The opinion of the court was delivered by: Katz, Senior District Judge.
Before the court is defendant United Parcel Service, Inc.'s,
motion to dismiss plaintiff Nancy Paparo's complaint. Because the
plaintiff's complaint does not state a claim upon which relief
can be granted, the defendant's motion will be granted.
Plaintiff Nancy Paparo filed a complaint against defendant
United Parcel Service, Inc. (UPS), in the Court of Common Pleas
of Delaware County, Pennsylvania, seeking damages from UPS for
wrongful use of civil proceedings under Pennsylvania's so-called
Dragonetti Act, 42 Pa.C.S.A. §§ 8351-8355. According to her
complaint, Ms. Paparo was fired from her position as
international training coordinator at UPS. "Plaintiff was
allegedly fired by UPS for showing favoritism and making racially
discriminatory remarks." Compl. ¶ 4. Ms. Paparo subsequently
and was awarded unemployment benefits. Although UPS did not
respond to requests for information to be considered at the
initial hearing, it appealed the award of benefits to plaintiff.
UPS did not attend the hearing pertaining to that appeal, and Ms.
Paparo was again awarded benefits. UPS again filed an appeal of
the decision, and Ms. Paparo's case was remanded. Ultimately, the
initial decision awarding benefits was affirmed.
Ms. Paparo now alleges that UPS violated the Dragonetti Act by
challenging her unemployment benefits award. UPS maintains that
the Dragonetti Act does not create a cause of action for
"frivolous defense" or "frivolous appeal" and that plaintiff's
case thus must be dismissed for failing to state a claim upon
which relief may be granted.
As is relevant to this case, the Dragonetti Act creates a cause
of action as follows:
A person who takes part in the procurement,
initiation or continuation of civil proceedings
against another is subject to liability to the other
for wrongful use of civil proceedings [if]:
(1) He acts in a grossly negligent manner or
without probable cause and primarily for a purpose
other than that of securing the proper discovery,
joinder of parties or adjudication of the claim in
which the proceedings are based; and
(2) The proceedings have terminated in favor of the
person against whom they are brought.
The Dragonetti Act "permits one who is sued without probable
cause to sue the original plaintiff in turn." Electronic Lab.
Supply v. Cullen, 712 A.2d 304, 309 (Pa.Super. 1998).
Accordingly, to bring an action under this statute, plaintiffs
must allege and prove "(1) that the underlying proceedings were
terminated in their favor; (2) that defendants caused those
proceedings to be instituted without probable cause; and (3) that
the proceedings were instituted for an improper purpose." Bannar
v. Miller, 701 A.2d 232, 238 (Pa.Super. 1997); see also Ludmer
v. Nernberg, 520 Pa. 218, 553 A.2d 924, 926 (1989) (describing
same). As described more thoroughly below, the statute intended
to modify certain aspects of the common law tort of malicious use
of civil process. See Walasavage v. Nationwide Ins. Co.,
806 F.2d 465, 467 (3d Cir. 1986).
The difficulty in the present case stems from the requirement
that the defendant have "procure[d], initiat[ed] or continu[ed]"
the underlying action. UPS argues that Ms. Paparo cannot now sue
for wrongful use of civil process because she was the party that
initiated the underlying action against UPS. The defendant
maintains that the Dragonetti Act does not create any cause of
action based upon "frivolous appeal" or "frivolous defense" and
that such an interpretation would penalize defendants for
exercising their legal and statutory rights to put forth a
defense. Both Third Circuit and Pennsylvania case law supports