United States District Court, Eastern District of Pennsylvania
April 28, 1999
NANCY PAPARO, PLAINTIFF,
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.
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.
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
In Walasavage v. Nationwide Insurance Company, 806 F.2d 465
(3d Cir. 1986), a similar case came before the Third Circuit. The
plaintiff in the wrongful use of process
claim had also been the plaintiff in the underlying product
liability and negligence case. She attempted to bring a wrongful
use of process claim against Nationwide Insurance, which had been
the insurer for Robinson Service & Equipment, Inc., one of the
named defendants in the underlying action. Walasavage argued that
"Robinson's appeals in the state court proceedings did not raise
legitimate defenses or errors, but were taken solely to forestall
Nationwide's inevitable payment of the outstanding balance of the
judgment and afford Nationwide use of the money due during the
course of the appeals." Id. at 466. The district court
dismissed this case for failing to state a claim upon which
relief could be granted, see Walasavage v. Nationwide Ins. Co.,
633 F. Supp. 378 (E.D.Pa. 1986), and the Third Circuit affirmed
Although Walasavage argued that Nationwide had wrongfully
"continued" the underlying action, the Third Circuit rejected
this claim, explaining that "[w]hile the literal language of the
Dragonetti Act might support Walasavage's argument, the statute
cannot be read in a vacuum." Walasavage, 806 F.2d at 467. The
court pointed out that the Act was intended to abolish the common
law rule that there must be an arrest or seizure of property for
an action for malicious use of civil process to lie; the Act also
intended to substitute gross negligence for malice as the
standard for liability. Since there was no indication that the
legislature intended to alter the common law in any other
respect, the court analyzed Walasavage's claim under the common
law as modified by the Dragonetti Act. See id. at 467. Looking
to Pennsylvania common law and predicting the Pennsylvania
Supreme Court's decision, the court stated:
Our research reveals no decisions recognizing that a
malicious use of process claim may be based on the
taking of a frivolous appeal. In addition we have
found only one reported decision recognizing that a
malicious prosecution action may be predicated on the
interposition of a defense. In the face of
substantial contrary authority, we do not believe the
Pennsylvania Supreme Court would recognize such an
action as the one asserted by Walasavage.
Id. at 467-68 (internal citations omitted).*fn3 The court also
referred to the only reported Pennsylvania decision on the
subject, Young v. Sheddy, 35 Pa. D & C.3d 78 (Lycoming Co.
1984), which rejected a claim that the defendant in a quiet title
action violated the Dragonetti Act by defending the suit. See
Walasavage, 806 F.2d at 468. The analysis in that decision is
[A]llowing individuals to be sued under this act for
defending prior actions . . . would place a
considerable burden on the courts by creating a never
ending progression of litigation[,] as well as hav[e]
a chilling effect upon an individual's ability or
willingness to defend a suit for fear that he may
thereby become liable in a second suit. We do not
believe such a result was ever intended.
Young, 35 Pa. D & C.3d at 82; see also Walasavage, 806 F.2d
at 468 (quoting same).
Since the Third Circuit decided Walasavage, the Pennsylvania
Supreme Court has not made any firm ruling on the subject;
however, the decisions of the lower Pennsylvania courts support
the Third Circuit's analysis in Walasavage. While only one
Pennsylvania court seems to have cited Walasavage, it did so
approvingly. In Rosen v. American Bank of Rolla, 426 Pa. Super. 376,
627 A.2d 190 (1993), the Pennsylvania Superior Court
addressed the question of whether a cause of action for wrongful
use of process could be maintained by a non-party witness who was
subpoenaed to appear and give testimony in a legitimate
underlying action. See id. at 191. In holding that it could
not, the court noted that the
essence of the tort of wrongful use of civil
proceedings is the institution of a civil action
for a malicious purpose and without probable cause.
Thus it has been held that the filing of preliminary
objections will not support an action for wrongful
use of a civil proceeding. Finally, it has been held
that a frivolous appeal will not support an action
for wrongful use of a civil proceeding. Walasavage
v. Nationwide Ins. Co., 633 F. Supp. 378 (E.D.Pa.
1986), affirmed, 806 F.2d 465 (3d Cir. 1986). In
all of these cases there was not a wrongful
initiation or continuation of a separate civil action
against the plaintiff.
Id. at 193 (some internal citations, punctuation omitted).
Other Pennsylvania cases also support a restrictive reading of
the statute in this respect. For example, in Neill v. Eberle,
153 Pa.Cmwlth. 181, 620 A.2d 673 (1993), a plaintiff claimed that
a township zoning board wrongfully used civil process when
denying his request for a zoning exception; he also claimed that
the township itself violated the Dragonetti Act by intervening in
his appeal from the denial. See id. at 673-74. The Commonwealth
Court affirmed the trial court's dismissal of these claims,
stating that the intervention in the appeal only "illustrate[d]
the legitimate exercise of the township's statutory and appellate
rights" rather than the "[p]rocurement, initiation or
continuation of civil proceedings against another." Id. at
676. See also Al Hamilton Contracting Co. v. Cowder,
434 Pa. Super. 491, 644 A.2d 188, 191 (1994) (holding that plaintiff
could not bring wrongful use of civil proceedings actions against
individuals who requested that state officials investigate
possible environmental violations by plaintiff because those
private individuals did not bring underlying action; rather, the
state officials did); Pawlowski v. Smorto, 403 Pa. Super. 71,
588 A.2d 36, 39 (1991) (holding that filing preliminary
objections could not be basis for wrongful use of civil
proceedings because they seek to terminate the proceedings);
Holtzman v. Holtzman, 10 Pa. D & C.4th 217 (Dauphin Co. 1991)
(holding that an allegation of fact in an answer to a complaint
cannot be the basis of a wrongful use of civil proceeding
Contrary to plaintiff's suggestion, the Superior Court's
holding in Mi-Lor, Inc. v. DiPentino, 439 Pa. Super. 636,
654 A.2d 1156 (1995), does not support plaintiff's position. It is
true that the Superior Court held that, in some circumstances, a
counterclaim could form the basis of a Dragonetti Act violation
if it was filed for improper purposes. See id. at 1158.*fn5
However, the Superior Court stressed that "an action for the
wrongful use of a counterclaim demands that courts examine such
claims closely, lest a defendant be punished for nothing more
than defending himself or herself against a claim made by
another." Id.; see also Dardovitch v. Haltzman, Civ. A. No.
97-52, 1998 WL 13271, at *8-9 (E.D.Pa. Jan.13, 1998) (rejecting
wrongful use of civil process claim that was based on
counterclaim because, while counterclaim was meritless, it did
not rise to level of tort).
In the present case, the plaintiff claims a wrongful use of
civil process based only upon UPS's defensive actions: there are
no allegations in the complaint or in the plaintiff's response to
the motion to dismiss that UPS did anything but exercise its
rights to contest the granting of unemployment benefits; there
was, for example, no counterclaim. The Pennsylvania process for
obtaining unemployment benefits specifically includes provisions
for employer participation. As the defendant's motion to dismiss
notes, an individual is not eligible for unemployment benefits if
the unemployment is "due to . . . discharge or temporary
suspension from work for willful misconduct connected with . . .
work." 43 Pa.C.S.A. § 802(e). Accordingly, the appeals provisions
require that notice be given to the relevant employer, see 43
Pa.C.S.A. § 821(b), and an employer may file "information in
writing which might raise a question as to the eligibility of the
claimant." Id. at (c)(3). Consequently, the court cannot say
that UPS initiated, procured, or continued a legal proceeding
within the meaning of the statute. To so hold would permit
liability to be imposed in virtually any case in which a defense
Plaintiff alleges nothing more than that UPS defended against
an action for unemployment benefits initiated by the plaintiff.
This cannot form the basis of a claim for wrongful use of civil
proceedings, and the complaint will accordingly be dismissed for
failure to state a claim upon which relief can be granted.
An appropriate order follows.
AND NOW, this day of April, 1999, upon consideration of
Defendant's Motion to Dismiss, and the response thereto, it is
hereby ORDERED that the Motion is GRANTED. The Complaint is
DISMISSED for failure to state a claim upon which relief can be