Pinardo, N. v. Dorsey, J. ( 2017 )

J-A19012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLAS PINARDO, III IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHNNIE DORSEY, III AND JOSEPH
SILVESTRO, ESQUIRE,
Appellees No. 774 EDA 2016
Appeal from the Order Entered February 17, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 02307 March Term 2014
NICHOLAS PINARDO, III IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHNNIE DORSEY, III AND JOSEPH
SILVESTRO, ESQUIRE,
Appellants No. 844 EDA 2016
Appeal from the Order Entered February 17, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 02307 March Term 2014
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 04, 2017
Appellant, Nicholas Pinardo, III, appeals and Appellees, Johnnie
Dorsey, III and Joseph Silvestro, Esquire, cross-appeal from the trial court’s
February 17, 2016 order directing Mr. Pinardo to pay Appellees $6,177.11 as
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a result of this allegedly frivolous wrongful use of civil proceedings
litigation.1 After careful review, we affirm in part, reverse in part, and
vacate in part.
Mr. Pinardo — who had previously been Appellee Dorsey’s landlord —
brought the present action for wrongful use of civil proceedings against
Appellee Dorsey and his attorney, Appellee Silvestro, following prior
litigation between the parties concerning a landlord/tenant dispute. From
what we can glean from the record and the parties’ briefs on appeal, the
prior landlord/tenant proceedings underlying the present action transpired as
follows.
The prior landlord/tenant proceedings
On June 23, 2008, Appellee Dorsey — who was not represented by
Appellee Silvestro at that time — filed a claim against Mr. Pinardo in the
Philadelphia Municipal Court, alleging that Mr. Pinardo illegally evicted him
and seeking damages for conversion of property. See Mr. Pinardo’s Brief at
____________________________________________
1 Although Mr. Pinardo filed a notice of appeal from the decisions dated
December 3, 2014, July 7, 2015, November 19, 2015, February 1, 2016,
and February 17, 2016, we consider his appeal to be taken from the
February 17, 2016 order, as that order disposed of all parties and their
remaining claims, including Appellees’ outstanding motion for sanctions and
request for attorneys’ fees. See Pa.R.A.P. 341 (explaining that “an appeal
may be taken as of right from any final order of a … trial court[,]” and that
“[a] final order is any order that … disposes of all claims and of all parties”).
Likewise, although Appellees appeal from both the trial court’s February 1,
2016 and February 17, 2016 orders, we deem Appellees’ cross appeal as
being taken from the February 17, 2016 order.
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6-7; Appellees’ Brief at 7. Judgment was entered in favor of Appellee
Dorsey, and Mr. Pinardo appealed the decision to the Court of Common Pleas
of Philadelphia County.2 Mr. Pinardo’s Brief at 6; Appellees’ Brief at 7.
Around this time, Appellee Dorsey retained Appellee Silvestro as counsel.
See Mr. Pinardo’s Brief at 7; Appellees’ Brief at 8. Subsequently, on appeal
to the Court of Common Pleas of Philadelphia County, the case was
dismissed for failure to file a timely complaint. Mr. Pinardo’s Brief at 7;
Appellees’ Brief at 8. Thereafter, Appellees petitioned to have the judgment
of non pros opened, but the trial court denied it. See Mr. Pinardo’s Brief at
7; Appellees’ Brief at 8.3
On July 22, 2008, Appellee Dorsey — who was also not represented by
Appellee Silvestro at that juncture — filed a second claim in the Philadelphia
Municipal Court, requesting the return of his security deposit from Mr.
Pinardo. Mr. Pinardo’s Brief at 7; Appellees’ Brief at 7. Once again,
judgment was entered in favor of Appellee Dorsey, and Mr. Pinardo appealed
the decision to the Court of Common Pleas of Philadelphia County. 4 Mr.
Pinardo’s Brief at 7; Appellees’ Brief at 7. As mentioned above, Appellee
____________________________________________
2 The parties refer to this case as number “090203157.” Mr. Pinardo’s Brief
at 6; Appellees’ Brief at 8.
3 According to Mr. Pinardo, Appellees filed an untimely appeal from the trial
court’s decision, which this Court quashed. Mr. Pinardo’s Brief at 7.
4 The parties refer to this case as number “090203165.” Mr. Pinardo’s Brief
at 7; Appellees’ Brief at 8.
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Silvestro began representing Appellee Dorsey around that time. Mr.
Pinardo’s Brief at 7; Appellees’ Brief at 7, 8. Like the case discussed above,
this case was also dismissed for failure to file a timely complaint. Mr.
Pinardo’s Brief at 7; Appellees’ Brief at 8. Appellees filed a petition to open
the non pros judgment, and the trial court granted this petition. Mr.
Pinardo’s Brief at 7; Appellees’ Brief at 8. However, the trial court later
sustained Mr. Pinardo’s preliminary objections and dismissed Appellees’
complaint without prejudice. Mr. Pinardo’s Brief at 7; Appellees’ Brief at 8.
On March 16, 2009, Appellees commenced new actions against Mr.
Pinardo by filing two complaints.5 Mr. Pinardo’s Brief at 7-8; Appellees’ Brief
at 8-9. But, shortly thereafter, Appellees voluntarily dismissed both cases
because of some confusion surrounding proper docket information. Mr.
Pinardo’s Brief at 7-8; Appellees’ Brief at 8-9.
Finally, on April 29, 2010, Appellees filed another complaint against
Mr. Pinardo, alleging, inter alia, that Mr. Pinardo prohibited Appellee Dorsey
from taking his personal property from the leased premises.6 Mr. Pinardo’s
Brief at 8-9; Appellees’ Brief at 9. In response, Mr. Pinardo filed preliminary
objections, raising issues regarding res judicata and the failure of Appellees
____________________________________________
5 The parties refer to these cases as numbers “090302471” and
“090302473.” Mr. Pinardo’s Brief at 7-8; Appellees’ Brief at 8.
6The parties refer to this case as number “100404471.” See Mr. Pinardo’s
Brief at 8; Appellees’ Brief at 9.
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to attach a required writing to the complaint. Mr. Pinardo’s Brief at 9-10;
Appellees’ Brief at 9-10. The trial court sustained Mr. Pinardo’s preliminary
objections, and dismissed the complaint without prejudice. Mr. Pinardo’s
Brief at 9; Appellees’ Brief at 9-10. In doing so, it explained:
It should first be noted that this court did not rely on the
doctrine of res judicata in sustaining [Mr. Pinardo’s] preliminary
objections. This fact is apparent from the court’s dismissal of
the complaint specifically without prejudice. Nor did the court
rely on [Mr. Pinardo’s] argument that there was a prior pending
action. The court accepted [Appellee Dorsey’s] argument that
the prior actions were filed mistakenly, and that they were
discontinued in order for [Appellee Dorsey] to pursue the
underlying action.
However, the court could not overlook the preliminary objection
regarding the failure to attach a required writing, as required by
Pa.R.C.P. 1019(i).[7] This argument was the basis for dismissing
the complaint without prejudice. [Appellee Dorsey] failed to
attach a copy of the alleged lease agreement. [Appellee Dorsey]
also failed to address why such agreement was not attached.
Because of this procedural defect, this court sustained the
preliminary objections and dismissed the complaint without
prejudice.
____________________________________________
7 Rule 1019(i) states:
When any claim or defense is based upon a writing, the pleader
shall attach a copy of the writing, or the material part thereof,
but if the writing or copy is not accessible to the pleader, it is
sufficient so to state, together with the reason, and to set forth
the substance in writing.
Pa.R.C.P. 1019(i).
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See Appellee Silvestro’s Motion for Sanctions against Anthony Quinn, Esq.
pursuant to Rule 1023.1, et seq., 10/6/2015, at Exhibit 3 (Trial Court Order
in Case No. “100404471”, 1/18/2011, at 3).8
Thereafter, following further litigation, the trial court held a settlement
conference with the parties on March 20, 2012. See Mr. Pinardo’s Brief at
10; Appellees’ Brief at 10. At the conclusion of the settlement conference,
the trial judge described the disposition of the case as follows:
Case settled. [Appellant] Pinardo will return escrow of $3500.00
to [Appellee] Dorsey. Case is dismissed.
See Trial Worksheet, 3/20/2012 (single page); see also Mr. Pinardo’s Brief
at 10; Appellees’ Brief at 10. Mr. Pinardo then returned the $3,500.00 to
Appellee Dorsey. See Mr. Pinardo’s Brief at 10 (“After [Appellee Silvestro]
lost all 5 cases, [Mr. Pinardo] returned the security according to the amounts
agreed by the co-tenants and brokered by [the trial judge]. No personal
payment was made by [Mr. Pinardo].”); Appellees’ Brief at 10 (“On March
23, 2012, [Mr.] Pinardo’s counsel sent [Appellee] Silvestro the settlement
check.”).
The present wrongful use of civil proceeding action
Following the conclusion of the underlying landlord/tenant
proceedings, Mr. Pinardo subsequently brought an action for the wrongful
____________________________________________
8 According to Mr. Pinardo, Appellees filed an appeal from this order, which
this Court subsequently quashed as interlocutory. See Mr. Pinardo’s Brief at
9 (citations omitted).
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use of civil proceedings against Appellee Dorsey and his attorney, Appellee
Silvestro. The trial court summarized the procedural history of the present
case before us as follows:
[Mr. Pinardo] filed a complaint on July 19, 2014[,] claiming one
count of Wrongful Use of Civil Process against [Appellees]
Silvestro and Dorsey.
On May 4, 2015, [Appellee] Silvestro filed a Motion for Summary
Judgment.
On July 7, 2015, this [c]ourt granted [Appellee] Silvestro’s
Motion for Summary Judgment, dismissing [Mr. Pinardo’s] claims
against [Appellee] Silvestro with prejudice.
On July 23, 2015, [Mr. Pinardo] filed a Motion for
Reconsideration which the [c]ourt denied on July 29, 2015.
On September 22, 2015, a Default Judgment was entered in
favor of [Mr. Pinardo] and against [Appellee] Dorsey for failure
to file an Answer within the required time.
On September 30, 2015, [Appellee] Dorsey petitioned the court
to open judgment, citing lack of proper service. The Honorable
Lisa M. Rau granted the petition on November 2, 2015.
On October 6, 2015, [Appellee] Silvestro filed a Motion for
Sanctions against [Mr. Pinardo’s] attorney[,] Anthony Quinn,
Esq.
On November 19, 2015, [Appellee] Silvestro’s Motion for
Sanctions was granted by this [c]ourt and [Appellee Silvestro]
was instructed to submit invoices, within ten (10) days,
demonstrating the amount of reasonable fees and costs incurred
in defending against [Mr. Pinardo’s] frivolous complaint.
On November 25, 2015, [Mr. Pinardo] filed an Amended
Complaint to which a second set of Preliminary Objections was
filed on behalf of both [Appellees].
On December 14, 2015, [Appellees] Silvestro and Dorsey filed a
Motion for Sanctions against [Mr. Pinardo’s] attorney Anthony
Quinn, Esq. in light of what they considered continued frivolous
litigation on the part of [Mr. Pinardo].
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On February 1, 2016, this [c]ourt sustained [Appellees’] second
Preliminary Objections and dismissed [Mr. Pinardo’s] Amended
Complaint with prejudice as to both [Appellees]. [Appellees’]
Motion for Sanctions was separately granted.
On February 17, 2016, upon consideration of [Appellee]
Silvestro’s Motion for Sanctions filed on October 6, 2015, which
was granted on November 19, 2015, and [Appellees] Silvestro
and Dorsey’s later Motion for Sanctions on December 14, 2015,
which was granted on February 1, 2016, this court entered an
Order stating the following:
AND NOW this 17th day of February 2016, following the
November 19, 2015 Order granting [Appellee] Joseph
Silvestro’s Motion for Sanctions and upon consideration of
[Appellee] Joseph Silvestro’s accounting of expenses
incurred in defending against [Mr. Pinardo’s] final frivolous
complaint in the underlying litigation, Pinardo III v.
Dorsey III, et al., to which no response was made, it is
hereby ORDERED and DECREED that Anthony Quinn,
Esquire, shall pay $6177.11, representing the reasonable
fees and costs incurred by Joseph Silvestro, within 20 days
of the date on which this Order is entered in the docket.[9]
February 17, 2016 Order.
Trial Court Opinion (TCO), 10/26/2016, at 1-3. Subsequently, on February
26, 2016, Mr. Pinardo filed a timely notice of appeal and, on March 9, 2016,
Appellees timely cross appealed. The trial court directed both parties to file
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and both parties timely complied.
On appeal, Mr. Pinardo raises the following issues for our review:
____________________________________________
9 The trial court later clarified that the award of $6,177.11 “was intended to
include consideration of [Appellee] Dorsey[.]” Trial Court Opinion
Addressing Appellees’ Cross-Appeal, 10/26/2016, at 4. Its omission of
Appellee Dorsey’s name in the February 17, 2016 order was a result of
clerical error. See id. at 4-5.
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I: Is effect of settlement between co-tenant’s [sic] competing
demands for return of security a question that is properly
reserved to the fact-finder, and not a proper ground upon
which to grant demurrer[?]
II: Where [Appellees’] 4 case [sic] suffered non pros,
dismissal, and orders to settle, must termination be
substantive in order to “have terminated in favor of the
person against whom they are brought[?]”
III: Did [Appellee Silvestro] act “in a grossly negligent
manner” prosecuting 5 unsuccessful civil actions is subject
[sic] to liability[?]
IV: Is favorable termination requirement satisfied where
[Appellee Silvestro] brings 5 unsuccessful actions to force
settlement[?]
V: Did [Appellees] prove [Mr. Pinardo] did not reasonably
believe [Appellee Silvestro’s] conduct constituted gross
negligence and did not reasonably believe the
unsubstantiated allegations made in each of [Appellee
Silvestro’s] 5 wrongful actions had no basis in law or
fact[?]
Mr. Pinardo’s Brief at 5.
In their cross appeal, Appellees raise a single issue for our review:
Are [Appellees] Silvestro and Dorsey, III entitled to
recovery [of] the reasonable amount of attorneys’ fees and
costs they incurred in defending themselves against [Mr.]
Pinardo’s frivolous complaint and amended complaint?
Appellees’ Brief at 4 (numbering omitted).
We address Mr. Pinardo’s issues first, and consider them out of order
for ease of disposition. In issues II and IV above, Mr. Pinardo raises
questions of what constitutes a favorable termination for purposes of
sustaining an action for the wrongful use of civil proceedings. Because these
issues involve a question of statutory interpretation, our review is de novo.
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See Betts Industries, Inc. v. Heelan, 33 A.3d 1262, 1265 (Pa. Super.
2011) (citation omitted).
Before delving into Mr. Pinardo’s arguments on these issues, we
provide a brief overview of the statute germane to his arguments.
“[A]llegations of malicious prosecution invoke Pennsylvania's statutory law in
the form of [the] wrongful use of civil proceedings statute or ‘Dragonetti
Act.’” Freundlich & Littman, LLC v. Feierstein, 157 A.3d 526, 532 (Pa.
Super. 2017) (citation omitted). We have previously “described wrongful
use of civil proceedings as a tort arising when a person institutes civil
proceedings with a malicious motive and lacking probable cause.” Id.
(citation and internal quotation marks omitted). A cause of action for the
wrongful use of civil proceedings requires, in pertinent part, the following
elements:
(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. § 8351(a) (emphasis added).
In the case sub judice, Mr. Pinardo claims that “[t]he existence of a
favorable termination depends on the unique circumstances of each case.
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Here[, where Appellees’] cases suffered non pros, dismissal, adverse court
orders and orders to settle, termination need not be substantive in order to
have terminated in favor of the person against whom they are brought.” Mr.
Pinardo’s Brief at 24 (internal quotation marks omitted). He avers that
“filing bogus claims and dismissing them prior to trial is insufficient to
preclude liability.” Id. at 29. He further contests whether “the 5 underlying
actions and 2 underlying appeals had not terminated in [his] favor” merely
because Appellees “abandoned the allegations of case #100404471[, the
fifth and final case.]” Id. at 26 (citations omitted).
The trial court, on the other hand, differed. First, it noted that “[t]he
underlying cases upon which [Mr. Pinardo] bases his Wrongful Use of Civil
Process suit did not terminate in [his] favor. [Mr. Pinardo] brought this
lawsuit against [Appellees] in response to an underlying landlord-tenant
matter that ended in settlement.” TCO at 4. Thus, it determined that Mr.
Pinardo “could not establish that the underlying proceedings ended in a
favorable termination.” Id. at 5. Further, with respect to the numerous,
prior proceedings, the trial court explained:
[Mr. Pinardo] argues that there were multiple underlying cases
filed by [Appellees] prior to settlement between the parties.
However, these cases never reached a final determination
on the merits. A settlement agreement was reached at the
March 20, 2012 Settlement Conference…. As stated above, a
suit ended by agreement in a non-litigious nature does
not reach a final adjudication on the merits and thus
assigns fault to neither party. Without a favorable
termination to [Mr. Pinardo], a wrongful civil process suit is
inappropriate….
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Id. (emphasis added).
We believe that the trial court’s reasoning is somewhat flawed,
specifically its assertion that a final determination on the merits is
required to establish a favorable termination. In making this statement, the
trial court relied on D’Elia v. Folino, 933 A.2d 117 (Pa. Super. 2007). See
TCO at 5. In D’Elia, a doctor brought a wrongful use of civil proceedings
action against a woman — who was the plaintiff in a prior medical
malpractice lawsuit against the doctor — and the legal counsel that
represented her in that lawsuit. D’Elia, 933 A.2d at 119. The prior medical
malpractice suit had ultimately settled after the trial court granted summary
judgment in the doctor’s favor; specifically, the woman agreed to
discontinue the suit against the doctor, including any appeal she may have
taken from the summary judgment order, and the doctor promised to not
pursue a wrongful use of civil proceedings case against her. Id. at 119-20.
However, the doctor reserved his right to bring such action against the
woman’s attorneys. Id. at 120. After the doctor filed a complaint against
the woman’s counsel, the trial court dismissed it by sustaining the
preliminary objections filed by the attorneys. Id. The doctor then appealed
to this Court, raising issue with whether he has a right to bring a wrongful
use of civil proceedings action against the attorneys when he “enter[ed] into
a settlement agreement with the [woman] wherein the only consideration
flowing to [her] is a promise not to subsequently sue [her] for Wrongful Use
of Civil Proceedings[.]” Id. at 121.
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On appeal, we affirmed the trial court’s decision to dismiss the doctor’s
complaint. In doing so, we reasoned:
[T]he crux of the settlement was that [the woman] would waive
her right to appeal the entry of summary judgment in [the
doctor’s] favor, in exchange for [his] pledge that he would not
sue her for wrongful use of civil proceedings. In other words,
the purpose of the settlement agreement was to “speed up” the
procedural requirements necessary for [the doctor’s] cause of
action to accrue. Within the settlement agreement, [the doctor]
expressly denied liability in the underlying suit, and [the woman]
did not admit liability for wrongful use of civil proceedings
regarding her initiation of the initial medical malpractice case
against [the doctor] and his partners.
Generally, when considering the question of “favorable
termination” in a wrongful use of civil proceedings case, whether
a withdrawal or abandonment constitutes a favorable, final
termination of the case against who the proceedings are brought
initially depends on the circumstances under which the
proceedings are withdrawn. See Bannar v. Miller, 701 A.2d
242, 247 (Pa. Super. 1997). A withdrawal of proceedings
stemming from a compromise or agreement does not, as a
matter of law, constitute a termination favorable to the party
against whom proceedings have been brought originally. See
Rosenfield v. Pennsylvania Auto. Ins. Plan, … 636 A.2d
1138, 1142 ([Pa. Super.] 1994). Likewise, contrary to [the
doctor’s] argument, a wrongful use of civil proceedings suit may
be dismissed on the grounds of an insufficiently “favorable
termination” even if the attorney-defendant in the wrongful use
of civil proceedings suit was not part of the settlement between
the parties or even if the language of the settlement itself
reserves a party’s right to initiate suit based on wrongful use of
civil proceedings against a party’s attorney. Electronic Lab.
Supply Co. v. Cullen, 712 A.2d 304, 310-11 (Pa. Super. 1998).
As we held in Cullen, where the parties to the underlying suit
agree jointly to end the underlying suit in a non-litigious nature,
the liability of the underlying defendant, i.e., the plaintiff in the
wrongful use of civil proceedings suit, is never determined with
finality. Cullen, 712 A.2d at 311. Therefore, the underlying suit
is not a “favorable termination” within the meaning of 42
Pa.C.S.[] § 8351. Id., 712 A.2d at 311. Although there was no
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monetary payment made between [the doctor] and [the woman]
as in a typical legal “compromise,” it is clear that the settlement
agreement ended the underlying suit between [the woman], [the
doctor], and his partners in a non-litigious fashion.
Consequently, it is clear that [the doctor’s] liability, or lack
thereof, was never and can never be determined with finality.
As such, [the doctor] was not the “victor” in the underlying
lawsuit, and he cannot, as a matter of law, prevail against [the
woman’s counsel] in a wrongful use of civil proceedings suit.
See id., 712 A.2d at 311. Therefore, the trial court’s dismissal
of the suit on the basis of [the attorneys’] preliminary objections
was proper.
D’Elia, 933 A.2d at 122-23 (internal citation omitted).
Despite the trial court’s insistence that Mr. Pinardo’s lawsuit fails
because none of the underlying cases “reached a final determination on the
merits[,]” see TCO at 5, the D’Elia Court does not state that termination on
the merits is required under the wrongful use of civil proceedings statute.
Instead, it explained that “whether a withdrawal or abandonment constitutes
a favorable, final termination of the case … depends on the circumstances
under which the proceedings are withdrawn[,]” and that “[a] withdrawal of
proceedings stemming from a compromise or agreement does not …
constitute a termination favorable to the party against whom proceedings
have been brought originally.” Id. at 122 (citations omitted).
To be sure, we have previously stated that “[a]lthough favorable
termination is called for, there is no requirement that it be based upon the
merits and to impose such a requirement would lead to unjust results….”
Robinson v. Robinson, 525 A.2d 367, 371 (Pa. Super. 1987). By way of
example, in Robinson, a woman filed two separate lawsuits against her
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former husband: first, she brought suit in federal court alleging claims for,
inter alia, rape, theft, fraud, and breach of a settlement agreement; second,
she sued in New Jersey state court seeking to set aside a settlement
agreement. Id. at 368. Shortly thereafter, the woman moved for a
voluntary nonsuit, and the federal court dismissed the woman’s tort claims
without prejudice so she could renew them in the New Jersey action. Id. A
few months later, the ex-husband brought a wrongful use of civil
proceedings action against the woman in Pennsylvania, but it was dismissed
because “the federal court’s specific refusal to dismiss the claims with
prejudice reflects that these claims have not been determined and are
subject to further adjudication in an appropriate forum. The instant action
therefore, is premature, pending final resolution of the claims in the New
Jersey action.” Id. (citation omitted). Subsequently, the New Jersey action
concluded, without the woman amending the pleadings to raise the issues
initially brought in the federal action. Id. The ex-husband then brought,
again, his claim for wrongful use of civil proceedings against the woman,
asserting that the New Jersey action resulted in the federal action being
terminated in his favor. Id. The trial court disagreed, determining that the
federal proceedings did not terminate in his favor as required under the
pertinent statute. Id. at 368-69.
On appeal, we reversed, concluding that the trial court “erred … in
holding that since [the woman] chose not to pursue the claims in the New
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Jersey action and the merits were never litigated, there was no termination
in favor of [the ex-husband].” Id. at 370. We elaborated:
In the case of Woodyatt v. Bank of Old York Road, … 182
A.2d 500 ([Pa.] 1962), the court, in ruling on a common law
claim of malicious prosecution, held that although one of the
prerequisites to such an action is that the criminal prosecution
upon which it is based be terminated favorably to the party
seeking damages, this did not require that it be terminated on
the merits. If the charges were abandoned or withdrawn by the
prosecutor this was sufficient to satisfy the element of prior
favorable termination. Woodyatt, … 182 A.2d at 501. Citations
omitted.
In Shaffer v. Stewart, … 473 A.2d 1017 ([Pa. Super.] 1984),
this Court, noting that the tort of malicious use of process has
been codified at 42 Pa.C.S.[] §§ 8351-54, held that the
favorable termination element was satisfied when the parties
who filed a caveat to the probate of a will agreed to
voluntarily dismiss their claims.
Shaffer also discussed the fact that Pennsylvania law was now
in conformity with the Restatement (Second) of Torts § 674. A
reading of that section and the comments indicates that civil
proceedings may be considered terminated in favor of a person
against whom they are brought by withdrawal of proceedings.
This general rule is qualified by reference to sections 660-
661 which apply the rule that termination, other than by
acquittal, is not sufficient to meet the requirement of a
cause of action when it is the result of compromise,
misconduct by the accused for the purpose of preventing a
proper trial, abandonment out of mercy requested or accepted
by the accused or when new proceedings based on the same
offense have been instituted and have not been
terminated in favor of the accused. Situations where
abandonment is due to the impossibility of bringing the accused
to trial also are distinguished.
Although Woodyatt dealt with criminal proceedings, the
rationale applied is still appropriate when dealing with a wrongful
use of civil proceedings action. Coupled with the holding in
Shaffer and a review of § 674 of the Restatement (Second) of
Torts, we find that the termination of the New Jersey action, in
which [the woman] had the opportunity to raise the claims made
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in the federal action and did not do so, must be considered a
favorable termination for [the ex-husband] under the statute.
Any other result would allow a party to initiate suit and then
withdraw or abandon the claims before trial so as to escape
potential liability. The statute provides protection against such
action by imposing liability for the procurement, initiation or
continuation of civil proceedings in a grossly negligent manner or
without probable cause with improper purposes. Although
favorable termination is called for, there is no
requirement that it be based upon the merits and to
impose such a requirement would lead to unjust results as
set forth above.
In the present case, [the ex-husband] is attempting to impose
liability on [the woman] for initiating the action in federal court.
The court[’]s determination that the action was never terminated
favorably to [the ex-husband] precludes him from pursuing the
action even though the action was not pursued because of a
decision by [the woman]. It is not argued that [the
woman’s] decision was the result of a compromise
between the parties nor are other circumstances shown
which would qualify the rule that withdrawal is sufficient
to constitute favorable termination. Under these
circumstances we must find that [the ex-husband] has met the
favorable termination requirement.
Robinson, 525 A.2d at 370-71 (emphasis added). Thus, despite the trial
court’s above statements, it is evident that a termination need not be based
on the merits in order to satisfy the wrongful use of civil proceedings
statute.
The Robinson Court, moreover, points us to the Restatement
(Second) of Torts § 674 and its accompanying comment. That section sets
forth the following:
One who takes an active part in the initiation, continuation or
procurement of civil proceedings against another is subject to
liability to the other for wrongful civil proceedings if
(a) he acts without probable cause, and primarily for a
purpose other than that of securing the proper
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adjudication of the claim in which the proceedings are
based, and
(b) except when they are ex parte, the proceedings have
terminated in favor of the person against whom they are
brought.
Comment:
***
j. Termination in favor of the person against whom civil
proceedings are brought. Civil proceedings may be
terminated in favor of the person against whom they are
brought under the rule stated in Clause (b), by (1) the
favorable adjudication of the claim by a competent tribunal, or
(2) the withdrawal of the proceedings by the person bringing
them, or (3) the dismissal of the proceedings because of
his failure to prosecute them. A favorable adjudication
may be by a judgment rendered by a court after trial, or
upon demurrer or its equivalent. In either case the
adjudication is a sufficient termination of the proceedings, unless
an appeal is taken. If an appeal is taken, the proceedings are
not terminated until the final disposition of the appeal and of any
further proceedings that it may entail.
Whether a withdrawal or an abandonment constitutes a
final termination of the case in favor of the person against
whom the proceedings are brought and whether the
withdrawal is evidence of a lack of probable cause for their
initiation, depends upon the circumstances under which
the proceedings are withdrawn. In determining the effect
of withdrawal the same considerations are decisive as
when criminal charges are withdrawn; and therefore §§
660-661 and 665, and the Comments under those
Sections are pertinent to this Section. As to the right of
restitution of money paid to compromise a claim brought without
probable cause and in bad faith, see Restatement of Restitution,
§ 71.
Restatement (Second) of Torts § 674 and accompanying comment
(emphasis added).
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We consider the reference therein to section 660 to be particularly
significant to the matter at hand. It states:
A termination of criminal proceedings in favor of the accused
other than by acquittal is not a sufficient termination to meet the
requirements of a cause of action for malicious prosecution if
***
(d) new proceedings for the same offense have been
properly instituted and have not been terminated in
favor of the accused.
Comment:
g. Revival of prosecution. Whether new proceedings can
properly be brought depends upon the law of criminal procedure
in the jurisdiction in question. When the charge has been
properly revived under the criminal procedure of the particular
jurisdiction, there can be no liability under the rule stated in §
653 until the new proceedings have terminated in favor of the
accused. Thus the abandonment of criminal proceedings is
not a termination in favor of the accused if they were
abandoned for the purpose of bringing other proceedings
for the same offense and other proceedings are thereafter
instituted within a reasonable time. Such an
abandonment may occur when the private prosecutor
ascertains that the proceedings have been brought before a
tribunal having no jurisdiction or only doubtful jurisdiction over
the matter, or when a complaint has been imperfectly
drawn and the proceedings are abandoned in order to
permit the filing of a new and amended complaint.
Proceedings may be abandoned after the public prosecutor’s
discovery of a flaw in an indictment, for the purpose of obtaining
a better indictment from the grand jury. In a word, the
abandonment of particular proceedings does not
constitute a final termination of the case in favor of the
accused. Only an abandonment of the charge brought
against him will suffice.
Restatement (Second) of Torts § 660 and accompanying comment
(emphasis added). Therefore, abandoning a proceeding does not amount to
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termination under the statute if subsequent proceedings are later brought
for the same offense. Further, this comment specifically acknowledges that
a termination is not sufficient where it has been abandoned in order to file a
new, amended complaint.
In the case sub judice, Mr. Pinardo claims that Appellee Silvestro
“blundered his way through case #090203157, eventually terminating in non
pros and [his] untimely appeal [being] quashed. [Appellee Silvestro]
blundered his way through case #090203165, eventually terminating in
dismissal of the complaint on preliminary objections, and denial of a
subsequent petition to open.” Mr. Pinardo’s Brief at 25-26 (citations
omitted). In addition, Mr. Pinardo alleges that, “Case #090302471 and
#090302473 were voluntarily terminated by order to settle filed by
[Appellee Silvestro]. No payment was made by [Mr. Pinardo].” Id. at 26
(citations omitted). Finally, Mr. Pinardo describes that Appellee Silvestro
“lost case #100404471 at arbitration and appealed. … An agreement was
signed by [Appellee Dorsey’s co-tenant] authorizing release of $3,500.00 of
the $5,616.00 security to [Appellee Dorsey]. [The trial judge] dismissed the
remaining … charges.” Id. at 10.
Based on the foregoing legal authority, we determine that the
underlying proceedings did not terminate in favor of Mr. Pinardo. However,
unlike the trial court, we do not reach this conclusion because a final
adjudication on the merits was necessary. Rather, under Robinson and the
pertinent sections of the Restatement cited above, the initial four cases did
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not terminate in favor of Mr. Pinardo because Appellees subsequently
instituted proceedings based on the same offense. See Comment to
Restatement (Second) of Torts § 660 (“[T]he abandonment of criminal
proceedings is not a termination in favor of the accused if they were
abandoned for the purpose of bringing other proceedings for the same
offense and other proceedings are thereafter instituted within a reasonable
time.”). In addition, the parties resolved the fifth and final case — referred
to by the parties as case number 100404471 — at a settlement conference
before the trial judge. Under D’Elia, such a settlement does not constitute a
termination in favor of Mr. Pinardo. See D’Elia, 933 A.2d at 122 (“A
withdrawal of proceedings stemming from a compromise or agreement does
not, as a matter of law, constitute a termination favorable to the party
against whom proceedings have been brought originally.”) (citation
omitted); Robinson, 525 A.2d at 370 (“[T]ermination, other than by
acquittal, is not sufficient to meet the requirement of a cause of action when
it is the result of compromise, … or when new proceedings based on the
same offense have been instituted and have not been terminated in favor of
the accused.”). Consequently, we affirm the trial court’s determination that
the underlying proceedings did not terminate in favor of Mr. Pinardo, and
agree that he cannot sustain a wrongful use of civil proceedings action
against Appellees.
Next, in issue V above, Mr. Pinardo contests the trial court’s imposition
of sanctions by challenging whether Appellees “prove[d] [Mr. Pinardo] did
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not reasonably believe [Appellee Silvestro’s] conduct constituted gross
negligence and did not reasonably believe the unsubstantiated allegations
made in each of [Appellee Silvestro’s] 5 wrongful actions had no basis in law
or fact.” Mr. Pinardo’s Brief at 5. He suggests that Appellee Silvestro did
not “prove an improper purpose, that the legal contentions were not
consistent with existing law, and that the factual allegations were false.” Id.
at 30. We review the trial court’s decision for an abuse of discretion. See
Dean v. Dean, 98 A.3d 637, 644 (Pa. Super. 2014) (citations omitted).
Here, the trial court granted Appellees’ motion for sanctions pursuant
to Pennsylvania Rule of Civil Procedure 1023.1(c)(2). Rule 1023.1 states, in
applicable part, the following:
(b) Every pleading, written motion, and other paper directed to
the court shall be signed by at least one attorney of record in the
attorney’s individual name, or, if the party is not represented by
an attorney, shall be signed by the party. []
(c) The signature of an attorney or pro se party constitutes a
certificate that the signatory has read the pleading, motion, or
other paper. By signing, filing, submitting, or later advocating
such a document, the attorney or pro se party certifies that, to
the best of that person’s knowledge, information and belief,
formed after an inquiry reasonable under the
circumstances,
***
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a nonfrivolous
argument for the extension, modification or reversal of
existing law or the establishment of new law,
***
(d) If, after notice and a reasonable opportunity to respond, the
court determines that subdivision (c) has been violated, the
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court may, subject to the conditions stated in Rules 1023.2
through 1023.4,[10] impose an appropriate sanction upon any
attorneys, law firms and parties that have violated subdivision
(c) or are responsible for the violation.
Pa.R.C.P. 1023.1(b)-(d) (emphasis added). Further, Rule 1023.2 provides,
in relevant part:
(a) An application for sanctions under this rule shall be made by
motion, shall be made separately from other applications and
shall describe the specific conduct alleged to violate Rule
1023.1(c).
(b) No such motion shall be filed unless it includes a certification
that the applicant served written notice and demand to the
attorney or pro se party who signed or filed the challenged
pleading, motion or other paper. The certification shall have
annexed a copy of that notice and demand, which shall
identify with specificity each portion of the document
which is believed to violate the provisions of this rule, set
forth the basis for that belief with specificity, include a
demand that the document or portion of the document, be
withdrawn or appropriately corrected. An application for
sanctions may be filed if the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or
appropriately corrected within twenty-eight days after service of
the written demand. If warranted, the court may award to the
party prevailing on the motion the reasonable expenses and
attorney’s fees incurred in presenting or opposing the motion.
Pa.R.C.P. 1023.2(a)-(b) (emphasis added).
In explaining its basis for imposing sanctions, the trial court in this
case reasoned:
[Appellee Silvestro’s counsel, Daniel Strick, Esq.] sent a letter on
January 28, 2015 to [Mr. Pinardo’s] counsel. In his letter,
[Appellee] Silvestro’s counsel announced his belief that the
complaint was not warranted by existing law or by a non
____________________________________________
10 In short, Rule 1023.4 relates to what the sanctions imposed may consist
of, or include. Pa.R.C.P. 1023.4.
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frivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law. See Pa.R.C.P.
1023.1(c)(2). The letter sent by [Appellee Silvestro’s] counsel
explained that [Mr. Pinardo] could not establish that the
underlying cases terminated in [Mr. Pinardo’s] favor. The letter
finally gave notice that a Motion for Sanctions would be
forthcoming. [Mr. Pinardo] did not dismiss the complaint.
Mr. Strick, on behalf of [Appellee] Dorsey, sent another letter on
October 2, 2015 after the default judgment against [Appellee]
Dorsey was opened by the court. The October 2, 2015 letter
reiterated the position set forth in [Appellee] Silvestro’s January
28, 2015 letter. [Mr. Pinardo] did not dismiss the complaint.
[Appellees] brought their Motion for Sanctions for the proper
purpose under Pa.R.C.P. 1023.1(c)(2) and followed the
necessary procedure of informing the opposing party in advance
and with specificity of their intent to do so. [Mr. Pinardo]
pushed forward with a lawsuit judicially determined to be
frivolous, for which he was appropriately sanctioned by this
[c]ourt.
TCO at 9-10 (citations to record omitted).
In the letters sent on behalf of Appellee Silvestro on January 28, 2015,
his counsel wrote — without citation to any specific authority in support —
the following:
As you are well aware, to succeed on the claims asserted against
[Appellee] Silvestro, your client must establish: 1) the
underlying proceedings were terminated in his favor, after a
determination on the merits; 2) defendants caused those
proceedings to be instituted against plaintiff without probable
cause, and 3) the proceedings were instituted primarily for an
improper cause.
As a result of the procedural dismissals and the ultimate
settlement of the underlying actions, the court never ruled on
the merits of the underlying actions. Accordingly, there can
be no debate that [Mr. Pinardo] will not be able to establish all of
the elements against [Appellee] Silvestro.
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See Appellee Silvestro’s Motion for Sanctions against Anthony Quinn, Esq.
Pursuant to Rule 1023.1, et seq., 10/6/2015, at Exhibit 4 (January 28, 2015
Letter from Daniel S. Strick, Esq. to Anthony B. Quinn, Esq.) (emphasis
added). Likewise, in the October 2, 2015 letter sent on behalf of Appellee
Dorsey, his counsel states that Mr. Pinardo cannot establish that “the
underlying proceedings were terminated in his favor, after a
determination on the merits.” See Appellee Silvestro’s Motion for
Sanctions against Anthony Quinn, Esq. Pursuant to Rule 1023.1, et seq.,
10/6/2015, at Exhibit 8 (October 2, 2015 Letter from Daniel S. Strick, Esq.
to Anthony B. Quinn, Esq.) (emphasis added).
Yet, as discussed supra, a judgment on the merits is not required to
establish a claim for wrongful use of civil proceedings, which undermines the
assertions made by Appellees’ attorney in the letters to Mr. Pinardo’s
attorney, as well as the trial court’s opinion. In light of Robinson, Shaffer,
and the sections of the Restatement cited above, we do not believe that Mr.
Pinardo’s inquiry into existing law was so unreasonable as to warrant
sanctions, especially given that Appellees’ counsel inaccurately represented
existing law in his notices pursuant to Pa.R.C.P. 1023.2.11 Therefore, we
____________________________________________
11 Indeed, Mr. Pinardo asserts — somewhat facetiously we believe — that
“[Appellee Silvestro] fails this prong[, Pa.R.C.P. 1023.1(c)(2),] because he
had no evidence [Mr. Pinardo] and his counsel were on notice … Shaffer…,
supra,…Robinson…, supra[, and] cases adopting Restatement (2nd) of
Torts § … 674…[,] are not the law in Philadelphia County or in [the trial
judge’s] courtroom.” Mr. Pinardo’s Brief at 31.
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believe that the trial court abused its discretion in granting Appellees’
motions for sanctions. As such, we reverse its orders imposing sanctions
and vacate the February 17, 2016 order awarding attorneys’ fees.12
Order affirmed in part and reversed in part. Award of attorneys’ fees
vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2017
____________________________________________
12 In light of our disposition, we need not address Mr. Pinardo’s remaining
issues and Appellees’ cross-appeal.
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