Requiring Impropriety

/ 11.Apr, 2011
There has been a longstanding debate over an ambiguity in Pennsylvania’s Wrongful Use of Civil Proceedings Statute, 42 Pa.C.S.A. § 8351.  Section 8351 provides:

(a)       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.

The ambiguity is found in section (a)(1) which lacks any comma to tell us what the clause regarding bringing an action “primarily” for an improper purpose modifies.  Does the statute require a showing of improper purpose only if the action is based upon a lack of probable cause, or do you also have to show improper purpose if you are alleging gross negligence?  A number of commentators have suggested that unless you only have to show improper purpose for a lack of probable cause case, there is no functional difference between “lack of probable cause” and “gross negligence.”  I have previously argued that it is a more natural reading of statute to require improper purpose in all wrongful use of civil proceedings cases.  Although a number of cases have touched upon this issue, there has been no clear statement by the Superior or Supreme Courts in Pennsylvania. Judge Bernstein, of the Philadelphia Court of Common Pleas, has now weighed in.  In a wrongful use of civil proceedings matter Winner Logistics, Inc v. Labor & Logistics, Inc et al), the jury indicated it had found: 1) The attorney defendants did not initiate, or continue the underlying lawsuit for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claims on which the proceedings were based; and 2) The defendant attorneys did not reasonably believe in the existence of the facts upon which the claim was based.  The jury indicated that it could not reach a consensus on whether the attorneys were grossly negligent.  Over plaintiff’s protestations that gross negligence without improper purpose could support a finding of wrongful use of civil proceedings, Judge Bernstein entered recorded the verdict as a defense verdict, and dismissed the jury.  Judge Bernstein’s opinion states, “Neither the text, structure, legislative intent nor legislative history supports the theory that a lawyer who loses a case may be sued by the winning party for any ‘gross negligence’ in the conduct of the litigation.”  Judge Bernstein continues, “This interpretation transmogrifies the Dragonetti Act into a civil post conviction relief act with potentially dire financial consequences for any attorney who unfortunately loses a case.”  Summing up, Judge Bernstein states:  

Giving effect to all the words in the statute, the only reasonable reading of § 8351 is to interpret the “improper purpose” clause as modifying both “in a grossly negligent manner” and the “probable cause” clause. The word “and” which appears in the statute after the clause “without probable cause” is a conjunction connecting each element of the former clause “in a grossly negligent manner or without probable cause” clause to the latter “improper purpose” clause.

  This clear statement sets up an appeal which may decide this ambiguity once and for all.  The opinion can be found on the Philadelphia Court’s Facebook page (who knew?) at: -Josh J.T. Byrne, Esquire