Preliminary Objections Granted in Wrongful Use of Civil Proceedings Action
/ 30.Sep, 2014
Philadelphia Court of Common Pleas Judge Patricia McInerney sustained the preliminary objections
of defendants Michael Trachtman, Esquire, Benjamin Anderson, Esquire, Powell Trachtman Logan Carrle & Lombardo, P.C., WFIC, LLC, ACE American Insurance Company and West Chester Fire Insurance Co., in a wrongful use of civil proceedings action brought by Bochetto & Lentz, P.C. arising out of an underlying legal malpractice action which itself arose out of another legal malpractice action. The entire complexity of the underlying actions is readily apparent from Judge McInerney’s opinion, however, the ultimate issue with respect to Bochetto & Lentz was whether a retainer it received was a “payment intangible.” Summary judgment was granted in favor of Bochetto & Lentz in the underlying action when the court, after acknowledging a a lack of relevant precedent, determined the retainer was not a “payment intangible.”
Judge McInerney noted that for purposes of a wrongful use of civil proceedings action, the existence of probable cause is, in the first place, a matter of law for the court to decide. Judge McInerney determined as a matter of law the “attorney defendants and the corporate defendants cannot be deemed to have lacked probable cause to initiate and continue the underlying matter solely because the court in the underlying matter determined that the [retainer] was not a payment intangible after reviewing conflicting case law.”
As we have often noted, the Dragonetti Act, Pennsylvania’s enactment of common law wrongful use of civil proceedings is not a “loser pays” rule. The requirements to establish a termination in plaintiff’s favor, lack of probable cause or gross negligence, an improper purpose, and actual damages make the Dragonetti Act a very high bar.
–Josh J.T. Byrne, Esquire