Opinion
456 EDA 2023 J-A05005-24
04-23-2024
LANE R. JUBB v. TIMOTHY M. KOLMAN AND KOLMAN ELY, P.C. AND JOYDEEP BOSE APPEAL OF: TIMOTHY M. KOLMAN AND KOLMAN ELY, P.C.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered January 18, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 210100970
BEFORE: DUBOW, J., STABILE, J., and LANE, J.
MEMORANDUM
DUBOW, J.
Appellants, Timothy M. Kolman and Kolman Ely, P.C. (collectively "Kolman"), appeal from the January 18, 2023 entry of judgment following a jury verdict in favor of Appellee, Lane R. Jubb ("Mr. Jubb"), in this Dragonetti action. Kolman challenges the denial of its post-trial motion to set aside the verdict in Mr. Jubb's favor. After careful review, we affirm.
The facts and procedural history are, briefly, as follows. On January 14, 2021, Mr. Jubb filed a complaint raising two counts of wrongful use of civil proceedings pursuant to the Dragonetti Act, 42 Pa.C.S. § 8351, et seq, against Kolman and Joydeep Bose. Following a three-day trial, the jury returned a verdict in Mr. Jubb's favor, concluding that Kolman had continued the underlying lawsuit (1) for an improper purpose and (2) in a grossly negligent manner or without probable cause. Notwithstanding the verdict in Mr. Jubb's favor, the jury awarded Mr. Jubb no damages against Kolman.
Kolman represented the plaintiff, Joydeep Bose, in the underlying lawsuit, Bose v. Lane's Valley Forge Aviation, Inc., et al., 2:16-cv-03924 (E.D.Pa. 2016), in which Jubb was a named defendant. The lawsuit resolved in Mr. Jubb's favor when the district court dismissed it with prejudice as a sanction for Kolmans' repeated and willful discovery violations including the failure to comply with five court orders and to make Mr. Bose available for his deposition.
Mr. Bose did not appear at trial and the trial court entered a default judgment against him. The jury awarded Mr. Jubb $35,000 in punitive damages against Mr. Bose. In an apparent typographical error, however, the January 18, 2023 judgment reflects entry of $30,000 judgment against Mr. Bose. Mr. Bose has not filed an appeal from the entry of judgment against him and is not a participant in this appeal.
All parties filed for post-trial relief. Relevantly, in their August 26, 2022 post-trial motion, Kolman asserted that the jury's award of zero damages against Kolman demonstrated that Mr. Jubb did not meet his burden of proving that he suffered damages from Kolman's conduct. They concluded, therefore, that because Mr. Jubb failed to prove each element of a Dragonetti claim, the jury's verdict cannot stand. Kolman further argued that "a verdict with no damages does not constitute a verdict in favor of [Mr. Jubb]" and, thus, the verdict "must be recorded as a judgment in favor of [Kolman], and not a judgment in favor of [Mr. Jubb]. Post-Trial Motion, 8/26/22, at 3-4. Kolman requested the trial court enter an order directing the entry of judgment in their favor.
The trial court took no action on the parties' post-trial motions, and, on January 18, 2023, Appellee filed a praecipe for entry of judgment in his favor.[
Subsequently, on February 10, 2023, the trial court entered orders denying each of the post-trial motions as moot in light of the January 18, 2023 entry of judgment pursuant to Pa.R.Civ.P. 227.4(1)(b).
This timely appeal followed. Both Kolman and the trial court complied with Pa.R.A.P. 1925.
A.
Kolman raises the following issue on appeal:
Did the trial court err in entering [j]udgment in favor of [Mr. Jubb] and against [Kolman] when the jury awarded [Mr. Jubb] no damages against [Kolman]?Kolman's Brief at 4.
Kolman claims that they are entitled to entry of judgment in their favor because liability under the Dragonetti Act requires proof that the plaintiff suffered damages, and the jury awarded Appellee no damages.
The Dragonetti Act codifies the tort of wrongful use of civil proceedings, which "arises when a party institutes a lawsuit with a malicious motive and lacking probable cause." Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002). The Act provides as follows:
(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:
(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) (emphasis added).
With respect to the damages available to a plaintiff who has established the "essential elements" of a Dragonetti claim, the Act further provides that:
When the essential elements of an action brought pursuant to this subchapter have been established as provided in [S]ection 8351 . . . the plaintiff is entitled to recover for the following:
(1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels[,] or other things, suffered by him during the course of the proceedings.
(2) The harm to his reputation by any defamatory matter alleged as the basis of the proceedings.
(3) The expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings.
(4) Any specific pecuniary loss that has resulted from the proceedings.
(5) Any emotional distress that is caused by the proceedings.
(6) Punitive damages according to law in appropriate cases.Id. at § 8353 (emphasis added).
Pursuant to the Act, the plaintiff has the burden of proving that
(1) The defendant has procured, initiated or continued the civil proceedings against him.
2) The proceedings were terminated in his favor.
3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in [S]ection 8353 [].Id. at § 8354.
In rejecting Kolman's claim that Mr. Jubb failed to meet his burden under the Dragonetti Act because the jury concluded that Mr. Jubb was not entitled to compensatory or punitive damages, the trial court relied on Miller v. St. Luke's Univ. Health Network, 142 A.3d 884 (Pa. Super. 2016). In Miller, as here, the jury found that the defendants did not have probable cause to initiate or continue the underlying lawsuit or continued the underlying lawsuit primarily for an improper purpose. Id. at 888. Nevertheless, the jury also found the plaintiffs suffered no damages. Id. The trial court entered judgment in favor of the plaintiffs in accordance with the verdict and the parties filed cross-appeals. Id. at 889.
The Miller Court considered the interplay of Sections 8151, 8153, and 8154 of the Dragonetti Act and concluded that the Act does not require that a plaintiff prove damages in order to prevail on his claim. Id. at 895-96. The Court expressly rejected the same claim Kolman advances here-that Section 8154 requires a plaintiff to prove that he suffered damages as enumerated in Section 8153 in order to establish all requisite elements of a wrongful use of civil proceedings action. Id. at 896. Rather, the Miller court explained that Section 8151 "unambiguously provides" that a claim brought under the Dragonetti Act has three elements. Id. at 895. Acknowledging that Section 8354 of the Act also includes as an additional factor-proof that the plaintiff suffered damages-the Court explained that the Dragonetti Act contemplates a "bifurcated, two-phase action" requiring the plaintiff to first establish the defendant's liability by proving the elements of the tort set forth in Section 8351, and then prove that he "actually suffered one or more of the damages for which the statutory scheme entitles recovery." Id. Applying this framework to the facts of Miller, the court concluded that the lower court's entry of judgment was proper because the jury found that the plaintiff had satisfied each of the essential elements of his claim and that it was "nevertheless, the jury's prerogative to find [plaintiffs] failed to prove they suffered damages-as is required under a separate part of the Act-as a result of [the defendants'] tortious conduct." Id. at 896.
Following our review, we find that the trial court properly applied the holding in Miller, and we are bound by it. Accordingly, we conclude that the trial court did not err or abuse its discretion in refusing to enter judgment in Kolman's favor where, as in Miller, the jury found that Mr. Jubb had proven each of the "essential elements" set forth in Section 8351 of the Dragonetti Act but declined to find that Mr. Jubb had proven that he suffered compensable damages.
Order affirmed.
Judge Lane joins the memorandum.
Judge Stabile files a concurring statement.
Judgment Entered.
CONCURRING STATEMENT
STABILE, J.:
Like the majority, I consider this Court's prior panel decision in Miller v. St. Luke's Univ. Health Network, 142 A.3d 884 (Pa. Super. 2016), to be binding on this panel. Accordingly, I concur with the majority's memorandum. I write separately to express my view that Miller was wrongfully decided, and this Court should revisit that decision through en banc review.
Miller affirmed the entry of judgment in favor of the plaintiff in a Dragonetti action even though the jury determined that the plaintiff failed to prove damages. In construing Sections 8151, 8153, and 8154 of the "Dragonetti Act", the Miller court held that a plaintiff does not have to prove damages to prevail on a claim. The Miller Court reasoned that since Section 8151 alone provides for the essential elements of a cause of action for wrongful use of civil proceedings, a showing of damages is not required. Miller, 142 A.3d at 895-896. I construe the Dragonetti Act still to require proof of damages in order for a plaintiff to obtain a judgment in his favor. By holding to the contrary, Miller ran afoul of (1) centuries of common law that always required a plaintiff to prove special damages to win a judgment for malicious civil suits, (2) our Supreme Court's reasoning in McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006), and (3) the text of the Dragonetti Act itself.
An action for wrongful use of civil proceedings, known as a "Dragonetti" action, is codified at 42 Pa.C.S.A. §§ 8151-8354.
The history of Anglo-American attempts to discourage malicious civil suits appears to have begun in the seventh century with the laws of Kentish kings., Through time, these attempts evolved from a system whereby 1) a complainant unfortunate enough to lose his cause also lost his tongue, or was compelled to pay his opponent compensation, to 2) a system whereby a losing plaintiffs would pay the court a penalty, to 3) a writ of conspiracy whereby injured defendants could sue those who maliciously brought meritless actions through straw claimants, to 4) a seventeenth century action on the case for "manifest vexation" stemming from groundless suits. Against this background, the tort of malicious prosecution came into being as defined today in Britain and about a third of our states.
See Groundless Litigation and the Malicious Prosecution Debate: A Historical Analysis, 88 Yale L.J. 1218, 1221 (1979); John R. Jones, Jr., Liability for Proceeding with Unfounded Litigation, 33 Vand. L. Rev. 743 (1980).
During the fifth century, as the Roman Empire was crumbling throughout western Europe, waves of barbarian invaders overran Britain's borders. By A.D. 410, groups of Angles, Saxons, and Jutes began crossing the North Sea from Germany and southern Scandinavia to claim land in Britain that had been abandoned by the Roman army. These tribes succeeded Rome as the dominant power in central and southern Britain, marking the beginning of what we now call the Anglo-Saxon Age, which would last for more than 600 years. See https://www.archaeology.org/issues/89-1305/features/735-anglo-saxon-pagan-kings-lyminge-kent The "Kingdom of Kent" (470-871 AD) was a kingdom of Jutes in southeast England and was one of the seven traditional kingdoms of the so-called Anglo-Saxon heptarchy. See https://royalfamily.fandom.com/wiki/Kingdom_of_Kent.
Groundless Litigation, supra n.2, at 1221; Unfounded Litigation, supra n.2, at 745-746.
Id.
Under the English Rule, five elements had to be proven: initiation or continuation of a prior suit, lack of probable cause for the prior action, malice in instituting or continuing the prior suit, termination of the prior action in favor of the original defendant, and some form of damage to the original defendant beyond that normally inflicted by similar litigation. A showing of special damages was required to eliminate the prospect of interminable suits and countersuits. Special damages included interference with the person, i.e. arrest, commitment under lunacy proceedings, and/or interference with property. For over a century prior to the codification of the Dragonetti Act, Pennsylvania, along with approximately 17 other states, followed the "English rule" which required a plaintiff to prove as damages either an arrest of the person or seizure of property in order to state a cause of action for malicious use of civil process. Garcia v. Wall & Ochs, Inc. 389 A.2d 607 (Pa. Super. 1978) (citing Kramer v. Stock, 10 Watts 115 (Pa. 1840)). At the time Garcia was decided, twenty-three states did not require a seizure of person or property, and the remaining ten jurisdictions had not decided the issue. Id. at 608 n.1 (citing O'Toole v. Franklin, 279 Or. 513,569 P.2d 561 (1977)).
Id. (citing William L. Prosser, Handbook of the Law of Torts § 120 (4th ed. 1971)).
Groundless Litigation, supra, at 1221; Unfounded Litigation, supra, at 749.
Groundless Litigation, supra n.2, at 1221 n.8; Unfounded Litigation, supra n.2, at 748-49.
Close to the time of this Court's decision in Garcia, the drafters of the Restatement (Second) of Torts defined the tort of "wrongful use of civil proceedings." See Restatement (Second) of Torts (1965); Restatement (Second) of Torts, §§ 674-681(B). Section 681 of the Restatement (Second) significantly expanded the types of damages that the plaintiff could introduce to prevail in an action for wrongful use of civil proceedings. While a plaintiff still could prevail by demonstrating special damages, he also could prevail by demonstrating harm to his reputation by any defamatory matter alleged as the basis of the proceedings, the expense that he reasonably incurred in defending himself against the proceedings, any specific pecuniary loss that resulted from the proceedings, and any emotional distress caused by the proceedings. In addition, Section 681A of the Restatement (Second) allowed for recovery of punitive damages in appropriate cases.
In 1980, our Legislature enacted the statutory tort of "Wrongful Use of Civil Proceedings", a/k/a the "Dragonetti Act", 42 Pa. C.S.A. §§ 8351-8354 (the "Act"), to replace the common-law tort of malicious prosecution. See Shaffer v. Stewart, 473 A.2d 1017 (Pa. 1984). In a significant break from case law, the Act expressly eliminated the requirement that a plaintiff prove special damages in the nature of an arrest of the person or seizure of property to maintain an action for wrongful use of civil proceedings. This was consonant with the Restatement (Second) of Torts, § 674 (1965), which does not require these elements of special damages to maintain the action but requires that a plaintiff still must show either material harm or the violation of a legal right that is in itself sufficient to support an action for damages in a suit for wrongful use of civil proceedings. See Restatement (Second) of Torts, § 674, Comment (e).
Nothing in the present statute or the common-law referred to this tort as a "Dragonetti" action. The name derivation, it seems, was coined in 1980, when the Legislature, in response to the lobbying efforts of a single aggrieved litigant, "Joseph Dragonetti", enacted the present-day statutory tort of "Wrongful Use of Civil Proceedings", now commonly referred to as the "Dragonetti Act". See Villani v. Seibert, 159 A.3d 478, 499-500, n.6 (Pa. 2017) (Donohue, J., dissenting). Mr. Dragonetti sought to abolish the old English rule within the common-law tort of malicious use of civil process. Id.
Nothing in the history of the tort, Pennsylvania's statute, or in the Restatement suggest that the tort evolved away from requiring proof of strict special damages to requiring no proof of damages at all. Nor is there anything in history to suggest that when the Act was adopted in 1980, Pennsylvania intended to eliminate proof of damages to maintain the action. Instead, all that history reveals is that a fairer and broader system of compensating a wrongfully sued person was deemed advisable in the codified law, rather than the unduly restrictive requirement to show special damages in the nature of seizing a person or their property under the old English rule. Thus, in Shaffer, where it was alleged that an attorney filed suit without probable cause and for an improper purpose (to extort a settlement), we held it was error for the court to dismiss the matter upon preliminary objections for failure to allege a seizure of property. A review of appellant's amended complaint disclosed that he alleged facts essential to the three elements of a cause of action for malicious use of process under Section 8531-specifically, the underlying proceedings terminated favorably to the plaintiff, the defendant caused these proceedings to be instituted without probable cause, and malice. Id. at 1020-21. We concluded by commenting that it remained to be seen "[w]hether he can prove those facts and whether he sustained damage." Id. at 1021. This statement signaled our recognition that although the law no longer required proof of damages in the nature of seizure of a person or property, damages (now more liberal in scope) still had to be proven in addition to the three essential elements under Section 8531.
My analysis of pre-Dragonetti Act common law, and of its influence on the Dragonetti Act, leads me to the conclusion that Miller is incorrect. A plaintiff always had the duty at common law to prove damages to obtain a judgment for wrongful civil suits. The Dragonetti Act continues to include this duty, but in accordance with the Restatement (Second) of Torts, the Act now augments the categories of provable damages beyond the special damages required for recovery under common law. The common law underpinnings of the Dragonetti Act offer no support for Miller's holding that the plaintiff is not required to prove damages to win a judgment under the Dragonetti Act. To the contrary, history reveals that a fairer and broader system of compensating a wrongfully sued person was deemed advisable instead of the unduly restrictive requirement of special damages.
Not only is Miller out of line with the history underlying the Dragonetti Act, but Miller misconstrues the Dragonetti Act as a matter of statutory construction. Miller claims that the Dragonetti Act transforms trial for wrongful use of civil proceedings into a "bifurcated, two phase action," in which the first phase is to determine whether plaintiff has satisfied Section 8351's elements and the second phase is to determine damages. Id., 142 A.3d at 895. Miller seems to suggest that if plaintiff wins the first phase, he is entitled to judgment - even if it turns out after the second phase that he is entitled to zero damages. I respectfully must disagree with this construction of the Dragonetti Act.
The four sections of the Dragonetti Act provide as follows:
§ 8351. Wrongful use of civil proceedings.
(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:
(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.
(b) Arrest or seizure of person or property not required.--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 subchapter.42 Pa.C.S.A. § 8351.
§ 8352. Existence of probable cause.
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.Id. § 8352.
§ 8353. Damages.
When the essential elements of an action brought pursuant to this subchapter have been established as provided in
section 8351 (relating to wrongful use of civil proceedings), the plaintiff is entitled to recover for the following:
(1) The harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings.
(2) The harm to his reputation by any defamatory matter alleged as the basis of the proceedings.
(3) The expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings.
(4) Any specific pecuniary loss that has resulted from the proceedings.
(5) Any emotional distress that is caused by the proceedings.
(6) Punitive damages according to law in appropriate cases.Id. § 8353.
§ 8354. Burden of proof.
In an action brought pursuant to this subchapter the plaintiff has the burden of proving, when the issue is properly raised, that:
(1) The defendant has procured, initiated or continued the civil proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages).Id. § 8354.
These four sections of the Dragonetti Act must be read in pari materia. See 1 Pa.C.S.A. § 1932(a, b) (providing that "[s]tatutes in pari materia shall be construed together, if possible, as one statute" and that "[s]tatutes ... are in pari materia when they relate to the same persons or things or to the same class of persons or things"). Miller concludes that if a plaintiff satisfies Section 8351, he is entitled to judgment. In order to understand Section 8351, however, we must read it together with Sections 8352-8354, because all four sections are inextricably interconnected. Section 8351 states that the plaintiff is subject to liability if he "acts . . . without probable cause." 42 Pa.C.S.A. § 8351. To understand the meaning of probable cause, we must consult the definition of probable cause in Section 8352. Furthermore, we do not know who bears the burden of proving the elements in Section 8351 without consulting Section 8354, which tells us that plaintiff has the burden of proving the defendant lacked probable cause for his action. Section 8354 also tells us that plaintiff has the burden of proving "damages as set forth in Section 8353." 42 Pa.C.S.A. § 8354. Section 8353, in turn, refers back to Section 8351 by stating that the plaintiff may recover various items of damages (including but not limited to special damages) when "the essential elements of an action brought pursuant to this subchapter have been established as provided in Section 8351 ..." Moreover, Section 8353's text, "when the essential elements . . . have been established," implicitly refers back to Section 8354, because only Section 8354 defines who has the burden of establishing these elements. Nothing in Sections 8353 or 8354 suggest a two-part proceeding, that is, one part for proving the elements of Section 8351 and one for proving damages.
Reading all four provisions of the Act in pari materia leads me to conclude that the intent of the Dragonetti Act is to have one proceeding, not the bifurcated proceeding contemplated in Miller, and to provide that the plaintiff cannot win a judgment without proving damages, as plainly stated in Section 8354. My construction of the Dragonetti Act is consistent with our Supreme Court's reasoning in McNeil that "[i]n establishing entitlement to relief, a plaintiff under the Dragonetti Act bears the burden of proving: ... (5) The plaintiff has suffered damages." McNeil, 894 A.2d at 1274 (emphasis added). I read this observation to mean that failure to prove damages results in no relief (no judgment) for the plaintiff. See also Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super. 2001) ("the Legislature has delineated five factors that a plaintiff must show to succeed in the action … (5) the plaintiff has suffered damages").
In the present appeal, Appellants request that judgment for zero damages be vacated and that judgment be entered in their favor. Were we free not to follow the Miller precedent, I would agree. Where there is a finding of liability but no damages, the court should enter judgment in favor of the defendant. See Kirby v. Carlisle, 116 A.2d 220 (Pa. Super. 1955) (where minor plaintiff was struck by an automobile, but suffered no injuries for which damages were awarded, the trial court properly molded the verdict for the defendant and entered judgment accordingly).
For the above reasons, while I concur with the Majority's ultimate decision, I urge this Court to reconsider Miller through en banc review.