Broadwater v. Sentner

• Decision Date: 01 February 1999
• Citation: 725 A.2d 779,1999 PA Super 24
• Parties: Stella BROADWATER, Administratrix of the Estate of Sean Michael Painter, Deceased, on Behalf of the ESTATE OF Sean Michael PAINTER, Deceased, and Stella Broadwater, an individual in her own right, Appellants v. Fred J. SENTNER, an individual and Edward James Deems, an individual, Appellees.
• Court: Pennsylvania Superior Court

725 A.2d 779

1999 PA Super 24

Stella BROADWATER, Administratrix of the Estate of Sean Michael Painter, Deceased, on Behalf of the ESTATE OF Sean Michael PAINTER, Deceased, and Stella Broadwater, an individual in her own right, Appellants v. Fred J. SENTNER, an individual and Edward James Deems, an individual, Appellees.

Superior Court of Pennsylvania.

Argued October 28, 1998.

Filed February 1, 1999.

Reargument Denied April 1, 1999.

Gary N. Altman, Uniontown, for appellants.

James R. Schadel, Pittsburgh, for appellees.

Before FORD ELLIOTT, JOYCE, and TAMILIA, JJ.

JOYCE, J.

¶ 1 Appellant, Stella Broadwater, appeals from the order dated April 30, 1998, which granted the motion for summary judgment filed by Appellees Sentner.¹ For the following reasons, we reverse. As this is the second appeal taken in this case, we recount the relevant facts as discussed in our prior memorandum.

On September 22, 1993, Sean Michael Painter and his mother, Bridgett Renee Painter, were killed in an automobile accident. At the time of his death, Sean was 27 months' old. Bridgette was survived by another son, Randy William Painter, then age seven, and her natural parents, Stella and William Broadwater. On September 28, 1993, Bridgette's former husband, Mark William Painter, renounced any right he might have had to administer Sean's estate. The same day, Sean's maternal grandparents, the Broadwaters, were granted letters of administration on Sean's estate.

A month later, in October, 1993, Edward James Deems (Deems), claiming to be the natural father of Sean Michael Painter, filed a petition seeking to have letters of administration on Sean's estate issued to him. His attorney of record was Fred J. Sentner. This petition was denied. Soon thereafter, Sentner filed a petition on behalf of Deems to revoke the Broadwaters' letters of administration and have Deems appointed administrator of Sean's estate. The Broadwaters filed an answer to the petition. On April 7, 1994, the Broadwaters' attorney wrote to Sentner, forwarding a copy of a motion to Quash Petition for Citation to Revoke Letters of Administration. The letter to Sentner indicated that the original motion to quash would be filed unless Deems' Petition for Citation was withdrawn within fifteen calendar days.

In response, Sentner filed a motion to compel discovery resulting in the Broadwaters filing their motion to quash. On April 27, 1994, the trial court entered an order permitting discovery while, at the same time, setting June 15, 1994 as the day on which the motion to quash would be heard. Depositions of Mark Painter and Deems were taken during May 1994. On behalf of Deems, Sentner filed preliminary objections to the Broadwater[s'] motion to quash. On Friday, June 10, 1994, counsel for the Broadwaters sent Sentner a letter containing material designed to refute the position of Sentner's client, Deems. Two days before the scheduled June 15th hearing date, Deems and his counsel, Sentner, met with another attorney, Bradley M. Bassi, at Sentner's request.

At the scheduled hearing on June 15, 1994, Bassi appeared representing Deems. Sentner is not listed as having appeared or participated in the June 15th hearing. Bassi requested leave to withdraw Deems' Petition to Revoke Letters of Administration in the Estate of Sean Painter. The court directed counsel to submit his client, Deems, for examination. Under direct examination by Bassi, and in response to leading questions, Deems testified to having initiated the filing of the petition to revoke letters, to being aware that Sentner had asked Bassi to associate with him in the matter, and to his having met with Bassi for the first time two days before the hearing. Deems testified that it was his desire to withdraw the petition with prejudice and permit the Broadwaters to administer the grandson's (Sean's) estate.

Mark Williams Painter then testified as to his earlier renunciation, in favor of his other son, Randy, of any rights he might have in Sean's estate. Stella Broadwater testified to having been advised by counsel in February 1994 that any funds passing to Randy would have to be placed in a trust due to Randy's minority.

Broadwater v. Sentner, No. 890 Pittsburgh 1997, unpublished memorandum at 2-4, 706 A.2d 1246 (Pa.Super. filed December 30, 1997). At the conclusion of the hearing, the trial court ordered that the Petition for Citation to Revoke Letters of Administration be withdrawn with prejudice.

¶ 2 Stella Broadwater, the surviving co-executor, commenced this action alleging, inter alia, wrongful use of civil proceedings and naming Sentner and Deems as defendants.² Deems was never served with the writ of summons and in the prior appeal this Court concluded that the action against Deems had lapsed. Broadwater, supra at 5. Appellee Sentner subsequently filed a motion for summary judgment on December 18, 1996. The trial court granted Sentner's motion for summary judgment on the basis that the underlying proceeding was not terminated in Appellants' favor. Trial Court Opinion, dated 4/11/97, at 6. The trial court did not address the issue of whether Appellees had probable cause to initiate the Petition for Citation to Revoke Letters of Administration. Id. Appellants appealed. Upon review of the first appeal, this Court opined that the underlying proceedings had terminated in Appellants' favor and remanded for a determination of whether Appellees had probable cause to institute the underlying action. Broadwater, supra at 13.

¶ 3 On remand, the trial court reviewed the record, depositions and current case law and determined that Sentner had probable cause to commence the Petition to Revoke Letters of Administration and entered an order granting Sentner's motion for summary judgment. This timely appeal followed. Appellants present the following issues for our consideration: (1) whether Appellants established material issues of fact regarding whether Sentner lacked probable cause to file to the underlying action; (2) whether the issue of probable cause should go before a jury; and (3) whether Appellants can recover for Sentner's gross negligence.³

¶ 4 In reviewing a trial court's granting of summary judgment, this Court may only disturb the order when the trial court erred as a matter of law or abused its discretion. Kilgore v. City of Philadelphia, 553 Pa. 22, ___, 717 A.2d 514, 516 (1998). Nevertheless, the scope of review is plenary and the appellate court shall apply the same standard for judgment as the trial court. Albright v. Abington Memorial Hospital, 548 Pa. 268, 279-280, 696 A.2d 1159, 1165 (1997). An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. Kilgore, supra.

The moving party has the burden of proving the nonexistence of any genuine issue of material fact. Id. The record must be viewed in the light most favorable to the non-moving party and any doubts must be resolved in favor of the non-moving party. Id. We will review Appellants' claims in accordance with these principles.

¶ 5 In an action for wrongful use of civil proceedings, the plaintiff must prove the following elements: (1) that the person taking part in the initiation, procurement or continuation of civil proceedings against another (a) acts in a grossly negligent manner or without probable cause, and (b) the proceedings have terminated in favor of the person against whom they are sought. 42 Pa.C.S.A. § 8351. Gentzler v. Atlee, 443 Pa.Super. 128, 660 A.2d 1378, 1380 (1995), appeal denied, 543 Pa. 694, 670 A.2d 142 (1995).

¶ 6 As this Court has already determined that the underlying proceedings terminated in Appellants' favor, we are precluded from reviewing this issue, as this is the law of the case. Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 585 A.2d 504, 508 (1991). As such, this Court's review is limited as to whether there are genuine issues of material fact regarding the probable cause element of wrongful use of civil proceedings. "A showing of probable cause to institute proceedings against a plaintiff establishes an absolute defense against an action for malicious prosecution, which renders immaterial the issue of whether the prosecutor's motive is malicious." Strickland v. University of Scranton, 700 A.2d 979, 984 (Pa.Super.1997). "Usually, the existence of probable cause is a question of law for the court rather than a jury question, but may be submitted to the jury when facts material to the issue of probable cause are in controversy." McKibben v. Schmotzer, 700 A.2d 484, 493 (Pa.Super.1997) (emphasis original).

¶ 7 Whether a person has probable cause to initiate, continue or procure a civil action against another is dictated by 42 Pa.C.S.A. § 8352, which provides:

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:

(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;

(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or

(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

42 Pa.C.S.A. § 8352.

Thus, Appellants must prove that Sentner had no reasonable basis for filing the underlying action. Appellants must first show that Sentner lacked a reasonable belief in the facts on which the claim was based and in the validity of the claim under existing or developing law to escape liability under wrongful use of civil proceedings. Gentzler v. Atlee, 660 A.2d at 1382.

¶ 8 In reviewing the record in the light most favorable to the non-moving party, the record...