J-A32010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEYSTONE FREIGHT CORPORATION                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

JEROME GAMBURG, ESQUIRE

                            Appellee                No. 2615 EDA 2013


            Appeal from the Judgment Entered November 12, 2013
             In the Court of Common Pleas of Philadelphia County
                Civil Division at No. 1863 November Term 2011


BEFORE: PANELLA, J., OLSON, J., FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                           FILED MARCH 24, 2015

       Appellant, Keystone Freight Corporation, appeals from the judgment

entered on November 12, 2013 after a jury returned a verdict in favor of

Appellee, Jerome Gamburg, Esquire, in Keystone Freight’s action for

wrongful use of civil proceedings, 42 Pa.C.S.A. §§ 8351-8354, commonly

referred to as the Dragonetti Act.1 We affirm.
____________________________________________




*Former Justice specially assigned to the Superior Court.
1
       The Dragonetti Act provides, in pertinent part:

       (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 [if]:

        (1) he acts in a grossly negligent manner or without probable
       cause and primarily for a purpose other than that of securing the
(Footnote Continued Next Page)
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        The trial court aptly summarized the facts and procedural history of

this case as follows.

        The underlying personal injury action arose from an automobile
        accident that occurred when Jared Watson collided with a
        tractor-trailer owned by [Keystone] and operated by its driver,
        Claudio Jarrett. Mr. Watson was operating a [r]ed Dodge Dakota
        pickup truck traveling northbound on Lincoln Highway in
        Bensalem Township, Pennsylvania when Mr. Jarrett pulled out of
        a Sunoco gas station[.] As Mr. Jarrett pulled out of the Sunoco
        station parking lot, the tractor-trailer he was operating created a
        wall that blocked all three northbound lanes of Lincoln Highway.
        Mr. Watson swerved, skidded, struck the tractor-trailer and was
        severely injured. One of the police officers, who investigated the
        accident in the days that followed, reviewed a Sunoco
        surveillance tape that showed the tractor-trailer pulling out of
        the parking lot without stopping prior to exiting onto Lincoln
        Highway.

        The underlying accident occurred at 2:00 a.m. in the morning,
        and Mr. Watson, who was only twenty years old, had been
        drinking allegedly at the Route One Café prior to operating his
        pickup truck on Lincoln Highway. Notwithstanding the fact that
        Mr. Watson had not reached the permissible age limit to legally
        consume alcohol, toxicology results taken following the accident
        established that his blood alcohol content was well in excess of
        acceptable limits for operating a motor vehicle in the state of
        Pennsylvania.[2]     Officers who investigated the accident
        estimated that Mr. Watson was traveling at a speed of about 55
        to 65 miles an hour prior to impact, while at least one [defense]
        expert … placed Mr. Watson traveling at as much as 70 miles
                       _______________________
(Footnote Continued)

        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)(1)-(2) (emphasis added).
2
    Watson was ultimately convicted of DUI.



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     [per] hour prior to applying his brakes and taking evasive action
     to avoid the collision. Evidence presented at trial established
     that the speed limit applicable to this portion of the Lincoln
     Highway was 50 miles [per] hour.

     Mr. Watson[,] with the assistance of Mr. Gamburg[,] filed a civil
     action complaint against [Keystone] and its driver, Mr. Jarrett.
     He also brought a Dram Shop [a]ction against Route One Café
     that was ultimately consolidated with this action. The Dram
     Shop case was settled, and the case against [Keystone] and its
     driver … went to trial after defense motions for summary
     judgment and non-suit were denied. The jury in the underlying
     action returned a defense verdict.

Trial Court Opinion, dated June 20, 2014, at 1-2 (footnote added).

     After the entry of judgment, Keystone filed the instant Dragonetti

action against Attorney Gamburg, his law office, and Watson. It ultimately

withdrew the action against all but Gamburg. After a trial, the jury returned

a verdict in favor of Gamburg, finding that he had not acted with probable

cause in bringing the underlying action, but concluded that he had not

brought the lawsuit “merely to harass or maliciously injure Keystone.” Id. at

3. The court denied post-trial motions, and Appellant appealed to this Court.

     Appellant raises the following issues:

        a. Whether the trial court erred in denying Appellant’s motion
           for post-trial relief, as the jury’s verdict was clearly against
           the weight of evidence presented at trial because the
           evidence unequivocally showed that Appellee’s primary
           purpose for initiating and continuing the litigation in the
           underlying matter was improper.

        b. Whether the trial court erred in refusing to charge the jury
           with the Appellant’s proposed points for charge for
           wrongful use of civil proceedings.




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         c. Whether the trial court erred in refusing to grant a mistrial
            due to Appellee’s counsel’s prejudicial and inappropriate
            comment made during jury selection.


      Keystone first avers that the jury’s verdict was against the weight of

the evidence because its legal malpractice expert testified that Gamburg had

engaged in the wrongful use of civil proceedings in initiating and maintaining

the underlying action for an improper purpose. In support, Keystone relies,

inter alia, on a conversation that occurred during settlement negotiations

between a Keystone representative and Gamburg in which Gamburg

allegedly stated that any settlement would be “found” money. Appellant’s

Brief at 28.

      Our review of challenges to the weight of the evidence is well-settled.

      In evaluating a claim that a verdict is against the weight of the
      evidence, Pennsylvania courts employ a shocks-the-conscience
      litmus. The trial judge’s authority to award a new trial on weight-
      of-the-evidence grounds is narrowly circumscribed on account of
      the principle that credibility questions are exclusively for the fact
      finder. The matter is couched as discretionary in the trial court,
      with its role in the assessment being afforded primacy in view of
      its substantially closer vantage to the evidentiary presentation as
      compared to that of an appellate court. Relief is available in an
      appellate court only it can be said that the trial court acted
      capriciously or palpably abused its discretion.

Com., Dept. of General Services v. U.S. Mineral Products Co., 956 A.2d

967, 973–974 (Pa. 2008) (footnote and citations omitted).

      In addition, “[i]t is not the role of an appellate court to pass on the

credibility of witnesses or to act as the trier of fact; we will not substitute




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our judgment for that of a fact-finding jury.”       Vattimo v. Eaborn Truck

Service Inc., 777 A.2d 1163, 1165 (Pa. Super. 2001) (citation omitted).

      As noted above, the Dragonetti Act requires that one alleging misuse

of civil proceedings must prove not only that the underlying action was not

supported by probable cause, but also that the suit was instituted “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.”

42 Pa.C.S.A. § 8351(a)(1). With respect to attorney liability, “as long as an

attorney believes that there is a slight chance that his client’s claims will be

successful, it is not the attorney’s duty to prejudge the case.”     Keystone

Freight Corp., v. Stricker, 31 A.3d 967, 973 (Pa. Super. 2011).

      In the instant case, the trial court stated:

      In its motion for post-trial relief, [Keystone] argued that the
      evidence was of such a character that Mr. Gamburg’s motive to
      harass and maliciously injure was so plainly obvious that no
      other conclusion could have been reached. In support of its
      argument, [Keystone] highlighted a convers[at]ion that, both
      sides agreed, took place during settlement negotiations between
      Mr. Gamburg and one of its employees, Michael Donald Luffy. At
      trial, Mr. Luffy testified that during these discussions, Mr.
      Gamburg stated that if he won the lawsuit he would merely be
      extracting “found” money from [Keystone]. When Mr. Gamburg
      was questioned about this conversation during cross-
      examination, the following exchange occurred:

         Q: You had those conversations with Mr. Luffy about found
         money?

         A: I may have said it. I don’t remember … And if I said it, so
         what? It would have been. I collected already, settled from
         the bar. (Tr.Transcr. 214 (4/16/13)).



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     In addition to this conversation, [Keystone] also highlighted the
     facts that Mr. Gamburg’s client in the underlying matter was
     driving drunk, speeding[,] and crashed into its tractor-trailer. In
     essence, [Keystone] suggests that [ ] Mr. Gamburg, displayed
     improper motive in attempting to extract a settlement from
     [Keystone] in an action wherein his own underage, drunk-driving
     client had already, undeservedly, recovered a settlement from
     the tavern that allegedly served him. [Keystone] suggested that
     Mr. Gamburg should not have represented Mr. Watson in the
     underlying matter because Mr. Watson got what he deserved
     when he was injured in a drunken driving accident.

     Whatever the [j]ury may have decided about the underlying
     settlement negotiations, it is clear that the [j]ury disagreed with
     [Keystone’s] characterization of the evidence.          It is quite
     possible the [j]ury viewed the conversation as the type of
     puffery that typically accompanies adversarial proceedings. It is
     also possible the [j]ury frowned on Mr. Luffy’s disclosure of what
     it viewed as statements made during confidential settlement
     discussions. There is simply no way to know what weight was
     given to this evidence but it is fundamental law that the [j]ury
     was free to give it the weight to which it deemed it was entitled.

     … [T]he jury was never required to reject the conclusion that Mr.
     Gamburg had acted in good faith when he filed or continued the
     underlying litigation; it simply had to find that [Keystone] failed
     to prove improper motive. When examining Mr. Gamburg’s
     motive, the [j]ury was presented with a situation in which a
     young man, Mr. Watson, was severely injured in an automobile
     accident.    This Court would never condone Mr. Watson[‘s]
     behavior; however, the fact remained, competent evidence was
     proven that demonstrated that Mr. Jarrett created a proverbial
     brick wall that blocked three lanes of travel on Lincoln Highway
     at 2:00 a.m. in the dark when he drove his tractor-trailer into
     oncoming traffic as he left the Sunoco parking lot. The evidence
     also clearly showed that Mr. Watson was traveling in a straight
     line down Lincoln Highway prior to the collision, and the
     investigating police officers placed him traveling at a speed of
     about 55 to 65 miles an hour – slightly over the posted speed
     limit. The accident also happened several miles from the Route
     One Café where Mr. Watson was apparently drinking, and this
     suggested at least in part that he was able to operate his vehicle
     without crashing for several miles along Route One and then
     Lincoln Highway. Mr. Watson bore a tremendous amount of
     responsibility for the underlying motor vehicle collision.

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      However, Pennsylvania is a comparative negligence state and
      Mr. Gamburg testified that he believed that any comparative
      negligence of Mr. Watson did not outweigh the negligence of the
      [Keystone’s] driver, Mr. Jarrett. Accordingly, he testified his
      client could still have won a verdict against [Keystone] if the jury
      agreed with his theory of the case.

      In addition to Mr. Gamburg’s independent belief, it should be
      mentioned that the underlying matter was in fact presented to a
      jury for a determination on its merits after motions for summary
      judgment and non-suit were denied. While this fact, in and of
      itself, is not dispositive of the issue discussed therein, it does
      support the conclusion that a legitimate issue of fact was
      presented for consideration by the [j]ury in the case sub judice.
      After due deliberation, the [j]ury found that [Keystone] had
      failed to prove by a preponderance of the evidence that Mr.
      Gamburg had acted with an improper motive when he initiated
      and continued the underlying litigation.

Trial Court Opinion, dated 6/20/14, at 7-9.

      Based on our review of the record and consideration of the trial court’s

thorough analysis, we conclude that the trial court did not act capriciously or

palpably abuse its discretion in refusing to grant Keystone a new trial or

judgment n.o.v.

      Appellant next argues that the trial court erred in charging the jury

with Pennsylvania Suggested Standard Jury Instruction (“SSJI”) 17:70,

instead of Keystone’s proposed jury charge.

      Our review of challenges to jury instructions is well-settled.

      Under Pennsylvania law, our standard of review when
      considering the adequacy of jury instructions in a civil case is to
      determine whether the trial court committed a clear abuse of
      discretion or error of law controlling the outcome of the case. It
      is only when the charge as a whole is inadequate or not clear or
      has a tendency to mislead or confuse rather than clarify a
      material issue that error in a charge will be found to be a
      sufficient basis for the award of a new trial.

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     Further, a trial judge has wide latitude in his or her choice of
     language when charging a jury, provided always that the court
     fully and adequately conveys the applicable law.

Philips v. Lock, 86 A.3d 906, 916-17 (Pa. Super. 2014).

     In the instant case, the trial court gave the following instruction while

reading directly from SSJI 17:70:

     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 if: A, he
     or she acts in a grossly negligent manner, or, B, 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, C, the
     proceedings have terminated in favor of the person against
     whom they were brought.

     As a matter of law, I will tell you that the defendant caused civil
     proceedings to be initiated against the plaintiff, and that the civil
     proceedings terminated in favor of the plaintiff.

     Gross negligence is failure to use even slightest care or failure to
     exercise the degree of care that even the most inattentive would
     take as set forth in the statute.

     Even if the defendant has acted in a grossly negligent manner or
     without probable cause, your verdict must be for the defendant if
     you find that he acted primarily for the purpose of securing the
     proper discovery, joinder of parties , or adjudication of the claim
     in which the proceedings are based.

     If you find the defendant reasonably believed in the existence of
     facts upon which the claim was based and, A, reasonably
     believed that under those facts the claim may have been valid
     under the existing or developing law or, B, believed as a lawyer
     of record in good faith that his procurement, initiation, or
     continuation of the civil cause was not intended to merely harass
     or maliciously injure the opposite party, then you must find that
     the defendant acted with probable cause.




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Trial Court Opinion at 11; R.R. at 653a.3

        As the trial court noted, the SSJI instruction provided to the jury

tracks the language of the Dragonetti Act itself. See 42 Pa.C.S.A. § 8351,

supra. Keystone nonetheless contends here that the trial court should have

instructed the jury that “an improper purpose may be inferred where the

action is filed without justification.”          Appellant’s Brief at 34 (citing

Broadwater v. Sentner, 725 A.2d 779, 784-85 (Pa.Super. 1999), and

Ludmer v. Nernberg, 640 A.2d 939, 943 (Pa. 1994)).4 We disagree.

        Because the trial court’s jury charge tracked the language of the

Dragonetti Act, and the jury instructions as a whole adequately explained

the law, we conclude that the trial court did not abuse its discretion or

commit an error of law that controlled the outcome of the case.

        In its final issue, Keystone alleges that it should have been granted a

mistrial because Gamburg’s counsel “unfairly biased the jury in [Gamburg’s]
____________________________________________


3
    We refer to the Reproduced Record for the convenience of the parties.
4
  Neither case supports Keystone’s contention. In Broadwater, this Court
reversed a grant of summary judgment after determining that the attorney
had had a reasonable basis for filing the underlying action. In Ludmer, this
Court affirmed the denial of judgment n.o.v. after concluding that the
attorney’s own testimony showed that he knew he was acting with an
improper purpose in instituting and maintaining an action against a doctor
without his client’s consent and, in fact, against the express wishes of his
client. The phrase “without justification” as used in both cases referred to
specific fact-based circumstances, circumstances which are not present in
the instant case. Moreover, in neither Broadwater nor Ludmer was there
an issue of a fact-finder drawing an inference or a challenge to jury
instructions.



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favor” when he stated, during jury selection, that Gamburg had never been

sued for malpractice.    Appellant’s Brief at 38 (citing RR. 536a-37a). In

support, Keystone cites to the following colloquy that occurred before the

commencement of the trial:

      Joseph Toddy, Esquire, Keystone’s counsel:       There    was    a
      mention by Mr. [David F.] Binder [Gamburg’s counsel], when we
      were picking the jury, that his client had never previously been
      sued for malpractice. We don’t want that to be said to the jury.
      It’s not relevant to these proceedings. First off, we don’t know if
      it’s true. We don’t know if there was other claims [sic] made.

      The court: Mr. Binder indicated on Friday he does not intend to
      do that again. I gave you all the opportunity, Mr. Toddy, to
      colloquy or question each juror in individual voir dire as to
      whether or not that remark made any difference to them. You
      chose not to. I consider that to be a waiver on that issue as to
      whether or not it affected the jury.

      Going forward, however, Mr. Binder, there should be no further
      remarks of those kinds.

      Mr. Toddy: And, Your Honor, just since we’re on that, I did
      move for a mistrial. I just want to put that on the record.

      The court: I understand. Yes, you did. You asked for a mistrial
      even though we had not formally sworn in the jury. But I
      indicated to you that you had the ability to question each juror
      because we had not formally selected the jury yet. We had not
      selected or you had not exercised your strikes at that point. I
      gave you all the opportunity to question each juror individually
      as to whether or not that remark would matter to them when it
      came to coming to a decision on a case. You declined to do that.
      That’s why I said I considered the matter waived. We’re moving
      on.

R.R. at 536a-537a.

      Without acknowledging the trial court’s finding of waiver, citing

relevant authority, indicating where in the record evidence of prejudice could

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be found, and without providing any analysis, Keystone summarily concludes

that “the lack of a proper remedy allowed this prejudicial, inappropriate, and

irrelevant comment to influence the jury’s decision during deliberation and

created an unfair advantage for the Appellee from the outset of the trial.”

Appellant’s Brief at 39. The trial court did not address this argument in its

Pa.R.A.P. 1925(a) opinion, and Keystone’s conclusory allegations fail to

provide a basis upon which to permit this Court “to render a reasoned

conclusion.”   Robinson Twp., Wash. Cty. V. Commonwealth, 83 A.3d

901, 940 n.28 (Pa.2013). Accordingly, this issue is waived.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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