Gentzler v. Atlee

• Decision Date: 28 June 1995
• Citation: 443 Pa.Super. 128,660 A.2d 1378
• Court: Pennsylvania Superior Court
• Parties: Richard D. GENTZLER, II and Cardiovascular Associates of Lancaster, Ltd., Appellants, v. William A. ATLEE, Jr. and Atlee & Hall.

Page 1378

660 A.2d 1378

443 Pa.Super. 128

Richard D. GENTZLER, II and Cardiovascular Associates of Lancaster, Ltd., Appellants, v. William A. ATLEE, Jr. and Atlee & Hall.

Superior Court of Pennsylvania.

Argued Feb. 14, 1995.

Filed June 28, 1995.

William T. Hangley, Philadelphia, for appellants.

Stephanie Resnick, Philadelphia, for appellees.

Before WIEAND, BECK and BROSKY, JJ.

BECK, Judge:

We decide whether a physician has stated a cause of action for wrongful use of civil proceedings against a lawyer who, on behalf of an injured client, included the physician as a defendant in an underlying medical malpractice suit based on negligence and lack of informed consent. We conclude that plaintiffs-appellants Richard D. Gentzler, II, M.D. and Cardiovascular Associates of Lancaster, Ltd. (hereinafter referred to as "Gentzler") properly made out a claim of wrongful use of civil proceedings against defendants-appellees William A. Atlee, Jr. and his law firm Atlee & Hall (hereinafter referred to as "Atlee"). We therefore reverse the trial court which sustained Atlee's preliminary objections in the nature of a demurrer and dismissed the complaint without leave to amend.

In reviewing this appeal from the grant of preliminary objections in the nature of a demurrer, we must accept as true every well-pleaded fact in Gentzler's complaint and all inferences reasonably deducible therefrom to decide whether Gentzler has stated a cognizable cause of action. Kelly-Springfield Tire Co. v. D'Ambro, 408 Pa.Super. 301, 596 A.2d 867 (1991); Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017, 1020 (1984); Dietrich Ind., Inc. v. Abrams, 309 Pa.Super. 202, 455 A.2d 119 (1982). If there is any doubt as to whether a claim for relief has been stated, that doubt should be resolved in favor of overruling the demurrer. Creeger Brick & Building Supply, Inc. v. Mid-State Bank & Trust Co., 385 Pa.Super. 30, 560 A.2d 151 (1989). We must therefore review the factual averments of Gentzler's complaint to determine whether a cause of action against Atlee for wrongful use of civil proceedings has been stated. Kelly-Springfield Tire Co. v. D'Ambro, supra, 408 Pa.Super. 301, 596 A.2d 867.

The facts as alleged in Gentzler's complaint establish the following history. Atlee sued Gentzler on behalf of his client John Doe for negligence and lack of informed consent to a medical procedure. In that lawsuit, Atlee ¹ alleged that Gentzler, a cardiologist caused Doe to contract HIV, the virus that causes Acquired Immune Deficiency Syndrome (AIDS).

From 1977 until 1991, Doe was a cardiology patient of Gentzler. In November 1990, Gentzler examined Doe and recommended that he enter the hospital for the performance of certain tests. These tests were performed at the Lancaster General Hospital; Gentzler did not attend or participate in the performance of these tests. Based on the results of the tests, Doe was admitted to the hospital for coronary artery bypass graft surgery and a combined left carotid endarterectomy. Gentzler did not recommend or participate in these surgical procedures. At some point during the surgery, blood products were administered to Doe which proved to be contaminated with HIV and as a result, Doe became infected with the virus.

Doe's surgeons, Dr. Edward F. Lundy and Dr. Richard Purdy, obtained written consents to the surgical procedures. However, Doe alleged that neither the surgeons nor Gentzler advised him of the risk of receiving blood products contaminated with HIV, nor did they mention or recommend to him that he had the option of autologous or directed donation ² if transfusion of blood products became necessary during his treatment. Doe also asserted that the defendant doctors failed properly to screen the blood products. Doe claimed that these failures gave rise to a cause of action for negligence and lack of informed consent against all the defendants, including Gentzler.

Gentzler filed preliminary objections in the nature of a demurrer to the Doe complaint, which were sustained. The trial court, in dismissing the complaint against Gentzler, cited his rationale as follows:

Plaintiffs acknowledge that Dr. Gentzler was not the surgeon performing the operation in this case. Plaintiffs further acknowledge that Dr. Gentzler did not, in fact, obtain consent for the surgery.... The central question with respect to Dr. Gentzler is whether it was he who performed the surgery. The answer is clearly that it was not Dr. Gentzler who performed the surgery. He is, therefore, under existing Pennsylvania law, not responsible for any harm which might have arisen from a lack of informed consent to the surgical procedure ... The negligence theory ... is inconsistent with the facts stated earlier in the complaint.... Plaintiffs plead no facts which would support a duty on Dr. Gentzler under the circumstances of this case.

R. 77a-78a. The case against Gentzler was dismissed, and Doe did not file an appeal after the case was completed.

After the Doe case was terminated in favor of Gentzler, Gentzler filed this action for wrongful use of civil proceedings against Atlee pursuant to 42 Pa.C.S. § 8351 et seq. (the "Act"). The Act provides the elements of the cause of action:

(a) Elements of action.--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).

The Act requires that a plaintiff in the position of Gentzler, in order to carry his or her burden of proof, establish that:

(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.

(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages). ³

42 Pa.C.S. § 8354; Mi-Lor, Inc. v. DiPentino, 439 Pa.Super. 636, 654 A.2d 1156, 1158 (1995) (assertion of valid defense in counterclaim was not wrongful use of civil proceedings). To withstand demurrer, the complaint must at least include the factual allegations required to carry this burden of proof. At this juncture, however, the questions of whether the facts alleged in Gentzler's complaint can be proved or whether Gentzler actually suffered any damages are not before us. We must simply decide whether Gentzler's allegations make out a cause of action under the applicable law. Shaffer v. Stewart, supra, 326 Pa.Super. 135, 473 A.2d 1017.

The first two requirements of the wrongful use statute are easily satisfied in this case. It is clear that Atlee initiated (and continued) civil proceedings against Gentzler. It is equally clear that the underlying action, the Doe lawsuit, was terminated in Gentzler's favor when preliminary objections in the nature of a demurrer were sustained. 42 Pa.C.S. § 8354(1), (2). Further, the fifth requirement of appellants' burden is met because the Gentzler complaint properly alleges damages as allowed by the pertinent statute. 42 Pa.C.S. § 8354(5); R. 16a-19a.

Next, Gentzler's action must include allegations that the Doe lawsuit was instituted in a grossly negligent manner, or without probable cause, and for an improper purpose. 42 Pa.C.S. §§ 8351(a), 8354(3), (4). Evidently, the Doe lawsuit against Gentzler was brought under two theories: lack of informed consent and negligence. The informed consent action was brought against Gentzler, who is not a surgeon, on the theory that Gentzler breached a duty to Doe to inform him of the risks of the use of blood products during surgery. Atlee's second theory in the Doe action was an independent claim of negligence, that Gentzler improperly "ordered" and "administered" tainted blood products to Doe. Atlee argues on appeal that he had probable cause to maintain the Doe lawsuit against Gentzler under these theories, and that the instant wrongful use of civil proceedings action was properly dismissed.

In order for Gentzler to state a cause of action for wrongful use he must, inter alia, allege that Atlee brought the Doe suit without probable cause. The Act defines probable cause as follows:

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; ⁴ 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. ⁵

42 Pa.C.S. § 8352 (emphasis added). A party has probable cause to bring an action when he "reasonably believes" in the facts on which it is based and in the viability of the legal theory under which it is brought. 42 Pa.C.S. § 8352(1). ⁶

The existence of probable cause is a matter of law for the court to decide and is a proper objection for a defendant, in this case Atlee, to raise on preliminary objections. "[W]hat constitutes probable cause and whether it exists under an admitted or clearly established set of facts are questions...