Raynor v. D'Annunzio

243 A.3d 41

Nancy K. RAYNOR, Esquire and Raynor & Associates, P.C.

v.Matthew D'ANNUNZIO, Esquire; Klehr Harrison Harvey Branzburg LLP ; William T. Hill, Esquire; Messa & Associates, P.C.; Joseph Messa, Jr., Esquire and Rosalind W. Sutch, as Executrix of the Estate of Rosalind Wilson, Deceased

Appeal of: Messa & Associates, P.C. & Joseph Messa, Jr., Esquire

Nancy K. Raynor, Esquire and Raynor & Associates, P.C.

v.Matthew D'Annunzio, Esquire; Klehr Harrison Harvey Branzburg LLP ; William T. Hill, Esquire; Messa & Associates, P.C.; Joseph Messa, Jr., Esquire and Rosalind W. Sutch, as Executrix of the Estate of Rosalind Wilson, Deceased

Appeal of: Matthew D'Annunzio, Esquire, Klehr Harrison Harvey Branzburg LLP, William T. Hill, Esquire, and Rosalind W. Sutch, as Executrix of the Estate of Rosalind Wilson, Deceased

No. 35 EAP 2019

No. 36 EAP 2019

Supreme Court of Pennsylvania.

Argued: May 27, 2020

Decided: December 22, 2020

OPINION

JUSTICE DOUGHERTY

In these consolidated appeals we examine whether the Superior Court properly determined a request for contempt sanctions against opposing counsel raised in a post-trial motion in a lawsuit where neither counsel was a named party, constitutes actionable "civil proceedings" under the Dragonetti Act, 42 Pa.C.S. §§ 8351 - 8354 (the "Dragonetti Act" or the "Act").¹ For the reasons set forth herein, we conclude the Superior Court erred and reverse.

I. The underlying medical malpractice action

The present appeal arises from a medical malpractice action in which appellees Nancy K. Raynor, Esq. and Raynor and Associates served as defense counsel for Dr. Jeffrey Gellar and Roxborough Emergency Physician Associates (collectively Roxborough). Appellants are the plaintiff in the underlying medical malpractice action, Rosalind W. Sutch, executrix of the estate of Rosalind Wilson (decedent), and her counsel in that lawsuit, Matthew D'Annunzio, Esq., Klehr, Harrison Harvey Branzburg, LLP, William T. Hill, Esq. (collectively, the D'Annunzio appellants) and Messa & Associates, P.C., and Joseph Messa, Jr., Esq. (collectively, the Messa appellants).

In July 2009, Sutch, by and through her counsel, the Messa appellants, filed the medical malpractice action alleging, inter alia , Roxborough failed to obtain a CT scan and timely diagnose decedent's lung cancer. The trial court granted Sutch's pre-trial motion in limine , and by order dated May 16, 2012, defendants were precluded "from presenting any evidence, testimony, and/or argument regarding decedent's smoking history" at trial. Sutch v. Roxborough Mem'l Hosp. , 142 A.3d 38, 45 (Pa. Super. 2016), appeal denied , 640 Pa. 378, 163 A.3d 399 (2016). During trial, Sutch's counsel requested an order from the trial judge directing Raynor to inform defense witnesses of the ban on testimony regarding decedent's smoking history before the witnesses took the stand. The trial judge replied: "Okay. Well, I don't have a response. They know the rules. So I assume — did you talk with them? Maybe you didn't bring that up this morning." Id. The court did not issue the requested order specifically directing Raynor to inform her witnesses of the ban on discussing decedent's smoking history before they took the stand. Id.

On the following day of trial, Raynor questioned the defense's expert witness John J. Kelly, D.O., regarding decedent's treatment by Roxborough. In response to Raynor's question regarding decedent's cardiac risk factors, Kelly stated decedent was a smoker, was hypertensive and had vascular disease. Id. at 47. After Raynor posed several additional questions to Kelly, Sutch's counsel, D'Annunzio, objected to the testimony, and outside the presence of the jury, argued, inter alia, Raynor should be held in contempt for her questioning and failure to comply with the pre-trial preclusion order. Raynor replied she had instructed Kelly not to mention decedent's smoking history, and her question regarding decedent's cardiac risk factors was intended to elicit testimony regarding vascular disease, not smoking. Id. at 49. Kelly testified he did not "remember any discussion ... at all[,]" with Raynor regarding the pre-trial in limine ruling prohibiting testimony related to decedent's smoking, and when asked whether he had a discussion with Raynor that day prior to testifying, he answered "I did have some brief discussion with Ms. Raynor today, but not regarding smoking, no." Id. at 48 ; N.T., 5/31/12 at 112-13.

Plaintiff's counsel Messa asked for a mistrial and/or sanctions against the defense, asserting Raynor acted recklessly, at a minimum, if not intentionally, in asking Kelly about decedent's cardiac risk factors and then lied to the court by stating she informed Kelly about the ban on testimony related to decedent's smoking history. Sutch , 142 A.3d at 50. The trial judge denied the request for a mistrial and instead provided a curative instruction to the jury. Id. at 52. The trial judge informed Raynor, however, that "sanctions [are] something I have to consider." Id . at 50 ; N.T., 5/31/12 at 120. At the end of trial, the jury returned a verdict in favor of Sutch and awarded her $190,000. Sutch , 142 A.3d at 53. Appellants filed post-trial motions seeking a new trial as well as an order holding Raynor in contempt and awarding sanctions in the aggregate amount of counsel fees and costs for the first trial ($1,349,063.67). The court granted the motion for a new trial.²

The trial court thereafter also conducted two days of hearings on the motion for contempt/sanctions.³ The court found Raynor to be in civil contempt and issued an order for sanctions in the amount of $946,195.16 to be divided among appellants as follows: $615,349.50 to D'Annunzio’s law firm, Klehr Harrison Harvey Branzburg, LLP; $160,612.50 to the Messa firm; and $170,235.16 to Sutch. Sutch , 142 A.3d at 62. Raynor and her firm filed an appeal to the Superior Court, and while the appeal was pending, appellants entered judgment on the order for sanctions and issued writs of attachment, executions in attachment and summonses upon various garnishees which effectively froze Raynor's personal and business bank accounts and placed a lien on her home. Pursuant to a properly filed petition, the Superior Court stayed all existing orders of execution and garnishment and any other future proceedings in the case. Sutch , 142 A.3d at 62-63. Ultimately, the Superior Court reversed the contempt order and vacated the sanctions imposed and the judgments taken to enforce the sanctions. Id. at 43, 79. Thereafter, Raynor and her firm commenced the current Dragonetti action against appellants.

II. The Dragonetti Action

A. Trial Court

The complaint filed by Raynor and her firm included three counts: 1) violation of the Dragonetti Act; 2) common law wrongful use of civil proceedings, and; 3) abuse of process. Raynor v. D'Annunzio , 205 A.3d 1252, 1257 (Pa. Super. 2019). The complaint asserted the Superior Court's central holdings in Sutch , 142 A.3d 38, "were 1) Raynor could not have intentionally violated [the trial court's] order to instruct every witness of the prohibition on mentioning smoking immediately before the witness took the stand because no such order existed, and 2) no evidence of record existed to prove that Raynor colluded with Dr. Kelly in an effort to flout the in limine ruling barring testimony about smoking." Raynor , 205 A.3d at 1257, quoting Trial Court Op., 8/29/17 at 5. "The crux of the Complaint is [appellants] knew their requests for sanctions and contempt were wholly unsupported by facts and law, yet they nevertheless pursued sanctions and contempt for the vindictive purpose of destroying Raynor's professional livelihood and personal life." Id., quoting Trial Court Op., 8/29/17, at 6.

The D'Annunzio and Messa appellants filed nearly identical preliminary objections to the complaint, asserting, as relevant here: (1) Raynor and her firm lacked standing to bring a Dragonetti claim because they were not a party to the underlying medical malpractice action; (2) demurrer to the Dragonetti claim because moving for sanctions or contempt does not constitute procurement, initiation or continuation of civil proceedings within the meaning of the Dragonetti Act; (3) demurrer to the Dragonetti claim because probable cause existed to pursue contempt and sanctions post-trial; (4) public policy prohibits a Dragonetti claim to be based solely on the pursuit of contempt and sanctions; (5) demurrer to the wrongful use of civil proceedings claim because such a claim has been subsumed by the Dragonetti Act; and (6) demurrer to the abuse of process claim on statute of limitations grounds and because there is no perversion of the legal process by pursuing a motion for contempt or sanctions. Id. at 1258, citing Trial Court Op., 8/29/17 at 6-7.

The trial court sustained all preliminary objections and dismissed the Dragonetti complaint with prejudice. With respect to the wrongful use of civil proceedings claim, the court noted "the Dragonetti Act is a constitutional statute that subsumes the common law tort of wrongful use of civil proceedings." Trial Court Op., 8/29/17 at 9, citing Matter of Larsen , 532 Pa. 326, 616 A.2d 529, 587 (1992) ("[t]he common law tort of malicious prosecution has been codified and modified as a statutory cause of action") and Villani v. Seibert , 639 Pa. 58, 159 A.3d 478, 491-93 (2017) (Dragonetti Act is not an unconstitutional infringement by legislature on judiciary's power to regulate attorney conduct). The court also dismissed the abuse of process claim, finding appellants’ post-trial motion which requested, in part, sanctions and/or contempt, was a legitimate use of process. Trial Court Op., 8/29/17 at 15-19 ("Essentially, abuse of process is the use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process."), citing , inter alia , McGee v. Feege , 517 Pa. 247, 535 A.2d 1020, 1026 (1987) ; Shaffer v. Stewart , 326 Pa.Super. 135...