2—negligent

misrepresentation       against      Albu      Quant,     LLC;    Count     3—intentional

____________________________________________


1   See 42 Pa.C.S. §§ 8351-8354 (Dragonetti Act).

                                            -2-
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misrepresentation against Albu Quant, LLC; Count 4—abuse of process against

Attorney Howell; and Count 5—professional negligence against Dr. van der

Goes. Appellant asserted that the defendants were not entitled to immunity.

Id. at ¶¶ 26-28.

     As to damages, Appellant asserted that he suffered emotional distress

related to the wrongful death action, as well as “sticker shock” from the

estimated damages in the Albu Quant report. Id. at ¶¶ 49, 114. Appellant

stated that his distress resulted in physical symptoms, including bloody

discharges from his urethra, which placed him in additional fear of having a

more severe condition such as cancer.       Id. at ¶¶ 60-63.     Additionally,

Appellant claimed that he suffered a physical injury when, while exercising in

the gym, he became distracted by the wrongful death action and dropped a

weight on his head. Id. at ¶ 51. Appellant also claimed that his distress

resulted in his failure to perform on a songwriting contract for $18,000. Id.

at ¶¶ 52-56. Appellant attached an application for leave to proceed in forma

pauperis to his complaint.

     On April 25, 2019, the trial court dismissed Appellant’s complaint based

on Pa.R.C.P. 240(j). The trial court reasoned:

     [Appellant’s] cause of action herein is frivolous despite the fact
     that the jury awarded no damages in the [wrongful death] action.
     The fact that no damages were awarded could be as a result of
     lack of proof or the jury’s recognition that awarding damages
     against [Appellant] was fruitless because he is going to spend the
     rest of his life in prison with no ability to repay any awarded
     damages. In any event, [Appellant’s] belief that he is entitled to
     damages as a result of the discomfort resulting from being sued


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       by the family of the decedent that he murdered is frivolous and
       has no bases in law or fact.

Order 4/25/19, at n.1. That same day, the trial court entered a separate order

denying Appellant’s application for leave to proceed in forma pauperis.

       Appellant timely filed a notice of appeal and complied with the trial

court’s order to file and serve a Pa.R.A.P. 1925(b) statement.2 The trial court

filed a Rule 1925(a) opinion restating its previous conclusion that Appellant’s

action was frivolous. Trial Ct. Op., 7/9/19, at 2. The trial court described

Appellant’s filing of his complaint as an attempt “to re-victimize the

[decedent’s] family.” Id.

       In his pro se brief, Appellant presents seven questions, which we have

reordered as follows:

       [1]. Did the [trial] court deny [Appellant] access to the court by
       denying [Appellant’s] complaint as frivolous without adjudicating
       the merits of the professional negligence claim against [Dr. van
       der Goes], where the complaint established that [Dr. van der
       Goes] failed to investigate and sufficiently formulate an analysis
       of the [decedent’s] economic value, contributing to [Appellant’s]
       harm suffered through reliance on untruthful information?

       [2]. Did the [trial] court deny [Appellant] access to the court by
       denying [Appellant’s] complaint as frivolous without adjudicating
       the merits of [Appellant’s] negligent misrepresentation claim
       against [Albu Quant, LLC,] whose allegation that Appellant owed
       $361,217.00 lacked support by facts or by necessary data to make
       [Appellant] legally liable, thus contributing to [Appellant’s] harm
       suffered through reliance on untruthful information?

       [3]. Did the [trial] court deny [Appellant] access to the court by
       denying [Appellant’s] complaint as frivolous without adjudicating
____________________________________________


2Appellant filed a separate application for leave to proceed in forma pauperis
on appeal. The trial court granted that request.

                                           -4-
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      the merits of the intentional misrepresentation claim against [Albu
      Quant, LLC,] when the complaint establishes that [Albu Quant,
      LLC,] deliberately and falsely stated that it formulated its analysis
      of the [decedent’s] value based on “documents [of the decedent’s]
      occupation and work history”, thus contributing to [Appellant’s]
      harm-suffered through reliance on untruthful information?

      [4]. Did the [trial] court violate due process and misapply
      [Appellant’s] Dragonetti Act claim that contained arguable merit,
      which the court denied as “frivolous”, where:

            (a) the underlying proceedings terminated in [Appellant’s]
            favor (an element of the act); and

            (b) the claim is supported by sworn affidavits, by medical
            records and by Pennsylvania law?

      [5]. Did the [trial] court deny [Appellant] access to the court by
      denying [Appellant’s] complaint as frivolous without adjudicating
      the merits of the abuse of process claim, supported by sworn
      affidavits and by facts that:

            (a) [Attorney Howell] acted with an ulterior motive by using
            a legal process (wrongful death action) as a tactical weapon
            to compel a payment that was unauthorized by the wrongful
            death/survival act; and

            (b) [The decedent’s daughter] admitted that she neither
            initiated nor wished to bring [the wrongful death] action
            against [Appellant]?

      [6.] Did the [trial] court violate due process by denying
      [Appellant’s] entire civil complaint as “frivolous” without
      adjudicating the merits of each count and without assessing the
      damages presented, which are supported by sworn affidavits, by
      medical records, by court documents and by Pennsylvania law?

      [7]. Did the [trial] court deny [Appellant] access to the court by
      denying [Appellant] leave to proceed in forma pauperis without
      regarding [Appellant’s] indigent status, demonstrated in the in
      forma pauperis application, by basing its ruling solely on
      speculative facts relating to the actual complaint?

Appellant’s Brief at 5-6.




                                      -5-
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      Appellant’s appeal challenges the trial court’s decision to dismiss his

actions against Albu Quant, LLC, Dr. van der Goes, and Attorney Howell under

Pa.R.C.P. 240(j). Appellant argues he stated non-frivolous claims against Albu

Quant, LLC, and Dr. van der Goes for negligence, negligent misrepresentation,

and intentional misrepresentation and against Attorney Howell for wrongful

use of civil proceedings and abuse of process. Appellant also contends that

the trial court violated his due process rights by summarily dismissing his

complaint and denying his petition to proceed in forma pauperis.

      Before addressing Appellant’s arguments, we note that Pa.R.C.P. 240

states:

      (b) A party who is without financial resources to pay the costs of
      litigation is entitled to proceed in forma pauperis.

                                    *    *    *

      (j)(1) If, simultaneous with the commencement of an action or
      proceeding or the taking of an appeal, a party has filed a petition
      for leave to proceed in forma pauperis, the court prior to acting
      upon the petition may dismiss the action, proceeding or appeal if
      the allegation of poverty is untrue or if it is satisfied that the
      action, proceeding or appeal is frivolous.

          Note: A frivolous action or proceeding has been defined as
          one that “lacks an arguable basis either in law or in fact.”
          Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104
          L.Ed.2d 338 (1989).

Pa.R.C.P. No. 240(b), (j) & note.

      “Our review of a decision dismissing an action pursuant to Pa.R.C.P.

240(j) is limited to a determination of whether the plaintiff’s constitutional

rights have been violated and whether the trial court abused its discretion or


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committed an error of law.” Ocasio v. Prison Health Servs., 979 A.2d 352,

354 (Pa. Super. 2009) (citations omitted). A litigant seeking leave to proceed

in forma pauperis bears the responsibility of presenting a valid cause of action.

Conover v. Mikosky, 609 A.2d 558, 560 (Pa. Super. 1992). A complaint is

frivolous “if, on its face, it does not set forth a valid cause of action.” See

Ocasio, 979 A.2d at 354 (citation omitted). Moreover, Rule 240(j) requires

a court to consider whether the underlying action is frivolous before acting on

the petition to proceed in forma pauperis. Id. at 355.

                   Negligence against Dr. van der Goes

      Appellant asserted in his complaint that Dr. van der Goes was negligent

for failing to properly investigate and analyze damages in the wrongful death

action. Appellant’s Compl. at ¶¶ 139, 144. Appellant alleged that Dr. van der

Goes “did not conduct any investigation at all regarding the truth or proof of

[the decedent’s] earnings or losses of finances as any professional in [Dr. van

der Goes’] field would have done.”      Id. at ¶ 145.    Specifically, Appellant

claimed that Dr. van der Goes failed to base his expert opinion on

documentary evidence such as tax filings, affidavits from the decedent’s

employers, or copies of pay stubs. Id. at ¶¶ 110, 156. According to Appellant,

Dr. van der Goes recklessly estimated damages based on hearsay reports from

the decedent’s family and Attorney Howell, which indicated that the decedent

worked as a general laborer, who did “things like hanging drywall.” Id. at ¶¶

153-54. Appellant asserted that Dr. van der Goes knew that the decedent




                                      -7-
J-S56016-19



had a history of incarceration and drug use, but failed to offset his damages

estimate based on those factors. Id. at ¶¶ 150-52.

      On appeal, Appellant contends that his complaint contained sufficient

allegations to state a viable claim of negligence against Dr. van der Goes.

Appellant’s Brief 23-30. In particular, Appellant asserts that he established

that Dr. van der Goes owed him “a traditional duty of care” under LLMD of

Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1999), as well as

Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa.

2005), and the Restatement (Second) of Torts § 552. Id. at 30.

      The following principles are relevant to our review. A plaintiff seeking

relief based on a claim of negligence must show:

      [(1)] A duty or obligation recognized by law.

      [(2)] A breach of the duty.

      [(3)] Causal connection between the actor’s breach of the duty
      and the resulting injury.

      [(4)] Actual loss or damage suffered by complainant.

Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005)

(citation omitted). “To establish a breach of duty in a professional negligence

action, a plaintiff must show that the defendant’s conduct fell below the

relevant standard of care applicable to the rendition of the professional

services at issue.”   Zokaites Contracting Inc. v. Trant Corp., 968 A.2d

1282, 1287 (Pa. Super. 2009) (citation omitted).

      As to the existence of a duty, our Supreme Court has explained:



                                     -8-
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      The determination whether to impose affirmative common-law
      duties as a predicate to civil liability is a matter of law;
      accordingly, our review is plenary. We have characterized the
      duty inquiry as the primary inquiry in negligence. To assist us in
      identifying a previously unrecognized duty, we rely upon five
      factors: (1) the relationship between the parties; (2) the social
      utility of the actor’s conduct; (3) the nature of the risk imposed
      and foreseeability of the harm incurred; (4) the consequences of
      imposing a duty upon the actor; and (5) the overall public interest
      in the proposed solution.

Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 222 (Pa. 2018)

(citations and alterations omitted). “[T]he legal concept of duty of care is

necessarily rooted in often amorphous public policy considerations, which may

include our perception of history, morals, justice and society.” Lindstrom v.

City of Corry, 763 A.2d 394, 397 (Pa. 2000) (citation omitted).

      Instantly, as noted above, Appellant cites LLMD of Michigan, Bilt-

Rite, and the Restatement (Second) of Torts § 552 in support of his argument

that Dr. van der Goes owed him a duty of care. However, Appellant’s reliance

on these authorities is misplaced.

      Initially, we note that Pennsylvania courts have held that there is no

civil cause of action based on testimony given during a judicial proceeding,

even if the testimony was false. See Ginsburg v. Halpern, 118 A.2d 201,

202 (Pa. 1955) (per curiam). Under the doctrine of witness immunity, “private

witnesses, as well as counsel, are absolutely immune from damages liability

for testimony, albeit false, given or used in judicial proceedings” such that the

false statements would not be actionable.      Pelagatti v. Cohen, 536 A.2d

1337, 1342 (Pa. Super. 1987) (citations omitted).


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       In LLMD of Michigan, our Supreme Court concluded that witness

immunity did not bar a plaintiff’s negligence action against its own expert.

LLMD of Michigan, 740 A.2d at 188. In that case, the plaintiff retained the

expert in a prior breach of contract action that the plaintiff filed against a

financing company.      Id. at 186-87.     The expert estimated that plaintiff

suffered $6 million in lost profits and testified to that estimate at trial. Id. at

187.   On cross-examination, however, the expert conceded the damages

estimate was wrong due to a mathematical error and was not able to correct

the error at trial. Id. The financing company moved to strike the expert’s

testimony, which the trial court granted, and the plaintiff eventually settled

the breach of contract action for $750,000. Id.

       The plaintiff in LLMD of Michigan thereafter sued its expert for breach

of contract and professional negligence.       Id.   The trial court granted the

expert’s summary judgment motion and dismissed the case. Id. at 188. On

appeal, this Court affirmed the trial court, concluding that witness immunity

barred the plaintiff’s action against the expert. Id.

       Our Supreme Court reversed this Court’s decision. Id. at 191. Initially,

the LLMD of Michigan Court noted that witness immunity stands on the

policy of “ensuring that the path to truth is unobstructed and the judicial

process is protected, by fostering an atmosphere where the expert witness

will be forthright and candid in stating his or her opinion.” Id. However, in

concluding that witness immunity did not bar the plaintiff’s action against its

expert, the Court reasoned that those purposes would not be “advanced by

                                      - 10 -
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immunizing an expert witness from his or her negligence in formulating that

opinion.” Id. To the contrary, the Court stated that “[t]he judicial process

will be enhanced only by requiring that an expert witness render services to

the degree of care, skill and proficiency commonly exercised by the ordinarily

skillful, careful and prudent members of their profession.” Id.

       We acknowledge that LLMD of Michigan stands for the proposition that

witness immunity will not bar an action for negligence or breach of contract

against an expert witness.           However, LLMD of Michigan involved the

application of witness immunity and did not expressly consider the duty owed

by an expert. See id. Moreover, the plaintiff in LLMD of Michigan brought

the negligence claim against a “friendly” expert, who the plaintiff retained in

prior litigation. See id. at 188. Here, Appellant attempts to impose a duty

on an adverse expert. Accordingly, we conclude that LLMD of Michigan does

not support imposing a duty on Dr. van der Goes as to Appellant.3

       In Bilt-Rite, our Supreme Court expressly adopted Section 552 of the

Restatement (Second) of Torts, which discusses liability for information

negligently supplied for the guidance of others. See Restatement (Second)

of Torts § 552. In Bilt-Rite, a school district contracted with an architect to

____________________________________________


3  We add that the distinctions between the instant case and LLMD of
Michigan support a conclusion that witness immunity barred all of Appellant’s
claims against Albu Quant and Dr. van der Goes. However, immunity from
suit is an affirmative defense that should generally be raised as new matter.
See Pa.R.C.P. 1030(a); Pollina v. Dishong, 98 A.3d 613, 617 n.3 (Pa. Super.
2014). Moreover, the trial court in this case did not discuss the witness
immunity doctrine as a basis for dismissing Appellant’s complaint.

                                          - 11 -
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prepare designs and plans for the construction of a school building and the

preparation of bids from contractors.      Bilt-Rite, 866 A.2d at 272.      The

plaintiff, a building contractor, submitted the winning bid based on the

architect’s plans.    Id.   However, when the plaintiff began construction, it

discovered that special construction methods were required that increased the

cost of the project. Id. The plaintiff then sued the architect for negligent

misrepresentation for the plans it developed for the school district. Id.

      In adopting Section 552 of the Second Restatement of Torts, the Bilt-

Rite Court observed:

      Section 552 sets forth the parameters of a duty owed when one
      supplies information to others, for one’s own pecuniary gain,
      where one intends or knows that the information will be used by
      others in the course of their own business activities. The tort is
      narrowly tailored, as it applies only to those businesses which
      provide services and/or information that they know will be relied
      upon by third parties in their business endeavors, and it includes
      a foreseeability requirement, thereby reasonably restricting the
      class of potential plaintiffs.

Id. at 285-86.       The Court emphasized that the liability of an expert who

supplies information was not “radical or revolutionary,” but reflected “modern

business realities.” Id. at 286.

      Although Bilt-Rite holds that the lack of privity alone will not defeat a

claim that an expert owes a duty of care to a third party, the realities of

litigation do not support an opposing party’s claim of reasonable reliance on

the opinions of an adverse expert.      Furthermore, it is foreseeable that an

opposing party would challenge rather than rely on an adverse expert’s


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opinion, as Appellant did in the wrongful death action. Accordingly, we discern

no merit to Appellant’s contention that Bilt-Rite and Section 552 of the

Second Restatement of Torts establish a duty of care as between Dr. van der

Goes and Appellant.

      To the extent Appellant seeks to create a new duty between an expert

and an opposing party, we find the policies of extending witness immunity

instructive. As our Supreme Court noted:

      A witness’ apprehension of subsequent damages liability might
      induce two forms of self-censorship. First, witnesses might be
      reluctant to come forward to testify. And once a witness is on the
      stand, his testimony might be distorted by the fear of subsequent
      liability. Even within the constraints of the witness’ oath there
      may be various ways to give an account or to state an opinion.
      These alternatives may be more or less detailed and may differ in
      emphasis and certainty. A witness who knows that he might be
      forced to defend a subsequent lawsuit, and perhaps to pay
      damages, might be inclined to shade his testimony in favor of the
      potential plaintiff, to magnify uncertainties, and thus to deprive
      the finder of fact of candid, objective, and undistorted evidence.
      But the truthfinding process is better served if the witness’
      testimony is submitted to “the crucible of the judicial process so
      that the factfinder may consider it, after cross-examination,
      together with the other evidence in the case to determine where
      the truth lies.”

LLMD of Michigan, 740 A.2d at 189 (quoting Briscoe v. LaHue, 460 U.S.

325 (1983)).

      Here, Dr. van der Goes prepared an expert opinion regarding damages

in the wrongful death action against Appellant. Imposing such a duty on an

expert could induce the forms of self-censorship described by the Court in

LLMD of Michigan. See id. at 189. Accordingly, the judicial process is better


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served by subjecting an adverse expert’s opinion to the rigors of cross-

examination and scrutiny in the normal course of litigation. The imposition of

a new duty of care on the adverse expert is contrary to the realities of

litigation. See id.

          Accordingly, our review reveals no error in the trial court’s conclusion

that Appellant’s negligence claim was frivolous because Appellant failed to

establish an actionable duty of care.        See Ocasio, 979 A.2d at 354; cf.

Lindstrom, 763 A.2d at 397.          Therefore, Appellant’s first issue merits no

relief.

             Negligent Misrepresentation against Albu Quant, LLC

          Appellant alleged in his complaint that Dr. van der Goes owned Albu

Quant, LLC, and that Dr. van der Goes authored the Albu Quant report

estimating damages in the wrongful death action at $361,217.80. Appellant’s

Compl. at ¶ 76 & Ex. 14. Appellant’s claims that “[Albu Quant, LLC,] had a

duty to investigate and base its findings on credible and reliable facts, which

it did not.” Id. at ¶ 91. On appeal, Appellant contends that Albu Quant, LLC,

also owed him duty of care under the Restatement (Second) of Torts § 552.

Appellant’s Brief at 30.

          For a claim of negligent misrepresentation, a plaintiff must state there

was:

          (1) a misrepresentation of a material fact;

          (2) made under circumstances in which the misrepresenter ought
          to have known its falsity;



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      (3) with an intent to induce another to act on it; and

      (4) which results in injury to a party acting in justifiable reliance
      on the misrepresentation.

Milliken v. Jacono, 60 A.3d 133, 141 (Pa. Super. 2012) (citation omitted).

“[L]ike any action in negligence, there must be an existence of a duty owed

by one party to another” to sustain a negligent misrepresentation claim.

Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999).

      Here, just as Appellant failed to establish that Dr. van der Goes owed

him a duty of care, Appellant cannot establish that Albu Quant, LLC, owed him

a duty to undertake a reasonable investigation. Therefore, Appellant’s claim

that he had an actionable cause of action against Albu Quant, LLC, for

negligent misrepresentation fails. See Ocasio, 979 A.2d at 354; cf. Bortz,

729 A.2d at 561.

        Intentional Misrepresentation against Albu Quant, LLC

      Appellant’s claim of intentional misrepresentation against Albu Quant,

LLC, concerns Albu Quant, LLC’s representation that it reviewed documents

related to the decedent. Appellant’s Compl. at ¶¶ 103-11. Appellant alleged

that this was false because Dr. van der Goes admitted at trial that he did not

review documents regarding the decedent’s past income.           Id. at ¶ 107.

Appellant asserts that “[Albu Quant, LLC,] intentionally misled [him] to believe

that the $361,217.80 [in wrongful death damages] encompassed all factors

relevant to [the decedent’s] social and economic value.” Id. at ¶ 111. On

appeal, Appellant restates the allegations set forth in his complaint and



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contends that the trial court erred in finding his claim frivolous. Appellant’s

Brief at 31-32.

       For a claim of intentional misrepresentation, a plaintiff must state there

was:

       (1) [a] representation;

       (2) which is material to the transaction at hand;

       (3) made falsely, with knowledge of its falsity or recklessness as
       to whether it is true or false;

       (4) with the intent of misleading another into relying on it;

       (5) justifiable reliance on the misrepresentation; and,

       (6) the resulting injury was proximately caused by the reliance.

Bortz, 729 A.2d at 560 (citations omitted).

       By way of further background, we note that an action for wrongful death

“may be brought . . . to recover damages for the death of an individual caused

by the wrongful act or neglect or unlawful violence or negligence of another.”

See 42 Pa.C.S. § 8301(a). The damages are intended “to compensate the

decedent’s survivors for the pecuniary losses they have sustained as a result

of the decedent’s death. This includes the value of the services the victim

would have rendered to his family if he had lived.” Amato v. Bell & Gossett,

116 A.3d 607, 625 (Pa. Super. 2015) (citation omitted). As this Court noted,

“[t]he primary purpose of expert testimony is not to assist one party or

another in winning the case but to assist the trier of facts in understanding

complicated matters.” Panitz v. Behrend, 632 A.2d 562, 565 (Pa. Super.



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1995).      Nevertheless, “a jury may reject any evidence offered, even if

uncontroverted; a jury is not obliged to believe or disbelieve any evidence

presented at trial, including an expert's opinion.” See Carroll v. Avallone,

939 A.2d 872, 875 (Pa. 2007).

      Instantly, the record showed that the Albu Quant report stated that Albu

Quant, LLC, “reviewed documents pertaining to the fate [of the decedent],

and his socio-economic status, age when he died, race, occupation and past

history of incarceration.” Albu Quant Report at 1.              The Albu Quant report

estimated the decedent’s death resulted in a loss of income of $143,558

between 2005 and 2017, and a loss of $361,271 if the decedent survived to

sixty-five years old. Id. at 2. Albu Quant, LLC, stated it based his findings

on government statistics regarding income and estimated employment rates.

Id. at 1.

      The record further established that Albu Quant, LLC, provided a means

for the jury to measure the loss to the decedent’s family based on economic

data relevant to the decedent’s socio-economic background. Apparently, the

jury did not credit the report. However, the jury’s finding of no damages in

and   of    itself   did   not   establish    that    Albu   Quant,   LLC,   intentionally

misrepresented the possible damages in the wrongful death action.                    See

Carroll, 939 A.2d at 875. Accordingly, we find no basis to disturb the trial

court’s ruling that Appellant’s claim of intentional misrepresentation against

Albu Quant, LLC, was frivolous. See Ocasio, 979 A.2d at 354.




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      Wrongful Use of Civil Proceedings against Attorney Howell

      Appellant’s wrongful use of civil proceedings claim against Attorney

Howell emphasized that the wrongful death action ended in his favor.

Appellant’s Compl. at ¶ 25. Appellant alleged that after the wrongful death

action was filed against him, he asked Attorney Howell “who came up with the

idea” to commence the civil action.    Id. at ¶ 33.   According to Appellant,

Attorney Howell responded that the CVC “wanted to collect the funds it paid

out to [the decedent’s] children” in the criminal matter. Id. Appellant noted

that the decedent’s daughter later admitted that it was not her idea to sue

Appellant. Id. at ¶ 34.

      Based on these allegations, Appellant characterized the wrongful death

action as an unlawful attempt to collect or seek reimbursement for restitution

for “someone other than the actual victim.” Id. at ¶ 37. Appellant asserted

that Attorney Howell

      was grossly negligent for the cumulative factors of: (a) pursuing
      a suit even though [Appellant] was not liable to pay back the CVC;
      (b) causing an expert witness to negligently conduct a financial
      investigation of [the decedent’s] worth and (c) knowing that the
      lawsuit was not truly at the behest of [the decedent’s daughter].

Id. at ¶ 42. In support, Appellant noted that under the restitution statute, 18

Pa.C.S. § 1106, the trial court could have ordered him to reimburse the CVC,

but did not do so in the criminal matter. Id. at ¶¶ 40-41.

      On appeal, Appellant insists that the CVC encouraged the decedent’s

family to file the wrongful death action against him to recover the payments

it made in the criminal matter. Appellant’s Brief at 17. Appellant maintains

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that the proper process for the CVC to seek reimbursement was through a

sentence of restitution. Appellant argues that Attorney Howell was grossly

negligent for commencing the wrongful death action at the suggestion of CVC.

Id. at 19-20.     Additionally, Appellant contends that Attorney Howell was

grossly negligent for procuring or relying on improper damages evidence

provided by Albu Quant, LLC , and Dr. van der Goes. Id.

      The Dragonetti Act defines a claim for wrongful use of civil proceedings

as follows:

      (a) Elements of action.—A person who takes part in the
      procurement, initiation or continuation of civil proceedings against
      another is subject to liability to the other for wrongful use of civil
      proceedings:

              (1) he acts in a grossly negligent manner or without
              probable cause and primarily for a purpose other than that
              of securing the proper discovery, joinder of parties or
              adjudication of the claim in which the proceedings are
              based; and

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

42 Pa.C.S. § 8351(a). Section 8354 establishes that the plaintiff bringing a

wrongful use of civil proceeding claim bears the burden of establishing:

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


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J-S56016-19


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

42 Pa.C.S. § 8354.

      With respect to probable cause, Section 8352 provides:

      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.

42 Pa.C.S. § 8352.

      “[T]he clear language of Section 8351 permits a cause of action to be

based on gross negligence or lack of probable cause. Gross negligence is

defined as the want of even scant care and the failure to exercise even that

care which a careless person would use.”         Keystone Freight Corp. v.

Stricker, 31 A.3d 967, 973 (Pa. Super. 2011) (citations omitted) (emphasis

in original). However, “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.” Id.


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      Instantly, as the trial court concluded, Appellant’s conviction for murder

gave rise to probable cause for the wrongful death action. See Trial Ct. Op.

at 2. The damages in the wrongful death action would have included “the

value of the services the victim would have rendered to his family if he had

lived.” See Amato, 116 A.3d at 625 (citation omitted). As noted above, it

appears that the jury did not accept the damages estimate by Albu Quant,

LLC, or Dr. van der Goes. However, nothing in the record demonstrated that

their estimate was palpably false, or that Attorney Howell proceeded without

probable cause based on the information available to him.

      Therefore, even if Appellant pled facts suggesting that there were

ulterior motives for bringing the wrongful death action, Appellant has not

established that Attorney Howell violated the Dragonetti Act by commencing

the wrongful death action.     For the same reasons, Appellant’s claim that

Attorney Howell was grossly negligent in procuring or relying on the Albu

Quant report lacks merit.

      In sum, we discern no factual or legal support for Appellant’s claim that

Attorney Howell acted without probable cause or was grossly negligent in

procuring the Albu Quant report. See Stricker, 31 A.3d at 973. Therefore,

we find no error in the trial court’s conclusion that Appellant’s wrongful use of

civil proceedings claim was frivolous. See Ocasio, 979 A.2d at 354.

                Abuse of Process against Attorney Howell

      Lastly, Appellant’s claim for abuse of process against Attorney Howell is

similar to his argument regarding wrongful use of civil proceedings. Appellant

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asserts that he adequately pled that Attorney Howell “perverted the civil

process” by pursuing an action instigated by the CVC and then by procuring

and advancing false evidence of damages. Appellant’s Brief at 25. Appellant’s

arguments focus on the bad intentions of Attorney Howell, Albu Quant, LLC,

and Dr. van der Goes, as well as the decedent’s family, for bringing the

wrongful death action against him. Appellant again argues that in seeking

damages for wrongful death, Attorney Howell was complicit in pursuing

compensation for the CVC, not the decedent’s family.

      A claim 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. . . . 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.

Greenberg v. McGraw, 161 A.3d 976, 990 (Pa. Super. 2017) (citations

omitted) (emphasis in original).

      Instantly, our review reveals that Appellant failed to plead an act or

threat unauthorized by legal process.         Nor did he allege an illegitimate

objective in the use of the legal process by Attorney Howell.          Further,

Appellant’s bald assertions that the wrongful death action was undertaken to

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reimburse the CVC are not tantamount to the perversion of the legal process

for the purposes of benefit to Attorney Howell or the decedent’s family.

Accordingly, Appellant’s claim that Attorney Howell sought a goal not

authorized by the wrongful death action is frivolous where, as here, Attorney

Howell simply pursued the wrongful death action to an unsuccessful end.

Therefore, we find no basis to disturb the trial court’s ruling that Appellant’s

abuse of process claim was frivolous. See Ocasio, 979 A.2d at 354.

                                 Conclusions

      In sum, we find no reversible error in the trial court’s conclusion that

Appellant’s actions against Dr. van der Goes, Albu Quant, LLC, and Attorney

Howell were frivolous. Because Appellant’s actions lacked any basis in law or

fact, we conclude that the dismissal of his complaint under Rule 240(j) did not

violate Appellant’s due process rights. See Conover, 609 A.2d at 560.

      Lastly, we conclude that the trial court properly denied Appellant’s

application for leave to proceed in forma pauperis in the underlying action

based on its determination that Appellant’s claims were frivolous.         See

Pa.R.C.P. 240(j).

      Order affirmed.

      President Judge Panella joins the memorandum.

      Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/20




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