J-A17028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BOCHETTO & LENTZ, P.C.,                         IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

WFIC, LLC, ACE AMERICAN INSURANCE
CO., WEST CHESTER FIRE INSURANCE
CO., POWELL, TRACHTMAN, LOGAN
CARR+LE & LOMBARDO, P.C., MICHAEL
TRACHTMAN AND BRIAN ANDERSEN,

                         Appellees                  No. 2828 EDA 2014


              Appeal from the Order Entered September 22, 2014
             In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 01010 April Term 2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JULY 30, 2015

      Bochetto & Lentz, P.C. (Bochetto & Lentz) commenced this wrongful

use of civil proceedings action in April 2014, pursuant to the Dragonetti Act,

42 Pa.C.S. § 8351. Defendants-below consisted of two groups: (1) Michael

Trachtman, Esq.; Benjamin Anderson, Esq.; and Powell Trachtman Logan

Carrle & Lombardo, P.C. (Attorney Defendants); and (2) WFIC, LLC; Ace

American Insurance Company; and West Chester Fire Insurance Company

(Corporate    Defendants).     The   Attorney   Defendants   and    Corporate

Defendants filed preliminary objections in the nature of a demurrer.       On

September 22, 2014, the trial court sustained the preliminary objections and

dismissed the complaint. Bochetto & Lentz timely appealed. We affirm.
J-A17028-15


      Bochetto & Lentz raise the following issues on appeal:

      1.     Whether the trial court erred in sustaining Defendants’
      preliminary objections and dismissing [Bochetto & Lentz’s]
      wrongful use of civil proceedings claim on the basis that
      Defendants were not grossly negligent (or had probable cause)
      to file the underlying WFIC v. LaBarre action: (a) where
      Defendants’ chief “payment intangible” legal theory had no legal
      support; (b) where [Bochetto & Lentz] had well-settled
      affirmative defenses as a good faith transferee under the
      [Uniform Commercial Code] to all of Defendants’ theories of
      liability [in the underlying action]; (c) where the Attorney
      Defendants admitted they had not sufficiently investigated
      [Bochetto & Lentz’s] role in the transactions at issue prior to
      filing their claims against [Bochetto & Lentz]; (d) where
      Defendants, through their assignee, made prior judicial
      admissions that directly contradicted Defendants’ allegations in
      the underlying action; and where the assignment to WFIC was
      illegal and champertous.

      2.    Whether the trial court erred in sustaining Defendants’
      preliminary objections, where Defendants acknowledged that
      they never possessed any evidence of [Bochetto & Lentz’s]
      intentional tortious conduct, and yet still filed and prosecuted
      claims for tortious interference with contractual relations and
      civil conspiracy both of which require proof of [Bochetto &
      Lentz’s] intentional conduct.

Appellant’s Brief at 4.

      Our standard of review is settled.

      [We must] 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.

      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

                                     -2-
J-A17028-15


       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.

Majorsky v. Douglas, 58 A.3d 1250, 1268-69 (Pa. Super. 2013) (quoting

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

       We have reviewed the certified record, the briefs of the parties, the

applicable law, and the well-reasoned opinion authored by the Honorable

Patricia A. McInerney of the Court of Common Pleas of Philadelphia County,

dated December 19, 2014.           At issue in the preliminary objections filed by

Defendants-below was whether Bochetto & Lentz could establish the absence

of probable cause in Defendants’ pursuit of their claims in the underlying

action.    See Trial Court Opinion, 12/19/2014, at 6.             The trial court

determined Bochetto & Lentz could not, and we agree. Id. at 6-7.1



____________________________________________


1
  Bochetto & Lentz’s principal argument challenged reliance upon the so-
called “payment intangible” theory.      However, as set forth in Judge
McInerney’s opinion, the merit of the payment intangible theory was an
open question in Pennsylvania. Id. This was indisputable, acknowledged by
Bochetto & Lentz in its complaint, and, in our view, sufficient to defeat its
Dragonetti claim. See Complaint at ¶¶ 65-70. Moreover, when the trial
court ruled against the Corporate Defendants in the underlying matter, thus
rejecting the “payment intangible” theory, the Corporate Defendants
promptly abandoned their claims. This, too, was acknowledged by Bochetto
& Lentz in its complaint. See Id. at ¶ 72 (quoting a letter sent to the
Honorable Gary S. Glazer informing the court that WFIC, LLC would not
contest summary judgment).




                                           -3-
J-A17028-15


     We conclude that Judge McInerney’s opinion is dispositive of the issues

presented in this appeal. Accordingly, we adopt the opinion as our own for

purposes of further appellate review.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2015




                                    -4-
