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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, BROWNSTONE INN, INC., AND POWELL, TRACHTMAN, LOGAN & LIDDLE, A PROFESSIONAL CORPORATION; APPEAL OF: HARRY D. MILLER, III



Appeal from the Order dated February 22, 1995, docketed February 23, 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 AUG 27 1997

In 1956, Harry Miller Jr. began operating a septic business on a farm he and his wife owned in Thornbury Township. In 1975, he 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 township 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 or more 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 one and one-half years. During this time, 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, Harry Miller Jr., Jean Miller, Harry Miller III, and the Brownstone Inn filed a civil suit against GMAC and others. The suit alleged twenty-eight presumed members of the GMAC, as individuals and as members of that association, 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 Millers demanded compensatory damages for loss of income at the Inn and diminution in property value in the amount of $1 million for each count as well as punitive damages in the amount of $1 million 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; the action was later reopened because preliminary objections remained outstanding. In February 1990, the residents served the Millers with interrogatories requesting the factual basis of the allegations in the complaints. The Millers did not respond 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 Jr., Jean Miller, the Brownstone Inn, Inc., Harry D. Miller, III, and the attorney who represented them and his firm. 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, 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 twenty-four appellees $5,000 each; one, David Fulford, received $10,000. Each appellee was awarded punitive damages as follows: $2,000 each against Harry Miller Jr.; $2,000 each against Jean Miller; $100 each against the Brownstone Inn, Inc.; and $10,000 each against Harry Miller III.

All parties filed post-trial motions for relief. Appellees filed a post-trial motion arguing the trial court improperly failed to submit to the jury the issue of punitive damages against the attorney 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; Harry Miller III appeals herein; the attorney and law firm appeal together; and 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.

Harry Miller III presents six issues for our review: (1) whether the trial court erred by finding no probable cause existed for his suits against GMAC and the individual appellees; (2) whether the evidence was insufficient to support the verdict; (3) whether the verdict was against the weight of the evidence; (4) whether the jury instructions on the elements of wrongful use of civil proceedings and civil conspiracy were erroneous; (5) whether the trial court erred by allowing evidence which was irrelevant to the cause of action and prejudicial to Mr. Miller; and (6) whether instructions to the jury on the issue of punitive damages were erroneous.

Appellant first contends he should receive a new trial because probable cause existed as a matter of law under the Dragonetti Act.

The Dragonetti Act permits one who is sued without probable cause to sue the original plaintiff in turn; the latter may defend by showing that probable cause for the original suit did exist. The Act provides the basis upon which an individual will be able to establish probable cause for the original action:

§ 8352. Existence of probable cause.

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:

(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;

(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts ...


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