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NON-PRECEDENTIAL DECISION            SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY J. SABELLA,                       :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                        Appellant         :
                                          :
                   v.                     :
                                          :
ESTATE OF GUS MILIDES,                    :
MARY SHANNON, PERSONAL                    :       No. 1262 EDA 2013
REPRESENTATIVE AND                        :
BARBARA RUSH RENKERT                      :


              Appeal from the Judgment Entered March 18, 2013,
             in the Court of Common Pleas of Northampton County
                    Civil Division at No. C-48-CV-2006-2450


BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED AUGUST 20, 2014

     Appellant appeals the order entering summary judgment against him

in his wrongful use of civil proceedings and abuse of process action against

appellees. Finding no error, we affirm.

     The factual background is somewhat complex.         On May 21, 1990,



Northampton County to Richard Ferrara, Theodore Ferrara, and Teddy P.



Located on the Property was a motel and restaurant that sold alcoholic

beverages.




* Retired Senior Judge assigned to the Superior Court.
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     On October 3, 1992, Paul Abahazy was severely injured in a

motorcycle accident after consuming alcoholic beverages at the Property.

                                                                     commenced

a Dram Shop action against RT&T by Praecipe for Writ of Summons.1

     On February 9, 1994, RT&T deeded the Property back to appellant for

$1.00, but paid a realty transfer tax of $2,899.62, reflecting that the

Property had an actual value greater than $1.00.       On August 21, 1997,



John Fedele.   On August 31, 2000, John Sabella and Fedele deeded the

Property to Eric Schultheis and Andrew Barr.

     On March 19, 2003, the trial court awarded the Abahazys a total of

$865,000 in damages in their Dram Shop action against RT&T.2                 On

January 9, 2004, the Abahazys instituted an action pursuant to the



RT&T, the Ferraras individually, John Sabella, John Fedele, Eric Schultheis,

and Andrew Barr seeking to set aside the conveyances in order to use the

Property to satisfy the Dram Shop award.

     On April 7, 2004, appellant filed Preliminary Objections claiming the

Property did not qualify as an asset under the PUFTA.      On May 19, 2004,


1
  The action was discontinued without prejudice on September 19, 1994, and
reinstated by Complaint that same day.
2
  A default judgment      had   earlier   been   entered   against    RT&T   on
September 15, 1995.


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Eric Schultheis and Andrew Barr filed a motion for judgment on the

pleadings, contending that the PUFTA action was barred by the statute of

limitations. The motion cited an October 3, 2003 decision of this court which

held that the four-year statute of limitations on a PUFTA action runs from



See K-B Building Co. v. Sheesley Construction, Inc., 833 A.2d 1132

(Pa.Super. 2003).      Less than one month later, on June 15, 2004, the

Abahazys filed a praecipe to terminate the PUFTA action. From an exchange

of letters, it appears that counsel agreed that sanctions would not be sought

against the Abahazys.

        On April 3, 2006, appellant instituted the present action for wrongful



attorneys, appellees herein.3 On October 15, 2012, appellees filed a motion

for summary judgment; and on March 18, 2013, the trial court granted the

motion. This timely appeal followed.

        Appellant raises the following issues on appeal:

              1.    Did the trial court erroneously grant summary
                    judgment based upon oral testimony in
                    violation of the rule of Nanty Glo Borough v.
                    American Surety Co., 309 Pa. 236, 163 A.2d
                    523 (1932) and its progeny?

              2.    Did the trial court view the record in a light
                    most favorable to Appellant accepting as true
                    all well pleaded facts in his pleadings giving
                    him the benefit of all reasonable inferences to

3
    One of those attorneys has died and is represented by his estate.


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               be drawn from his pleadings and deposition
               testimony?

          3.   Does the deposition testimony of Barbara Rush
               Renkert and John R. Vivian, Jr. establish that

               they believed to be a meritorious PUFTA claim
               for the legitimate purpose of collecting on the

               found by the trial court?

          4.   Should   the   trial    court   have   applied   the

               securing the proper . . . adjudication of a
                                                51(a)(1) in
               granting Appellees summary judgment?

          5.   Did the trial abuse court abuse its discretion in
               ruling that Appellant did not present any




          Our standard of review with respect to a tria
          decision to grant or deny a motion for summary
          judgment is as follows:

               A reviewing court may disturb the order
               of the trial court only where it is
               established that the court committed an
               error of law or abused its discretion. As
               with all questions of law, our review is
               plenary.


               enter summary judgment, we focus on
               the legal standard articulated in the
               summary judgment rule.           Pa.R.C.P.
               1035.2. The rule states that where there
               is no genuine issue of material fact and
               the moving party is entitled to relief as a
               matter of law, summary judgment may
               be entered.     Where the non-moving
               party bears the burden of proof on an


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                  issue, he may not merely rely on his
                  pleadings or answers in order to survive
                  summary judgment.          Failure of a
                  nonmoving party to adduce sufficient
                  evidence on an issue essential to his case
                  and on which it bears the burden of proof
                  establishes the entitlement of the moving
                  party to judgment as a matter of law.
                  Lastly, we will view the record in the
                  light most favorable to the non-moving
                  party, and all doubts as to the existence
                  of a genuine issue of material fact must
                  be resolved against the moving party.

Gilbert v. Synagro Cent., LLC, 90 A.3d 37, 41-42 (Pa.Super. 2014),

quoting JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-

1262 (Pa.Super. 2013).

      Although appellant sets forth his appellate claims as five separate

issues, his central theory is that the trial court erred in granting summary

                                             adduce sufficient evidence that

appellees acted with an improper purpose when they filed the PUFTA lawsuit.

We will first review this central theory.

      The trial court found that a failure to show evidence of improper

purpose established an entitlement to summary judgment as to both

wrongful use of civil proceedings and abuse of process. (See Opinion of the

Court, 3/18/13 at 10-11 (wrongful use of civil proceedings); Pennsylvania

Rule of Appellate Procedure 1925(a) Statement, 6/6/13 at 4 (abuse of

process).)




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     Indeed, both of the torts of wrongful use of civil proceedings and



proven:

           § 8351. Wrongful use of civil proceedings

           (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
                       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) (underlining emphasis added).


           of legal process against another primarily to
           accomplish a purpose for which it is not designed.
           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.

Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa.Super. 2008) (underlining

emphasis added), quoting Shiner v. Moriarty, 706 A.2d 1228, 1236

(Pa.Super. 1998), appeal denied, 729 A.2d 1130 (Pa. 1998).




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      In response to the motion for summary judgment, appellant filed an



to cover up their alleged malpractice in failing to timely file the PUFTA

lawsuit:

            9.    Malice shown by allegation of an improper
                  purpose in an actual conflict of interests with
                  their clients in an attempt to cover-up their
                  $865,000.00 legal malpractice resulting from
                  their failure to file their fraudulent transfer
                  claims with[in] the period of repose/limitations
                  mandated by 12 P.S. § 5109 knowing that they




12/19/12 at 3.

      We agree with the trial court that there is no evidence of an improper

purpose in the filing of the PUFTA action and that it was filed simply to



not submitted any evidence that appellees had any other purpose.           For

instance, there is no indication that appellees intended to harass appellant or




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hoped to improperly gain some unrelated legal advantage.4        As examined

infra, even if appellees were aware that the PUFTA action was beyond the

statute of limitations when they filed it, that is not evidence of an improper

purpose.

      The facts also suggest that appellees were simply unaware at the time

of filing the PUFTA action, of the then recent decision in K-B Building that

rendered the PUFTA action untimely under the statute of limitations. This is

borne out by the fact that appellees withdrew their PUFTA suit less than a

month after Schultheis and Barr filed their motion for judgment on the

pleadings citing K-B Building.    While the trial court

lack of knowledge of K-B Building when they filed the PUFTA action met the




4
            If, however, the attorney acts without probable
            cause for belief in the possibility that the claim will
            succeed, and for an improper purpose, as, for
            example, to put pressure upon the person proceeded
            against in order to compel payment of another claim
            of his own or solely to harass the person proceeded
            against by bringing a claim known to be invalid, he is
            subject to the same liability as any other person.

Korn v. Epstein, 727 A.2d 1130, 1133 (Pa.Super. 1999), appeal denied,
743 A.2d 921 (Pa. 1999), quoting Restatement (Second) of Torts § 674,
comment d.


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not find that that same ignorance could be used to impute an improper

purpose. We again agree.5



on appeal.     Appellant complains that the trial court violated the rule in

Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523

(Pa. 1932). Nanty-Glo essentially holds that summary judgment cannot be

based upon testimony offered by the moving party as the credibility of such



grant of summary judgment was based upon the oral testimony of appellee

Renkert.

     We do not find that summary judgment was based on appellee




Dram Shop award.       (Rule 1925(a) Statement, 6/6/13 at 5-7.)    The trial

court also stated that appellant had supplied no evidence of a different

purpose.     (Id. at 6.)   The trial court then merely stated that appellee

                                                        Id. at 7.) Thus, the


5
  We note that there are cases that state that an improper purpose may be
inferred from a lack of probable cause. See Buchleitner v. Perer, 794
A.2d 366, 377 (Pa.Super. 2002), appeal denied, 808 A.2d 568 (Pa. 2002),
citing Amicone v. Shoaf, 620 A.2d 1222 (Pa.Super. 1993). However, we
are aware of no case making such a finding required. Further, as the
Legislature made lack of probable cause and improper purpose separate
elements for wrongful use of civil proceedings, it would appear that the
statute regards them as distinct elements requiring independent proof of
both.


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upon a separate analysis.

      Appellant next contends that his testimony that appellees filed the

PUFTA suit to cover up their malpractice constituted evidence of an improper

purpose. Appellant is confusing his own self-serving opinion with evidence.

Appellant was not a witness to any event that served to reveal that

appellees were operating with an improper purpose when they filed the

PUFTA action.    Appellant merely surmises from the surrounding facts that

appellees were acting with an improper purpose, but appellant fails to

indicate what surrounding fact compels this conclusion.      Simply stated,



      Appellant next complains that none of the appellees testified as to



conclusion that they did not act with an improper purpose is not supported

by the evidence. Appellees are not obligated to show that they had a proper

purpose; rather, appellant is obligated to prove an improper purpose. The



obligation.   Appellant failed to adduce evidence of an improper purpose.

Ev

was beyond the statute of limitations when they filed it, that does not prove

or indicate in the slightest that their purpose was other than to attempt to

preserve assets to satisfy



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      Appellant next argues that the trial court erred in employing an



other than the securing of the proper . .

no substantive difference between these tests. Indeed, the trial court stated



purpose other than the securing of the proper . .

(Rule 1925(a) Statement, 6/6/13 at 7.)



evidence proves the element of lack of probable cause it compels the

inference of improper purpose, we disagree.         As previously noted, cases

have held that where there is a lack of probable cause, an improper purpose

may be inferred.      We are aware of no case that compels the inference.



                                                            ellees should have

been aware of K-B Building and that the statute of limitations was an

obstacle to the success of such action. We agree with the trial court that

this failure by appellees does not merit the inference of an improper purpose

in filing the suit.

      Even if appellees were demonstrably aware of K-B Building and the

statute of limitations, we would find a lack of probable cause, but not an

inference of improper purpose. The statute of limitations is not an absolute

bar to bringing a successful suit. If it were, then an inference of improper



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purpose might be justified. However, the statute of limitations is merely an

affirmative defense that must be pleaded.         Pa.R.C.P., Rule 1030(a),

42                                                                   out the

possibility of success and does not merit an inference of improper purpose.

Moreover, as appellees argue, an attorney could still in good faith file a

PUFTA action knowing it was untimely under K-B Building, in order to

appeal the decision and argue for the reversal of K-B Building.

     Finally, appellant argues the trial court,



           that the February 9, 1994 deed to Appellant was a
           fraudulent transfer and apply res adjudicata to the
           RT&T defendants who were named as parties in the
           Dram Shop suit and apply collateral estoppel to
           Appellant who was not a party in the Dram Shop
           suit;



     During their Dram Shop suit, the Abahazys had requested that the

court pierce the corporate veil of RT&T and find the individual owners liable

based upon the fraudulent transfer of the Property back to appellant.

Judge Michael V. Franciosa declined to do so because appellees had failed to

prove a fraudulent transfer.     Appellant appears to be arguing that the

Dram Shop decision precluded the subsequent PUFTA action either through

res judicata

Statement of Matters Complained of on Appeal; consequently, the issue is

waived. Pa.R.A.P., Rule 1925(b)(4)(vii), 42 Pa.C.S.A.


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     In sum, we agree with the trial court that appellant presented no

evidence that appellees instituted the PUFTA action for an improper purpose.

Without such evidence, appellant could not maintain a suit for either

wrongful use of civil proceedings or abuse of process. Summary judgment

was properly entered.

     Order granting summary judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




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