J-A14027-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RX BILLING SERVICES, INC.                     IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

JOSEPH FAZIO

                                                   No. 1778 MDA 2015


            Appeal from the Order Entered September 16, 2015
           In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 15 CV 3669


BEFORE: BOWES, J., OTT, J., AND PLATT, J.*

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.

                                              FILED FEBRUARY 17, 2017

     I agree with my distinguished colleagues that the complaint states a

claim against Mr. Fazio for abuse of process. RX Billing Services, Inc. (“RX

Billing”) alleged that Mr. Fazio filed a baseless lawsuit against the

corporation and the individual shareholders to “harass and intimidate them

into submitting to his financial demands and/or to cause financial and

emotional injury to them”, which was a purpose for which such process was

not designed.   Consequently, RX Billing incurred attorney’s fees and costs

defending a baseless lawsuit.

     I depart from my colleagues, however, in their refusal to address the

trial court’s dismissal of the Dragonetti Act claim on the ground that RX


* Retired Senior Judge assigned to the Superior Court.
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Billing did not raise such a claim in its complaint. The majority points to the

absence of a separate Dragonetti count and the familiar Dragonetti

terminology in support of that position. Furthermore, the majority suggests

that the aforementioned pleading deficiencies may explain why Mr. Fazio

filed preliminary objections in the nature of a demurrer only to the abuse of

process claim rather than as to both claims. Nonetheless, the parties briefed

and argued whether the complaint stated a claim for either an abuse of

process or under the Dragonetti Act, and the trial court addressed the

viability of both claims.    The trial court dismissed the complaint after

concluding that it failed to state a cause of action under either theory.

      Due to what it characterizes as a “procedural predicament,” the

majority finds that the viability of the Dragonetti Act claim and whether

amendment should have been permitted are issues that do not appear to be

properly before us. I disagree. Those issues are squarely before us because

the arguments were raised and addressed below and the trial court ruled on

them. We should review the trial court’s disposition of the Dragonetti claim,

which I maintain was sufficiently pled, rather than remand to permit RX

Billing to seek permission to file an amended complaint to raise a Dragonetti

claim.

         The tort of wrongful use of civil process as codified in the Dragonetti

Act provides:




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

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

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

42 Pa.C.S. § 8351. The tort has been characterized as a form of extortion or

coercion to obtain an advantage collateral to the proceeding itself. See In

re Larsen, 616 A.2d 529 (Pa. 1992).

     I believe RX Billing pled facts in its complaint that would support relief

under the Dragonetti Act. Averments describe the dispute that led up to Mr.

Fazio’s filing of the underlying lawsuit.   RX Billing alleged that the prior

lawsuit, which was terminated in RX Billings’ favor, was baseless and

frivolous and “a malicious effort to harass and intimidate.” Complaint,

6/4/12, at ¶14. I submit that allegations of a baseless and frivolous suit,

together with averments that the suit was maliciously motivated to harass

and intimidate rather than for a proper purpose such as adjudication of a

claim, are the legal equivalent of a lack of probable cause. In fact, in the

context of wrongful use of civil process claims, malice has been equated with

a lack of probable cause.   See Ludmer v. Nernberg, 553 A.2d 924 (Pa.

1989).



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      The trial court stated that it was unable to discern from the complaint

evidence that demonstrated that Mr. Fazio acted in a grossly negligent

manner or without probable cause in the underlying action. In addition, the

court found the complaint lacked sufficient facts detailing why the underlying

action was dismissed.     While conceding that the Dragonetti statute only

requires termination in favor of the party against whom the prior action was

brought, which was pled, the trial court concluded that “to argue that court

dismissal four months after a complaint was filed, and prior to discovery or

any other formal proceeding, would permit suit herein is disingenuous.”

Trial Court Opinion, 9/18/15, at 5. Finally, the trial court characterized the

dispute between the parties as a continuing one, and found “the allegations

do not rise to the level required by the statute for such a claim.” Trial Court

Opinion, 9/18/15, at 5.

      Since this matter was before the trial court on preliminary objections

in the nature of a demurrer, the issue was whether the properly pled facts

when deemed to be true, as well as the favorable reasonable inferences

drawn therefrom, stated a viable cause of action. In requiring that RX Billing

demonstrate at this preliminary stage how Mr. Fazio acted without probable

cause in instituting and continuing the underlying action, or detail specifically

why the underlying action was dismissed, the trial court applied an incorrect

legal standard.   While conceding that the Dragonetti statute only requires

termination in favor of the party against whom the prior action was

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commenced, which was duly pled, the trial court concluded without citing

any legal authority that, dismissal of a lawsuit at an early stage does not

constitute “termination” as the term is used in § 8351.1 I cannot find any

legal support for that proposition and the parties do not cite any. Hence, I

would argue that there is no legal basis to support a demurrer.

       A demurrer should only be sustained “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.” Feingold v. Hendrzak, 15 A.3d

937, 941 (Pa.Super. 2011).           For the reasons advanced supra, this is not

such a case. I would reverse the order sustaining the demurrer and

dismissing the action and remand to permit both the abuse of process and

Dragonetti claim to proceed.




____________________________________________


1
  A withdrawal of proceedings stemming from a compromise or agreement
has been held not to constitute a termination favorable to the party against
whom the proceedings were brought. See D’Elia v. Folino, 933 A.2d 117
(Pa.Super. 2007).



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