Handfield, E. v. Howell, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EARL CALVIN HANDFIELD, II : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WILLIAM E. HOWELL, III, ESQ. : No. 1479 EDA 2019
DAVID N. VAN DER GOES PHD ALBU :
QUANT, LLC :
Appeal from the Order Entered April 25, 2019
In the Court of Common Pleas of Chester County Civil Division at No(s):
2019-03958
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 11, 2020
Appellant Earl Calvin Handfield, II, appeals pro se from the orders
dismissing his complaint as frivolous under Pa.R.C.P. 240(j) and denying his
application for leave to proceed in forma pauperis. Appellant contends that
his complaint stated viable claims against Appellees William E. Howell, III,
Esq. (Attorney Howell), David N. van der Goes (Dr. van der Goes), and Albu
Quant, LLC. We affirm.
We state the background of this matter based on the allegations in
Appellant’s complaint. In 2009, a jury found Appellant guilty of first-degree
murder for killing Corey Jennings (the decedent), and the trial court sentenced
Appellant to life imprisonment (the criminal matter). Appellant’s Compl.,
4/19/19, at ¶ 8. The Pennsylvania Crime Victims Compensation Fund (CVC)
paid approximately $12,361 to the decedent’s children. Id. at ¶ 11.
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In 2016, the decedent’s daughter, who was a minor when Appellant
killed the decedent, commenced a wrongful death action against Appellant
after she reached the age of majority. Id. at ¶ 12. Attorney Howell
represented the decedent’s daughter in the wrongful death action. Id. at ¶
14. Dr. van der Goes, who owned Albu Quant, LLC, prepared a report stating
that the decedent’s death caused his children to lose $361,217.80, which
represented the decedent’s projected income over his projected “work life.”
Id. at ¶¶ 4-5, 20, 76 & Ex. 14 (Albu Quant report, 7/27/17). Appellant
represented himself in the wrongful death action, and he received a copy of
the Albu Quant report. Id. at ¶¶ 15, 20.
The wrongful death action proceeded to a jury trial in August 2017. Id.
at ¶ 24. At trial, Dr. van der Goes testified against Appellant as a damages
expert. Id. According to Appellant, “on August 17[, 2017,] the jury rul[ed]
in [Appellant’s] favor finding that he was not liable to pay any money in
damages. The jury’s verdict stated that [Appellant] owed zero dollars for
every count that was charged.” Id. at ¶ 25.
On April 19, 2019, Appellant filed the instant pro se complaint naming
Albu Quant, LLC, Dr. van Der Goes, and Attorney Howell as defendants. In
his complaint, Appellant raised the following claims: Count 1—wrongful use of
civil proceedings1 against Attorney Howell; Count 2—negligent
misrepresentation against Albu Quant, LLC; Count 3—intentional
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1 See 42 Pa.C.S. §§ 8351-8354 (Dragonetti Act).
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misrepresentation against Albu Quant, LLC; Count 4—abuse of process against
Attorney Howell; and Count 5—professional negligence against Dr. van der
Goes. Appellant asserted that the defendants were not entitled to immunity.
Id. at ¶¶ 26-28.
As to damages, Appellant asserted that he suffered emotional distress
related to the wrongful death action, as well as “sticker shock” from the
estimated damages in the Albu Quant report. Id. at ¶¶ 49, 114. Appellant
stated that his distress resulted in physical symptoms, including bloody
discharges from his urethra, which placed him in additional fear of having a
more severe condition such as cancer. Id. at ¶¶ 60-63. Additionally,
Appellant claimed that he suffered a physical injury when, while exercising in
the gym, he became distracted by the wrongful death action and dropped a
weight on his head. Id. at ¶ 51. Appellant also claimed that his distress
resulted in his failure to perform on a songwriting contract for $18,000. Id.
at ¶¶ 52-56. Appellant attached an application for leave to proceed in forma
pauperis to his complaint.
On April 25, 2019, the trial court dismissed Appellant’s complaint based
on Pa.R.C.P. 240(j). The trial court reasoned:
[Appellant’s] cause of action herein is frivolous despite the fact
that the jury awarded no damages in the [wrongful death] action.
The fact that no damages were awarded could be as a result of
lack of proof or the jury’s recognition that awarding damages
against [Appellant] was fruitless because he is going to spend the
rest of his life in prison with no ability to repay any awarded
damages. In any event, [Appellant’s] belief that he is entitled to
damages as a result of the discomfort resulting from being sued
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by the family of the decedent that he murdered is frivolous and
has no bases in law or fact.
Order 4/25/19, at n.1. That same day, the trial court entered a separate order
denying Appellant’s application for leave to proceed in forma pauperis.
Appellant timely filed a notice of appeal and complied with the trial
court’s order to file and serve a Pa.R.A.P. 1925(b) statement.2 The trial court
filed a Rule 1925(a) opinion restating its previous conclusion that Appellant’s
action was frivolous. Trial Ct. Op., 7/9/19, at 2. The trial court described
Appellant’s filing of his complaint as an attempt “to re-victimize the
[decedent’s] family.” Id.
In his pro se brief, Appellant presents seven questions, which we have
reordered as follows:
[1]. Did the [trial] court deny [Appellant] access to the court by
denying [Appellant’s] complaint as frivolous without adjudicating
the merits of the professional negligence claim against [Dr. van
der Goes], where the complaint established that [Dr. van der
Goes] failed to investigate and sufficiently formulate an analysis
of the [decedent’s] economic value, contributing to [Appellant’s]
harm suffered through reliance on untruthful information?
[2]. Did the [trial] court deny [Appellant] access to the court by
denying [Appellant’s] complaint as frivolous without adjudicating
the merits of [Appellant’s] negligent misrepresentation claim
against [Albu Quant, LLC,] whose allegation that Appellant owed
$361,217.00 lacked support by facts or by necessary data to make
[Appellant] legally liable, thus contributing to [Appellant’s] harm
suffered through reliance on untruthful information?
[3]. Did the [trial] court deny [Appellant] access to the court by
denying [Appellant’s] complaint as frivolous without adjudicating
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2Appellant filed a separate application for leave to proceed in forma pauperis
on appeal. The trial court granted that request.
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the merits of the intentional misrepresentation claim against [Albu
Quant, LLC,] when the complaint establishes that [Albu Quant,
LLC,] deliberately and falsely stated that it formulated its analysis
of the [decedent’s] value based on “documents [of the decedent’s]
occupation and work history”, thus contributing to [Appellant’s]
harm-suffered through reliance on untruthful information?
[4]. Did the [trial] court violate due process and misapply
[Appellant’s] Dragonetti Act claim that contained arguable merit,
which the court denied as “frivolous”, where:
(a) the underlying proceedings terminated in [Appellant’s]
favor (an element of the act); and
(b) the claim is supported by sworn affidavits, by medical
records and by Pennsylvania law?
[5]. Did the [trial] court deny [Appellant] access to the court by
denying [Appellant’s] complaint as frivolous without adjudicating
the merits of the abuse of process claim, supported by sworn
affidavits and by facts that:
(a) [Attorney Howell] acted with an ulterior motive by using
a legal process (wrongful death action) as a tactical weapon
to compel a payment that was unauthorized by the wrongful
death/survival act; and
(b) [The decedent’s daughter] admitted that she neither
initiated nor wished to bring [the wrongful death] action
against [Appellant]?
[6.] Did the [trial] court violate due process by denying
[Appellant’s] entire civil complaint as “frivolous” without
adjudicating the merits of each count and without assessing the
damages presented, which are supported by sworn affidavits, by
medical records, by court documents and by Pennsylvania law?
[7]. Did the [trial] court deny [Appellant] access to the court by
denying [Appellant] leave to proceed in forma pauperis without
regarding [Appellant’s] indigent status, demonstrated in the in
forma pauperis application, by basing its ruling solely on
speculative facts relating to the actual complaint?
Appellant’s Brief at 5-6.
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Appellant’s appeal challenges the trial court’s decision to dismiss his
actions against Albu Quant, LLC, Dr. van der Goes, and Attorney Howell under
Pa.R.C.P. 240(j). Appellant argues he stated non-frivolous claims against Albu
Quant, LLC, and Dr. van der Goes for negligence, negligent misrepresentation,
and intentional misrepresentation and against Attorney Howell for wrongful
use of civil proceedings and abuse of process. Appellant also contends that
the trial court violated his due process rights by summarily dismissing his
complaint and denying his petition to proceed in forma pauperis.
Before addressing Appellant’s arguments, we note that Pa.R.C.P. 240
states:
(b) A party who is without financial resources to pay the costs of
litigation is entitled to proceed in forma pauperis.
* * *
(j)(1) If, simultaneous with the commencement of an action or
proceeding or the taking of an appeal, a party has filed a petition
for leave to proceed in forma pauperis, the court prior to acting
upon the petition may dismiss the action, proceeding or appeal if
the allegation of poverty is untrue or if it is satisfied that the
action, proceeding or appeal is frivolous.
Note: A frivolous action or proceeding has been defined as
one that “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104
L. Ed. 2d 338 (1989).
Pa.R.C.P. No. 240(b), (j) & note.
“Our review of a decision dismissing an action pursuant to Pa.R.C.P.
240(j) is limited to a determination of whether the plaintiff’s constitutional
rights have been violated and whether the trial court abused its discretion or
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committed an error of law.” Ocasio v. Prison Health Servs., 979 A.2d 352,
354 (Pa. Super. 2009) (citations omitted). A litigant seeking leave to proceed
in forma pauperis bears the responsibility of presenting a valid cause of action.
Conover v. Mikosky, 609 A.2d 558, 560 (Pa. Super. 1992). A complaint is
frivolous “if, on its face, it does not set forth a valid cause of action.” See
Ocasio, 979 A.2d at 354 (citation omitted). Moreover, Rule 240(j) requires
a court to consider whether the underlying action is frivolous before acting on
the petition to proceed in forma pauperis. Id. at 355.
Negligence against Dr. van der Goes
Appellant asserted in his complaint that Dr. van der Goes was negligent
for failing to properly investigate and analyze damages in the wrongful death
action. Appellant’s Compl. at ¶¶ 139, 144. Appellant alleged that Dr. van der
Goes “did not conduct any investigation at all regarding the truth or proof of
[the decedent’s] earnings or losses of finances as any professional in [Dr. van
der Goes’] field would have done.” Id. at ¶ 145. Specifically, Appellant
claimed that Dr. van der Goes failed to base his expert opinion on
documentary evidence such as tax filings, affidavits from the decedent’s
employers, or copies of pay stubs. Id. at ¶¶ 110, 156. According to Appellant,
Dr. van der Goes recklessly estimated damages based on hearsay reports from
the decedent’s family and Attorney Howell, which indicated that the decedent
worked as a general laborer, who did “things like hanging drywall.” Id. at ¶¶
153-54. Appellant asserted that Dr. van der Goes knew that the decedent
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had a history of incarceration and drug use, but failed to offset his damages
estimate based on those factors. Id. at ¶¶ 150-52.
On appeal, Appellant contends that his complaint contained sufficient
allegations to state a viable claim of negligence against Dr. van der Goes.
Appellant’s Brief 23-30. In particular, Appellant asserts that he established
that Dr. van der Goes owed him “a traditional duty of care” under LLMD of
Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1999), as well as
Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa.
2005), and the Restatement (Second) of Torts § 552. Id. at 30.
The following principles are relevant to our review. A plaintiff seeking
relief based on a claim of negligence must show:
[(1)] A duty or obligation recognized by law.
[(2)] A breach of the duty.
[(3)] Causal connection between the actor’s breach of the duty
and the resulting injury.
[(4)] Actual loss or damage suffered by complainant.
Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005)
(citation omitted). “To establish a breach of duty in a professional negligence
action, a plaintiff must show that the defendant’s conduct fell below the
relevant standard of care applicable to the rendition of the professional
services at issue.” Zokaites Contracting Inc. v. Trant Corp., 968 A.2d
1282, 1287 (Pa. Super. 2009) (citation omitted).
As to the existence of a duty, our Supreme Court has explained:
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The determination whether to impose affirmative common-law
duties as a predicate to civil liability is a matter of law;
accordingly, our review is plenary. We have characterized the
duty inquiry as the primary inquiry in negligence. To assist us in
identifying a previously unrecognized duty, we rely upon five
factors: (1) the relationship between the parties; (2) the social
utility of the actor’s conduct; (3) the nature of the risk imposed
and foreseeability of the harm incurred; (4) the consequences of
imposing a duty upon the actor; and (5) the overall public interest
in the proposed solution.
Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 222 (Pa. 2018)
(citations and alterations omitted). “[T]he legal concept of duty of care is
necessarily rooted in often amorphous public policy considerations, which may
include our perception of history, morals, justice and society.” Lindstrom v.
City of Corry, 763 A.2d 394, 397 (Pa. 2000) (citation omitted).
Instantly, as noted above, Appellant cites LLMD of Michigan, Bilt-
Rite, and the Restatement (Second) of Torts § 552 in support of his argument
that Dr. van der Goes owed him a duty of care. However, Appellant’s reliance
on these authorities is misplaced.
Initially, we note that Pennsylvania courts have held that there is no
civil cause of action based on testimony given during a judicial proceeding,
even if the testimony was false. See Ginsburg v. Halpern, 118 A.2d 201,
202 (Pa. 1955) (per curiam). Under the doctrine of witness immunity, “private
witnesses, as well as counsel, are absolutely immune from damages liability
for testimony, albeit false, given or used in judicial proceedings” such that the
false statements would not be actionable. Pelagatti v. Cohen, 536 A.2d
1337, 1342 (Pa. Super. 1987) (citations omitted).
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In LLMD of Michigan, our Supreme Court concluded that witness
immunity did not bar a plaintiff’s negligence action against its own expert.
LLMD of Michigan, 740 A.2d at 188. In that case, the plaintiff retained the
expert in a prior breach of contract action that the plaintiff filed against a
financing company. Id. at 186-87. The expert estimated that plaintiff
suffered $6 million in lost profits and testified to that estimate at trial. Id. at
187. On cross-examination, however, the expert conceded the damages
estimate was wrong due to a mathematical error and was not able to correct
the error at trial. Id. The financing company moved to strike the expert’s
testimony, which the trial court granted, and the plaintiff eventually settled
the breach of contract action for $750,000. Id.
The plaintiff in LLMD of Michigan thereafter sued its expert for breach
of contract and professional negligence. Id. The trial court granted the
expert’s summary judgment motion and dismissed the case. Id. at 188. On
appeal, this Court affirmed the trial court, concluding that witness immunity
barred the plaintiff’s action against the expert. Id.
Our Supreme Court reversed this Court’s decision. Id. at 191. Initially,
the LLMD of Michigan Court noted that witness immunity stands on the
policy of “ensuring that the path to truth is unobstructed and the judicial
process is protected, by fostering an atmosphere where the expert witness
will be forthright and candid in stating his or her opinion.” Id. However, in
concluding that witness immunity did not bar the plaintiff’s action against its
expert, the Court reasoned that those purposes would not be “advanced by
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immunizing an expert witness from his or her negligence in formulating that
opinion.” Id. To the contrary, the Court stated that “[t]he judicial process
will be enhanced only by requiring that an expert witness render services to
the degree of care, skill and proficiency commonly exercised by the ordinarily
skillful, careful and prudent members of their profession.” Id.
We acknowledge that LLMD of Michigan stands for the proposition that
witness immunity will not bar an action for negligence or breach of contract
against an expert witness. However, LLMD of Michigan involved the
application of witness immunity and did not expressly consider the duty owed
by an expert. See id. Moreover, the plaintiff in LLMD of Michigan brought
the negligence claim against a “friendly” expert, who the plaintiff retained in
prior litigation. See id. at 188. Here, Appellant attempts to impose a duty
on an adverse expert. Accordingly, we conclude that LLMD of Michigan does
not support imposing a duty on Dr. van der Goes as to Appellant.3
In Bilt-Rite, our Supreme Court expressly adopted Section 552 of the
Restatement (Second) of Torts, which discusses liability for information
negligently supplied for the guidance of others. See Restatement (Second)
of Torts § 552. In Bilt-Rite, a school district contracted with an architect to
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3 We add that the distinctions between the instant case and LLMD of
Michigan support a conclusion that witness immunity barred all of Appellant’s
claims against Albu Quant and Dr. van der Goes. However, immunity from
suit is an affirmative defense that should generally be raised as new matter.
See Pa.R.C.P. 1030(a); Pollina v. Dishong, 98 A.3d 613, 617 n.3 (Pa. Super.
2014). Moreover, the trial court in this case did not discuss the witness
immunity doctrine as a basis for dismissing Appellant’s complaint.
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prepare designs and plans for the construction of a school building and the
preparation of bids from contractors. Bilt-Rite, 866 A.2d at 272. The
plaintiff, a building contractor, submitted the winning bid based on the
architect’s plans. Id. However, when the plaintiff began construction, it
discovered that special construction methods were required that increased the
cost of the project. Id. The plaintiff then sued the architect for negligent
misrepresentation for the plans it developed for the school district. Id.
In adopting Section 552 of the Second Restatement of Torts, the Bilt-
Rite Court observed:
Section 552 sets forth the parameters of a duty owed when one
supplies information to others, for one’s own pecuniary gain,
where one intends or knows that the information will be used by
others in the course of their own business activities. The tort is
narrowly tailored, as it applies only to those businesses which
provide services and/or information that they know will be relied
upon by third parties in their business endeavors, and it includes
a foreseeability requirement, thereby reasonably restricting the
class of potential plaintiffs.
Id. at 285-86. The Court emphasized that the liability of an expert who
supplies information was not “radical or revolutionary,” but reflected “modern
business realities.” Id. at 286.
Although Bilt-Rite holds that the lack of privity alone will not defeat a
claim that an expert owes a duty of care to a third party, the realities of
litigation do not support an opposing party’s claim of reasonable reliance on
the opinions of an adverse expert. Furthermore, it is foreseeable that an
opposing party would challenge rather than rely on an adverse expert’s
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opinion, as Appellant did in the wrongful death action. Accordingly, we discern
no merit to Appellant’s contention that Bilt-Rite and Section 552 of the
Second Restatement of Torts establish a duty of care as between Dr. van der
Goes and Appellant.
To the extent Appellant seeks to create a new duty between an expert
and an opposing party, we find the policies of extending witness immunity
instructive. As our Supreme Court noted:
A witness’ apprehension of subsequent damages liability might
induce two forms of self-censorship. First, witnesses might be
reluctant to come forward to testify. And once a witness is on the
stand, his testimony might be distorted by the fear of subsequent
liability. Even within the constraints of the witness’ oath there
may be various ways to give an account or to state an opinion.
These alternatives may be more or less detailed and may differ in
emphasis and certainty. A witness who knows that he might be
forced to defend a subsequent lawsuit, and perhaps to pay
damages, might be inclined to shade his testimony in favor of the
potential plaintiff, to magnify uncertainties, and thus to deprive
the finder of fact of candid, objective, and undistorted evidence.
But the truthfinding process is better served if the witness’
testimony is submitted to “the crucible of the judicial process so
that the factfinder may consider it, after cross-examination,
together with the other evidence in the case to determine where
the truth lies.”
LLMD of Michigan, 740 A.2d at 189 (quoting Briscoe v. LaHue, 460 U.S.
325 (1983)).
Here, Dr. van der Goes prepared an expert opinion regarding damages
in the wrongful death action against Appellant. Imposing such a duty on an
expert could induce the forms of self-censorship described by the Court in
LLMD of Michigan. See id. at 189. Accordingly, the judicial process is better
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served by subjecting an adverse expert’s opinion to the rigors of cross-
examination and scrutiny in the normal course of litigation. The imposition of
a new duty of care on the adverse expert is contrary to the realities of
litigation. See id.
Accordingly, our review reveals no error in the trial court’s conclusion
that Appellant’s negligence claim was frivolous because Appellant failed to
establish an actionable duty of care. See Ocasio, 979 A.2d at 354; cf.
Lindstrom, 763 A.2d at 397. Therefore, Appellant’s first issue merits no
relief.
Negligent Misrepresentation against Albu Quant, LLC
Appellant alleged in his complaint that Dr. van der Goes owned Albu
Quant, LLC, and that Dr. van der Goes authored the Albu Quant report
estimating damages in the wrongful death action at $361,217.80. Appellant’s
Compl. at ¶ 76 & Ex. 14. Appellant’s claims that “[Albu Quant, LLC,] had a
duty to investigate and base its findings on credible and reliable facts, which
it did not.” Id. at ¶ 91. On appeal, Appellant contends that Albu Quant, LLC,
also owed him duty of care under the Restatement (Second) of Torts § 552.
Appellant’s Brief at 30.
For a claim of negligent misrepresentation, a plaintiff must state there
was:
(1) a misrepresentation of a material fact;
(2) made under circumstances in which the misrepresenter ought
to have known its falsity;
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(3) with an intent to induce another to act on it; and
(4) which results in injury to a party acting in justifiable reliance
on the misrepresentation.
Milliken v. Jacono, 60 A.3d 133, 141 (Pa. Super. 2012) (citation omitted).
“[L]ike any action in negligence, there must be an existence of a duty owed
by one party to another” to sustain a negligent misrepresentation claim.
Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999).
Here, just as Appellant failed to establish that Dr. van der Goes owed
him a duty of care, Appellant cannot establish that Albu Quant, LLC, owed him
a duty to undertake a reasonable investigation. Therefore, Appellant’s claim
that he had an actionable cause of action against Albu Quant, LLC, for
negligent misrepresentation fails. See Ocasio, 979 A.2d at 354; cf. Bortz,
729 A.2d at 561.
Intentional Misrepresentation against Albu Quant, LLC
Appellant’s claim of intentional misrepresentation against Albu Quant,
LLC, concerns Albu Quant, LLC’s representation that it reviewed documents
related to the decedent. Appellant’s Compl. at ¶¶ 103-11. Appellant alleged
that this was false because Dr. van der Goes admitted at trial that he did not
review documents regarding the decedent’s past income. Id. at ¶ 107.
Appellant asserts that “[Albu Quant, LLC,] intentionally misled [him] to believe
that the $361,217.80 [in wrongful death damages] encompassed all factors
relevant to [the decedent’s] social and economic value.” Id. at ¶ 111. On
appeal, Appellant restates the allegations set forth in his complaint and
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contends that the trial court erred in finding his claim frivolous. Appellant’s
Brief at 31-32.
For a claim of intentional misrepresentation, a plaintiff must state there
was:
(1) [a] representation;
(2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity or recklessness as
to whether it is true or false;
(4) with the intent of misleading another into relying on it;
(5) justifiable reliance on the misrepresentation; and,
(6) the resulting injury was proximately caused by the reliance.
Bortz, 729 A.2d at 560 (citations omitted).
By way of further background, we note that an action for wrongful death
“may be brought . . . to recover damages for the death of an individual caused
by the wrongful act or neglect or unlawful violence or negligence of another.”
See 42 Pa.C.S. § 8301(a). The damages are intended “to compensate the
decedent’s survivors for the pecuniary losses they have sustained as a result
of the decedent’s death. This includes the value of the services the victim
would have rendered to his family if he had lived.” Amato v. Bell & Gossett,
116 A.3d 607, 625 (Pa. Super. 2015) (citation omitted). As this Court noted,
“[t]he primary purpose of expert testimony is not to assist one party or
another in winning the case but to assist the trier of facts in understanding
complicated matters.” Panitz v. Behrend, 632 A.2d 562, 565 (Pa. Super.
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1995). Nevertheless, “a jury may reject any evidence offered, even if
uncontroverted; a jury is not obliged to believe or disbelieve any evidence
presented at trial, including an expert's opinion.” See Carroll v. Avallone,
939 A.2d 872, 875 (Pa. 2007).
Instantly, the record showed that the Albu Quant report stated that Albu
Quant, LLC, “reviewed documents pertaining to the fate [of the decedent],
and his socio-economic status, age when he died, race, occupation and past
history of incarceration.” Albu Quant Report at 1. The Albu Quant report
estimated the decedent’s death resulted in a loss of income of $143,558
between 2005 and 2017, and a loss of $361,271 if the decedent survived to
sixty-five years old. Id. at 2. Albu Quant, LLC, stated it based his findings
on government statistics regarding income and estimated employment rates.
Id. at 1.
The record further established that Albu Quant, LLC, provided a means
for the jury to measure the loss to the decedent’s family based on economic
data relevant to the decedent’s socio-economic background. Apparently, the
jury did not credit the report. However, the jury’s finding of no damages in
and of itself did not establish that Albu Quant, LLC, intentionally
misrepresented the possible damages in the wrongful death action. See
Carroll, 939 A.2d at 875. Accordingly, we find no basis to disturb the trial
court’s ruling that Appellant’s claim of intentional misrepresentation against
Albu Quant, LLC, was frivolous. See Ocasio, 979 A.2d at 354.
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Wrongful Use of Civil Proceedings against Attorney Howell
Appellant’s wrongful use of civil proceedings claim against Attorney
Howell emphasized that the wrongful death action ended in his favor.
Appellant’s Compl. at ¶ 25. Appellant alleged that after the wrongful death
action was filed against him, he asked Attorney Howell “who came up with the
idea” to commence the civil action. Id. at ¶ 33. According to Appellant,
Attorney Howell responded that the CVC “wanted to collect the funds it paid
out to [the decedent’s] children” in the criminal matter. Id. Appellant noted
that the decedent’s daughter later admitted that it was not her idea to sue
Appellant. Id. at ¶ 34.
Based on these allegations, Appellant characterized the wrongful death
action as an unlawful attempt to collect or seek reimbursement for restitution
for “someone other than the actual victim.” Id. at ¶ 37. Appellant asserted
that Attorney Howell
was grossly negligent for the cumulative factors of: (a) pursuing
a suit even though [Appellant] was not liable to pay back the CVC;
(b) causing an expert witness to negligently conduct a financial
investigation of [the decedent’s] worth and (c) knowing that the
lawsuit was not truly at the behest of [the decedent’s daughter].
Id. at ¶ 42. In support, Appellant noted that under the restitution statute, 18
Pa.C.S. § 1106, the trial court could have ordered him to reimburse the CVC,
but did not do so in the criminal matter. Id. at ¶¶ 40-41.
On appeal, Appellant insists that the CVC encouraged the decedent’s
family to file the wrongful death action against him to recover the payments
it made in the criminal matter. Appellant’s Brief at 17. Appellant maintains
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that the proper process for the CVC to seek reimbursement was through a
sentence of restitution. Appellant argues that Attorney Howell was grossly
negligent for commencing the wrongful death action at the suggestion of CVC.
Id. at 19-20. Additionally, Appellant contends that Attorney Howell was
grossly negligent for procuring or relying on improper damages evidence
provided by Albu Quant, LLC , and Dr. van der Goes. Id.
The Dragonetti Act defines a claim for wrongful use of civil proceedings
as follows:
(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). Section 8354 establishes that the plaintiff bringing a
wrongful use of civil proceeding claim bears the burden of establishing:
(1) The defendant has procured, initiated or continued the civil
proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) 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.
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(5) The plaintiff has suffered damages as set forth in section 8353
(relating to damages).
42 Pa.C.S. § 8354.
With respect to probable cause, Section 8352 provides:
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
(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. § 8352.
“[T]he clear language of Section 8351 permits a cause of action to be
based on gross negligence or lack of probable cause. 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.” Keystone Freight Corp. v.
Stricker, 31 A.3d 967, 973 (Pa. Super. 2011) (citations omitted) (emphasis
in original). However, “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.
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Instantly, as the trial court concluded, Appellant’s conviction for murder
gave rise to probable cause for the wrongful death action. See Trial Ct. Op.
at 2. The damages in the wrongful death action would have included “the
value of the services the victim would have rendered to his family if he had
lived.” See Amato, 116 A.3d at 625 (citation omitted). As noted above, it
appears that the jury did not accept the damages estimate by Albu Quant,
LLC, or Dr. van der Goes. However, nothing in the record demonstrated that
their estimate was palpably false, or that Attorney Howell proceeded without
probable cause based on the information available to him.
Therefore, even if Appellant pled facts suggesting that there were
ulterior motives for bringing the wrongful death action, Appellant has not
established that Attorney Howell violated the Dragonetti Act by commencing
the wrongful death action. For the same reasons, Appellant’s claim that
Attorney Howell was grossly negligent in procuring or relying on the Albu
Quant report lacks merit.
In sum, we discern no factual or legal support for Appellant’s claim that
Attorney Howell acted without probable cause or was grossly negligent in
procuring the Albu Quant report. See Stricker, 31 A.3d at 973. Therefore,
we find no error in the trial court’s conclusion that Appellant’s wrongful use of
civil proceedings claim was frivolous. See Ocasio, 979 A.2d at 354.
Abuse of Process against Attorney Howell
Lastly, Appellant’s claim for abuse of process against Attorney Howell is
similar to his argument regarding wrongful use of civil proceedings. Appellant
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asserts that he adequately pled that Attorney Howell “perverted the civil
process” by pursuing an action instigated by the CVC and then by procuring
and advancing false evidence of damages. Appellant’s Brief at 25. Appellant’s
arguments focus on the bad intentions of Attorney Howell, Albu Quant, LLC,
and Dr. van der Goes, as well as the decedent’s family, for bringing the
wrongful death action against him. Appellant again argues that in seeking
damages for wrongful death, Attorney Howell was complicit in pursuing
compensation for the CVC, not the decedent’s family.
A claim 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. . . . 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.
Greenberg v. McGraw, 161 A.3d 976, 990 (Pa. Super. 2017) (citations
omitted) (emphasis in original).
Instantly, our review reveals that Appellant failed to plead an act or
threat unauthorized by legal process. Nor did he allege an illegitimate
objective in the use of the legal process by Attorney Howell. Further,
Appellant’s bald assertions that the wrongful death action was undertaken to
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reimburse the CVC are not tantamount to the perversion of the legal process
for the purposes of benefit to Attorney Howell or the decedent’s family.
Accordingly, Appellant’s claim that Attorney Howell sought a goal not
authorized by the wrongful death action is frivolous where, as here, Attorney
Howell simply pursued the wrongful death action to an unsuccessful end.
Therefore, we find no basis to disturb the trial court’s ruling that Appellant’s
abuse of process claim was frivolous. See Ocasio, 979 A.2d at 354.
Conclusions
In sum, we find no reversible error in the trial court’s conclusion that
Appellant’s actions against Dr. van der Goes, Albu Quant, LLC, and Attorney
Howell were frivolous. Because Appellant’s actions lacked any basis in law or
fact, we conclude that the dismissal of his complaint under Rule 240(j) did not
violate Appellant’s due process rights. See Conover, 609 A.2d at 560.
Lastly, we conclude that the trial court properly denied Appellant’s
application for leave to proceed in forma pauperis in the underlying action
based on its determination that Appellant’s claims were frivolous. See
Pa.R.C.P. 240(j).
Order affirmed.
President Judge Panella joins the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/20
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