J-A29033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ALEX LAROCHE,                          :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 BRUCE BEERS, BEERS &                   :   No. 1757 EDA 2018
 ASSOCIATES INC., GEORGE A.             :
 KOUNOUPIS ESQ. AND HAHALIS &           :
 KOUNOUPIS P.C.

                Appeal from the Order Entered May 30, 2018
   In the Court of Common Pleas of Northampton County Civil Division at
                        No(s): C-48-CV-2014-11930


BEFORE:   OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED JANUARY 11, 2019

     Appellant Alex LaRoche (hereinafter “LaRoche”) appeals from the

Stipulated Order entered in the Court of Common Pleas of Northampton

County on May 30, 2018, which rendered final its prior Order of September

13, 2017, denying LaRoche’s motion for summary judgment as to liability and

granting the motion of Appellees Bruce Beers, Beers & Associates Inc.,

(collectively, “Beers”), George A. Kounoupis, Esq., and Hahalis & Kounoupis,

P.C. (collectively, “Kounoupis”) for summary judgment and dismissing

LaRoche’s action for wrongful use of civil proceedings pursuant to the




____________________________________
* Former Justice specially assigned to the Superior Court.
J-A29033-18



Dragonetti Act, 42 Pa.C.S.A. §§ 8351-8355.1 Following a careful review, we

reverse and remand.
____________________________________________


1 The parties erroneously purport to appeal from the trial court’s
September 13, 2017, Order; however, this Court quashed the appeal
taken from that Order. In doing so, we noted it was not a final order,
and, thus, this Court did not have jurisdiction over that appeal. See
LaRoche v. Bruce Beers and Beers & Associates, Inc., 3253 EDA
2017, unpublished memorandum at 5 (Pa.Super filed May 2, 2018).

              In general, an appeal may be taken as of right only from a
       final order, which encompasses a judgment, decision, decree,
       sentence and adjudication, see Pa.R.A.P. 102, and, in relevant
       part, is defined as one that disposes of all claims and all parties or
       contains an express determination that an immediate appeal
       would facilitate a resolution of the entire case. See Pa.R.A.P.
       341(a), (b)(1), (3), (c). The note following Rule 341 further
       provides that the failure of a party to apply to the court for a
       determination of finality does not result in a waiver, and the
       matter may be raised in a subsequent appeal following the entry
       of a final order. See Pa.R.A.P. 341, note. Thus, in an action
       involving multiple defendants, and in the absence of an express
       determination by the trial court under Rule 341(c), an order
       granting summary judgment as to one party is treated as
       appealable as of right only after the disposition of the claims
       involving the remaining parties. See generally Gutteridge v.
       A.P. Green Servs., Inc., 804 A.2d 643, 650 (Pa.Super.2002)
       (stating that an order settling a case as to the remaining parties
       rendered the prior orders granting summary judgment final under
       Rule 341).

K.H. v. J.R., 573 Pa. 481, 490, 826 A.2d 863, 869 (2003).

      In Its May 30, 2018, Order, the trial court noted that “it is the desire
and intent of all parties that the claims against the Beers Defendants be
dismissed without prejudice, for the express purpose of allowing this
[c]ourt’s September 13, 217, Order to be recognized as a ‘final order’ within
the meaning of Pa.R.A.P. 341, so that [LaRoche’s] appeal may be considered
on the merits[.]” (emphasis in original).     The court clarified that “[i]f
[LaRoche’s] appeal of this [c]ourt’s September 13, 2017, Order [ ] results in



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       The trial court set forth the relevant facts and procedural history herein

as follows:

              In January 2008, [LaRoche] executed an agreement with
       [Beers] for the construction of a home for a contract price of One
       Million One Hundred Thousand Dollars ($1,100,000.00). The
       contract contained an integration clause and a provision for
       written and fully executed change orders. On February 11, 2017,
       [Beers] represented by [Kounoupis] commenced an action in this
       [c]ourt against the LaRoche[] at docket number 2011-1027. By
       their Third Amended Complaint in that action, [Beers] set forth
       claims for breach of contract, promissory estoppel, and unjust
       enrichment, based on allegations that [] LaRoche[] had failed to
       pay [Beers] for all the work done under the contract in the amount
       of Fifty-Nine Thousand Eight Hundred Three Dollars and Forty
       Cents ($59,803.40), and additional work performed pursuant to
       written and oral agreements between the parties, in the amount
       of One Hundred Sixty-Four Thousand One Hundred Twenty -Nine
       Dollars and Ninety-Nine Cents ($164,129.99). Beers[’] claims
       were never resolved on the merits. Rather, their action concluded
       on February 22, 2013 with the filing of a Praecipe to Discontinue
       and End.
              The instant matter commenced on December 15, 2014 with
       [LaRoche] filing a Complaint against [Beers] and [Kounoupis],

____________________________________________


a reversal of that Order, then [Beers] shall again be joined as defendants in
this action upon filing of a praecipe by any other party[.]”
       Typically, an order dismissing a complaint without prejudice is
considered interlocutory. See Mier v. Stewart, 683 A.2d 930 (Pa.Super.
1996). However, because the trial court’s express purpose in dismissing the
claims against Beers without prejudice was to allow this Court’s September
13, 2017, Order to be recognized as a final order within the meaning of
Pa.R.A.P. 341, we will consider the trial court’s May 30, 2018, Order to be a
final order for appellate purposes. See Fastuca v. L.W. Molnar &
Associates, 950 A.2d 980, 986 (Pa.Super. 2008) (order will be considered a
final order, and therefore appealable, if the practical ramification of the order
is to dispose of the case).




                                           -3-
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     setting forth a single claim of Wrongful Use of Civil Process as to
     the case at 2011-1027.
             On or about July 25, 2017, the matter came before the
     undersigned on [LaRoche’s] motion for summary judgment as to
     liability against all defendants, and the Kounoupis [] motion for
     summary judgment as [to] the claim against them. By an Order
     and Statement of Reasons entered on September 13, 2017, this
     [c]ourt denied [LaRoche’s] summary judgment motion and
     granted the Kounoupis['] summary judgment motion on grounds
     that [LaRoche] had failed to establish a prima facie claim against
     [Kounoupis].1
             While [LaRoche] alleged that he was entitled to relief based
     on [Beers’] execution of a Final Affidavit and Lien Waiver stating
     that he had been paid in full by [LaRoche], and also based on the
     contention that [Kounoupis] would have determined that [Beers]
     had been paid in full had they fully reviewed [Beers’] construction
     file, the [c]ourt found rejected [sic] these arguments as
     insufficient to overcome the [Kounoupis’] summary judgment
     motion. The [c]ourt based its ruling on the fact that [LaRoche’s]
     claim against [Kounoupis] was in the nature of wrongful use of
     civil proceedings. Accordingly, the material issues were whether
     [Kounoupis] had procured, initiated or continued the civil
     proceedings against [LaRoche]; whether said proceedings were
     terminated in favor of [LaRoche]; whether [Kounoupis] did not
     have probable cause for their action; that 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; and that [LaRoche] had
     suffered damages.
             Upon review of the record relied upon by all parties, the
     [c]ourt determined that the evidence was uncontroverted that
     [Kounoupis] had procured, initiated or continued the civil
     proceedings against [LaRoche] and that said proceedings were
     terminated in favor of [LaRoche]. However, the [c]ourt also found
     that [Kounoupis] had probable cause for their action. The
     evidence was uncontroverted that [Kounoupis] had relied on
     [Beers] to apprise them of the relevant facts and the nature of his
     claim. It was also uncontroverted that the [Kounoupis]
     Defendants were aware of and had reviewed the aforementioned
     Waiver and the construction file. The evidence also demonstrated
     that [Kounoupis] relied on [Beers’] representations with respect
     to the construction file, which led them to conclude that the Beers
     had a claim against [LaRoche]. Finally, the evidence further
     demonstrated that [Kounoupis] had conducted independent legal

                                    -4-
J-A29033-18


       research with respect to the Waiver and had reason to believe that
       they could establish a claim notwithstanding the same. In light of
       this uncontroverted evidence as viewed through the lens of the
       applicable law, the [c]ourt found that [Kounoupis] had acted
       reasonably in bringing the underlying action, and that therefore,
       [LaRoche] could not establish the third element of [his] claim and
       [Kounoupis] was entitled to summary judgment in their favor.
             [LaRoche] filed a timely appeal to the [c]ourt's ruling, but
       on May 2, 2018, the same was quashed pursuant to Pa.R.A.P.
       341(c) relating to the finality of appealable orders given that the
       Order was silent as to [Beers] at a time when they remained
       parties of record. On May 30, 2018, the undersigned entered a
       Stipulated Order prepared by the parties which dismissed [Beers]
       as parties to the action, and this appeal followed.

       ____

       1At that juncture in the proceedings, [LaRoche] had reached a
       settlement with [Beers], but they remained parties of record.

Trial Court Opinion, filed 6/22/18, at 1-4.

       LaRoche filed a timely notice of appeal following the May 30, 2018,

Order on June 7, 2018. On June 12, 2018, the trial court ordered LaRoche to

file a concise statement of matters complained of on appeal, and LaRoche

complied on June 18, 2018.           In his brief, LaRoche presents the following

Statement of the Questions Involved.2

____________________________________________


2 We point out that although LaRoche presents five questions, the argument
section of his brief is divided into only four parts and discusses the claims in
a different order than that in which they are presented in the questions
involved portion. See Pa.R.A.P. 2119(a) (“The argument shall be divided into
as many parts as there are questions to be argued; and shall have at the head
of each part-indistinctive type or in type distinctively displayed-the particular
point treated therein, followed by such discussion and citation of authorities
as are deemed pertinent.”); Donaldson v. Davidson Bros., Inc., 144 A.3d
93, 99 n. 9 (Pa.Super. 2016) (determining that the appellant had failed to
comply with Rule 2119(a) where the appellant’s brief did not “present and



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J-A29033-18


       1. At a minimum, does a genuine issue of material fact exist as to
       whether the lawyer for a contractor lacked probable cause to file,
       or acted in gross negligence by filing, a lawsuit against a
       homeowner for the alleged non-payment of an amount the
       contractor claimed to be due when, before filing suit, that lawyer
       knew that, to induce the homeowner to make final payment, the
       contractor stated in a sworn affidavit that:

              (a) all work on the property had been completed;
              (b) the contractor had been paid in full for all work
              performed on the property;
              (c) there were no sums of money due or owing to the
              contractor; and
              (d) the contractor waived any claims that could give
              rise to a mechanic's or other form of lien?

       2. At a minimum, does a genuine issue of material fact exist as to
       whether a lawyer acted without probable cause or in gross
       negligence by filing a lawsuit in reliance on only oral statements
       of his client that the contractor and homeowner had entered into
       subsequent oral contracts for upgrades or additional work when:

              (a) the parties' written, integrated contract prohibited
              oral modification;
              (b) there was no written or other evidence of any oral
              agreement subsequent to the parties' written contract and
              the law requires precise, clear and convincing evidence of
              any oral agreement to modify the written agreement; and
              (c) the contractor's construction file, which the lawyer had
              for nine months before filing suit, established that the
              homeowner had paid the full fixed contract price, the home
              was constructed in accordance with the written construction
              contract without any additions or upgrades and that no
              allowances were exceeded?

       3. Did the trial court err by invading the province of the jury in
       violation of Nanty-Glo v. American Surety Company, 309 Pa. 236,

____________________________________________


develop eight arguments in support of the eight questions raised”). Because
we are able to address LaRoche’s issues, his noncompliance does not preclude
our review.



                                           -6-
J-A29033-18


       238, 163 A. 523, 524 (Pa. 1932)[3] by "evaluating" evidence,
       determining the facts of the case, making "reasonableness"
       determinations and by crediting the moving parties' testimony
       that they relied on information provided by their client when a jury
       would be free to reject that testimony and determine other facts?

       4. Did the trial court apply an erroneous legal standard in granting
       summary judgment in favor of [Kounoupis] and against
       [LaRoche]?

       5. Did the trial court err in not granting summary judgment as to
       liability against the [Kounoupis] and in favor of [LaRoche] when
       the contractor's affidavit and construction file established, as a
       matter of law and fact: (i) the absence of probable cause and an
       improper motive for the prior action by the homebuilder against
       the homeowner; and, (ii) [Kounoupis’] gross negligence in
       commencing the prior lawsuit against Appellant and his wife?

Brief of Appellant at 7-9.

              As this case involves the grant of summary judgment, we
       begin by observing that summary judgment is only appropriate in
       cases where there are no genuine issues of material fact and the
       moving party is entitled to judgment as a matter of law. Pa.R.C.P.
       1035.2(1). When considering a motion for summary judgment,
       the trial court must take all facts of record and reasonable
       inferences therefrom in a light most favorable to the non-moving
       party and must resolve all doubts as to the existence of a genuine
       issue of material fact against the moving party. Yenchi v.
       Ameriprise Fin., Inc., 639 Pa. 618, 161 A.3d 811, 818 (2017)
       (citing Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d
       186, 195 (2007)). An appellate court may reverse a grant of
       summary judgment if there has been an error of law or an abuse
       of discretion. Fine[v. Checcio, 582 Pa. 253,] 870 A.2d at 857 n.3
       [(2005)]. Because the claim regarding whether there are genuine

____________________________________________


3 Nanty-Glo holds that without more, “testimonial affidavits of the moving
party or his witnesses, not documentary, even if uncontradicted, will not afford
a sufficient basis for the entry of summary judgment.” Larsen v.
Philadelphia Newspapers, Inc., 602 A.2d 324, 333 (Pa.Super. 1991)
(citing Nanty-Glo, 163 A. at 524).



                                           -7-
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      issues of material fact is a question of law, our standard of review
      is de novo and our scope of review is plenary. Id.

Nicolaou v. Martin, 2018 WL 5019804, at *8 (Pa. Oct. 17, 2018).               In

addition, to the extent this Court must resolve a question of law, we review

the trial court’s grant of summary judgment in the context of the entire record.

Yenchi v. Ameriprise Fin., Inc., 639 Pa. 618, 630, 161 A.3d 811, 818

(2017), quoting Summers v. Certainteed Corp., 606 Pa. 294, 307, 997 A.2d

1152, 1159 (2010).

      In his Complaint filed on December 15, 2014, LaRoche brought a claim

for wrongful use of civil proceedings, pursuant to 42 Pa.C.S.A. § 8351, et seq.,

also known as the “Dragonetti Act,” wherein he asserted that Beers and

Kounoupis previously filed a Complaint in the Northampton County Court of

Common Pleas at Docket No. C-48-CV-2011-1027 as a result of their gross

negligence or in the absence of probable cause and for an improper purpose.

This Court has described wrongful use of civil proceedings as “a tort arising

when a person institutes civil proceedings with a malicious motive and lacking

probable cause.” Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971

(Pa.Super. 2011) (citation omitted). By enacting the Dragonetti Act, “our

legislature ... abolished the common law rule which held that an action for

malicious use of process could not be brought absent a seizure of the plaintiff's

person or property.” Rosen v. Tesoro Petroleum Corp., 582 A.2d 27, 30

(Pa.Super. 1990) (citation omitted), appeal denied, 527 Pa. 636, 592 A.2d

1303 (1991). This Court has observed that “by making it easier to establish a

                                      -8-
J-A29033-18


case of malicious prosecution, the Pennsylvania legislature has expressed an

interest in providing greater protection to those individuals and entities who

may be forced to defend a baseless suit.” Id. at 31.

      The Dragonetti Act requires, in pertinent part, the following elements to

establish a cause of action under the statute:

      § 8351 Wrongful use of civil proceedings

      (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.A. § 8351(a).    The statute defines the existence of probable cause

as follows:

      § 8352. Existence of probable cause

      A person who takes part in the procurement, initiation or
      continuation of civil proceedings against another has probable
      cause for doing so if he reasonably believes in the existence 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 information; or




                                      -9-
J-A29033-18


      (3) believes as an attorney of record, in good faith that his
      procurement, initiation or continuation of a civil cause is not
      intended to merely harass or maliciously injure the opposite party.

42 Pa.C.S.A. § 8352.

      “A party has probable cause to bring an action when he reasonably

believes in the facts on which it is based and in the viability of the legal theory

under which it is brought.” Gentzler v. Atlee, 660 A.2d 1378, 1382 (Pa.

Super. 1995) (internal quotation marks and citation omitted; emphasis in

original), appeal denied, 543 Pa. 694, 670 A.2d 142 (1995). However, even

where a party possesses probable cause, a Dragonetti action may still be

sustained by a showing of gross negligence. See Keystone Freight Corp.,

31 A.3d at 973. “Gross negligence is defined as the want of even scant care

and the failure to exercise even that care which a careless person would use.”

Id. (citation omitted).

      “Insofar as attorney liability is concerned, 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. Lawyers can safely act upon

the facts stated by their clients.” Id. (citations and quotation marks omitted).

Notwithstanding, an attorney must not intend merely to harass the other party

by initiating litigation. Id. see also 42 Pa.C.S.A. § 8352. Moreover,

              the plaintiff in a wrongful use of civil proceedings action
      need not obtain the defendant’s outright ‘confession’ of improper
      purpose; an improper purpose may be inferred where the action
      is filed without justification. Thus, a claim for wrongful use of civil
      proceedings will lie if the trier of fact could reasonably conclude


                                      - 10 -
J-A29033-18


       that the defendant initiated the underlying lawsuit without
       probable cause.

Perelman v. Perelman, 125 A.3d 1259, 1264 (Pa.Super. 2015), appeal

denied, 636 Pa. 96, 141 A.3d 435 (2016).

       Herein, the trial court stated it is undisputed that LaRoche satisfied the

first element of a wrongful use of civil proceedings claim in that Beers and

Kounoupis filed a civil action against him on February 11, 2011. See Trial

Court Opinion and Order of Court, filed 9/13/17, at 6.        The court further

determined that “[i]n keeping with the relevant case law, this [c]ourt is

satisfied that the mere fact that Beers’ action against [LaRoche] was

voluntarily discontinued [is] a sufficient basis upon which to determine that

the prior proceedings terminated in favor of [LaRoche]. Id. at 8.4 However,

the trial court ultimately held that Kounoupis had a reasonable legal and

factual predicate for filing the underlying claim.      In doing so, the court

reasoned that Kounoupis, as counsel for Beers, reasonably relied in good faith

____________________________________________


4  While the underlying action was discontinued, LaRoche’s counterclaim
proceeded to a bench trial, following which the trial court issued Findings of
Fact, Conclusions of Law, and a Verdict in favor of LaRoche and against Beers
in the amount of Two Hundred Thirty-Six Thousand Three Hundred Eighty-
Four Dollars ($236, 384.00). At trial, Beers testified following which the trial
court posed additional questions. See N.T. 9/14/16, at 1-77. Specifically,
the trial court questioned Beers regarding his claim that LaRoche had incurred
a $50,000.00 overage on a macadam driveway. The trial court asked Beers
for an accounting sheet, invoice, or receipt ledger pertaining to that additional
charge, and expressed its incredulity when Beers indicated that he had no
such documentation. Id. at 80-81, 82-84, 86.




                                          - 11 -
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upon the statement of facts his client had made to him regarding the amounts

LaRoche allegedly owed on the property, the import of a Waiver5 signed by


____________________________________________


5 On June 17, 2009, Beers signed under oath a construction/Permanent
Lending Contactor’s Final Affidavit and Lien Waiver which reads as follows:

       STATE OF Pennsylvania
       COUNTY OF Northampton

        CONSTRUCTION/PERMANENT LENDING CONTRACTOR'S FINAL
                    AFFIDAVIT AND LIEN WAIVER

       I, BRUCE E. BEERS, having been first duly sworn, depose and say
       that I am the general contractor, who has had charge of the
       construction completed on the afore described property; that all
       of the persons, firms, and corporations who have been employed
       in connection with said construction and who have furnished
       service, labor or materials in the construction or report of
       improvements on said afore described property, have been paid
       in full and there are no sum or sums of money due or owing to
       any persons, firms or corporations, which might entitle any firm,
       person or corporation to file a mechanics' lien or liens of any kind
       against the afore described property, has been fully completed
       and accepted by the owner thereof; that this affidavit is made in
       order to induce Wachovia Mortgage, FSB ("Lender") to make final
       payment in connection with the said construction permanent
       mortgage loan in favor of the owner of said property. LAROCHE,
       ALEXANDRE A & LAROCHE, ANDRIANA V, 190 WEST MOUNTAIN,
       WIND GAP, PA 180910000, Loan #0006788979.

       The undersigned general contractor covenants that no security
       agreements, chattel mortgages, conditional bills of sale of
       retention of title agreement have been given or executed by the
       said general contractor for or in connection with any material,
       appliances, machinery, fixtures, or furnishings placed upon or
       installed in the foresaid premises by him.

       The undersigned lienor, in consideration of value received, hereby
       waives its lien and right to claim a lien for labor, services or



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J-A29033-18


Beers, and the status of a change order provision contained in the parties’

Agreement.       The court further was satisfied that “Kounoupis proceeded

reasonably after undertaking legal research, which indicated to him that the

parties could modify their written agreement by subsequent oral agreement

notwithstanding the integration clause.” Id. at 11-12 (citation and footnoted

omitted).

       We begin by evaluating LaRoche’s first four related claims.      Therein,

LaRoche essentially argues that the trial court applied an erroneous legal

standard in granting summary judgment in favor of Kounoupis because a

genuine issue of material fact exists as to whether he lacked probable cause

to file, or acted in gross negligence, when filing the 2011 lawsuit. LaRoche

maintains Kounoupis conducted inadequate legal research and relied upon

only Beers’ oral statements in setting forth the allegations in the Dragonetti

action despite the fact that the record contained Beers’ sworn affidavit that all

work on LaRoche’s property had been completed and all payment from



____________________________________________


       materials furnished through JUNE 17, 2009 (insert date) to the
       above listed property.

Beers signed the Waiver as the “General Contractor,” and the document was
notarized.
      We highlight for the trial court the fact that the waiver clearly and
unambiguously provides that the work is completed and that Appellant has
“paid [Appellee] in full for all of the work on the property.” We also highlight
the fact that the 2011 Lawsuit requested payment for “work on the property.”
We leave it to the factfinder to determine whether Appellee, in light of this
clear and unambiguous language, had probable cause to file the 2011 lawsuit.

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J-A29033-18


LaRoche had been received.        Appellant posits that “[a]t a minimum, the

Waiver creates a jury question as to the absence of probable cause for the

Prior Action and the gross negligence of [Kounoupis’] supposed understanding

of the Waiver if he understood it as applying only to work performed under

the parties’ written Contract.”    Brief of Appellant at 22-23.   (emphasis in

original).   LaRoche urges that this is so especially in light of Kounoupis’

deposition testimony wherein he agreed the Waiver applied to all claims Beers

could have asserted for payment pertaining to all work done on the LaRoche’s

property. Id. at 24-25.

      LaRoche further reasons the trial court violated the Nanty Glo Rule by

admittedly     evaluating   the    evidence   and    making     reasonableness

determinations that are the exclusive province of the jury. Because we find

that in resolving Kounoupis’ motion for summary judgment the trial court did

not view the facts in the light most favorable to LaRoche, and, instead,

accepted the version of the facts proffered by Kounoupis and Beers in violation

of the well-established Nanty-Glo Rule, we agree. See Krolczyk v. Goddard

Sys., Inc., 164 A.3d 521, 527 (Pa.Super. 2017).

      The Nanty–Glo Rule controls the use of oral testimony presented either

through affidavits or depositions to determine the outcome of a case in

motions practice. The Rule states “... the party moving for summary judgment

may not rely solely upon its own testimonial affidavits or depositions, or those

of its witnesses, to establish the non-existence of genuine issues of material


                                     - 14 -
J-A29033-18


fact.” Dudley v. USX Corp., 606 A.2d 916, 918 (Pa.Super. 1992), appeal

denied, 616 A.2d 985 (Pa. 1992) (emphasis added) (citation and footnote

omitted). Three (3) factors determine the applicability of the Nanty–Glo Rule:

      Initially, it must be determined whether the plaintiff has alleged
      facts sufficient to establish a prima facie case. If so, the second
      step is to determine whether there is any discrepancy as to any
      facts material to the case. Finally, it must be determined whether,
      in granting summary judgment, the trial court has usurped
      improperly the role of the [fact-finder] by resolving any material
      issues of fact. It is only when the third stage is reached that
      Nanty–Glo comes into play. The function of the summary
      judgment proceedings is to avoid a useless trial but is not, and
      cannot, be used to provide for trial by affidavits or trial by
      depositions. That trial by testimonial affidavit is prohibited cannot
      be emphasized too strongly.

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 594–95 (Pa.Super. 2013)

(citation omitted) (emphasis added). Therefore, in order for the Nanty–Glo

Rule to apply in the instant matter, there must be a genuine discrepancy or

dispute as to a material fact which the trial court improperly has resolved.

      In its Opinion and Order filed on September 13, 2017, the trial court on

numerous occasions indicated it “evaluated the evidence” and made

determinations as to the “reasonableness” of Kounoupis’ actions.       However,

in doing so, the trial court relied upon Kounoupis’ deposition testimony. For

instance, the trial court stated that it:

      is satisfied that Kounoupis’ testimony that he met with Beers
      multiple times to go over the alleged facts of the case before filing
      a complaint is sufficient to establish the reasonableness of his
      reliance on Beers’ representations with regard to the amounts
      owed, the status of the Waiver, and the status of the change order
      provision contained in the Agreement. . . . Likewise, the [c]ourt
      is satisfied that [ ] Kounoupis proceeded reasonably after

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      undertaking legal research, which indicated to him that the parties
      could modify their written agreement by subsequent oral
      agreement notwithstanding the integration clause.

Trial Court Opinion and Order, filed 9/13/17, at 12 (citation and footnotes

omitted) (emphasis added).

      In relying upon certain portions of Kounoupis’ deposition testimony to

resolve   a genuine   discrepancy of    material   fact   as   to   whether   the

aforementioned Waiver created an absolute bar to the 2011 action, the trial

court usurped the role of the fact-finder and, consequently, violated the

Nanty-Glo Rule. See DeArmitt, supra. Viewed in the light most favorable

to him as the non-moving party, LaRoche introduced sufficient documentary

evidence and obtained testimonial evidence from which a jury could determine

the Kounoupis had acted with gross negligence or without probable cause in

filing that lawsuit. As stated previously, Beers executed a Waiver representing

that all payment for all work on LaRoche’s property had been remitted in full.

Moreover, despite the allegations set forth in the 2011 complaint that

additional work had been completed pursuant to oral agreements between the

parties, Kounoupis admitted that the plain language of the Waiver was

applicable to all possible claims Beers could have asserted for payment

pertaining to work done on LaRoche’s property:

      Q- So by this document, [] Beers was representing to the bank
      two things, that neither he nor any of his subcontractors or
      material men had any claims and had been paid for everything
      they were owed through June – through June 17, 2009. And in
      addition, that whatever claims Beers had, he was waiving;
      correct?

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      [Kounoupis]- Yes.

Deposition testimony of Kounoupis, 12/20/16, at 157.

      We agree with LaRoche’s allegation that, at a minimum, the Waiver

alone created a genuine issue of material fact as to whether that Waiver

barred any alleged subsequent oral agreements between LaRoche and Beers

which eliminated probable cause for the 2011 action, the basis of which was

that LaRoche had refused to make numerous payments pertaining to the

property. As LaRoche posits, based upon the clear language of the Waiver

and Kounoupis own testimony, “[a] jury would be free to find that [Kounoupis]

acted without probable cause and/or in gross negligence in filing an action

against [LaRoche] because [Kounoupis] admitted that the Waiver applied to

any subsequent oral agreement, and that any contrary belief of [Kounoupis]

was either non-existent or grossly negligent.”       Brief of Appellant at 30.

(emphasis in original).

      In addition, the trial court found Kounoupis “had conducted independent

legal research with respect to the Waiver and had reason to believe that they

could establish a claim notwithstanding the same.” Trial Court Opinion filed,

6/22/18, at 3. Aside from Kounoupis’ deposition testimony, however, the trial

court cites to no evidence of record that establishes its findings that Kounoupis

conducted legal research, properly relied on the “status” of the Waiver as

represented by Beers when filing the 2011 litigation, or acted reasonably as a

matter of law to support its bald conclusion.         Indeed, Kounoupis’ own

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statements suggest he did not conduct research with respect to the import of

the Waiver and instead considered the primary issue to involve how to avoid

an integrated agreement:

      Q- … [W]hat things did you research through Lexis Nexis?

      A-     I researched specifically the case law which allows one to
      avoid an integrated agreement obviously. Right? Obviously,
      that’s the issue at hand. We know it’s an integrated agreement.
      We know there is a change order. Beers knew that when he came
      in. He knew that. That was the whole essence of his case…

Deposition testimony of George A. Kounoupis, 12/20/16, at 51-52. Kounoupis

was unable to present documentary evidence to demonstrate he had

conducted any legal research prior to filing the 2011 Complaint, and instead

indicated that he based his statements he did so on his “memory and [his]

identification of the right cases.” Id. at 49-53.

      There is also a lack of evidentiary support aside from Kounoupis’

deposition testimony for the trial court’s conclusion that Kounoupis consulted

with Beers about the construction file on several occasions to substantiate

allegations that oral change orders to the written contract had occurred. Trial

Court Opinion, filed 6/22/18, at 7.     Indeed, in finding that “there are no

material conflicts with respect to the evidence,” the trial court admittedly

reliled solely upon deposition testimony in that it stresses that “LaRoche

presented no evidence to controvert [Kounoupis’] testimony with regard to

the steps they undertook relative to [Beers] claims.” Trial Court Opinion, filed

6/22/18, at 7-8. Nowhere does the trial court indicate that it reviewed the


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construction file to ensure that the allowance overages, extras and upgrades

for which Beers sought payment had not been specified therein, and it instead

improperly relied upon Kounoupis’ statements concerning the same. Indeed,

a jury could find the opposite to be true following a review of the complete

construction file.

      We further agree with LaRoche that the trial court erred when it required

LaRoche to establish each element of a Dragonetti action to avoid having

summary judgment entered in favor of Kounoupis. To the contrary, he needed

to establish only the existence of a genuine issue of material fact as to a

necessary element of a Dragonetti action to avoid having summary judgment

entered against him. See Pa.R.Civ.P. 1035.2(2); Yenchi v. Ameriprise Fin.,

Inc., 639 Pa. 618, 630–31, 161 A.3d 811, 818–19 (2017) (summary

judgment must be entered in favor of the moving party whenever the non-

moving party with the burden of proof at trial fails to produce sufficient

evidence to create a genuine issue of material fact as to a necessary element

of the cause of action that could be established by additional discovery). At a

minimum, the Waiver created a genuine issue as to whether Beers waived any

claim against LaRoche on the basis of which a mechanic’s or other form of lien

may be asserted and, therefore, whether Kounoupis had probable cause to

file the 2011 Civil Complaint against LaRoche.

      In his final issue, LaRoche argues the trial court erred in denying his

Motion of Summary Judgment as to liability against all defendants. LaRoche


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states the undisputed facts establish Kounoupis acted with gross negligence

in filing the 2011 action without first conducting relevant legal research

because the Waiver and documents contained in the construction file clearly

contradict the allegations made therein. Brief of LaRoche at 48-53. LaRoche

concludes that there is no genuine issue of material fact pertaining to an

improper purpose for the prior action because:

     [w]hen [ ] Kounoupis announced his withdrawal from the Prior
     Action, he agreed to discontinue the Beers’ Complaint. Instead of
     doing so, he filed a Praecipe to “Settle, Discontinue and End,”
     which would have precluded [ ] LaRoche from filing a Dragonetti
     action because a “settlement” presupposes that there was no
     prevailing party. That he filed a Praecipe to “Settle” the Prior
     Action evidences [ ] Kounoupis’s own belief that the Prior Action
     was less than meritless. He attempted that gambit precisely to
     prevent this Dragonetti action. These facts, coupled with the law’s
     imprimatur that an improper purpose may be inferred from the
     absence of probable cause, establish [ ] Kounoupis’ improper
     purpose of using the Prior Action as a blunt instrument to
     bludgeon the LaRoches, a young, inexperienced and seemingly
     wealthy couple, into paying money to Beers to which [ ] Kounoupis
     clearly knew Beers was not entitled.

Id. at 54-55.

     In light of our previous discussion, we find that a genuine issue of

material fact exists as to Kounoupis’ liability at this juncture which can be

explored further on remand.     We further hold the trial court abused its

discretion and committed an error of law by granting summary judgment in

favor of Kounoupis and Beers on the record before it and in dismissing

LaRoche’s action for wrongful use of civil proceedings. Therefore, we reverse




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the Order granting summary judgment in favor of Kounoupis and Beers and

remand for further proceedings on LaRoche’s Dragonetti Action.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/19




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