Matthew Weisberg, Weisberg Law

The common law cause of action for wrongful use of civil proceedings has been codified at 42 Pa.C.S.A. Section 8352, et seq. The statute is referred to as the Dragonetti Act.

The tort of wrongful use of civil proceedings is interpreted and applied broadly against those who use legal process as a "tactical weapon to coerce a desired result that is not the legitimate object of the process,"  see Winner Logistics v. Labor & Logistics, Phila. C.C.P. 061002164 (commerce program) (quoting McGee v. Feege, 535 A.2d 1020, 1026 (Pa. 1987)).

A wrongful use of civil proceeding action requires proof that the defendant initiated or continued a civil proceeding against the plaintiff: without probable cause or in a grossly negligent manner; for an improper purpose; and that those proceedings were terminated in favor of the plaintiff.

Probable cause exists if a person who takes part in the procurement, initiation or continuation of civil proceedings against another if he reasonably believes in the existence of the facts upon which the claim is based, and either: reasonably believes that under those facts the claim may be valid under the existing or developing law; believes as an attorney of record, in good faith, that the procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

The reasonableness of an attorney's belief is assessed objectively, as in Bannar v. Miller, 701 A.2d 232, 238 (Pa. Super. 1997).

When there are no material conflicts in evidence, the existence of probable cause is a question of law for the court. However, when facts material to the issue of probable cause is in controversy, a factual dispute exists and the issue becomes one for the fact-finder to resolve as a mixed question of law and fact, as in Broadwater v. Sentner, 725 A.2d 779, 782 (Pa. Super. 1999).

Gross negligence is substantially more than ordinary carelessness, inadvertence, laxity or indifference but less than wanton or reckless behavior. Gross negligence is an action or a failure to do something, a failure to act that grossly deviates from an ordinary standard of care.

Giving the effect to all the words in the statute, the only reasonable reading of Section 8351 is to interpret the "improper purpose" clause as modifying both "in a grossly negligent manner" and the "probable cause" clause. The word "and," which appears in the statute after the clause "without probable cause" is a conjunction connecting each element of the former clause "in a grossly negligent manner or without probable cause" clause to the latter "improper purpose" clause.

The Winner Logistics court also held the legislative history of the Dragonetti Act requires this statutory interpretation because the legislature believed that the terms malice and gross negligence were synonymous. Thus, improper purpose must apply to gross negligence as it does with lack of probable cause.

In Raynor v. D'Annunzio, 205 A.3d 1252 (Pa. Super. 2019), that court held that the sought adjudication of a contempt/sanctions proceedings constitutes "procurement, initiation, or continuation of civil proceedings" as contemplated by the Dragonetti Act.

Raynor evolved from the acrimonious relationship between opposing counsel in Sutch v. Roxborough Memorial Hospital, 142 A.3d 38 (Pa. Super. 2016). In Sutch, Nancy Raynor served as defense counsel while Matthew D'Annunzio was counsel to the plaintiff, Rosalind Sutch.

In Sutch, Raynor was subject to a sanctions/contempt adjudication that was ultimately reversed on appeal. Thereafter, Raynor pursued an action in Dragonetti for that proceeding.

The Pennsylvania Superior Court principally addressed whether "civil proceedings" per Section 8351(a) was sufficiently broad to encompass a proceeding other than an entire lawsuit, i.e., something other than a civil action complaint.

Citing "Black's Law Dictionary" and the judiciary code Raynor argued "proceeding" is defined "not only as a complete remedy, but also as a mere procedural step that is part of a larger action or special proceeding," see "Black's Law Dictionary," 2155 (8^th ed. 2004); 42 Pa. C.S.A. Section 102. Appellees argued contrarily that a civil proceeding can only encompass the initiation of a lawsuit, as in Werner v. Plater-Zyberk, 799 A.2d 776, 792 (Pa. Super. 2002); 1 Pa. C.S.A. Section 1922(1).

The Raynor court held: "The purpose of a civil lawsuit is so that an injured party may be compensated and/or made whole by the party legally responsible for damages and/or injuries.  Further, Section 2503 of the judiciary code entitles a participant to attorney fees for dilatory, obdurate, or vexatious conduct. In that regard, both a civil lawsuit and a motion for contempt requesting sanctions under Section 2503(7) put an individual's basic fundamental right of property in legal jeopardy. Indeed, a civil contempt proceeding, similar to a civil lawsuit, places the burden of proof on the complaining party to establish, by the preponderance of the evidence, that the defendant is in noncompliance with a court order. Much like a civil lawsuit, before holding an individual in civil contempt, 'the court must undertake a rule to show cause; an answer and hearing; a rule absolute; a hearing on the contempt citation; and (5) an adjudication of contempt.'"

The party seeking an adjudication of contempt in requesting sanctions constitutes a procurement, initiation or continuation of a civil proceedings as contemplated by the Dragonetti Act.

In assessing Winner Logistics and Raynor's statutory interpretations: improper purpose is a sub-element required to be proven along with gross negligence or otherwise required to be proven along with lack of probable cause; and a sub-set action (i.e., contempt/sanction proceeding) that bears the earmarks of a civil action but is not an entire lawsuit meets the elements of a civil proceeding.

In this author's view: the Dragonetti Act is so confusing and legislatively poorly drafted to render it unconstitutionally vague. While this author agrees with Winner Logistics but disagrees with Raynor: neither is clear. Aside from the act being the foremost threat in now almost any lawsuit if not a retaliatory counter-action upon loss, it is simply so linguistically twisted that its legislative purpose and strict meaning cannot be clear so to be abided.

If one believes, as does this author, that a statute should be relatively simplistic so that a layman may abide without resorting to an attorney's case law interpretation then one must also find—regardless of judicial interpretations—that the act simply cannot be readily understood to proscribe specific unlawful behaviors and not others.

Aside from its other constitutional challenges, the Dragonetti Act should be judicially voided as unconstitutionally vague notwithstanding Winner Logistics and Raynor's well-reasoned attempt to interpret in part.