Werner v. Plater-Zyberk

• Court: Superior Court of Pennsylvania
• Writing for the Court: HUDOCK, J.
• Citation: 799 A.2d 776,2002 Pa. Super. 42
• Decision Date: 21 February 2002
• Parties: Arthur WERNER, Esquire, Appellant, v. J. PLATER-ZYBERK, Jr., Ph.D, Stephen A. Winston, Esquire, Berger & Montague, P.C., Joseph Posillicio, Esquire, and Synnestvedt & Lechner, L.L.P. Appellees.

799 A.2d 776
2002 Pa. Super. 42

Arthur WERNER, Esquire, Appellant,
v.
J. PLATER-ZYBERK, Jr., Ph.D, Stephen A. Winston, Esquire, Berger & Montague, P.C., Joseph Posillicio, Esquire, and Synnestvedt & Lechner, L.L.P. Appellees

Superior Court of Pennsylvania.

Argued June 26, 2001.

Filed February 21, 2002.

799 A.2d 780

Alan Zibelman, Philadelphia, for appellant

Jeffrey B. Albert, Philadelphia, for appellee.

Richard A. Sprague, Philadelphia, for Senate of the Com., amicus curiae.

799 A.2d 781

Before HUDOCK, STEVENS and POPOVICH¹, JJ.

799 A.2d 777

799 A.2d 778

799 A.2d 779

HUDOCK, J

¶ 1 This is an appeal from an order granting the preliminary objections in the nature of a demurrer filed by Appellees (J. Plater-Zyberk, Jr., Ph.D., Stephen A. Winston, Esquire, Berger & Montague, P.C., Joseph Posillicio, Esquire, and Synnestvedt & Lechner, L.L.P.) and dismissing the complaint filed by Appellant (Arthur Werner, Esquire). For the reasons set forth below, we reverse, reinstate the complaint, and remand for further proceedings consistent with this opinion.

¶ 2 The Pennsylvania state court civil action underlying this appeal arose from a prior action filed in federal district court by Appellees. Appellees in the present action alleged in federal court, inter alia, that Appellant and several of his business associates were guilty of violating the federal Racketeering Influence and Corrupt Organization Act (RICO), 18 U.S.C. section 1962(c) & (d). Appellees also asserted several pendent state claims in their federal case. The federal district court dismissed the RICO complaint on February 17, 1998, pursuant to federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action. All of the parties to the federal action were either natural persons residing in Pennsylvania or Pennsylvania corporations. Thus, once the district court dismissed the RICO count, it lacked any independent federal jurisdiction over the pendent state causes of action. The federal district court, therefore, invoked 28 U.S.C. section 1376(c)(3) and dismissed the entire complaint.² The Court of Appeals for the Third Circuit affirmed the district court's ruling on November 10, 1999. Plater-Zyberk v. Abraham, 203 F.3d 817 (3d Cir.1999) (disposition without opinion).

¶ 3 On August 11, 2000, Appellant filed a complaint with the Court of Common Pleas of Philadelphia County naming Appellees, the plaintiffs in the predecessor federal action (the Plater-Zyberk action), as the defendants. Appellant asserted that, in their pursuit of the Plater-Zyberk action, Appellees violated his rights under Pennsylvania law and were liable for, among other things, committing the torts of malicious prosecution and/or abuse of legal process pursuant to the substantive laws of this Commonwealth. Appellees jointly filed preliminary objections in the nature of a demurrer on September 11, 2000. The trial court heard argument on the matter in November of 2000. On December 1, 2000, the trial court entered an order granting Appellees' preliminary objections and dismissing the complaint for "legal insufficiency." See Trial Court Order, 12/1/00. The trial court's order was not docketed until December 7, 2000.

¶ 4 Appellant filed a timely notice of appeal on December 28, 2000. The trial court ordered Appellant to file a concise statement of matters raised on appeal pursuant to Rule of Appellate Procedure 1925(b), and Appellant complied. The present appeal raises a single issue for our consideration:

WHETHER THE TRIAL COURT COMMITTED ERROR OF LAW IN GRANTING PRELIMINARY OBJECTIONS

799 A.2d 782

IN THE NATURE OF A DEMURRER FOR LEGAL INSUFFICIENCY UNDER THE PENNSYLVANIA WRONGFUL USE OF CIVIL PROCEEDING STATUTE ("THE DRAGONETTI ACT") THEREIN RAISING A NEW LEGAL STANDARD THAT "FEDERAL LITIGANTS ARE PRECLUDED FROM AVAILING THEMSELVES OF STATE REMEDIES IN STATE COURT FOR LITIGATION MISCONDUCT WHICH OCCURRED IN FEDERAL COURT WHERE JURISDICTION WAS BASED ON [A] FEDERAL QUESTION."

Appellant's Brief at 2.

¶ 5 Before proceeding to the merits of Appellant's claim, we initially note that federal court decisions do not control the determinations of the Superior Court. Kleban v. National Union Fire Insurance Co., 771 A.2d 39, 43 (Pa.Super.2001). Our law clearly states that, absent a United States Supreme Court pronouncement, the decisions of federal courts are not binding on Pennsylvania state courts, even when a federal question is involved. Commonwealth v. Lambert, 765 A.2d 306, 315 n. 4 (Pa.Super.2000), cert. denied, 532 U.S. 919, 121 S.Ct. 1353, 149 L.Ed.2d 284 (2001). Accord Cambria-Stoltz Enterprises v. TNT Investments, 747 A.2d 947, 952 (Pa.Super.2000). When the Third Circuit has spoken on a federal issue, the ultimate answer to which has not yet been provided by the United States Supreme Court, it is appropriate for this Court to follow Third Circuit precedent in preference to that of other jurisdictions. Cellucci v. General Motors Corp., 450 Pa.Super. 438, 676 A.2d 253, 255 n. 1 (1996), aff'd, 550 Pa. 407, 706 A.2d 806 (1998). Whenever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not improperly "walk across the street" to achieve a different result in federal court than would be obtained in state court. Id. (citing Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), and Murtagh v. County of Berks, 535 Pa. 50, 634 A.2d 179 (1993)). Thus, if the Third Circuit has not ruled on a specific question, this Court may seek guidance from the pronouncements of the other federal circuits, as well as the district courts, in the same spirit in which the Third Circuit itself considers such decisions. Furthermore, if there is a circuit split and the pronouncements of the Third Circuit are "clearly wrong" in light of the decisions of other circuits, Pennsylvania appellate courts need not follow the Third Circuit's decisions. City of Philadelphia v. Public Utility Commission, 676 A.2d 1298, 1305 n. 10 (Pa.Cmwlth.1996), appeal denied, 546 Pa. 657, 684 A.2d 558 (1996), cert. denied, 520 U.S. 1155, 117 S.Ct. 1334, 137 L.Ed.2d 494 (1997).

¶ 6 Procedurally, the present appeal stems from the grant of preliminary objections in the nature of a demurrer. When an appeal arises from an order sustaining preliminary objections in the nature of a demurrer, which results in the dismissal of a complaint, the Superior Court's scope of review is plenary. DeMary v. Latrobe Printing and Publishing Co., 762 A.2d 758, 761 (Pa.Super.2000) (en banc).

When reviewing an order granting preliminary objections in the nature of a demurrer, an appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review.

Id. (emphasis removed). We need not consider the pleader's legal conclusions, unwarranted inferences from facts, opinions, or argumentative allegations. Wiernik

799 A.2d 783

v. PHH U.S. Mortgage Corp., 736 A.2d 616, 619 (Pa.Super.1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000).

¶ 7 The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. DeMary, 762 A.2d at 761. Where affirmance of the trial court's order sustaining preliminary objections would result in the dismissal of an action, we may do so only when the case is clear and free from doubt. Id.

To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. We review the trial court's decision for an abuse of discretion or an error of law.

Id. (citations and quotations omitted). A demurrer tests the sufficiency of challenged pleadings. Composition Roofers Local 30/30B v. Katz, 398 Pa.Super. 564, 581 A.2d 607, 609 (1990). Fact-based defenses, even those which might ultimately inure to the defendant's benefit, are thus irrelevant on demurrer. Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987).

¶ 8 In the context of reviewing preliminary objections in the nature of a demurrer, an abuse of discretion is not merely an error of judgment. Ellenbogen v. PNC Bank, N.A., 731 A.2d 175, 181 n. 11 (Pa.Super.1999). Rather, the trial court commits an "abuse of discretion" when its judgment is manifestly unreasonable, or when the law is not applied, or if the record shows that the decision resulted from partiality, prejudice, bias or ill will. Id. One way of summing up all the qualities commonly attributed to a valid exercise of judicial discretion is to say that "the decision had merit." Id. Conversely, if the reason for performing the discretionary act had no merit, then the trial court will be deemed to have abused its discretion. Id. Thus, when viewed in terms of the degree of scrutiny that should be applied, an inquiry into an abuse of discretion is operationally equivalent to an inquiry into the merit of the trial court's decision. Id. (citing Coker v. S.M. Flickinger Co., 533 Pa. 441, 447-48, 625 A.2d 1181, 1185 (1993)).

¶ 9 Appellant's complaint alleges that Appellees engaged in a course of conduct toward him that constituted both abuse of legal process and wrongful use of civil proceedings as these torts are framed by Pennsylvania state law. See Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super.1998) (defining abuse of process), and 42 Pa.C.S.A. § 8351-8355 (wrongful use of civil proceedings). Appellant claims that he is entitled to relief in state court, under color of Pennsylvania law, independently of any federal cause of action that might accrue to him, or of any sanctions that might be imposed against Appellees by the federal district court in which the underlying action was conducted. Appellees respond that the peculiar federal interests raised by Appellant's claims mandate the use of the...