March 21st, 2019
A Contempt Proceeding Triggers Pennsylvania’s Dragonetti Act
Recently, in Raynor v. D'Annunzio, the Pennsylvania Superior Court held that a contempt proceeding represents a “procurement, initiation, or continuation of civil proceedings” as contemplated by the Dragonetti Act.
Pennsylvania’s Dragonetti Act creates the following cause of action:
(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).
This case evolved from an acrimonious relationship between opposing counsel in the matter of Sutch v. Roxborough Memorial Hospital, 142 A.3d 38, 79 (Pa.Super. 2016). In Roxborough, Attorney Raynor served as defense counsel for Dr. Jeffrey Gellar and Roxborough Emergency Physician Associates. Appellees were the plaintiff’s counsel, D’Annunzio and plaintiff, respectively.
Ms. Sutch, through her counsel, D’Annunzio (and others), filed suit against Roxborough, alleging Roxborough’s failure to obtain a recommended CT scan during a May 3, 2007 emergency room visit resulted in a missed opportunity to diagnose and treat Decedent Rosaline Wilson’s lung cancer. During the Sutch trial, Ms. Raynor and Roxborough were precluded from presenting evidence or argument regarding Rosaline Wilson’s smoking history. D’Annunzio requested an order from the trial judge directing Raynor to inform her witnesses of the ban on smoking, but the court declined to issue an order, stating that Raynor and the witness “knew the rules.” Nonetheless, when asked amount Ms. Wilson’s cardiac risk factors, the witness stated Mr. Wilson’s smoking history. Outside the presence of the jury, D’Annunzio requested that Raynor be held in contempt of court for eliciting the smoking testimony. The witness “did not recall being instructed about the prohibition regarding smoking.” Raynor stated that she did not intend to elicit testimony concerning Ms. Wilson’s smoking history.
The court denied D’Annunzio’s request for a mistrial and his request to strike the witness’ testimony. Instead, the court provided a curative instruction. At the conclusion of the trial, the jury awarded $190,000.00 to Ms. Such. Following the verdict, D’Annunzio requested a new trial and sanctions against Raynor in the form of the costs associated with the trial. The court granted a new trial, the Pennsylvania Superior Court affirmed, and upon remand, the trial court scheduled a contempt hearing. At the conclusion of the contempt hearing, the trial court sanctioning Raynor in the amount of $946,195.16.
While the appeal to the Superior Court was pending, D’Annunzio entered judgment on the contempt Order and issued writs of attachment, executions in attachment, and summons upon various garnishees, which had the effect of freezing Raynor’s personal and law firm bank accounts and placing a lien upon Raynor’s home. The Superior Court stayed all existing execution and garnishment actions, as well as any future proceedings in the case, thereby permitting D’Annunzio access to the bank accounts.
Later, the Superior Court reversed the trial court and vacated all sanctions and judgments taken thereon. The Superior Court’s central holdings were 1) Raynor could not have intentionally violated an order to instruct the witness not to mention smoking because no such order existed, and 2) no evidence of record existed to prove that Raynor colluded with the witness in an effort to flout the in limine ruling barring testimony about smoking.
Raynor filed the instant claim alleging: 1) violation of the Dragonetti Act, 2) common law wrongful use of civil proceedings, and 3) abuse of process. The crux of the Complaint is that D’Annunzio knew the requests for sanctions and contempt were wholly unsupported by facts and law, yet they nevertheless pursued sanctions and contempt for the vindictive purpose of destroying Raynor’s professional livelihood and personal life.
D’Annunzio argued, inter alia, that Raynor failed to state a claim for which relief could be granted because moving for sanctions or contempt does not constitute “procurement” under the Dragonetti Act. D’Annunzio also argued that he was not “a party” to the underlying action; therefore, Raynor did not have standing to sue him under the Dragonetti Act. The trial court sustained D’Annunzio’s preliminary objections and dismissed Raynor’s complaint, and Raynor appealed to the Superior Court.
The Superior Court determined that the trial court committed an error of law, and held that a contempt proceeding in this case following the remand of the record by this court does represent a “procurement, initiation, or continuation of civil proceedings” as contemplated by the Dragonetti Act. More specifically, the Court determined that a motion seeking a finding of contempt and a request for sanctions is, separate and distinct from post-trial motions alleging trial court error filed in the underlying lawsuit for the purposes of the Dragonetti Act, tantamount to the filing of a civil lawsuit. “In a fashion similar to a civil lawsuit, the parties exchanged pleadings, and the trial court held a hearing, issued an adjudication of contempt, and imposed sanctions.”
Moreover, the Court held that it was of no import, however, that D’Annunzio was not original parties to the underlying medical malpractice lawsuit that gave rise to the request for a finding of contempt and sanctions. The Court held that because D’Annunzio was a defendant in the contempt proceedings that gave rise to the Dragonetti cause of action and was the party against whom sanctions were imposed, Raynor had standing to sue D’Annunzio under the Dragonetti Act.
The Superior Court however agreed with the trial court erred when it sustained the preliminary objections in the form of a demurrer to Raynor’s common law wrongful use of civil proceedings. While this case was pending, in Villani v. Seibert, 159 A.3d 478 (Pa. 2017), the Supreme Court of Pennsylvania held that the Dragonetti Act is constitutional and that attorneys may be found liable for wrongful use of civil proceedings claims. Therefore, the Dragonetti Act subsumes any common law wrongful use of civil proceedings claim.
Finally, the Superior Court agreed with the trial court when it sustained D’Annunzio’s preliminary objections in the nature of a demurrer to Count III of their complaint, which alleged abuse of process. The common law cause of action for abuse of process “is defined as the use of legal process against another ‘primarily to accomplish a purpose for which it is not designed.’” Rosen v. American Bank of Rolla,  627 A.2d 190, 192 (Pa.Super. 1993).
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. Abuse of process is, in essence, the use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process. Thus, the gravamen of this tort is the perversion of legal process to benefit someone in achieving a purpose which is not an authorized goal of the procedure in question. Werner v. Plater-Zyberk, 799 A.2d 776, 792 (Pa.Super. 2002). However, a defendant cannot be held liable for abuse of process when the defendant “has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Shaffer v. Stewart, 473 A.2d 1017, 1019 (Pa.Super. 1984). Here, the Superior Court agreed with the trial court that even if a plaintiff in an abuse of process cause of action can establish that a defendant was consumed with hatred for plaintiff, he still has not created a genuine issue as to whether the primary purpose of the suit was anything other than carrying the process to its authorized conclusion.