J-S38044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DONEL LISA FORTE,                       :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                           Appellant    :
                                        :
            v.                          :
                                        :
JANET FORTE,                            :
MINDY J. SNYDER, ESQUIRE AND            :
McNAMARA BOLLA & PANZER,                :
                                        :
                           Appellees    :     No. 2989 EDA 2013


            Appeal from the Order Entered September 26, 2013,
           In the Court of Common Pleas of Philadelphia County,
               Civil Division, at No. 01479 June Term, 2013.


BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                    FILED SEPTEMBER 11, 2014

      Appellant, Donel Lisa Forte, appeals from the order that sustained the

preliminary objections in the nature of a demurrer filed by her mother-in-

law, Janet Forte, her mother-in-
                                                                           1



After review, we affirm.

      It is undisputed that in 2008, Janet Forte loaned $118,321.00 to her

son, Raymond Forte, and his wife, Appellant, for the purchase of a house.

This loan was memorialized in a promissory note dated August 15, 2008. In

2012, while Appellant and Raymond Forte were in the midst of divorce


1
  An order granting preliminary objections in the nature of a demurrer is a
final and appealable order. Pa.R.A.P. 341(b)(1).
J-S38044-14



proceedings, Janet Forte retained Mindy J. Snyder, Esquire of McNamara,

Bolla, and Panzer in an effort to enforce the loan obligation. On December

17, 2012, Janet Forte filed a complaint against Appellant and Raymond Forte

in anticipation of their breach of the loan agreement. 2 However, on March




petition to intervene in Appe

her interest in any proceeds from the sale of the home in equitable

distribution.    However, following the voluntary discontinuance of Janet

                                                                        against

Appellees alleging wrongful use of civil proceedings under the Dragonetti

Act, 42 Pa.C.S.A. §§ 8351 8354. Appellees responded by filing preliminary

objections in the nature of a demurrer. In an order filed on September 26,

2013, the trial court s



that was denied by the trial court, and Appellant filed the instant appeal.

      On appeal, Appellant raises the following issue for t

consideration:


2
  A claim for anticipatory breach is a valid cause of action under
Pennsylvania law and requires an unequivocal refusal to perform or a distinct
and positive statement of an inability to do so. 2401 Pennsylvania Ave.
Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 489
A.2d 733, 736 (Pa. 1985).


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      1. Did the Lower Court commit reversible error by granting


      sufficient factual averments to support a Dragonetti claim under
      42 Pa.C.S.A. sec. 8354 against each of the [Appellees] and
      where the underlying action was terminated in favor of
      [Appellant]?



      The scope and standard of review we apply when examining a

challenge to an order sustaining preliminary objections in the nature of a

demurrer are as follows:


      objections in the nature of a demurrer is plenary. Such
      preliminary objections should be sustained only if, assuming the
      averments of the complaint to be true, the plaintiff has failed to
      assert a legally cognizable cause of action. We will reverse a trial

      court has committed an error of law or an abuse of discretion.

            All material facts set forth in the complaint as well as all
      inferences reasonably [deducible] therefrom are admitted as
      true for [the purpose of this review]. The question presented by
      the demurrer is whether, on the facts averred, the law says with
      certainty that no recovery is possible. Where a doubt exists as to
      whether a demurrer should be sustained, this doubt should be
      resolved in favor of overruling it.

Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa. Super. 2008) (internal

citations omitted).

      Here, Appellant claims that the trial court erred in sustaining



concluding that Appellant did not satisfy her burden of proof to bring a claim




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under the Dragonetti Act.      The relevant portion of the Dragonetti Act

provides as follows:

      Burden of proof

      In an action brought pursuant to this subchapter the plaintiff has
      the burden of proving, when the issue is properly raised, that:

            (1) The defendant has procured, initiated           or
            continued the civil proceedings against him.

            (2) The proceedings were terminated in his favor.

            (3) The defendant did not have probable cause for
            his action.

            (4) The primary purpose for which the proceedings
            were brought was not that of securing the proper
            discovery, joinder of parties or adjudication of the
            claim on which the proceedings were based.

            (5) The plaintiff has suffered damages as set forth in
            section 8353 (relating to damages).

42 Pa.C.S.A. § 8354.

      Appellant specifically argues that the trial court was incorrect in




We disagree.

      As set forth above, Janet Forte voluntarily discontinued her case

against Appellant without prejudice.    We cannot agree, however, that this




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a wrongful use of civil proceedings case, whether a withdrawal or

abandonment constitutes a favorable, final termination of the case against

who[m] the proceedings are brought initially depends on the circumstances

                                                                , 933 A.2d

117, 122 (Pa. Super. 2007) (citing Bannar v. Miller, 701 A.2d 242, 247



compromise or agreement does not, as a matter of law, constitute a

termination favorable to the party against whom proceedings have been

                     Id. (citing Rosenfield v. Pennsylvania Auto. Ins.

Plan, 4636 A.2d 1138, 1142 (Pa. Super. 1994)).

     As noted above, Janet Forte voluntarily withdrew her initial complaint

filed against Appellant. In her brief, Appellant cites to Bannar as support

for her position that the voluntary withdrawal can be construed as a

                                                 -12. The circumstances in

Bannar, however, are not present in the instant case.

     In Bannar, Harry Miller and his wife Jean, owners of the Brownstone

Inn, sued Jane Bannar and twenty-seven others who had been picketing the

Brownstone Inn. The picketers contended that Miller was illegally dumping

sewage. The Millers contended that Bannar and the others were liable for

defamation, injurious falsehood, invasion of privacy, interference with




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contractual relations, nuisance, outrageous conduct, and conspiracy. The



the Brownstone Inn and diminution in property value of one million dollars

for each count in addition to punitive damages of one million dollars from

each individual named in the suit for each count. The Millers subsequently

discontinued the suit, and Bannar and the others filed an action against the

Millers and their attorney under the Dragonetti Act. Following a trial on the

Dragonetti Act claim, a jury returned a verdict in favor of Bannar and the

picketers. The Millers appealed and claimed, among other things, that their

discontinuance of the suit against the picketers did not constitute a



     These factual circumstances lead to a determination that the
     voluntary dismissal constitutes a final determination in favor of
     the persons against whom the proceedings were brought; they
     tend to establish neither clients nor attorneys were attempting to
     properly adjudicate the claim. A last-second dismissal in the face
     of imminent defeat is not favorable to appellants. Appellants did
     not answer the bell in the fight they started, which is a victory
     for the other side.

Bannar

discontinuance was a termination in favor of Bannar and the picketers

                                                 roper purpose, and neither

the Millers nor their counsel were attempting to properly adjudicate their

multi-million dollar claims against the picketers. Id.; see also Majorsky v.

Douglas, 58 A.3d 1250 (Pa. Super. 2012) (distinguishing Bannar and


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noting that the voluntary discontinuance in Bannar was deemed a

termination in favor of the picketers because there was a clear improper

purpose in the filing of the complaint).

      In the case at bar, Appellant asserts that, similar to Bannar, the

discontinued action was brought in bad faith and for an improper purpose.



brought under the auspices of the loan, the promissory note had by its terms

not yet come due, and this was a ploy by Janet Forte to get Appellant to

agree to unfavorable divorce terms. Id. The promissory note reads in full

as follows:

      August 15, 2008

      I Donel Forte, and I Raymond Forte, have borrowed the sum of
      $118,321.00, One hundred eighteen thousand three hundred
      twenty-one dollars from Janet Forte. The total amount of debt
      of $118,321.00 is shared equally between Donel Forte and
      Raymond Forte. This entire sum will be repaid first before any
      other debt is paid in the event of the sale of the house, plus a
      simple percentage increase based on the difference between the
      sale price of the house and the purchase price of the house.

      s/ Donel Forte                                _______
      Donel Forte                                   Date

      s/ Raymond S. Forte                           _______
      Raymond S. Forte                              Date

      $9,000
      $25,000
      $85,000
      -$679.00
      $118,321.00


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J-S38044-14




Promissory Note, 8/15/08.

         While the house had not yet been sold, Janet Forte had an enforceable

claim against the proceeds from such sale, and her request that Appellant

and her son acknowledge the debt did not, by the terms of the promissory

note, require sale of the property.      In her initial complaint, Janet Forte

averred that she sought to have Appellant and her son repay or at least

acknowledge the loan, and when there was no acknowledgement of the

existence of this debt, Janet Forte filed the complaint anticipating a breach

of the agreement.      Complaint, 12/17/12, at ¶ 9.    Moreover, we have no

evidence before us concerning the divorce action or the terms Appellant was

allegedly being coerced to accept.        Thus, the facts of this case are

distinguishable from the facts in Bannar where this Court concluded that

there was a clear improper purpose.       Under the circumstances presented

here, the fact that Janet Forte discontinued the initial suit voluntarily and

then intervened in the divorce proceedings in order to secure her undisputed

right to the proceeds from the sale of the house, does not, under the

Dragonetti Act or the cases cited above, amount to improper purpose or bad

faith.         , 933 A.2d at 122.

         For the reasons set forth above, we agree with the trial court that




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underlying loan action as [Janet Forte] voluntarily dismissed the matter

without prejudice and sought to intervene in the divorce action to litigate the




whereby she was attempting to secure the loan she made to her son and

Appellant.

      Thus, Janet Forte had a valid cause of action, she voluntarily withdrew

the complaint in civil court, and asserted the same claim in the divorce court

proceedings. Therefore, we cannot conclude that there was a termination of



                                                  Lerner, 954 A.2d at 1234.



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2014




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