J. A16042/18


                                 2019 PA Super 72

NANCY K. RAYNOR, ESQUIRE AND     :              IN THE SUPERIOR COURT OF
RAYNOR & ASSOCIATES, P.C.,       :                    PENNSYLVANIA
                                 :
                    Appellants   :
                                 :
                 v.              :
                                 :
MATTHEW D'ANNUNZIO, ESQUIRE;     :
KLEHR HARRISON HARVEY            :
BRANZBURG LLP;                   :
WILLIAM T. HILL, ESQUIRE;        :
MESSA & ASSOCIATES, P.C.;        :
JOSEPH MESSA, JR., ESQUIRE AND   :
ROSALIND W. SUTCH, AS EXECUTRIX :                     No. 3313 EDA 2017
OF THE ESTATE OF ROSALIND WILSON,:
DECEASED                         :


                   Appeal from the Order, August 29, 2017,
             in the Court of Common Pleas of Philadelphia County
                Civil Division at No. 00211, January Term 2017


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:                       FILED MARCH 08, 2019

      Nancy K. Raynor, Esq., and Raynor & Associates, P.C. (collectively,

“appellants”), appeal from the August 29, 2017 order entered by the Court of

Common Pleas of Philadelphia County sustaining preliminary objections filed

by Matthew D’Annunzio, Esq.; Klehr Harrison Harvey Branzburg LLP;

William T. Hill, Esq.; Messa & Associates, P.C.; Joseph Messa, Jr., Esq.; and

Rosalind W. Sutch, as executrix of the Estate of Rosalind Wilson, deceased

(collectively,   “appellees”),   and   dismissing   appellants’   complaint   with
J. A16042/18

prejudice. After careful review, we affirm in part, reverse in part, and remand

for further proceedings.

      The trial court provided the following synopsis of the relevant facts and

procedural history:

            This case evolves from the acrimonious relationship
            between opposing counsel in the matter of Sutch v.
            Roxborough [Mem’l Hosp.], et al., July Term 2009
            No. 901. In the underlying case, [appellants] served
            as defense counsel for Dr. Jeffrey Gellar and
            Roxborough      Emergency     Physician   Associates.
            [Appellees] were the plaintiff’s counsel and plaintiff,
            respectively, in the underlying action. The Superior
            Court described the facts underlying the instant case
            as a “contempt narrative [that] took on a life of its
            own . . . [in which Mr. Messa, and Mr. D’Annunzio]
            presented their conclusions with transparent venom,
            bloom, innuendo and increased outrage, refreshed
            periodically with personal attacks on Ms. Raynor.”
            Sutch v. Roxborough [Mem’l Hosp.], 142 A.3d 38,
            79 (Pa.Super. 2016).

            According to the Complaint, [Ms.] Sutch, through her
            counsel[, Messrs.] D’Annnzio, Hill, and Messa, filed
            suit against inter alia Roxborough Memorial Hospital,
            Roxborough Emergency Physician Associates, and
            Dr. Jeffrey Gellar (collectively referred to as
            “Roxborough”), alleging Roxborough’s failure to
            obtain a recommended CT scan during a May 3, 2007
            emergency room visit resulted in a missed opportunity
            to diagnose and treat Decedent Rosaline [sic] Wilson’s
            lung cancer. The Sutch trial commenced on May 21,
            2012. As a result of a pre-trial ruling on a motion
            in limine, [Ms.] Raynor and Roxborough were
            precluded from presenting evidence or argument
            regarding Rosaline [sic] Wilson’s history of smoking.
            At the start of the defense case, [Messrs.] Messa and
            D’Annunzio requested an order from the trial judge,
            the Honorable Paul Panepinto, directing [Ms.] Raynor
            to inform her witnesses of the ban on smoking



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          immediately   before   they        took    the    stand.
          Judge Panepinto responded:

                [COURT]: Okay. Well, I don’t have a
                response. They know the rules. So I
                assume – did you talk with them? Maybe
                you didn’t bring that up this morning.

          During the defense case-in-chief, [Ms.] Raynor asked
          Roxborough’s expert, John J. Kelly, D.O., about
          Ms. Wilson’s cardiac risk factors. Dr. Kelly’s response
          included that she was a smoker. Outside of the
          presence of the jury, [Messrs.] Messa and D’Annunzio
          objected to Dr. Kelly’s testimony because it mentioned
          Ms. Wilson’s smoking history.        Judge Panepinto
          conducted a colloquy of Dr. Kelly, who testified that
          he did not recall being instructed by [Ms.] Raynor
          about the pre-trial in limine ruling concerning
          smoking. Following Judge Panepinto’s colloquy with
          Dr. Kelly, [Mr.] D’Annunzio argued [Ms.] Raynor
          should be held in contempt for disregarding direct,
          specific, instructions from the trial court that
          immediately before taking the stand, each witness
          should be instructed not to mention smoking.
          [Ms.] Raynor responded that she had instructed
          Dr. Kelly not to mention smoking, and her question
          was not intended to elicit testimony concerning
          smoking; rather the question was meant to elicit
          testimony concerning vascular disease and other
          issues with Ms. Wilson’s carotid artery.

          The following day, Judge Panepinto held an
          in camera conference concerning the reference to
          smoking. At the conference, [Mr.] Messa argued
          i) [Ms.] Raynor acted intentionally or recklessly in
          asking the question, ii) [Ms.] Raynor lied to the Court
          when she stated that she had informed Dr. Kelly about
          the preclusion of testimony related to smoking, and
          iii) the Court should grant a mistrial, or in the
          alternative, grant sanctions such as striking Dr. Kelly’s
          testimony, striking Dr. Geller’s entire defense,
          disqualifying [Ms.] Raynor as counsel, and/or
          providing a curative instruction. Judge Panepinto
          denied the request for a mistrial and chose to give a


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            curative instruction to the jury. On June 8, 2012, the
            jury returned a verdict in favor of [Ms.] Sutch for
            $190,000.

            [Ms.] Sutch, through her counsel[, Messrs.] Messa
            and D’Annunzio, filed post-trial motions seeking a new
            trial due to Dr. Kelly’s smoking reference, and, in the
            event Judge Panepinto granted the new trial, seeking
            sanctions against [Ms.] Raynor and her clients in the
            amount of [counsel] fees and costs incurred in
            preparing for and attending the original trial.
            Judge Panepinto granted the request for a new trial.

Trial court opinion, 8/29/17 at 1-4 (footnote and citations to the record

omitted).

      This court affirmed the trial court’s order granting a new trial on

November 4, 2013. See Sutch v. Roxborough Mem’l Hosp., 91 A.3d 1273

(Pa.Super. 2013) (unpublished memorandum).

            Subsequently, on March 11, 2014, the trial court
            ordered a hearing on [appellees’] motion for
            contempt/sanctions, limited to issues concerning
            whether sanctions should be imposed. The order
            stated, “Any evidence with regard to the type of
            sanctions to be imposed, monetary or otherwise will
            be held under advisement pending the scheduling of
            a subsequent hearing if necessary.” (See Trial Court
            Order, filed March 11, 2014, at 1[].) On March 14,
            2014, Ms. Raynor filed a motion to determine the
            nature of the sanctions sought by [appellees.
            Appellees] responded and specified costs and fees
            under 42 Pa.C.S.A. § 2503(7) for dilatory, obdurate,
            or vexatious conduct; civil contempt; and direct
            criminal contempt.

Sutch v. Roxborough Mem’l Hosp., 142 A.3d 38, 55 (Pa.Super. 2016)

(citation omitted). Prior to the hearing, the trial court indicated that it would




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not take up the matter as a criminal proceeding for criminal contempt. Id. at

56.

           On March 27, 2014 and March 31, 2014,
           Judge Panepinto conducted hearings on whether
           [Ms.] Raynor should be held in contempt or
           sanctioned; at those hearings, [Messrs.] Messa and
           D’Annunzio presented only the notes of testimony
           from the first Sutch trial. According to [appellants,
           Messrs.] Messa and D’Annunzio improperly argued,
           both in briefing and at oral argument, that
           [Ms.] Raynor deliberately violated an order requiring
           her to inform all of her witnesses of the ban on
           discussing [Ms.] Wilson’s history of smoking
           immediately before those witnesses took the stand
           even though the only order that existed was the order
           excluding references to smoking. Judge Panepinto
           issued an Order dated May 2, 2014, and docketed
           May 5, 2014, that sanctions shall be imposed upon
           [Ms.] Raynor.      [Messrs.] Messa and D’Annunzio,
           together with their respective firms, filed a brief
           requesting a total of $1,349,063.67 in sanctions.
           [Appellants] filed a response, challenging the
           requested amounts. Without holding an additional
           hearing as to the amount of the sanction,
           Judge Panepinto issued an order docketed on
           November 4, 2014 sanctioning [appellants] in the
           amount of $946,195.16, divided as follows:
           $615,349.50 to Klehr Harrison, $160,612.50 to the
           Messa Firm, and $170,235.16 to [Ms.] Sutch.
           [Appellants] filed an appeal to the Superior Court.

           On January 8, 2015, while the appeal to the Superior
           Court was pending, [Messrs.] Messa and D’Annunzio
           entered judgment on Judge Panepinto’s November 4,
           2014 Order and the next day issued writs of
           attachment, executions in attachment, and summons
           upon various garnishees, which had the effect of
           freezing [Ms.] Raynor’s personal and law firm bank
           accounts and placing a lien upon [Ms.] Raynor’s home.
           The Superior Court, by Order dated February 18,
           2015, stayed all existing execution and garnishment
           actions, as well as any future proceedings in the case,


                                    -5-
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             thereby permitting [appellants] access to their bank
             accounts. By Opinion dated June 15, 2016, the
             Superior Court reversed Judge Panepinto’s Orders of
             May 2, 2014 and November 4, 2014, thereby vacating
             all sanctions and judgments taken thereon. According
             to the Complaint, the Superior Court’s central holdings
             were 1) [Ms.] Raynor could not have intentionally
             violated Judge Panepinto’s order to instruct every
             witness of the prohibition on mentioning smoking
             immediately before the witness took the stand
             because no such order existed, and 2) no evidence of
             record existed to prove that [Ms.] Raynor colluded
             with Dr. Kelly in an effort to flout the in limine ruling
             barring testimony about smoking.           The Supreme
             Court denied the Petition for Allowance of Appeal.[1]

             [Appellants] commenced the instant case by Writ of
             Summons on January 3, 2017. The Complaint, filed
             April 6, 2017, sounds in 1) violation of the Dragonetti
             Act,[2] 2) common law wrongful use of civil
             proceedings, and 3) abuse of process. The crux of the
             Complaint is [appellees] knew their requests for
             sanctions and contempt were wholly unsupported by
             facts and law, yet they nevertheless pursued
             sanctions and contempt for the vindictive purpose of
             destroying [Ms.] Raynor’s professional livelihood and
             personal life.

             [Mr.] D’Annunzio, Klehr Harrison Harvey Branzburg
             LLP, [Mr.] Hill, []and [Ms.] Sutch [] (collectively, “the
             D’Annunzio [appellees]”) filed Preliminary Objections
             arguing 1) [Ms.] Sutch was improperly added as a
             party because she was named in the Complaint but
             not the Writ of Summons, 2) demurrer to all claims
             against [Ms.] Sutch because there are no allegations
             of any actions taken by [Ms.] Sutch, 3) [appellants]
             lack standing to bring a Dragonetti claim because they
             were not a party to the underlying action, 4) demurrer
             to the Dragonetti claim because moving for sanctions
             or contempt does not constitute “procurement,

1   Sutch v. Roxborough Mem’l Hosp., 163 A.3d 399 (Pa. 2016).

2   42 Pa.C.S.A. §§ 8351-8354.


                                       -6-
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          initiation or continuation of civil proceedings” within
          the meaning of the Dragonetti Act, 5) demurrer to the
          Dragonetti claim because Judge Panepinto’s Order of
          May 2, 2014 established that probable cause existed
          to seek sanctions and/or contempt, 6) public policy
          prohibits a Dragonetti claim based on the pursuit of
          sanctions and/or contempt, 7) demurrer to the
          common law wrongful use of civil proceedings claim
          because such a claim has been subsumed by the
          Dragonetti Act, 8) demurrer to the abuse of process
          claim because it is barred by the statute of limitations,
          9) demurrer to the abuse of process claim because
          there is no perversion of the legal process by pursuing
          the request for sanctions and/or contempt, and
          10) paragraph 111 should be stricken as scandalous
          and impertinent.

          [] Messa & Associates, P.C. and [Mr.] Messa
          (collectively “the Messa [appellees]”) filed Preliminary
          Objections arguing 1) [appellants] lack standing to
          bring a Dragonetti claim because they were not a
          party to the underlying action, 2) demurrer to the
          Dragonetti claim because moving for sanctions or
          contempt does not constitute “procurement, initiation
          or continuation of civil proceedings” within the
          meaning of the Dragonetti Act, 3) demurrer to the
          Dragonetti claim because probable cause existed to
          seek sanctions and/or contempt, 4) demurrer to the
          common law wrongful use of civil proceedings claim
          because such a claim has been subsumed by the
          Dragonetti Act, 5) demurrer to the abuse of process
          claim because it is barred by the statute of limitations,
          and 6) demurrer to the abuse of process claim
          because there is no perversion of the legal process by
          pursuing the request for sanctions and/or contempt.

          [Appellants] filed Responses in Opposition to both sets
          of Preliminary Objections. Additionally, [appellants]
          filed Preliminary Objections to the Messa [appellees’]
          Preliminary Objections and Preliminary Objections to
          the D’Annunzio [appellees’] Preliminary Objections in
          which they argue the preliminary objection to the
          abuse of process claim based on the statute of
          limitations should be stricken because the statute of


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            limitation[s], an affirmative defense, cannot be raised
            by preliminary objection. The Messa [appellees] and
            the D’Annunzio [appellees], respectfully, opposed
            [appellants’]    Preliminary    Objections   to   their
            Preliminary Objections.

Trial court opinion, 8/29/17 at 4-7 (footnotes and citations to the record

omitted).

      On August 29, 2017, the trial court sustained appellees’ preliminary

objections and dismissed appellants’ complaint with prejudice.         Appellants

filed a notice of appeal to this court on September 27, 2017. The trial court

did not order appellants to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Pursuant to Pa.R.A.P. 1925(a), the trial

court filed an opinion, in which it incorporated the contents of its opinion and

order dated August 29, 2017.

      Appellants raise the following issues for our review:

            1.    Is the term “civil proceedings,” as used in
                  Section 8351(a) of the Dragonetti Act,
                  sufficiently broad to encompass the wrongful
                  use of a civil proceeding other than an entire
                  lawsuit, i.e., something other than a civil action
                  complaint?

            2.    Did [appellants], as the parties against whom a
                  wrongful civil proceeding was initiated,
                  procured, and continued, have standing to bring
                  a claim under the Dragonetti Act?

            3.    May two claims that are mutually exclusive be
                  properly maintained, when they are plainly pled
                  in the alternative and a legal challenge to one of
                  the mutually exclusive claims is predicted to
                  occur in the appellate courts, where the
                  [appellants] asserting the two mutually


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                  exclusive claims intend only to rely on the
                  second claim if the legal challenge to the first
                  results in the unavailability of the first claim in
                  [appellants’] case?

            4.    Did [appellants] sufficiently plead their abuse of
                  process claim by alleging that [appellees] used
                  a civil process primarily to accomplish a purpose
                  that was improper, not legitimate, and/or not
                  the purpose for which the process was
                  designed?

Appellants’ brief at 6-7.

      Appellants appeal from an order sustaining preliminary objections.

Accordingly, we are governed 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.

            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.

Richmond v. McHale, 35 A.3d 779, 783 (Pa.Super. 2012), quoting

Wayne M. Chiurazzi Law Inc. v. MRO Corp., 27 A.3d 1272, 1277




                                      -9-
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(Pa.Super. 2011), rev’d on other grounds, 97 A.3d 275 (Pa. 2014) (citations

omitted).

                                      I.

     First, appellants argue that the trial court erred when it held that a

“civil proceeding” for the purposes of a cause of action pursuant to the

Dragonetti Act does not encompass contempt proceedings. (Appellants’ brief

at 25.)     Specifically, appellants aver that there is no “per se rule that

Dragonetti claims can never be based on the ‘procurement, initiation or

continuation’ of something less than an entire civil action.”   (Id. at 32-33

(emphasis omitted).) The trial court concluded that “[r]equesting sanctions

and/or finding of contempt as part of a post-trial motion does not constitute

the ‘procurement, initiation, or continuation of civil proceedings’ under the

Dragonetti Act because the request for sanctions, made in a post-trial motion,

was not an action.” (Trial court opinion, 8/29/17 at 15.)

     In short, the question before this court is whether “civil proceedings” as

contemplated by the Dragonetti Act include the initiation of contempt

proceedings and accompanying requests for sanctions.        Appellants rely on

both Black’s Law Dictionary and the Judiciary Code to argue that a

“proceeding” is defined “not only as a complete remedy, but also as a mere

procedural step that is part of a larger action or special proceeding.”

(Appellants’ brief at 30, citing Black’s Law Dictionary, 2155 (8th ed. 2004).)

Appellants also cite to Section 102 of the Judiciary Code, which defines



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“proceedings” to “include[] every declaration, petition, or other application

which may be made to a court under law or usage under special statutory

authority, but the term does not include an action or an appeal.” (Appellants’

brief at 30 n.7, quoting 42 Pa.C.S.A. § 102.) “Action” is defined as “any action

at law or in equity.” 42 Pa.C.S.A. § 102. The statute also provides that the

aforementioned definitions set forth in the Judiciary Code shall apply “unless

the context clearly indicates otherwise.” Id.

      Appellees, however, take the position that a civil proceeding can only

encompass the initiation of “a lawsuit with malicious motive and lacking

probable cause.”    (D’Annunzio appellees’ brief at 22, quoting Werner v.

Plater-Zyberk, 799 A.2d 776, 792 (Pa.Super. 2002) (citations omitted).)

Appellees further argue that applying the definition of “proceeding” as found

in the Judiciary Code would produce an illogical and unworkable result which

would run afoul of the presumption in ascertaining legislative intent set forth

in 1 Pa.C.S.A. § 1922(1) (stating that “the General Assembly does not intend

a result that is absurd, impossible           of execution, or unreasonable).

(D’Annunzio appellees’ brief at 29-30; Messa appellees’ brief at 18.)

      The trial court agreed with appellees, finding that appellants’ proposed

definition of “proceeding” was unworkable and would lead to an illogical result

when applied and, therefore, must fail. The trial court further noted under

appellants’ proposed definition,

            while useful for their position in the case sub judice,
            conflicts with the binding precedent of th[e]


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             Commonwealth’s appellate courts.             See, e.g.,
             Bannar v. Miller, 701 A.2d 242 (Pa.Super. 1997)
             (finding sufficient evidence existed to support the
             jury’s finding that the defendants had filed the
             underlying lawsuit against the plaintiff for an improper
             purpose). While [appellants’] reliance on Section
             102’s definition of proceedings is creative, it is clear,
             in the context of the case sub judice, the broad
             definition of “proceeding” contained within Section
             102 cannot be utilized.

Trial court opinion, 8/29/17 at 12-13. Further, the trial court noted that under

appellants’ proposed definition of “proceeding,” “the Dragonetti Act would not

apply to a lawsuit because ‘actions’ are specifically excluded from the

definition of ‘proceedings.’” (Id. at 12.)

      The trial court found that:

             a review of the text of the Dragonetti Act, the binding
             precedent from the appellate courts, and the common
             law upon which the Dragonetti Act is based, supports
             the conclusion [that] the phrase “procurement,
             initiation, or continuation of civil proceedings” means
             the filing of a civil action, and not including a request
             for sanctions in a post-trial motion.

Id. at 14.

      The Dragonetti Act created the following cause of action:

             (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


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                          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).

        For the following reasons, we find that the trial court committed an error

of law, and we further find that a contempt proceeding in this case following

the remand of the record by this court does represent a “procurement,

initiation, or continuation of civil proceedings” as contemplated by the

Dragonetti Act.

        The purpose of a civil lawsuit is so that an injured party may be

compensated and/or made whole by the party legally responsible for damages

and/or injuries. See, e.g., Solarchick ex rel. Solarchick v. Metro. Life

Ins. Co., 430 F. Supp. 2d 511, 516 (W.D.Pa. 2006) (applying Pennsylvania

law).    Further, Section 2503 of the Judiciary Code entitles a participant to

attorneys’ fees for dilatory, obdurate, or vexatious conduct. See 42 Pa.C.S.A.

§ 2503(7). In that regard, both a civil lawsuit and a motion for contempt

requesting sanctions under Section 2503(7) put an individual’s basic

fundamental right of property in legal jeopardy.       Indeed, a civil contempt

proceeding, similar to a civil lawsuit, places the burden of proof on the

complaining party to establish, by a preponderance of the evidence, that the

defendant is in noncompliance with a court order.               MacDougall v.

MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012), appeal denied, 75 A.3d


                                      - 13 -
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1282 (Pa. 2013), citing Lachat v. Hinchcliffe, 769 A.2d 481, 489 (Pa.Super.

2001).   Much like in a civil lawsuit, before holding an individual in civil

contempt, “the court must undertake (1) a rule to show cause; (2) an answer

and hearing; (3) a rule absolute; (4) a hearing on the contempt citation; and

(5) an adjudication of contempt.” Lachat, 769 A.2d at 489, citing McMahon

v. McMahon, 706 A.2d 350, 356 (Pa.Super. 1998).

      Here, appellees, initially in a post-trial motion,3 sought a finding of

contempt against appellants and requested $1,349,063.67 in attorneys’ fees

and costs. The trial court first granted appellees’ motion for a new trial, which

we affirmed on November 4, 2013. See Sutch, 91 A.3d 1273 (unpublished

memorandum). Following the remand of the record by this court, the trial

court noted “that [appellees were] proceeding against Ms. Raynor in civil

contempt for compensatory damages and under 42 Pa.C.S.A. § 2503(7)

(counsel fees as a sanction for dilatory, vexatious, and obdurate behavior).”

Sutch, 142 A.3d at 56 (emphasis in original). The trial court subsequently

held a hearing on March 27, 2014 and March 31, 2014, in order to determine

whether Ms. Raynor was in civil contempt and/or was subject to sanctions.

The trial court ultimately sanctioned appellants a total of $946,195.16. We

find that a motion seeking a finding of contempt and a request for sanctions


3 In the post-trial motion, appellees, on behalf of the plaintiff in the underlying
medical malpractice litigation, also “requested a new trial because (1) the
[trial] court erred in denying [p]laintiff’s motion for a mistrial based on
Dr. Kelly’s violation of the smoking preclusion order and/or (2) the ‘grossly
inadequate verdict’” of $190,000. Sutch, 142 A.3d at 53.


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is, separate and distinct from post-trial motions alleging trial court error filed

in the underlying lawsuit for the purposes of the Dragonetti Act, tantamount

to the filing of a civil lawsuit. In a fashion similar to a civil lawsuit, the parties

exchanged pleadings, and the trial court held a hearing, issued an adjudication

of contempt, and imposed sanctions.

      Accordingly, we find that seeking an adjudication of contempt and

requesting sanctions constitutes the procurement, initiation, or continuation

of civil proceedings as contemplated by the Dragonetti Act. Therefore, the

trial court committed an error of law, and we reverse. While we make no

determination as to whether appellants will be successful on the merits, they

are entitled to their day in court.

                                         II.

      In their second issue on appeal, appellants contend that the trial court

erred when it determined that appellants did not have standing to bring a

cause of action under the Dragonetti Act because they were not parties to the

underlying civil action. (Appellants’ brief at 36.)

      Indeed, we have previously stated that a cause of action under the

Dragonetti Act “cannot be maintained by one who is not an original party to

the underlying action.”     Hart v. O’Malley, 647 A.2d 542, 549 (Pa.Super.

1994), affirmed, 676 A.2d 222 (Pa. 1996). It is of no import, however, that

appellants were not original parties to the underlying medical malpractice

lawsuit that gave rise to the request for a finding of contempt and sanctions.



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As discussed in detail above, appellants have established that they brought

forward a viable cause of action pursuant to the Dragonetti Act.        Because

appellants were the defendants in the contempt proceedings that give rise to

the Dragonetti cause of action presently before us and were the parties against

whom sanctions were imposed, we find that appellants have standing.

                                      III.

      Appellants next contend that the trial court erred when it sustained the

preliminary objections in the form of a demurrer to the common law wrongful

use of civil proceedings brought forward in appellants’ complaint.         In its

opinion, the trial court concluded that “until the appellate courts hold the

Dragonetti Act is unconstitutional or does not subsume the common law tort

of wrongful use of civil proceedings, the common law tort of wrongful use of

civil proceedings is not a viable cause of action in this Commonwealth.” (Trial

court opinion, 8/29/17 at 9.)

      At the time appellants filed their complaint, a constitutional challenge to

the Dragonetti Act was pending before our supreme court. See Villani v.

Seibert, 159 A.3d 478 (Pa. 2017).        The Supreme Court of Pennsylvania

ultimately held that the Dragonetti Act is constitutional and that attorneys

may be found liable for wrongful use of civil proceedings claims. Id. at 492.

Specifically, our supreme court concluded that the Dragonetti Act did not

infringe upon the Supreme Court of Pennsylvania’s constitutionally prescribed

power to regulate the practice of law within the Commonwealth, insofar as



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such wrongful use of civil proceedings actions may be advanced against

attorneys. Id. at 492-493. As the trial court stated, appellants’ “inclusion of

the common law wrongful use of civil proceedings claim was a reasonable

precautionary measure in light of the possibility the Villani court may [have

held] the Dragonetti Act unconstitutional.” (Trial court opinion, 8/29/17 at 8.)

      The trial court, however, concluded that because our supreme court held

the Dragonetti Act to be constitutional, and because appellants failed to

identify any other cases currently pending before our supreme court

challenging the constitutionality of the Dragonetti Act, the preliminary

objections to their common law wrongful use of civil proceedings claim must

be sustained.   Because our supreme court held that the Dragonetti Act is

constitutional as to attorneys, it is not necessary to address the third issue on

appeal on its merits, as the Dragonetti Act subsumes any common law

wrongful use of civil proceedings claim.

                                      IV.

      Finally, appellants claim that the trial court erred when it sustained

appellees’ preliminary objections in the nature of a demurrer to Count III of

their complaint, which alleged abuse of process.

      Appellants contend that the trial court erred in granting appellees’

preliminary objections in the nature of a demurrer to their abuse of process

claim because their complaint sufficiently alleged an abuse of process cause

of action, as it properly included allegations that appellees used the contempt



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proceeding for the improper purposes of (1) harassing, embarrassing, and

damaging appellants’ reputation; and (2) collecting attorneys’ fees to which

they were not entitled in light of the contingent-fee agreement that appellees

entered into with the plaintiff in the underlying medical malpractice action,

which caused appellants harm. (Appellants’ brief at 44.)

           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[, 799 A.2d at 785] (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.”).

P.J.A. v. H.C.N., 156 A.3d 284, 288 (Pa.Super. 2017).


                                    - 18 -
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      Appellants first claim that appellees initiated contempt proceedings for

the improper purpose of causing personal and professional harm.           (See

appellants’ brief at 44.) In support, appellants point out that when this court

considered their appeal of the underlying contempt and sanctions order, we

noted that “[e]ach time [the attorney appellees] brought the contempt issue

before the [trial] court, they presumed what they were initially required to

prove and presented their conclusions with transparent venom, bloom,

innuendo and increased outrage, refreshed periodically with personal attacks

on Ms. Raynor.”    (Appellant’s brief at 21, 44) (some brackets in original)

quoting Sutch, 142 A.3d at 79.

      Our cases, however, hold that a defendant cannot be held liable for

abuse of process when the defendant “has done nothing more than carry out

the process to its authorized conclusion, even though with bad intentions.”

Shaffer v. Stewart, 473 A.2d 1017, 1019 (Pa.Super. 1984), quoting

Di Sante v. Russ Fin. Co., 380 A.2d 439, 441 (Pa.Super. 1977) (citation

omitted); see also Hart, 647 A.2d at 552 (collecting cases). Indeed, the trial

court noted that even if a plaintiff in an abuse of process cause of action can

establish that a defendant was “consumed with hatred for [plaintiff], and that

[defendant] thought of little else through his waking hours, he still has not

created a genuine issue as to whether the primary purpose of the suit was

anything other than [carrying the process to its authorized conclusion.]” (Trial




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J. A16042/18

court opinion, 8/29/17 at 18-19, citing Rosen v. Tabby, 1997 WL 667147

(E.D.Pa. 1997) (applying Pennsylvania law).)

      Appellants next claim that appellees initiated the contempt proceeding

for the improper purpose of collecting attorneys’ fees to which they would not

have otherwise been entitled due to the contingent-fee agreement they

entered into with the plaintiff below.   (Appellants’ brief at 44, 47.)   This

argument is a red herring of sorts because it tends to divert attention from

the stated purpose of the contempt proceedings, which was to recover

compensatory damages. Sutch, 142 A.3d at 56. “Compensatory damages

are ‘damages awarded to a person as compensation, indemnity or restitution

for harm sustained by him.’” Colodonato v. Consol. Rail Corp., 470 A.2d

475, 479 (Pa. 1983), quoting Restatement (Second) of Torts, § 903 (1979).

The fact that appellees entered into a contingent-fee agreement with plaintiff

below has no bearing on the compensatory damages they sought to recover

in the contempt proceeding, which would include costs associated with having

to re-try a lengthy and complex medical malpractice case, the first trial of

which spanned 19 days.4

      Therefore, the trial court did not commit an error of law when it granted

appellees’ preliminary objections in the nature of a demurrer to Count III of

appellants’ complaint.




4The first trial began on May 21, 2012 and ended on June 8, 2012. See
Sutch, 142 A.3d at 45, 53.


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      Order affirmed in part and reversed in part.     Remanded for further

proceedings consistent with this opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 3/8/19




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