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PAPARO v. UNITED PARCEL SERVICE

April 28, 1999

NANCY PAPARO, PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC., DEFENDANT.



The opinion of the court was delivered by: Katz, Senior District Judge.

MEMORANDUM & ORDER

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.

Background*fn1

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 applied for 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.

Discussion*fn2

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.

42 Pa.C.S. § 8351(a).

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 defendant's position.


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