J-A19024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JACQUELINE RUPERT                              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

THOMAS W. KING, III, ESQUIRE, DILLON
MCCANDLESS KING COULTER &
GRAHAM, LLP, JAY D. MARINSTEIN,
ESQUIRE, AND FOX ROTHSCHILD, LLP

                            Appellees               No. 1181 WDA 2014


                  Appeal from the Order Entered July 15, 2014
              In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): G.D. 13-020407


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                        FILED AUGUST 21, 2015

       Appellant Jacqueline Rupert appeals from the order entered in the

Allegheny County Court of Common Pleas, which granted the preliminary

objections of Thomas W. King, III, Esquire and Dillon McCandless King &

Graham, LLP (“the King Appellees”) and Jay D. Marinstein, Esquire and Fox

Rothschild, LLP (“the Fox Appellees”) (collectively “Appellees”) and dismissed

Appellant’s complaint for failure to state a claim upon which relief may be

granted.1    We reverse.

____________________________________________


1
  On July 15, 2014, the trial court granted King Appellees’ preliminary
objections and dismissed Appellant’s complaint. On July 21, 2014, the court
also granted Fox Appellees’ preliminary objections and stated that
(Footnote Continued Next Page)
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        The facts underlying this appeal are as follows. Appellant’s husband

was injured in an automobile accident on May 27, 2010. She retained the

King Appellees to represent her and her husband. She was her husband’s

representative at this time and signed a contingent fee agreement with the

law firm that gave it the right to receive 33.33% of any recovery obtained.

        When Appellant’s husband partially recovered, he did not want

Appellant to be his representative.              The King Appellees chose to continue

representation of both parties and agreed to reduce their fee by 3.33% to

fund Appellant’s recovery for loss of consortium. Ultimately, the case settled

for $19 million and Appellant received $632,700.00. Appellant contends the

King Appellees had a conflict of interest in representing both her and her

husband.     This gave rise to her malpractice suit against them.           The King

Appellees retained the Fox Appellees to represent them in the malpractice

suit.

        This Court set forth the underlying history of this case in an opinion

filed November 7, 2013:

          On November 16, 2011, [the King Appellees], received a
          letter from an Allegheny County attorney who represented
          [Appellant]. In the letter, [Appellant’s] lawyer accused [the
          King] Appellees of committing malpractice in a personal
          injury action involving [Appellant] and her husband

                       _______________________
(Footnote Continued)

Appellant’s complaint “is dismissed in its entirely against [Fox Appellees]
with prejudice.”




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          Michael T. Rupert.      On January 6, 2012, Appellees2
          instituted this action in declaratory judgment in Butler
          County. In their complaint, they alleged that, in the letter,
          [Appellant’s] attorney indicated that she was going to seek
          to invalidate an agreement that she entered on November
          4, 2010. That November 4, 2010 document was entitled a
          revised contingent fee agreement. In it, Appellees reduced
          their previously-entered contingent fee arrangement by
          [3.33%], and [Appellant] agreed that any proceeds of the
          personal injury action received by Michael would be
          considered his separate property and that her consortium
          claim was worth the amount of the fee reduction, i.e.,
          [3.33%] of any recovery in the personal injury action. In
          the present Butler County action, Appellees sought a
          declaration that the November 4, 2010 document was a
          valid, enforceable agreement.

          On February 9, 2012, [Appellant] filed preliminary
          objections to the complaint. She alleged that there was no
          case or controversy in this litigation because she never
          took the position that the November 4, 2010 document
          was invalid. She averred that the present declaratory
          judgment action was a sham designed to deprive her of
          her chosen forum in which to litigate her malpractice
          action against Appellees.

          On February 28, 2012, Appellees filed an amended
          complaint reiterating the identical allegations as those
          contained in the first complaint and seeking the same
          relief. Michael was added as a plaintiff in the amended
          complaint.      [Appellant] renewed her        preliminary
          objections. On May 3, 2012, [Appellant] filed a legal
          malpractice action against [the King] Appellees in the
          Court of Common Pleas of Allegheny County at GD 12-
          007664.     On May 11, 2012, Appellees filed a motion
          seeking coordination of this action pursuant to Pa.R.C.P.
          Rule 213.1 and to stay proceedings that were instituted in
          the Allegheny County Court of Common Pleas by

____________________________________________


2
  The Fox Appellees represented the King Appellees throughout the litigation
in the malpractice suit.



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        [Appellant]. They attached a copy of the Allegheny County
        complaint to the motion for coordination.

        The trial court first ruled upon the outstanding preliminary
        objections to the amended complaint. On May 15, 2012,
        the trial court entered a memorandum opinion and order
        that granted [Appellant’s] preliminary objections filed to
        the first amended complaint. It premised that grant on
        the fact that the complaint failed to set forth that there
        was an actual controversy. In the May 15, 2012 order, the
        first amended complaint was dismissed, but Appellees
        were accorded the right to file a second amended
        complaint.

        On May 27, 2012, Appellees filed their second amended
        complaint again seeking a declaration as to the validity of
        documents executed by [Appellant] in connection with the
        personal injury case. The trial court in the present action
        then issued an order that stayed the Allegheny County
        proceedings. On August 13, 2012, Appellees filed an
        amended motion for coordination of action pursuant to
        Pa.R.C.P. 213.1. The parties filed briefs and argued their
        positions before the trial court on August 21, 2012. On
        September 25, 2012, the trial court entered an order
        granting coordination of the Allegheny County case with
        the present one:

           1.) Coordination of the Butler County declaratory
           judgment action, at A.D. 12-10019, and the
           Allegheny County malpractice action, at G.D. 12-
           007664, is appropriate.

           2.) Coordination of said actions to Butler County is
           appropriate.

           3.) Pursuant to Pa.R.Civ.P. 213.1(d)(2), the lawsuit
           filed by [Appellant] in the Court of Common Pleas of
           Allegheny County, at G.D. 12-007664, is transferred
           to the Court of Common Pleas of Butler County.

        Order of Court, 9/25/12.

King v. Rupert, 81 A.3d 912, 913-914 (Pa.Super.2013).


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        This Court vacated and remanded the trial court’s decision and held

that the declaratory judgment complaints were nullities for purposes of the

coordination order and the trial court abused its discretion in finding

coordination proper.        This Court stated:   “Appellees are free to pursue

coordination in the Court of Common Pleas of Allegheny County.”          Id. at

921.3

        On October 25, 2013, Appellant filed a complaint for abuse of process

against all Appellees.         On January 15, 2014, the Fox Appellees filed

preliminary objections.        On February 28, 2014, the King Appellees filed

preliminary objections.          On March 17, 2014, Appellant filed briefs in

opposition to both preliminary objections.4       On March 31, 2014, the Fox

____________________________________________


3
 This Court also found the Appellees’ declaratory judgment action was filed
on an entirely false premise:

          A declaration was sought concerning the validity of an
          accord that [Appellant] never claimed was void… The
          present litigation was nothing more than a ploy designed
          to deprive [Appellant] of the benefit of her chosen forum in
          which to litigate her malpractice case. Consistent with the
          reasoning contained in [VMB Enterprises, Inc. v. Beroc,
          Inc., 891 A.2d 749 (Pa.Super.2006)], we hold that the
          complaints filed herein are nullities for purposes of a
          coordination order.

Rupert, supra at 921.
4
  Although both of Appellees’ preliminary objections were untimely filed, the
trial court properly ruled on them because Appellant did not object to their
timeliness. See Hahnemann Med. Coll. & Hosp. of Philadelphia v.
Hubbard, 406 A.2d 1120, 1123 (Pa.Super.1979) (failure of opposing party
(Footnote Continued Next Page)


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J-A19024-15


Appellees filed a reply brief in support of preliminary objections. Following

oral argument on June 30, 2014, the trial court entered the July 15, 2014

order granting the King Appellees’ preliminary objections and dismissing

Appellant’s complaint.        On July 21, 2014, the court also granted the Fox

Appellees preliminary objections and dismissed Appellant’s complaint for

abuse of process against them, with prejudice.

      On July 22, 2014, Appellant filed a notice of appeal. On July 23, 2014,

the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement within 21

days, and she timely complied on August 13, 2014.

      Appellant raises the following issues for our review:

          A. DID THE LOWER COURT ERR WHEN IT DISREGARDED
             THE LAW OF THE CASE DOCTRINE, REFUSING TO
             ACCEPT THIS COURT’S PRIOR DECISION AT 1573 WDA
             2012, WHICH HELD THAT ANY MOTION TO
             COORDINATE WAS REQUIRED TO BE FILED IN
             ALLEGHENY COUNTY, AND INSTEAD DECIDED THAT
             “THE MOTION TO COORDINATE HAD TO BE FILED IN
             THE COMMON PLEAS OF BUTLER COUNTY”?

          B. DID THE LOWER COURT ERR WHEN IT DETERMINED
             THAT A MOTION TO COORDINATE IS NOT DESIGNED
             TO PREVENT INCONSISTENT RULINGS, BUT RATHER
             “IS DESIGNED TO HAVE THE CASE TRIED IN THE MOST
             APPROPRIATE COURT”?

          C. DID THE LOWER COURT ERR WHEN, ON PRELIMINARY
             OBJECTIONS, IT REFUSED TO ACCEPT [APPELLANT’S]
             ALLEGATIONS AS TRUE AND INSTEAD MADE THE
                       _______________________
(Footnote Continued)

to file a timely preliminary objection contesting timeliness of preliminary
objections will constitute waiver of the untimeliness of original preliminary
objections).



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J-A19024-15


             FACTUAL    DETERMINATION    THAT   [THE]    KING
             [APPELLEES] AND [THE] FOX [APPELLEES] “DIDN'T DO
             ANYTHING WRONG” AND DISMISSED [APPELLANT’S]
             COMPLAINT AS A RESULT?

Appellant’s Brief at 3.

      We will address Appellant’s third issue first, because it is dispositive.

In her third issue, Appellant argues there were issues of fact in her

complaint that should have been left to the trier of fact.     She avers that

discovery would have shown her allegations were true and that she had a

claim for abuse of process against Appellees. She further contends she was

not required to prove anything at the preliminary objection stage and that

the court need only consider the information and allegations contained in her

complaint.   Appellant concludes the trial court erred in granting Appellees’

preliminary objections because it did not accept the allegations in her

complaint as true. We agree.

      This Court reviews a trial court’s decision sustaining or overruling

preliminary objections for an error of law. O'Donnell v. Hovnanian

Enterprises, Inc., 29 A.3d 1183, 1186 (Pa.Super.2011). “In so doing, [this

Court] employ[s] the same standard as the trial court, to wit, all material

facts set forth in the [] Complaint and inferences reasonably drawn

therefrom are admitted as true.” Knight v. Springfield Hyundai, 81 A.3d

940 (Pa.Super.2013). “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

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J-A19024-15


establish the right to relief.”   Richmond v. McHale, 35 A.3d 779, 783

(Pa.Super.2012).

        Pennsylvania is a fact pleading state.    Foster v. UPMC South Side

Hosp., 2 A.3d 655, 666 (Pa.Super.2010), appeal denied, 12 A.3d 371

(Pa.2010). Complaints must be pled with the factual specificity to “not only

give the defendant notice of what the plaintiff’s claim is and the grounds

upon which it rests, but … also formulate the issues by summarizing those

facts essential to support the claim.” Id. (citing Lerner v. Lerner, 954 A.2d

1229,    1234-35    (Pa.Super.2008)).     A     defendant   may     challenge   the

sufficiency of a pleading through preliminary objections in the nature of a

demurrer. Pa.R.Civ.P. 1028(a)(4).

          Rule 1028. Preliminary Objections

          (a) Preliminary objections may be filed by any party to any
          pleading and are limited to the following grounds:

                                     *      *    *

                (4) legal insufficiency of a pleading (demurrer);

                                     *      *    *

          (b) All preliminary objections shall be raised at one time.
          They shall state specifically the grounds relied upon and
          may be inconsistent. Two or more preliminary objections
          may be raised in one pleading.

          (c)(1) A party may file an amended pleading as of course
          within twenty days after service of a copy of preliminary
          objections. If a party has filed an amended pleading as of
          course, the preliminary objections to the original pleading
          shall be deemed moot.


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J-A19024-15


        (2) The court shall determine promptly all preliminary
        objections. If an issue of fact is raised, the court shall
        consider evidence by depositions or otherwise.

        Note: Preliminary objections raising an issue under
        subdivision (a)(1), (5), (6), (7) or (8) cannot be
        determined from facts of record. In such a case, the
        preliminary objections must be endorsed with a notice to
        plead or no response will be required under Rule 1029(d).

        However, preliminary objections raising an issue under
        subdivision (a)(2), (3) or (4) may be determined from
        facts of record so that further evidence is not required.

Pa.R.C.P. 1028 (emphasis added).

     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.




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

729 A.2d 1130 (Pa.1998).

      In her complaint, Appellant alleges Appellees used a legal process

against her to accomplish a purpose for which the process was not designed:

            the purposes of both the Second Amended Complaint and
            Motion for Coordination were to deprive [Appellant] of her
            choice of forum by forcing her to litigate any malpractice
            claim in [the King Appellees’] preferred forum, to test [the
            King Appellees’] defenses to the threatened claim, to drive
            up litigation costs to [Appellant], and to delay the
            malpractice action.

Appellant’s Complaint, at 5-6.

      Further, Appellant alleges she was harmed by the process:

            41. [Appellant] has incurred and will continue to incur
            legal fees as a result of [Appellees’] abuse of process.

            42.     [Appellant] has also suffered emotional and
            psychological injuries from the actions of [Appellees] and
            such actions have aggravated pre-existing conditions of
            which [the King Appellees were] aware and it is believed
            that discovery will disclose such were shared with [the Fox
            Appellees], who joined in the perversion of the process.

Id. at 7.

      Appellant maintains she never took the position that the November 4,

2010 document was invalid and Appellees only filed the declaratory

judgment action to compel future coordination in Butler County. Appellees,

however, contend they filed the action because they thought Appellant was

going to seek to invalidate the agreement. Appellees’ true intent in filing the

declaratory judgment action is a question of fact that should go to a fact-


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finder.    Further discovery could show that Appellees filed the declaratory

action for the improper purpose of compelling future coordination in Butler

County, in an attempt to cause Appellant emotional distress and make it

more difficult for her to pursue her lawsuit. At this point, it is not clear and

free from doubt that Appellant will be unable to prove facts legally sufficient

to establish the right to relief. See Richmond, supra. Thus, the trial court

erred     by   granting    Appellees’    preliminary   objections   and   dismissing

Appellant’s abuse of process complaint.5

        Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




____________________________________________


5
 Because of our disposition of Appellant’s third claim, we need not discuss
her remaining claims.



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