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.

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