J-A05020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ADAM J. HAMMOND & GERALD J.   :            IN THE SUPERIOR COURT OF
    IWANEJKO, JR.                 :                 PENNSYLVANIA
                                  :
                   Appellants     :
                                  :
              v.                  :
                                  :
    UNITED STATES LIABILITY       :
    INSURANCE COMPANY & GROUP AND :
    MARSHALL DENNEHEY WARNER      :
    COLEMAN & GOGGIN P.C.         :            No. 950 WDA 2019

                 Appeal from the Order Entered May 28, 2019
       In the Court of Common Pleas of Lawrence County Civil Division at
                            No(s): #2018-10233

BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                                   FILED MAY 07, 2020

        Adam J. Hammond and Gerald J. Iwanejko, Jr., Esquire (collectively

“Plaintiffs”), appeal from the order that sustained preliminary objections filed

by United States Liability Insurance Company & Group (“USLI”) and Marshall

Dennehey Warner Coleman & Goggin P.C. (“Marshall Dennehey”) (collectively

“Defendants”) and dismissed Plaintiffs’ amended complaint. We affirm.

        In 2011, Hammond worked with Transportation Compliance Associates,

Inc. (“TCA”) to develop computer software for tracking compliance with

hazmat transportation regulations. Pursuant to his business agreement with

TCA, Hammond purchased a professional liability insurance policy through

USLI and began consulting with software firm LANtek. After TCA opted to

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A05020-20


discontinue its relationship with Hammond, TCA and LANtek filed a declaratory

judgment action to determine ownership of the regulatory compliance

software, and also asserted tort and contract claims against Hammond.

Hammond contacted USLI about the claims, but USLI denied coverage.

Hammond filed counterclaims, which TCA and LANtek claimed were raised in

bad faith warranting an award of attorney fees and costs. Hammond returned

to USLI and renewed his request for a defense and coverage with respect to

these new allegations of misconduct, but USLI again declined. TCA, LANtek,

and Hammond ultimately resolved the dispute by stipulation, and Hammond

obtained   discharge   of   his   outstanding   financial   obligations   through

bankruptcy.

     Hammond sued USLI in federal court for breach of contract and bad faith

based upon its refusal to provide a defense and coverage. USLI, represented

by Marshall Dennehey, prevailed in the action upon the grant of judgment on

the pleadings. Specifically, the district court determined that USLI properly

declined to defend Hammond based upon an intellectual property exclusion

contained in the relevant policy.    See Hammond v. U.S. Liab. Ins. Co.,

14CV0847, 2015 WL 401503, at *12 (W.D.Pa. January 28, 2015) (indicating

that Section II of the business owner’s coverage of the policy “excludes

coverage for any ‘loss, cost, or expense’ arising out of any ‘infringement of

copyright, patent, trademark, trade secret or other intellectual property

rights’”). Hammond appealed to the Court of Appeals for the Third Circuit,


                                      -2-
J-A05020-20


arguing, inter alia, that the district court erroneously relied upon language

that is not actually found in the policy exclusion, while USLI advocated for

affirmance based upon the exclusion. Ultimately, the Third Circuit affirmed

the dismissal and the United States Supreme Court denied Hammond’s

petition for a writ of certiorari. See Hammond v. U.S. Liab. Ins. Co. & Grp.,

643 Fed.Appx. 92, 96 (3d Cir. 2016) (holding, in the alternative, that the

policy “bars coverage for ‘personal and advertising injury’ ‘arising out of any

infringement of copyright, patent, trademark, trade secret or other intellectual

property rights’”), cert. denied, 137 S.Ct. 182 (2016).

       Plaintiffs thereafter initiated the instant action.   In their amended

complaint, Hammond stated a claim against both Defendants for abuse of

process based upon their reliance in the Third Circuit upon the “loss, cost or

expense” language that is not found within the exclusion.1 Attorney Iwanejko

averred a count of intentional interference with contractual relations,

contending that Defendants’ misrepresentation about the “loss, cost or



____________________________________________


1 The record reflects that the intellectual property exclusion to the policy’s
business liability coverage provides: “This insurance does not apply to . . .
‘Personal and advertising injury’ . . . arising out of the infringement of
copyright, patent, trademark, trade secret or other intellectual property
rights.”   See Amended Complaint, 4/23/19, at Exhibit C, Section II,
¶ B.1.p.(13). On the page of the policy immediately preceding that exclusion,
a different paragraph excludes coverage “With respect to any loss, cost or
expense” arising out of a demand or suit concerning testing or removal of
pollutants. See id. at Exhibit C, Section II, ¶ B.1.p.(11). However, whether
the difference in language impacts the applicability of the exclusion is not
relevant to the issue before us in this appeal.

                                           -3-
J-A05020-20


expense” language deprived him of his contingency fee in the underlying

litigation.

       Defendants filed preliminary objections claiming that they are immune

from any tort liability that is premised upon the content of their pleadings in

the federal litigation because such statements in judicial proceedings are

absolutely privileged. The trial court agreed, and entered an order sustaining

Defendants’ preliminary objections and dismissing Plaintiffs’ amended

complaint with prejudice. Plaintiffs filed a timely notice of appeal, and both

Plaintiffs and the trial court complied with Pa.R.A.P. 1925.

       Plaintiffs present the following question for our review:

       Whether reversible error was committed in the decision to dismiss
       the claims set forth in the Amended Complaint on the basis of
       judicial privilege since it is contrary to applicable precedent . . .
       holding that judicial privilege does not operate to bar abuse of
       process and/or interference with contract claims under factual
       circumstances similar to those involved in this case.

Plaintiffs’ brief at 10 (cleaned up).

       We begin with a review of the applicable law.

       Preliminary objections in the nature of a demurrer test the legal
       sufficiency of the plaintiff’s complaint. The question presented by
       the demurrer is whether, on the facts averred, the law says with
       certainty that no recovery is possible. Thus, our scope of review
       is plenary and our standard of review mirrors that of the trial
       court.    Accepting all material averments as true, we must
       determine whether the complaint adequately states a claim for
       relief under any theory of law.

Keller v. Bank of New York Mellon, 212 A.3d 52, 56 (Pa.Super. 2019)

(cleaned up).


                                        -4-
J-A05020-20


      Upon a review of the certified record, the parties’ briefs and the relevant

law, we conclude that the opinion that the May 28, 2019 opinion authored by

the Honorable Dominick Motto thoroughly addresses and properly disposes of

Plaintiffs’ arguments. See Trial Court Opinion, 5/28/19, at 7, 9-12 (discussing

the applicable Pennsylvania precedent concerning judicial privilege and

correctly applying it to conclude that it bars Plaintiffs’ claims, which are based

solely upon a communication in a judicial proceeding); id. at 8-9

(distinguishing the non-binding federal court decisions upon which Plaintiffs

rely). Therefore, we adopt President Judge Motto’s May 28, 2019 opinion as

our own and affirm on the bases stated therein.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2020




                                      -5-
                                                                                                    Circulated 04/28/2020 01: 1   PM




                          ABAM J. HAMMOND and                               IN THE COURT OF COMMON PLEAS
                          GERALD J. IWANEJK01
                                                                            LAWRENCE COUNTY, PENNSYLVANIA
                                               Plaintiffs,
                                                                            CIVIL DIVISION
                          v�.
                                                                            NO, 10233 OF 2018, C.A.
                          UNITED STATES LIABlLXTY
                          INSURANCE COMPANY & GROUP, and
                          MARSHALL DENNEHEY WARNER
                          &1 GOGGIN P.C.,

                                               Defendants.

                                                              APPEARANCES
                          For the Plaintiffs:           Gerald J. Iwanejko, Esq.
                                                        229 Hi ckory, Hi-1-1 Dri"ve
                                                        Volant, PA 16156


                          For the Defendants:           James A. McGovernt Esq.
                                                        Marshall, Dennehey, Warner
                                                        Coleman & Goggin
                                                        Union Trust Building
                                                        suite 700
                                                        Pittsburgh1 PA 15219

                                                                    OPINION
                          MOIT0   1   P.J.                                                               May 28, 2019
                                  This ca�e 1s before the court for disposition of the
                          Prelimi·nary Objections to Plaintiffs' Amended complaint filed on
                          behalf of the defendants, United States Liability Insurance
                          Company (hereinafter "USLI'') and Marshal 1, 'Dennehey � Warner t

                          Coleman     &   Goggin P.C. (hereinafter 1'Marsl)all nennehey")                   1   which
                          �ssert that both Counts contained in Plaintiffs' Amended
                          tomplaint, abuse of process and intentional inrerference with a
                          contractual relationship, are legally insufficient as the alleged
       !3pO
    .JUDIC.IAL            tortious conduct, consisting of alleged misrepresentations of
    OISTRICT

                                                                      �J['��&\.8��A-�he
                                                       privile�1
                          contract language, was                                            al1eged wrongful
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                                                                   JODI K!J.BON�ESOLDO
                                                                    PRO AND CLERK
     i: :iZ:/50   39v'd                               O>i3Nv'MI9                       BZ:0Bgt,5t,z:L
                      statements were made du!"'i rig t!'ie cou r s s of 1 i ti gati on in F'edera 1
                  court.       Defendants' also contend that Plaintiffs' claims are
                      precluded by the doctrine of res judicata as Plaintiffs already
                      presented, during the litigation in Federal Court, their ,
                      �ontention Defendants used nonexistent language while asserting
                      the underlying claims were not covered by the insurance policy
                      pur�u�nt to the intellectual property exclusion.
                           The 'facts 'as alleged' i·n-the Amended·C�mpiaint are as follows:
                                                                                     i

                      from December 21, 2010 until December 12, 2011, the plaintiff,
                  Adam J. Hammond (hereinafter uHammond'1), wor-ksd as an independent

                      �oftware developer and consultant -for Transportation Compliance
                  ,!\ssociates, Inc. (hereinafter .. TCA")1 which was engaged in
                      providing consu1ting services for transporting hazardous
                  �aterials.        During that time, Hammond developed computer software
                  that facilitated compliance with HAZMAT transportation
                  ,regulations.        TCA and Hammond reached an agreement concerning
                  �xpanded licenses for the Regulatory compliance Software, in which
                  I


                  Hammond would receive fifty percent of the business to bt: obta.,ned
                  based upon the software.                 As part of that agreement, Hammond
                      purchased a Business owners & Technology Professional Liability
                      Insurance Po 1 icy    for a one-year te rm commencing on November 21.
                      2011 through USLI.
                            Based upon the aforementionQd               agreement   with TCA, Hammond

                  ·began consulting with LANtek, a software firm,                        by   directing the
                  ·design and programmi_ng of a new computer system for TCA' s use in
                                            -                               '

     :!!lj�g          processing   HAZMAT       transportati en comp"! i ance , wlli ch was based upon
   JUDICIAi.
   OISTRIC1"          the Regu1 a+orv C�lf(anool�Software previously deve 1 oped by

.AWRENCE COUNTY
 PeNNSYLVANIA
                                      2fil9 �AY 28 PM 2= 27         2




                                                    O>i3N\;:i'MI9
                        Hammond.        Howeve.r, TCA eventually decided not to cantinu<:; its
                        bus iness relationship with Hammond.                                   instead, TCA moved forward
                        with LANtek ,n implementing HAZMAT transportation comp1iance
                        software.
                                 on December 16, 20111 TCA and LANtek filed a declaratory
                        judgment action in th€ United States District Court for the
                        Western District of Pennsylvania seeking the court declare them
                        �h� owners of the intellectu�1 propeit�"iights for the Regulatory
                            ·-




                        �ornpliance software.                   they subsequently filed an Amehded com�laint
                        �ontaining claims for breach of contract                                   1   conversion and
                        rintentional interference with existing and prospective contractual
                        �elations.          Hammond notified USLI of those pleadings and requested
                        indemnification or coverage under the insurance policy he
                        p�rchased.          However1 USLI denied coverage for those claims.
                        Hammond filed an Answer and Counterclaims to TCA and LANtek's
                        Amended complaint asserting claims for violations of the
                        Pennsylvania uniform Trade secrets Act                                 1    unfair competitionj breach
                        �f contract or promissory estoppel, fraud and breach of fiduciary
                        duty.        on April 25, 2012, the District Court granted in part TCA
                        and LANtek s motion to dismiss counterclaim and dismissed all of
                                        1




                        Hammond's counterclaims except for the breach of contract or
                        promissory estoppel claim.
                                 TCA and LANtek also filed an AnswEr to oefendant s                                1




                        Count er-c l a+ms on May 9, 2012i which requested the Court "aware

                        Plaintiffs their reasonable attorney fe�s, expenses ·and costs for
       sa RI:!          Hammond Is bad faith and other wrongful conduct, pursuant to inter
    JUDICIAL                                              Fl ' f n 1 ri � 1 ·"' 1 r i   · 1
    blSi.FW:i           a 7 i a 12    Pa. c. s , A. § 5tlo�·           ·cfnfi' :{7'�. s. C.        § 505. ''   Hammond then

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                                                          P. . v l;:� '!1U
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                                                                O>i3N\;:i'MI9
                     notified USLI of the Answer to D�fendant1s counterclaims on May
                     161_ 2012, as he was requesting a defense or indemnification under
                     the malicious prosecution clause of the insurance policy based
                     upon the foregoing prayer for relief.                                 The next day, USLI denied
                     coverage pursuant to the insurance policy.                                 Hammond issued
                     Requests for Admissions to TCA, which included a paragraph in
                     which TCA admitted it was seeking recovery pursuant to the prayer
                     tor reiief 'for conduct that also suppo�ts ma"iicious prosecution
                     and/or abuse
                     I
                                    of   civil process,              This response was provided to USLI
                     pn June 27, 2012, to obtain coverage under the mali�ious
                     I

                     ·prosecution clause of the insurance policy. but coverage was again
                     �enie�.    on June 21 20121 the parties reached a Joint Stipulated
                     Motion for the Entry of Final Judgment and Dismissal, which
                     dismissed with prejudice all pending claims and counterclaims.
                           on March 13, 2012, Hammond cbmmenced chapter 7 Bankruptcy
                     'proceedings based upon his inability to meet his financial
                     'obligatiohs for the attorney fees incurred during the
                     aforementioned litigation.            on June 27, 2013, th� United states
                     Bankruptcy court for the central District of California discharged
                     ·all of his outstanding financial obligations.
                           Hammond also initiated a suit in the United states District
                     :.court against USLI on June 26, 2014, for breach of contract and
                     bad faith for refusing to provide a defense for the underlying
                     'litigation under the malicious prosecution clause of the insurance
                     ipolicy.   on December 11, 2014, USLI filed a Rule 12(c) Motion for
     !IJRP           ,udgment on the Pleadings      1    which was gran�ed by the court on
   JUDICIAi.
   t>lSl'RtC,        January 28, 2015, based u���ffet1��fi-cation of an intellectual

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                                                                         ,.1 �. ,- ' - •
                                                   .\
                                               O>i3N\;:i'MI9
                                ·property exclLlsion contained wi�hin the insurance policy that
                                exclud�s coverage arising out of any infringement of intellectual
                                property.           Hammond fil�d and served a Notice of Appeal on February
                                5, 2015, andj during that appeal, Hammond asserted the District
                                Court committed reversible error because the prayer for relief
                                averred       by TCA   was sufficie�t to include malicious prosecution.
                                Hammond also argued that the District Court e:red in applying the
                                ;nt�l�ect�al pr��erty ��t��sion �o def�at:insu�a�ce·coverag� based
                                upon       the use of "1 oss , cosr or expense" l anguaGe I which                                        i 5. not
                                found in that exclusion.              on appeal,                      USLI              a1so contended that the
., ..
                                bi strict court should be affirmed by utilizing the same .language .
                                ultima�ely, the Third Circuit court of Appeals affirmed the
                                decision       of    the District Court.                 Hammond then filed a Petition for
                                writ of certiorari with the United states supreme court on Julys�
                                2016, again contending that it was reversible error for the
                                ·previous courts to use the "Tos s , cost or                                            expanse" language,     which
                                cannot be located in the intellectual property exclusion.                                                   The
                                Petition for writ of certiorari was denied on October 3, 2016.
                                           Hammond and rwanejk� initiated this action against Defendants
                                by       filing a Praecipe for Writ of Summons on March 9, 2018, which
                                was reissued on April 6, 2018, April 6, 2018, May 4, 2018, June l,
                                12018, June 29, 2018, July 27, 2018, August 24, 2018, and September
                                 18 2018. Plain�iffs filed their compla;nt on October 2� 2018,
                                     1



                                :which was reinstated by Plaintiffs on October 18, 2018, and was
                                served upo� Marshall oennehey on-November 7, 2018, and us�r on
          SllF<CI               December 11: 2018.           Plaintiffs filed a Petition for Leave to Amend
        JUDICIAL
        rH!::Ti:1 lr.T




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                                  cause why P1aintiffs should not be permitted to file an Amended
                                  Complaint upon both Defendantsi who did not respond to said rule.
                                  AS a result, Plaintiffs were granted leave to fi1e an Amended
                                  complaint, which they accomplished on April 23, 2019.         In the
                                  Complaint and Amended Complaint, Hammond asserted a claim against
                                  Qefendants for abus� of process for allegedly referencing the
                                  "loss, cost or expense" language not included in the intellectual
                                  �roperty except�on.    Iw��ejk� ave�s· a cla�m-fot inientionai
                                  interference with a contractual relationship against oefendants as
                                  he   was counsel for Hammond in the underlying cases and was
                                  deprived of his fifty percent contingency fee due to their alleged
                                  misrepresentations of the language contained within the
                                  intellectual property exception.
                                         In their Preliminary Objections, Defendants contend the abuse
                                  of process and intentional intErference with a contractual
                                  relationship claims contained within Plaintiffs' Amended Complaint
                                  �re legally insufficient as the alleged tortious conduct is
                                  privileged as it occurred during the underlying litigation in
                                  Federal court.
                                         A demurrer will only be sustained in cases where the
                              ,complaint fails to set forth a valid cause of action.            Lerner v.
                                  Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v.
                              [ronJ2,.tti, 426 Pa. Super. 60'7, 627 A.2d 1219, 1221 (1993)).
                              I
                                                                                                     If a
                              '
                              .doubt exists regarding whether a demurrer should be sustained, the
                              /doubt must be resolved in favor of overruling the demurrer.               R.W.
         53RD                     v. Manzeki 585 Pa. 335, 351: 888 A.2d 740, 749 (2005) (citations
      .JUOICIAI..
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                                                         0>{3N\;:i'MI9         8Z:089t,5t,z:L
                           �reliminary objection in the nature of a demurrer.                      Werner v.
                           �later-zvberk, 799 A.2d 776� 783 (Pa. super. 2002) (citing orner
                           v. Mallick, 515 Pa. 132) 1.35, 527 A.2d 521, 523 (1987)).                       "A

                           'speaking demurrer' is defined as 'one which, in order to sustain
                           itself, requires the aid of a fact not appearing on the face of
                           the pleading objected to, or in other words, which alleges or
                           assumes the existence of a fact not already pleaded1 and which
                           to�stiiutei �h� gro�nd �f bbjection and-is- �ondemned·b�th by the
                           common law and the code system of· the pleading."'                     Regal   Indus>
                           t,orp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super.
                           ZOOS) (quoting Black's Law Dictionary 299 (6th ed. 1991)).                           The
                           Court is not permitted to consider a speaking demurrer in
                           rendering its decision on preliminary objections.                      rd.
                                Judicial privi1ege provides immunity for all communications
                           made during the course of judicial proceedings and are material to
                           the relief sought.      schanne v. Addis, 121 A.3d 942, 947 (Pa,
                           �015).   This privilege covers statements by parties, witnesses,
                           attorneys and judges.       Id.        The judt cfa'l privilege is abso l u te ,
                           regardless of the dec1ara�t1s intent, the falsity of the statement
                           br whether the statement.was made with malice.                  Id.      This is meant
                           to guarantee access to the courts and permits the free
                           �r�iculation and resolution of legal rlaims.
                                dThe reasons for ihe absolute privilege are well
                                recognized. A judge must be free to administer the law
                                without fear of consequences. This independence would
                                be impaired were he to be in daily apprehension of
                                defamation suits. This privilege is also extended to
                                parties to afford freedom of access to the courts, to
      !>JR1;>                   witnesses to encourage the·i r comp 1 ete and uni nti mi dated
                                testimor.y in cour�, �9d tR counse1 to enable him to bes�
                                         Bi �� l���i�t���{;�rt�a                      o
    JUDICIAL

                                p�9{;� ti    l d�                   h:s L��Q�i i r, � f'hT ti L� n Id 1
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                                  sanct�ons against defamatory ,;taternents, such as pe;rjury
                                  or CC?nte(!lpt proceedings." sinder v, Trian§J___g_
                                  Pwbl1cat1ons, IncL, 275 A.2d 53, 56 (Pa. 1 71).
                                  The privilege extends beyond communications made in open
                             court to include pleadings and less formal communications such as
                             preliminary conferences.                            Pawlowski v. Smorto, 588 ·A.2d 36, 42
                             (Pa. Super. 1991).        "The policy of providing for reasonably
                             unobstructed access to the relevant facts is no less compelling at
                             the pre-trial.stage of judi2:iai proce�di.ngs."                                                        Moses v.
                             �cwilliams. 549 A.2d 950, 958 (Pa. super. 1988).                                                             This protection
                             has traditionally been extended to communications issued in �he
                             regular course of judicial proceedings and are pertinent and
                             m�teria1 to the redress of relief sought.                                                      Post v. Mendel, 507
                             A.2d 351, 355 (Pa. 1986).
                                 Plaintiffs cite to General Refr...9-£tories co. v, Fireman s Fund                                                   1




                             Ins�-�1 337 �.3d 297 (3d cir. 2003) for the proposition that
                             judicial immunity does not extend to claims for abuse of process
                             as that claim is solely based upon a perversion of the judicial
                             process and immunity would impede a party s ability to assert such                        1




                             a claim. While the Court in �ral R�f[g�tQfies co. determined
                             that judicial immunity did not preclude the plaintiff's abuse of
                             process claim, the court made it abundantly clear that most of the
                             �laintiff's claims were based upon the a�tions of rhe defendants
                             in the underlying litigation as opposed to statements made during
                             I
                             I
                             that pendency of t hat; case ,                            Id. , 337 F. 3d at 312.                                 The Court
                             s ta ted , ''\vhile some communications maybe privileged-allowing, for
         �;! Fl Cl           instance� immunity from defamation actions-conduct is clearly
                                                           gUJl�A�11"?:h�J.PoJa;
     JUClt:IAL
      •1 ..... Th�--
                             .JU.JCC.ptiblc to being                                                            abu::ic."     Id.       In the undcr�ring

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                                                              0>{3N\;:i'MI9                                                 8Z::089t,5t,z::L
                         action," the defendants obs tructed discovery uti 1 "i zing "a cl ear
                         pattern of delay, stonewalling, ·dec�ption1 obfuscation and
                         pretense11 along with ignoring.court orders, permitting ·fa1se
                         testimony at depositions and misrepresenting facts to opposing
                         counsel.     Often, the defendants provided incomplete responses or
                         unreasonable objections to reasonable discovery requests requiring
                         court intervention to which the defendants provided hundreds of
                         insignificant·, nonsensical or unintelligible pages �f materials.
                         Based upon the foregoing, the General Refr£ctories co. court the
                         plaintiffs alleged sufficient facts that th� d�fendants abused the
                         judicial process in a manner not protected by the judicial
                         privi"lege through their conduct in the underlying action, but the
                         �tatements made in court filings and during argument or trial
                         r.emained privileged.    rd.
                              Plaintiffs further assert the court's decision                    1n   silver v.
                         Mendel, 894 F.2d 598 (3d Cir. 1990)j maintains that judicial
                         1mmunity does not preclude claims for 1ntentional interference
                         with a contractual relationship.            In that matter, the plaintiff'5
                         Glaim was based upon conduct, which included improperl� filing a
                         bankruptcy petitionr as opposed to statements made during the
                         pendency of that litigation.          As a result, the plaintiff's claim
                         for intentional interference with existing contractual relations
                         �as not barred by judicial immunity.               Id,
                              rt    is important to recognize that judicial immunity has been
                         �xtended to tort claims beyond defamation in relation to
     ,.u-iu                                                            Tn    B,r::own v   Pe] aware Va J J ev
   JUOlCIAl.,
   01sTR1cT              Trans..12..l ant Program 1 539 A. 2d 1372 (Pa. super. 1988), an attorney

.AWAE"NC:E COUNTY                                                9
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     SZ,/ L 1   391;1d                           O>l3N1;1MI9                      8G089t,5t,U
                          �as su�d- for his representation of Brandywine Hospital in
                          obtaining permission to use an individual's heart and lungs for
                          transplantation by the Court because the hospital informed the
                          attorney �hat the decedentjs identity was unknown.            The attorney
                          represented to the Court that the de(edent's identity was unknown
                          �nd the hospital was unable to seek consent from the decedent's
                          �ext-of-kin.    The Court held a hearing and granted the petition.
                          fhe de��deni'� heart'�nd ki���;s were ��mov�� �nder-�he auspices
                          I      '                         •

                          qf the Delaware valley Transplant Program.            Representatives of the
                          decedent then filed suit against numerous defendants, which
                          inclucled Delaware valley Transplant Program, Brandywine and the
                          attorney for the hospital for claims of mutilation of a corpse,
                          intentional infliction of emotional distress� civil conspiracy,
                          malicious wse of process, assault and batteryr and negl;gent
                          infliction of emotional distress.            The attorney filed a demurrer
                          to all claims against him based upon judicial immunity          1   which was
                          sustained by the trial court.          The plaintiffs appealed contending
                          �hat the trial court erroneously applied the concept of judicial
                          immunity by incorrectly extending it to the tort1ous behavior of
                          ihe attorney.
                               The Brown_ court explained that the_attorneyts only
                          i·nvolvement in the case was his preparation of the petition in
                          accordance with the client's instrLlCtions and his representation
                          a,t the hearing.   Hence, hi� act:ions and statements were clearly
                          p�ivileged pursuant to the doctrine of judicial immunity as they
     '5)�i;,
   JUDICIA�
   DIS'rRICT              The court stated, ''cor.trary to the assertion of appellants, the

LAWREN��   t:ou:NTV
 PliNN;;VLVAN1A
                                                                  10



    SiZ::/81   39\;:i'd                          O>i3N\;:i'MI9
                          �bsolute privilege accorded an attorney                1n   representation of a
                          client in judicial proceedings is not limited to protection
                          against defamation actions.             The immunity bars actions for
                          tortious behavior by an attorney other than defamatio�. so long as
                          it was a communication pertinent to any stage of a judicial
                          prcc:�eding."    Id., 539 A.2d at 1374-1375.                The Brown CoLlrt
                          emphasized that the central determination to be made is whether
                          the. perti��nt .communicati�� was undertaken in'connection with
                          representation of a client in a judicial proceeding.                       Id.
                          Therefore1    the court ruled that the trial court properly dismissed
                          the appellants' claims against the attorney because all of the
                          alleged tortious activities occurred in relation to a judicial
                          proceeding.     Id.
                               In the case sub Judice, Plaintiffs have averred claims for
                          abuse of process and intentional interference with contractual
;.
                          relations arising from a matter in wh1ch Iwanejko represented
                          Hammond in a suit for breach of contract and bad faith filed 1n
                          Federal District Court against USLI            1
                                                                             who was represented by
                          Marshall Dennehey.     In that matter, Hammonds claims were based
                          tipon USLI's refusal to provide insurance coverage in another case.
                          I


                          the District court dismissed Hammond's claims because                      USLI

                          properly denied coverage based upon the intellectual properties
                          �xception in the insuran�e policy.                 In doing so, the District
                          dourt made reference to "Ioss , cost or expense" language, which
                          does not appear- in the inte'llectual property exclusion.                        Hammond
          ,�Hl.l
       ,JI.I tHCIA   I.
        OISTRIC::T        argued the oistrict Court committ�d reversible error because the

LAWRICPIClo (;QUNT'I
     ;,,t!;NNSYL,VANIA
                                                                    11



                                                  O>l3N\;:;'MI9                       8Z:089t,5t,U
                              'prayer for relief averred by TCA was sufficient to include
                              malicious prosecution.         Hammond also contended that the District
                              Court erred in applying the intellectual property exclusion to
                              defeat insurance coverage based upon the use of '1 oss, cost or
                                                                                            1




                              expense" language, which is not found in that exclusion, During
                              the appeal, USLI argued that the court of Appeals should affirm
                              the decision of      the   District court utilizing similar rationale as
                              the .District'c��rt �nd u�ed the "lossi c��t or exbens�·· ianguage,
                              even though, according to Plaintiff�, Defendants knew was not
                              contained within the intellectual property exception.
                                     It is apparent that any alleged tortious conduct by
                              Defendants transpired during the pendency of the underlying
                              F.Ederal litigation as the statements made occurred in pleadings
                              �nd �uring oral argument before the Third Circuit Court of
                              Appeals.       Moreover, those statements were material to the relief
                              being sought by Plaintiffs.              As a result, judicial immunity
                              �PP
                               . l ·i es to Defendants references to the "loss         I
                                                                                           cost or expense"
                              1anguage, which was not contained within the intellectual property
                              �xception to the USLI insurance policy.              Plaintiff's reliance on
                              the concept that judicial immunity does not apply to abuse of
                              process and intentional interference with contractual relations
                              ¢lairns based upon the decisions in Gene�al Refractories Co. and
                               �ilver
                              -.-------   is misplaced as both of those case involved actual conduct
                              ijy the defendants, which included refusing to comply promptly with
                               .
                              discovery requests and the actual improper filing of a cause of

     JU�l(:;IAL.
     DISTRICT                 as the tortious conduct alleged by Plaintiffs are solely based

,AW.AEN't:I!!
 PENN6YI.VANl4
                COUJ'4"f'I'
                                                                          12



                                                          0>{3Nv'MI9
                      �pon statements made by Defendants during the underly�ng
                      litigation in documents filed with the courts and made during oral
                      argument before the Third Circuit court of Appeals.
                              As stated in Brown, judicial immunity applies to all tort
                      ¢laims1 not just defamation, and bars actions based upon
                      communications pertinent to any stage of a judicial proceeding.
                      Much like the claims against the attorney in Brown, the claims now
                      �eing as;�rt�d a�a�nst·D�fenda�t� afi��- exc1Js1��ly �ro� pertinent
                                                                                                                                                                 .              .
                      stat�ments made during the cours� of litigation and appeal iri the
                      underlying Federal court suit.                                 Therefore                      1       the statements made by
                      Qefendants in underlying case are privileged and Plaintiffs'
                      �laims in this case �re barred by judicial immunity.
                                       also contend that Plaintiffs claims are
                              Defendants 1                                                                                             1



                      precluded by the doctrine of res judicata as Plaintiffs already
                      pr�sented their contention Defendants referenced nonexistent
                      language while asserting the underlying claims were not covered by
                          I

                      �he insurance policy pursuant to the intellectual property
                       '
                      �xclusion during the litigation in Federal Court.                                                                                 oue to
                      P;laintiffs' claims being barred by judicial immunity, it is
                      4nnecessary to address Defendantsj contention those claims are
                      also precluded by the doctrine of r@s judicata.                                                                              Moreover,
                      Pa.R.C.P. No. 1030 requires that affirmative defenses, including
                      tes judicata, must be raised in a responsive pleading under the
                      Heading ''New Matter", not preliminary objections, unless the
                     qomplaint sets forth in detail
                                   11
                                                                                 1     either directly or by reference,
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   JUDICIAi..
   DISTRICT           176 A.3d 907, 926 (Pa. Super. 2017).                                               It is apparent that

A.WRErtCE COUN'l"V
  PENl'f9VL\rANIA
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      sz / Tl   39\;;'d                                  O>l3N\;;'MI9                                                        8G089t,5t,GL
                           Plaintiffs1
                                         Amended Complaint describes the underlying litigation;
                           however, There are not �ufficient details to render it free from
                           doubt that res judjcatil applies to the causes of action currently
                           Qefore this Court.    As result, it is not proper to address
                           $efendants' contention that Plaintiffs' claims are barred by the
                           I
                           doctrine of res judicata at this stage of the proceeding$.
                           I



                                Based upon the foregoing, Defendants' Preliminary Objections
                           io-.Plaintiff;,- Ame�ded Complaint are sus t ajned and vthe                                     Counts.

                           lontained
                           I
                                         within Plaintiffs' Amended Complaint are dismissed with
                               • d.
                           preju
                           J
                           I
                                  t ce ,




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