February 25, 2014
HELENE EVANS, Appellant
JEFFREY FEINMAN AND CONSUELA FEINMAN AND ROBERT M. FIRKSER, ESQUIRE, Appellees
Appeal from the Order entered March 19, 2013, in the Court of Common Pleas of Montgomery County, Civil Division, at No(s): 06-24347
BEFORE: ALLEN, JENKINS, and FITZGERALD, [*] JJ.
Helene Evans ("Appellant") appeals from the trial court's grant of summary judgment in favor of Robert M. Firkser ("Firkser"), Esquire, counsel for Jeffrey and Consuela Feinman, husband and wife ("the Feinmans"), regarding Appellant's claim of wrongful use of civil proceedings against Firkser pursuant to 42 Pa.C.S. § 8351 et seq, also known as the Dragonetti Act. After careful consideration, we affirm.
We glean the following facts from our review of the record. On September 25, 2006, Appellant filed a complaint against the Feinmans and Firkser, alleging that the Feinmans and Firkser had wrongfully pursued an action against Appellant regarding the August 11, 2003 sale of Appellant's home to the Feinmans ("the underlying action").
In the underlying action, the Feinmans alleged that Appellant had failed to disclose defects regarding the home and had mischaracterized the property's zoning. On November 13, 2006, the Feinmans answered Appellant's complaint. On February 9, 2007, Firkser preliminarily objected to Appellant's complaint. On July 31, 2008, Firkser answered Appellant's complaint. On October 7, 2011, the Feinmans filed a suggestion of bankruptcy regarding Jeffrey Feinman, and Appellant's action against the Feinmans was stayed. On October 17, 2011, Firkser moved for summary judgment. On March 19, 2013, the trial court issued an opinion and order ("opinion") granting summary judgment in Firkser's favor. On April 11, 2013, Appellant voluntarily discontinued her action against the Feinmans, and filed a timely notice of appeal. The trial court did not order compliance with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the Trial Court erred in concluding that there was not, at a minimum, a material issue of fact on the Dragonetti Act elements of lack of probable cause or gross negligence and improper purpose as to which a jury could reasonably have ruled in favor of the Appellant?
2.Whether the Trial Court erred in holding that the record could not, as a matter of law, support a finding that [Firkser], in his role as counsel, lacked probable cause to continue prosecuting the Underlining [sic] Action and had the right rely [sic] upon alleged facts received from his client when such "facts" were shown to be untrue such that he knew them to be false.
3. Whether the Trial Court committed error when holding that there was a lack of probable cause to support a wrongful use of civil proceeding claim, but yet failed to analyze or assess whether [Firkser's] conduct constituted gross negligence.
4. Whether the Trial Court erred in failing to consider that improper purpose may be inferred from want of probable cause to maintain or continue the proceeding and, given the 50% contingency fee to which [Firkser] had negotiated with his client, improper purpose was a question for the fact finder.
Appellant's Brief at 4.
Our scope of review… [of summary judgment orders] …is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We 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. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law will summary judgment be entered.
Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of his cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Thus a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Upon appellate review we are not bound by the trial court's conclusions of law, but may reach our own conclusions. The appellate Court may disturb the trial court's order only upon an error of law or an abuse of discretion.
Chris Falcone, Inc. v. Ins. Co. of the State of Pennsylvania, 907 A.2d 631, 635 (Pa.Super. 2006) (internal citation omitted). Additionally, we are mindful that the trial court's interpretation of the Dragonetti Act is a question of law involving statutory construction regarding which our review is de novo. The Betts Industries, Inc. v. Heelan, 33 A.3d 1262 (Pa.Super. 2011).
We address Appellant's four issues collectively, because each issue is based on the singular premise that the trial court erred in granting summary relief in favor of Firkser relative to Appellant's Dragonetti Act claim. The Dragonetti Act provides in pertinent part:
(a) Elements of action.-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)(1)-(2).
Instantly, in granting summary relief in favor of Firkser, the trial court observed:
[Appellant] filed this claim against [Firkser] and his clients under the "Dragonetti Act", 42 Pa C S §§ 8351 – 8354. In order to establish liability under this Act, the Plaintiff must prove that the attorney Defendant acted in a grossly negligent manner or without probable cause and primarily for a purpose other than the adjudication of the claim. There is no dispute that the additional requirement, that the proceedings have terminated in favor of [Appellant], has been met in this case, as the underlying Complaint was dismissed on the basis of Preliminary Objections in June of 2006.
[Appellant] does not dispute the facts established by [Firkser] that at the time he drafted the Complaint and the Amended Complaints, [Firkser] was advised by his client continually that the claims had merit and that his client believed that [Appellant] had lived in the home despite her representations to the contrary, and that his client claimed he would be able to produce evidence contradicting [Appellant's] claims. In addition, [Firkser] had been advised by his client that two expert reports supported the claims. [Appellant] insists that she had not lived in the property for a period of more than 7 years and that the seller's disclosure statement was accurate in representing that she was not aware of the condition of the property. However, [Firkser's] expert crystallizes the question as follows[:]
The question of whether [Appellant] had any actual or constructive knowledge of water intrusion and of the zoning classification of the property was a question of fact that could be determined through legal proceedings."
As the Superior Court has recently explained in Keystone Freight Corp. v. Stricker, 31 A.3d 967 (Pa.Super. 2011), summary judgment in favor of the defendant attorneys was appropriate where they reasonably relied upon their clients' representations.
Trial Court Opinion, 3/19/13, at 1-3.
Based on our review of the record, we agree with the trial court because the record does not reflect that Firkser lacked probable cause or acted with gross negligence in representing the Feinmans in the underlying action.
The Dragonetti Act explains:
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 within his knowledge and information; or
(3) believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.
42 Pa.C.S. § 8352.
The record shows that the Feinmans secured an opinion from a public adjuster, John Hansen, prior to the initiation of the underlying action. Mr. Hansen opined that "the finished basement and sunroom areas have sustained continual water infiltration that has occurred over a period of years. . All of the on going [sic] damage could not have been overlooked by the buildings [sic] previous owner, who should have disclosed to any prospective buyer." Firkser's Brief at 4-5, citing John Hansen's February 5, 2004 Report. This report was echoed by a second public adjuster, Janice Salera, on March 15, 2006. Appellant assails Firkser's reliance on these opinions. However, we have previously determined:
Regarding the liability of an attorney for the wrongful use of civil process, the Superior Court has followed the Restatement (Second) of Torts § 674 comment d (1977), where the law is stated as follows:
"An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see §675); and even if he has no probable cause and is convinced that his client's claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client's claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person."
See: Shaffer v. Stewart, [326 Pa.Super. 125, ] 140-141 [(1984)], 473 A.2d [1017, ] 1020 [(Pa.Super. 1984)].
Lawyers can safely act upon facts stated by their clients. They do not incur liability to third persons for filing civil proceedings when the evidence of those facts is later found not credible by the court or jury whose duty it is to try the case. Any other rule would impair the quality of the representation which a client is entitled to receive from his lawyer.
Meiksin v. Howard Hanna Co., 590 A.2d 1303, 1305, 1307 (Pa.Super. 1991); see also Morris v. DiPaolo, 930 A.2d 500, 505 (Pa.Super. 2007) ("[A]s long as an attorney believes that there is a slight chance that his client's claim will be successful, it is not the attorney's duty to prejudge the case.").
The record before us does not reflect that Firkser wrongly used civil proceedings as delineated by the Dragonetti Act. See 42 Pa.C.S. § 8351(a)(1)-(2). Significantly, neither does the record reflect that Appellant met her statutory burden of proving that Firkser lacked probable cause, or acted with gross negligence in representing the Feinmans in the underlying action. See 42 Pa.C.S. § 8354(3); Meiksin, supra at 1305, citing 52 Am.Jur.2d. Malicious Prosecution § 50 (1970) ("If probable cause is shown to have existed, an absolute defense is established against an action for malicious prosecution, even when express malice is proved."); Keystone Freight Corp. v. Stricker, 31 A.3d 967, 973 (Pa.Super. 2011) (internal citation omitted) ("Gross negligence is defined as the want of even scant care and the failure to exercise even that care which a careless person would use.").
Likewise, the record belies Appellant's contention that there was evidence relative to the underlying action being pursued for an improper purpose. There was no evidence of "any personal animus" by Firkser against Appellant, or that Firkser acted "to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid." See Keystone, supra, at 973; see also Meiksin, supra, at 1305. While Appellant alleges that Firkser's fee was for a 50% contingency -- certainly above the average one-third typically charged in contingency fee cases -- the record is devoid, as Appellant concedes, of any engagement letter memorializing such agreement. See Appellant's Brief at 12. Nonetheless, we are not persuaded that such arrangement precludes the entry of summary relief in Firkser's favor, particularly where Firkser's client, Mr. Feinman, was himself a licensed attorney.
In sum, the record does not reflect that Firkser pursued the underlying action against Appellant without probable cause, or with gross negligence, or for an improper purpose. We therefore affirm the trial court's grant of summary relief in favor of Firkser.