IN THE SUPREME COURT OF PENN~'YL VANIA

No. 29 EAP 2014Consolidated with 30 EAP 2014, 31 EAP 2014, 32 EAP 2014 and 33 EAP 2014

Gregory R. Zappala,Plaintiff/Appellant.

v.

Caroselli Beachler McTiernan & Conboy, et al.,Defendants/Appellees.

BRIEF OF AMICUS CURIAETHE PENNSYLVANIA BAR ASSOCIATION

Appeal from the Judgment of Superior CourtEntered on 6/21/12 at No. 2567 EDA 2011

Francis X. O'Connor, EsquireP.O. Box 591300 Main StreetGreat Bend, PA 18821(570) 879-2534President, PBA

OCT ~ 2Q14~

James C. Sargent, EsquireLAMB McERLANE P.C.24 E. Market StreetWest Chester, PA 19381(610)430-5000Chair, Amicus Curiae BriefCommittee

Arthur W. Lefco, EsquireMARSHALL DENNEHEYWARNER COLEMAN & GOGGIN2000 Market Street —Suite 2300Philadelphia, PA 19103(215) 575-2588Vice Chair, Professional LiabilityCommitteeAttorneys for Amicus Curiae,The Pennsylvania Bar Association

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............................................................ii

STATEMENT OF INTEREST ...........................................................1

FACTUAL BACKGROUND ..............................................................2

THE DRAGONETTI ACT ................................................................3

ARGUMENT.................................................................................4

A. General Principles ...............................................................4B. Analysis Of The Favorable Termination Requirement ..................6C. When Should The Grace Period Terminate? ......................................14

CONCLUSION.............................................................................16

CERTIFICATE OF SERVICE

i

TABLE OF AUTHORITIES

CasesBannar v. Miller,

701 A.2d 242 (Pa. Super. 1997) ............................................................................ 7Bonney v. King,

201 Ill. 47 N.E. 377 (1903) .........................................................10Ca~lsen v. Oakwood Hills,

164 Ill. App. 3d 396, 400 N.E.2d 1107 (1987) ..................................10Crawford v. Theo,

112 Ga. App. 83 S.E.2d 750 (1965) ...............................................10DeLau~entis v. New Haven,

597 A.2d $07 (Conn. 1991) ................................................................................. 10D'Elia v. Folino,

933 A.2d 117 (Pa. Super. 2007) ............................................................................ 7Electronic Laboratory Supply Co. v. Cullen,

712 A.2d 304 (Pa. Super. 1998) .................................................................... 7, 8, 9Frey v. Stoneman,

150 Ariz. 106 P.2d 274 (1986) .....................................................10Hurgren v. Union Mutual Life Ins. Co.,

141 Cal. 585 P. 168 (1904) .........................................................10Jaffe v. Stone,

18 Cal. 2d 146 P.2d 335 (1941) ...................................................10.Ioiner v. Benton Community Bank,

82 Ill. 2d 40 N.E.2d 229 (1980) ......................................... ........10Lackner v. LaCroix,

25 Cal. 3d 747 P.2d 393, 159 Cal. Rptr. 693 (1979) ...........................10Mondello v. Mondello,

161. App. Div. 2d 690, 691 N.Y.S.2d 826 (1990) ...............................10Robinson v. Robinson,

362 Pa. Super. 568 A.2d 367 (1987) ..............................................10Rosenfield v. Pennsylvania Auto Insurance Plan,

636 A.2d 113 8 (Pa. Super. 1994) ........................... ........................................... 7, 8Schenck v. Minolta Office Systems, Inc.,

802 P.2d 1131 (Colo. App. 1990) .................................................10Stanley v. Superior Court of Sacramento County,

130 Cal. App. 3d 460 Cal. Rptr. 878 (1982) .....................................10I~nion Oil of California v. Watson,

468 So. 2d 349 (Fla. App.) .........................................................10Withall v. Capitol Federal Savings of America,

ii

164 Ill. App. 3d 851 518 N.E.2d 328 (1987) ....................................10Wong v. Taber,

422 N.E.2d 1279 (Ind. App. 1981) ................................................10Woodyatt v. Bank of Old York Road,

408 Pa. 257 A.2d 500 (1962) ......................................................10Wynne u. Rosen,

391 Mass. 797 N.E.2d 1348 (1984) ...............................................10Statutes42 Pa. C.S. § 1728(a)(3) ............................................................................................ 142 Pa. C.S.A. § 8351 .......................................................................................3, 7, 11Other AuthoritiesRestatement (Second) of Torts, § 674 ....................................................................... 8Sanctioning Power Available to Pennsylvania Trial Judges in Civil Litigation —With an Emphasis on Pennsylvania's New Rule Addressing Frivolous Filings, Pa.Bar Assn Q. 139, 141 (Oct. 2002) ......................................................13RulesFed. R. Civ. P. 41 ~a)C 1)~A)~i) ................................................................................ 4, 6Fed.R.Civ.P. 41 ~a)~ 1)CB) .....................................................................6Pa.R.C.P. 1036(a) ................................................. ....:...................12In ~e: Recognition of the Pennsylvania Bar' Association as the Association

Representing Members of the Bar of this Commonwealth, No. 198 SupremeCourt Rules Docket No. 1 (June 29, 1998) ...........................................................1

iii

STATEMENT OF INTEREST

The Pennsylvania Bar Association(the "PBA"), founded more than 120

years ago in 1895, is the largest organization representing the lawyers of

Pennsylvania.l The PBA has approximately 28,000 members and is the

association that this Court, as governing authority of the Unified Judicial System,

has designated under 42 Pa. C.S. § 1728(a)(3) as "most broadly representative of

the members of the bar of this Commonwealth." In ~e: Recognition o, f'the

Pennsylvania Bar Association as the Association Representing MembeNs of the Bar

of this Commonwealth, No. 198 Supreme Court Rules Docket No. 1 (June 29,

1998).

The PBA Board of Governors, acting at the recommendation of the

Association's Amicus Curiae Brief Committee, authorizes the participation of the

PBA as amicus curiae in appeals involving significant issues affecting the

Pennsylvania Unified Judicial System. The recommendation to submit this brief

also had the strong support of the PBA's Professional Liability Committee,

consisting primarily of members who practice in the field of lawyer professional

responsibility and liability, for both plaintiffs and defendants, and also present risk

management continuing legal education programs statewide.

1 Based on the recommendation of both the Amicus Committee and theProfessional Liability Committee of the PBA, the PBA Board of Governorsauthorized the filing of this brief by vote of the Board on August 20, 2014.

The PBA does not represent the parochial interests of any particular interest

groups; rather, it speaks on behalf of all lawyers in the Commonwealth of

Pennsylvania. The PBA's mission statement includes the advancement of the

science of jurisprudence and the promotion of the administration of justice. The

PBA is vitally interested in the issues- of professional responsibility and

professional liability that are implicated by the construction of the statute at issue

in these consolidated appeals.

FACTUAL BACKGROUND

Appellees are attorneys who brought lawsuits in federal court on behalf of

children who were affected by the so-called "kids for cash" scandal in Luzerne

County. The first Complaint was filed on February 13, 2009, with the other

lawsuits commencing over the next two months. On July 6, 2009, Appellant

Zappala's counsel in the federal action wrote a letter setting forth, in the words of

the-trial court, "a compelling argument for the dismissal," of Appellant (slip Op. at

4). Appellees, again in the words of the trial court, "quickly and honorably

complied with the request," (id.). On July 25, 2009, Appellees voluntarily

dismissed the action against Zappala without prejudice pursuant to Federal Rule of

Civil Procedure 41(a)(1)(A)(i).

Zappala then sued the attorneys and parties who had named him as a

defendant in the dismissal actions for wrongful use of civil proceedings. The trial

~iJ

court dismissed those actions on preliminary objections, in part on the basis that

the termination of the underlying actions did not satisfy the requirement of

favorable termination under the governing statute. The Superior Court affirmed in

a non-precedential opinion and this appeal followed.

THE DRAGONETTI ACT

In 1980, the legislature codified the common-law tort of wrongful use of

civil process in a statute, which has become known as "the Dragonetti Act", 42 Pa.

C.S.A. § 8351, et. seq. The Dragonetti Act uniquely affects lawyers because the

Act expressly permits and regulates claims against lawyers arising directly from

the practice of law. Indeed, experience suggests that in almost.every Dragonetti

Act case, whether filed in state or federal court pursuant to diversity jurisdiction, a

lawyer is sued for bringing the preceding action, whether or not the client is also

sued. And, of course, generally Dragonetti Act claims are brought by lawyers. and

lawyers generally are involved in the defense. Hence, the specific circumstances

where a Dragonetti claim may lie is of great interest to many Pennsylvania

lawyers. For those reasons, the Pennsylvania Bar Association takes particular

interest in the fair, just, evenhanded and efficient administration and disposition of

such claims.

In the Dragonetti Act, the Legislature imposed a requirement that the

underlying action shall have terminated in favor of the person against whom the

fC'

proceedings were brought. The Legislature did not, however, define or explain

precisely what form of case resolution constituted a favorable termination, leaving

that to this Court.

This Court has granted review on the following question:

Whether the voluntary and unilateral dismissal ofPetitioner without prejudice pursuant to Fed. R. Civ. P.41(a)(1)(A)(i) was a termination of the underlyingproceedings in Petitioner's favor, such that Petitionercould state a claim in a Dragonetti action?

The Pennsylvania Bar Association believes that this Court should take this

opportunity presented to adopt abright-line rule that, for purposes of the

Dragonetti Act, a voluntary discontinuance of proceedings, entered without

consideration or coercion, and prior to the filing of an answer or other responsive

pleading, does not constitute a favorable termination and cannot support a

subsequent lawsuit under the Dragonetti Act.

ARGUMENT

A. General Principles

All Pennsylvania lawyers should agree that they are professionally obligated

to refrain from asserting claims for improper purposes, that all claims should be

based on a good faith belief in the underlying facts alleged in a pleading, and that

all claims should be based on "probable cause" within the meaning of the

Dragonetti Act. All Pennsylvania lawyers should also agree that they should not

be liable if they act promptly and voluntarily to discontinue an action which

demonstrably lacks merit.

Some may argue that a lawyer is obligated thoroughly to investigate the case

before its commencement, and if the lawyer has satisfied the obligation to

investigate a claim, then, the lawyer should have no fear of exposure to a

Dragonetti action even if the underlying suit is not successful. This argument fails

to recognize the realities of law practice. It is not unusual for a lawyer to first learn

of a claim close to the end of the limitations period. Crucial facts may, and often

are, simply unknowable at the time the lawyer must decide whether to sue. Clients

may, intentionally or not, omit, misstate or exaggerate the background facts and

circumstances, particularly where the lawyer or law firm is making an investment

of time and resources in prosecuting a matter on a contingent basis. Often,

material facts will emerge at variance with the client's version of the background

events as the case unfolds. Sometimes these new facts will cause the lawyer to

reevaluate the merits or perceived value of the case or lead the lawyer to conclude

that the initial case evaluation was erroneous and determine to seek to amend

pleadings, withdraw from the representation, or seek the client's consent to

dismissal of the claim.

If the lawyer acts promptly and without compulsion to dismiss the case after

the lawyer learns of materially adverse matters, that should be sufficient to

~~

preclude a subsequent Dragonetti Act claim. Indeed, a contrary rule would likely

impel lawyers to keep their cases alive, in the hope that later factual developments

or a settlement will provide a defense to the eventual Dragonetti claim. This result

should not depend on the circumstance that the underlying case was brought in

federal court and voluntarily dismissed under the federal rule. There is no material

difference between a voluntary dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i),2 and

a voluntary discontinuance under Pa.R.C.P. 229 for these purposes. Moreover,

there is no principled distinction between a discontinuance with or without

prejudice for these purposes.

B. Analysis Of The Favorable Termination Requirement

The Dragonetti Act states in pertinent part:

§ 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 toliability to the other for wrongful-use of civil proceedings:

1. He acts in a grossly negligent manner or without probable cause andprimarily for a purpose other than that of securing the properdiscovery, joinder of parties or adjudication of the claim in which theproceedings are based; and

Such a dismissal is without prejudice, unless the notice or stipulation providesotherwise, except for repetitive filings. See Fed.R.Civ.P. 41(a)(1)(B). See B.Shannon, Dismissing Federal Rule of Civil Procedure 41, Univ. of Louisville L.Rev. Vol. 52:265, 269 (2014) (reviewing circumstances where dismissals mayhave preclusive effect and noting inconsistencies in the rule language and itsinterpretation).

2. The proceedings have terminated in favor of the person against whomthey are brought.

42 Pa. C.S.A. § 8351(a) (1980).

Our research does not disclose that this Court has ever addressed the

meaning or extent of the favorable termination requirement in the Dragonetti

statute. The Superior Court has addressed the issue on a number of occasions, with

varying results. In Rosenfield v. Pennsylvania Auto Insurance Plan, 636 A.2d

1138 (Pa. Super. 1994), the court stated that whether withdrawal or abandonment

constitutes a final termination of the case in favor of the person against whom the

proceedings are brought depends on the circumstances under which the

proceedings are withdrawn. In Bannar v. Mille, 701 A.2d 242 (Pa. Super. 1997),

the court held that a voluntary discontinuance on the eve of trial, in the face of

imminent defeat, satisfied the favorable termination requirement. In D'Elia v.

Folino, 933 A.2d 117 (Pa. Super. 2007), the court held that withdrawal of

proceedings stemming from a compromise or agreement does not, as a matter of

law, constitute a termination favorable to the party against whom the original

proceedings were brought. In Electronic Labo~ato~y Supply Co. v. Cullen, 712

A.2d 304 (Pa. Super. 1998), the court held that settlement of the underlying dispute

did not constitute favorable termination sufficient to support a Dragonetti claim

against an attorney defendant, even if the attorney defendant had not been party to

7

the settlement and even if the language of the settlement agreement purported to

preserve a party's right to bring a Dragonetti claim against the lawyer.

It appears that the favorable termination prong of the Dragonetti Act was

derived from Restatement (Second) of Torts, § 674. See Rosenfield v.

Pennsylvania Auto Insurance Plan, supra, at 1141 ("Pennsylvania law regarding

the wrongful use of civil proceeding is in conformity with the Restatement of Torts

(Second), § 674.") Electronic Laboratory Supply Co. v. Cullen, supra, at 309

("Looking to Section 674 and its comment for guidance....").

Section 674(b) conditions a claim for wrongful use of civil proceedings on

the termination of the proceedings in favor of the person against whom they are

brought. Comment j to that black letter Restatement section includes as a form of

favorable termination "the withdrawal of the proceedings by the person bringing

them." However, the comment further states that whether a withdrawal or

abandonment constitutes a final termination depends upon the circumstances under

which the proceedings are withdrawn.

The underpinnings of the Dragonetti Act contained in the Restatement

(Second) of Torts, the legislative language of the Dragonetti Act itself, and the

various decisions of lower Pennsylvania courts, all demonstrate that the application

of the favorable termination requirement is far from clear. For example, neither

the statute nor the Restatement addresses settlement or compromise, yet

Pennsylvania lower courts have not hesitated to determine that such a resolution is

not, as a matter of law, a favorable termination sufficient to support a Dragonetti

claim. See, e.g., Electronic Laboratory Supply Co. v. Cullen, supra. A party could

logically argue that a settlement or compromise was favorable to its side, thus

justifying a Dragonetti claim. However, Pennsylvania lower courts have uniformly

refused to allow that argument, in effect, creating a useful bright-line test.

As the favorable termination prong of the Dragonetti Act is taken from

Restatement (Second) of Torts § 674, the analysis from other jurisdictions may be

instructive. The Supreme Court of Connecticut summarized its conclusions as

follows:

Courts have taken three approaches to the "termination"requirement. The first; and most rigid, requires that theaction have gone to judgment resulting in a verdict ofacquittal, in the criminal context, or no liability, in thecivil context. [n. l 1.] The second permits a vexatious suitaction even if the underlying action was merelywithdrawn so long as the plaintiff can demonstrate thatthe withdrawal took place under circumstances creatingan inference that the plaintiff was innocent, in thecriminal context, or not liable, in the civil context. [n.12.]The third approach, while nominally adhering to the"favorable termination" requirement, in the sense that anyoutcome other than a finding of guilt or liability isfavorable to the accused party, permits a maliciousprosecution or vexatious suit action whenever theunderlying proceeding was abandoned or withdrawnwithout consideration, that is, withdrawn without either a

7

plea bargain or a settlement favoring the party originatingthe action. [n.13.]3

DeLauNentis v. New Haven, 597 A.2d 807, 820 (Conn. 1991).

In reaching their holdings, these courts wrestled with the issue of whether

the favorable termination prong should be deemed satisfied if the voluntary

discontinuance is reflective of the merits, or lack thereof, of the underlying

proceedings.

3 Original footnotes from DeLaurentis v. New Haven, 597 A.2d 807, 820 n.l 1-13(Conn. l 991):

n.11 See, e.g.,. Schenck v. Minolta Office Systems, Inc., 802 P.2d 1131 (Colo. App.1990); Bonney v. King, 201 Ill. 47, 50, 66 N.E. 377 (1903); Withall v. CapitolFederal Savings ofAmerica, 164 Ill: App. 3d 851, 855-56, 518 N.E.2d 328 (1987),cent. denied, 119 Ill. 2d 576, 522 N.E.2d 1259 (1988).

n.12 See, e.g., Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274 (1986); Jaffe v.Stone, 18 Cal. 2d 146, 150, 114 P.2d 335 (1941); Stanley v. Superior Court ofSacramento County, 130 Cal. App. 3d 460, 463-64, 181 Cal. Rptr. 878 (1982);Union Oil of California v. Watson, 46$ So. 2d 349, 353-54 (Fla. App.), review

~, denied, 479 So. 2d 119 (Fla. 1985); Carlsen v. Oakwood Hills, 164 Ill. App. 3d396, 400, 517 N.E.2d 1107 (1987), appeal denied, 119 Ill. 2d 554, 522 N.E.2d1241 (1988); Wynne v. Rosen, 391 Mass. 797, 800-801, 464 N.E.2d 1348 (1984);Mondello v. 1Vlondello, 161 App. Div. 2d 690, 691, 555 N.Y.S.2d 826 (1990); 3Restatement (Second) of- Torts § 660, comment (c), and § 674 (b), comment (j).

n.13 See, e.g., Lackner v. LaCroix, 25 Cal. 3d 747, 750, 602 P.2d 393, 159 Cal.Rptr. 693 (1979); Hurgren v. Union Mutual Life Ins. Co., 141 Cal. 585, 587, 75 P.168 (1904); Cr~awfo~d v. Theo, 112 Ga. App. 83, 85, 143 S.E.2d 750 (1965) (civilcontext only); Joiner v. Benton Community Bank, 82 Ill. 2d 40, 45, 411 N.E.2d 229(1980); Wong v. Taber, 422 N:E.2d 1279, 1284 (Ind. App. 1981); Woodyatt v.Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962); Robinson v. Robinson,362 Pa. Super. 568, 575, 525 A.2d 367 (1987), appeal dismissed, 518 Pa. 63, 540A.2d 529 (1988).

10

In seeking the correct view under Pennsylvania law, it should be noted that,

in certain key respects, the Dragonetti Act differs materially from the tort of

wrongful use of civil proceedings described in the Restatement. In particular, our

statute is unique in including in the definition of proper purpose, the securing of

proper discovery and joinder of parties. 42 Pa. C.S.A. § 8351(a)(1). Those

particular purposes are not included as proper purposes under Restatement § 674.

In addition, the Restatement omits a critical provision of the Dragonetti Act,

which is particularly applicable to lawyers. In section 8352 (existence of probable

cause), the Dragonetti Act states that a person has probable cause if he reasonably

believes in the existence of the facts upon which the claim is based and:

(3) believes as an attorney of record, in good faith, thathis procurement, initiation or continuation of the civilcause is not intended to merely harass or maliciouslyinjure the opposite party.

The Restatement's formulation of wrongful use of civil proceedings -does not

include this important provision and lirriitation on lawyer liability.

The Pennsylvania Bar Association believes that these differences between

the Dragonetti Act and the Restatement, as well as policy considerations —

including the desirability of fostering the lawyer's obligation diligently to represent

a client, particularly in the face of an impending statute of limitations —militate

strongly in favor of a bright-line rule which would immunize lawyers from

Dragonetti claims if the underlying claims are voluntarily discontinued, without

11

coercion or consideration, at an early stage in the proceedings. The Pennsylvania

lawyer's ability to proceed in good faith to seek proper discovery and joinder of

parties authorizes the initiation and continuation of the proceedings, at least until

facts clearly appear to the attorney to make the claim non-viable. Moreover, a

prompt and voluntary discontinuance is virtually incontrovertible evidence that the

action was not intended to merely harass or maliciously injure the opposite party.

Conversely, counsel for a defendant who believes that his or her client has been

wrongly sued should be encouraged to provide evidence of non-involvement4 or a

brief statement of reasons that the claim has no merit to encourage early voluntary

termination.

A bright-line rule allowing a safe harbor in circumstances where a claim has

been discontinued voluntarily at an early stage, would be consistent with existing

ethical and professional rules. Rule 3.1 (Meritorious Claims and Contentions) of

`~ Affidavits ofnon-involvement are specifically_ authorized in actions againsthealth care providers and construction design professionals (Pa.R.C.P. 1036(a)),but similar evidence ofnon-involvement may be offered in other sorts of cases tosupport that an improvidently initiated claim may be voluntarily discontinued. Ifthe underlying action had been an "action" as defined in Rule .1036 of thePennsylvania Rules of Civil Procedure, i.e., an action involving a constructiondesign professional or an action against a health care provider, the non-involveddefendant would have sought an- early dismissal upon filing an Affidavit ofNoninvolvement. In the present case, Zappala did something similar, just on aninformal basis, by notifying- the lawyers who commenced the action against himthat he was not involved. Lawyers, like the lawyers in this case, who respond tosuch a notice by immediately discontinuing the litigation, ought not besubsequently liable in a Dragonetti action.

12

the Rules of Professional Conduct provides that a lawyer shall not "bring or defend

a proceeding, or assert or controvert an issue therein, unless there is a basis in law

and fact for doing so that is not frivolous...." Indeed, Comment [2] to Rule 3.1

explains that "the filing of an action or defense ... is not frivolous merely because

the facts have not first been fully substantiated or because the lawyer expects to

develop vital- evidence only by discovery."

Further, Rule 1023.1 of the Pennsylvania Rules of Civil Procedure mandates

that a lawyer's signature on a pleading constitutes the lawyer's certification that "it

is not being presented for any improper purpose," that the "claims, defenses, and

other legal contentions therein are warranted by existing law or by anon-frivolous

argument for the extension, modification or reversal of existing law or the

establishment of new law," and that "the factual allegations have evidentiary

support." Where an attorney fails to withdraw or amend a paper filed iri violation

of Rule 1023.1, the state court equivalent of Rule 11 of the Federal Rule of Civil

Procedure, and continues to pursue the demonstrably deficient claim, the trial court

has the authority to impose a variety of sanctions on the attorney, even where the

attorney has not acted in subjective bad faith.5 See Explanatory Comment to

Pa.R.C.P. 1023.1.

5 T. Wilkinson and R. Robbins, Sanctioning Power Available to PennsylvaniaVial Judges in Civil Litigation —With an Emphasis on Pennsylvania's New RuleAddressing Frivolous Filings, Pa. Bar Assn Q. 139, 141 (Oct. 2002).

13

The combined effect of these rules is to adequately protect the public from

frivolous claims, irrespective of the corresponding threat of a Dragonetti action.

We believe that adoption of the proposed bright-line rule will provide greater

guidance to practitioners and to the courts, while having no materially adverse

effect on the prevention of frivolous claims.

The PBA does not propose that the underlying action must have been

decided on its merits in favor of the Dragonetti plaintiff, in order to establish

favorable termination. A voluntary withdrawal from the field of battle, regardless

of its cause, does not change the fact that the Dragonetti plaintiff had been forced

to defend himself or herself in the action which ended without victory by the

underlying plaintiff or by amicable resolution. Of course, the Dragonetti plaintiff

will still be required to surmount the heavy burdens of proving both lack of

probable cause or gross negligence, and improper purpose, in order to prevail,-but

there is no public policy reason to bar the claim on the basis of lack of favorable

termination.

C. When Should The Grace Period Terminate?

On the other hand, we do not suggest that an attorney may escape Dragonetti

liability for a case brought without probable cause and for an improper purpose

simply by discontinuing the action after incurring substantial, time consuming and

expensive proceedings or immediately prior to trial. Such a rule would insulate

14

lawyers from the adverse consequences of their improper conduct, reward

gamesmanship, and fail to provide the underlying defendant who was subject to a

baseless lawsuit with an appropriate remedy.

Many consequences under the Rules of Civil Procedure are related to the

time for filing of an answer or other responsive pleading to a complaint. For

example, _under Pa.R.C.P. 1042, the time to file an answer to a professional

liability complaint is deferred until after the plaintiff has filed and served a

certificate of merit. Under Rule 237, no default judgment may be taken until the

time within which to file a responsive pleading has expired. Moreover, it is

common practice among attorneys to grant extensions of time to answer, move or

otherwise plead in response to a complaint where there is good cause, including

uncertainty about the causes of action alleged or the defenses that might be

proffered. The time in which to file a response to a complaint is well known and

universally relevant.

The Pennsylvania Bar Association suggests that the time within which to file

a responsive pleading to the complaint is an appropriate bright-line to determine

when an action may be voluntarily discontinued without the threat of exposure to a

subsequent Dragonetti claim.6 This bright-line is both clear and flexible; should a

6 We do not mean to suggest that the failure to discontinue an action, before thefiling of a responsive pleading, means that, ipso facto, there has been a favorabletermination. A later dismissal might, under appropriate circumstances, also negate

15

plaintiff s lawyer wish to file an action but preserve the ability to discontinue it

without potential liability, the lawyer may simply offer an open-ended extension of

time to respond to the complaint. Should the defendant wish to pursue a potential

Dragonetti claim, the defendant is free to reject that offer. It will therefore

become, in part, the decision of the parties as to whether a viable Dragonetti claim

will ever be made, advancing the policy often espoused by this Court that disputes

are best resolved by agreement among the parties rather than disposition imposed

on them by court order.

CONCLUSION

The adoption of the recommended bright-line rule would inure to the benefit of all

Pennsylvania lawyers, any of whom may be potential Dragonetti defendants. Such

a rule would benefit Pennsylvania lawyers to the extent that it might limit the

number of unnecessary and inappropriate Dragonetti claims actually brought and

which might be defended under the Association's sponsored professional liability

program. It would benefit civil society in general to the extent that it might limit

the number of repetitive lawsuits about lawsuits which adversely affect the ability

of our judicial system to handle other, more. substantive, claims. It would allow

attorneys to terminate claims voluntarily without fear of Dragonetti liability where

those attorneys might otherwise feel constrained to continue litigation in the hope

the favorable termination requirement, but that question is beyond the scope of thisbrief.

of a later settlement, solely to escape Dragonetti liability. Finally, the bright line

rule strikes a proper balance between the lawyer's responsibility to diligently

represent a client (particularly in the face of an impending statute of limitations or

other constraint) and the right of a defendant who was not in fact involved in the

circumstances giving rise to the plaintiff s claim to be promptly dismissed from a

civil action.

Respectfully submitted,

MARSHALL DENNEHEY WARNERCOLEMA & G GGIN

By:ARTHUR W. LEF O, ESQUIREAttorney for Amic Curiae,The Pennsylvania Bar Association,

LAMB McERLANE P.C.

By:S C. SARGENT, ES UIRE

tt rney for Amicus Curiae,The Pennsylvania Bar Association

17

CERTIFICATE OF SERVICE

I hereby certify that two true and correct copies of the Brief for Amicus, The

Pennsylvania Bar Association, were served on the below listed date, by first class

mail, postage prepaid, to the following addresses:

Richard A. Sprague, EsquireThomas A. Sprague, EsquireBrooke Spigler Cohen, EsquireTheodore J. P. Chylack, EsquireLouis C. Shapiro, EsquireSprague 8i SpragueSuite 400, The Wellington Building135 S. 19th StreetPhiladelphia, PA 19103(215) Sb1-7681Counsel for Appellant

Jeffrey B. McCarron, EsquireDanielle A. Graham, EsquireSwartz Campbell, LLCTwo Liberty Place50 South 16th Street — 28~' F1.Philadelphia, PA 19102(215) 299-4309Counsel for Ca~oselli, Beachle~, McTie~nan, & Conboy, et al.

Paul C. Troy, EsquireKane, Pugh, Knoell, Troy &Kramer, L.L.P.510 Swede StreetNorristown, PA 19401(610) 275-2000Counsel for Cefalo &Associates, et al.

John R. Kenrick, EsquireTimothy S. Coon, EsquireJeffrey P. Lewis, EsquireEckert Seamans Cherin & Mellot, LLC600 Grant Street, 44th FloorPittsburgh, PA 15219Counsel fog Eckert Seamans Che~in &Mellott, LLC, et al.

Joseph John Langkamer, EsquireElizabeth K. Ainslie, EsquireWilbur L. Kipnes, EsquireBenjamin D. Wanger, EsquireShnader Harrison Segal &Lewis LLP1600 Market Street, Suite 3600Philadelphia, PA 19103Counsel for Riker Danzig Scheer Hyland & Pe~retti, LLP, et al.

James R. Kahn, EsquireElit R. Felix, II, EsquireMargolis EdelsteinThe Curtis Center, Suite 400E170 S. Independence Mall WestPhiladelphia, PA 19106Counsel for Richard G. Freeman

Jeffrey R. Lerman, EsquireGlenn F. Rosenblum, EsquireBrian W. Sullivan, EsquireMontgomery, McCracken, Walker &Rhoads, LLP123 South Broad StreetPhiladelphia, PA 19109Counsel for Metzger & Kleiner, et al.

Marc L. Bogutz, EsquireWilliam F. McDevitt, EsquireWilson, Elser, Moskowitz, Edelman &Dicker LLPIndependence Square WestThe Curtis Center, Suite 1130 East601 Walnut StreetPhiladelphia, PA 19106Counsel for Gelb Law Firm, et al.

Joseph Goldberg, EsquireMichael B. Pullano, EsquireWeber, Gallagher, Simpson, Stapleton, Fires &Newby, LLP2000 Market Street, 13th FloorPhiladelphia, PA 19103Counsel fog Anapol Schwartz Weiss Cohan Feldman &Smalley, P. C., et al.

John E. Riley, EsquireAndrew S. Console, EsquireConrad O'Brien PCCenter Square, West Tower1500 Market Street, Suite 3900Philadelphia, PA 19102Counsel fog Law Office of Barry H. Dyller, et al.

Joseph W. Murray, Jr., EsquireVaira &Riley, P.C.1600 Market Street, Suite 2650Philadelphia, PA 19103Counsel, fog Law Office of Barry H. Dylle~, et al.

Robert C. Heim, EsquireArgia J. DiMarco, EsquireTara L. Kelly, EsquireMichael L. Kichline, EsquireElisa T. Wiygul, EsquireDechert LLPCira Centre2929 Arch StreetPhiladelphia, PA 19104Counsel fog Hangley A~onchick Segal & Pudlin, et al.

MARSHALL DENNEHEY WARNERCOLF~IAN & GOGGIN

ARTHUR W. LEFC ESQUIREAttorney for Amicus riae,The Pennsylvania Bar _Association

Dated: October 22, 2014oti~ io2s9~o.~~