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08/27/97 JANE BANNAR v. HARRY D. MILLER

August 27, 1997

JANE BANNAR, BETTY S. CARTER, JOSEPH S. CARTER, REUBEN H. CLOSE, DANIEL S. COLLMANN, JOHN CORRY, CHARLES D. EDWARDS, DAVID H. FULFORD, ROBERT S. FULFORD, WILLIAM T.M. JOHNSON, ELIZA B. LEWIS, LLOYD W. LEWIS, HAROLD F. READ, JR., HELEN READ, H. FRED READ, III, KATHARINE B. SAX, W. PETER SAX, GERALDINE SEYMOUR, STEVEN D. SEYMOUR, JOSEPH D. WALSH, MARILYN P. WALSH, PATRICK L. WALSH, ELAINE WEIMER, GEORGE WEIMER, AND ROBERT J. WILLIAMS
v.
HARRY D. MILLER, JR., JEAN MILLER, HARRY D. MILLER, III, PAUL A. LOGAN AND POWELL, TRACHTMAN, LOGAN & LIDDLE, A PROFESSIONAL CORPORATION, AND BROWNSTONE INN, INC.; APPEAL OF: PAUL A. LOGAN AND POWELL, TRACHTMAN, LOGAN & LIDDLE, A PROFESSIONAL CORP.



Appeal from the Judgment entered August 4, 1995 in the Court of Common Pleas of Delaware County, Civil No. 90-18607. Before MCGOVERN, J.

Before: Eakin, Schiller and Montemuro*, JJ. Opinion BY Eakin, J.

The opinion of the court was delivered by: Eakin

OPINION BY EAKIN, J.:

Filed August 27, 1997

In 1956, appellant Harry Miller Jr. began operating a septic pumping business from a farm he and his wife Jean Miller owned in Thornbury Township. In 1975, Miller sold the business to his son, Harry Miller III who also operated a portable toilet business and Christmas tree farm from the site. The Pennsylvania Department of Environmental Resources ("DER") *fn1 issued him a permit which allowed him to fertilize the trees with the sewage from the septic business.

Harry Miller Jr. and Jean Miller owned a restaurant, the Brownstone Inn, approximately 1/2 mile from the farm, which they operated from 1974 until 1992. Harry Miller Jr. and Harry Miller III stored portable toilets and empty propane tanks on a portion of the Inn's lot.

Neighboring residents expressed concern over the environmental and personal impact of these businesses on the health, safety and welfare of their community as a whole. The residents complained to the township, DER, and the Environmental Protection Agency about foul odors, pollution, and possible violations of the DER permit. DER issued citations to Harry Miller III for violations of the terms of the permit.

On May 15, 1988, one group of residents decided to air their frustration by picketing the Inn. On May 20, 1988, the Millers were granted an injunction limiting the picketing to areas 300 feet from the Inn. In December 1988, the residents also began picketing Harry Miller III's tree farm. An injunction limiting these picketers was granted December 16, 1988.

Picketing continued at the Inn every Sunday for over a year and one-half; the picketers carried signs claiming the Millers were dumping sewage at the site and urging the public not to patronize the Inn. These residents became known as the Grist Mill Area Conservancy ("GMAC").

On December 23, 1988, appellants Paul A. Logan and his firm, Powell, Trachtman, Logan & Liddle filed a civil suit on behalf of their clients the Millers and the Brownstone Inn, naming as defendants twenty-eight presumed members of the GMAC, as individuals and as members of that association, and GMAC itself. The document appellants drafted alleged the defendants were liable to the Millers and the Inn for defamation, injurious falsehood, invasion of privacy, interference with contractual relations, nuisance, outrageous conduct, and conspiracy. The complaint demanded compensatory damages for loss of income at the Inn and diminution in property value in the amount of one million dollars for each count as well as punitive damages in the amount of one million dollars from each individual named in the suit for each count.

In February 1988, defendants filed preliminary objections to strike the damages portion of the complaint as violative of the Pennsylvania Rules of Civil Procedure. In May 1988, default judgment was entered in favor of the Millers and against GMAC for failure to answer the complaint, but the action was later reopened because the preliminary objections remained outstanding. In February 1990, the residents served appellants' clients with interrogatories requesting the factual basis of the allegations in the complaints. There was no response to the interrogatories and on June 15, 1990, the preliminary objections were granted. On July 10, 1990, the Millers agreed to discontinue the suit as to all individual residents, leaving only GMAC in the litigation.

In November 1990, the individuals named as defendants in the Millers' suit sued Harry Miller III, Harry Miller Jr., Jean Miller, the Brownstone Inn, Inc., and the instant appellants who represented them. This action was pursuant to the Dragonetti Act, 42 Pa.C.S. § 8351, and alleged the Millers' suit was filed without probable cause and for a wrongful purpose.

On October 6, 1992, on the eve of trial on the original complaint, the Millers withdrew the remains of their action against GMAC.

A jury trial commenced on the Dragonetti action on June 28, 1993. The jury returned a verdict awarding David Fulford $10,000, and the other twenty-four appellees $5,000 each. Each appellee was also awarded punitive damages against the Millers; the Judge declined to allow punitive damages against appellants herein.

Everyone filed post-trial motions for relief; appellees argued the trial court improperly failed to submit to the jury the issue of punitive damages against Attorney Logan and his firm. By order entered February 22, 1995, the trial court denied all motions for post-trial relief.

Timely appeals were filed with this Court in three different groups; Paul Logan and Powell, Trachtman, Logan & Liddle appeal herein; Harry Miller III appeals alone; Harry Miller Jr., Jean Miller, and the Brownstone Inn, Inc. appeal together. Although each appeal was filed separately, they arise from common facts and share the same original record.

Appellants, Paul S. Logan, Esq. and Powell, Trachtman, Logan & Liddle, P.C., raise seven issues on appeal:

(1) Was the verdict against the evidence and the law?

(2) Did the Trial Court err in submitting the issue of whether attorneys had wrongfully used civil proceedings to the jury and in denying a motion for judgment notwithstanding the verdict where the required elements of the tort had not been established, the absence of probable cause of the attorneys was not established, probable cause existed as a matter of law and was for the Court to decide, and the element of favorable termination was not applicable to the attorneys where they had been instructed by clients to discontinue the action[?]

(3) Did the Trial Court err in instructing the jury on gross negligence as a basis on which to establish the tort of wrongful use of civil proceedings against an attorney where probable cause on the part of the attorney existed and where there was no expert testimony on the issue of gross negligence or other issues involving the Rules of Civil Procedure[?]

(4) Did the Trial Court's jury instructions on wrongful use of civil proceedings by attorneys constitute an erroneous statement of law, thereby warranting the grant of a new trial?

(5) Did the Trial Court err in charging the jury on conspiracy when the claim for conspiracy had been withdrawn and where there was no evidence to support the claim of conspiracy[?]

(6) Did the Trial Court err in instructing the jury on recovery of damages for emotional distress where there was no medical testimony and in admitting evidence of environmental issues and issues of compliance with ordinances during a time period significantly prior to the commencement of the litigation which gave rise to the action for wrongful use of civil proceedings[?]

(7) Did the Trial Court err in not granting a motion for post-trial relief when the verdicts returned established that the jurors did not understand or follow the law concerning the wrongful use of civil proceedings and concerning damages [?]

Appellants' first two issues argue the evidence adduced at trial established probable cause, and was thus insufficient to support the jury's verdict; as such they are entitled to judgment notwithstanding the verdict (judgment n.o.v.). Our standard of review of an order denying judgment n.o.v. is whether, reading the record in the light most favorable to the verdict winner and granting the benefit of every favorable inference, there is sufficient competent evidence to support the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 564 A.2d 1244 (1989). Any conflict in the evidence must be resolved in the verdict winners' favor. Jones v. Constantino, 429 Pa. Super. 73, 631 A.2d 1289 (1993), alloc. denied, 538 Pa. 671, 649 A.2d 673 (1994). Judgment n.o.v. may be granted only in clear cases where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske Olds-Cadillac-GMC, Inc., 413 Pa. Super. 308, 605 A.2d 373 (1992). Upon a thorough review of the record, we find the evidence supports the verdict against appellants.

There was evidence that appellants had represented the Millers in various legal matters since 1981. Appellants were aware of Harry Miller Jr.'s conviction for violating a zoning ordinance, and knew of the numerous citations issued by Thornbury Township and DER. The complaint appellants drafted was directly contrary to this knowledge.

There was evidence appellants filed suit on behalf of a named plaintiff, Darlene Miller, without consulting her. Darlene Miller, whose deposition testimony was read at trial, stated she had never been consulted about filing the lawsuit, about the discontinuation of the suit, or about any damages she may have sustained. Nevertheless, appellants included her, sought damages in her name, and neglected her input when the suit was withdrawn.

There was also testimony about the choice of defendants named in the suit. Particularly, appellants were informed one of the named defendants had not participated in the picketing or other activities; appellants failed to investigate this matter and continued the multi-million dollar suit against this particular defendant. Conversely, appellants did not name some of the other persons who did picket the Millers' properties. The jury could easily ...


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