The Dragonetti Act, Pennsylvania's codification of the common law tort of wrongful use of civil proceedings, is often threatened in an attempt to curtail litigation that is perceived as meritless. Successful defendants are often tempted to pursue a Dragonetti Act case as a way to recoup litigation expenses. However, wrongful use of civil proceedings does not ask whether the losing party was unable to prove his case but encompasses a three-part standard: whether the underlying action terminated in favor of the party bringing the wrongful use of civil proceedings action, whether the underlying action was brought without probable cause or in a grossly negligent manner, and whether the underlying action was brought primarily for a purpose for which it was not intended. The ultimate success of the underlying action is only relevant to the first element, whether the underlying action terminated in the party's favor.

Attorneys who regularly practice in professional liability are used to seeing wrongful use of civil proceedings actions prosecuted on a much more superficial "loser pays" concept. Often, the plaintiffs counsel in a wrongful use of civil proceedings action was the successful counsel in the underlying action who was not paid, or only partially paid, for their representation. It is clear from the very language of the statute that securing unpaid litigation costs for a successful defendant is not the legislative intent of the Dragonetti Act, nor was it the purpose of wrongful use of civil proceedings under the common law.

Attorneys will frequently attempt to utilize the favorable opinion of the underlying court to argue they have met the burden of establishing the elements of a Dragonetti Act claim. However, our courts have repeatedly recognized that a favorable opinion by an underlying court does not suffice to state a Dragonetti Act claim. The most recent decision upholding this principle is Philadelphia Contributionship Insurance v. Wright, 2020 Pa. Super. Unpub. LEXIS 1584, at *9 (Pa. Super. 2020). Writing for a unanimous panel Judge Daniel McCaffery plainly states: "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." The decision 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." As the court states in Wright, "Section 8352 specifies that an attorney bringing a civil proceeding has probable cause if they reasonably believe the underlying facts, and either reasonably believe that under those facts the claim may be valid under the existing or developing law, or believe in good faith that pressing the claim is not intended to merely harass or maliciously injure the opposite party." The court noted that permitting a party to proceed on a Dragonetti Act claim merely because they succeeded in the underlying action would serve as a disincentive for attorneys to become involved in difficult cases, and "perhaps most seriously, it has the potential to deter civil rights litigation brought on behalf of disenfranchised people seeking justice."

The opinion in Wright is consistent with prior decisions by Pennsylvania courts holding that attorneys are not bound by the events that occurred during the underlying proceedings. Fundamentally, this is because the attorneys were not a party to the underlying proceeding and were not in privity with a party to the underlying action. In Ammon v. McCloskey, 440 Pa. Super. 251, 655 A.2d 549 (1995) the plaintiff asserted that activity during the underlying action was dispositive evidence in the subsequent malpractice action arising out of the underlying proceedings:

At issue in this appeal is whether the defendant lawyer was in privity with the client whom, allegedly, he failed to represent with reasonable care in the prior action. To state the question, however, is also to answer it. In the prior action, the lawyer was a professional representative, who owed complete allegiance to the client, but who had no personal interest in the rights being litigated. His interests were not the same as the client, and he was not in privity with him. Therefore, it cannot be said that the lawyer had a full and fair opportunity to litigate in the prior action the reasonableness or the effect of his conduct in such prior action.

This is also consistent with cases that have held that an underlying court's opinion is not admissible in a subsequent matter to prove the truth of the matter asserted because an underlying court opinion is inadmissible hearsay.

Even after the plaintiff in a Dragonetti Act case proves the underlying action terminated in his favor, the plaintiff still bears the burden to prove an attorney defendant acted without probable cause when initiating the underlying suit. Absence of probable cause is an "indispensable element" of a Dragonetti Act claim. "Lawyers can safely act on the facts stated by their clients."  See Meiksin v. Howard Hanna Co., 590 A.2d 1303, 1307 (Pa. Super. 1991). A lawyer does not have to verify the accuracy of his client's representations. See Hong v. Pelagatti, 2000 Pa. Super. 373, 765 A.2d 1117, 1122 (Pa. Super. 2000) ("such a requirement would work a chilling effect on the attorney-client relationship."). Furthermore, an attorney is not required or expected to prejudge his client's claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of his chances, as in Gentzler v. Atlee, 443 Pa. Super. 128, 660 A.2d 1378, 1382, n.6 (Pa. Super. 1995) quoting comment d of Section 674 of the Restatement (Second) of Torts.

The courts protect the ability of attorneys to bring difficult cases. The courts also provide mechanisms for defendants to recoup the costs of litigation in appropriate circumstances. The Dragonetti Act is not designed for this purpose, but is rather a shield against the most egregious litigation, commenced and continued without probable cause and primarily for a purpose other than securing the proper adjudication of the claim in which the proceedings are based. The Dragonetti Act is not a "loser pays" rule.

Josh J.T. Byrne, a partner in Swartz Campbell's professional liability group in the firm's Philadelphia office, is the chair of the Pennsylvania Bar Association's professional liability committee former co-chair of the Philadelphia Bar Association's professional guidance committee.