Raynor v. D'Annunzio

205 A.3d 1252

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

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

No. 3313 EDA 2017

Superior Court of Pennsylvania.

Argued July 18, 2018

Filed March 8, 2019

Reargument Denied May 14, 2019

Clifford E. Haines, Philadelphia, for appellant.

H. Robert Fiebach, Philadelphia, for Harvey, D'Annunzio, Hill, and Sutch, appellees.

Robert S. Tintner, Philadelphia, for Messa & Assoc., and Messa, J., appellees.

BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.

OPINION BY FORD ELLIOTT, P.J.E.:

Nancy K. Raynor, Esq., and Raynor & Associates, P.C. (collectively, "appellants"), appeal from the August 29, 2017 order entered by the Court of Common Pleas of Philadelphia County sustaining preliminary objections filed by Matthew D'Annunzio, Esq.; Klehr Harrison Harvey Branzburg LLP; William T. Hill, Esq.; Messa & Associates, P.C.; Joseph Messa, Jr., Esq.; and Rosalind W. Sutch, as executrix of the Estate of Rosalind Wilson, deceased (collectively, "appellees"), and dismissing appellants' complaint with prejudice. After careful review, we affirm in part, reverse in part, and remand for further proceedings.

The trial court provided the following synopsis of the relevant facts and procedural history:

This case evolves from the acrimonious relationship between opposing counsel in the matter of Sutch v. Roxborough [Mem'l Hosp. ], et al. , July Term 2009 No. 901. In the underlying case, [appellants] served as defense counsel for Dr. Jeffrey Gellar and Roxborough Emergency Physician Associates. [Appellees] were the plaintiff's counsel and plaintiff, respectively, in the underlying action. The Superior Court described the facts underlying the instant case as a "contempt narrative [that] took on a life of its own ... [in which Mr. Messa, and Mr. D'Annunzio] presented their conclusions with transparent venom, bloom, innuendo and increased outrage, refreshed periodically with personal attacks on Ms. Raynor." Sutch v. Roxborough [Mem'l Hosp. ], 142 A.3d 38, 79 (Pa.Super. 2016).

According to the Complaint, [Ms.] Sutch, through her counsel[, Messrs.] D'Annnzio, Hill, and Messa, filed suit against inter alia Roxborough Memorial Hospital, Roxborough Emergency Physician Associates, and Dr. Jeffrey Gellar (collectively referred to as "Roxborough"), alleging Roxborough's failure to obtain a recommended CT scan during a May 3, 2007 emergency room visit resulted in a missed opportunity to diagnose and treat Decedent Rosaline [sic] Wilson's lung cancer. The Sutch trial commenced on May 21, 2012. As a result of a pre-trial ruling on a motion in limine , [Ms.] Raynor and Roxborough were precluded from presenting evidence or argument regarding Rosaline [sic] Wilson's history of smoking. At the start of the defense case, [Messrs.] Messa and D'Annunzio requested an order from the trial judge, the Honorable Paul Panepinto, directing [Ms.] Raynor to inform her witnesses of the ban on smoking immediately before they took the stand. Judge Panepinto responded:

[COURT]: 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.

During the defense case-in-chief, [Ms.] Raynor asked Roxborough's expert, John J. Kelly, D.O., about Ms. Wilson's cardiac risk factors. Dr. Kelly's response included that she was a smoker. Outside of the presence of the jury, [Messrs.] Messa and D'Annunzio objected to Dr. Kelly's testimony because it mentioned Ms. Wilson's smoking history. Judge Panepinto conducted a colloquy of Dr. Kelly, who testified that he did not recall being instructed by [Ms.] Raynor about the pre-trial in limine ruling concerning smoking. Following Judge Panepinto's colloquy with Dr. Kelly, [Mr.] D'Annunzio argued [Ms.] Raynor should be held in contempt for disregarding direct, specific, instructions from the trial court that immediately before taking the stand, each witness should be instructed not to mention smoking. [Ms.] Raynor responded that she had instructed Dr. Kelly not to mention smoking, and her question was not intended to elicit testimony concerning smoking; rather the question was meant to elicit testimony concerning vascular disease and other issues with Ms. Wilson's carotid artery.

The following day, Judge Panepinto held an in camera conference concerning the reference to smoking. At the conference, [Mr.] Messa argued i) [Ms.] Raynor acted intentionally or recklessly in asking the question, ii) [Ms.] Raynor lied to the Court when she stated that she had informed Dr. Kelly about the preclusion of testimony related to smoking, and iii) the Court should grant a mistrial, or in the alternative, grant sanctions such as striking Dr. Kelly's testimony, striking Dr. Geller's entire defense, disqualifying [Ms.] Raynor as counsel, and/or providing a curative instruction. Judge Panepinto denied the request for a mistrial and chose to give a curative instruction to the jury. On June 8, 2012, the jury returned a verdict in favor of [Ms.] Sutch for $ 190,000.

[Ms.] Sutch, through her counsel[, Messrs.] Messa and D'Annunzio, filed post-trial motions seeking a new trial due to Dr. Kelly's smoking reference, and, in the event Judge Panepinto granted the new trial, seeking sanctions against [Ms.] Raynor and her clients in the amount of [counsel] fees and costs incurred in preparing for and attending the original trial. Judge Panepinto granted the request for a new trial.

Trial court opinion, 8/29/17 at 1-4 (footnote and citations to the record omitted).

This court affirmed the trial court's order granting a new trial on November 4, 2013. See Sutch v. Roxborough Mem'l Hosp. , 91 A.3d 1273 (Pa.Super. 2013) (unpublished memorandum).

Subsequently, on March 11, 2014, the trial court ordered a hearing on [appellees'] motion for contempt/sanctions, limited to issues concerning whether sanctions should be imposed. The order stated, "Any evidence with regard to the type of sanctions to be imposed, monetary or otherwise will be held under advisement pending the scheduling of a subsequent hearing if necessary." (See Trial Court Order, filed March 11, 2014, at 1[ ].) On March 14, 2014, Ms. Raynor filed a motion to determine the nature of the sanctions sought by [appellees. Appellees] responded and specified costs and fees under 42 Pa.C.S.A. § 2503(7) for dilatory, obdurate, or vexatious conduct; civil contempt; and direct criminal contempt.

Sutch v. Roxborough Mem'l Hosp. , 142 A.3d 38, 55 (Pa.Super. 2016) (citation omitted). Prior to the hearing, the trial court indicated that it would not take up the matter as a criminal proceeding for criminal contempt. Id. at 56.

On March 27, 2014 and March 31, 2014, Judge Panepinto conducted hearings on whether [Ms.] Raynor should be held in contempt or sanctioned; at those hearings, [Messrs.] Messa and D'Annunzio presented only the notes of testimony from the first Sutch trial. According to [appellants, Messrs.] Messa and D'Annunzio improperly argued, both in briefing and at oral argument, that [Ms.] Raynor deliberately violated an order requiring her to inform all of her witnesses of the ban on discussing [Ms.] Wilson's history of smoking immediately before those witnesses took the stand even though the only order that existed was the order excluding references to smoking. Judge Panepinto issued an Order dated May 2, 2014, and docketed May 5, 2014, that sanctions shall be imposed upon [Ms.] Raynor. [Messrs.] Messa and D'Annunzio, together with their respective firms, filed a brief requesting a total of $ 1,349,063.67 in sanctions. [Appellants] filed a response, challenging the requested amounts. Without holding an additional hearing as to the amount of the sanction, Judge Panepinto issued an order docketed on November 4, 2014 sanctioning [appellants] in the amount of $ 946,195.16, divided as follows: $ 615,349.50 to Klehr Harrison, $ 160,612.50 to the Messa Firm, and $ 170,235.16 to [Ms.] Sutch. [Appellants] filed an appeal to the Superior Court.

On January 8, 2015, while the appeal to the Superior Court was pending, [Messrs.] Messa and D'Annunzio entered judgment on Judge Panepinto's November 4, 2014 Order and the next day issued writs of attachment, executions in attachment, and summons upon various garnishees, which had the effect of freezing [Ms.] Raynor's personal and law firm bank accounts and placing a lien upon [Ms.] Raynor's home. The Superior Court, by Order dated February 18, 2015, stayed all existing execution and garnishment actions, as well as any future proceedings in the case, thereby permitting [appellants] access to their bank accounts. By Opinion dated June 15, 2016, the Superior Court reversed Judge Panepinto's Orders of May 2, 2014 and November 4, 2014, thereby vacating all sanctions and judgments taken thereon. According to the Complaint, the Superior Court's central holdings were 1) [Ms.] Raynor could not have intentionally violated Judge Panepinto'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 [Ms.] Raynor colluded with Dr. Kelly in an effort to flout the in limine ruling barring testimony about smoking. The Supreme Court denied the Petition for Allowance of Appeal.^[1]

[Appellants] commenced the instant case by Writ of Summons on January 3, 2017. The Complaint, filed April 6, 2017, sounds in 1) violation of the Dragonetti Act,^[2] 2) common law wrongful use of civil proceedings, and 3) abuse of process. The crux of the Complaint is [appellees] 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 [Ms.] Raynor's professional

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