Cruz v. Princeton Insurance Co.

OPINION BY

BENDER, J.:

¶ 1 This matter comes before us on remand from the Supreme Court of Pennsylvania for consideration of whether plaintiffs Jacqueline Nieves Cruz and Oscar Cruz (the Cruzes) adduced evidence sufficient to raise a question of material fact concerning the harm element of their claim for Abuse of Process. The Cruzes argue, and we conclude, that the evidence, both direct and circumstantial, does raise such a question. Accordingly, we reverse the order granting summary judgment and remand this matter to the trial court for further proceedings on the Cruzes’ action.

¶ 2 The Cruzes commenced this action for abuse of process¹ following Princeton Insurance Company’s filing of a petition for appointment of á guardian ad litem that sought to supersede the Cruzes’ authority as parents to negotiate a post-trial settlement offer that Princeton made on behalf of its insured, Northeastern Hospital. Defendants Alan S. Gold and Gold, Butkovitz & Robins, P.C., represented Princeton in that process.

¶ 3 In the underlying litigation, reviewed by this Court in Cruz v. Northeastern Hosp., 801 A.2d 602 (Pa.Super.2002), the Cruzes secured a $15,000,000 judgment in favor of their son, Adam Omar Cruz, for injuries he sustained during birth. During our review of this case prior to remand we related the history of the Cruz case as it relates to the litigation now before us. We repeat that history here:

In 1994, Appellants, individually and on behalf of their son, Adam, filed a medical malpractice, action against Northeastern Hospital, Dr. Myung Hyo Shin, and Dr. Robert Cogan, seeking damages for permanent and debilitating injuries Adam sustained when he was born on August 14, 1992. Appellants dropped their individual, claims and, in August 2000, a jury returned a verdict in favor of Adam and against the hospital in the amount of $10,811,431.27.^FN1 Following Appellants’ motion for delay damages, the verdict was molded to ' over $15,000,000. The hospital and Appellants cross-appealed.

Princeton, the hospital’s insurer, retained Attorney Gold of GBR to handle the appeal ánd related settlement negotiations. While the appeal was pending before this Court,^FN2 the parties' began settlement negotiations before a mediator selected by Princeton. This mediator suggested a settlement in the range of $8 to $10 million. Settlement discussions continued through February 2002, but-Appellants rejected Princeton’s offer to settle the case for $7,000,000.

On February 27, 2002, on behalf of his client, Attorney Gold petitioned the court to appoint a guardian ad litem for Adam. The petition alleged in pertinent part:

6. Princeton and the Cruzes have engaged in excessive settlement negotiations with the aid of Abraham Gafni, former judge of the Court of Common Pleas of Philadelphia County as a mediator. The parties have reached an impasse in those negotiations. Princeton Insurance Co. has offered $7,000,000 to the Cruzes. This constitutes sufficient money to support [Adam] for the rest of his life. This money has been turned down.

7. Princeton Insurance Co. believes that a substantial possibility exists that Northeastern Hospital will prevail on the appeal and that the Cruzes may receive no money for [Adam].

8. [Adam’s] medical expenses would then become a burden on the taxpayers of this Commonwealth.

9. [Adam] would not have the opportunity to have the full services that he would if his parents accepted the $7,000,000.

10. Princeton Insurance Co. respectfully requests that this Court appoint a guardian ad litem to evaluate the settlement demand and to represent the interest of [Adam] in this litigation.

11. Princeton believes that the parents have had a substantial disagreement among themselves concerning how to handle this litigation and whether to accept the settlement offer of Princeton Insurance Co. made on behalf of Northeastern Hospital.

12. Further, a potential conflict of interest exists between plaintiffs’ counsel and the interests of the minor client, [Adam], particularly in light of disagreement among his parents with respect to the settlement offer.

13. The appointment of a guardian ad litem will insure that the interest of the child will be protected. The guardian ad litem would pursue the litigation on behalf of [Adam] and evaluate settlement offers.

Petition for Appointment of Guardian Ad Litem For Adam Cruz[.] The trial court denied the petition on March 7, 2002, and, shortly thereafter, Appellants accepted in principle Princeton’s settlement offer of $7,100,000. This offer was ultimately approved by the trial court on September 5, 2002.

On May 22, 2003, Appellants filed a complaint in the instant action for abuse of process against Appellees alleging that, by improperly filing the petition for appointment of a guardian ad litem, Ap-pellees caused them “extreme emotional distress, fear, upset and anxiety that their parental rights could be terminated” and that they “became so fearful of subsequent assaults on their parental rights that they agreed to the settlement offer of $7,000,000 rather than to continue with negotiations.” Complaint, 5/22/03, at 5. On this latter contention, Appellants have since dropped any damages claim that, as a result of the filing of the guardianship petition, they were coerced into prematurely settling the case.^FN3

Appellees filed separate motions for summary judgment, which the trial court granted in separate orders on October 18, 2004. Appellants’ motion for reconsideration was denied, and this timely appeal followed.

Cruz v. Princeton Ins. Co., 925 A.2d 853, 854-856 (Pa.Super.2007).

¶ 4 Following oral argument, a panel of this Court found that the trial court had erred in granting summary judgment, reasoning that the evidence adduced in discovery raised an issue of material fact concerning the extent to which Princeton and its counsel commenced the guardianship action for the improper purpose of forcing the Cruzes to settle the underlying malpractice litigation for less than the amount of the outstanding judgment. See Cruz v. Princeton Ins. Co., 3191 EDA 2004, 3192 EDA 2004 (Pa.Super. March 14, 2006) (withdrawn). Subsequently, however, this Court granted reconsideration en banc and, following Reargument, a Majority of the en banc panel rejected the rationale of the original merits panel, concluding that the evidence did not raise a question of material fact concerning the propriety of Princeton’s use of the guardianship action. Judge Orie Melvin filed a Concurring Opinion agreeing with the Majority’s affirmance of the trial court’s order, but suggesting that regardless of the propriety of Princeton’s motives, the evidence failed to establish a question of material fact concerning whether the Cruzes had sustained emotional harm as a result of the filing of the guardianship action. Id. at 12 (Orie Melvin, J. concurring). Judge (now Justice) Todd dissented, reasoning that the evidence raised questions of material fact concerning both of the disputed elements of the abuse of process claim and asserted that, consequently, the trial court’s order should be reversed and the case remanded for a trial on the issues. Id. at 17 (Todd, J. dissenting).

¶ 5 We rendered our decision on May 30, 2007, following which the Cruzes sought allowance of appeal to the Supreme Court of Pennsylvania. Upon review, the Supreme Court reversed our decision, per curiam, by way of' the following order:

AND NOW, this 29th day of May 2008, . the Petition for Allowance of Appeal is GRANTED and the Superior Court’s decision is REVERSED in part to the extent it holds that there was no genuine issue of material fact regarding whether the use of the process was primarily used for a purpose for which it was not designed. See Wimer v. Pa. Emp. Benefit Trust Fund, [595 Pa. 627] 939 A.2d 843 (Pa.2007); see also McNeil v. Jordan, [586 Pa. 413] 894 A.2d 1260 (Pa.2006). Further, this matter is REMANDED to the Superior Court for consideration of the harm element of McNeil, 894 A.2d at 1275.

Madame. Justice Todd did not participate in the consideration or decision of the matter.

Per Curiam Order, 5/29/08 at 1.

¶ 6 Although issued without Opin-ión, the Supreme Court’s order clearly responds to our prior en banc Opinion, invalidating its conclusion and establishing the law of this case. See Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d 855 (Pa.Super.2004). Consequently, our review may extend only to consideration of whether the evidence of record establishes a genuine issue of material fact surrounding the Cruzes’ claim that they sustained harm as a result of Princeton’s effort to impose a guardian ad litem² Gold, asserting that the evidence does not raise such a question, suggests that the Cruzes sustained only a “transient rub of life,” an injury “[not] serious enough to warrant compensation, although there may be some pain attached.” Brief for Appellees Gold, et al., on Remand at 3 (quoting Van Kirk v. O’Toole, 857 A.2d 183, 185-86 (Pa.Super.2004) (quoting Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516, 518 (1988)). To support this conclusion, Gold cites testimony taken at the depositions of Jacqueline and Oscar Cruz in which the plaintiffs described their mental state upon learning of the guardianship petition as “upset” or “angry,” without elaboration of accompanying physical manifestations;

¶ 7 Gold relies, in addition, upon our decisions enunciating the restrictive “impact rule” in intentional or negligent infliction of emotional distress cases, which limits actionable grounds to’ instances in where the plaintiffs emotional harm resulted from a physical impact to his or her person. Brief for Appellees Gold, et al. on Remand, at 4 (citing, inter alia, Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232, 234 (1996); Brown v. Philadelphia Coll. of Osteopathic Med., 760 A.2d 863, 868 (Pa.Super.2000); Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 28 (Pa.Super.2000); Fewell v. Besner, 444 Pa.Super. 559, 664 A.2d 577, 581-82 (1995); Gregorio v. Ze-luck, 451 Pa.Super. 154, 678 A.2d 810, 814-15 (1996)). Inasmuch as the evidence here fails to establish any impact whatsoever, Gold asserts that we should find no question of material fact concerning the harm element of the Cruzes’ claim and should, consequently, affirm the trial court’s order granting summary judgment. Brief for Appellees Gold, et al. on Remand, at 5. Nevertheless, Gold cites no case law that applies the restrictive “impact rule” to claims of abuse of process, nor have we in our research discerned any.

¶ 8 The Cruzes, asserting that questions of material fact remain for consideration by the factfinder, rely on this Court’s decision in Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super.1998). In Shiner, the Court considered whether the evidence of harm adduced by the plaintiffs was sufficient to sustain judgments entered on claims of 'abuse of process where the plaintiffs failed to produce medical testimony to document the emotional harm they claimed.³ See Shiner, 706 A.2d at 1239. Finding the evidence legally sufficient, we distinguished emotional harm as an element of damages to be assessed in actions for abuse of process from claims like intentional infliction of emotional distress where the emotional harm itself constitutes the cause of action.⁴ See id. (allowing that the “unique' elements” underlying claims for emotional distress have propagated a “problematic and nebulously defined legal right”).

¶ 9 This rationale offers a critical distinction in this case as well. Unlike claims of abuse of process that rely for their impetus upon the filing of a docketed action, petition or other legal modality, causes of action for emotional distress depend on amorphous social constructs, ie., “extreme and outrageous conduct,” to describe causation for equally amorphous injuries, ie., “emotional distress.” Accordingly, restriction of the evidence available to prove a plaintiffs case, requiring medical documentation of the distress alleged through observation of symptoms, offers one of few elements of solid objectivity in an otherwise shifting evidentiary landscape. See Shiner, 706 A.2d at 1239 (quoting Kazatsky, 527 A.2d at 993-94) (“Expert medical testimony is required to establish a claim for intentional infliction of emotional distress. This requirement was imposed in light of the unique elements of that tort, which involves such a problematic and nebulously defined legal right as “to defy principled adjudication.”). Consequently, .we recognized in Shiner that while medical testimony is necessary to establish emotional harm in cases of intentional infliction of emotional distress, it is not necessary in cases of abuse of process. See Shiner, 706 A.2d at 1239 (“This rule [requiring expert medical testimony of emotional distress] is applicable only to that particular tort [i.e., intentional infliction of emotional distress] and does not apply to the instant abuse of process ... claim[ ], which do[es] not involve the same elements.”).

¶ 10 Shiner informs our decision here. Moreover, our Supreme Court’s remand order, which directs that we consider the harm element of the Cruzes claim in light of discussion in McNeil, 894 A.2d at 1275, reinforces our conclusion that neither impact nor medical documentation of distress related symptoms is necessary to the disposition of this abuse of process claim.⁵ In the absence of a need to prove physical impact or to introduce medical testimony to establish emotional harm, the plaintiffs here are at liberty to prove their claims of abuse of process by way of any admissible evidence. Such evidence will be sufficient to raise a question of material fact and thereby survive summary judgment if either direct testimony or circumstantial evidence indicates that the Cruzes suffered emotional harm as a result of Princeton’s filing of the guardianship petition.⁶ See Ludmer v. Nernberg, 433 Pa.Super. 316, 640 A.2d 939, 943-44 (1994) (specifically relying on circumstantial evidence to establish element. of attorney’s “improper motive” in abuse of process case); cf. Fitzpatrick v. Natter, 599 Pa. 465, 961 A.2d 1229, 1242-43 (2008) (reaffirming that circumstantial evidence is entitled to as much weight as direct evidence, and is admissible to prove all elements of a negligence claim).

¶ 11 In this case, the Cruzes cite to their deposition testimony as evidence that they were emotionally harmed. Although devoid of the hyperbole on which the defendant’s would insist, both plaintiffs’ testimony indicates the upset and anger they experienced as the parents of a handicapped child confronted by a truculent adversary in unending litigation. At his deposition, Oscar Cruz testified as follows:

Q: Mr. Cruz, can you tell us what effect, if any, the petition to appoint a guardian had on the decision you and Jacqueline made to settle the case?

A: Well, when that petition, it’s like Princeton would try, you know, do anything to give us pretty much nothing. So, from my understanding they put that petition together to have someone else decide how much should we get or not. So, it got me really upset.

[[Image here]]

Q: Mr. Silverman asked you if you had any counseling from being upset about the [filing] of the petition?

A: Yes.

Q: Were you upset about the petition being filed?

A: Yes. But I didn’t get any counseling for it. I was upset about it.

Q: Were you and Jacqueline both upset about it, to your knowledge?

A: Yes.

Q: What about it upset you?

A: That Princeton would try to go that far to, you know, so they could settle the case, I guess, for less or more, it doesn’t matter. But to have someone else decide instead of us.

(Deposition of Oscar Cruz (Exhibit J) to Response of Plaintiffs to Motion of Defendants Alan S. Gold, Esquire and Gold, Butkovitz & Robins, P.C. for Summary Judgment), 4/26/04, at 138-35. See also id. at 111-112 (“[Oscar Cruz:] This petition, it was public record. And my brother is incarcerated. He read that. I mean, I felt embarrassed. It’s embarrassing for me to have people that we don’t even know stating that we’re not good parents for Adam to decide what he should settle for.”).

¶ 12 In addition, Mr. Cruz offered further detail about his exchange with Jacqueline Nieves Cruz, reflecting the couple’s shared insult:

Q. Tell me what your wife told you about this petition.

A. The exact words or?

Q. If you don’t remember any of the exact words then I want you to tell me what you can remember generally about the conversation. What did she tell you was filed?

A. I will tell you her exact words because I still remember them exact words, them crazy people from the insurance company want to tell us that we can’t take care of our kids.

Id. at 70.

¶ 13 Further, Jacqueline Nieves Cruz reaffirmed those feelings in responses at her own deposition:

Q: Did you — when you did learn the petition had been filed, did you discuss this with Oscar?

A: Yes, I did.

Q: And what was the substance of that discussion with Oscar? What did you discuss?

A: I was upset.

* * *

Q: And what did you tell him?

A: From my understanding, that I was — we were unfit parents.

Q: Okay. And when you say unfit parents, what do you mean by that?

A: I felt like — how can I say this? We wasn’t worthy enough to make decisions for Adam, for his well-being. That’s the way I felt.

[[Image here]]

They were trying to put someone else as Adam’s guardian, because like I said, we were not worthy to make any decisions for Adam.

(Deposition of Jacqueline Nieves Cruz (Exhibit K to Response of Plaintiffs to Motion of Defendants Alan S. Gold, Esquire and Gold, Butkovitz & Robins, P.C. for Summary Judgment), 5/15/04, at OI-OS).

¶ 14 Moreover, Ms. Cruz’s recollection of her distress is reinforced by her understanding of the guardianship petition which, although legally incorrect, reflected her state of mind nevertheless. Ms. Cruz was adamant in her assertion that she understood the objective of the petition to be the termination of her parental rights.

Q. What was your understanding [of the purpose of the guardianship petition] back then?

A. When they filed this?

Q. Yes.

A. The only understanding I had was that I wasn’t, you know — they were ■ trying to take Osear and I or eliminate us from making any major decisions for Adam.

Q. So it was any major decisions for Adam?

A. Any decisions for Adam.

Q. So it was your understanding that they were trying to terminate your ability—

A. My parental rights.

Q. It’s your understanding they were trying to terminate your parental rights?

A. Correct.

Q.. And the guardian would be able to make all the decisions that one would typically — for Adam, that one would typically expect a parent to make?

A. ■ Correct.

Q. Where he went to school, type of medical care he had, all that type of information?

A Correct.

Id. at 94-95. See also id. at 153 (“I still say my parental rights were trying to be taken away.”). Not surprisingly, given Ms. Cruz’s understanding of the proceeding, she related having “anxiety attacks” before accepting the settlement offer. See id. at 145 (‘We were both tired of the back and forth. I was, you know, getting anxiety attacks and was, you know — this was very overwhelming for me.”).

¶ 15 Based solely on the foregoing direct evidence, we are compelled to recognize a question of material fact concerning the extent to which the Cruzés suffered harm as a result of the filing of the guardianship petition. Both parties offered matter-of-fact recollections of anger, upset, embarrassment, and insult that, while not medically documented, are nevertheless direct and consistent. Even were we to conclude to the contrary, however, the circumstances attending the filing of the petition and its aftermath are themselves substantial evidence from which a jury, in its exercise of human experience, could discern significant emotional distress. Peugeot Motors of America, Inc. v. Stout, 310 Pa.Super. 412, 456 A.2d 1002, 1005 (1983) (affirming that a party may establish its entire case on circumstantial evidence). As we have noted, the defendants argue stridently that the filing of the guardianship petition could impose no significant emotional harm. Nevertheless, their suggestion that the Cruzes’ experience regarding the guardianship petition was, or should have been, no more than a “transient rub of life,” ... “[not] serious enough to warrant compensation,” Brief for Appel-lees Gold, et ah, on Remand at 3, removes the matter from context, and as a consequence, falls wide of the mark. We find no guidance in the defendants’ implicit comparisons of the Cruzes’ experiences to a dog bite, id. (citing Van Kirk, 857 A.2d at 185-86), an unpleasant body odor, id. at 4 (citing Gregorio, 678 A.2d at 814-15), or “the minor psychic shock incurred in the course of daily living,” (id. quoting Armstrong v. Paoli Mem. Hosp., 430 Pa.Super. 36, 633 A.2d 605, 608 (1993)). Consequently, we reject the defendants’ assertions on this point as untenable and wholly at odds with human experience. The bond expected between a parent and child, to which we pay deserving attention in cases of custody, adoption, and termination of parental rights, is no less at issue in this litigation. The circumstances establish, as the Cruzes perceived (despite their misunderstanding of the law), that their exercise of the usual duties and prerogatives of parenthood was subject to interference by the awesome power of state. Given those circumstances, human experience offers every reason to suspect the very distress the Cruzes claim. -We conclude accordingly, that the record, viewed in a light most favorable to the Cruzes, gives rise to a question of material fact concerning the harm element of the Cruzes’ abuse of process action, which only the factfinder can resolve. Consequently, we are constrained to remand this matter for disposition at trial.

¶ 16 Order granting summary judgment REVERSED. Case REMANDED for further consideration consistent with this Opinion.

¶ 17 ORIE MELVIN, J. files a dissenting opinion in which FORD ELLIOTT, P.J. and LALLY-GREEN, J. join.

FN1 . The jury found in favor of the physician defendants.

1 . In Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa.Super.2002), this Court defined abuse of process as follows:

"Abuse of process” is defined as "the use of legal process against another primarily to accomplish a purpose for which it is not designed." Shiner [v. Moriarty], 706 A.2d at 1236 (quoting Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 192 (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.

Id. 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. McGee v. Feege, 517 Pa. 247, 259, 535 A.2d 1020, 1026 (1987). 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.

FN2 . On April 17, 2002, this Court affirmed the judgment entered in favor of Appellants. Cruz v. Northeastern Hospital, 801 A.2d 602 (Pa.Super.2002).

FN3 . At en banc oral argument in this matter, Appellants' counsel confirmed that Appellants were no longer-seeking damages related to any coercion to settle the case.

2 . Appellees Alan S. Gold and Gold, Butkevitz & Robins, P.C., are the only, defendants to submit briefs on remand and are thus, presumably the only defendants against which the plaintiffs’ claims remain pending.

3 . Although the Opinion in Shiner does' not describe the evidence adduced in substantial detail, our ruling suggests that the plaintiffs relied on their own recollections of emotional distress.

4 . The tort of intentional infliction of emotional distress is defined by the Restatement Second of Torts on the basis of subjectivity in both cause and effect. Restatement Seconsection 46 establishes the underlying right as follows: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988, 991 (1987) (quoting Restatement (Second) Torts, § 46).

5 . In McNeil, our Supreme Court addressed the statutory claim of Wrongful Use of Civil Proceedings, 42 Pa.C.S. § 8351, popularly known as the Dragonetti Act. While substantially similar to the common law cause of action of abuse of process, a wrongful use action incorporates a different causation element, i.e., the defendant did not have probable cause for his action. Because the causes of action are materially identical in all other respects, however, we interpret the Supreme Court's direction as an indication that, the harm element shall be subject to the same measure of proof in both causes of action.

6 . The Cruzes have dropped their claim of pecuniary loss occasioned by Princeton's filing of die petition.