J-A07043-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH   ORUSKA  AND  CYNTHIA                  IN THE SUPERIOR COURT OF
ORUSKA, HUSBAND AND WIFE, AND                        PENNSYLVANIA
ANTHONY ORUSKA



                       v.

PAUL   A.  KELLY  AND  JOHN    L.
VANDERMARK,   EXECUTOR  OF   THE
ESTATE OF GUY E. VANDERMARK, SR.

APPEAL OF: PAUL A. KELLY

                                                   No. 1120 MDA 2013


                Appeal from the Judgment Entered June 6, 2013
             In the Court of Common Pleas of Susquehanna County
                        Civil Division at No: 2006-01754


BEFORE: GANTMAN, P.J. , DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 09, 2014

       Appellant Paul A. Kelly, Esq. appeals from the June 6, 2013 judgment

entered by Court of Common Pleas of Susquehanna County (trial court) in

favor of Appellees Joseph, Cynthia and Anthony Oruska. 1 Upon review, we

affirm.


____________________________________________


1
  Appellant erroneously appealed from the trial court’s June 11, 2013 order
denying his post-trial motions. It is settled that an appeal will only be
permitted from a final order unless otherwise permitted by statute or rule of
court. Maya v. Johnson & Johnson, 297 A.3d 1203, 1208 n.2 (Pa. Super.
2014) (citation and quotation marks omitted). In fact, an appeal from an
order denying post-trial motions is interlocutory. Id. (citation omitted);
(Footnote Continued Next Page)
J-A07043-14



      This panel previously summarized the procedural history:
      Briefly, Appellees filed a complaint against Appellant alleging
      wrongful use of civil proceedings and abuse of process.
      Following a jury trial, the jury returned a verdict in favor of
      Appellees. The jury also awarded punitive damages against
      Appellant.    Appellant filed post-trial motions for judgment
      notwithstanding the verdict (JNOV) with respect to each count of
      the complaint and with regard to punitive damages. The trial
      court denied the motions. This appeal followed.

Oruska v. Kelly, No. 1120 MDA 2013, unpublished memorandum at 2 (Pa.

Super. filed July 11, 2014).            Following Appellant’s filing of a Pa.R.A.P.

1925(b) statement of errors complained of on appeal, the trial court issued a

Pa.R.A.P. 1925(a) opinion, concluding that it properly denied Appellant’s

post-trial JNOV motion.

      On appeal,2 although Appellant raises 17 arguments for our review,

the thrust of his argument is that the evidence is “grossly insufficient” to
                       _______________________
(Footnote Continued)

Pa.R.A.P. 301(a), (c), and (d). Here, however, the final judgment was
entered on June 6, 2013, and we have corrected the caption accordingly.
2
  Our standard of review of a trial court’s denial of a motion for JNOV is as
follows:

      A JNOV can be entered upon two bases: (1) where the movant is
      entitled to judgment as a matter of law; and/or, (2) the evidence
      was such that no two reasonable minds could disagree that the
      verdict should have been rendered for the movant.           When
      reviewing a trial court’s denial of a motion for JNOV, we must
      consider all of the evidence admitted to decide if there was
      sufficient competent evidence to sustain the verdict. In so
      doing, we must also view this evidence in the light most
      favorable to the verdict winner, giving the victorious party the
      benefit of every reasonable inference arising from the evidence
      and rejecting all unfavorable testimony and inference.
      Concerning any questions of law, our scope of review is plenary.
      Concerning questions of credibility and weight accorded the
      evidence at trial, we will not substitute our judgment for that of
      the finder of fact. If any basis exists upon which the jury could
      have properly made its award, then we must affirm the trial
(Footnote Continued Next Page)


                                            -2-
J-A07043-14



support Appellees’ causes of action and award of punitive damages.3

Appellant’s Brief at 10.         On July 11, 2014, we issued a memorandum

decision, remanding the matter to the trial court because we were unable to

engage in a meaningful appellate review of the issues raised.           Id. at 3.

Specifically, we reasoned that the trial court failed to set forth the relevant

facts “pertaining to the wrongful use of civil proceedings and abuse of

process causes of action, and the punitive damage award[.]”             Id. at 6.

Consistent with our July 11, 2014 memorandum decision, the trial court

issued an amended Rule 1925(a) opinion on September 16, 2014.

      After careful review of the parties’ briefs, the record on appeal, and

the relevant case law, we conclude that the amended 1925(a) opinion

authored by the Honorable David J. Williamson adequately disposes of

Appellant’s issues on appeal.          See Trial Court Opinion, 9/16/14, at 2-17.

We, therefore, affirm the trial court’s order denying Appellant’s post-trial

motion for JNOV. We direct that a copy of the trial court’s September 16,

2014 Rule 1925(a) opinion be attached to any future filings in this case.

      Judgment affirmed.

                       _______________________
(Footnote Continued)

      court’s denial of the motion for JNOV. A JNOV should be entered
      only in a clear case.
Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 872 A.2d 1202,
1214-15 (Pa. Super. 2005) (citation omitted), aff’d, 923 A.2d 389 (Pa.
2007).
3
  Appellant essentially argues that Appellees are unable to point to any
evidence of record to sustain the jury verdict.



                                            -3-
J-A07043-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2014




                          -4-
                                                                                Circulated 11116/201404:45 P




                    COURT OF COMMON PLEAS OF SUSQUEHANNA COUNTY
                           T ffiRTY-FOURTH JUDICIAL DISTRICT
                           COMMONWEALT H m- PEI\'NSYL VANIA



                                                         NO. 2006 - 1754 c.P.
      JO SEPH ORUSKA and                                                                          ,.
      CYNTHIA ORUSKA, hu sband and wife,
      and ANTHONY ORUSKA,

                              Plaintiffs

                      \'S.                                                                            ,   )


      PAUL A. KELLY and
      JOHN L. VANDERMARK, Execut or of the
      ESTATE OF GUY E. YANDERMARK, SR., :

                              Defendants                 PA.R.A.P. 1925(a)




                                   AMENDE D STATEMENT PURSUANT
                                   TO PA.R.A .P. 1925(a) UPON REMAND

                      This matter has been remanded back to this Court to supplement the prior

      statement pursuant to Pa. R.A.P. 1925(a), setting forth this Court's reasoning for denial of

      Appellant's (Paul Kelly' s) Motion for Judgment Notwithstanding the Verdict (JNOV).

      Appe llant's Motion for JNOV included the wrongful use of civil proceedings cause of action, the

      abuse of process cause of action and punitive damage claim submitted to the jury. The Superior

      COUlt has requested this Court issue an opinion identifying the trial evidence relied upon in

      denying the Motion for !NOVas to those claims. We have supplemented and revised our initial

      statement filed in this matter as fo llows:




Md.
                                                                                               Circulated 11f18f2014 04'45 P




                      ThlS matter came before tllis COUl1 followlllg a Jury trial. 'j"he jury returned a

    verdict in favm oftl,e Oruska<; and against tl,e Appellant Paul A Kelly (Appellant) for \vrongful

    use of civil proceedings and abuse 0 Cprocess. The jury awarded compcnsatory damages and

    punitive dmnages. AppeUant filed tllncly post-trlalmotions tl,at were dellled by thi<; Court A

    J\'otice of Appeal was filed and the Appellant ba<; now filed a Concise Statement o[ !vfattCl"<;

    Complained of Oil Appeal. The Appellant rai<;ed (17) issues for review on Appeal.

                      'ne errors complained oChy the Appellant can es<;entially be broken down to the

    followll1g issue: This Court's failure to grant post-trial motions and judgment notv.!ithstanding

    the verdict on four separate reyuests Ortl,e Appellant. i This Court did not grant Appellant'<;

    motion for judgment notwithstanding the verdict (JNOV) as to both count<; of tile suit; wrongful

    use of civil proceedings and abuse o[proccss. Appellant also requested tllat the punitive

    damages awarded by the jury be <;et a<;ide. Finally, the Appellant alleges the Court erred by

    denying the lllotion for judgment notwlthst31lding tl,e verdict (.ll\OV) tl,at rccjuested Imposilion

    of a remitter of the award of S200,OOO in punitive damages.

                      In support oflli<; motion [or post-trial relief [or JNOV as to the jury's finding of

wrongful use of civil proceedings, the Appellant states the Oruskas failed to meet tlleir burden of

proof Specifically, the Appellant argues the Oruskas did not prove tI,e Appellant acted without

probable cause in filing civil proceedings as an atlorney and on behalf of hltl1Se][ against tile

Oru<;kas, The Appellant claim<; in tl,e alternative that the Oruskas failed to prove the Appellant

acted in a grn<;sly neglrgent manner. The Appellant next contends that the Oru<;kas failed to

prove the proceedings were instituted for an improper or malicious PUll'ose unrelated to <;eemillg

an adjudicatton of the claim<; on which the proceedings were based. finally, the Appellant



I   Appellant als() alleges this Court erred in not granting compulsory non-'iuil iind dJrected verdict as to all counts.



                                                               2
                                                                                         CI"",!ed 11/1812014 ON5            pr
                                                                                                                             ,


    alleges the Oruskas failed to prove the underlying action \vas an action term mated             111   favor of the

    Oruskas. This includes tbe Appellant's cuntentiun that the          ()nl.~kas   did !lot prove the underlying

    action \\'as terminated in favor of per~()ns against ,Vhlltn they were brought         a~   the result of some

    lillgious actilll1 a~ defined by this Court 111 instructions to the jury.

                    As to \vnmgful use of civil proceedings, the relevant StatuLc slates as !c)llc)\vs:


                    " A per.~on "vho takes part 111 the procurement, ll1itiatilll1, Of
                    continuatioll of and pmceedings against 31lDthcr is subject to
                    liabil ity to the other for wrongful use of civil proceedings:

                             I. He acb in a grossly negligent manner or \vithout
                    probable cause and primal'lly for a purpose other tllall that D[
                    secunng tIle proper discovery \ joinder of pmiies, Dr adjudication of
                    the claim in \"hich the proceedings are based; and

                             2. The pwceedings have terminated in favor Dr the person
                    agairlst \"hom they are brought"

411'a. C.S A §8351 (3)(1).

                    The facts set finih at trial included testimony regarding 1\"0 underlying actions

that led to a suit filed under the caption suhject to this appeal (#2006 Ciyil 1754), and Olle under

a caption not on appeal (#2007 Civil 229; also referred to herein as the "ejectment action"). In

the eJectment action, Appellant filed suit on hehalf Dr Guy Vandermark agamsl the Oruskas, and

it \vas ultimately settled and dismissed. (The parties agreed tlle Oruskas o\\'lled the land upon

which the ejectment action vms based?) As a result, this Court granted A])pellant's request                     1'0],   a

non-suit as to the count of wrongful use of civil proceedings that pertained to that underlying

case (#2007 Civil 229). The jury still found that Appellant had committed an ahuse of process in




2 Tlic partir:,., slipulated to the Oruskas ownmg the disputcd ],llld a., part of the Ol'u.,ka~\ request fOT qLllet
titlc 'declaratory relicfbroughl by a ~epar,ltc claim, and summary judgmcnt was entered in favor of tbe OrLlskas on
thc e,icctmcnl count.




                                                          3
                                                                                                           I
                                                                             Circulated 11f18f2014 04'45 ~M




that case, llllt awarded $0 in damages. That matter, #2UU7 Civil 229, is not on appeal. The other

sLiit filed hy the Oruskas under this caption, #2U06 Civil 1754, claimed that the Appellant acted

llnpropcdy in a separate sliit ill which he was a PlaintiiI and also the lawyer fOI" other Co-

Plail1tifTs, agamst tbe Onrsbs. Appellant and his olbel" Co-Plaintiffs claimed the OlUskas

committed various torts, lllcluding mterference with contractual ohligations. Appellant also

made contract and qU3s1-con1ract chums TJl8t slIit was voluntarily discontinued      ll)'   Appellant on

his own llcbalftbc ddy after the PlaintifilOruskas, as Defendants in that case, praccipcd the

maHer for trial. The uthet" Plaintiffs in that case (including Defendant in this matter, Estate or

ellY Vandermark) had pt"eyious]y discontinued theu" claims in the action.

               Notal,l)', the facts showed Appellant had a lease prepared between himself' and

(luy Vandenmuk and between himself and the Orllskas fat" quany nghts on l,oth the Vandermark

and Oruska property. (:'-,1.1. 5/l3/13 pp. 37-38 and 78-79; Plaintiff's Exh. 863-;\; Pbltltiffs Exh.

S()3-182, ~.T. 5/l 5/1 3 pp. 55-56) The Vandermark ,md Oruska property lxmicred each otber.

(Pbintilrs Exll. 463])), Quarrying activities subsequently took place on both the \iandenllat"k

and Ol"Uska propertie!) at the C0l111110n horder of the two properties. The Oruskas latet" questioned

the royalty payments they were receivLng from Appellant under the Lease. (Plaintiff's Fxh. S63-

B). They believed Kelly w,is yuart"ying mare from theit" property than they were heing paid. (ld.)

Appclbnt then filed an ejectment action against the Oruskas on hebalf of Vanderma.l"k shortly

therealter (Plal11tiffs Exh. 863-1) That was the m8tlet" eyentually settled hy the parties t1181 was

the sllhJect ofclaulls in case #2007 Ovi1229, which is not on appeal. The eJectment action

claimed the Orusbs did nol actllally ovm the land upon which the quarry \""a~ located, rather

C;uy V8ndelll13rk owned the entire land upon which the qualT)' was located. Paul Kelly, \vho had
                                                                                       Circulated 11/18/201404:45 P




    a lease with both Oruska and Vandermark to mine the quany, liled the suit for Vandermark

    against Oruska, (Id.)

                   Appellant had also arranged for other patiners or subcontractors, referred to in

    this suit as the "QumTymen", to operate the quarry on lands of Vandermark and Oruska to

    remove stone. (N.T. 5113113 pp. 88-90; N.T. 5114113 pp. 120-123, 153-157, 175-177).

Testimony of Joseph Oruska, Paul Kelly and (he quarrymen (Joe Roberts, James Donahue and

    Ronald Degraw) showed the Oruskas and AppelJant had further disagreements about their Lease

and quarrying actLvity, Appellant then filed the separate underlying suit agmnst the Oruskas,

hoth on his behalf, and on behalf of tbe Quarrymen partners and Vandermark. (Plaintiffs Exh.

862-4). The suit \vas amended to add Joseph Oruska's brother, Anthony Oruska as a Defendant.

(Plaintiffs Exh. 862.24). That suit was eventually voluntarily disconttnued by the Quarrymen,

and the Vandermark Estate:' (Plaintiffs Exh. 862·32; Plaintiffs Exh. 862·36). Appellant

eventually discontinued the suit on his own behalf, but only after the Oruskas filed a praecipe to

list the matter for trial. The actions in that suit gave rise to the Oruskas' claims for wrongful use

of civil proceedings, abuse of process, and punitive damages in this matter, now the subject of

the appeal.

                  There were enough facts for the malter to go to ajury to consider wrongful use of

civil proceedings. In reviewing all of the facts as a whole, a jury could have found the Defendant

acted in a grossly negligent manner, or without probable cause and primarily for a purpose other

than securing proper discovery or adjudication of the claims in the proceedings. Although the

existence of probable cause is a question of law, the stahlte contains three dtfferent factual proof


:---._----         ..
JGuy Vanuermark did during tht: proceedings on February 1-1, 2006, and his Estate, by his Executor Jolll1
Vanuermark, was substituted as the correct party. (Plaintiffs Exh. 863·134),




                                                        5
                                                                            Circulated 11/18/201404:45 P




standards, such that a jury has to decide ,,,,hether or not these facts have been proven, Bannar v.

Miller, 701 A.2d 232 (Pa. Super. 1997). Probable cause exists if a person who takes part in civi.l

proceedings reasonably believes in the eXLstence 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 infonnation; or
                        (3) Believes as an attorney of record, in good fmth that his
                procurement, initiation or continuation of a civil cause is not
                llltended to merely harass or maliciously injure the opposite paliy.


42 Pa. C.S.A. §8352.

               An attorney acts ,,,,ithout probable cause on behalf of clients when he so acts with

the belief the claim will not succeed, but continues it anyway for an improper purpose. Kellv-

Springfield Tire Co, v. D' Ambro, 596 A.2d 867 (Pa. Super. 1991). Absent material conflicts in

evidence, the presence of probable cause is for a Court to detennine.    M~iksin   y. Howard H<±nna

Co., Inc., 590 A.2d 1303 (Pa. Super. 1991). But, the objective reasonableness of the belief in

probable cause is a credibility issue for ajury to determine. J)lllUlar, supra. IIere, there were

various factual issues. Many of the factual issues rested on the credibility of witnesses.

               The facts for a jury to weigh consisted of the following: Oruska had a business

relationship with Appellant Kelly as previously cited herein. '111is business relationship allowed

Kelly to quarry and remove stone from Oruska's land in exchange for royalties based upon a

percentage of monies received when the stone was sold. (Plaintiffs Exhibit 863-A-Quarry

Lease). Kelly was a practicing attorney at the time. (N.T. 5114/13 pp. 190-191). Kelly also

entered into a business relationship with Guy Vanderrnark. (1\.T. 5/13/13 pp. 37-38, 78-79; N. 1'.
                                                                                       C",,'ated 11/181201404 ..5   r
 5/1S/13 Pl'- 55-56). Kelly had represented Guy Vandellllark since rrt least 1972. as one of his

 first   client~.   (?\T.T. 5il4/J 3 pp, 219; 191). Kelly hrrd both [eases prepared by h1:;;; ]!rrrtner/brother

IJa\vrence Kelly (I\."l' 5/14/13 pp. 207; 221-222). Kelly testified thai there           llllly   have been a

small quarry on Vandermrrrk's land first.          Od.   At pp. 207-208). Kelly believed the quarry he

operated expanded from Oruska's lrrnd to Vrrndermark's land. (Jd. pp. 208-209),

                       J osepb Oruska believed Kelly \vas not [lccDunting propeJ 1)' for all of the stone

removed from his property. (Plaintiff~ Exhibit 86~-A; N.T . .')/13/J 3 pp. 124; l\'.T. 5/14/13 pp.

209-210), Oruska believed this persistence in questioning Kelly ahom royalties ,vas (he ultimate

rea~on      Kelly filed the ejectment suit on behrrlf of Vandermark, rrnd the claims filed on behalf of

the quanymen, Vandermark. rrnd Kelly himself; a~ retrrliation. These ~uit~ \verc filed by Kelly

<;oon after Oruska, through his attorney, gave notice of termination of the Lease Agreement on

September 7, 2004 (Plrrintiffs Exh. 863-B).

                       Cynthirr OrllSka testified that dming the teml of the Lease with Prrul Kelly, and

prior to the Oruskas termimting the Lease, Paul Kelly hrought her a check for royrrlties. The

back of that check had typed on il rr strrteme11l that by endorsing the check, the           ljWl.rry   lease

\\"Ollld be extellded for rrll rrdditional ten years. (N.T. 5/13/13 pp. 123-124).

                       The origiml Lease Agreement presented by Paul Kelly to the Onlskrrs for the

quarry called for a ten year term on tell acres ofbnd. Joseph Oruska crossed that out and

l11serted five years and five acres. Od. pp. 79; Plaintiffs Exhibit 863-J\-Quarry Lease).

'111erefore, the check for royrrlties presented by Kelly to Cynthia OrllSka, purported to chrrnge the

terms of the        lerr~e   if endorsed.

                      Cynthia Oruska further testified that Prrul Kelly came to see her at the office she

\\"Ol"ked   111   at the time in the Susquehannrr Cmmty Coul1house \vhile the Lease v·,'rrs stil1lll effect.




                                                           7
                                                                                        Circulated 11f18f2014 04"45 P




 She stated that Paul Kelly told her that "if my husband didn't stop asking questions about the

 accounling, that this \vas going to get ugly." (.\.'1'. 5/13/13 pp. l24). This \""as PrJor t() the

Oruskas gJying notice of termination of the Lease, and prior to the lawsuits ftied by Kelly.

                  There was also eyidence introduced regarding the ejectment action filed hy Kelly

on bc11alf of Vandermark against (huska. 'l"he matter eventually I,vas settled by stipulation,

recognizing ownershIp of the disputed laJlds as belonging lo Oruska. As the matter ended by a

settlement, the \""l"Ollgful use of ciyi] process claim \""as dismissed by this Court as to that actIOn

HoweyCl", we note in that matter, Kelly filed a deed on behalf of Vandermark, claiming

Vandermark owned 16 acres or land believed to be O\vned by Oruska. This deed \""as filed ailer

Oruska lerminaled the Lease \vllh Kelly (Plaintiff's Exh. 863-57 - attachment NT. 5/13.,1337-

:18)_ Kelly later filed a deed in which he and his wire were Grantors and Cynthia Oruska

Grantee, purporting to qLllt claIm any interest (iuy Vandemlark had in the 16 acre parcel, but

stated it in no \""ay affected the quarry lease of Oruskas and Paul Kelly. (Plaintiffs Exb 863-

126-4 & Exh. 863-C)-t. This deed Iva') recmded 1/31/2006. (Id.) "lhe deed \\-as ultimately set

aside and declared a Ilulhty by the Court. (Plaintiffs Exh. 863-145). Prior to settlement oIthe

ejectment actlOn_ Paul Kelly \vas remoyed as counscl for Vamlemlark due to a connlCl of

Juterest. (N.T. 5/15/13 pp. 75-76). Howeyer, he still filed the quit clalln deed thereafter

purpOliing to declare (iuy Vandermark had no interest in the disputed 16 acre parcel.

                  The 10rt c1alll1 and breach of contract case continued. Roberts, Donahue and

iJegra\\-, (the "quarrymen"), yoluntarily discontinued 111e matter as lo them in October 2005

(.\ .T. 5/14/13 pp. 146; 161: 182- 183; Plamlifr s Exh. 862-32 recorded April 4; 20(5). The

Vandemlark Estate filed a discontinuance June 5, 2006. (Plaintiff's Exh. 862-36). The

"We note this was shOlt!y before the Vi:lndermark Esti:lle and Oruskas settled the ejectment action aod agreed the
Oruskas owned the disputed land and prior to Kelly discontinuing his OWI1 action agaimt the Oruskas for breach of
contract regarding the Q1Ii:IJry Lease.



                                                         8
                                                                                           C",,'ated 11/181201404 ..5   r
 qumrymcn all signed (lfftd(lvits     III   October 2007 regcuding the     rCi1S011S   for their suit tlWl were

 prcpnred by Peml Kelly_ (Def. Kelly Exh. 36,37,38; \r.T. 5/14/13 pp. 145; 158; 171-172). The

 discontinmlllCCS were Clbo prcp(lTcd by Paul Kelly (Pl(lintitrs Exh. 862-32 (lnd 862-36). On JUllC

 5,2000, the nHorney for the Orusbs placed the c(!se          01l   the trial list. (.1\.1. 5/15/13 p. 64) Pi1u)

Kelly filed a discontinuance on behalf of himself as Pbintifftllc next d(lY (Td. P 65). No

dl~covcry     WClS tnken ,lIld the IllCltter never proceeded to trinl. (ld. At 66).

                   After the filing of the to Ii claim (,llld breach of contwct        Celse   against the Onlskns,

Paul Kelly was directed by the Comlto file em amended pleClding clarifying thell the Amended

Comp!,unt previously filed in the mi'ltter W(lS filed solely on behalf of Kelly representing hImself

nnd not on behnlfofthe uther PlnintifTs. (Defendcmts' Vandermarks Exh. 862-23)                         hItting nil uf

these r:'1ClS together, Orusb cl(limed probClblc e(luse existed that the suit was brought by Pmll

Kelly on his own behCllf, Clndiur on beh(llf of his clients, in lJi1d faIth nnd for improper rensollS.

The renson bemg rewliation for questioning the accounting and termi]wting the QlldIT:;' Lease

with Pmll Kelly. It could be inferred from thIS testimony tlwt the Oruslws believed Pmd Kelly

Clcted with m(liice to Ci'll1se hann to the Oruskns. Viewing these facts in the light most f(lvomblc

to the Orusk(ls, ns the preVClilmg party, n j llry could find probClble cause existed.

                  The testimuny of the qumrymen and Pmd Kelly \VClS that Joseph Oruska engnged

1ll   some, or (lll of the tortlUus conduct eompl(llned of in the bwsuit filed agClinst the Omsbs.

'1 here \vas no testimony that Cynlhin Oruska engClged in any threClls or yandCllism. There WClS

only Paul Kelly's lestlll10ny that Cynthia Oruska, together with Joseph Oruska, terminnted the

Quany Lease. This wns the only testimony in support of the 13re(lch of Contract cbim ilsselied

against Cynthin Oruskn, nnd the only clnim that pe11nined to her in the undcrl)"1J1g suit at No.

862-2004, listing Degr(lw, Domhue, Robe11s, VClndennark and Pmll Kelly (lS Pbintiffs. The




                                                        9
                                                                               Circulated 11f18f2014 04'45 P




issue of "\vhether or not smt was brought by Paul Kelly, on his O"\V11 behalf, against C)"nthla

Oruska for breach of contract (v./bich would he a reasonable basis for the suit since the QUi:l.1TY

T.ease ",'as terminated) as he claimed, or for the mere Pl11110Se to harass CynthIa Oruska, "\vas a

question of credibility for the jury to decide.

                Like,vlse, the testimony of the quarrymen and Paul Kelly as to the: reasons for

["lling their lil\vsurt as to Joseph Oruska ,vas an issue of credibility to be weiglled against the

testimony of Joseph and Cynthia Oruska. A jury could choose to llelieve the testllllOn}· of the

Oruskas, and based on that testimony, together ".;ith the Pxhlbils and other testimony they found

to be credible, find that Paul Kelly initiated the litigation, at least as to hIS own claims,   111   bad

eaith and "\vith llltent to hmass the Oruskas for questioning the accountings andior lermll1ating tlle

Lease As Cynthia Oruska slated, Paul Kelly told heL prior to termination ofliLe Quarry Lease

and the resulting litigation filed by and/or on bel-lalf ofhuuself, that if Joseph Oruska did         110t   stop

askll1g questions about the accounting, it ,vas "going to get ugly." (K.T 5/13/13 p. 124). The

jury could choose to believe this testimony, as the reason Paul Kelly filed suit, at the very least,

for hiS own claims made, and not for a legitimate or good faith reason. The jury could cJl()O~e

not to believe Kelly's testimony. It appeared to be an issue for thejury to decide as 11 hmged on

the credibility and determination of disputed facts.

                The jury could have found the quarrymen credible, or not, and still found Kelly

acted ,VitlloUt probable cause and ,villl the llltent to harass or v.;ith malice. Even if the jury fOUlld

the quanyrnen, and Kelly, filed suit for the tOJ1ious conliuct in good faith on behalf of the

quarrymen, the jury could fmd Kelly not credible in his testimony regarding fillllg Sllit for his

o\vn personal claims. The quanymen and the Vandermark Estate ultimately discuntinued the

suit pnor to Kelly doing tlle same. Tlleir claims "\vere separate from the claims of Kelly




                                                    LO
                                                                                             Circulated 11f18f2014 04'45       M




Theref(He, even if there was undlsllllted eVldence of conduct giving rise to the quarrymen and

Vandennark claims, granting probable cause, the personal clamlS of Kelly hHllself mc sepal"il.te

and distinct. By filing counts on bel13lf of himself, Kelly holds hirmelf out as more than Just the

attorney for the parties; he V'ias a party participant as w"CIl. Therefore, the credIbility of Kelly as

to his intent, at least \vith regard to his mvn claims in the law'suit, was an issue in dispute wIth the

Oruska testimuny.

                     Putting all of the previously dIscussed trial evidence together with Cynthia

Orusb's testimony that P[lul Kelly advised it               "WJS   goillg to get ugly," supported.      [I   find.ing that

Appellant Paul Kelly acted \vithoul prohable cause and primarily for a purpose other thall il13t of

securing the proper discovery, joinder of panics or adjudication of a claim, We concede there is

no   ~Jlloking   gun, per   ~e,   where there   l~   clear evidence of an attorney hringing suit when lhere IS

no argument thut under the law recuvery IS impossible. However, there                      ~tlll   has to be

Justificatioll for the action taken. Whether or 110t the testimony concerning the justificalioll IS

credible or not \vuuld appear to be a question for the jury undcr Meiksin and Hannar supl'a.

                     The facts were abu     ~uiTlcient     that ajury could find the underlying         proceeding~


term mated.   1tl   favor of the Oruskas. A prior favorable termiJJatlon need not be an udJLl(lication                   011


the merits; It can occur as the result of a voluntary             di~missal   of the underlying proceeding or an

abandonment of the proceedings. DiLorento v. Costigan, 600 F. Supp 2d 671 (E.D. Pa. 2000),

affirmed 351 red. App. 747,2009 Wf, 3683784. Therefore,                       thi~   was a proper factual

determination for the jury to consider. There were also issues of fact and credibility of\vilnesses

for the jury to \veigh as to the moti vation for the voluntary dismissal. These issues lllcludeu: the

tlll11ng of the (hscontinuanee by Kelly orhis claims the day aiter the malter was placed un a lrial

list in 2006; the quarryman discontinuing their claims in 2005; the Vandermark Estate




                                                             11
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                                                                                 Circulated 11118/2014 04:451M




 discontinuing all claims after the death ufGuy Vandermark and resolution of the disputed land

 case by Stipulatiun in favur of the Oruskas; the fact no discovery took place; and the fact no

 settlement or agreement was rcached between Oruska and Kelly (or the quarrymen). As such,

the jury could find facts sufficient to find the maHer terminated in favor urthe Oruskas.

                  Appellant also contends the Oruskas failed to meet their burden of proving abuse

of process. An action for abuse of process requires a showing of the improper usc of process

after it has been issued. E!lbUx Drug Co. v, Brever lc.c Cream Co., 32 A,2d 413 (Pa. 1943). The

lack ofprobablc cause is not necessary to prove abuse of process. Murph\' v. Shipley, 41 A.2d

671 (Pa. 1945).

                 Here, the Oruskas contended that Appellant, in both underlying actions, continued

the suits for an improper purpose. In both instances, the Oruskas alleged the mallers were

continued by Appellant after filing, and that further Court hearings were necessary, even though

the Oruska::; contended the    ~uits   lacked merit. The Ormkas alleged the Appellant \:!,'as retaliating

against them, over the Quarry Lease. The Oruskas contended that the Appellant continued the

suit while lacking proof of events or legal theories. This also included the Appellant continuing

his underlying ::;uit, causing the Oruskas to ill(;Ur attorney's fees, even after the other underlying

action for   ~iectment   concerning the propeliy line and extent of the quarry boundaries    Oil   tbe

Oruska property was resolved and after the quarrymen discontinued their suit. The facts and

credibility of witnesses was an issue for ajury to decide why the underlying suit was continued

under the circumstances.

                 The underlying suit was filed after the Oruskas terminated the Quarry Lease. The

relevant testimony in support of the Oruskas' claim for abuse of process was Cynthia Oruska \

testimony about Paul Kelly's statements prior to filing. That statement being that it '\\'as going




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to get ugly"   The suit continucd through Amendments to the Complaint (resulting in the FOUl"th

Amended Complaint) folloVl.'ing prclinunary objections. The suit continued after Paul Kelly was

admonished to file an amended pleading clarifying that the Amended Complaint flIed January

25,2005 was filed solely on hehalfofKelly and not on behalf of the other Plaintiffs.

                The SUlt claLllling breach of contract on the Quarry Lease continued after Paul

Kelly prep:1l'ed and filed a deed (attached to Plaintiff's Exh. 863-57) from Guy Vandermark to

Guy Vandermark on Octoher 27, 2004 claiming to ov'm 16 acres purrJOrledly owned by the

Oruskas that \vas in dispute in the ejectment case, which eventually settled in favor of the

Oruskas. Appellant \','as claiming a hreach of contract by tcnlllnating the Lease at the same time

he \,>'as asse11ing on behalf of Vandermark lhat the Oruska:; did not e\'er oV'm the land on which

the quarry vms located.

                'fhe case continued after Paul Kelly recorded a deed on .r anuary 31 . 2006 hom

Paul Kelly and Pamela Kelly pU!1Jorting to quit claim any interest of Guy' Vandermark in Ille

disputed 16 acre parcel. (PlaintirCs Exh. 863-C). Said deed had no purpose, "other thatl the

acknowledgment ufMr. Vandermark not being the owner or sald 16 acre parcel. 'ihis deed in no

way affects the Quarry Lease between the Omsk as and PaulA. Kelly." (TeL). ny Court Order

dated June 6,2006, the Court in case No 863-2004 (ejectment case - Vandermark v Oruska),

concluded that the panics had settled their boundary l111e dispute, and that the deed prepared and

filed by Kelly (and Plaintiffs Fxh. 863-C herein) conveyed no cognizahle mterest and was

therefore a nullity, making it void and \vithout legal effect. (Plaintiffs Exh. 863-145)

                TIle suit continued after the quarrymen filed a discontinuance as to their claims in

2005 The suit continued after the VandeJJnark Estate filed a discontinuance in 2006 The

Oruskas claimed lhe reason for the SUlt vms retaliation, supported by Kelly's il1ltial statement to




                                                 13
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                                                                                                           I




Cynthia Oruska, and the fads of record cited herein. These facts could give rise to a conclusion

by the jury that Appellant aimed the suit at an objective that was not legitimate: the harassment

of the Oruskas. Again, there was not much evidence, but enough for a jury, based upon the

above facts, to weigh credibility and find as it did.

               Appellant next contends this Court erred in allowing the jury to consider punitive

damages and that their motion for JNOV should have been granted. The Appellant alleges the

Oruskas failed to prove the Appellant acted outrageously under the circumstances. The

testimony regarding the Appellant's actions are set forth on the record and discussed in pali

herein.

               This testimony included the fact that Paul Kelly entered into a lease bctv,,'een

himself and the Oruskas to estahlish a quarry on the land. Kelly entered 1Oto a similar lease "vith

Vandermark. Kelly had represented Vandelmark for thirty years at lhat point. Joseph Oruska

began to disagree with Kelly over payment of royalties and the accounting for stone removed

from his land and Vandermark's land Kelly submitted a check for royalties to Cynthia (huska

on which a clause required an extension of the lease for ten years upon endorsement of the

check. Kelly told Cynthia Oruska that iCher husband did not stop questioning the accounting, it

"was going to get ugly."

               The testimony also included the Quarry Lease being terminated by the Oruskas in

September 2004 due to failure of accounting and other reasons. Kelly then filed an ejectment

action on behalf of Vandermark claiming {he Oruskas did not     O\:vn   the land upon which the

Quarry Lease with Kelly existed. Kelly then prepared and filed a deed from Vandermark to

Vandennark, purporting to own the 16 acres of the Oruskas' land subject to the ejectment action.

Kelly was ordered by the Court to end representation of Vandermark in the ejectment action due




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to a conflict of interest. Kelly filed suit on his own behalf, and on behalf of the quarrymen and

Vandermark for money damages against the Oruskas. Kelly \vas then ordered to file a pleading

indicating he only represented himself in that action. Eventually, the ejectment case was

dismissed and the parties stipulated to the Oruskas O\vning the 16 acres on which a pOliion of the

quarry existed.

                  'I11e quarrymen discontinued their suit in 2005. The Vandennark Estate

discontinued the money damage case when the ejectment action was settled. Kelly discontinued

his personal claims the day after the matter \vas listed for trial by counsel for the Oruskas. Kelly

prepared and filed a deed prior to disc0l1tinuing his suit against the Oruskas, and after he was

ordered to no longer represent Vandermark in the ejectment action. The deed was declared to be

nullity of no legal effect, and purportedly cancelled Vandermark's ownership claim of'the 16

acre parcel. The deed listed Paul Kelly and his wife as Grantors and Cynthia Oruska as Grantee.

The deed fmiher claimed it had no eITect on the Quarry Lease with the Oruskas. The deed was

filed January 31, 2006. Paul Kelly testified he was an attorney since 1972 and 95% ofllis

practice consisted of real estate. (NT. 5114113 p. 191).

               All of these facts, when taken together, and if found credible by the jury, can

show outrageous conduct under the circumstances. There is overlap among the facts orthe two

suits filed by Kelly against the Oruskas, and taken as a whole, can support the claim for

outrageous behavior. '111is is especially so given Kel1y's personal involvement with the Lease

Agreements; his long standing representation of Vandermark; his personal financIal interest in a

quarry located on both lands; his alleged comments tu Cynthia Oruska; his kno\vledge and

experience as a real estate attorney, yet ftling Ule deed for Vandennark and the in\'alid quit-claim

deed from himself to Cynthia Oruska; his filing an ejectment al:tion for a client and subsequently




                                                 15
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his own hreach of contract claim against the Oruskas, with \\.'hom lle was leasing the very land in

the ejectment dispute, and engaglIlg in litigatioll ultimately discontinued as soon as        It   \\'a5 listed

for Ina!. Therefore, \ve denied the Post-Trial \10Iions.

                 hnally, Appellant alleges the Court erred in denying the post-triallllotion for

J:--JOV \vith regard to the amount of the punitiyc damage award of $200,000, The Appellant

states the award \\'a5 exceSSive under the facts of the case, that it shocks the sense of justice so as

to suggest that the jury was lIlfluenced hy partiality, prejudice, mistake or corruption, and it \\.'a5

a violation orthe Appellant's rights under the United Slates Constitulion and the Commonvl"ealth

of Penns), Ivallia.

                 V./e cannot say that fUl a\\'ard of$200,000 ill punitive damages ill this case is

exceSSlve. The Oruskas alleged they were threatened and intimida1cd by the Appellant Ollce they

questioned the royalties the Appellant was paylllg them. Eventually, quarry activities and

royalties ceased. The Oruskas alleged that after they sought legal counsel, and tell11i1l3ted the

lease, tl1e Appellmll filed the ejectmenl acti011. The Oruskas 1I1curred attorneys fees to defend

lwo separate lavl"suits filed hy the Appellant, ill \vhich there appeared to he a con11icl of illte]"e51

by the Appdbnt. The litigious conduct only stopped after the PlallltifiiOruskas praeciped the

unuerlying sml for trial on the merits. The Oruskas also teslitled to COIlU11ell(S and actions of the

Appellant that they round to he threatcllillg and intimidating. Tllere \\'as 110thing to mdic3te the

jury award was exceSSive, nor should the Court disturh the jury's a'l'mrd      111   this matter

                The Appellant also claims the jury 3\\',-mi shock'> the sense of justice and/or the

Jury was lllfluenced by partiality, prejudice, mistake or cOlTuption. v','e cannot say that under

these facts that the jury's 3\"vard shocks the sense of justice. furthermore, there was no




                                                    16
                                                                             Circulated 11f18f2014 04'45 PM




suggestion or showing 1h8t thc.jury \vas influenced by partJalit)-" prejudice, llllstakc or

COlTU1Jtion

               Appellant's claim that the award is a violation of his Tights is also not sUllported

by the record. for these reaSOns, we denied the Appellant's Motion [or J.\fOV




                                                    BY TilE COURT:
                                                                               ~
                                                         (\, \
                                                         \   . III
                                                                     I
                                                                     I.     I{) )\
                                                    DAVID J. \\IILLIiil'Isok:
                                                               ,              .J. '
                                                    Specially rr~siding
                                                    l\lonrne Coupty Courthouse
Dated: September 15, 2014                           Stroudsburg\ PA 18360



cc:     Charles \1. Watkins, T'squire
        Laurence IVi. Kelly, Esquire
        Michael Hriechle, Esquire
        Susquehanna County Court Administrator




                                                   17
