J-A33012-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

DAVID W. FISHER AND SELECTIVE            :     IN THE SUPERIOR COURT OF
INSURANCE COMPANY OF SOUTH               :           PENNSYLVANIA
CAROLINA,                                :
                                         :
                       Appellants        :
                                         :
                  v.                     :
                                         :
SCOTT A. EXLEY, BURSICH                  :
ASSOCIATES, INC., FRANK P.               :
MURPHY AND MURPHY & DENGLER,             :
                                         :
                       Appellees         :     No. 1170 EDA 2014

               Appeal from the Order Entered March 20, 2014,
           in the Court of Common Pleas of Montgomery County,
                    Civil Division at No(s): 2013-11954

BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED JANUARY 16, 2015

      The Majority essentially holds that, because Defendants (Plaintiffs and

their attorneys in the underlying action), survived a motion for summary

judgment and a motion for nonsuit and the case was submitted to a jury,

ipso facto, Defendants had probable cause to bring the underlying action. I

respectfully disagree.

      Consider a routine intersection collision case. Plaintiff testifies at his

deposition that he entered the intersection on a green light.        Defendant

testifies at his deposition that the light was red. Defendant files a motion for




* Retired Senior Judge assigned to the Superior Court.
J-A33012-14


summary judgment. Obviously, the motion is denied since there is a factual

question, even aside from the Nanty-Glo1 problem.

       Plaintiff’s testimony at trial is the same as at his deposition - the light

was green. Defendant moves for nonsuit. Again, it is denied, as there is a

factual question.

       Finally, at the end of all testimony, Defendant moves for a directed

verdict.    Once again, the motion is denied because there is a factual

question.

       Thus, Plaintiff has prevailed at all three of the above-mentioned

stages. That does not mean Plaintiff had probable cause to bring the action.

He might have been lying as to the color of the light, and Defendant should

be given the opportunity to probe this issue.




1
    Nanty-Glo v. American Surety Co., 163 A. 523 (1932).


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