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IN THE SUPREME COURT OF PENN~'YL VANIA
No. 29 EAP 2014Consolidated with 30 EAP 2014, 31 EAP 2014, 32 EAP 2014 and 33 EAP 2014
Gregory R. Zappala,Plaintiff/Appellant.
v.
Caroselli Beachler McTiernan & Conboy, et al.,Defendants/Appellees.
BRIEF OF AMICUS CURIAETHE PENNSYLVANIA BAR ASSOCIATION
Appeal from the Judgment of Superior CourtEntered on 6/21/12 at No. 2567 EDA 2011
Francis X. O'Connor, EsquireP.O. Box 591300 Main StreetGreat Bend, PA 18821(570) 879-2534President, PBA
OCT ~ 2Q14~
James C. Sargent, EsquireLAMB McERLANE P.C.24 E. Market StreetWest Chester, PA 19381(610)430-5000Chair, Amicus Curiae BriefCommittee
Arthur W. Lefco, EsquireMARSHALL DENNEHEYWARNER COLEMAN & GOGGIN2000 Market Street —Suite 2300Philadelphia, PA 19103(215) 575-2588Vice Chair, Professional LiabilityCommitteeAttorneys for Amicus Curiae,The Pennsylvania Bar Association
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..............................................................ii
STATEMENT OF INTEREST ...........................................................1
FACTUAL BACKGROUND ..............................................................2
THE DRAGONETTI ACT ................................................................3
ARGUMENT.................................................................................4
A. General Principles ...............................................................4B. Analysis Of The Favorable Termination Requirement ..................6C. When Should The Grace Period Terminate? ......................................14
CONCLUSION.............................................................................16
CERTIFICATE OF SERVICE
i
TABLE OF AUTHORITIES
CasesBannar v. Miller,
701 A.2d 242 (Pa. Super. 1997) ............................................................................ 7Bonney v. King,
201 Ill. 47 N.E. 377 (1903) .........................................................10Ca~lsen v. Oakwood Hills,
164 Ill. App. 3d 396, 400 N.E.2d 1107 (1987) ..................................10Crawford v. Theo,
112 Ga. App. 83 S.E.2d 750 (1965) ...............................................10DeLau~entis v. New Haven,
597 A.2d $07 (Conn. 1991) ................................................................................. 10D'Elia v. Folino,
933 A.2d 117 (Pa. Super. 2007) ............................................................................ 7Electronic Laboratory Supply Co. v. Cullen,
712 A.2d 304 (Pa. Super. 1998) .................................................................... 7, 8, 9Frey v. Stoneman,
150 Ariz. 106 P.2d 274 (1986) .....................................................10Hurgren v. Union Mutual Life Ins. Co.,
141 Cal. 585 P. 168 (1904) .........................................................10Jaffe v. Stone,
18 Cal. 2d 146 P.2d 335 (1941) ...................................................10.Ioiner v. Benton Community Bank,
82 Ill. 2d 40 N.E.2d 229 (1980) ......................................... ........10Lackner v. LaCroix,
25 Cal. 3d 747 P.2d 393, 159 Cal. Rptr. 693 (1979) ...........................10Mondello v. Mondello,
161. App. Div. 2d 690, 691 N.Y.S.2d 826 (1990) ...............................10Robinson v. Robinson,
362 Pa. Super. 568 A.2d 367 (1987) ..............................................10Rosenfield v. Pennsylvania Auto Insurance Plan,
636 A.2d 113 8 (Pa. Super. 1994) ........................... ........................................... 7, 8Schenck v. Minolta Office Systems, Inc.,
802 P.2d 1131 (Colo. App. 1990) .................................................10Stanley v. Superior Court of Sacramento County,
130 Cal. App. 3d 460 Cal. Rptr. 878 (1982) .....................................10I~nion Oil of California v. Watson,
468 So. 2d 349 (Fla. App.) .........................................................10Withall v. Capitol Federal Savings of America,
ii
164 Ill. App. 3d 851 518 N.E.2d 328 (1987) ....................................10Wong v. Taber,
422 N.E.2d 1279 (Ind. App. 1981) ................................................10Woodyatt v. Bank of Old York Road,
408 Pa. 257 A.2d 500 (1962) ......................................................10Wynne u. Rosen,
391 Mass. 797 N.E.2d 1348 (1984) ...............................................10Statutes42 Pa. C.S. § 1728(a)(3) ............................................................................................ 142 Pa. C.S.A. § 8351 .......................................................................................3, 7, 11Other AuthoritiesRestatement (Second) of Torts, § 674 ....................................................................... 8Sanctioning Power Available to Pennsylvania Trial Judges in Civil Litigation —With an Emphasis on Pennsylvania's New Rule Addressing Frivolous Filings, Pa.Bar Assn Q. 139, 141 (Oct. 2002) ......................................................13RulesFed. R. Civ. P. 41 ~a)C 1)~A)~i) ................................................................................ 4, 6Fed.R.Civ.P. 41 ~a)~ 1)CB) .....................................................................6Pa.R.C.P. 1036(a) ................................................. ....:...................12In ~e: Recognition of the Pennsylvania Bar' Association as the Association
Representing Members of the Bar of this Commonwealth, No. 198 SupremeCourt Rules Docket No. 1 (June 29, 1998) ...........................................................1
iii
STATEMENT OF INTEREST
The Pennsylvania Bar Association(the "PBA"), founded more than 120
years ago in 1895, is the largest organization representing the lawyers of
Pennsylvania.l The PBA has approximately 28,000 members and is the
association that this Court, as governing authority of the Unified Judicial System,
has designated under 42 Pa. C.S. § 1728(a)(3) as "most broadly representative of
the members of the bar of this Commonwealth." In ~e: Recognition o, f'the
Pennsylvania Bar Association as the Association Representing MembeNs of the Bar
of this Commonwealth, No. 198 Supreme Court Rules Docket No. 1 (June 29,
1998).
The PBA Board of Governors, acting at the recommendation of the
Association's Amicus Curiae Brief Committee, authorizes the participation of the
PBA as amicus curiae in appeals involving significant issues affecting the
Pennsylvania Unified Judicial System. The recommendation to submit this brief
also had the strong support of the PBA's Professional Liability Committee,
consisting primarily of members who practice in the field of lawyer professional
responsibility and liability, for both plaintiffs and defendants, and also present risk
management continuing legal education programs statewide.
1 Based on the recommendation of both the Amicus Committee and theProfessional Liability Committee of the PBA, the PBA Board of Governorsauthorized the filing of this brief by vote of the Board on August 20, 2014.
The PBA does not represent the parochial interests of any particular interest
groups; rather, it speaks on behalf of all lawyers in the Commonwealth of
Pennsylvania. The PBA's mission statement includes the advancement of the
science of jurisprudence and the promotion of the administration of justice. The
PBA is vitally interested in the issues- of professional responsibility and
professional liability that are implicated by the construction of the statute at issue
in these consolidated appeals.
FACTUAL BACKGROUND
Appellees are attorneys who brought lawsuits in federal court on behalf of
children who were affected by the so-called "kids for cash" scandal in Luzerne
County. The first Complaint was filed on February 13, 2009, with the other
lawsuits commencing over the next two months. On July 6, 2009, Appellant
Zappala's counsel in the federal action wrote a letter setting forth, in the words of
the-trial court, "a compelling argument for the dismissal," of Appellant (slip Op. at
4). Appellees, again in the words of the trial court, "quickly and honorably
complied with the request," (id.). On July 25, 2009, Appellees voluntarily
dismissed the action against Zappala without prejudice pursuant to Federal Rule of
Civil Procedure 41(a)(1)(A)(i).
Zappala then sued the attorneys and parties who had named him as a
defendant in the dismissal actions for wrongful use of civil proceedings. The trial
~iJ
court dismissed those actions on preliminary objections, in part on the basis that
the termination of the underlying actions did not satisfy the requirement of
favorable termination under the governing statute. The Superior Court affirmed in
a non-precedential opinion and this appeal followed.
THE DRAGONETTI ACT
In 1980, the legislature codified the common-law tort of wrongful use of
civil process in a statute, which has become known as "the Dragonetti Act", 42 Pa.
C.S.A. § 8351, et. seq. The Dragonetti Act uniquely affects lawyers because the
Act expressly permits and regulates claims against lawyers arising directly from
the practice of law. Indeed, experience suggests that in almost.every Dragonetti
Act case, whether filed in state or federal court pursuant to diversity jurisdiction, a
lawyer is sued for bringing the preceding action, whether or not the client is also
sued. And, of course, generally Dragonetti Act claims are brought by lawyers. and
lawyers generally are involved in the defense. Hence, the specific circumstances
where a Dragonetti claim may lie is of great interest to many Pennsylvania
lawyers. For those reasons, the Pennsylvania Bar Association takes particular
interest in the fair, just, evenhanded and efficient administration and disposition of
such claims.
In the Dragonetti Act, the Legislature imposed a requirement that the
underlying action shall have terminated in favor of the person against whom the
fC'
proceedings were brought. The Legislature did not, however, define or explain
precisely what form of case resolution constituted a favorable termination, leaving
that to this Court.
This Court has granted review on the following question:
Whether the voluntary and unilateral dismissal ofPetitioner without prejudice pursuant to Fed. R. Civ. P.41(a)(1)(A)(i) was a termination of the underlyingproceedings in Petitioner's favor, such that Petitionercould state a claim in a Dragonetti action?
The Pennsylvania Bar Association believes that this Court should take this
opportunity presented to adopt abright-line rule that, for purposes of the
Dragonetti Act, a voluntary discontinuance of proceedings, entered without
consideration or coercion, and prior to the filing of an answer or other responsive
pleading, does not constitute a favorable termination and cannot support a
subsequent lawsuit under the Dragonetti Act.
ARGUMENT
A. General Principles
All Pennsylvania lawyers should agree that they are professionally obligated
to refrain from asserting claims for improper purposes, that all claims should be
based on a good faith belief in the underlying facts alleged in a pleading, and that
all claims should be based on "probable cause" within the meaning of the
Dragonetti Act. All Pennsylvania lawyers should also agree that they should not
be liable if they act promptly and voluntarily to discontinue an action which
demonstrably lacks merit.
Some may argue that a lawyer is obligated thoroughly to investigate the case
before its commencement, and if the lawyer has satisfied the obligation to
investigate a claim, then, the lawyer should have no fear of exposure to a
Dragonetti action even if the underlying suit is not successful. This argument fails
to recognize the realities of law practice. It is not unusual for a lawyer to first learn
of a claim close to the end of the limitations period. Crucial facts may, and often
are, simply unknowable at the time the lawyer must decide whether to sue. Clients
may, intentionally or not, omit, misstate or exaggerate the background facts and
circumstances, particularly where the lawyer or law firm is making an investment
of time and resources in prosecuting a matter on a contingent basis. Often,
material facts will emerge at variance with the client's version of the background
events as the case unfolds. Sometimes these new facts will cause the lawyer to
reevaluate the merits or perceived value of the case or lead the lawyer to conclude
that the initial case evaluation was erroneous and determine to seek to amend
pleadings, withdraw from the representation, or seek the client's consent to
dismissal of the claim.
If the lawyer acts promptly and without compulsion to dismiss the case after
the lawyer learns of materially adverse matters, that should be sufficient to
~~
preclude a subsequent Dragonetti Act claim. Indeed, a contrary rule would likely
impel lawyers to keep their cases alive, in the hope that later factual developments
or a settlement will provide a defense to the eventual Dragonetti claim. This result
should not depend on the circumstance that the underlying case was brought in
federal court and voluntarily dismissed under the federal rule. There is no material
difference between a voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i),2 and
a voluntary discontinuance under Pa.R.C.P. 229 for these purposes. Moreover,
there is no principled distinction between a discontinuance with or without
prejudice for these purposes.
B. Analysis Of The Favorable Termination Requirement
The Dragonetti Act states in pertinent part:
§ 8351. Wrongful Use of Civil Proceedings
(a) Elements of action - - a person who takes part in the procurement,initiation or continuation of civil proceedings against another is subject toliability to the other for wrongful-use of civil proceedings:
1. He acts in a grossly negligent manner or without probable cause andprimarily for a purpose other than that of securing the properdiscovery, joinder of parties or adjudication of the claim in which theproceedings are based; and
Such a dismissal is without prejudice, unless the notice or stipulation providesotherwise, except for repetitive filings. See Fed.R.Civ.P. 41(a)(1)(B). See B.Shannon, Dismissing Federal Rule of Civil Procedure 41, Univ. of Louisville L.Rev. Vol. 52:265, 269 (2014) (reviewing circumstances where dismissals mayhave preclusive effect and noting inconsistencies in the rule language and itsinterpretation).
2. The proceedings have terminated in favor of the person against whomthey are brought.
42 Pa. C.S.A. § 8351(a) (1980).
Our research does not disclose that this Court has ever addressed the
meaning or extent of the favorable termination requirement in the Dragonetti
statute. The Superior Court has addressed the issue on a number of occasions, with
varying results. In Rosenfield v. Pennsylvania Auto Insurance Plan, 636 A.2d
1138 (Pa. Super. 1994), the court stated that whether withdrawal or abandonment
constitutes a final termination of the case in favor of the person against whom the
proceedings are brought depends on the circumstances under which the
proceedings are withdrawn. In Bannar v. Mille, 701 A.2d 242 (Pa. Super. 1997),
the court held that a voluntary discontinuance on the eve of trial, in the face of
imminent defeat, satisfied the favorable termination requirement. In D'Elia v.
Folino, 933 A.2d 117 (Pa. Super. 2007), the court held that withdrawal of
proceedings stemming from a compromise or agreement does not, as a matter of
law, constitute a termination favorable to the party against whom the original
proceedings were brought. In Electronic Labo~ato~y Supply Co. v. Cullen, 712
A.2d 304 (Pa. Super. 1998), the court held that settlement of the underlying dispute
did not constitute favorable termination sufficient to support a Dragonetti claim
against an attorney defendant, even if the attorney defendant had not been party to
7
the settlement and even if the language of the settlement agreement purported to
preserve a party's right to bring a Dragonetti claim against the lawyer.
It appears that the favorable termination prong of the Dragonetti Act was
derived from Restatement (Second) of Torts, § 674. See Rosenfield v.
Pennsylvania Auto Insurance Plan, supra, at 1141 ("Pennsylvania law regarding
the wrongful use of civil proceeding is in conformity with the Restatement of Torts
(Second), § 674.") Electronic Laboratory Supply Co. v. Cullen, supra, at 309
("Looking to Section 674 and its comment for guidance....").
Section 674(b) conditions a claim for wrongful use of civil proceedings on
the termination of the proceedings in favor of the person against whom they are
brought. Comment j to that black letter Restatement section includes as a form of
favorable termination "the withdrawal of the proceedings by the person bringing
them." However, the comment further states that whether a withdrawal or
abandonment constitutes a final termination depends upon the circumstances under
which the proceedings are withdrawn.
The underpinnings of the Dragonetti Act contained in the Restatement
(Second) of Torts, the legislative language of the Dragonetti Act itself, and the
various decisions of lower Pennsylvania courts, all demonstrate that the application
of the favorable termination requirement is far from clear. For example, neither
the statute nor the Restatement addresses settlement or compromise, yet
Pennsylvania lower courts have not hesitated to determine that such a resolution is
not, as a matter of law, a favorable termination sufficient to support a Dragonetti
claim. See, e.g., Electronic Laboratory Supply Co. v. Cullen, supra. A party could
logically argue that a settlement or compromise was favorable to its side, thus
justifying a Dragonetti claim. However, Pennsylvania lower courts have uniformly
refused to allow that argument, in effect, creating a useful bright-line test.
As the favorable termination prong of the Dragonetti Act is taken from
Restatement (Second) of Torts § 674, the analysis from other jurisdictions may be
instructive. The Supreme Court of Connecticut summarized its conclusions as
follows:
Courts have taken three approaches to the "termination"requirement. The first; and most rigid, requires that theaction have gone to judgment resulting in a verdict ofacquittal, in the criminal context, or no liability, in thecivil context. [n. l 1.] The second permits a vexatious suitaction even if the underlying action was merelywithdrawn so long as the plaintiff can demonstrate thatthe withdrawal took place under circumstances creatingan inference that the plaintiff was innocent, in thecriminal context, or not liable, in the civil context. [n.12.]The third approach, while nominally adhering to the"favorable termination" requirement, in the sense that anyoutcome other than a finding of guilt or liability isfavorable to the accused party, permits a maliciousprosecution or vexatious suit action whenever theunderlying proceeding was abandoned or withdrawnwithout consideration, that is, withdrawn without either a
7
plea bargain or a settlement favoring the party originatingthe action. [n.13.]3
DeLauNentis v. New Haven, 597 A.2d 807, 820 (Conn. 1991).
In reaching their holdings, these courts wrestled with the issue of whether
the favorable termination prong should be deemed satisfied if the voluntary
discontinuance is reflective of the merits, or lack thereof, of the underlying
proceedings.
3 Original footnotes from DeLaurentis v. New Haven, 597 A.2d 807, 820 n.l 1-13(Conn. l 991):
n.11 See, e.g.,. Schenck v. Minolta Office Systems, Inc., 802 P.2d 1131 (Colo. App.1990); Bonney v. King, 201 Ill. 47, 50, 66 N.E. 377 (1903); Withall v. CapitolFederal Savings ofAmerica, 164 Ill: App. 3d 851, 855-56, 518 N.E.2d 328 (1987),cent. denied, 119 Ill. 2d 576, 522 N.E.2d 1259 (1988).
n.12 See, e.g., Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274 (1986); Jaffe v.Stone, 18 Cal. 2d 146, 150, 114 P.2d 335 (1941); Stanley v. Superior Court ofSacramento County, 130 Cal. App. 3d 460, 463-64, 181 Cal. Rptr. 878 (1982);Union Oil of California v. Watson, 46$ So. 2d 349, 353-54 (Fla. App.), review
~, denied, 479 So. 2d 119 (Fla. 1985); Carlsen v. Oakwood Hills, 164 Ill. App. 3d396, 400, 517 N.E.2d 1107 (1987), appeal denied, 119 Ill. 2d 554, 522 N.E.2d1241 (1988); Wynne v. Rosen, 391 Mass. 797, 800-801, 464 N.E.2d 1348 (1984);Mondello v. 1Vlondello, 161 App. Div. 2d 690, 691, 555 N.Y.S.2d 826 (1990); 3Restatement (Second) of- Torts § 660, comment (c), and § 674 (b), comment (j).
n.13 See, e.g., Lackner v. LaCroix, 25 Cal. 3d 747, 750, 602 P.2d 393, 159 Cal.Rptr. 693 (1979); Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585, 587, 75 P.168 (1904); Cr~awfo~d v. Theo, 112 Ga. App. 83, 85, 143 S.E.2d 750 (1965) (civilcontext only); Joiner v. Benton Community Bank, 82 Ill. 2d 40, 45, 411 N.E.2d 229(1980); Wong v. Taber, 422 N:E.2d 1279, 1284 (Ind. App. 1981); Woodyatt v.Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962); Robinson v. Robinson,362 Pa. Super. 568, 575, 525 A.2d 367 (1987), appeal dismissed, 518 Pa. 63, 540A.2d 529 (1988).
10
In seeking the correct view under Pennsylvania law, it should be noted that,
in certain key respects, the Dragonetti Act differs materially from the tort of
wrongful use of civil proceedings described in the Restatement. In particular, our
statute is unique in including in the definition of proper purpose, the securing of
proper discovery and joinder of parties. 42 Pa. C.S.A. § 8351(a)(1). Those
particular purposes are not included as proper purposes under Restatement § 674.
In addition, the Restatement omits a critical provision of the Dragonetti Act,
which is particularly applicable to lawyers. In section 8352 (existence of probable
cause), the Dragonetti Act states that a person has probable cause if he reasonably
believes in the existence of the facts upon which the claim is based and:
(3) believes as an attorney of record, in good faith, thathis procurement, initiation or continuation of the civilcause is not intended to merely harass or maliciouslyinjure the opposite party.
The Restatement's formulation of wrongful use of civil proceedings -does not
include this important provision and lirriitation on lawyer liability.
The Pennsylvania Bar Association believes that these differences between
the Dragonetti Act and the Restatement, as well as policy considerations —
including the desirability of fostering the lawyer's obligation diligently to represent
a client, particularly in the face of an impending statute of limitations —militate
strongly in favor of a bright-line rule which would immunize lawyers from
Dragonetti claims if the underlying claims are voluntarily discontinued, without
11
coercion or consideration, at an early stage in the proceedings. The Pennsylvania
lawyer's ability to proceed in good faith to seek proper discovery and joinder of
parties authorizes the initiation and continuation of the proceedings, at least until
facts clearly appear to the attorney to make the claim non-viable. Moreover, a
prompt and voluntary discontinuance is virtually incontrovertible evidence that the
action was not intended to merely harass or maliciously injure the opposite party.
Conversely, counsel for a defendant who believes that his or her client has been
wrongly sued should be encouraged to provide evidence of non-involvement4 or a
brief statement of reasons that the claim has no merit to encourage early voluntary
termination.
A bright-line rule allowing a safe harbor in circumstances where a claim has
been discontinued voluntarily at an early stage, would be consistent with existing
ethical and professional rules. Rule 3.1 (Meritorious Claims and Contentions) of
`~ Affidavits ofnon-involvement are specifically_ authorized in actions againsthealth care providers and construction design professionals (Pa.R.C.P. 1036(a)),but similar evidence ofnon-involvement may be offered in other sorts of cases tosupport that an improvidently initiated claim may be voluntarily discontinued. Ifthe underlying action had been an "action" as defined in Rule .1036 of thePennsylvania Rules of Civil Procedure, i.e., an action involving a constructiondesign professional or an action against a health care provider, the non-involveddefendant would have sought an- early dismissal upon filing an Affidavit ofNoninvolvement. In the present case, Zappala did something similar, just on aninformal basis, by notifying- the lawyers who commenced the action against himthat he was not involved. Lawyers, like the lawyers in this case, who respond tosuch a notice by immediately discontinuing the litigation, ought not besubsequently liable in a Dragonetti action.
12
the Rules of Professional Conduct provides that a lawyer shall not "bring or defend
a proceeding, or assert or controvert an issue therein, unless there is a basis in law
and fact for doing so that is not frivolous...." Indeed, Comment [2] to Rule 3.1
explains that "the filing of an action or defense ... is not frivolous merely because
the facts have not first been fully substantiated or because the lawyer expects to
develop vital- evidence only by discovery."
Further, Rule 1023.1 of the Pennsylvania Rules of Civil Procedure mandates
that a lawyer's signature on a pleading constitutes the lawyer's certification that "it
is not being presented for any improper purpose," that the "claims, defenses, and
other legal contentions therein are warranted by existing law or by anon-frivolous
argument for the extension, modification or reversal of existing law or the
establishment of new law," and that "the factual allegations have evidentiary
support." Where an attorney fails to withdraw or amend a paper filed iri violation
of Rule 1023.1, the state court equivalent of Rule 11 of the Federal Rule of Civil
Procedure, and continues to pursue the demonstrably deficient claim, the trial court
has the authority to impose a variety of sanctions on the attorney, even where the
attorney has not acted in subjective bad faith.5 See Explanatory Comment to
Pa.R.C.P. 1023.1.
5 T. Wilkinson and R. Robbins, Sanctioning Power Available to PennsylvaniaVial Judges in Civil Litigation —With an Emphasis on Pennsylvania's New RuleAddressing Frivolous Filings, Pa. Bar Assn Q. 139, 141 (Oct. 2002).
13
The combined effect of these rules is to adequately protect the public from
frivolous claims, irrespective of the corresponding threat of a Dragonetti action.
We believe that adoption of the proposed bright-line rule will provide greater
guidance to practitioners and to the courts, while having no materially adverse
effect on the prevention of frivolous claims.
The PBA does not propose that the underlying action must have been
decided on its merits in favor of the Dragonetti plaintiff, in order to establish
favorable termination. A voluntary withdrawal from the field of battle, regardless
of its cause, does not change the fact that the Dragonetti plaintiff had been forced
to defend himself or herself in the action which ended without victory by the
underlying plaintiff or by amicable resolution. Of course, the Dragonetti plaintiff
will still be required to surmount the heavy burdens of proving both lack of
probable cause or gross negligence, and improper purpose, in order to prevail,-but
there is no public policy reason to bar the claim on the basis of lack of favorable
termination.
C. When Should The Grace Period Terminate?
On the other hand, we do not suggest that an attorney may escape Dragonetti
liability for a case brought without probable cause and for an improper purpose
simply by discontinuing the action after incurring substantial, time consuming and
expensive proceedings or immediately prior to trial. Such a rule would insulate
14
lawyers from the adverse consequences of their improper conduct, reward
gamesmanship, and fail to provide the underlying defendant who was subject to a
baseless lawsuit with an appropriate remedy.
Many consequences under the Rules of Civil Procedure are related to the
time for filing of an answer or other responsive pleading to a complaint. For
example, _under Pa.R.C.P. 1042, the time to file an answer to a professional
liability complaint is deferred until after the plaintiff has filed and served a
certificate of merit. Under Rule 237, no default judgment may be taken until the
time within which to file a responsive pleading has expired. Moreover, it is
common practice among attorneys to grant extensions of time to answer, move or
otherwise plead in response to a complaint where there is good cause, including
uncertainty about the causes of action alleged or the defenses that might be
proffered. The time in which to file a response to a complaint is well known and
universally relevant.
The Pennsylvania Bar Association suggests that the time within which to file
a responsive pleading to the complaint is an appropriate bright-line to determine
when an action may be voluntarily discontinued without the threat of exposure to a
subsequent Dragonetti claim.6 This bright-line is both clear and flexible; should a
6 We do not mean to suggest that the failure to discontinue an action, before thefiling of a responsive pleading, means that, ipso facto, there has been a favorabletermination. A later dismissal might, under appropriate circumstances, also negate
15
plaintiff s lawyer wish to file an action but preserve the ability to discontinue it
without potential liability, the lawyer may simply offer an open-ended extension of
time to respond to the complaint. Should the defendant wish to pursue a potential
Dragonetti claim, the defendant is free to reject that offer. It will therefore
become, in part, the decision of the parties as to whether a viable Dragonetti claim
will ever be made, advancing the policy often espoused by this Court that disputes
are best resolved by agreement among the parties rather than disposition imposed
on them by court order.
CONCLUSION
The adoption of the recommended bright-line rule would inure to the benefit of all
Pennsylvania lawyers, any of whom may be potential Dragonetti defendants. Such
a rule would benefit Pennsylvania lawyers to the extent that it might limit the
number of unnecessary and inappropriate Dragonetti claims actually brought and
which might be defended under the Association's sponsored professional liability
program. It would benefit civil society in general to the extent that it might limit
the number of repetitive lawsuits about lawsuits which adversely affect the ability
of our judicial system to handle other, more. substantive, claims. It would allow
attorneys to terminate claims voluntarily without fear of Dragonetti liability where
those attorneys might otherwise feel constrained to continue litigation in the hope
the favorable termination requirement, but that question is beyond the scope of thisbrief.
of a later settlement, solely to escape Dragonetti liability. Finally, the bright line
rule strikes a proper balance between the lawyer's responsibility to diligently
represent a client (particularly in the face of an impending statute of limitations or
other constraint) and the right of a defendant who was not in fact involved in the
circumstances giving rise to the plaintiff s claim to be promptly dismissed from a
civil action.
Respectfully submitted,
MARSHALL DENNEHEY WARNERCOLEMA & G GGIN
By:ARTHUR W. LEF O, ESQUIREAttorney for Amic Curiae,The Pennsylvania Bar Association,
LAMB McERLANE P.C.
By:S C. SARGENT, ES UIRE
tt rney for Amicus Curiae,The Pennsylvania Bar Association
17
CERTIFICATE OF SERVICE
I hereby certify that two true and correct copies of the Brief for Amicus, The
Pennsylvania Bar Association, were served on the below listed date, by first class
mail, postage prepaid, to the following addresses:
Richard A. Sprague, EsquireThomas A. Sprague, EsquireBrooke Spigler Cohen, EsquireTheodore J. P. Chylack, EsquireLouis C. Shapiro, EsquireSprague 8i SpragueSuite 400, The Wellington Building135 S. 19th StreetPhiladelphia, PA 19103(215) Sb1-7681Counsel for Appellant
Jeffrey B. McCarron, EsquireDanielle A. Graham, EsquireSwartz Campbell, LLCTwo Liberty Place50 South 16th Street — 28~' F1.Philadelphia, PA 19102(215) 299-4309Counsel for Ca~oselli, Beachle~, McTie~nan, & Conboy, et al.
Paul C. Troy, EsquireKane, Pugh, Knoell, Troy &Kramer, L.L.P.510 Swede StreetNorristown, PA 19401(610) 275-2000Counsel for Cefalo &Associates, et al.
John R. Kenrick, EsquireTimothy S. Coon, EsquireJeffrey P. Lewis, EsquireEckert Seamans Cherin & Mellot, LLC600 Grant Street, 44th FloorPittsburgh, PA 15219Counsel fog Eckert Seamans Che~in &Mellott, LLC, et al.
Joseph John Langkamer, EsquireElizabeth K. Ainslie, EsquireWilbur L. Kipnes, EsquireBenjamin D. Wanger, EsquireShnader Harrison Segal &Lewis LLP1600 Market Street, Suite 3600Philadelphia, PA 19103Counsel for Riker Danzig Scheer Hyland & Pe~retti, LLP, et al.
James R. Kahn, EsquireElit R. Felix, II, EsquireMargolis EdelsteinThe Curtis Center, Suite 400E170 S. Independence Mall WestPhiladelphia, PA 19106Counsel for Richard G. Freeman
Jeffrey R. Lerman, EsquireGlenn F. Rosenblum, EsquireBrian W. Sullivan, EsquireMontgomery, McCracken, Walker &Rhoads, LLP123 South Broad StreetPhiladelphia, PA 19109Counsel for Metzger & Kleiner, et al.
Marc L. Bogutz, EsquireWilliam F. McDevitt, EsquireWilson, Elser, Moskowitz, Edelman &Dicker LLPIndependence Square WestThe Curtis Center, Suite 1130 East601 Walnut StreetPhiladelphia, PA 19106Counsel for Gelb Law Firm, et al.
Joseph Goldberg, EsquireMichael B. Pullano, EsquireWeber, Gallagher, Simpson, Stapleton, Fires &Newby, LLP2000 Market Street, 13th FloorPhiladelphia, PA 19103Counsel fog Anapol Schwartz Weiss Cohan Feldman &Smalley, P. C., et al.
John E. Riley, EsquireAndrew S. Console, EsquireConrad O'Brien PCCenter Square, West Tower1500 Market Street, Suite 3900Philadelphia, PA 19102Counsel fog Law Office of Barry H. Dyller, et al.
Joseph W. Murray, Jr., EsquireVaira &Riley, P.C.1600 Market Street, Suite 2650Philadelphia, PA 19103Counsel, fog Law Office of Barry H. Dylle~, et al.
Robert C. Heim, EsquireArgia J. DiMarco, EsquireTara L. Kelly, EsquireMichael L. Kichline, EsquireElisa T. Wiygul, EsquireDechert LLPCira Centre2929 Arch StreetPhiladelphia, PA 19104Counsel fog Hangley A~onchick Segal & Pudlin, et al.
MARSHALL DENNEHEY WARNERCOLF~IAN & GOGGIN
ARTHUR W. LEFC ESQUIREAttorney for Amicus riae,The Pennsylvania Bar _Association
Dated: October 22, 2014oti~ io2s9~o.~~