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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                            Appellee                     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.*

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 17, 2017

        RX Billing Services, Inc. (“RX Billing”), appeals from the order entered

September 16, 2015, in the Lackawanna County Court of Common Pleas,

granting the preliminary objections filed by Joseph Fazio (“Fazio”), and

dismissing RX Billing’s complaint.         On appeal, RX Billing claims:   (1) the

court erred in finding RX Billing did not set forth a cause of action for abuse

of process; (2) the trial court erroneously granted Fazio’s preliminary

objection by concluding RX Billing failed to set forth a viable claim for

wrongful use of civil proceedings pursuant to 42 Pa.C.S. § 8351;1 and (3)

assuming, arguendo, the complaint failed to set forth a valid claim, the court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Section 8351, et seq. is commonly known as the Dragonetti Act.
J-A14027-16


erred in not allowing RX Billing to amend the complaint. 2     Based on the

following, we reverse the order granting Fazio’s preliminary objections and

remand for further proceedings.

       The facts and procedural history are as follows.      James B. Fazio,

Michael R. Fazio, and Kelly Gerrity (who collectively make up Appellant, RX

Billing) as well as Appellee, Fazio, are all family members who formed the

corporation, RX Billing Services, Inc., in 2001 to provide billing services to

physicians and medical facilities.

       Around 2013, the relationship between RX Billing Services and Fazio

turned acrimonious. Ultimately, Fazio filed a lawsuit in December of 2014

against RX Billing Services in Lackawanna County at Docket No. 14-CV-

7438, alleging breach of contract and seeking dissolution of the corporation.

RX Billing Services filed preliminary objections, requesting the suit be

dismissed. Fazio filed a response in January of 2015. On March 25, 2015,

the trial court granted the preliminary objections, and dismissed the

complaint with prejudice. The order read as follows:

             AND NOW, this 25th day of March 2015, it is hereby
       ORDERED AND DECREED that [RX Billing]’s Preliminary
       Objections are hereby GRANTED.       THUS, IT IS FURTHER
       ORDERED AND DECREED that accordingly, Count I and Count
       II, are stricken from the Complaint, with prejudice.” (See,
       3/25/2015 Order, Lackawanna County docket 14-CV-7438). As

____________________________________________


2
   Based on the nature of our analysis, we have restructured RX Billing’s
issues for ease of disposition.



                                           -2-
J-A14027-16


      the Complaint consisted of Counts I and II, the Order dismissed
      it in its entirety.

Trial Court Opinion, 9/16/2015, at 2 n.1 (emphasis in original).

      On June 4, 2015, RX Billing filed a complaint against Fazio, alleging

the following:

      8. For more than 10 years, the individual parties harmoniously
      operated the corporation and over the years, various family
      members of the parties, including [Fazio]’s wife, worked for the
      company.

      9. Ultimately, [Fazio]’s wife began to fall behind in her work and
      in July, 2013, she quit.

      10. That same month, [Fazio] sent an email to [RX Billing]
      demanding a list of the business clients within 72 hours and
      payment of more than $1,000 per month out of the gross
      receipts of the company. Alternatively, [Fazio] demanded that
      the individual [p]laintiffs buy out his interest in the company at a
      ridiculously inflated number which he deemed appropriate.

      11. [Fazio] threatened that if his improper and illegal demands
      were not met, he would file a lawsuit against [RX Billing] herein,
      even though there was no basis for such a suit.

      12. When [RX Billing] refused to submit to [Fazio]’s attempt to
      extort money, [Fazio], as Secretary of the corporation, continued
      to participate in corporate affairs and attend corporate meetings.
      He dissented on every vote which was held and sought to
      prevent the company from moving forward.

      13. Unhappy that he was being outvoted, and that [RX Billing]
      refused to submit to his improper and illegal demands, [Fazio]
      made good on his threat of filing a baseless lawsuit.

      14. On December 8, 2014, [Fazio] filed a baseless and frivolous
      lawsuit against [RX Billing] seeking in excess of $50,000.00 all in
      a malicious effort to harass and intimidate them into submitting
      to his demands and/or to cause financial and emotional injury to
      them, knowing that it would cost [RX Billing] money and time to
      litigate [Fazio]’s baseless suit.

                                     -3-
J-A14027-16



Complaint, 6/4/2014, at 3-4.3

       On July 7, 2015, Fazio filed preliminary objections to RX Billing’s

complaint. He alleged RX Billing’s complaint fails in the following way:

       5. [RX Billing’s] complaint fails to identify in a concise form the
       material facts upon which the purported cause of action is based
       in that [RX Billing] fail[s] to identify or allege facts which
       establish an improper purpose/[abuse] of process by [Fazio].

       6. [RX Billing’s] complaint fails to identify in a concise form
       material facts to establish the nature or extent of
       harm/damages.

       7. [RX Billing’s] complaint fails to state sufficient material facts
       to establish a claim for abuse of process as it fails to factually
       specifically identify any actionable harm to [RX Billing] and as it
       fails to establish or define the alleged monetary loss.

       8. [RX Billing’s] complaint fails to state sufficient material facts
       to establish a claim for abuse of process as it fails to factually
       identify the act or threat not authorized by process.

Preliminary Objections, 7/7/2015, at ¶¶ 5-8.

       Oral argument was heard before the court. On September 16, 2015,

in an order and corresponding memorandum, the trial court granted Fazio’s




____________________________________________


3
   Fazio, however, asserts the disagreement arose over his “believed failure
to receive his share of the Corporation’s more than $27,000.00 in earned
profits, as well as $6,825.00 in ordinary income, for the tax year 2013,” and
led him to file the December 2014 lawsuit. Fazio’s Brief at 2.




                                           -4-
J-A14027-16


preliminary objections and dismissed RX Billing’s complaint.        This appeal

followed.4

       Our standard of review regarding a trial court’s decision to sustain

preliminary objections is well settled:

              Our standard of review of an order of the trial court
       overruling or [sustaining] preliminary objections is to determine
       whether the trial court committed an error of law.          When
       considering the appropriateness of a ruling on preliminary
       objections, the appellate court must apply the same standard as
       the trial court.

              Preliminary objections in the nature of a demurrer test the
       legal sufficiency of the complaint. When considering preliminary
       objections, all material facts set forth in the challenged pleadings
       are admitted as true, as well as all inferences reasonably
       deducible therefrom.      Preliminary objections which seek the
       dismissal of a cause of action should be sustained only 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. If any doubt exists as to whether a demurrer should be
       sustained, it should be resolved in favor of overruling the
       preliminary objections.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (internal

citation omitted).

       In some contexts, when issues of fact are raised by preliminary
       objections, the trial court may receive evidence by depositions or
       otherwise.    Pa.R.Civ.P. 1028, 42 Pa.C.S.A.; Slota v. The
       Moorings, Ltd., 343 Pa.Super. 96, 494 A.2d 1 (1985).
       However, preliminary objections in the nature of a demurrer
       require the court to resolve the issues solely on the basis of the
       pleadings; no testimony or other evidence outside of the
       complaint may be considered to dispose of the legal issues
____________________________________________


4
  The court did not order RX Billing to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b).



                                           -5-
J-A14027-16


      presented by a demurrer. International Union of Operating
      Engineers, Local No. 66 v. Linesville Construction
      Company, 457 Pa. 220, 322 A.2d 353 (1974). In order to
      sustain a demurrer, it is essential that the face of the complaint
      indicate that its claims may not be sustained and that the law
      will not permit a recovery. Gekas v. Shapp, 469 Pa. 1, 364
      A.2d 691 (1976). If there is any doubt, it should be resolved by
      the overruling of the demurrer. Gekas v. Shapp, Id.

Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994).

      In RX Billing’s first issue, it claims the court erred in concluding it did

not set forth an abuse of process claim.        See RX Billing’s Brief at 15.

Specifically, RX Billing states that in the complaint, it alleged: (1) Fazio used

a legal process against it; (2) his actions were used to accomplish a purpose

for which the process was not designed – to harass and intimidate RX Billing

in attempt to extort money from them; and (3) RX Billing was caused both

financial and emotional harm. See id. at 16-17. RX Billing also asserts:

      [T]he trial court improperly acted as factfinder and concluded
      that [RX Billing] failed to “demonstrate” or prove that [Fazio]
      “acted primarily to accomplish a purpose for which the process
      was not designed.”      The court concluded that “[RX Billing]
      fail[ed] to establish [Fazio]’s litigation was primarily to
      accomplish a purpose other than that which it was designed to
      accomplish.”

Id. at 17.     Moreover, RX Billing contends the trial court imposed an

additional requirement upon RX Billing, wherein the court “found that since

the underlying action never made it past the pleading stage, because it was

dismissed by the court at its first opportunity, there could not have been an

abuse of process.” Id. at 17-18.




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J-A14027-16


     Pennsylvania common law defines a cause of action for abuse of

process as follows:

        The tort of “abuse of process” is defined as the use 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.
        This tort differs from that of wrongful use of civil
        proceedings in that, in the former, the existence of
        probable cause to employ the particular process for its
        intended use is immaterial. The gravamen of abuse of
        process is the perversion of the particular legal process for
        a purpose of benefit to the defendant, which is not an
        authorized goal of the procedure. In support of this claim,
        the [plaintiff] must show some definite act or threat not
        authorized by the process, or aimed at an objective not
        legitimate in the use of the process…; and there is no
        liability where the defendant has done nothing more than
        carry out the process to its authorized conclusion, even
        though with bad intentions.

     Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998),
     appeal denied, 556 Pa. 711, 729 A.2d 1130 (1998).

        The gravamen of the misconduct for which the liability
        stated … is imposed is not the wrongful procurement of
        legal process or the wrongful initiation of criminal or civil
        proceedings; it is the misuse of process, no matter how
        properly obtained, for any purpose other than that which it
        was designed to accomplish. Therefore, it is immaterial
        that the process was properly issued, that it was obtained
        in the course of proceedings that were brought with
        probable cause and for a proper purpose, or even that the
        proceedings terminated in favor of the person instituting or
        initiating them. The subsequent misuse of the process,
        though properly obtained, constitutes the misconduct for
        which the liability is imposed….

     Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 627
     A.2d 190, 192 (Pa. Super. 1993).

                                    -7-
J-A14027-16



Lerner v. Lerner, 954 A.2d 1229, 1238-1239 (Pa. Super. 2008).

      Here, the trial court found the following:

      Applying the elements of an Abuse of Process claim to [RX
      Billing’s] Complaint reveals the claim must fail, as [RX Billing
      has] failed to demonstrate [Fazio] acted primarily to accomplish
      a purpose for which the process was not designed.

            Tur[n]ing to the Complaint, [RX Billing] make[s] vague
      allegations that [Fazio] presented “improper and illegal
      demands” upon them, and ultimately when such demands were
      not met, filed a “baseless and frivolous lawsuit.” [RX Billing]
      further allege[s] that [Fazio], while acting within his corporate
      capacity dissented on every vote in an attempt to derail the
      corporation. As [RX Billing] fail[s] to establish [Fazio]’s litigation
      was primarily to accomplish a purpose other than that which i[t]
      was designed to accomplish, [RX Billing’s] claim must fail.
      Considering the short life-span of the underlying litigation
      (approximately four months) as well as the fact that the docket
      reveals it never proceeded past preliminary objections (See,
      Lackawanna County docket no 14-CV-7438) [RX Billing is]
      unable to submit that [Fazio] morphed an otherwise legitimate
      process into an illegitimate one by the methods used to proceed.
      Clearly, the actions taken in the underlying case were minimal
      based upon its short life-span.

Trial Court Opinion, 9/16/2015, at 6-7.

      We disagree. Our review of RX Billing’s complaint reveals that it did

sufficiently plead an abuse of process cause of action. Specifically, RX Billing

alleged:

      14. On December 8, 2014, [Fazio] filed a baseless and frivolous
      lawsuit against [RX Billing] seeking in excess of $50,000.00 all in
      a malicious effort to harass and intimidate them into submitting
      to his demands and/or to cause financial and emotion injury to
      them, knowing that it would cost [RX Billing] money and time to
      litigate [Fazio]’s baseless suit.

                                        …

                                      -8-
J-A14027-16



     18. Given the baseless nature of the suit which was filed, [RX
     Billing] wrote to [Fazio] and demanded that he withdraw the
     baseless suit he filed. See letter attached hereto as Exhibit “A”.

     19. Instead of withdrawing the baseless suit he filed, [Fazio]
     again attempted to extort money from [RX Billing] by suggesting
     they settle the baseless suit he filed.

     20. On or about December 23, 2015, [RX Billing] herein filed
     Preliminary Objections to the baseless and frivolous lawsuit
     brought against them by [Fazio].

     21.    On or about March 25, 2015, after briefing and oral
     argument, this honorable court sustained the Preliminary
     Objections and dismissed with prejudice the baseless and
     frivolous Complaint which had been filed. See Order attached
     hereto as Exhibit “B”.

                                     …

     24.    [Fazio] wrongfully used and abused the legal process
     against [RX Billing] in an effort to harass and intimidate them
     into submitting to his unreasonable demands and/or to cause
     financial and emotional injury to them, knowing that it would
     cost [RX Billing] money and time to litigate [Fazio]’s baseless
     suit.

     25. [Fazio] used and perverted the legal process in an effort to
     accomplish purposes for which it was not designed.

     26. As a direct and proximate result of [Fazio]’s aforementioned
     malicious abuses of process, [RX Billing has] been caused to
     expend considerable time, effort and money to defend the
     baseless and frivolous suit brought by [Fazio].

Complaint, 6/4/2014, at 4-7.

     RX Billing’s averments plainly, although generally, set forth the

elements for an abuse of process claim: (1) Fazio used the underlying legal

suit against RX Billing, (2) with the primary purpose for which the process


                                   -9-
J-A14027-16


was not designed – to harass and intimidate RX Billing into submitting to his

demands; and (3) harm, in the form of effort and costs, has been caused to

RX Billing. See Shiner, supra. Indeed, one can reasonably infer the crux

of RX Billing’s complaint is Fazio misused the underlying legal proceeding to

seek retribution for his wife’s departure as an employee at the corporation.

Based on our standard of review with regard to preliminary objections, at

this time in the procedural posture of the case, it is not “clear and free from

doubt” that RX Billing “will be unable to prove facts legally sufficient to

establish [its] right to relief.” Feingold, 15 A.3d at 941.

      It merits mention again that “preliminary objections in the nature of a

demurrer require the court to resolve the issues solely on the basis of the

pleadings” and “no testimony or other evidence outside of the complaint

may be considered to dispose of the legal issues[.]”       Mellon Bank, N.A.,

650 A.2d at 899. Here, and contrary to the trial court’s emphasis, we note

the duration of a litigation proceeding is not an essential criteria for an abuse

of process claim. Whether a lawsuit persists for two weeks or several years,

the parties still incur costs to defend, which may constitute harm/damage.

Accordingly, we find the trial court erred in determining RX Billing’s

complaint did not plead, with legal sufficiency, the elements necessary to

prove an abuse of process claim.

      With respect to RX Billing’s remaining two issues, we will address them

together.   In RX Billing’s second issue, it contends the court erred in


                                     - 10 -
J-A14027-16


concluding that it had failed to set forth a viable Dragonetti Act claim.

Specifically, RX Billing argues its complaint sets forth all the necessary

elements for wrongful use of civil proceedings:        (1) Fazio initiated and

continued a civil proceeding against RX Billing; (2) Fazio lacked probable

cause to pursue the suit based on the allegation that after his wife quit

working for the corporation, he threatened to file, and actually did file, a

baseless lawsuit when RX Billing did not submit to his demands, and he

sought to dissolve the corporation by falsely claiming that it was not viable

when he knew that it was; (3) when Fazio was requested to withdraw the

suit, he refused to do so and used the baseless suit in an effort to extort

money from RX Billing Services as well as continuing the baseless process

which he began; and (4) the earlier lawsuit was terminated in favor of RX

Billing. Id. at 13-14.5 With respect to RX Billing’s final claim, it states that

____________________________________________


5
    Moreover, RX Billing claims:

              Rather than looking at the allegations of the Complaint,
       the trial court acted as finder of fact and concluded that [RX
       Billing] failed to present “evidence” or “demonstrate” that [Fazio]
       acted without probable cause.          The trial court improperly
       concluded that the underlying complaint “demonstrates a
       [legitimate] dispute between the parties.”

              At the preliminary objection stage, [RX Billing] need not
       present “evidence” or “demonstrate” the strength of their claim.
       It is for the factfinder at trial, not the court at the preliminary
       objection stage, to determine if the underlying suit was
       legitimate. [RX Billing] need only “allege” these things. That
       was done here and the trial court clearly erred in requiring more.
(Footnote Continued Next Page)


                                          - 11 -
J-A14027-16


if the complaint failed to set forth a valid claim, the court erred in failing to

allow an amendment.           Id. at 18.     RX Billing states:   “Even where a trial

court sustains preliminary objections on their merits, it is generally an abuse

of discretion to dismiss a complaint without leave to amend.” Id., citing In

re Luongo, 823 A.2d 942 (Pa. Super. 2003), appeal denied, 847 A.2d 1287

(Pa. 2003).

      Before we may address the merits of these claims, we note RX Billing

did not raise a Dragonetti Act cause of action6 in its complaint.                See


                       _______________________
(Footnote Continued)


            The court further concluded that the claim fails because
      the judge in the underlying suit did not issue an opinion as to
      why that action was dismissed. The court improperly imposed
      upon [RX Billing] an additional element which is not required in a
      wrongful use of civil proceedings claim. By requiring proof, in
      the form of an opinion, that the underlying action was dismissed
      because it was wrongfully brought, the trial court essentially
      required [RX Billing] to prove their wrongful use of civil
      proceedings claim in the underlying action rather than in the
      current action. This is completely contrary to the law.2
      ___________________
          2
           Despite [the trial court]’s contention, it is clear that the
        underlying action was dismissed because it had no basis in
        law or fact. [Fazio] herein took no appeal from that
        dismissal.
      ___________________

Id. at 14-15 (reproduced record citations).
6
   The Dragonetti Act defines a cause of action for wrongful use of civil
proceedings, in pertinent part, as follows:

(Footnote Continued Next Page)


                                           - 12 -
J-A14027-16


Complaint, 6/4/2014, at 2-7. As the trial court points out, RX Billing raised

the Dragonetti Act claim for the first time in its brief in opposition to Fazio’s

preliminary objections.          See Trial Court Opinion, 9/16/2015, at 3-4

(“Although [RX Billing’s] Complaint appears to set forth a claim for an Abuse

of Process action, [its] brief in opposition to [Joseph Fazio]’s Preliminary

Objections indicates the Complaint seeks recovery under the Dragonetti

Statute (42 Pa.C.S.A. §8351); however, [RX Billing’s] legal argument

contained within their brief is focused on the tort of Abuse of Process.”); see

also RX Billing’s Brief in Opposition to Preliminary Objections, 9/1/2015, at

5-7.   Nevertheless, the trial court addressed both causes of action in its

companion memorandum to the September 16, 2015, order sustaining

Fazio’s preliminary objections and dismissing RX Billing’s complaint.
                       _______________________
(Footnote Continued)

       (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. § 8351(a). “The essence of the tort of wrongful use of civil
proceedings is the institution of a civil action for a malicious purpose and
without probable cause.” Rosen v. Am. Bank, 627 A.2d 190, 193 (Pa.
Super. 1993).



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J-A14027-16


      With respect to this procedural predicament, we are guided by the

following:

             It is not necessary that a plaintiff identify the specific legal
      theory underlying the complaint.              Burnside v. Abbott
      Laboratories, 351 Pa. Super. 264, 505 A.2d 973, 980 (Pa.
      Super. 1985); Weiss v. Equibank, 313 Pa. Super. 446, 460
      A.2d 271, 275 (Pa. Super. 1983). Yet, pursuant to Pa.R.C.P.
      1019(a), a complaint must not only apprise the defendant of the
      claim being asserted, but must also summarize the essential
      facts to support the claim. Dickerson v. Brind Truck Leasing,
      362 Pa. Super. 341, 524 A.2d 908, 910 (Pa. Super. 1987);
      Burnside, 505 A.2d at 980; Weiss, 460 A.2d at 274-75; Alpha
      Tau Omega Fraternity v. University of Pennsylvania, 318
      Pa. Super. 293, 464 A.2d 1349, 1352 (Pa. Super. 1983). If a
      plaintiff fails properly to plead a separate cause of action, the
      cause he did not plead is waived. Garcia v. Community Legal
      Services Corp., 362 Pa. Super. 484, 524 A.2d 980, 982 (Pa.
      Super. 1987). We recognize that the Rules of Civil Procedure
      are to be interpreted liberally. See Pa.R.C.P. 126. “However,
      liberal construction does not entail total disregard of those rules
      concerning pleading.” Duquesne Light Co. v. U.S. Indus.
      Fabricators, 334 Pa. Super. 444, 483 A.2d 534, 536 (Pa.
      Super. 1984).

Zitney v. Appalachian Timber Prods., 72 A.3d 281, 290-291 (Pa. Super.

2013).

      Furthermore, Pennsylvania Rule of Civil Procedure 1028 states, in

pertinent part: “A party may file an amended pleading as of course within

twenty days after service of a copy of preliminary objections.”          Pa.R.C.P.

1028(c)(1). Nevertheless, a panel of this Court has opined:

      A busy trial judge is entitled, and required, to rely on the
      pleadings in deciding preliminary objections to the sufficiency of
      the complaint. See, Morley v. Gory, 2002 PA Super 421, 814
      A.2d 762, 764 (Pa. Super. 2002) (preliminary objections in the
      nature of demurrer require court to resolve issues solely on basis
      of pleadings). The trial court does not have to use a fine-tooth

                                      - 14 -
J-A14027-16


       comb on each exhibit to see if there is some factual basis for a
       cause of action not pled by a party. Likewise, there is no
       obligation to allow an amendment of pleadings after a party
       loses.

Phila. Factors, Inc. v. Working Data Grp., Inc., 849 A.2d 1261, 1264

(Pa. Super. 2004).

       Here, RX Billing did not set forth a separate Dragonetti Act count in its

complaint, and more importantly, it did not provide any Dragonetti Act

terminology like “grossly negligent manner” or “without probable cause” to

maintain such an cause of action. See 42 Pa.C.S. § 8351(a). Furthermore,

Fazio only responded to the abuse of process cause of action in his

preliminary objections. See Preliminary Objections, 7/7/2015. Additionally,

there is no indication in the record that RX Billing sought, either by filed

consent of Fazio or by leave of court, to amend its complaint when Fazio

filed his preliminary objections or when the trial court dismissed its

complaint.7 Accordingly, RX Billing’s Dragonetti Act and amended pleading

issues do not appear to be properly before us.8         As such, we need not

address these claims further as any analysis would amount to an advisory

opinion. See Sedat, Inc. v. Fisher, 617 A.2d 1, 4 (Pa. Super. 1992) (“An

____________________________________________


7
   It merits mention that when the trial court entered the order dismissing
RX Billing’s complaint, it did not indicate whether it was with or without
prejudice. See Order, 9/16/2015.
8
   Upon remand, RX Billing may seek permission to file an amended
complaint in order to raise a Dragonetti Act claim.



                                          - 15 -
J-A14027-16


advisory opinion is one which is unnecessary to decide the issue before the

court, and … the courts of this Commonwealth are precluded from issuing

such advisory opinions.”); U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 403

(Pa. Super. 2015) (same).

     In conclusion, because we find the trial court committed an error of

law in sustaining Joseph Fazio’s preliminary objections, we reverse the

court’s order and remand for proceedings consistent with this memorandum.

     Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

     Judge Platt joins this memorandum.

     Judge Bowes files a concurring and dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2017




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