Rupert, J. v. King, T. ( 2015 )

J-A19024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JACQUELINE RUPERT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
THOMAS W. KING, III, ESQUIRE, DILLON
MCCANDLESS KING COULTER &
GRAHAM, LLP, JAY D. MARINSTEIN,
ESQUIRE, AND FOX ROTHSCHILD, LLP
Appellees No. 1181 WDA 2014
Appeal from the Order Entered July 15, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. 13-020407
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 21, 2015
Appellant Jacqueline Rupert appeals from the order entered in the
Allegheny County Court of Common Pleas, which granted the preliminary
objections of Thomas W. King, III, Esquire and Dillon McCandless King &
Graham, LLP (“the King Appellees”) and Jay D. Marinstein, Esquire and Fox
Rothschild, LLP (“the Fox Appellees”) (collectively “Appellees”) and dismissed
Appellant’s complaint for failure to state a claim upon which relief may be
granted.1 We reverse.
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1
On July 15, 2014, the trial court granted King Appellees’ preliminary
objections and dismissed Appellant’s complaint. On July 21, 2014, the court
also granted Fox Appellees’ preliminary objections and stated that
(Footnote Continued Next Page)
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The facts underlying this appeal are as follows. Appellant’s husband
was injured in an automobile accident on May 27, 2010. She retained the
King Appellees to represent her and her husband. She was her husband’s
representative at this time and signed a contingent fee agreement with the
law firm that gave it the right to receive 33.33% of any recovery obtained.
When Appellant’s husband partially recovered, he did not want
Appellant to be his representative. The King Appellees chose to continue
representation of both parties and agreed to reduce their fee by 3.33% to
fund Appellant’s recovery for loss of consortium. Ultimately, the case settled
for $19 million and Appellant received $632,700.00. Appellant contends the
King Appellees had a conflict of interest in representing both her and her
husband. This gave rise to her malpractice suit against them. The King
Appellees retained the Fox Appellees to represent them in the malpractice
suit.
This Court set forth the underlying history of this case in an opinion
filed November 7, 2013:
On November 16, 2011, [the King Appellees], received a
letter from an Allegheny County attorney who represented
[Appellant]. In the letter, [Appellant’s] lawyer accused [the
King] Appellees of committing malpractice in a personal
injury action involving [Appellant] and her husband
_______________________
(Footnote Continued)
Appellant’s complaint “is dismissed in its entirely against [Fox Appellees]
with prejudice.”
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Michael T. Rupert. On January 6, 2012, Appellees2
instituted this action in declaratory judgment in Butler
County. In their complaint, they alleged that, in the letter,
[Appellant’s] attorney indicated that she was going to seek
to invalidate an agreement that she entered on November
4, 2010. That November 4, 2010 document was entitled a
revised contingent fee agreement. In it, Appellees reduced
their previously-entered contingent fee arrangement by
[3.33%], and [Appellant] agreed that any proceeds of the
personal injury action received by Michael would be
considered his separate property and that her consortium
claim was worth the amount of the fee reduction, i.e.,
[3.33%] of any recovery in the personal injury action. In
the present Butler County action, Appellees sought a
declaration that the November 4, 2010 document was a
valid, enforceable agreement.
On February 9, 2012, [Appellant] filed preliminary
objections to the complaint. She alleged that there was no
case or controversy in this litigation because she never
took the position that the November 4, 2010 document
was invalid. She averred that the present declaratory
judgment action was a sham designed to deprive her of
her chosen forum in which to litigate her malpractice
action against Appellees.
On February 28, 2012, Appellees filed an amended
complaint reiterating the identical allegations as those
contained in the first complaint and seeking the same
relief. Michael was added as a plaintiff in the amended
complaint. [Appellant] renewed her preliminary
objections. On May 3, 2012, [Appellant] filed a legal
malpractice action against [the King] Appellees in the
Court of Common Pleas of Allegheny County at GD 12-
007664. On May 11, 2012, Appellees filed a motion
seeking coordination of this action pursuant to Pa.R.C.P.
Rule 213.1 and to stay proceedings that were instituted in
the Allegheny County Court of Common Pleas by
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2
The Fox Appellees represented the King Appellees throughout the litigation
in the malpractice suit.
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[Appellant]. They attached a copy of the Allegheny County
complaint to the motion for coordination.
The trial court first ruled upon the outstanding preliminary
objections to the amended complaint. On May 15, 2012,
the trial court entered a memorandum opinion and order
that granted [Appellant’s] preliminary objections filed to
the first amended complaint. It premised that grant on
the fact that the complaint failed to set forth that there
was an actual controversy. In the May 15, 2012 order, the
first amended complaint was dismissed, but Appellees
were accorded the right to file a second amended
complaint.
On May 27, 2012, Appellees filed their second amended
complaint again seeking a declaration as to the validity of
documents executed by [Appellant] in connection with the
personal injury case. The trial court in the present action
then issued an order that stayed the Allegheny County
proceedings. On August 13, 2012, Appellees filed an
amended motion for coordination of action pursuant to
Pa.R.C.P. 213.1. The parties filed briefs and argued their
positions before the trial court on August 21, 2012. On
September 25, 2012, the trial court entered an order
granting coordination of the Allegheny County case with
the present one:
1.) Coordination of the Butler County declaratory
judgment action, at A.D. 12-10019, and the
Allegheny County malpractice action, at G.D. 12-
007664, is appropriate.
2.) Coordination of said actions to Butler County is
appropriate.
3.) Pursuant to Pa.R.Civ.P. 213.1(d)(2), the lawsuit
filed by [Appellant] in the Court of Common Pleas of
Allegheny County, at G.D. 12-007664, is transferred
to the Court of Common Pleas of Butler County.
Order of Court, 9/25/12.
King v. Rupert, 81 A.3d 912, 913-914 (Pa.Super.2013).
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This Court vacated and remanded the trial court’s decision and held
that the declaratory judgment complaints were nullities for purposes of the
coordination order and the trial court abused its discretion in finding
coordination proper. This Court stated: “Appellees are free to pursue
coordination in the Court of Common Pleas of Allegheny County.” Id. at
921.3
On October 25, 2013, Appellant filed a complaint for abuse of process
against all Appellees. On January 15, 2014, the Fox Appellees filed
preliminary objections. On February 28, 2014, the King Appellees filed
preliminary objections. On March 17, 2014, Appellant filed briefs in
opposition to both preliminary objections.4 On March 31, 2014, the Fox
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3
This Court also found the Appellees’ declaratory judgment action was filed
on an entirely false premise:
A declaration was sought concerning the validity of an
accord that [Appellant] never claimed was void… The
present litigation was nothing more than a ploy designed
to deprive [Appellant] of the benefit of her chosen forum in
which to litigate her malpractice case. Consistent with the
reasoning contained in [VMB Enterprises, Inc. v. Beroc,
Inc., 891 A.2d 749 (Pa.Super.2006)], we hold that the
complaints filed herein are nullities for purposes of a
coordination order.
Rupert, supra at 921.
4
Although both of Appellees’ preliminary objections were untimely filed, the
trial court properly ruled on them because Appellant did not object to their
timeliness. See Hahnemann Med. Coll. & Hosp. of Philadelphia v.
Hubbard, 406 A.2d 1120, 1123 (Pa.Super.1979) (failure of opposing party
(Footnote Continued Next Page)
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Appellees filed a reply brief in support of preliminary objections. Following
oral argument on June 30, 2014, the trial court entered the July 15, 2014
order granting the King Appellees’ preliminary objections and dismissing
Appellant’s complaint. On July 21, 2014, the court also granted the Fox
Appellees preliminary objections and dismissed Appellant’s complaint for
abuse of process against them, with prejudice.
On July 22, 2014, Appellant filed a notice of appeal. On July 23, 2014,
the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement within 21
days, and she timely complied on August 13, 2014.
Appellant raises the following issues for our review:
A. DID THE LOWER COURT ERR WHEN IT DISREGARDED
THE LAW OF THE CASE DOCTRINE, REFUSING TO
ACCEPT THIS COURT’S PRIOR DECISION AT 1573 WDA
2012, WHICH HELD THAT ANY MOTION TO
COORDINATE WAS REQUIRED TO BE FILED IN
ALLEGHENY COUNTY, AND INSTEAD DECIDED THAT
“THE MOTION TO COORDINATE HAD TO BE FILED IN
THE COMMON PLEAS OF BUTLER COUNTY”?
B. DID THE LOWER COURT ERR WHEN IT DETERMINED
THAT A MOTION TO COORDINATE IS NOT DESIGNED
TO PREVENT INCONSISTENT RULINGS, BUT RATHER
“IS DESIGNED TO HAVE THE CASE TRIED IN THE MOST
APPROPRIATE COURT”?
C. DID THE LOWER COURT ERR WHEN, ON PRELIMINARY
OBJECTIONS, IT REFUSED TO ACCEPT [APPELLANT’S]
ALLEGATIONS AS TRUE AND INSTEAD MADE THE
_______________________
(Footnote Continued)
to file a timely preliminary objection contesting timeliness of preliminary
objections will constitute waiver of the untimeliness of original preliminary
objections).
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FACTUAL DETERMINATION THAT [THE] KING
[APPELLEES] AND [THE] FOX [APPELLEES] “DIDN'T DO
ANYTHING WRONG” AND DISMISSED [APPELLANT’S]
COMPLAINT AS A RESULT?
Appellant’s Brief at 3.
We will address Appellant’s third issue first, because it is dispositive.
In her third issue, Appellant argues there were issues of fact in her
complaint that should have been left to the trier of fact. She avers that
discovery would have shown her allegations were true and that she had a
claim for abuse of process against Appellees. She further contends she was
not required to prove anything at the preliminary objection stage and that
the court need only consider the information and allegations contained in her
complaint. Appellant concludes the trial court erred in granting Appellees’
preliminary objections because it did not accept the allegations in her
complaint as true. We agree.
This Court reviews a trial court’s decision sustaining or overruling
preliminary objections for an error of law. O'Donnell v. Hovnanian
Enterprises, Inc., 29 A.3d 1183, 1186 (Pa.Super.2011). “In so doing, [this
Court] employ[s] the same standard as the trial court, to wit, all material
facts set forth in the [] Complaint and inferences reasonably drawn
therefrom are admitted as true.” Knight v. Springfield Hyundai, 81 A.3d
940 (Pa.Super.2013). “Preliminary objections which seek the dismissal of a
cause of action should be sustained only in cases in which it is clear and free
from doubt that the pleader will be unable to prove facts legally sufficient to
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establish the right to relief.” Richmond v. McHale, 35 A.3d 779, 783
(Pa.Super.2012).
Pennsylvania is a fact pleading state. Foster v. UPMC South Side
Hosp., 2 A.3d 655, 666 (Pa.Super.2010), appeal denied, 12 A.3d 371(Pa.2010). Complaints must be pled with the factual specificity to “not only
give the defendant notice of what the plaintiff’s claim is and the grounds
upon which it rests, but … also formulate the issues by summarizing those
facts essential to support the claim.” Id. (citing Lerner v. Lerner, 954 A.2d
1229, 1234-35 (Pa.Super.2008)). A defendant may challenge the
sufficiency of a pleading through preliminary objections in the nature of a
demurrer. Pa.R.Civ.P. 1028(a)(4).
Rule 1028. Preliminary Objections
(a) Preliminary objections may be filed by any party to any
pleading and are limited to the following grounds:
* * *
(4) legal insufficiency of a pleading (demurrer);
* * *
(b) All preliminary objections shall be raised at one time.
They shall state specifically the grounds relied upon and
may be inconsistent. Two or more preliminary objections
may be raised in one pleading.
(c)(1) A party may file an amended pleading as of course
within twenty days after service of a copy of preliminary
objections. If a party has filed an amended pleading as of
course, the preliminary objections to the original pleading
shall be deemed moot.
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(2) The court shall determine promptly all preliminary
objections. If an issue of fact is raised, the court shall
consider evidence by depositions or otherwise.
Note: Preliminary objections raising an issue under
subdivision (a)(1), (5), (6), (7) or (8) cannot be
determined from facts of record. In such a case, the
preliminary objections must be endorsed with a notice to
plead or no response will be required under Rule 1029(d).
However, preliminary objections raising an issue under
subdivision (a)(2), (3) or (4) may be determined from
facts of record so that further evidence is not required.
Pa.R.C.P. 1028 (emphasis added).
Pennsylvania common law defines a cause of action for abuse of
process as follows:
The tort of “abuse of process” is defined as the use
of legal process against another primarily to
accomplish a purpose for which it is not designed. To
establish a claim for abuse of process it must be
shown that the defendant (1) used a legal process
against the plaintiff, (2) primarily to accomplish a
purpose for which the process was not designed; and
(3) harm has been caused to the plaintiff. This tort
differs from that of wrongful use of civil proceedings
in that, in the former, the existence of probable
cause to employ the particular process for its
intended use is immaterial. The gravamen of abuse
of process is the perversion of the particular legal
process for a purpose of benefit to the defendant,
which is not an authorized goal of the procedure. In
support of this claim, the [plaintiff] must show some
definite act or threat not authorized by the process,
or aimed at an objective not legitimate in the use of
the process ...; and there is no liability where the
defendant has done nothing more than carry out the
process to its authorized conclusion, even though
with bad intentions.
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Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super.1998), appeal denied,
729 A.2d 1130 (Pa.1998).
In her complaint, Appellant alleges Appellees used a legal process
against her to accomplish a purpose for which the process was not designed:
the purposes of both the Second Amended Complaint and
Motion for Coordination were to deprive [Appellant] of her
choice of forum by forcing her to litigate any malpractice
claim in [the King Appellees’] preferred forum, to test [the
King Appellees’] defenses to the threatened claim, to drive
up litigation costs to [Appellant], and to delay the
malpractice action.
Appellant’s Complaint, at 5-6.
Further, Appellant alleges she was harmed by the process:
41. [Appellant] has incurred and will continue to incur
legal fees as a result of [Appellees’] abuse of process.
42. [Appellant] has also suffered emotional and
psychological injuries from the actions of [Appellees] and
such actions have aggravated pre-existing conditions of
which [the King Appellees were] aware and it is believed
that discovery will disclose such were shared with [the Fox
Appellees], who joined in the perversion of the process.
Id. at 7.
Appellant maintains she never took the position that the November 4,
2010 document was invalid and Appellees only filed the declaratory
judgment action to compel future coordination in Butler County. Appellees,
however, contend they filed the action because they thought Appellant was
going to seek to invalidate the agreement. Appellees’ true intent in filing the
declaratory judgment action is a question of fact that should go to a fact-
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finder. Further discovery could show that Appellees filed the declaratory
action for the improper purpose of compelling future coordination in Butler
County, in an attempt to cause Appellant emotional distress and make it
more difficult for her to pursue her lawsuit. At this point, it is not clear and
free from doubt that Appellant will be unable to prove facts legally sufficient
to establish the right to relief. See Richmond, supra. Thus, the trial court
erred by granting Appellees’ preliminary objections and dismissing
Appellant’s abuse of process complaint.5
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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5
Because of our disposition of Appellant’s third claim, we need not discuss
her remaining claims.
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