Clausi v. Stuck

74 A.3d 242

2013 PA Super 222

Vinny CLAUSI, Appellant

v.Gregory A. STUCK, Michael Boris, and Joseph Jones, Appellees.

Superior Court of Pennsylvania.

Argued July 9, 2013.

Filed Aug. 2, 2013.

Franklin E. Kepner, Jr., Berwick, for appellant.

Douglas N. Engelman, Williamsport, for Boris and Jones, appellees.

Lauren M. Burnette, Harrisburg, for Stuck, appellee.

BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.^*

OPINION BY MUNDY, J.:

Appellant, Vinny Clausi, appeals from the November 2, 2012 order granting the motions for summary judgment filed by Gregory A. Stuck, Esquire (Attorney Stuck), Michael Boris, and Joseph Jones (collectively Appellees), and entering judgment in their favor. After careful review, we affirm.

The trial court summarized the relevant facts and procedural history of this case as follows.

[Appellant] is a Northumberland County Commissioner. [Boris and Jones] were Northumberland County Deputy Sheriffs.

In his complaint, [Appellant] allege[d] that on December 29, 2009, during a public meeting, [Appellant] made various statements regarding the presence of pornography on certain computers located in the Sheriff's Office. [ ] Boris and Jones complained that the statements made by [Appellant] were defamatory to the entire Sheriff's staff, including [ ] Boris and Jones. Shortly after this public meeting, on January 13, 2010, [ ] Boris and Jones were terminated.

[Boris and Jones] retained the legal services of [Attorney] Stuck. [ ] Stuck filed a Writ of Summons on December 30, 2009, against [Appellant] and Northumberland County on behalf of [ ] Boris and Jones and other deputy sheriffs. [Attorney Stuck] then filed a civil complaint on January 13, 2010, against [Appellant] and Northumberland County on behalf of his clients Boris and Jones and other deputies. The “defamation” [c]omplaint alleged claims for defamation of character and sought money damages and an apology.

Following the filing of the defamation complaint, two of the plaintiffs to that action advised [Attorney] Stuck that they no longer wished to be part of the litigation. Subsequently, additional plaintiffs advised [Attorney] Stuck that they no longer wished to pursue litigation against [Appellant] and Northumberland County, since [Appellant] had purportedly apologized to those parties.

Trial Court Opinion, 11/2/12, at 3–4. Boris and Jones subsequently withdrew the complaint alleging defamation and filed an amended complaint. The amended complaint alleged federal civil rights claims, wrongful termination, and claims under the Whistleblower Act against Appellant and other parties. Attorney Stuck's Preliminary Objections, 3/15/12, Exhibit E, at ¶¶ 30–60.

On March 2, 2010, Appellant filed a civil complaint against Appellees. The complaint pled claims of wrongful use of civil proceedings, abuse of process, and intentional infliction of emotional distress. Boris and Jones filed an answer with new matter on March 23, 2010. Appellant filed a reply to Boris and Jones' answer and new matter on April 19, 2010. Attorney Stuck filed his own answer and new matter on April 21, 2010. On June 16, 2010, Boris and Jones filed a motion to amend their answer to add a cross-claim against Attorney Stuck, which the trial court granted on June 30, 2010. Boris and Jones filed their amended answer, new matter, and cross-claim on July 6, 2010.

On January 30, 2012, Appellant filed a motion to amend his complaint pursuant to Pennsylvania Rule of Civil Procedure 1033, which the trial court granted on February 1, 2012. Appellant filed his amended complaint on March 2, 2012. That same day, Attorney Stuck filed preliminary objections to Appellant's amended complaint. Boris and Jones filed their own preliminary objections on March 15, 2012. The trial court held a hearing on all of the preliminary objections on May 29, 2012. On June 6, 2012, the trial court entered an order sustaining all of the preliminary objections and struck Appellant's claim for wrongful use of civil proceedings from his complaint.

On July 30, 2012, Attorney Stuck filed a motion for summary judgment. Boris and Jones also filed a motion for summary judgment on August 1, 2012. After briefing, the trial court heard argument on the motions on October 10, 2012. On November 2, 2012, the trial court entered an order, which granted both motions for summary judgment, entered judgment in favor of Appellees on all of Appellant's remaining claims, and dismissed Boris and Jones' cross-claim. On November 20, 2012, Appellant filed a timely notice of appeal. ¹

On appeal, Appellant raises two issues for our review.

1. [Whether] the trial court erred as a matter of law and/or abused its discretion in granting [Appellees]' demurrer seeking to dismiss [Appellant]'s claim under 42 Pa.C.S.A. [§ ] 8351(a)[?]

2. [Whether] the trial court erred as a matter of law and/or abused its discretion in granting [Appellees]' motion[s] for summary judgment on [Appellant]'s cause-of-action for abuse of process as triable issues of fact and law exist in this matter[?]Appellant's Brief at 5.²

In his first issue, Appellant avers that the trial court erred in granting Appellees' preliminary objections and dismissing his wrongful use of civil proceedings claim with prejudice. Id. at 12–17. We begin by noting our well-settled standard of review.

In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. This Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt.

Conway v. The Cutler Group, Inc., 57 A.3d 155, 157–158 (Pa.Super.2012) (citation omitted).

In the instant case, the trial court dismissed Appellant's claim for wrongful use of civil proceedings, also known as a Dragonetti claim. The statute provides, in relevant part, as follows.

§ 8351. Wrongful use of civil proceedings

(a) Elements of action.—A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:

(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and

(2) The proceedings have terminated in favor of the person against whom they are brought.

...

42 Pa.C.S.A. § 8351(a). Appellant avers that the underlying proceedings terminated in his favor when Boris and Jones withdrew their original complaint against him alleging defamation. Appellant's brief at 12. Appellees counter that Appellant's Dragonetti claim is premature. Although they acknowledge that the original defamation complaint was withdrawn, Boris and Jones filed an amended complaint alleging various other claims against Appellant and other parties. Attorney Stuck's Brief at 11–12; Boris and Jones' Brief at 12–13. Therefore, in Appellees' view, the underlying lawsuit has not terminated in any sense of the word, much less in Appellant's favor. Id.

“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 [sic] the proceedings are brought initially depends on the circumstances under which the proceedings are withdrawn.” D'Elia v. Folino, 933 A.2d 117, 122 (Pa.Super.2007), appeal denied,597 Pa. 706, 948 A.2d 804 (2008), citing Bannar v. Miller, 701 A.2d 242, 247 (Pa.Super.1997), appeal denied,555 Pa. 706, 723 A.2d 1024 (1998). Our Supreme Court has also commented on when a cause of action under the Dragonetti Act has accrued.

The elements required to successfully pursue a cause of action under the Act are the initiation of a lawsuit without probable cause or in a grossly and negligent manner and a favorable outcome in that lawsuit. Although the initiation of a lawsuit is one element of the cause of action, the cause of action does not accrue until all the requirements have been met which includes obtaining a favorable outcome.

Ludmer v. Nernberg, 520 Pa. 218, 553 A.2d 924, 926 (1989). “[A plaintiff]'s [Dragonetti] cause of action d[oes] not accrue until such time as he successfully defeat[s] the [defendant] in his attempts to have the [plaintiff] held legally liable.” Id. This does not occur until the lawsuit is resolved in the trial court and “is final, meaning that [said resolution] has been upheld by the highest appellate court having jurisdiction over the case or that the [resolution] has not been appealed.” D'Elia, supra, citing Ludmer, supra.

In the case sub judice, the parties agree that Boris and Jones initially filed a complaint against Appellant alleging defamation of character. Appellant's Brief at 12; Attorney Stuck's Brief at 10; Boris and Jones' Brief at 12. However, the parties also agree that Boris and Jones filed an amended complaint. Appellant's Brief at 12; Attorney Stuck's Brief at 13; Boris and Jones' Brief at 14. The amended complaint alleged several new claims against Appellant and other parties including federal civil rights claims, wrongful termination, and claims under the Whistleblower Act. Attorney Stuck's Preliminary Objections, 3/15/12, Exhibit E, at ¶¶ 30–60. Appellant acknowledges that the underlying lawsuit is still pending with regard to those claims. Appellant's Brief at 17. However, Appellant argues that...