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[U] Smith v. McClatchy

Superior Court of Pennsylvania

October 1, 2013

WALTER E. SMITH Appellant
v.
WALTER A. MCCLATCHY, JR. Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order September 10, 2012 In the Court of Common Pleas of Delaware County Civil Division at No(s): No. 10-9071

BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.[*]

MEMORANDUM BY OTT, J.

Walter E. Smith appeals from the order entered September 10, 2012, granting summary judgment in favor of Walter A. McClatchy, Jr., Esquire, . and against Smith, in this action seeking damages for the wrongful use of civil proceedings.[1] Smith contends that the trial court erred in granting the motion for summary judgment because a genuine issue of material fact exists as to whether McClatchy instituted a collection action against him without probable cause. Based on the following, we affirm.

This case arises from a prior custody matter in which Smith's former wife, Ellen E. Smith, hired McClatchy to assist her in seeking custody of Smith's and her grandson.[2] On May 6, 2003, Smith's ex-wife signed a retainer agreement with McClatchy. It is undisputed that Smith did not sign the retainer agreement, was neither a named party nor participant in the custody proceedings, and did not speak with McClatchy regarding the custody matter. However, Smith's ex-wife paid McClatchy from the parties' joint checking account, and sought to have the child removed from his mother's home to live with her and Smith.[3] At some point, Smith's ex-wife failed to pay her attorney fees. Ultimately, on March 13, 2006, McClatchy instituted a collection action against both Smith and his ex-wife. After an appeal from an arbitration award, the case proceeded to a nonjury trial in the Delaware County Court of Common Pleas. On June 25, 2009, the Honorable Kathrynann Durham entered a verdict in favor of Smith and against McClatchy.[4]

Thereafter, on July 16, 2010, Smith filed the complaint in the present case against McClatchy, seeking damages based upon the wrongful use of civil proceedings.[5] On July 27, 2012, McClatchy filed a motion for summary judgment, arguing that undisputed facts demonstrated that Smith could not prevail on his claim. Smith filed an answer to McClatchy's motion, and McClatchy filed a reply. On September 10, 2012, the trial court entered an order granting McClatchy's motion for summary judgment. This appeal followed.[6]

On appeal, Smith challenges the order of the trial court granting McClatchy's motion for summary judgment, and, specifically, the court's finding that McClatchy had probable cause to initiate the collection action. When reviewing a motion for summary judgment, we "may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion." Murphy v. Duquesne U. Of The Holy Ghost, 777 A.2d 418, 429 (Pa. 2001), citing Capek v. Devito, 767 A.2d 1047, 1048, n.1 (Pa. 2001).

As with all questions of law, our review is plenary. In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. "Failure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof ... establishes the entitlement of the moving party to judgment as a matter of law." Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. 2011) (citations omitted).

The Dragonetti Act provides that a person who initiates or continues civil proceedings against another may be liable to that other person 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. ยง 8351(a). Pursuant to Section 8352, a person has probable cause to initiate civil proceedings, ...


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