J-S70015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BORIS KONTSEVICH                              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellant

                     v.

VLAD GUTNIK AND MICHAEL KULDINER,
ESQUIRE

                          Appellees                No. 3707 EDA 2015


            Appeal from the Order Entered November 12, 2015
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 141102705


BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                      FILED DECEMBER 12, 2016

     Appellant, Boris Kontsevich, appeals from an order entered on

November 12, 2015 granting summary judgment in favor of Appellees, Vlad

Gutnick (Gutnick) and Michael Kuldiner, Esq. (Kuldiner).       After careful

review, we affirm.

     We quote the factual and procedural recitation offered by the trial

court:

     This case commenced on November 24, 2014, when Appellant
     filed a complaint for wrongful use of civil process against
     Appellees.     The complaint averred that [] Gutnick filed a
     protection from abuse (PFA) petition against Appellant on behalf
     of his minor son, and that such filing constituted wrongful use of
     civil process.

     On May 5, 2015, Appellant filed an amended complaint. The
     amended complaint averred that on December 3, 2012,
     [Gutnick] filed a PFA petition against Appellant on behalf of his
     minor son, and that “the case … was dismissed on December 3,
J-S70015-16


     2012.” See Amended Complaint, ¶ 1. Appellant averred that
     his wife, Anna, was [Gutnick’s] ex-wife and that they had been
     engaged in a custody battle during the time of the PFA’s filing.
     See Amended Complaint, ¶¶ 1-4.           Appellant averred that
     [Gutnick] had a “long history of harassment and mental abuse …
     towards my wife and his ex-wife.” See Amended Complaint,
     ¶ 3. Appellant averred that there was no reason to believe the
     child had been abused, that no black eye was ever observed on
     the child, and accused [Gutnick] of “making false statements
     and accusations.”         See Amended Complaint, ¶¶ 6-7.
     Additionally, Appellant averred that [Kuldiner] “was expected to
     know that hearsay cannot be submitted … he was expected to
     know that facts presented by his client … do not constitute any
     form of abuse.”      See Amended Complaint, ¶ 7.       Appellant
     averred that the PFA charges were “filed for the sole purpose to
     be used against [Appellant] in another lawsuit concerning
     custody.” See Amended Complaint, ¶ 7.

     On June 22, 2015, Appellees filed an answer to the complaint,
     denying Appellant’s averments and raising as new matter that:
     Appellant had failed to state a cause of action upon which relief
     could be granted; that the claims were barred due to fraud or
     misrepresentation; that Appellant failed to mitigate the alleged
     damages; that Appellant had unclean hands; that Appellant had
     waived or was estopped from asserting his claims; and that the
     claims were barred due to laches, res judicata, waiver, or the
     applicable statute of limitations.

     On June 24, 2015, Appellant filed a reply to Appellees’ new
     matter, denying Appellees’ averments.

     On August 13, 2015, Appellees filed a motion for summary
     judgment, arguing that Appellant’s claims were barred by the
     statute of limitations, as the PFA action was filed August 12,
     2012 and the instant action was commenced on November 24,
     2014; and that Appellant could not establish under 42
     Pa.C.S.[A.] § 8351 a cause of action, because Appellant could
     not show that Appellees had commenced the [PFA] matter in a




                                   -2-
J-S70015-16


       grossly negligent manner or without probable cause, and that
       the PFA had been filed in good faith.1

       Additionally Appellees attached a transcript of the December 3,
       2012, PFA hearing. At said hearing, [Gutnick] testified that
       Appellant had raised his voice to [Gutnick] during a [telephone]
       call; that [Gutnick] could hear his son crying in the background;
       and that when [Gutnick] asked to speak to his son, Appellant
       hung up the [telephone]. N.T., 12/3/12, at 11-14. [Gutnick]
       testified that following a previous custody hearing, [Gutnick’s]
       son cried. N.T., 12/3/12, at 18. [Gutnick] testified that his
       son’s behavior had changed, and based on what his son told
       him, [Gutnick] believed his son was crying because he was
       “scared.” N.T., 12/3/12, at 25-30.

       At the conclusion of the hearing, the [trial court] found that
       there was no credible evidence that the child had been abused
       and that [Gutnick] had not met his burden of proof, and noted
       that while she believed [Gutnick] had filed the petition in good
       faith, the petition was dismissed. N.T., 12/3/12, at 43-44.

       On August 18, 2015, Appellant filed an answer in opposition to
       Appellees’ [summary judgment] motion, denying their
       averments and arguing that summary judgment was not
       appropriate as he had made out the elements of a Dragonetti
       action and that the action was not barred by the statute of
       limitations, and that the discovery process was not yet complete.

       [On August 31, 2015, Appellees filed a reply in support of their
       motion and on November 12, 2015, the trial court granted
       summary judgment in Appellees’ favor. On November 18, 2015,
       Appellant filed a motion for reconsideration and, on December 5,
       2015, he filed a timely notice of appeal to this Court. The trial
       court, on December 7, 2015, directed Appellant to file a concise
       statement of errors complained of on appeal pursuant to
       Pa.R.A.P. 1925(b). Appellant filed a concise statement alleging
____________________________________________


1
  Appellees’ argument is misplaced, as a party has no right to start an action
for the wrongful use of civil proceedings until the underlying proceedings
have terminated. Buchleitner v. Perer, 794 A..2d 366, 376-377 (Pa.
Super. 2002). In the instant case, the [PFA] proceedings were terminated
December 3, 2012, and the instant action was initiated November 24, 2014.



                                           -3-
J-S70015-16


      that the trial court erred in granting summary judgment to
      Appellees. The trial court issued its Rule 1925(a) opinion on
      March 4, 2016.]

Trial Court Opinion, 3/4/16, at 1-3 (certain capitalization omitted; footnote

in original).

      Appellant claims on appeal that Appellees were grossly negligent in

initiating their unsuccessful PFA action, which they filed without probable

cause and in reliance on false information.    Accordingly, Appellant asserts

that the trial court erred in granting summary judgment in Appellees’ favor.

The trial court rejected Appellant’s contentions, concluding instead that:

      Appellant’s [c]omplaint [pled] only conclusory allegations,
      namely that the PFA petition was filed solely to “harass my
      family and in an attempt to gain advantage in the custody case.”
      See Amended Complaint, ¶ 5. Although Appellant averred that
      there was a “years long history of harassment and mental abuse
      from [Gutnick] towards my wife,” Appellant did not provide
      details, depositions, or plead with particularity what that
      harassment or abuse entailed.             Appellant’s [c]omplaint
      references police reports and emails but Appellant did not attach
      them. Upon examination of the record, including the transcript
      from the PFA hearing, it is evident that [the trial court in the
      companion custody proceeding], after having reviewed the case,
      including all filings and submissions from both parties, found the
      PFA had been filed in good faith despite its dismissal.

Trial Court Opinion, 3/4/16, at 5-6.

      Our standard of review over such claims is well settled.

      Th[e] scope of review of an order granting summary judgment is
      plenary. Our standard of review is clear: the trial court's order
      will be reversed only where it is established that the court
      committed an error of law or clearly abused its discretion.
      Summary judgment is appropriate only in those cases where the
      record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment

                                       -4-
J-S70015-16


      as a matter of law. The reviewing court must view the record in
      the light most favorable to the nonmoving party, resolving all
      doubts as to the existence of a genuine issue of material fact
      against the moving party. When the facts are so clear that
      reasonable minds cannot differ, a trial court may properly enter
      summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-1222

(Pa. 2002).

      We carefully reviewed the trial court’s opinion, the submissions of the

parties, and the certified record. Based upon our review, we agree with the

trial court that Appellant failed to raise a genuine issue of material fact and

he failed to offer proof that Appellees initiated the PFA proceedings for an

improper purpose.       Because we find that the trial court adequately and

accurately addressed the issues raised by Appellant on appeal, we adopt its

opinion as our own in affirming the order granting summary judgment in

Appellees’ favor. We therefore direct the parties to include the trial court’s

opinion with all future filing relating to our disposition of this appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




                                       -5-
                                                                                                    Circulated 11/28/2016 01:27 PM




                               IN THE COURT OF COMMON PLEAS
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


BORIS KONTSEVICH                                                             SUPERIOR COURT No.
                                                                             3707 EDA 2015
                                                                                                                ...,,
                 v.                                                          Civil Division             BC                      "''
                                                                                                                                C:-J
                                                                             November Term 2014, No. 21.9;5
                                                                                                       c-.
                                                                                                                             c:.~
                                                                                                                           ...,_,
VLAD GUTNIK, MICHAEL KULDINER, and                                                                           c:·.         :-      .
MICHAEL KULDINER, P.C.                                                                                                   .... ·
                                                                                                                           I
                                                                                                                        .r:.·
                                                         OPINION                                                        -.
                                                                                                         (


     Appellant, Boris Kontsevich, appeals from this court's order of November 12, 20.15,
                                                                                    ~.-  ~ting
                                                                                          ___
                                                                                   ~:_   .___,
summary judgment in favor of Appellees Vlad Gutnik, Michael Kuldiner, and the Law Offices of Michael

Kuldiner, P.C.

                               FACTUAL AND PROCEDURAL HISTORY

       This case commenced on November 24, 2014, when Appellant filed a Complaint for Wrongful

Use of Civil Process against Appellees. The Complaint averred that Appellee Gutnik flied a Protection

From Abuse ("PFA") petition against Appellant on behalf of his minor son, and that such filing

constituted wrongful use of civil process.

       On May 5, 2015, Appellant filed an Amended Complaint. The Amended Complaint averred that

on December 3, 2012, Vlad Gutnik filed a PFA petition against Appellant on behalf of his minor son,

and that "the case ... was dismissed on December 3, 2012." See Amended Complaint, 1 1. Appellant

averred that his wife, Anna, was Appellee Gutnik's ex-wife and that they had been engaged in a

custody battle during the time of the PFA's filing. See Amended Complaint, ~1 1-4. Appellant averred

that Appellee Gutnlk had a "long history of harassment and mental abuse ... towards my wife and his

exwife." See Amended Complaint, ~ 3. Appellant averred that there was no reason to belleve the child

had been abused, that no black eye was ever observed on the child, and accused Appellee Gutnik of

"making false statements and accusations. See Amended Complaint, ~ 6-7. Additionally, Appellant

averred that Appellee Kuldiner "was expected to know that hearsay cannot be submitted ... he was

                                                               Kontsevich Vs Gutnik-OPFLD
                                      ()'\i!),1   Oil   I{'.   lllllll   /11111111111111111111111      21
expected to know that facts presented by his client ... do not constitute any form of abuse." See

Amended Complaint, ,i 7. Appellant averred that the PFA charges were "filed for the sole purpose to be

used against [Appellant] in another lawsuit concerning custody." See Amended Complaint, ,i 7.

        On June 22, 2015, Appellees flied an Answer to the Complaint, denying Appellant's averments

and raising as a new matter that: Appellant had failed to state a cause ·of action upon which relief

could be granted; that the claims were barred due to fraud or misrepresentation; that Appellant failed

to mitigate the alleged damages; that Appellant had unclean hands; that Appellant had waived or was

estopped from asserting his claims; and that the claims were barred due to laches, res judicata, waiver,

or the applicable statute of limitations.

       On June 24, 2015, Appellant filed a Reply to Appellees' New Matter, denying Appellees'

averments.

        On August 13, 2015, Appellees filed a Motion for Summary Judgment, arguing that Appellant's

claims were barred by the statute of limitations, as the PFA action was filed August 12, 2012 and the

instant action was commenced on November 24, 2014; and that Appellant could not establish under 42

Pa.C.S. § 8351 a cause of action, because Appellant could not show that Appellees had commenced the

matter In a grossly negligent manner or without probable cause, and that the PFA had been filed in

good faith.1

       Additionally, Appellees attached a transcript of the December 3, 2012, PFA hearing. At said

hearing, Appellee Gutnlk testified that Appellant had raised his voice to Appellee during a phone call;

that Appellee could hear his son crying in the background; and that when Appellee asked to speak to

his son, Appellant hung up the phone. N. T. 12/3/12 at 11-14. Appellee testified that following a

previous custody hearing, Appellee's son cried. N. T. 12/3/12 at 18. Appellee testified that his son's



1 Appellee's argument is misplaced, as a party has no right to start an action for the wrongful use of civil
proceedings until the underlying proceedings have terminated. Buchleitner v. Perer, 2002 PA Super 35, ,i
25, 794 A.2d 366, 376-377 (2002). In the instant case, the proceedings were terminated December 3, 2012, and
the instant action was initiated November 24, 2014.

                                                     2   22
behavior had changed, and based on what his son told him, Appellee believed his son was crying

because he was "scared," N. T. 12/3/12 at 25-30.

       At the conclusion of the hearing, the Honorable Ida K. Chen found that there was no credible

evidence that the child had been abused and that Appellee Gutnik had not met his burden of proof,

and noted that while she believed Appellee Gutnik had filed the petition in good faith, the petition was

dismissed. N. T. 12/3/12 at 43-44.

       On August 18, 2015, Appellant filed an Answer in Opposition to Appellees' Motion, denying their

averments and arguing that summary judgment was not appropriate as he had made out the elements

of a Dragonetti action and that the action was not barred by the statute of limitations, and that the

discovery process was not yet complete.

       On August 31, 2015, Appellees filed a Reply in Support of their Motion.

       On November 12, 2015, this court granted Appellee's Motion for Summary Judgment.

       On November 18, 2015, Appellant filed a Motion for Reconsideration.

       On December 5, 2015, Appellant filed a timely Notice of Appeal to the Superior Court of

Pennsylvania.

       On December 7, 2015, this court Issued its Order pursuant to Pa. R.A.P. 1925(b), directing

Appellant to file her Concise Statement of Matters Complained of on Appeal within twenty-one (21)

days. The Statement was thus due on December 16, 2015.

       On December 21, 2015, Appellant filed his Concise Statement of Matters Complained of on

Appeal, arguing that this court erred in: granting Appellees' Motion for Summary Judgment; in

determining that there was no genuine issue of material fact; in dismissing the case with prejudice; in

"determining that alleged facts do not constitute requirements sufficient to state Dragonetti claim;" in

"not giving weight to plaintiff's declared intention to present witnesses before the court";

                                              DISCUSSION

       On appeal, Appellant challenges this court's grant of Appellee's Motion for Summary Judgment.



                                                     3    23
    I.        SUMMARY JUDGMENT GENERALLY

          Summary judgment is appropriate in cases where there are no genuine issues material fact and

the moving party is entitled to judgment as a matter of law. Lance v. Wyeth, 85 A.3d 434, 449 (Pa.

2014). Facts and reasonable derivative inferences are generally considered in the light most favorable

to the non-moving party; doubts should be resolved against the moving party. Id

          A movant "may rely on uncontroverted facts, and/or allow that the factual allegations made by

the non-moving party could be true, while contending that, even accepting such facts, judgment

should be rendered for the movant as a matter of law." Lance, 85 A.3d at 449-450. "Alternatively, after

discovery, a party may challenge the ability of the non-moving party to adduce evidence of facts

material to establishing a claim or defense." Lance, 85 A.3d at 450. A court should, however, enter a

judgment when there is no genuine issue of any material fact as to a necessary element to the cause

of action. Sevast, 915 A.2d at 1152. A material fact is one that directly affects the outcome of the case.

Fortney v. Ca//enberger, 2002 PA Super 182, 801 A.2d 594, 597 (Pa. Super. Ct. 2002).

    II.       WRONGFUL USE OF CIVIL PROCEEDINGS

          Appellant averred that Appellee did not have probable cause to file the PFA and had provided

false information in the petition. In order to establish a claim for wrongful use of civil proceedings,

pursuant to statute, the elements of such a claim are:

          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
          proceed I ngs:

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

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

42 Pa.C.S. § 8351(a)(l)-(2).    Gross negligence is defined as the want of even scant care and the failure

to exercise even that care which a careless person would use. Keystone Freight Corp. v. stricker, 2011

PA Super 216, 31 A.3d 967, 973 (2011).




                                                        4 24
       Further, "a person who takes part in the procurement, initiation or continuation of civil

proceedings against another has probable cause for doing so if he reasonably believes in the existence

of the facts upon which the claim is based, and either: (1) Reasonably believes that under those facts

the claim may be valid under the existing or developing law; (2) Believes to this effect in reliance upon

the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his

knowledge and information; or (3) Believes as an attorney of record, in good faith that his

procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously

injure the opposite party." 42 Pa.C.S. § 8352. The plaintiff may collect damages in: the harm normally

resulting from arrest of imprisonment; harm to hts reputation by any defamatory matter alleged; the

expense Incurred in defending himself; any specflc pecuniary loss from the proceedings; emotional

distress caused by the proceedings; punitive damages according to law in appropriate cases.

          Finally, the plaintiff has the burden of proving the followlnq:

          1. The defendant has procured, initiated, or continued the civil proceedings against him.
          2. The proceedings were terminated in his favor.
          3. The defendant did not have probable cause for his action.
          4. The primary purpose for which the proceedings were brought was not that of securing the
             proper discovery, jolnder of parties, or adjudication of the claim on which the proceedings were
             based.
          5. The plalntiff has suffered damages as set forth in section § 8353.2

42 Pa.C.S. § 8354. In the instant case, Appellant has not met that burden and cannot meet that

burden.

          Appellant's Complaint plead only condusory accusations, namely that the PFA petition was flied

solely to "harass my family and In an attempt to gain advantage in the custody case." See Amended

Complaint, ~ 5. Although Appellant averred that there was a "years long history of harassment and

mental abuse from [Appellee] towards my wife," Appellant did not provide details, depositions, or plead




2 The plaintiff may collect damages due to: the harm normally resulting from arrest of imprisonment; harm to his
reputation by any defamatory matter alleged; the expense incurred in defending himself; any specific pecuniary
loss from the proceedings; emotional distress caused by the proceedings; punitive damages according to law in
appropriate cases. 42 Pa.C.S. § 8353.


                                                          5   25
with particularity what that harassment or abuse entailed. Appellant's Complaint references police

reports and emails but Appellant did not attach them. Upon examination of the record, including the

transcript from the PFA hearing, it is evident that Judge Chen, after having reviewed the case,

including all filings and submissions from both parties, found the PFA had been filed in good faith

despite its dismissal.

        Appellant has not plead that Appellee acted with gross negligence and without probable cause

in filing the PFA. Consequently, there was no issue of material fact and the Motion for Summary

Judgment properly granted.

                                             CONCLUSION

        For all of the reasons stated above, this court's decision should be affirmed.



                                                              BY THE COURT:




                                                              NINA




(11)    STATEMENT OF ERRORS COMPLAINED OF ON APPEAL.




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