J-A08035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PHILADELPHIA CONTRIBUTIONSHIP          :    IN THE SUPERIOR COURT OF
    INSURANCE COMPANY                      :         PENNSYLVANIA
                                           :
                     Appellant             :
                                           :
                                           :
               v.                          :
                                           :
                                           :    No. 42 EDA 2019
    KEVIN H. WRIGHT, ESQUIRE               :


               Appeal from the Order Entered November 30, 2018
              In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 03173 Aug. Term 2018


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.:                             FILED MAY 12, 2020

        Appellant, Philadelphia Contributionship Insurance Company (PCIC),

appeals from the order of the Philadelphia County Court of Common Pleas

sustaining the objections in the form of demurrer to its complaint bringing a

claim under the Dragonetti Act. 1 We affirm.

        We must begin with a description of the prior litigation that led to the

current dispute.    Most Dragonetti Act cases have one layer of underlying

litigation, but this one has two such layers.        This Court has previously

summarized the facts of the initial litigation as follows:




1   42 Pa.C.S. §§ 8351-8354 is also known as the Dragonetti Act.
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      In July 2015, [Margaret Kiely, acting as attorney-in-fact]
      negotiated an oral employment contract for home aid services on
      behalf of [Christine] Feinstein with Nydia Parkin. Upon agreeing
      to terms, Parkin commenced employment. In February 2016,
      however, Feinstein allegedly attacked Parkin, causing injuries.
      Thereafter, [Kiely] terminated Parkin's employment.

      In May 2016, Parkin . . . filed a complaint in five counts: asserting
      Assault and Battery, Intentional Infliction of Emotional Distress
      (IIED), Breach of Contract, False Imprisonment, and Punitive
      Damages. See Complaint, 12/30/16, Exh. C (Parkin v.
      Feinstein, Montg. Cty. Ct. of Common Pleas, Dkt. No. 2016-
      10061, 5/19/16).

Kiely on Behalf of Feinstein v. Philadelphia Contributionship Ins. Co.,

206 A.3d 1140, 1142 (Pa. Super. 2019).

      Kiely sued PCIC, Feinstein’s homeowner and umbrella insurer, for failing

to defend Feinstein in Parkin’s suit. Nonsuit was entered in favor of PCIC and

this Court affirmed on March 26, 2019, holding that Feinstein’s documented

mental health issues did not render the attack accidental rather than

intentional, and thus that PCIC was justified in refusing to defend Feinstein.

Id. This declaratory judgment action (and not the tort action that preceded

it) is the underlying action for purposes of this matter. It is the declaratory

judgment action that PCIC argues was a wrongful use of civil proceedings.

Attorney Wright’s firm represented Kiely in the declaratory judgment action

that followed the tort action brought by Parkin, Feinstein’s home health aide

(Attorney Wright is Appellee in this matter).

      Meanwhile, PCIC brought two Dragonetti actions in Philadelphia’s Court

of Common Pleas. The first (the DiPasquale Action), brought by PCIC and

Laurie DiPasquale, a PCIC claims adjuster, for wrongful use of civil proceedings


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under 42 Pa.C.S. § 8351 et seq. and false light under the Restatement

(Second) of Torts § 652E, was dismissed on preliminary objections on October

3, 2018.   The Honorable Frederica Massiah-Jackson in 1706000645 filed a

memorandum explaining why preliminary objections to the claims brought by

PCIC and Laurie DiPasquale, a PCIC claims adjuster, for wrongful use of civil

proceedings under 42 Pa.C.S. § 8351 et seq. and false light under the

Restatement (Second) of Torts § 652E, were sustained.          Judge Massiah-

Jackson concluded that Attorney Wright is entitled to absolute immunity for

communications, including pleadings, issued in the regular course of judicial

proceedings.2   Tr. Ct. Op. of 1706000645, 10/3/18, at 2.       The judge also

concluded that the Dragonetti Act claim was unsupportable. Id. at 6-11. PCIC

appealed, and this Court recently affirmed Judge Massiah-Jackson’s judgment,

at 3111 EDA 2018.

      PCIC’s second Dragonetti Act case was assigned to the Honorable Linda

Carpenter, who likewise sustained preliminary objections on November 29,

2018, citing Judge Massiah-Jackson’s ruling in the DiPasquale Action. This

action involves a single claim under the Dragonetti Act against Attorney

Wright.

      Judge Carpenter’s order sustaining preliminary objections points out

that the parties in this action are also parties in the DiPasquale Action, which


2PCIC did not plead False Light in this matter, confining the claim to the
Dragonetti Act.




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also involves a Dragonetti Act claim. Tr. Ct. Order, 11/29/18, n. 1. She rested

on the reasoning of Judge Massiah-Jackson’s opinion in sustaining preliminary

objections.   PCIC filed a notice of appeal on December 18, 2018, and the

docket does not reflect that Judge Carpenter filed an order pursuant to

Pa.R.A.P. 1925(b).

      PCIC raises the following issues:

      The lower court erred because it failed to consider all the material
      facts set forth in the complaint as true, refusing to give all
      inferences reasonably deducible therefrom, in direct violation of
      the law.

      The lower court erred because it used its own personal
      experiences in sustaining the preliminary objections.

      This Honorable Court denied [Attorney Wright’s] appeal of the
      [u]nderlying [b]ad [f]aith trial verdict and confirmed that the case
      had no merit.


PCIC’s Brief at i.

      Attorney Wright argues that PCIC’s complaint does not allege facts

sufficient to make out a Dragonetti Act claim, and that although his client did

not prevail in the failure to defend action, that does not render the action

without probable cause.

      We first analyze whether Judge Carpenter was justified in her reliance

on Judge Massiah-Jackson’s determination in the DiPasquale Action.

      In sustaining preliminary objections, Judge Carpenter reasoned that the

coordinate jurisdiction rule bound her to Judge Massiah-Jackson’s ruling.

Under the coordinate jurisdiction rule, “judges of coordinate jurisdiction should


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not overrule each other's decisions.” Zane v. Friends Hosp., 836 A.2d 25,

29 (Pa.2003). The rule “falls within the ambit of the ‘law of the case doctrine.’”

Riccio v. American Republic Ins. Co., 683 A.2d 1226, 1230 (Pa.

Super.1996) (citing Commonwealth v. Starr, 664 A.2d 1326, 1331

(Pa.1995)). Per Starr, law of the case doctrine “refers to a family of rules

which embody the concept that a court involved in the later phases of a

litigated matter should not reopen questions decided by another judge of that

same court or by a higher court in the earlier phases of the matter.” Id. at

1331.

        We find Judge Carpenter’s application of the coordinate jurisdiction rule

to be appropriate, given that the sole claim – a Dragonetti Act count arising

from the declaratory judgment litigation brought by Attorney Wright – was

also at issue in the DiPasquale Action, and both parties to the litigation (PCIC

and Attorney Wright) were also parties in the DiPasquale Action.             This

application of the coordinate jurisdiction rule is straightforward.

        Next we turn to PCIC’s arguments that the trial court failed to apply the

proper standard and went beyond the four corners of the complaint in

evaluating preliminary objections. In order to bring a Dragonetti claim, the

claimant must plead facts sufficient to establish, if true, that there was no

probable cause for the underlying action or that it was brought in a grossly

negligent manner. See 42 Pa.C.S. § 8351(a).

        “In considering a demurrer, reviewing courts accept all well-pleaded

material averments and all inferences fairly deducible from them, but they

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need not accept any of the complaint's conclusions of law or argumentative

allegations.” Hudson v. Pennsylvania Bd. of Prob. & Parole, 204 A.3d

392, 395 (Pa. 2019).      “This Court will reverse the trial court's decision

regarding preliminary objections only where there has been an error of law or

abuse of discretion.” Clausi v. Stuck, 74 A.3d 242, 246 (Pa. Super. 2013)

(quotation omitted).

      As stated above, while trial courts must accept all well-pleaded material

averments in the complaint and all inferences fairly deducible from them, they

need not accept conclusions of law or argumentative allegations.              The

complaint in this case makes many conclusory allegations about Attorney

Wright’s behavior and state of mind in the declaratory judgment action. The

complaint hinges upon a characterization of the declaratory judgment action

as lacking a good faith basis.

      While it is generally true that trial courts may not take judicial notice in

one case of records of another case, see Kelly v. Kelly, 887 A.2d 788 (Pa.

Super. 2005), Dragonetti claims must be a limited exception. This is because

the elements of a Dragonetti claim include that “the proceedings have

terminated in favor of the person against whom they are brought.” 42 Pa.C.S.

§ 8351(a)(2).   This Court has taken notice of its own rulings when those

proceedings subsequently form the basis of a Dragonetti action. See, e.g.,

Hvizdak v. Linn, 190 A.3d 1213 (Pa. Super. 2018) (affirming grant of

preliminary objection to Dragonetti claim; “We further note that our [earlier]

memorandum in [appellee’s] appeal does not state or suggest that [the]

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appeal was frivolous or in bad faith.”), rearg. denied (Aug. 21, 2018),

appeal denied, 204 A.3d 364 (Pa. 2019).

      Hvizdak described two exceptions to the general rule against judicial

notice at the demurrer stage:

      Ordinarily, when reviewing an order sustaining a demurrer to a
      complaint, we cannot take judicial notice of records from other
      cases. Styers v. Bedford Grange Mut. Ins. Co., 900 A.2d 895,
      899 (Pa. Super. 2006). However, there are exceptions to this
      rule. First, we can take judicial notice of other proceedings
      involving the same parties. Estate of Schulz, 392 Pa. 117, 139
      A.2d 560, 563 (1958). The two prior decisions involve the same
      parties and therefore are subject to judicial notice. Second, “[i]t
      is appropriate for a court to take notice of a fact . . . which is
      incorporated into the complaint by reference to a prior court
      action.” Styers, 900 A.2d at 899 . . . . Since virtually every
      paragraph in Husband's third amended complaint concerns the
      divorce litigation, he has effectively incorporated the entire
      divorce proceeding, and our decisions therein, into his third
      amended complaint.


Hvizdak, 190 A.3d at 1218 n. 1.

      Both exceptions noted in Hvizdak apply here. Thus, Judge Massiah-

Jackson did not err in referring to the declaratory judgment action that PCIC

also makes reference to in the complaint, and PCIC’s argument to the contrary

is inapposite.3

3 PCIC also argues that Judge Massiah-Jackson improperly referred to
“personal experiences” in sustaining preliminary objections. PCIC’s Brief at
11. PCIC cites a single paragraph at the end of an 11-page opinion,
commenting on the significant legal fees PCIC claims to have expended in the
declaratory judgment action. The language to which PCIC refers is either
knowledge of the legal system that is so bound up with the role of judging
that it would be impossible and inadvisable to ask judges to set it aside (i.e.,
the knowledge that sometimes individuals are named in suits that are against
entities rather than the named individual as a person) or mere dicta. Because

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      The Hvizdak Court noted that “our . . . memorandum in [the underlying

litigation] does not state or suggest that [a]ppellees' appeal was frivolous or

in bad faith.” Hvizdak, 190 A.3d at 1230. The same is true here; this Court’s

opinion in the declaratory judgment appeal, while resolving the case in favor

of PCIC, did not indicate any bad faith on the part of the appellants in that

matter (represented by Attorney Wright’s firm). It noted that both parties

filed for summary judgment, which was denied, and that the matter then

proceeded to a jury trial. Kiely, 206 A.3d at 1144. The Court’s extensive

discussion of the insurance coverage issue was not ornamental, but was

necessitated by Ms. Feinstein’s genuine, albeit unprevailing, argument that

her mental impairment was such that she was not capable of intentional action

at the time of the assault.

      Finally, we address PCIC’s third claim, wherein it argues that “if this very

Court has determined that PCIC, the insurance carrier in the underlying case

had no duty under the policy to cover Feinstein, [PCIC] has clearly [] met the

prima facie elements of the Dragonetti Act . . . and the Complaint should be

reinstated as a matter of law.” PCIC’s Brief at 12.

      When a Pennsylvania court does not find in favor of a claimant, that

does not render the claim so suspect that a Dragonetti action should follow.

Section 8352 specifies that an attorney bringing a civil proceeding has

probable cause if they reasonably believe the underlying facts, and either


Judge Massiah-Jackson’s reasoning stands even if the language to which PCIC
objects were set aside, no further analysis is warranted.


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J-A08035-20



reasonably believe that under those facts the claim may be valid under the

existing or developing law, or believe in good faith that pressing the claim is

not intended to merely harass or maliciously injure the opposite party. 42

Pa.C.S. § 8352. “Absence of probable cause is an indispensable element of a

Dragonetti claim.” Keystone Freight Corp. v. Stricker, 31 A.3d 967, 972

(Pa. Super. 2011).

      This argument, if accepted, could have a substantial and pernicious

chilling effect on many types of litigation. Perhaps most seriously, it has the

potential to deter civil rights litigation brought on behalf of disenfranchised

people seeking justice. Such work can be arduous and often confronts long

odds, but nothing about it is frivolous. Repugnant to this Court as a matter

of policy, this argument fails as a matter of law.

     Judgment affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020




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