JEAN LOUISE VILLANI, INDIVIDUALLY AND IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GUERINO VILLANI, DECEASED
JOHN SEIBERT, JR. AND MARY SEIBERT FREDERICK JOHN SEIBERT, JR. AND MARY SEIBERT
JEAN LOUISE VILLANI AND THOMAS D. SCHNEIDER, ESQUIRE APPEAL OF: FREDERICK JOHN SEIBERT, JR. AND MARY SEIBERT
ARGUED: December 6, 2016
from the Order of the Chester County Court of Common Pleas,
Civil Division, dated 10/5/15 amending the 8/27/15 order at
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
interlocutory direct appeal by permission, we consider
whether a legislative enactment recognizing a cause of action
for wrongful use of civil proceedings infringes upon this
Court's constitutionally prescribed power to regulate the
practice of law, insofar as such wrongful-use actions may be
advanced against attorneys.
underlying litigation arose out of a land-ownership dispute
between Jean Louse Villani, who was a co-plaintiff with her
late husband until his death, and defendants John Seibert,
Jr. and his mother, Mary Seibert ("Appellants").
Appellants prevailed in both an initial quiet title action
and ensuing ejectment proceedings. During the course of this
dispute, the Villanis were represented by Thomas D.
Schneider, Esquire ("Appellee").
Appellants notified Mrs. Villani and Appellee that they
intended to pursue a lawsuit for wrongful use of civil
proceedings based upon Mrs. Villani's and Appellee's
invocation of the judicial process to raise purportedly
groundless claims. In November 2012, Mrs. Villani countered
by commencing her own action seeking a judicial declaration
vindicating her position that she did nothing wrong and bore
no liability to Appellants. Appellants proceeded, as they had
advised that they would do, to file a complaint naming Ms.
Villani and Appellee as defendants. The declaratory judgment
complaint having been lodged in Chester County, but the
ensuing wrongful-use action being filed in Philadelphia, a
decision was made to coordinate the matters in the Chester
interposed preliminary objections to Appellants'
complaint. As is relevant here, he contended that the
statutory scheme embodying a cause of action for wrongful use
of civil proceedings, commonly referred to as the
"Dragonetti Act, " is
unconstitutional. Appellee relied on Article V, Section
10(c) of the Pennsylvania Constitution, which invests in this
Court the power to prescribe general rules "governing
practice, procedure and the conduct of all courts, " as
well as "admission to the bar and to practice law,
" while directing that "[a]ll laws shall be
suspended to the extent that they are inconsistent with rules
prescribed under these provisions." Pa. Const. art. V,
§10(c). He also stressed that this Court has
characterized its constitutional and inherent powers to
supervise the conduct of lawyers as being exclusive. See,
e.g., Pa.R.D.E. 103; Commonwealth v. Stern, 549
Pa. 505, 510, 701 A.2d 568, 570 (1997).
Appellee portrayed the Dragonetti Act as an unconstitutional
incursion by the General Assembly upon the Court's power
under Article V, Section 10(c). Given this asserted defect,
he claimed that attorneys should be immunized from any
liability under these statutory provisions. In support,
Appellee referenced a series of cases in which this Court had
stricken legislative enactments on the basis that those
statutes intruded on the Court's constitutionally
prescribed powers. See Memorandum of Law in Support
of Preliminary Objections in Seibert v. Villani
("Defendant's Memorandum"), No. 2012-09795
(C.P. Chester), at 7-9 (citing Beyers v. Richmond,
594 Pa. 654, 937 A.2d 1082 (2007) (plurality), Shaulis v.
Pa. State Ethics Comm'n, 574 Pa. 680, 833 A.2d 123
(2003), Gmerek v. State Ethics Comm'n, 569 Pa.
579, 807 A.2d 812 (2002) (equally divided Court),
Stern, 549 Pa. 505, 701 A.2d 568, Snyder v.
UCBR, 509 Pa. 438, 502 A.2d 1232 (1985), Wajert v.
State Ethics Comm'n, 491 Pa. 255, 420 A.2d 439
(1980), and In re Splane, 123 Pa. 527, 16 A. 481
also observed that, in defining the contours of liability for
wrongful use of civil proceedings, the Legislature fashioned
a "probable cause" standard that permits a lawyer
acting in good faith to proceed with litigation, where he or
she "reasonably believes that under [the supporting]
facts the claim may be valid under the existing or developing
law." 42 Pa.C.S. §8352(1). According to Appellee,
however, such prescription clashes with the Pennsylvania
Rules of Professional Conduct promulgated by this Court,
which authorize attorneys to advance good faith arguments for
"extension, modification or reversal of
existing law." Pa.R.P.C. §3.1 (emphasis added). It
was his position that the asserted difference "surely
represents an intrusion by the legislature into the exclusive
power of the judiciary that is prohibited under Article V,
Section 10(c)." Defendant's Memorandum at 11.
Appellee took issue with the Dragonetti Act's
incorporation of subjective standards. See, e.g., 42
Pa.C.S. §8352(3) (defining another contour of
"probable cause" as encompassing a good-faith
belief that litigation "is not intended to merely harass
or maliciously injure the opposite party"). He
contrasted such subjectivity with the more objective litmus
established under Rule of Professional Conduct 3.1. Pa.R.P.C.
3.1 ("A lawyer shall not bring or defend a proceeding,
or assert or controvert an issue therein, unless there is
a basis in law and fact for doing so that is not
frivolous, which includes a good faith argument for an
extension, modification or reversal of existing law."
(emphasis added)). Appellee opined that the statute's
focus on subjective motivation "means, as a practical
matter, that summary disposition is exceedingly
difficult." Defendant's Memorandum at 12. He
concluded that, "[o]nce again, the legislature violates
Article V, section 10(c) by purporting to regulate attorney
conduct through different standards than those selected by
the Supreme Court." Id.
similar line of argument, Appellee claimed that the Act's
prescription for monetary damages should be viewed as a
further intrusion into this Court's exclusive province.
In this regard, Appellee explained that the Rules of
Disciplinary Enforcement, also promulgated by this Court,
establish the procedures for addressing violations of the
Rules of Professional Conduct, encompassing all stages from
the investigation of an allegation of inappropriate conduct
to the final disposition of a complaint by this Court, as
well as delineating all available forms of discipline.
See Pa.R.D.E. 204 - 208. Appellee commented that:
"Nowhere do the disciplinary rules permit an opposing
party to seek monetary damages from an attorney."
Defendant's Memorandum at 12. According to Appellee, the
only tribunal authorized to address any and all grievances
against attorneys is the Disciplinary Board, which functions
under the Supreme Court's oversight. See id.
(citing Pa.R.D.E. 205-207). "In short, " he
proclaimed, "the concept of a lawsuit against an
attorney for money damages based on his conduct in a civil
case is repugnant to Article V, section 10(c)."
Defendant's Memorandum at 13; accord id.
("It is for the judiciary to sanction attorneys for
bringing an action that is purportedly baseless or for
engaging in other inappropriate conduct").
response, Appellants defended the Dragonetti Act as
substantive remedial legislation designed, for the benefit of
victims, to redress wrongs committed by those pursuing
frivolous litigation. Appellants explained that it has long
been the law of the Commonwealth that a lawyer may be liable
for tortious conduct committed in his professional capacity.
See Plaintiffs' Memorandum of Law in Opposition
to Preliminary Objections in Seibert, No. 2012-09795
("Plaintiff's Memorandum"), at 5 (citing
Adelman v. Rosenbaum, 133 Pa. Super. 386, 391-92, 3
A.2d 15, 18 (1938), for the proposition that the defendant in
a common law action for malicious use of process "cannot
invoke the plea of privilege as an attorney acting for a
client" because "malicious action is not sheltered
by any privilege"); accord Dietrich Indus., Inc. v.
Abrams, 309 Pa. Super. 202, 208, 455 A.2d 119, 123
(1982) ("An attorney who knowingly prosecutes a
groundless action to accomplish a malicious purpose may be
held accountable in an action for malicious use of
further offered that the Dragonetti Act was fashioned after
Section 674 of the Second Restatement of Torts, which
indicates as follows:
One who takes an active part in the initiation, continuation
or procurement of civil proceedings against another is
subject to liability to the other for wrongful civil
(a) he acts without probable cause, and primarily for a
purpose other than that of securing the proper adjudication
of the claim in which the proceedings are based, and
(b) except when they are ex parte, the proceedings have
terminated in favor of the person against whom they are
Restatement (Second) of Torts §674 (1977). Moreover,
Appellants alluded to comment d to Section 674, which
If [an] attorney acts without probable cause for belief in
the possibility that [a] 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.
Id., cmt. d.
noted that the Superior Court had repeatedly cited and
adopted Section 674 and referenced comment d relative to
actions brought against attorneys, see
Plaintiffs' Memorandum at 6 (citing Gentzler v.
Atlee, 443 Pa. Super. 128, 135 n.6, 660 A.2d 1378, 1382
n.6 (1995), Meiksin v. Howard Hanna Co., 404 Pa.
Super. 417, 420-21, 590 A.2d 1303, 1305 (1991), and
Shaffer v. Stewart, 326 Pa. Super. 135, 140-43, 473
A.2d 1017, 1020-21 (1984)), and that no appellate court had
ever concluded that the Dragonetti Act is unconstitutional.
Additionally, they asserted that "[t]he fact that the
common law claim for wrongful use of civil process was
codified in 1980 does not render the claim
unconstitutional." Id. at 8. According to
Appellants, none of the cases cited by Appellee in which this
Court had declared other statutes to be unconstitutional bore
any relevance, since none pertained to the prescription for
substantive redress for victims considering the harm caused
by a lawyer's tortious conduct.
also differed with Appellee's depiction of the
legislative purpose underlying the Act as being to regulate
the practice of law. Rather, they contended that the primary
objective was to codify the common law cause of action for
malicious prosecution, while adjusting it to eliminate the
requirement of seizure or arrest and substitute gross
negligence for malice as a liability threshold. See
Plaintiffs' Memorandum at 7 (citing Nw. Nat'l
Cas. Co. v. Century III Chevrolet, Inc., 863 F.Supp.
247, 250 (W.D. Pa. 1994)); accord Walsavage v. Nationwide
Ins. Co., 806 F.2d 465, 467 (3d Cir. 1986). See
generally 42 Pa.C.S. §8351(b) ("The arrest or
seizure of the person or property of the plaintiff shall not
be a necessary element for an action brought pursuant to this
to Appellants' position as stated from the outset, the
Dragonetti Act does not conflict with Rule of Professional
Conduct 3.1, which was never intended to govern civil
liability or otherwise grant or curtail remedies to third
parties harmed by an attorney's tortious conduct.
See Plaintiffs' Memorandum at 7-8 (citing the
Scope provision from the Rules of Professional Conduct for
the propositions that "violation of a Rule should not
itself give rise to a cause of action against a lawyer nor
should it create any presumption in such a case that a legal
duty has been breached" and that the rules "are not
designed to be a basis for civil liability"). Along
these lines, Appellants also referenced Maritrans GP Inc.
v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d
1277 (1992), in which this Court chastised the Superior Court
for "badly confus[ing] the relationship between duties
under the rules of ethics and legal rules that create
actionable liability apart from the rules of
ethics." Id. at 255, 602 A.2d at 1284
(emphasis added). In light of this essential distinction
between ethical regulation and substantive remedial laws,
Appellants maintained that the Dragonetti Act
"supplements, but does not interfere with, the operation
of those rules." Plaintiffs' Memorandum at 8.
common pleas court granted Appellee's preliminary
objections grounded on his constitutional challenge to the
Dragonetti Act, for essentially the reasons that he had
advanced. Citing to decisions that Appellee had referenced in
which this Court has suspended statutes per its Article V,
Section 10(c) powers, the county court observed that the
"Supreme Court has long asserted its authority over the
conduct of attorneys." Villani, No. 2012-09795,
slip op. at 4 n.1 (C.P. Chester Aug. 27, 2015). The
court further reasoned that the "Dragonetti Act goes to
the heart of what an attorney is trained and called upon to
do, exercise legal judgment about the existence of probable
cause under the law as it presently exists or is
developing." Id. at 5 n.1. In this regard, the
court of common pleas credited the position that the Act
conflicts with Rule of Professional Conduct 3.1 by adopting a
more restrictive standard and in grounding liability upon
subjective beliefs. See id. ("[T]he legislature
violates Art. V, §10(c) of the Pennsylvania Constitution
by attempting to regulate attorney conduct through standards
other than those selected by the Supreme Court.").
Additionally, the court agreed with Appellee that the
imposition of monetary damages under the Act, see 42
Pa.C.S. §8353, represented a further transgression,
since no disciplinary rule promulgated by this Court so
provides. The court of common pleas concluded, again,
essentially echoing Appellee's arguments:
The only tribunal authorized by the Supreme Court to address
grievances against an attorney is the Disciplinary Board.
Pa.R.D.E. 205. The concept of a lawsuit against an attorney
for money damages based on how a civil case is conducted is
repugnant to the system of discipline established by the
Supreme Court pursuant to Art. V, §10(c) of the
* * *
For the reasons stated, the Dragonetti Act is a legislative
attempt to intrude upon the Supreme Court's exclusive
authority to regulate the conduct of attorneys in the
practice of law. It is for the judiciary to sanction lawyers
for bringing actions that are baseless or for otherwise
engaging in inappropriate conduct. The Dragonetti Act, as it
pertains to lawyers, is unconstitutional and unenforceable.
Id. at 6-7 n.1.
sought permission to appeal on an interlocutory basis,
initially in the Superior Court, which was granted after the
proceedings were transferred to this Court. See 42
Pa.C.S. §722(7) (vesting exclusive original appellate
jurisdiction in the Supreme Court over a final order holding
a Pennsylvania statute unconstitutional). Our review of a
challenge to the constitutionality of a duly enacted statute
is plenary. See, e.g., Commonwealth v.
Hopkins, 632 Pa. 36, 49, 117 A.3d 247, 255 (2015).
Appellants maintain their core contention that the Dragonetti
Act constitutes a substantive remedial law designed to
provide an essential remedy to third parties harmed by
abusive litigation, and not a misguided effort by the General
Assembly to usurp this Court's regulatory power over
supplement this position with a number of observations and
arguments that they did not specifically present to the
county court. In addition to referencing cases from the
Superior Court, Appellants relate that this Court has
acknowledged the Dragonetti Act on several occasions.
See Brief for Appellants at 23 (citing Stone
Crushed P'ship v. Kassab Archbold Jackson &
O'Brien, 589 Pa. 296, 299 n.1, 908 A.2d 875, 877 n.1
(2006), and McNeil v. Jordan, 586 Pa. 413, 438-39,
894 A.2d 1260, 1275 (2006)). In the McNeil decision,
Appellants elaborate, this Court found that the Dragonetti
Act served as a useful aid in interpreting the Rules of Civil
Procedure governing pre-complaint discovery. See
McNeil, 586 Pa. at 438-39, 894 A.2d at 1275. From this,
Appellants draw the conclusion that "the Dragonetti Act
comports entirely with the duty of the litigant, whether
party or attorney, to demonstrate good faith and probable
cause 'in the procurement, initiation or continuation of
civil proceedings' and to conduct discovery in conformity
with these basic principles." Brief for Appellants at
26- 27 (quoting 42 Pa.C.S. §8351(a)); see also
id. at 27 ("In other words, this Court has extolled
the Dragonetti Act, which codified centuries of common law,
as a necessary and appropriate basis for relief for victims
of abusive litigation conduct.").
Appellants explain that this Court previously considered the
constitutionality of a segment of the Dragonetti Act, at
least, when it suspended its provision for attorney
certifications and civil penalties for violations.
See Pa.R.C.P. No. 1023.1(e) (reflecting the
suspension of 42 Pa.C.S. §8355). According to
Appellants, by suspending Section 8355, while leaving intact
the remaining sections of the Act, this Court "tacitly
endorsed Sections 8351 through 8354 as constitutional."
Brief for Appellants at 28. Appellants also highlight the
explanatory note to Rule 1023.1, referencing the Act as
providing "additional relief from dilatory or frivolous
proceedings." Pa.R.C.P. No. 1023.1, Note; see
Brief for Appellants at 29 ("The explanatory comment to
Rule of Civil Procedure 1023.1, which refers directly to the
Dragonetti Act as a viable cause of action, is further
evidence that the Supreme Court has for several decades
approved of the Dragonetti Act as a supplemental remedy for
victims of frivolous civil proceedings.").
additionally argue that Rule 1023.1 sanctions do not
adequately compensate the victims of frivolous claims. In
this regard, Appellants quote Werner v.
Plater-Zyberk, 799 A.2d 776 (Pa. Super. 2002), as
[The Dragonetti Act defendant] argue[s] that [the
plaintiff's] interests would be vindicated adequately via
sanctions imposed by the federal district court. However, the
damages [the plaintiff] seeks are distinct from the various
types of penalties that may be imposed by a court as
sanctions against a tortfeasor. Sanctions, including monetary
sanctions paid to an adversary in the form of fees or costs,
address the interests of the court and not those of the
individual. A litigant cannot rely on a sanction motion to
seek compensation for every injury that the sanctionable
conduct produces. Rather, an injured party must request tort
damages to protect his personal interest in being free from
unreasonable interference with his person and property.
* * *
The main objective of Rule 11 is not to reward parties who
are victimized by litigation; it is to deter baseless filings
and curb abuses. While imposing monetary sanctions under Rule
11 may confer a financial benefit on a victimized litigant,
this is merely an incidental effect on the substantive rights
thereby implicated. Simply put, Rule 11 sanctions cannot
include consequential damages and thus are not a substitute
for tort damages. In light of the foregoing, we conclude that
[the plaintiff's] right to seek tort damages for his
alleged injuries exists independently of, and in addition to,
any rights he might possess to petition for sanctions from
the federal district court . . ..
Id. at 784-85 (citations omitted); accord
Perelman v. Perelman, 125 A.3d 1259, 1269-72 (Pa. Super.
further take issue with the distinction drawn by the common
pleas court and Appellee between the Dragonetti Act's
probable cause requirement and the standard set forth in Rule
of Professional Conduct 3.1. In this regard, Appellants again
cite McNeil as clarifying that "the term
'probable cause' is sufficiently well defined and
understood in Pennsylvania law to ensure an objective,
unified standard . . .." McNeil, 586 Pa. at
438, 894 A.2d at 1275. Furthermore, Appellants explain that
in the decades throughout which the Dragonetti Act has been
in existence, no Pennsylvania appellate court has ever
interpreted the enactment to require that the term
"developing law, " as it appears in the enumeration
of the probable cause standard set forth in Section 8352(1),
should not include an argument for extension, modification or
reversal of exiting law. See Brief for Appellants at
34 ("What, after all, is a 'developing law' if
not a law that is the subject of legal argument and debate,
including debate over the extension, modification or reversal
of existing law?").
terms of the subjective-objective distinction drawn by the
county court and Appellee, Appellants asserts that this rests
on a misinterpretation of Rule of Professional Conduct 3.1,
which recognizes the necessity of "good faith" in
argumentation. Pa.R.P.C. 3.1. Appellants also posit:
Whether charged with a violation of [Rule] 3.1 or a violation
of the Dragonetti Act, an attorney would defend with the same
evidence upon which the attorney based his or her good faith
belief that there was a basis in law and fact to bring or
defend the underlying civil proceeding. In either case, the
finder of fact would be charged with determining whether the
lawyer's belief was objectively reasonable,
i.e., whether the lawyer had acted in good faith by
relying upon creditable facts and a non-frivolous legal
argument for purposes of probable cause to pursue a claim.
Brief for Appellants at 35. In this line of argument,
Appellants note that the governing standards, as they have
developed in the decisional law, are highly deferential
relative to attorney judgment. See, e.g.,
Perelman, 125 A.3d at 1264 ("Insofar as
attorney liability is concerned, 'as long as an attorney
believes that there is a slight chance that his client's
claims will be successful, it is not the attorney's duty
to prejudice the case.'" (quoting Morris v.
DiPaolo, 930 A.2d 500, 505 (Pa. Super. 2007))). To the
degree that an assessment of a lawyer's beliefs is
necessary, Appellants do not agree with the common pleas
court and Appellee that this unnecessarily complicates the
summary judgment process.
also relate that there are other legislative remedial schemes
that operate to authorize compensation to victims of
wrongful, injurious acts committed by attorneys. For example,
Appellants reference the Loan Interest and Protection Law,
which imposes civil liability for
collection of interest or charges in excess of those
otherwise permitted under the enactment. See 41 P.S.
§502. They indicate that this Court recently confirmed,
as a matter of statutory interpretation, that attorneys are
not excluded from the category of persons subject to
liability under the act. See Glover v. Udren Law Offices,
___ P.C., Pa.___, ___, 139 A.3d 195, 200 (2016).
Appellants draw supportive significance from the absence of
any mention, in Glover, of a conflict between the
enactment under review and Article V, Section 10(c) of the
Appellants explain that this Court previously has rejected
constitutional challenges to other statutes that impose
ethical and professional requirements upon groups that
include attorneys. See Maunus v. State Ethics
Comm'n, 518 Pa. 592, 544 A.2d 1324 (1988)
(disapproving an attack upon an Ethics Act requirement for
all employees of the Pennsylvania Liquor Control Board, which
included attorney-employees, to file statements of financial
interest). Appellants highlight the Maunus
Court's observations that: the challenged enactment was
not targeted solely at lawyers; the statute did not impose a
duty upon every attorney admitted to practice law in the
Commonwealth; and the duty imposed was not inconsistent with
the professional and ethical obligations arising from
directives of this Court. See id. at 600, 544 A.2d
at 1328. Indeed, responding to the assertions of the county
court and Appellee that the imposition of civil liability
upon attorneys is repugnant, Appellants express the contrary
position that "immunization of lawyers who have engaged
in the wrongful use of civil proceedings is repugnant."
Brief for Appellants at 44.
support of Appellants, amicus curiae Nicholas O.
Brown -- who is a plaintiff in a pending Dragonetti action
lodged against an attorney-defendant -- invokes Article I,
Section 11 of the Pennsylvania Constitution. See Pa.
Const. art. I, §11 ("All courts shall be open; and
every man for an injury done him in his lands, goods, person
or reputation shall have remedy by due course of law . .
.."). Amicus views the form of lawyer immunity
envisioned by Appellee to be fundamentally inconsistent with
this constitutionally prescribed right to a remedy.
Furthermore, he believes that nothing in Article V, Section
10(c) was ever intended to invalidate the Legislature's
core power to fashion substantive law, inter alia,
by compensating persons harmed by abusive and frivolous
for his part, opens his brief with an extensive array of
waiver-based arguments, mainly contending that, since
Appellants failed to present most of the arguments advanced
in their appellate brief during the course of the proceedings
in the common pleas court, those are unavailable for this
Court's present review. For example, Appellee asserts
that Appellants failed to reference Rules of Disciplinary
Enforcement 204 though 208 or to provide a developed argument
with regard to Rule of Professional Conduct 3.1. Indeed,
according to Appellee's parsimonious view of what was
presented to the county court, the sole argument that
Appellants preserved for appellate ...