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[U] Evans v. Feinman

Superior Court of Pennsylvania

February 25, 2014

HELENE EVANS, Appellant
v.
JEFFREY FEINMAN AND CONSUELA FEINMAN AND ROBERT M. FIRKSER, ESQUIRE, Appellees

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

ALLEN, J.

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 ...


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