(L-R)Josh J.T. Byrne and Alesia S. Sulock of Marshall Dennehey Warner Coleman & Goggin. Courtesy photos
As we have written before, Pennsylvania’s codification of the common law tort of wrongful use of civil proceedings, the Dragonetti Act, does not create a “loser pays” rule. Dragonetti Act plaintiffs bear the heavy burden to prove lack of probable cause or gross negligence, and an improper purpose as to each and every claim in the underlying action. As our Superior Court noted: “when a Pennsylvania court does not find in favor of a claimant, that does not render the claim so suspect that a Dragonetti action should follow.” See Philadelphia Contributionship Insurance v. Wright, 237 A.3d 447 (Pa. Super.), appeal denied, 242 A.3d 914 (Pa. 2020). In Wright, the court rejected an argument that a plaintiff establishes an absence of probable cause merely because the other side lost, stating that such an argument is “repugnant to this court as a matter of policy, this argument fails as a matter of law.”
The existence of probable cause in an underlying action has always been considered in the first instance to be a matter of law for the court to decide. There is a growing Pennsylvania consensus that, absent allegations of fraud, probable cause exists as a matter of law if an underlying action survives attempts by the underlying defendant (Dragonetti plaintiff) to dismiss the underlying action.
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