Ludmer v. Nernberg

• Decision Date: 21 April 1994
• Citation: 640 A.2d 939,433 Pa.Super. 316
• Parties: Mario LUDMER v. Maurice A. NERNBERG, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 939

640 A.2d 939

433 Pa.Super. 316

Mario LUDMER v. Maurice A. NERNBERG, Jr., Appellant.

Superior Court of Pennsylvania.

Argued Jan. 6, 1994.

Filed April 21, 1994.

James R. Cooney, Pittsburgh, for appellant.

Seymour A. Sikov, Pittsburgh, for appellee.

Before BECK, JOHNSON and MONTGOMERY, JJ.

JOHNSON, Judge.

Attorney Maurice A. Nernberg, Jr., appeals from the judgment entered following a jury award of $25,000 in compensatory damages and $50,000 in punitive damages to Mario Ludmer, M.D., in an action brought pursuant to the Wrongful Use of Civil Proceedings Act (the Act), 42 Pa.C.S. § 8351 et seq. We affirm.

In June 1984, Ludmer brought this civil action seeking damages pursuant to the Act, following the entry of summary judgment in his favor in an earlier case instituted by Nernberg against Ludmer, docketed at GD79-6085 in the Court of Common Pleas of Allegheny County, aff'd, Nernberg v. Ludmer, 313 Pa.Super. 596, 460 A.2d 847 (1983), appeal denied, September 14, 1983.

Nernberg filed preliminary objections alleging that since his action preceded the effective date of the Act, February 19, 1981, the Act did not apply. The trial court granted Nernberg's preliminary objections and dismissed Dr. Ludmer's complaint. Allegheny County Court of Common Pleas Docket No. G.D. 84-11881. On appeal, we reversed. Ludmer v. Nernberg, 355 Pa.Super. 639, 509 A.2d 1325 (1986). The Supreme Court of Pennsylvania affirmed our determination, holding that Nernberg's actions were subject to the Act. Ludmer v. Nernberg, 520 Pa. 218, 553 A.2d 924 (1989). The underlying facts of this case, which are undisputed, were summarized as follows:

[Dr.] Mario Ludmer, [a board certified neurosurgeon,] was the treating physician for one of [Nernberg]'s clients, [Margaret O'Toole,] in a personal injury lawsuit. In preparation for the litigation, [Nernberg] had requested that Dr. Ludmer prepare a written report of his examination and a diagnosis of the client's medical condition. Dr. Ludmer submitted a report and offered to testify at trial if necessary to clarify his position. During the personal injury trial, the defendant's wife became ill, resulting in the plaintiff instructing Nernberg to negotiate a settlement rather than seeking a continuance.

After settling the personal injury action, [Nernberg] then commenced a lawsuit against [Dr. Ludmer] claiming that [Dr. Ludmer] did not properly cooperate with him in the preparation of the personal injury action and that [Dr. Ludmer] had interfered with the contractual relationship between [Nernberg] and his client. As a result of [Dr. Ludmer]'s actions, [Nernberg] alleged that he was forced to settle the personal injury action for less money. Following the completion of discovery, [Dr. Ludmer] filed a motion for summary judgment which was granted.

Id. at 219-220, 553 A.2d at 925. Following the subsequent jury trial in the present case, Ludmer was awarded damages of $75,000. This appeal followed the denial of Nernberg's motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

Our standard of review of an order denying judgment n.o.v. is limited: we must determine whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). See also Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967), appeal after remand, 430 Pa. 255, 242 A.2d 460 (1968); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 64-65, 486 A.2d 478, 480 (1984). In so doing, we must grant the verdict winner the benefit of every inference which reasonably may be drawn from the evidence. We also must reject all unfavorable testimony and inferences. Ingrassia, supra. See also Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978). Judgment n.o.v. 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. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978). We note that judgment n.o.v. may not be employed to invade the province of the jury. Thus, questions of fact must be resolved by the jury. Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 363 A.2d 1265 (1976).

Our standard of review of an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 413, 521 A.2d 413, 420-21 (1987); see also Solomon v. Baum, 126 Pa.Cmwlth. 646, 560 A.2d 878 (1989). The trial court's order must be affirmed if the record supports the decision of the trial court. See Stevenson, supra.

On appeal, Nernberg raises the following issues:

1. Did Ludmer fail to prove a prima facie case for wrongful use of civil proceedings?

2. Did the trial court improperly exclude evidence of rulings favorable to Nernberg in the underlying case?

3. Did the trial court err in permitting Ludmer's counsel to testify and to inject his personal opinions into the case?

4. Did the trial court improperly permit Ludmer's expert to testify beyond his report, and to express his opinion on the ultimate issue in the case?

5. Did the trial court err in submitting the issue of punitive damages to the jury?

6. Was Nernberg otherwise deprived of a fair trial?

Initially, Nernberg contends that Ludmer failed to prove a prima facie case for wrongful use of civil proceedings. We disagree. Wrongful use of civil proceedings "is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause." Rosen v. Bank of Rolla, 426 Pa.Super. 376, 380, 627 A.2d 190, 191 (1993), citing Shaffer v. Stewart, 326 Pa.Super. 135, 138, 473 A.2d 1017, 1019 (1984). This tort is now a statutory action and has been codified at 42 Pa.C.S. § 8351, as follows:

§ 8351. Wrongful use of civil proceedings

(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)(1)-(2).

To prevail in an action for wrongful use of civil proceedings, a plaintiff must prove: (1) the proceedings terminated in his or her favor; (2) the defendant caused those proceedings to be instituted without probable cause; and, (3) malice. Rosen, supra, 426 Pa.Super. at 382, 627 A.2d at 191-92. The statutory definition of this tort agrees with the Restatement (Second) of Torts § 674. Robinson v. Robinson, 362 Pa.Super. 568, 574, 525 A.2d 367, 370 (1987); Shaffer v Stewart, supra, 326 Pa.Super. at 140, 473 A.2d at 1020.

As the trial court correctly noted, for Nernberg to succeed on a motion for judgment n.o.v., he must convince the trial court that Dr. Ludmer had not satisfied each element of the cause of action. The plaintiff's burden of proof is as follows:

(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 [the statute].

42 Pa.C.S. § 8354.

The trial court analyzed this issue as follows:

The jury found that Nernberg did not have probable cause to initiate a suit against Ludmer solely for the purpose of collecting a fee which [Nernberg] claimed was due him as a result of a third party action in which he represented a plaintiff (O'Toole) against a defendant. The evidence was clear that O'Toole never authorized the suit against Ludmer and that she never desired to be a party to that suit filed by Nernberg. In addition, Nernberg continued to prosecute that action even after the Court of Common Pleas of Allegheny County found that there was no merit to his claim and that the claim was personal to O'Toole. After receiving the Opinion to that effect from the Court, Nernberg continued to press the issue to the Superior Court which held that his claim against Ludmer was totally without merit. Notwithstanding the decision of the Superior Court, Nernberg petitioned for Allowance of Appeal in the Supreme Court which was summarily denied.

Trial Court Opinion of the Honorable Gerard M. Bigley, dated August 23, 1993, at 3-4.

Granting Dr. Ludmer, as the verdict winner, the benefit of every inference which reasonably may be drawn from the evidence and rejecting all unfavorable testimony and inferences, we agree with the trial court and conclude that there was sufficient competent evidence to establish a prima facie case. Clearly, as the trial court determined, the jury was justified in its belief that Ludmer had met his burden to prove each element required by § 8354. Id.

Nernberg raises an additional argument. Nernberg asserts that Dr. Ludmer offered "no competent evidence whatsoever" that Nernberg acted for an improper purpose in the underlying case. Appellant's Brief at 16. As Ludmer observes in his brief at 13, Nernberg's unstated argument is that improper purpose can be established only by the defendant "confessing" that he acted for an improper purpose. Such arguments are not only unseemly, but contrary to the settled law...