Rubin, B. v. Stewart, P. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRUCE A. RUBIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL A.R. STEWART HELM LEGAL :
SERVICES, LLC AND ALISHA :
ALEJANDRO : No. 2554 EDA 2021
:
:
APPEAL OF: PAUL A.R. STEWART :
AND HELM LEGAL SERVICES, LLC :
Appeal from the Judgment Entered November 22, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 181002397
BRUCE A. RUBIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEWART, PAUL A.R. STEWART :
HELM LEGAL SERVICES, LLC AND :
ALISHA ALEJANDRO : No. 2555 EDA 2021
:
:
APPEAL OF: ALISHA ALEJANDRO :
Appeal from the Judgment Entered November 22, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 181002397
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 15, 2023
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In these related appeals,1 Paul A.R. Stewart (Stewart), Helm Legal
Services, LLC (HLS), and Alisha Alejandro (Alejandro) appeal from the
judgment entered November 22, 2021,2 in the Philadelphia County Court of
Common Pleas, in favor of Bruce Rubin (Rubin) in this action for wrongful use
of civil proceedings.3 On appeal, at Docket 2554 EDA 2021, Stewart4 requests
judgment notwithstanding the verdict (JNOV) and a remittitur, argues the trial
court erred with respect to five evidentiary rulings, and insists a punitive
damages award against an attorney is improper and unconstitutional. At
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1 These appeals were filed by co-defendants following a joint trial, and involve
the same lengthy factual and procedural history. Furthermore, the trial court
filed one opinion, denying both post-trial motions. Thus, we will dispose of
these appeals in one decision.
2 Both the notice of appeal filed by Stewart and HLS and the notice of appeal
filed by Alejandro purport to appeal from the November 22, 2021, order
denying their respective motions for post-trial relief. See Stewart/HLS’s
Notice of Appeal, 12/8/21; Alejandro’s Notice of Appeal, 12/8/21. It is well-
established that “an appeal ‘does not properly lie from an order denying post-
trial motions, but rather upon judgment entered following disposition of post-
trial motions[.]” Nazarak v. Waite, 216 A.3d 1093, 1098 n.1 (Pa. Super.
2019). Because the trial court entered judgment on the verdict in the same
order, we have changed the captions to reflect the appeals are from the entry
of judgment. See Order, 11/22/21.
3 See 42 Pa.C.S. § 8351.
4 Prior to charging the jury in the underlying trial, the trial court determined
that “a return of a verdict as it relates to Stewart would also by operation of
law include [HLS].” N.T., 7/19/21, at 167. Although HLS is a separate entity
and has appealed from the verdict, the underlying claims concern only
Stewart’s actions as the attorney for his co-defendant, the underlying plaintiff
(Alejandro). Thus, for ease of discussion, we refer to the appeal at 2554 EDA
2021 as Stewart’s appeal.
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Docket 2555 EDA 2021, Alejandro argues Rubin failed to prove her liability for
wrongful use of civil proceedings, and the trial court erred when it disqualified
her counsel ─ Stewart ─ without notice or a hearing, when she waived any
conflict of interest. For the reasons below, we affirm.
I. FACTS & PROCEDURAL HISTORY – UNDERLYING ACTION
The facts in the prior lawsuit, which precipitated the present action for
wrongful use of civil proceedings, are summarized by the trial court as follows:
Plaintiff in the underlying action, [Alejandro] visited Barco
Optical, Inc. doing business as Philadelphia Vision Center1
(“Barco”) on December 8, 2016. Barco is a provider of optometric
services and sells eyeglass wear. On the above referenced date,
Alejandro received optometric services from the optometrist
performing eye exams at Barco, a corporate entity owned and
operated by [Rubin, the] defendant in the underlying action.
__________
1Neither Barco Optical nor Philadelphia Vision Center are named
parties in this action.
__________
Rubin is an optician;[5] he is neither an optometrist nor a
Doctor of Optometry. There is no testimony that he performed an
eye exam on Alejandro.
The optometrist issued a prescription for corrective lenses.
There is no testimony as to the communication between Alejandro
and the optometrist. The optometric services were billed to
Alejandro’s insurance company.
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5Rubin explained that “[a]n optician is one that fills prescriptions that are
written by eye doctors for eye glasses.” N.T., 7/15/21, at 115. An optician
does not have any medical training. Id.
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After receiving optometric services, Alejandro was asked if
she wanted to purchase glasses from Barco. Alejandro assented
and used the prescription to place an order for glasses, frame
fitted with corrective lenses, with Barco. Alejandro also requested
an anti-reflective coating for the lenses.
Alejandro did not allege, and there was no evidence
presented, of any misrepresentations by Rubin or Barco when the
order was placed. There was no evidence as to how the
prescription was transferred to Barco. Additionally, there was no
evidence that the cost of the frames and lenses were billed to an
insurance company. In fact, it was Alejandro who was expected
to pay for the glasses.
An invoice was created, with the prescription, to record the
order. The total cost for the glasses was $399.00. No deposit
was requested; and [none was] given. Alejandro was informed
that the glasses would be ready for pick-up in “about a week.”
Based upon the above events and expressed understanding of the
parties, the frames were sent to a laboratory where the prescribed
lenses were customized and inserted into the frames.
Subsequently, Alejandro was notified that the glasses had
been prepared and were ready for pick-up. Alejandro refused
delivery and requested a copy of the written prescription. A Barco
employee informed Alejandro that she needed to pay for the
glasses before she could receive a copy of the written prescription.
Alejandro refused and continued to request a copy of the written
prescription on numerous other occasions.
Prior to January 17, 2017, Alejandro contacted [HLS] and
spoke with [Stewart] about not receiving a written prescription for
corrective lenses from Barco. Alejandro testified that she only
wanted her eyeglass prescription.
On January 17, 2017, Stewart contacted Barco and spoke
with [Rubin.6] Alejandro arrived an hour after Stewart’s
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6 Rubin testified that, during this telephone call, Stewart threatened to “tie
[him] up in legal proceedings and cost [him] a lot of money” if he did not give
Alejandro a copy of her prescription. N.T., 7/15/21, at 128. He claimed
Stewart told him “he would make [Rubin] miserable and that he is very
tenacious.” Id. Rubin also testified that, because he was “very taken back
by [Stewart’s] comments and threats[,]” he “freaked out, had a little
outburst[,]” and “insulted” Stewart. Id. at 128, 135.
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conversation. At that time, [Rubin] handed to Alejandro a copy
of the written prescription. No money was exchanged, [and] no
further demands made. Alejandro then used the prescription to
purchase glasses from another entity.
Alejandro communicated to Stewart that she had received a
copy of her prescription from [Rubin]. Based upon Alejandro’s
understanding, the matter was resolved. There was no evidence
of further communications between Rubin and Alejandro.
Ten days after Alejandro’s receipt of the prescription, on
January 27, 2017, Stewart emailed a Notice of Claim for
Negligence and Unfair Trade Practices to [Rubin] for failure to
comply with the “Optometric Practice and Licensure Act, State
Board of Optometry” and the Federal Ophthalmic Practice Rules.
Specifically, Stewart claimed that the above referenced law
required Rubin, who is neither an optometrist [nor] doctor of
ophthalmology, to provide Alejandro with a copy of her written
prescription for corrective lenses after her exam. The Notice of
Claim requested the preservation of documents from December 8,
2016 (exam date) to January 18, 2017 (one day after [Rubin]
handed the prescription to Alejandro).
In response to the Notice of Claim, [Rubin] emailed Stewart
writing that, “I believe you are baseless in your claim . . . .”
Stewart then advised [Rubin] that he had “15 days to settle this
matter or my office will proceed to file a writ of summons and
commence discovery.”
Less than a month later, on February 21, 2017, Stewart and
HLS submitted a demand to [Rubin] of $25,000. Alejandro was
without knowledge of the demand. As preamble to the demand,
Stewart claim[ed] to have “found numerous other clients” making
the same or similar allegations. Stewart did not advise that he
was representing the “other clients”. As to other individuals not
represented by Stewart or HLS, Stewart concluded that Rubin
violated HIPAA “by [posting] medical patient information on social
media websites[.]”
On February 28, 2017, the underlying matter, Alisha
Alejandro v. Philadelphia Vision Center, Bruce Rubin,
February Term 2017, No. 7325, was commenced by writ of
summons.
Pre-complaint discovery was initiated. Stewart
subsequently testified at trial [in the present action] that his
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reasoning for seeking pre-complaint discovery was to narrow the
issue and correctly identify the defendants in the underlying
action. As part of his research, Stewart identified 20 or 21 entities
utilizing some variation of “Philadelphia Vision Center”. Upon
review of the discovery provided, it was revealed that three (3) of
the entities sued were fictitious names; the remaining were
corporations with “Philadelphia Vision Center” as part of their
names. There is no evidence that Stewart delved further into the
individual records to determine if the named entities were related
to one, or more, individuals and/or other entities. The discovery
requests, however, included requests for admissions as well as
the production of documentation of professional liability and/or
malpractice insurance coverage. There were no discovery
requests to determine the size and scope of Philadelphia Vision
Center, [Rubin’s] business.
On June 17, 2017, Stewart and HLS submitted a second
settlement demand of “seven to ten thousand dollars.” This sum
was based upon the amount of “work and energy” that Stewart
put into the case and would “likely . . . occur in the next week or
so.” The demand amount did not include any monies to Alejandro
for her alleged injuries.
On July 5, 2017, the first of four (4) complaints [was] filed
wherein Alejandro alleged that, as of January 27, 2017, she had
not received a copy of her prescription. Each iteration of the
Complaint alleged that Rubin “refused to provide to [her] a
prescription, still demanding that she pay for eye frames, although
at a reduced rate.”[7]
On March 28, 2018, the deposition of [Rubin] was
conducted. At that deposition, it was disclosed that [Rubin] owned
only one store, but shared the fictitious name with other entities.
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7 The original complaint, filed on July 5, 2017, named Rubin, Philadelphia
Vision Center, and Louisa Gaiter Johnson, O.D., as defendants. See
Alejandro’s Complaint, 7/5/17, at ¶¶ 2-4. It asserted six counts, including a
violation of the UTPCPL, civil conspiracy, three violations of the Sherman Act,
15 U.S.C. §§ 1-2, and a violation of the Clayton Act, 15 U.S.C. §§ 14- 16.
See id. at ¶¶ 71-109. The first amended complaint, filed on November 7,
2017, included additional facts and asserted only one violation of the Sherman
Act. The second amended complaint, filed a year later on November 16, 2018,
omitted Dr. Gaiter Johnson as a defendant, but alleged the same counts.
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Even with the knowledge that the alleged activities involved only
one entity, [Stewart] continued to include allegations of antitrust
violations in amended complaints.
At that same deposition, Stewart and HLS learned of a billing
discrepancy, unrelated to the allegations contained in the
Alejandro complaints. [Sometime after the deposition, Rubin
offered Alejandro $5,000 to end the litigation. See N.T., 7/15/21,
at 159-60. However, Stewart and Alejandro rejected the offer,
and] on April 5, 2018, . . . submitted a third demand of $159,000
to settle the matter: $59,000 for “combination of damages and
attorney fees” and $100,000 related to potential violations of
“some sort of insurance billing fraud or something like that.”
Alejandro did not authorize or approve this demand. A third
amended complaint failed to include any allegations regarding
[Rubin’s] billing process.[8]
The basis of the settlement demand is unclear. [Rubin] self-
reported the billing error to the insurance company on April 11,
2018 and was never charged in this regard.
The matter was removed to federal court on May 22, 2018.
On July 17, 2018, [Stewart and HLS] submitted a fourth demand
of $20,000. By August 2, 2018, the final demand was reduced to
$1,500 allowing for a court determined legal fee.
On August 9, 2018, Rubin filed a motion for summary
judgment that was granted. Though uncontested, the Honorable
Harvey Bartle III issued a memorandum explaining the court’s
reasoning. The court ruled against . . . Alejandro in the underlying
case, having found that “Alejandro’s claims fail for many reasons.
Suffice it to say that [Rubin is] not liable for any underlying
violation of the [Pennsylvania Unfair Trade Practice and Consumer
Protection Law (UTPCPL), 73 P.S. §§ 201-1-201.10].”
In his memorandum, Judge Bartle wrote that in relation to
the eye exam and prescription completed by a licensed
optometrist, “It is well-settled that the UTPCPL does not apply to
providers of medical services.” As to retail services for
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8 The third amended complaint, filed on May 2, 2018, included a new
defendant, Beth Lisa Brooks, O.D., but alleged the same counts.
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prescription glasses, [Alejandro] failed to include any facts in the
complaint to support an allegation of unfair trade.
Judge Bartle wrote, “The record does not contain any
evidence that the conduct of [Rubin] related to the potential sale
of the eyeglasses falls under unfair methods of competition or
unfair or deceptive acts of practice as described in 73 [Pa.S. §
201-2(4)].” [Alejandro’s] state claims were dismissed with
prejudice. Thereafter the parties entered a stipulation to dismiss
the remaining federal claims with prejudice.
Trial Ct. Op., 4/5/22, at 2-8 (headings & some footnotes omitted).
I. PROCEDURAL HISTORY - PRESENT ACTION
On October 18, 2018, Rubin filed a civil complaint against Stewart, HLM,
and Alejandro for wrongful use of civil proceedings,9 and requested “a
judgment for the harm resulting from the interference with the advantageous
use of his business suffered during the proceedings, attorney fees incurred in
defending himself against the proceedings, emotional distress caused by the
proceedings and punitive damages.” See Rubin’s Complaint, 10/18/18, at 6.
Rubin averred, inter alia, that Stewart called him “a ‘piece of shit’ and
threatened to put him in jail and to put him ‘out of business.’” Id. He further
asserted that Stewart “blackmail[ed him by] demanding $159,411.53, for a
matter in which his client suffered no damages, to refrain from reporting
[Rubin for] alleged ongoing criminal conduct.” Id. Rubin was represented by
his brother, Steven H. Rubin, Esquire (Brother).
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9 Rubin also included a claim for abuse of process, which was abandoned at
trial.
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Stewart subsequently filed preliminary objections on behalf of himself
and HLS, and separate preliminary objections on behalf of Alejandro, whom
he continued to represent. The trial court overruled both sets of preliminary
objections by orders docketed February 8, 2019.10 See Orders, 2/8/19. On
February 19th, Mitchell Ayes, Esquire, and Christopher G. Fusco, Esquire,
entered their appearances on behalf of Stewart and HLS, and Christopher Del
Bove, Esquire subsequently entered his appearance on August 5, 2019. On
October 8, 2019, Lane R. Jubb, Jr., Esquire, entered his appearance on behalf
of Rubin.11 Stewart continued to represent Alejandro.
In November of 2019, Rubin filed a motion in limine in anticipation of
the jury trial scheduled for January of 2020. He noted the “clear conflict” in
the case because Stewart was both the attorney representing Alejandro in the
matter, and her co-defendant, represented by his own, separate counsel.
Rubin requested the court “exclude . . . Stewart from making statements
and/or argument to the jury on his own behalf” while advocating for Alejandro.
See Rubin’s Motion in Limine to Preclude Unfairly Prejudicial, Misleading, and
Confusing Evidence and Argument from Stewart, 11/19/19, at 4-5.
On January 21, 2020, the parties appeared for a jury trial. However,
the trial court, sua sponte, addressed what it perceived to be a “clear and
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10 Alejandro filed motion for reconsideration which the court denied on March
8, 2019. See Order, 3/8/19.
11Louis Tumolo, Esquire, later entered as Rubin’s co-counsel on February 11,
2021.
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palpable conflict of interest,” namely, Stewart’s continued representation of
Alejandro despite being named as her co-defendant. See N.T., 1/21/20, at
5. Although Alejandro informed the court that she waived any conflict and
still desired to have Stewart represent her, the trial court determined the
“blatant” conflict was so “profound” that it required the court to remove
Stewart as her attorney. See id. at 19-22. Accordingly, the court continued
the trial to allow Alejandro time to obtain a new attorney. See Order, 1/21/20.
Stewart, on behalf of Alejandro, appealed from the order removing him as
counsel, which this Court quashed as interlocutory. See Rubin v. Stewart,
771 EDA 2020 (Pa. Super. Apr. 13, 2021). Alejandro proceeded to represent
herself pro se in the litigation.
On June 18, 2021, Stewart filed a motion in limine seeking to preclude
certain evidence, as well as punitive damages. See Memorandum of Law in
Support of [Stewart’s] Motion in Limine, 6/18/21 at 1-2. The court ruled on
Stewart’s various claims before the start of the jury trial on July 14, 2021.
See N.T., 7/14/21, at 12-18. On July 19th, the jury returned a verdict in
favor of Rubin and against Stewart and Alejandro, concluding that they
“procure[d], initate[d] or continue[d] the underlying action in a grossly
negligent manner OR without probable cause [and] primarily for an improper
purpose[.]” Verdict Slip, 7/19/21, at 1-2. The jury awarded the following
damages: (1) $0 for harm to Rubin’s reputation; (2) $480,000 for expenses
“reasonably incurred in defense of the underlying action” including attorney’s
fees; and (3) $100,000 for emotional distress. Id. at 3. The jury attributed
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the damages 50% each to Stewart (and HLS) and Alejandro. Id. at 2. Lastly,
the jury awarded punitive damages against Stewart in the amount of
$159,000, and against Alejandro in the amount of $5,399.99. Id. at 3-4.
On July 29, 2021, Stewart filed a timely motion for post-trial relief, as
well as a request for consideration by the trial court sitting en banc; Alejandro
subsequently filed a post-trial motion, pro se, on August 9th.12 While those
motions were pending, both Stewart and Alejandro filed notices of appeal from
the jury verdict. See Dockets 1701 EDA 2021, 1874 EDA 2021.
Meanwhile, on October 18, 2021, Rubin filed two answers in opposition
to the post-trial motions. On October 29th, Randall J. Henzes, Esquire,
entered his appearance on behalf of Alejandro. An en banc hearing on the
post-trial motions was conducted on November 3rd. That same day, Stewart
filed a reply in further support of his post-trial motions. On November 22,
2021, the trial court entered an order denying both Stewart’s and Alejandro’s
motions for post-trial relief. See Order, 11/22/21. The court also entered
judgment on the verdict. Both Stewart and Alejandro filed timely appeals and
complied with the trial court’s directive to file Pa.R.A.P. 1925(b) statements
of errors complained of on appeal. The trial court filed a joint opinion on April
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12Pursuant Pa.R.C.P. 227.1(b), any party may file a post-trial motion within
10 days of the filing of the first post-trial motion. Although Alejandro filed her
motion on the eleventh day, the tenth day following Stewart’s filing was a
Sunday. Therefore, she had until Monday, August 9th to file a post-trial
motion. See 1 Pa.C.S. § 1908.
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5, 2022.13 As noted above, Stewart’s appeal is docketed at 2554 EDA 2021,
and Alejandro’s appeal is docketed at 2555 EDA 2021.14 Stewart, once again,
represents Alejandro on appeal.
On January 22, 2022, this Court entered an order dismissing the prior
appeals, docketed at 1701 EDA 2021 (Alejandro) and 1874 EDA 2021
(Stewart), as duplicative of the appeals sub judice, which were “properly taken
from judgment entered following denial of post-trial motions.” Order,
1/28/22, at 2-3 (unpaginated).
II. ISSUES ON APPEAL
Stewart raises the following claims on appeal at Docket 2554 EDA 2021:
1) Did the [t]rial [c]ourt err as a matter of law and abuse its
discretion when it failed to grant non-suit after [Rubin] failed
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13 The trial court’s opinion does not address many of the issues raised on
appeal. Rather, the court noted that Stewart’s post-trial motion failed to
“state how the grounds were asserted in pre-trial proceedings or at trial.” See
Trial Ct. Op., 4/5/22, at 9. Although Stewart filed a supplemental motion to
address the court’s concern, the court determined that only three issues were
preserved. See id. at 10. Upon our review, however, we conclude that most
of Stewart’s claims were preserved at trial and in his post-trial motion.
14 We note that there are two additional appeals related to this case. Following
trial, Rubin’s counsel filed a motion seeking sanctions against Stewart for an
incident that occurred during a court recess on July 15, 2021. Following
briefing and two hearings, the trial court granted the motion and directed
Stewart to pay $10,000 in sanctions. Stewart filed a motion for
reconsideration, which the trial court subsequently granted in part. Stewart
filed an appeal both from the court’s order granting the motion for sanctions
(411 EDA 2022), and the order granting, in part, his motion for
reconsideration (1018 EDA 2022).
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to prove [ ] Stewart . . . lacked probable cause to initiate and
continue the underlying consumer protection action?
2) Did the [t]rial [c]ourt err as a matter of law and abuse its
discretion when it failed to grant non-suit after [Rubin] failed
to prove the elements of the Dragonetti Act?
3) Did the [t]rial [c]ourt err as a matter of law and abuse its
discretion when [Rubin] failed to prove that . . . Stewart . . .
acted in a grossly negligent manner?
4) Did the [t]rial [c]ourt err as a matter of law and abuse its
discretion in admitting into evidence the following prejudicial
documents: Judge Bartle’s August 29, 2018 Memorandum and
Order; references to the [Pennsylvania] Rules of Professional
Conduct; all writings attempting to resolve the underlying
litigation; [Brother’s] attorney notes; and [Rubin’s] attorneys’
bills from the underlying matter[?]
5) Did the [t]rial [c]ourt err as a matter of law and abuse its
discretion when it failed to grant remittitur based on the fact
that [Rubin’s] evidence supports no more than $41,000 in
attorney’s fees in the underlying action, not the jury award of
$480,000?
6) Did the [t]rial [c]ourt err[ ] as a matter of law and abuse[ ] its
discretion in permitting the jury to consider an award for
punitive damages and then refuse[ ] to strike the award as
being unconstitutional to attorneys[?]
Stewart’s Brief at 4-5.
Alejandro presents the following two issues for our review at Docket
2555 EDA 2021:
1. Whether [Rubin] proved by a preponderance of the evidence
that . . . Alejandro lacked probable cause to initiate and
continue the underlying consumer protection action and can
therefore be liable under the Dragonetti statute?
2. Whether the trial court erred in disqualifying pro bono trial
counsel without notice or a hearing based upon a perceived by
speculative conflict of interest when [Alejandro] waived such
conflict in writing and in open court and when the trial court
knew that disqualification of trial counsel would prejudice
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[Alejandro’s] ability to defend herself thereby impairing her
due process rights?
Alejandro’s Brief at 6.15
III. DRAGONETTI ACT CLAIMS
Both Stewart and Alejandro challenge their respective liability under the
Dragonetti Act, 42 Pa.C.S. §§ 8351-8355. 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 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).
The Act further defines that a person has probable cause under the
following circumstances:
[I]f he reasonably believes in the existence of the facts upon which
the claim is based, and either:
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15 We have reordered Alejandro’s claims for ease of disposition.
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(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.
42 Pa.C.S. § 8352(1)-(3). Although, “[u]sually, the existence of probable
cause is a question of law for the court rather than a jury question, [it] may
be submitted to the jury when facts material to the issue of probable cause
are in controversy.” Broadwater v. Sentner, 725 A.2d 779, 782 (Pa. Super.
1999) (emphasis & citation omitted).
Thus, in order to establish a Dragonetti action, the plaintiff must prove,
by a preponderance of the evidence:
(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; and (5) the plaintiff has suffered damages. . . .
Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super. 2001), citing 42 Pa.C.S. §
8354. This Court has emphasized, however, that “the clear language of
Section 8351 permits a cause of action to be based on gross negligence or
lack of probable cause.” Keystone Freight Corp. v. Stricker, 31 A.3d 967,
973 (Pa. Super. 2011) (citation & quotation marks omitted). “Gross
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negligence is defined as the want of even scant care and the failure to exercise
even that care which a careless person would use.” Id.With this background in mind, we proceed to address both Stewart’s and
Alejandro’s Dragonetti Act claims.
(1) Stewart’s Dragonetti Act Claims
(a) Compulsory Nonsuit Claim
Stewart challenges his liability under the Dragonetti Act in his first three
issues on appeal. He contends the trial court erred and abused its discretion
when it failed to grant a compulsory nonsuit following Rubin’s case-in-chief.
Stewart’s Brief at 16. Stewart insists that Rubin failed to establish that
Stewart lacked probable cause in initiating and continuing the underlying
UTPCPL lawsuit, or, absent expert testimony, that he acted in a grossly
negligent manner. See id. at 16-17. Rather, Stewart maintains “no two
reasonable minds could disagree that the outcome should have been rendered
in [his favor], in light of the Pennsylvania Supreme Court’s recent decision in
Gregg v. Ameriprise Fin[ancial], Inc., 245 A.3d 637 (Pa. 2021).” Id. at
19. Stewart is entitled to no relief.
Preliminarily, we address Rubin’s contention that Stewart’s first issue is
waived because it is framed as a challenge to the trial court’s denial of his
motion for compulsory nonsuit. See Rubin’s Brief (2554 EDA 2021) at 19.
Rubin asserts: “Where, as here, the defendant elects to put on evidence after
the trial judge denies a nonsuit, the nonsuit stage is over and the correctness
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of that ruling is moot and cannot be reviewed.” Id., citing F.W. Wise Gas
Co. v. Beech Creek Railroad Co., 263 A.2d 313, 315 (Pa. 1970). Further,
Rubin notes that Stewart did not challenge the denial of the nonsuit in his
post-trial motions; rather, he argued he was entitled to judgment
notwithstanding the verdict (JNOV). See Rubin’s Brief (2554 EDA 2021) at
20-21. Accordingly, Rubin insists Stewart’s first issue is waived.
It is well-established that after moving for a compulsory nonsuit, “[i]f
the defendant elects to proceed, the non-suit stage is over and the correctness
of the court’s ruling is moot.” Burns v. City of Philadelphia, 504 A.2d 1321,
1325 (Pa. Super. 1986). Nevertheless, this Court has considered arguments
in favor of a nonsuit when they are reasserted in support of a request for
JNOV. See id.; see also Northeast Fence & Iron Works, Inc. v. Murphy
Quigley Co., 933 A.2d 664, 668 (Pa. Super. 2007).
Here, the arguments Stewart presents in his brief in support of his
assertion the trial court improperly denied his request for a compulsory
nonsuit are the same arguments he presented in his post-trial motions and
Rule 1925(b) concise statement in support of his request for JNOV. Therefore,
we decline to conclude his challenge to the Dragnonetti Act verdict is waived;
instead, we review his argument as a claim that the trial court erred in denying
JNOV.
(b) JNOV Standard
Our review of an order denying JNOV is well-established:
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Our standard of review of an order denying [JNOV] is
whether, reading the record in the light most favorable to the
verdict winner and granting the benefit of every favorable
inference, there is sufficient competent evidence to support the
verdict. Any conflict in the evidence must be resolved in the
verdict winner[’s] favor. [JNOV] may be granted only in clear
cases where the facts are such that no two reasonable minds could
fail to agree that the verdict was improper.
Bannar v. Miller, 701 A.2d 242, 246 (Pa. Super. 1997) (citations omitted).
Moreover, JNOV “may not be employed to invade the province of the jury[;
t]hus, questions of fact must be resolved by the jury.” Ludmer v. Nerberg,
640 A.2d 939, 942 (Pa. Super. 1994).
(c) Underlying Cause of Action
In the present case, Stewart does not challenge the first two elements
of the Dragonetti claim ─ that is, he “initiated or continued” civil proceedings
against Rubin, and those proceedings were terminated in Rubin’s favor. See
42 Pa.C.S. § 8354. Rather, he insists Rubin failed to prove he acted either
without probable cause, or in a grossly negligent manner.
Stewart maintains that he reasonably pursued a UTPCPL claim against
Rubin under the “catch all” provision of the Act. See Stewart’s Brief at 19-
24. The UTPCPL provides, in relevant part:
Any person who purchases or leases goods or services
primarily for personal, family or household purposes and thereby
suffers any ascertainable loss of money or property, real or
personal, as a result of the use or employment by any person
of a method, act or practice declared unlawful by [Section
201-3] of this act, may bring a private action to recover actual
damages or one hundred dollars ($100), whichever is greater. . .
.
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73 P.S. § 201-9.2(a) (footnote omitted) (emphases added). Our Supreme
Court has explained that “[t]he UTPCPL’s private right of action is not a
general-purpose enforcement provision[, and o]nly those who can meet the
requirements of the UTPCPL’s private cause of action may bring a personal
action.” Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 105 A.3d
1188, 1194 (Pa. 2014).
Section 201-3 declares “unlawful” the acts defined as “[u]nfair methods
of competition” and “unfair or deceptive acts or practices” listed in Section
201.2. 73 P.S. § 201-3(a). In addition to 20 specific acts, Section 201-2
includes a catch-all provision, which defines a deceptive act as “[e]ngaging in
any other fraudulent or deceptive conduct which creates a likelihood of
confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi). Stewart asserts
that his UTPCPL claim against Rubin was grounded in the catch-all provision,
as interpreted by the Supreme Court in Gregg.16
In Gregg, a couple sued their financial advisor and his employer
(Ameriprise) after the advisor made material representations to them which
induced them to purchase certain insurance policies. See Gregg, 245 A.3d
at 640. They alleged common law claims for negligent and fraudulent
____________________________________________
16 Stewart’s reliance on Gregg is perplexing as that decision was filed on
February 17, 2021, nearly four years after Stewart initiated the UTPCPL
lawsuit by writ of summons, and more than two and one-half years after he
filed the third (and final) amended complaint. Nevertheless, he insists the
Gregg Court relied “on the holding of [Commonwealth v. Golden Gate
Nat’l Senior Care LLC, 194 A.3d 1010 (Pa. 2018)], which was the law at the
time . . . Stewart analyzed . . . Alejandro’s case.” Stewart’s Brief at 20.
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misrepresentation, as well a violation of the UTPCPL’s catch-all provision. See
id. at 640-41. A jury returned a defense verdict on the common law claims,
but the UTPCPL claim proceeded to a bench trial, and the trial court ruled in
favor of the couple. See id. at 641. Ameriprise subsequently argued that,
based upon the jury’s defense verdict on the common law claims, the couple
failed to establish that the advisor’s “misrepresentations were, at the very
least, negligent, a finding that Ameriprise asserted was required to establish
deceptive conduct under the [UTPCPL].” Id. After the trial court, and this
Court, rejected that claim, Ameriprise appealed to the Supreme Court.
The Supreme Court agreed with the decision of this Court that “a strict
liability standard applies to [the couple’s UTP]CPL claim.” Gregg, 245 A.3d
at 641.
A plain language analysis of the relevant statutory provision leads
inexorably to the conclusion that deceptive conduct under the
[UTP]CPL is not dependent in any respect upon proof of the actor’s
state of mind. The Superior Court’s holding is consistent not only
with the plain language of the [UTP]CPL, but also with our
precedent holding that the [UTP]CPL is a remedial statute that
should be construed broadly in order to comport with the
legislative will to eradicate unscrupulous business practices.
Id. See also Golden Gate Nat'l Senior Care, 194 A.3d at 1023 (“[N]either
the intention to deceive nor actual deception must be proved; rather, it need
only be shown that the acts and practices are capable of being interpreted
in a misleading way.”) (emphasis added). The Gregg Court explained that
the UTPCPL verdict was based upon the trial court’s determination that
Ameriprise’s representations to the [couple] “created a likelihood
of confusion or misunderstanding” because [the advisor] “failed to
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clearly and fully explain the cost and terms of the [life insurance]
policy” [and a]s a result, the [couple] “reasonably believed” that
they would not pay any additional money for the new life
insurance policy.
Id. at 652 (record citation omitted).
Relying on Gregg, Stewart argues that Alejandro’s claims were
actionable under the catch-all provision which imposes strict liability on
“commercial vendors who engage in conduct that has the potential to deceive
and which creates a likelihood of confusion or misunderstanding.” Stewart’s
Brief at 20 (citation omitted). Here, Stewart maintains: (1) Alejandro
received “a consumer service” from Rubin’s business, namely an eye
examination; (2) Alejandro suffered a “loss of property” when she was not
provided her prescription immediately following the examination; and (3)
Alejandro was informed by Rubin’s office manager that she had to pay for
glasses before she would be given her prescription. Id. at 23. Stewart insists
that the fact Rubin provided Alejandro with a “fake invalid prescription”17 after
____________________________________________
17 Stewart asserts that the prescription Rubin belatedly provided to Alejandro
was “invalid” because Rubin admitted at trial that he ─ not a licensed
optometrist ─ “authored and signed the prescription.” Stewart’s Brief at 22.
See also N.T., 7/15/21, at 121 (acknowledging he “filled out all the
information” on the optometrist’s prescription pad and handed the prescription
to Alejandro). Stewart claims that Alejandro never obtained a valid
prescription, which pursuant to 49 Pa. Code § 23.72 must, inter alia, “bear
the date it was issued by a licensed practitioner and contain an expiration
date.” Stewart’s Brief at 33. See 49 Pa. Code § 23.72 (requiring an
“[o]ptometric prescriptions” bear, inter alia, (1) the name, address and license
number of optometrist; (2) patient’s name; (3) date prescription was issued;
and (4) expiration date). It bears emphasis, however, that it is undisputed
Alejandro used that purportedly invalid prescription to obtain eyeglasses at
another establishment.
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he spoke with Stewart, does not spare him liability ─ Rubin engaged in a
“deceptive and misleading act” when he and his employees “condition[ed] the
issuance and release of [Alejandro’s] prescription” on something other than
her payment for an eye examination. Id. at 22-23, 24.
(d) Dragonetti Act analysis
With this background in mind, we consider Stewart’s primary claim that
Rubin failed to demonstrate Stewart lacked probable cause to initiate and
continue the underlying proceedings or that he acted in a grossly negligent
manner. With regard to probable cause, Stewart argues that Rubin failed to
present any evidence that he “did not reasonably believe . . . Alejandro’s claim
was anything but valid under existing or developing law.” Stewart’s Brief at
30. See also 42 Pa.C.S. § 8352(1). He emphasizes Rubin’s “series of
misrepresentations[,]” including that Rubin submitted a bill to Alejandro’s
insurance for the eye exam under the wrong location and wrong optometrist,
that Alejandro was not provided with her prescription after the exam, and that
Alejandro was required to purchase glasses before obtaining her prescription.
Stewart’s Brief at 30. Moreover, Stewart maintains that there was no evidence
presented that his initiation and continuation of the underlying lawsuit was
“intended to merely harass or maliciously injure” Rubin. Id. at 31. See also
42 Pa.C.S. § 8352(3). He insists that as an attorney, he is permitted to pursue
a lawsuit he “believes is not going to prevail as long as he files it for the
purpose of adjudicating the claim and not intended primarily for an improper
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purpose.” Stewart’s Brief at 31. Here, Stewart emphasizes that while Rubin
contends he filed the lawsuit in response to an insult made during their
January 2017 telephone call, the record reveals Alejandro hired him before
that insult and before Rubin “issued the fraudulent prescription.” See id. at
32.
With regard to the assertion that he was grossly negligent, Stewart
insists the claim fails because Rubin neglected to present expert testimony.
Stewart’s Brief at 34-35. Relying on federal case law, Steward contends that
a Dragonetti action is similar to a legal malpractice action, and, therefore,
expert testimony is required to establish the standard of care. See Stewart’s
Brief at 35.
The trial court rejected Stewart’s claims, concluding there was sufficient
evidence for the jury to conclude that Stewart initiated and continued the
underlying action both without probable cause and in a grossly negligent
manner. See Trial Ct. Op., 4/5/22, at 12-15.
Regarding the lack of probable cause, the court concluded “[t]here was
ample evidence [Stewart] lacked ‘good faith’” when he filed the underlying
complaint based upon “known falsehoods.” Trial Ct. Op., 4/5/22, at 14.
Indeed, Stewart filed a suit “alleging that Rubin did not provide Alejandro with
a copy of her prescription” when he knew that was untrue. Id. In fact,
Stewart knew “the matter was resolved to Alejandro’s satisfaction on January
17, 2017 when she was handed a copy of her eyeglass prescription[,]” which
she later used “to purchase prescription glasses from another entity.” Id. at
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15. “Nevertheless, a complaint was drafted, and verified, knowingly
containing false information.” Id.
Moreover, the trial court observed that while Stewart “professed to be
“well-versed’” in the UTPCPL, he filed a complaint based upon Rubin’s failure
to provide Alejandro with a copy of her prescription, which involved a medical
service ─ exempt from the act ─ and for which Rubin, an optician, had no
obligation to provide. See Trial Ct. Op., 4/5/22, at 14. Rather, the “eyeglass
rule,” upon which Stewart based Alejandro’s entire complaint, provides, in
relevant part:
It is an unfair act or practice for an ophthalmologist or
optometrist to:
(a) Fail to provide to the patient one copy of the patient’s
prescription immediately after the eye examination is
completed. . . .
16 C.F.R. § 456.2(a) (emphasis added). As the trial court points out, Stewart
“failed to offer any evidence that [Rubin] held himself out as either an
ophthalmologist or optometrist.” Trial Ct. Op., 4/5/22, at 14.
The trial court also found the jury’s verdict could have been based upon
a determination that Stewart was “grossly negligent.” See Trial Ct. Op.,
4/5/22, at 12-13. Contrary to Stewart’s claim, the court concluded that no
expert testimony concerning Stewart’s actions in his capacity as Alejandro’s
attorney was required because “[t]he issues presented . . . were neither
complex nor beyond the knowledge of the average person.” Id. at 13. The
court summarized:
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Alejandro wanted a prescription for glasses; [Rubin] refused
to give her a copy when she rejected delivery of glasses using said
prescription. Alejandro contacted Stewart through HLS for
assistance. Alejandro received a copy of her prescription within
an hour after Stewart contacted [Rubin].
On the date that the Writ of Summons was filed, all parties
knew that Alejandro had, as of January 17, 2017, a copy of her
prescription ─ without charge ─ and was able to obtain
prescription glasses. Nevertheless, [Stewart] alleged that [Rubin]
was continuing to withhold the eyeglass prescription.
* * *
[Furthermore,] Stewart, without Alejandro’s consent or
knowledge, submitted a demand to settle the matter based upon
issues totally unrelated to the underlying cause of action. The
suit, based upon false and inaccurate information, continued for
almost 18 months before the state claims were dismissed and the
federal claims withdrawn, with prejudice.
Id. Consequently, the trial court concluded that the evidence presented was
sufficient to support the jury’s determination that Stewart was liable to Rubin
under the Dragonetti Act.
Upon our review of the record, we agree. Considering first the issue of
probable cause, the evidence supports a finding that Stewart did not
“reasonably believe[ ] in the existence of the facts upon which the claim [was]
based[.]” See 42 Pa.C.S. § 8352(1). Indeed, Stewart himself acknowledged
that at the time he notified Rubin of the claim on January 27, 2017, he knew
that, 10 days earlier, Rubin had provided Alejandro with a copy of her
prescription, at no charge, which she then used to obtain other glasses.18 See
____________________________________________
18 Moreover, both Rubin and Alejandro testified that they informed Stewart
that Alejandro received a copy of her prescription before he filed the lawsuit.
(Footnote Continued Next Page)
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N.T., 7/19/21, at 57-58. Nevertheless, Stewart repeatedly asserted in each
of the underlying complaints that he filed Alejandro’s notice of claim on
January 27th “[a]fter unsuccessful attempts . . . to . . . obtain [her]
prescription” which Rubin “still refused to provide” unless Alejandro paid
for eyeglass frames. See Alejandro’s Third Amended Complaint, 5/2/18, at
¶¶ 37-38 (emphasis added). Thus, Stewart knew the factual basis supporting
Alejandro’s claim was false.
Furthermore, Stewart’s new assertion ─ that the prescription Rubin
provided to Alejandro was “fraudulent” and therefore Alejandro never had “a
valid prescription” ─ is a red herring. See Stewart’s Brief at 32-33. First,
Stewart did not raise that claim in the underlying proceedings; thus, he cannot
rely on it at this time to justify his prior actions. Second, Alejandro admitted
that she used the prescription provided to her by Rubin to purchase eyeglasses
at another establishment. Thus, Stewart’s present claim that Alejandro was
never provide a “valid” prescription is simply false.
Moreover, there was also sufficient evidence for the jury to conclude
Stewart did not “reasonably believe[ ]” Alejandro had a valid claim under
existing or developing law. See 42 Pa.C.S. § 8352(1). As explained supra,
a private action under the UTPCPL may be filed only if a person “purchases or
____________________________________________
See N.T., 7/14/21, at 122-23 (Alejandro admitting Stewart knew she had the
prescription before he filed the lawsuit); 144 (Rubin stating he informed
Stewart that he had already given Alejandro’s her prescription after receiving
Stewart’s notice of claim).
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leases goods or services” and “suffers any ascertainable loss or money or
property” as a result of the defendant’s “use or employment” of an unlawful
practice as defined in the Act. 73 Pa.C.S. § 201-9.2(a). Here, although
Alejandro purchased a “service” ─ i.e., her eye examination ─ it is well-
established that “the UTPCPL does not apply to providers of medical
services.” See Walter v. Magee-Womens Hosp. of UPMC Health Sys.,
876 A.2d 400, 407 (Pa. Super. 2005) (emphasis added), aff'd per curiam, 906
A.2d 1194 (Pa. 2006). Therefore, the failure to provide Alejandro with her
prescription immediately following her medical examination is not actionable
under the UTPCPL. Moreover, Stewart failed to present any evidence that
Alejandro suffered an “ascertainable loss of money or property” as a result of
the purportedly deceptive act. See 73 Pa.C.S. § 201-9.2(a). Alejandro
received a copy of her prescription at no cost, and was not required to pay for
the glasses that she ordered, but later refused to purchase. Accordingly,
contrary to Stewart’s assertion, Gregg provides no basis for relief, as that
case did not involve medical services, and the plaintiffs clearly suffered an
“ascertainable loss of money” by having to pay “additional money for the new
life insurance policy.” See id.; Gregg, 245 A.3d at 652.
Lastly, the evidence presented at trial was sufficient for the jury to
conclude that Stewart, as Alejandro’s attorney, did not, in good faith, believe
the action was initiated and continued for a purpose other than merely to
harass or maliciously injure Rubin. See 42 Pa.C.S. § 8352(3). Rubin testified
that he insulted Stewart during their January 17, 2017, a claim which Stewart
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denied. See N.T., 7/15/21, at 128, 135; N.T., 7/19/21, at 37. However,
despite the fact that Alejandro testified she only wanted a copy of her
prescription, and that she received that copy on January 17, 2017, Stewart
proceeded to send Rubin a notice of claim 10 days later, and, on February 21,
2017, a demand for $25,000 to settle all claims against him. See Stewart
Exhibit 5 (Email from Stewart to Rubin, 2/21/17). Stewart then proceeded to
make repeated settlement demands, several without Alejandro’s knowledge
or consent, and without any monies directed to her alleged damages.
Accordingly, we agree with the determination of the trial court that there
was sufficient evidence in the record to support the jury’s verdict ─ namely,
that Stewart initiated and continued Alejandro’s action without probable
cause. See Bannar, 701 A.2d at 246. Because we conclude the verdict was
proper under the no probable cause prong, we need not address whether
Stewart acted with gross negligence. See Keystone Freight Corp., 31 A.3d
at 973 (“Section 8351 permits a cause of action to be based on gross
negligence or lack of probable cause”) (citations & quotation marks omitted).
Nevertheless, we agree with the trial court’s determination that expert
testimony is not required to prove an attorney’s liability in a Dragonetti action,
particularly where, as here, the issues were “neither complex nor beyond the
knowledge of the average person.” See Trial Ct. Op., 4/5/22, at 13. See
also Miller v. St. Luke's Univ. Health Network, 142 A.3d 884, 896-97 (Pa.
Super. 2016). Thus, Stewart’s first three issues, challenging the jury’s verdict
on Dragonetti claim, warrant no relief.
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(2) Alejandro’s Dragonetti Act Claim
In her only challenge to the jury’s verdict, Alejandro, represented by her
co-defendant Stewart,19 argues that Rubin failed to prove she “lacked
probable cause to bring the underlying consumer protection action in order to
hold her liable under the Dragonetti Act.” Alejandro’s Brief at 22. First, she
contends the question of whether she had probable cause to initiate and
continue the underlying action should have been determined by the trial court,
and not submitted to the jury. Id. at 24. Second, Alejandro insists that Rubin
failed to establish she lacked probable cause or acted with gross negligence in
bringing the underlying action, or that she did so “for any improper purpose.”
Id. at 25. Rather, Alejandro asserts that as Stewart’s client, she was entitled
to rely upon his legal advice, so long as she provided all the relevant facts
necessary to litigate her claim. See id. at 27. She contends that she “had
probable cause once she gave attorney . . . Stewart full disclosure of all
relevant facts and sought his advice in good faith.” Id. at 31-32. Like
Stewart, Alejandro relies upon Gregg, supra, as support for her underlying
UTPCPL allegations. See Alejandro’s Brief at 34-35.
____________________________________________
19 This Court has held that an attorney, who is disqualified from representing
a client at trial, is not permitted to represent that same client on appeal as to
any claim, except to challenge the disqualification order. See E.R. v. J.N.B.,
129 A.3d 521 (Pa. Super. 2015). Thus, it is clearly improper for Stewart to
represent Alejandro in her appeal challenging the jury’s verdict regarding the
Dragonetti claim. Nevertheless, as this Court concluded in E.R., we decline
to punish Alejandro for Stewart’s actions, and thus, we will address her
Dragonetti claim on appeal.
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Alejandro is entitled to no relief. As we noted supra, while the existence
of probable cause in a Dragonetti action is generally a question of law for the
court, it “may be submitted to the jury when facts material to the issue of
probable cause are in controversy.” Broadwater, 725 A.2d at 782 (emphasis
& citation omitted). Here, although Alejandro claims “the undisputed facts”
demonstrate she “sought advice in good faith regarding a potential” legal
issue, she provides no support for her bald allegation. See Alejandro’s Brief
at 24.
Rather, our review of the record reveals Alejandro never testified that
she relied, in good faith, on Stewart’s legal advice before agreeing to institute
the UTPCPL lawsuit. See 42 Pa.C.S. § 8352(2) (a person has probable cause
if she “reasonably believes in the existence of the facts upon which the claim
is based, and . . . believes to this effect in reliance upon the advice of counsel,
sought in good faith and given after full disclosure of all relevant facts”). In
fact, she testified that when she contacted Stewart, she “just wanted [her]
prescription. That’s all [she] needed.” N.T., 7/14/21, at 114. Although
Alejandro agreed that “[b]efore suing [ ] Rubin [she] relied on the advice of
counsel[,]” she provided no details as to the advice she received, or why she
agreed to institute the lawsuit after she received what she wanted ─ her
prescription. See id. at 127. Moreover, she conceded that she rejected
Rubin’s $5,000 settlement offer, “[e]ven though [she] had no intentions of
initially suing” him. Id. at 123. Alejandro did not elaborate as to why she
believed any of her claims had legal merit. In fact, she later testified that she
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was “not sure what [her] eyes have to do with money.” Id. at 132.
Furthermore, the jury was permitted to infer that Alejandro, at the very least,
continued the proceedings for an improper purpose when she rejected Rubin’s
settlement offer, despite her admission that she suffered no damages. See
42 Pa.C.S. § 8351(a)(1). Accordingly, we conclude the evidence was sufficient
for the jury to find that Alejandro had no probable cause to initiate and
continue the underlying action.
We also emphasize, as Rubin points out in his brief, that Alejandro
provides no argument rebutting Rubin’s alternative claim that she acted in a
“grossly negligent” manner. See Rubin’s Brief (2555 EDA 2021) at 32.
Indeed, the question presented on the jury’s verdict slip read as follows:
Did [ ] Alejandro procure, initiate, or continue the underlying
action in a grossly negligent matter OR without probable cause?
Verdict Slip at 1 (emphasis added). As noted above, “the clear language of
Section 8351 permits a cause of action to be based on gross negligence or
lack of probable cause.” Keystone Freight Corp., 31 A.3d at 973 (citation
& quotation marks omitted; emphasis added). Thus, the jury could have
concluded Alejandro acted in a grossly negligent manner ─ a finding she does
not challenge on appeal ─ and we could affirm on that basis as well.
Consequently, Alejandro’s first claim fails.
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IV. STEWART’S REMAINING ISSUES (2554 EDA 2021)
(1) Admission of Evidence
Next, Stewart challenges the trial court’s rulings admitting certain
evidence. “Questions concerning the admission or the exclusion of evidence
are within the sound discretion of the trial court and will not be reversed on
appeal absent a clear abuse of discretion.” Ludmer, 640 A.2d at 944.
An abuse of discretion is not merely an error of judgment[ but,
rather, is] the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result
of bias, prejudice, ill-will[,] or partiality, as shown by the evidence
of record. If in reaching a conclusion the trial court overrides or
misapplies the law, discretion is then abused[,] and it is the duty
of the appellate court to correct the error.
El-Gharbaoui v. Ajayi, 260 A.3d 944, 964 (Pa. Super. 2021) (citation
omitted).
Stewart contends the trial court abused its discretion when it admitted
the following evidence: (1) Judge Bartle’s August 29, 2018, memorandum
disposing of the underlying federal lawsuit; (2) references to the Pennsylvania
Rules of Professional Conduct; (3) Stewart’s “compromise offer” and
settlement negotiations; (4) Brother’s testimony as a fact witness; and (5)
Rubin’s legal invoices. We address these claims seriatim.
(a) Judge Bartle’s Memorandum
Stewart insists the trial court’s ruling permitting “references to Judge
Bartle’s August 29, 2018, Memorandum” was improper for several reasons.
Stewart’s Brief at 37. First, he maintains “the Memorandum was confusing
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and prejudicial to the extent it formed the basis of liability” against him. Id.He also argues the admission of the decision violated Fed.R.Civ.P. 56(e)
(summary judgment) and Pa.R.C.P. 4014(d) (request for admission). Id.Stewart contends that although Judge Bartle treated the motion as
“unopposed,” Rubin argued to the jury that Judge Bartle found the facts were
“undisputed.” See id. at 41. Lastly, Stewart asserts the memorandum was
either inadmissible hearsay, or admissible hearsay but “prejudicial and
improperly offered as evidence that [he] lacked probable cause for the
underlying action” because he was not a party to the underlying action. Id.
at 38. See also id. at 45 (arguing Judge Bartle’s memorandum does not
“bind” him because he was not a party in the underlying action).
We conclude no relief is warranted. Our Supreme Court has explained
that a judicial opinion is admissible if it is relevant, it is “not inadmissible
hearsay[,]” and it is “probative and not unfairly prejudicial.” Castellani v.
Scranton Times, L.P., 124 A.3d 1229, 1240 (Pa. 2015). Here, Judge Bartle’s
opinion was relevant to establish that the underlying proceedings terminated
in Rubin’s favor, and that Stewart lacked probable cause to initate and
continue those proceedings. See 42 Pa.C.S. § 8351(a)(1)-(2). Stewart
argued that Judge Bartle ruled in Rubin’s favor merely because the motion
was unopposed, i.e., because he failed to file a response to the motion for
summary judgment. See N.T., 7/19/21, at 114-15. However, Judge Bartle
opined that Alejandro’s claims “fail[ed] for many reasons[,]” including the fact
that she proffered no evidence to support her allegation that the UTPCPL
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applied to the services provided by Rubin. See N.T., 7/14/21, at 164-65.
Moreover, contrary to Stewart’s characterizations, Rubin did not argue that
the “admissions” in Judge Bartle’s memorandum were “undisputed.” See
Stewart’s Brief at 41. The only mention of facts being “undisputed” was in
Judge Bartle’s memorandum, in which he set forth the facts underlying
Alejandro’s claims ─ none of which Stewart or Alejandro dispute in the present
case. See Stewart’s Motion for Post Trial Relief, 6/29/21, at Exhibit B, Judge
Bartle’s Memorandum, 8/29/18, at 3-4.
Stewart’s assertion that the admission of the memorandum violated
Fed.R.Civ.P. 56(e) and Pa.R.C.P. 4014(d) is specious. First, the federal rules
of civil procedure do not apply in state court. Moreover, the federal rule upon
which Stewart relies is inapplicable here. Fed.R.Civ.P. 56, which applies to
motions for summary judgment, provides, in relevant part:
(e) Failing to Properly Support or Address a Fact. If a party
fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by
Rule 56(c), the court may:
(1) give an opportunity to properly support or address the
fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials--including the facts considered undisputed--show
that the movant is entitled to it; or
(4) issue any other appropriate order.
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Fed.R.Civ.P. 56(e)(1)-(4) (emphasis added). The Rule simply permits a
federal court to consider an unopposed fact to be undisputed. It does not
mandate that the court must do so.
Similarly, Pa.R.C.P. 4014(d) is inapplicable as it pertains to pretrial
discovery requests for admissions. See Pa.R.C.P. 4014(a) (“A party may
serve upon any other party a written request for the admission, for purposes
of the pending action only[.]”), (d) (“Any admission by a party under this
rule is for the purpose of the pending action only and is not an admission by
the party for any other purpose nor may it be used against the party in any
other proceeding.”) (emphasis added). Judge Bartle’s memorandum was not
a “request for admission” admitted under Rule 4014. Thus, Rule 4014 has no
application here.
Lastly, to the extent Stewart argues the memorandum was inadmissible
hearsay, and, in any event, not binding on him because he was not a party in
that action, we conclude both of these arguments are waived. Indeed,
Stewart did not raise either of these assertions in his pretrial motion in limine
seeking to preclude admission of Judge Bartle’s memorandum, nor when
Rubin referenced the memorandum during trial. See Memorandum of Law in
Support of [Stewart’s] Motion in Limine at 13-15; N.T., 7/14/21, at 157-65.
Accordingly, Stewart’s first evidentiary challenge warrants no relief. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”).
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(b) Pennsylvania Rules of Professional Conduct
Stewart also contends the court abused its discretion when it permitted
“references to alleged violations of the Pennsylvania Rules of Professional
Conduct . . . to form the basis of [Rubin’s] case-in-chief on liability and
damages.” Stewart’s Brief at 45-46. He insists that a violation of the Rules
does not “have any relevance to the elements of a Dragonetti claim[,]” nor
does it provide a basis “for civil liability or damages[.]” Id. at 47, 49.
The trial court determined that “[a]ny objections to use of the Rules of
Professional Conduct were waived.” Trial Ct. Op., 4/5/22, at 15. The court
explained:
Questions of the witness’s familiarity with the Rules of Professional
Conduct (“Rules”) began on the second day of trial[, July 15,
2021.] During that testimony, Stewart and HLS objected nine (9)
times. The first . . . objection[ was] to citation; [however, when
Rubin’s counsel offered to publish the document to which he was
referring,] Stewart and HLS did not object to publication. The
second objection was to the form of a question. The third was
towards the relevance of a question related [to] fee agreements
as did the fourth. In response, Stewart said, “I think it would be
helpful if I answered a question.”
During question[ing], and based upon Stewart’s responses,
counsel for [Rubin] reproduced a copy of the Rules found at
www.padisciplinaryboard.org. Stewart and HLS lodged a fifth
objection claiming that the “documents” were never exchanged
before trial.
The sixth objection was as to relevance of any [questions]
about “any potential conflict of interest or any conflicts of
interest.” The seventh objection went to the form of the question
as did the eighth. The ninth, and final objection, in this course of
questioning was to relevance about [whether an attorney is acting
in his client’s] legitimate interest [when he realizes a financial gain
from] improperly delaying litigation.
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On July 16, 2021, the [Rubin] moved, into evidence, the
Rules referenced during Stewart's testimony. Stewart and HLS
objected to P-301 (Google search of the Rules).
Stewart returned to the stand on July 19, 2021 with the
Pennsylvania Rules of Court, “including the Pennsylvania Rules of
Professional Conduct. It’s the volume from 2008 that I had on my
desk.” It was not until [after all parties’] rested when Stewart and
HLS first objected to the use of the [Rules] in [Rubin’s] case in
chief.
Id. at 15-16 (footnotes omitted).
“It is axiomatic that in order to preserve a trial objection for review,
trial counsel is required to make a timely, specific objection during trial.”
Takes v. Metro. Edison Co., 695 A.2d 397, 400 (Pa. 1997) (citation
omitted).
Requiring issues to be properly raised first in the trial court
ensures that trial judges have the opportunity to consider a
potential appellate issue and correct any error at the first available
opportunity. It also promotes the orderly and efficient use of
judicial resources, ensures fundamental fairness to the parties,
and accounts for the expense attendant to appellate litigation.
Trigg v. Children's Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa.
2020) (citations omitted).
Our review of the record reveals the trial court properly concluded
Stewart waived any objection to Rubin’s reference to the Rules of Professional
Conduct by failing to make a timely and specific objection on that basis when
Rubin questioned him about his knowledge of the Rules. See N.T., 7/15/21,
at 84-114; N.T., 7/16/21, at 22-24. Accordingly, his present claim fails.
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(c) Compromise Offer & Settlement Negotiations
Next, Stewart argues the trial court abused its discretion when it
admitted into evidence an April 5, 2018, email Stewart, as Alejandro’s counsel,
sent to Rubin in response to Rubin’s $5,000 settlement offer. See Stewart’s
Brief at 49. The email rejected that offer and countered with a request for
$159,411.53, which included $33,000 in state and federal “statutory
penalt[ies,]” $100,000 in punitive damages, and $26,411.53 in attorneys’
fees. See Memorandum of Law in Support of [Stewart’s] Motion in Limine at
Exhibit K, Email from Stewart to Brother, 4/5/18 (April 5th email). Stewart
maintains the email should have been precluded pursuant to Pa.R.E. 408
(compromise offers and negotiations), or, alternatively, the jury should have
been instructed that the email “should not have been considered as proof of
punitive, emotional or any other type of damage[.]” Stewart’s Brief at 49-50.
Further, he asserts “the email should have been excluded based upon the
concept of judicial immunity.” Id. at 52.
Pennsylvania Rule of Evidence 408, which pertains to compromise offers
and negotiations, provides, in relevant part:
(a) Prohibited Uses. Evidence of the following is not admissible
─ on behalf of any party ─ either to prove or disprove the validity
or amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction:
(1) furnishing, promising, or offering ─ or accepting, promising to
accept, or offering to accept ─ a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations
about the claim.
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(b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice, negating a
contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
Pa.R.E. 408(a)(1)-(2), (b).
In the present case, Rubin contends the April 5th email was not
admitted for one of the purposes prohibited under Rule 408(a). See Rubin’s
Brief (2554 EDA 2021) at 49. Rather, he maintains that the email was
admissible under Rule 408(b) for another purpose ─ that is, as evidence that
“the action was brought and prosecuted with gross negligence and for an
improper purpose and with a reckless disregard for [his] interests.” Id. at 48.
We agree.
Rubin’s Dragonetti action focused on Stewart’s unreasonable demands
and outrageous allegations. The April 5th email was at the heart of his
grievances. In his complaint, Rubin alleged that after Stewart threatened to
“put [him] in jail and to put [him] out of business” for billing errors, “Stewart
sent an e-mail to [Rubin’s] attorney with a demand for $159,411.53 and a
threat to report [Rubin’s] alleged ongoing criminal conduct to a tribunal unless
the matter was concluded.” Rubin’s Complaint at 3. He also relied upon the
threats and “blackmail” in the April 5th email to support his request for
punitive damages. See id. at 6 (averring Stewart “committed the crime of
blackmail by demanding $159,411.53, for a matter in which his client suffered
no damages, to refrain from reporting alleged ongoing criminal conduct”).
Accordingly, we agree that the April 5th email was admissible pursuant
to Rule 408(b) for a purpose other than those prohibited under subsection (a).
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Rubin did not seek to admit the April 5th email to “prove or disprove the
validity” of Alejandro’s underlying UTPCPL claims, or the amount of Alejandro’s
claim. See Pa.R.E. 408(a). Rather, he sought to admit the unreasonable
demands and outrageous allegations of criminal conduct detailed in the email
to support his claim that Stewart acted with gross negligence and for an
improper purpose. Furthermore, contrary to Stewart’s argument, the other
purposes for which compromise or settlement offers may be admissible are
not limited to those “three exceptions” stated in Rule 408(b). See Stewart’s
Brief at 51. Rather, the Rule prefaces the three stated exceptions with the
phrase “such as,” which connotates that other exceptions are permissible.
See Pa.R.E. 408(b).
With regard to Stewart’s assertion that the trial court should have
instructed the jury that the email could not be considered as proof of any type
of damages,20 we find this claim waived because Stewart did not request this
instruction from the trial court, nor did he object to the court’s charge on
damages before the jury began deliberations. See Pa.R.A.P. 302(b) (“A
general exception to the charge to the jury will not preserve an issue for
appeal. Specific exception shall be taken to the language or omission
complained of.”). Although Stewart did argue in his motion in limine that the
email should be excluded as proof of damages because there was no
evidence the email was “communicated to [Rubin] directly[,]” he did not
____________________________________________
20 See Stewart’s Brief at 49-50.
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request a specific jury charge to the effect. See Memorandum of Law in
Support of [Stewart’s] Motion in Limine at 18-19. Moreover, in his brief,
Stewart provides no support statutory authority or caselaw for his assertion
that “the email should have been excluded as proof of punitive, emotional or
any other type of damage.” See Stewart’s Brief at 53. Thus, we reject this
claim as waived and undeveloped.
Lastly, Stewart’s reliance on the concept of “judicial immunity” is
specious. “It has long been established that statements contained in
pleadings, as well as statements made in the actual trial or argument of a
case, are privileged.” Post v. Mendel, 507 A.2d 351, 353 (Pa. 1986). The
email at issue herein, however, was an extra-judicial communication
between the attorneys representing both parties. An extra-judicial
communication is not protected by judicial immunity unless it was “issued in
the regular course of judicial proceedings as a communication pertinent and
material to the redress sought.” Post, 507 A.2d at 355-56. We cannot
conclude the email at issue herein meets this standard. Accordingly, we agree
that the trial court did not abuse its discretion in determining the email was
admissible in the present case.
(d) Brother’s Testimony as Fact Witness
Stewart’s penultimate evidentiary challenge is to the court’s ruling
permitting Brother, who previously served as Rubin’s attorney in this matter,
to testify as a fact witness at trial. Stewart’s Brief at 54. He argues Brother’s
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testimony “confused and prejudiced the jury into believing [he] was an expert”
witness. Id. Moreover, Stewart emphasizes that during rebuttal, Rubin was
permitted to refer to Brother’s “attorney notes” to support his allegation that
Stewart called him a “piece of shit” during his deposition, an insult that was
not transcribed. See id. 55-56. Stewart insists that the use of these notes
constituted “trial by ambush and violates the spirit of the discovery rules”
because the notes would have been “clearly protected during the pendency of
the . . . matter.” Id. at 54, 56.
First, we note that Brother was never presented as an expert witness to
the jury, nor did Rubin argue that Brother’s testimony should be considered
as such. Rather, when Stewart objected to Brother’s testimony at trial, the
trial court ruled that Brother “can be questioned as to facts[,]” but would not
be “allowed to provide expert testimony.” See N.T., 7/14/21, at 141-42. In
fact, Rubin’s attorney confirmed that he was not offering Brother as an expert
witness. See id. at 142. Brother’s subsequent testimony focused on his
interactions with Stewart, as Alejandro’s attorney, in the underlying UTPCPL
action. Stewart provides no support for his allegation that the jury believed
Brother was an expert witness.
Stewart also provides no support for his assertion that Brother should
not have been permitted to refer to his attorney notes during rebuttal
testimony.
“[T]he admission or rejection of rebuttal evidence is within the
sound discretion of the trial judge.” Moreover, our Supreme Court
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has stated that “[r]ebuttal is proper where facts discrediting the
proponent[’]s witnesses have been offered.”
Mitchell v. Gravely Int'l, Inc., 698 A.2d 618, 620 (Pa. Super. 1997)
(citations omitted).
Here, during his direct examination, Brother testified that Stewart
“threatened” Rubin and “called him a piece of shit” during Rubin’s deposition.
See N.T., 7/14/21, at 180. During cross-examination, Stewart questioned
Brother concerning whether he “thought to memorialize or put that insult in
writing[.]” N.T., 7/15/21, at 19. Brother responded:
I don’t recall off the top of my head, the dates, but in pleadings
filed with the Court or motions I did address the fact that [ ]
Stewart called [ ] Rubin a piece of shit during the deposition.
Id. However, he conceded he did not request the court reporter to put that
statement on the record. Id. at 20.
After Stewart denied making such a statement at Rubin’s deposition,
and commenting that he “would have expected” Rubin’s attorney to put
“anything negative [that] had occurred on the record,”21 Rubin called Brother
as a rebuttal witness. Brother testified that after Stewart’s testimony, he
searched through his documents to see if there was any reference to the
insult. See N.T., 7/19/21, at 147. At that time, he found notes he had taken
during the deposition in which he recorded that Stewart said “[q]uote, for
being a piece of shit, end quote.” See id. at 150. Although Stewart objected
on the basis that he had not had the opportunity to review the attorney notes,
____________________________________________
21 See N.T., 7/16/21, at 93-94.
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and that they were privileged, the court permitted Rubin to publish the notes
to the jury over Stewart’s objection. See id. at 147-50.
Stewart fails to establish the trial court abused its discretion in
permitting the rebuttal evidence. Although Stewart knew Brother alleged in
court pleadings that Stewart made the insult at the deposition, he did not
request any evidence supporting that claim as part of discovery. Further, he
provides no support for his present assertion that any such evidence would
have been privileged, and non-discoverable. Brother testified as to his belated
discovery of his notes from the deposition. Thus, the decision to admit the
rebuttal testimony and evidence was within the court’s discretion. See
Mitchell, 698 A.2d at 620.
(e) Legal Invoices
Lastly, Stewart argues the trial court abused its discretion when it
permitted Rubin to introduce into evidence legal invoices he received in
connection with the underlying case. Stewart’s Brief at 57-58. Stewart
maintains the invoices constituted “inadmissible unauthenticated hearsay[,]”
were not accompanied by testimony that fees charged were “reasonable and
customary[,]” and included “references to legal fees generated during” the
Dragonetti matter. Id. at 58.
The trial court found this claim waived. Trial Ct. Op., 4/5/22, at 11-12.
We agree. During his direct examination, Rubin testified regarding the legal
expenses he incurred during the underlying matter, and how he had to apply
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for a loan to pay those expenses. See N.T., 7/15/21, at 161-64. Upon
redirect, he was asked to identify legal invoices he received from Brother, as
well as another attorney that had represented him at one time. See N.T.,
7/15/21, at 209-11. Stewart lodged no objection to Brother’s invoices, but
initially objected to the other attorney’s invoices as “hearsay,” asserting they
were not authenticated. See id. at 210-11. After Rubin’s attorney explained
that the documents were cross-marked as “Defense Exhibit 34,” Stewart’s
counsel withdrew his objection. See id. at 211-12. It was not until the next
day ─ after Rubin rested his case-in-chief and his attorney moved the invoices
into evidence ─ that Stewart objected to the invoices as not authenticated.
See N.T., 7/16/21 at 24. Because this objection was untimely, Stewart’s
present claim is waived. See Takes, 695 A.2d at 400.
(2) Remittitur
Stewart next argues the jury’s award of $480,000 in expenses “incurred
in defending the underlying action” is not supported by the evidence, which
established, at most, $41,000 in reasonable attorney’s fees. See Stewart’s
Brief at 60-62. Because “[t]he record is devoid of any additional expenses
incurred by” Rubin, Stewart insists the trial court “must reduce the verdict to
the amount actually incurred.” Id. at 60.
In addition, Stewart argues the record does not support the jury’s award
of $100,000 for emotional distress because Rubin failed to “establish a factual
nexus of causation . . . arising from the underlying pleadings, discovery,
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joinder of parties or any impermissible civil process.” Stewart’s Brief at 62-
63. He asserts that “[j]udicial immunity would preclude something that
transpired during the underlying lawsuit from forming the basis of emotional
distress[.]” Id. at 64. Stewart again complains that the April 5th email could
not have caused Rubin’s emotional distress because it was not sent to Rubin
directly and “Pennsylvania law requires personal presence of the alleged victim
of conduct which cased infliction of emotional distress[.]” Id., citing Taylor
v. Albert Einstein Medical Center, 754 A.2d 650 (Pa. 2000).
When reviewing a trial court’s denial of a remittitur, we must bear in
mind the following:
[J]udicial reduction of a jury award is appropriate only when the
award is plainly excessive and exorbitant. The question is whether
the award of damages falls within the uncertain limits of fair and
reasonable compensation or whether the verdict so shocks the
sense of justice as to suggest that the jury was influenced by
partiality, prejudice, mistake, or corruption. Furthermore, [t]he
decision to grant or deny remittitur is within the sole discretion of
the trial court, and proper appellate review dictates this Court
reverse such an Order only if the trial court abused its discretion
or committed an error of law in evaluating a party’s request
for remittitur.
Tong-Summerford v. Abington Mem'l Hosp., 190 A.3d 631, 650 (Pa.
Super. 2018) (citations omitted).
Rubin suggests Stewart’s challenge to the jury’s award of $480,000 for
“pecuniary losses other than attorney’s fees” is waived because Stewart did
not object to the court’s instructions, which permitted the jury to award such
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damages, nor did he request that the expenses awarded be limited to
attorney’s fees. Rubin’s Brief (2554 EDA 2021) at 64-65. We agree.
The trial court’s jury instruction on damages included the following:
[Rubin] is entitled to be fairly and adequately compensated
for all harm he suffered as a result of [Stewart’s and Alejandro’s]
conduct. The amount you award today must compensate [him]
completely for damages sustained in the part and in the future, if
any . . .
* * *
The injuries for which you may compensate [Rubin] by an
award of damages against [Stewart and Alejandro] include the
expenses, including lawyer fees, incurred in the successful
defense of the charges in the underlying case; the harm to
[Rubin’s] reputation that you find resulted from [Stewart’s and
Alejandro’s] conduct; the pecuniary, or financial, losses, if any,
suffered that you find resulted from [Stewart’s and Alejandro’s]
conduct; and lastly, the emotional distress, mental anguish, and
humiliation that you find [Rubin] suffered as a result of [Stewart’s
and Alejandro’s] conduct.
N.T., 7/19/21, at 221-22. We note that this was the instruction requested
by Stewart. See Proposed Points for Charge for [Stewart], 7/8/21, at 46.
Therefore, the jury was instructed that an award for expenses incurred
in defending the underlying action was not limited to attorney’s fees. Rather,
the jury was permitted to award any “pecuniary, or financial, losses” it
determined Rubin suffered as a result of Stewart’s and Alejandro’s conduct.
See N.T., 7/19/21, at 222. Rubin testified that he became “obsessed” with
and “consum[ed]” by the lawsuit, spending “hours and hours” attempting to
find a solution, and he “[c]ouldn’t focus” at work. N.T., 7/15/21, at 167. He
stated that the lawsuit “affected [his] whole staff because he was “constantly
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unavailable” and began working only “20 hours a week.” Id. at 169-70.
Although he acknowledged on cross-examination that he did not “claim any
loss of revenue,” he was positive he did lose revenue by “not being there”
because he is the “one that generates the income for the practice.” Id. at
172. Thus, there was testimony for the jury to determine that the expenses
Rubin incurred as a result of the underlying lawsuit was much more than
simply the attorney’s fees. Stewart could have objected to the court’s
instruction or requested the court charge the jury that those damages were
limited to reasonable attorney’s fees. Because he did not, his challenge to
this part of the jury’s award is waived. See Pa.R.A.P. 302(b).
We also reject Stewart’s challenge to the $100,000 award for emotional
distress. The Dragonetti Act permits a plaintiff to recover damages for, inter
alia, “[a]ny emotional distress that is caused by the proceedings.” 42 Pa.C.S.
§ 8353(5). Furthermore, medical testimony is not a prerequisite for an award
of emotional distress damages in a Dragonetti Act. See Bannar, 701 A.2d at
251. This Court has explained:
A jury can reach a fair and competent determination of
compensatory damages in the absence of medical testimony,
based on evidence adduced at trial, even where the injury to the
plaintiff is intangible.
Id. See also Brown v. Halpern, 202 A.3d 687, 711 (Pa. Super. 2019)
(“Because emotional distress was not the tort he pursued, but was only the
basis for which he sought damages[ in Dragonetti action, plaintiff] was not
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required to offer medical evidence or third-party testimony regarding that
emotional distress.”).
When considering the appropriateness of a damages award, we view the
evidence in the light most favorable to the verdict winner, here, Rubin. See
Brown, 202 A.3d at 711. Rubin testified that he was “obsessed” with and
consum[ed]” by the underlying action, so much so that “it took away [his]
ability to . . . focus on [his] life.” N.T., 7/15/21, at 167. He explained that
he was “afraid to be at work” because he feared an “unhappy customer . . .
was going to sue” him. Id. at 168. Rubin testified he “couldn’t sleep at night”
and “would wake up in the morning in a panic.” Id. He was so terrified of
Stewart ─ whom he described as an “absolute crazy person” ─ that, after his
deposition, he installed security cameras at his house. Id. Rubin also stated
that his obsession with the lawsuit had a “huge impact on [his] marriage[,]”
and caused “a lot of tension[.]” Id. at 167. Moreover, Brother testified
regarding the changes he observed in Rubin as a result of the UTPCPL pending
lawsuit:
[M]y perception of . . . Rubin is he was always a strong, confident
person. Dealing with . . . Stewart and this lawsuit was causing
him to deteriorate in front of me.
. . . Rubin woke up every day thinking about this ridiculous
lawsuit until he went to sleep at night. It invaded his life to such
an extreme level that when we spoke about the matter, it affected
his every waking moment.
N.T., 7/14/21, at 183. Thus, there was ample testimony for the jury to award
Rubin damages for emotional distress.
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Moreover, Stewart’s reliance on Taylor, supra, is misplaced, as that
case involved a claim of intentional infliction of emotional distress not
wrongful use of civil proceedings. Moreover, the Taylor Court considered
whether a third person (in that case a mother) may recover for intentional
infliction of emotional distress, when that third person is not present at the
time an intentional tort is inflicted upon a third party (a child). See Taylor,
754 A.2d at 651. The Supreme Court held that the third party’s “presence”
was required in order to recover for intentional infliction of emotional distress.
See id. at 653. Thus, neither the facts in Taylor, nor issue it addresses, has
any application here.
Lastly, we reject Stewart’s renewed “judicial immunity” claim and
corresponding assertion that Rubin could not have suffered emotional distress
as a result of the April 5th email because it was not sent directly to him. As
we explained supra, the email was an extra-judicial communication
between the attorneys representing both parties, and was not issued in the
regular course of judicial proceedings. See Post, 507 A.2d at 355-56. With
regard to Rubin’s knowledge of the email, Brother testified that he “shared”
the April 5th email he received from Stewart with Rubin. See N.T., 7/14/21,
at 173. More importantly, Rubin never claimed his emotional distress was
caused solely by the outrageous demands and allegations in the April 5th
email. Thus, Stewart’s challenge to the court’s denial of a remittitur fails.
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(3) Punitive Damages
In his final issue, Stewart contends the trial court erred and abused its
discretion in permitting the jury to assess punitive damages against him when
“only the Pennsylvania Supreme Court and the Disciplinary Board[ ] can
administer ‘punishment’ to attorneys.” Stewart’s Brief at 65. While he
recognizes the Dragonetti Act authorizes punitive damages, Stewart insists
that “the concept of punitive damages against attorneys conflicts with the
sanctions provisions of [Pa.R.C.P.] 1023.4(a)(1) . . ., as promulgated by the
[Supreme] Court which regulates lawyers’ conduct and the Pennsylvania
Constitution.” Id. at 66. He emphasizes that pursuant to Article V, Section
10(c) of the Pennsylvania Constitution, “[o]nly the Supreme Court of
Pennsylvania, and natural extensions thereto, may promulgate rules of
practice including the right to punish attorneys.” Id. at 66-67.
Stewart further argues that “this is not an appropriate case for punitive
damages” because the record “does not support [Rubin’s] allegations that
[Stewart’s] conduct was malicious, willful, wanton, or oppressive[,]” or that
he “exhibited reckless indifference to the rights of” Rubin. Stewart’s Brief at
68. Moreover, Stewart argues that Rubin failed to present any evidence of
“wealth,” which Stewart contends the jury must consider before awarding
punitive damages. See id. at 71.
Section 8353 of the Dragonetti Act specifically provides for an award of
“[p]unitive damages according to law in appropriate cases.” 42 Pa.C.S. §
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8353(6). In determining whether a punitive damages award is appropriate,
we must bear in mind:
Punitive damages may be awarded for conduct that is outrageous,
because of the defendant’s evil motive or his reckless indifference
to the rights of others. Punitive damages must be based on
conduct which is malicious, wanton, reckless, willful, or oppressive
....
Further, one must look to the act itself together with all the
circumstances including the motive of the wrongdoers and the
relations between the parties . . . .
Feld v. Merriam, 485 A.2d 742, 747–48 (Pa. 1984) (citations omitted).
Here, Stewart first argues that an award of punitive damages against
an attorney usurps the Pennsylvania Supreme Court’s sole authority to
regulate and sanction attorney conduct provided in the Pennsylvania
Constitution. See Pa. Const. art. V, § 10(c) (“The Supreme Court shall have
the power to prescribe general rules . . . for admission to the bar and to
practice law, and the administration of all courts and supervision of all officers
of the Judicial Branch[.]”). He also insists a punitive damages award conflicts
with the sanctions provisions in Pennsylvania Rule of Civil Procedure 1023.4,
which authorizes a trial court to sanction an attorney for a violation of Rule
1023.1. Rule 1023.1 provides, in relevant part:
(c) The signature of an attorney . . . constitutes a certificate that
the signatory has read the pleading, motion, or other paper. By
signing, filing, submitting, or later advocating such a document,
the attorney . . . certifies that, to the best of that person’s
knowledge, information and belief, formed after an inquiry
reasonable under the circumstances,
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(1) it is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the
cost of litigation,
(2) the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification or reversal of existing law or the
establishment of new law,
(3) the factual allegations have evidentiary support or, if
specifically so identified, are likely to have evidentiary support
after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual allegations are warranted on the
evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.
(d) If, after notice and a reasonable opportunity to respond, the
court determines that subdivision (c) has been violated, the court
may, subject to the conditions stated in Rules 1023.2 through
1023.4, impose an appropriate sanction upon any attorneys, law
firms and parties that have violated subdivision (c) or are
responsible for the violation.
Pa.R.C.P. 1023.1(c)(1)-(4), (d).
Stewart contends that the sanction provisions in the Pennsylvania Rules
of Civil Procedure, which were promulgated by the Supreme Court, are the
only permissible sanctions that may be imposed against an attorney. See
Stewart’s Brief at 66-67. He highlights the Pennsylvania Supreme Court’s
decision in Villani v. Seibert, 159 A.3d 478 (Pa. 2017).
In that case, the Court considered whether the Dragonetti Act
“infringe[d] upon [the] Court’s [own] constitutionally prescribed power to
regulate the practice of law[.]” Villani, 159 A.3d at 479. The Court concluded
it did not, and refused to “per se immunize attorneys, as attorneys, from the
application of the substantive tort principles promulgated by the political
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branch in the Dragonetti Act.” Id. at 492-93 (footnote omitted). However,
although the Court noted that the defendant had not directly challenged the
“punitive damages aspect” of a Dragonetti claim as it relates to attorneys, it
observed that, in a future case,
there may be an argument to be made that punitive damages
awards should not be available against attorney-defendants in
Dragonetti cases, given that this Court has specifically provided
for sanctions to deter violations. See Pa.R.C.P. No. 1023.4(a)(1).
And it may also be that, in an appropriate case, the Court might
invoke Article V, Section 10(c) — in a fashion more restrained than
according blanket immunization to lawyers from the effects of a
substantive-law statute — to construe Dragonetti Act liability as
unwarranted in instances in which a claim was pursued based on
a good faith argument that the existing law should be changed.
Id. at 491-92. Thus, Stewart implies that the case sub judice presents this
Court with the opportunity to make such a ruling.
We reject Stewart’s claim for the following reasons. First, the Note to
Rule 1023.1 explicitly states:
The following provisions of the Judicial Code, 42 Pa.C.S., provide
additional relief from dilatory or frivolous proceedings: (1)
Section 2503 relating to the right of participants to receive counsel
fees and (2) Section 8351 et seq. relating to wrongful use of civil
proceedings.
Pa.R.C.P. No. 1023.1, Note (emphases added). Therefore, Rule 1023.1 was
not intended to be the only avenue available for a litigant to obtain relief from
frivolous proceedings. Moreover, as Rubin emphasizes in his brief, a Rule
1023.1 sanctions hearing “is more narrow and brief” than a Dragonetti action.
See Rubin’s Brief (2554 EDA 2021) at 77. Indeed, Rule 1023.1 refers only to
frivolous or unfounded claims in “pleadings, motions, or other paper[s,]”
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which have been signed, filed, submitted or advocated by an attorney;
whereas a Dragonetti action encompasses all of the improper and negligent
actions taken by the attorney in the “procurement, initiation or continuation
of civil proceedings.” See 42 Pa.C.S. § 8351(a); Pa.R.C.P. 1023.1(c).
Accordingly, we conclude that an award of punitive damages under the
Dragonetti Act does not conflict with the sanctions provision of Rule 1023.1(c),
nor does it usurp the Supreme Court’s authority to regulate the practice of
law. For this reason, Stewart’s constitutional challenge to the punitive
damages award fails.
We also disagree with Stewart’s assertion that “this is not an appropriate
case for punitive damages.” See Stewart’s Brief at 68. Preliminarily, we note
that “[t]he determination of whether a person’s actions arise to outrageous
conduct lies within the sound discretion of the fact-finder and will not be
disturbed by an appellate court so long as that discretion has not been
abused.” J.J. DeLuca Co. v. Toll Naval Assocs., 56 A.3d 402, 416 (Pa.
Super. 2012) (citation omitted). Here, the evidence presented was certainly
sufficient for the jury to conclude that punitive damages were warranted based
on Stewart’s outrageous settlement demands ─ absent any relation to
damages suffered by his client ─ unwarranted threats of criminal prosecution,
and dogged pursuit of claims with no basis in fact. The facts presented support
the jury’s determination that Stewart’s conduct was “malicious, wanton,
reckless, willful, or oppressive.” See Feld, 485 A.2d at 747-48 (citation
omitted).
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Stewart’s final contention, that the jury could not have assessed punitive
damages without evidence of his wealth, is similarly meritless. “In assessing
punitive damages, the trier of fact may consider the character of the
tortfeasor’s act, the nature and the extent of his victim’s harm and the wealth
of the tortfeasor.” Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800,
802 (Pa. 1989) (emphasis added). However, this Court has rejected the
position “that wealth is a necessary prerequisite” to an award of punitive
damages. Vance v. 46 & 2, Inc., 920 A.2d 202, 207 (Pa. Super. 2007).
[T]he polestar for the jury’s assessment of punitive damages is
the outrageous conduct of the defendants, not evidence of a
defendant’s wealth. Further, evidence of wealth is not
mandatory to establish a claim for punitive damages. Therefore,
[a] jury [can base] its award of punitive damages entirely on its
assessment of [the defendant’s] conduct.
Reading Radio, Inc. v. Fink, 833 A.2d 199, 215 (Pa. Super. 2003) (citations
omitted & emphasis added). Thus, the fact that Rubin did not “seek a judicial
order for wealth discovery” prior to trial or introduce evidence of Stewart’s
wealth, does not undermine the jury’s punitive damages award. See
Stewart’s Brief at 72. Thus, Stewart’s final claim fails.
V. ALEJANDRO’S REMAINING ISSUE (2555 EDA 2021)
In her second issue on appeal, Alejandro argues the trial court violated
her “due process rights and right to counsel of her choice when it disqualified
Attorney [ ] Stewart . . . on the morning of trial[.]” Alejandro’s Brief at 35.
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By way of background, we note that Stewart was Alejandro’s attorney
of record from the inception of the Dragonetti action. As noted above, in
anticipation of the first scheduled trial date of January 21, 2020, Rubin filed a
motion in limine, seeking to preclude Stewart from arguing on his own behalf
at trial, while purportedly advocating for Alejandro. See Rubin’s Motion in
Limine at 4-5. When the parties appeared for trial on January 21, 2020, the
court did not specifically refer to Rubin’s outstanding motion, but
nevertheless, addressed “what seems to be a clear and palpable conflict of
interest with counsel representing [ ] Alejandro.” N.T., 1/21/20, at 5. Stewart
─ as Alejandro’s attorney ─ responded to the court’s concern by stating he did
not believe his continued representation violated the Rules of Professional
Conduct. See id. at 5-6. He argued that he did not intend to call himself as
a witness on Alejandro’s behalf, and he was not representing himself (as her
co-defendant) in the litigation. Id. at 6-7. Furthermore, Stewart emphasized
that Alejandro did not file any cross-claims against him, which she “could have
. . . if she wanted to[.]” Id. at 9. He conceded that if she had, it would
“certainly suggest[ ] a conflict of interest[.]”22 Id. Stewart further stated
he explained the potential conflict to Alejandro and she “waived what she
thinks is a potential conflict of interest.” Id. at 8-9. Moreover, he argued that
before removing counsel, the court should consider the “impact and prejudice
____________________________________________
22 Interestingly, Stewart failed to note whether he advised Alejandro to assert
cross-claims against him in this matter which would have clearly resulted in a
direct conflict.
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on the defendant, who would now be on the eve of trial, forced to get new
cunseld or possibly counsel that she can’t find, can’t get ready or maybe
cannot afford.” Id. at 9-10.
Stewart reluctantly admitted, however, that “[t]here clearly are some
practical staging issues[,]” such as how he, as Alejandro’s counsel, could
cross-examine himself as a witness at trial. N.T., 1/21/20, at 14. He
suggested he could have other counsel “delve into that information.” Id. at
16. The trial court then asked Alejandro if she understood the conflict of
interest and was still willing to proceed with Stewart as her attorney, to which
she simply replied, “Yes.” Id. at 18-20.
Nevertheless, the trial court was unwilling to overlook the “palpable and
blatant” conflict of interest in the present case. N.T., 1/21/20, at 21. The
court explained:
The reason [the Rules of Professional Conduct] don’t actually say
with exactitude . . . that a lawyer who represent[ed] a defendant
can’t then testify as a co-defendant is because I think no one even
thought that would be a possibility. That’s how palpable and
blatant the conflict is. Even though it may not seem so, even
though there’s a way of arguing around it now, this isn’t what we
plan on doing, this isn’t what we foresee the defense is, just by
virtue of the simple fact [Stewart is] going to be testifying and
[Alejandro] wouldn’t have anyone to cross-examine her in her
best interest shows you how blatant this conflict is. One of the
powers that I do have is to prophylactically prevent a conflict that
would exist. Understanding there’s a waiver on her part is
significant, but this is about as profound a conflict as you can
have, co-defendants where one co-defendant is an attorney
representing the other co-defendant.
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Id. at 21-22. The trial court subsequently entered an order removing Stewart
as counsel for Alejandro and continued the case for 60 days so that she could
“retain different counsel.” Order, 1/21/20.23 As noted previously, Alejandro
proceeded to trial pro se.
On appeal, Alejandro insists that the relevant Pennsylvania Rules of
Professional Conduct permit an attorney to represent a client,
“notwithstanding a concurrent conflict of interest,” if, inter alia, the attorney
“reasonably believes” he can provide “competent and diligent
representation[,]” the representation does not involve a claim by one client
against another in a litigation in which both are represented by the attorney,
and any affected client provides “informed consent.” Alejandro’s Brief at 36,
citing Pa.R.P.C. 1.7(b). Alejandro maintains that Stewart possessed the
requisite “reasonable belief” in the present case, and she provided her consent
to the potential conflict in open court “in an on-the-record colloquy.”
Alejandro’s Brief at 36-37.
Alejandro further argues that an attorney should not be disqualified
where such disqualification “would work substantial hardship on the client.”
Alejandro’s Brief at 37, citing Pa.R.P.C. 3.7(a)(3). She insists that there was
____________________________________________
23 The trial judge who presided over the January 21st proceeding, the
Honorable Michael E. Erdos, did not preside over the July 2021 trial. As noted
above, Alejandro filed an interlocutory appeal from the court’s January 21,
2020, order, which this Court later quashed. See supra at 9-10. In response
to that prior appeal, Judge Erdos filed an opinion in support of his ruling, which
we will refer to as the relevant trial court opinion concerning this issue. See
Trial Ct. Op., 6/30/20.
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substantial hardship in the present case because she, “an indigent mother of
three with below-poverty-level income who subsists primarily on welfare,
[was] forced to defend herself in a million-dollar lawsuit as a pro se litigant.”
Alejandro’s Brief at 38. Further she maintains there were other remedies
available to ensure that Rubin ─ whom she claims sought the disqualification
─ received a fair trial. Id. at 45-46. Indeed, Rubin himself sought only to
limit Stewart’s “in-court presentation.” Id. at 48. Lastly, she contends the
trial court erred in disqualifying her attorney without conducting a hearing.
See id. at 50.
“When reviewing a trial court’s order on disqualification of counsel, we
employ a plenary standard of review.” Darrow v. PPL Elec. Utilities Corp.,
266 A.3d 1105, 1111 (Pa. Super. 2021) (citation omitted). A trial court may
disqualify an attorney if it determines the attorney violated ethical rules. Id.(citation omitted). Nevertheless,
courts should not lightly interfere with the right to counsel of one’s
choice. Thus, disqualification is appropriate only when both
another remedy for the violation is not available and it is essential
to ensure that the party seeking disqualification receives the fair
trial that due process requires.
Id. (citation omitted).
The trial court provided the following explanation for its decision to
remove Stewart as Alejandro’s counsel:
Because Stewart and [ ] Alejandro present to the Court as co-
defendants in this case, Stewart’s removal as counsel was
necessary, not as a sanction, but to protect [ ] Alejandro’s right
to a fair trial, untainted by Stewart’s inherently biased advice.
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In the same vein, the Rules of Professional Conduct prohibit
representation where a concurrent client conflict exists. Pa.R.P.C.
1.7. A personal interest of the lawyer can be a source of a
concurrent conflict of interest. Id. The Comments to Rule 1.7
explain further:
The lawyer’s own interests should not be permitted to have
an adverse effect on representation of a client. For
example, if the probity of a lawyer’s own conduct in a
transaction is in serious question, it may be difficult
or impossible for the lawyer to give a client detached
advice.
Pa.R.P.C. 1.7 Explanatory Comment 10.
The instant matter is, indeed, about the probity of Stewart’s
conduct in the underlying case, and of [ ] Alejandro's own. Rubin
sued Stewart and [ ] Alejandro separately for Wrongful Use of Civil
Proceedings and Abuse of Process. . . .
* * *
Each defendant could choose to give evidence against the
other in defense of himself or herself. The Court does not believe
that Stewart could give detached advice as to what evidence [ ]
Alejandro could present in her defense when some of that
evidence might be adverse to his own defense. Nor does the Court
think he should be put in a situation where he would have to do
that in order to competently represent her. The Rules protect
clients from incompetent representation, and they protect
attorneys from the problematic choice between providing
competent representation and protecting their own interests by
defending a claim against oneself.
Though Stewart has maintained that he recognizes and can
honor the distinction between his representation of [ ] Alejandro
and his attorney’s representation of himself, see Pa. R.P.C. 1.7 .
. . in practice he has already proven himself unable to do so. The
defense attorneys in this case, including Mr. Del Bove and
Stewart, have at times and in the same hearing, made arguments
on behalf of each other’s clients. N.T. 7/24/19 10:21-11:10 (Mr.
Del Bove arguing on behalf of Ms. Alejandro); N.T. 7/24/19 34:19-
37:16, 48:17-49:9 (Stewart arguing on behalf of himself); N.T.
9/11/19 17:15-18:11 (Stewart arguing on behalf of himself in the
third person); N .T. 9/11/19 49:3-50:6 (Mr. Del Bove arguing on
behalf of Ms. Alejandro). Similarly, since withdrawing from his
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own case, he has argued on his own behalf in his Motion for
Summary Judgment ostensibly filed on behalf of [ ]Alejandro. Any
wall that Stewart argues has been put up to keep the
representations of himself and [ ] Alejandro separate and guard
against a conflict is made of paper.
Stewart cannot reasonably believe he can competently
advise [ ] Alejandro when there is the potential that some of the
decisions they would have to make would require a choice
between an option that is better for Stewart or one that is worse
for him. For example, at the January hearing, Stewart said there
might be a conflict if [ ] Alejandro had filed a cross-claim against
him, but that she hadn’t. N.T. 1/21/20 9:2-9:7. That Stewart
has not filed a cross-claim against himself on behalf of [ ]
Alejandro comes as no surprise to the Court. Even the potential
that [ ] Alejandro might want to file a cross-claim against her
attorney creates an actual conflict of interest. An attorney cannot
be expected to advise his client about the availability or merits of
a cross-claim against himself ─ this is precisely the kind of decision
the Rule against personal interest conflicts protects an attorney
from having to contemplate.
Moreover, it is also against the Rules for an attorney to take
a case in which they are “likely to be a necessary witness.” Pa.
R.P.C. 3.7(a). Stewart is a named Defendant in this case, so it is
foreseeable that he would be called as a witness, and [Rubin’s]
counsel stated his intention to call him. N.T. 1/21/2014:15-17.
In addition, there is a practical problem that will arise when
Stewart testifies. At the January hearing, the Court asked Stewart
who would cross-examine him on behalf of [ ] Alejandro if he were
called to the stand, and he responded, “I don't know. Your Honor.”
N.T. 1/21/20 14:21-22. The Court would be doing a disservice
both to [ ] Alejandro and to the jury by allowing Stewart to present
testimony in defense of himself, while at the same time
attempting to maintain his professional duties to his client.
Trial Ct. Op., 6/30/20, at 4-7 (emphasis added).
The trial court provided a thorough and well-reasoned basis for its
ruling, and we see no need to elaborate further. Stewart’s representation of
Alejandro ─ in a case in which he is her co-defendant and the claims are based
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upon his representation of her in a prior action ─ is, as the trial court observed,
“about as profound a conflict as you can have[.]” See N.T., 1/21/20, at 22.
Moreover, the court acted within its discretion in finding Alejandro’s purported
waiver of the conflict to be uninformed and insufficient, and Stewart’s belief
that he could represent Alejandro despite the conflict, unreasonable.
Briefly, with regard to Alejandro’s specific complaints, we first
emphasize that the trial court appeared to address the conflict issue sua
sponte, and not in response to Rubin’s motion in limine as Alejandro now
contends. See N.T., 1/21/20, at 5; Alejandro’s Brief 45-46. Moreover,
Alejandro’s remaining claims are waived. Because she failed to request a
hearing in the trial court, she waived her contention that the court failed to
conduct an evidentiary hearing. See Pa.R.A.P. 302(a); Alejandro’s Brief at
50. Moreover, we conclude the January 21, 2020, proceeding sufficiently
protected her due process rights. Alejandro also waived any argument
concerning the purported “substantial hardship” she suffered upon Stewart’s
disqualification as her counsel. See Alejandro’s Brief at 37-38. Indeed, the
only argument regarding hardship before the trial court was Stewart’s general
statement that the court should consider the “impact and prejudice” Alejandro
may suffer if forced to obtain new counsel that “she can’t find, can’t get ready
or maybe cannot afford.” N.T., 1/21/20, at 9-10. Alejandro did not provide
any testimony regarding the “hardship” she now claims on appeal. Lastly,
Alejandro waived her claim that there were other, less drastic, remedies
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available, when, again, she did not make that argument in the trial court. See
Alejandro’s Brief at 45-46. Accordingly, Alejandro’s second issue fails.
VI. CONCLUSION
Therefore, we conclude the none of the claims raised by Stewart or
Alejandro on appeal warrant relief, and we affirm the judgment entered
against both co-defendants.
Judgment affirmed against Stewart and HLS at Docket 2554 EDA 2021.
Judgment affirmed against Alejandro at Docket 2555 EDA 2021.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
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