Professional Liability

Key Points:

• Pennsylvania Superior Court recently examined a wrongful use claim. 
• Attorneys are not liable for wrongful use as long as they believe that there is a chance, however slight, that their clients’ claims will be successful. 
• Attorneys may also safely act upon the facts stated by their clients.

The Pennsylvania Superior Court celebrated the new year with a primer on wrongful use claims. In a recent decision, Bauer v. Damon, 2024 WL 277816 (Pa. Super. Jan. 25, 2024), the Superior Court analyzed a claim of wrongful use of civil proceedings under the Dragonetti Act. The plaintiffs claimed that the defendants lacked probable cause and acted with improper purpose in initiating and continuing a debt collection against them. The trial court stated that it had a difficult time ascertaining the nature of the plaintiffs’ claims of error and held that those claims had been pled with such vagueness as to warrant waiver. On appeal, the Superior Court refused to find waiver but did affirm the trial court’s decision.

In the underlying action, the plaintiff, Berks Transfer, Inc., brought claims of breach of contract, unjust enrichment, and fraud against Keystone Waste Disposal, LLC. The plaintiff further named Keystone’s individual owners, as well as a company owned by one of the owners, as defendants. The trial court held that the relationships between the individual defendants and Keystone had been complicated enough to justify inclusion in the underlying action, despite the plaintiffs’ protests to the contrary.

The plaintiffs alleged that the underlying defendants added the individual owners as defendants purely for leverage, as those owners did not own Keystone at the relevant time. However, the plaintiffs did not allege that the defendants knew or should have known this at the time.

What constitutes a wrongful use claim? Attorneys are not liable for wrongful use as long as they believe that there is a chance, however slight, that their clients’ claims will be successful. Attorneys may also safely act upon the facts stated by their clients. Otherwise, effective advocacy would be difficult indeed.

One defendant argued that he could not be liable for wrongful use because he was a defendant in the underlying action, rather than a plaintiff. The Superior Court did not address this argument, but the point is an interesting one. Considering that Dragonetti claims may involve a tangled web of parties as a matter of course, it would be illuminating to see how Pennsylvania courts address similar questions. 

An attorney defendant for Berks Transfer also requested attorneys’ fees in this action, arguing that it could not have been liable for wrongful use because it was not involved in the underlying action. Superior Court precedent states that a Dragonetti claim may not be maintained by one who is not an original party to the underlying action. Because the instant appeal was allegedly frivolous, the attorney defendant claimed a right to attorneys’ fees under the Pennsylvania Rules of Appellate Procedure. The Superior Court held that the instant appeal did not meet the required standard, even though the plaintiffs failed to allege a sustainable wrongful use claim. This distinction—the space between a failure to state a claim and the claim itself being frivolous—is an important one. 

An attorney may provide fierce advocacy for his clients in pursuit of a less-than ironclad claim without committing wrongful use. Similarly, an attorney’s appeal may fail to state a claim without necessitating an award of attorneys’ fees. Attorneys must use their best judgment in order to uphold their duties to the law, the courts, and their clients. In other words, they must balance their duties in accordance with the standards of their profession while pursuing their clients’ interest. If duties to the law represent his suit of armor, protecting the legal system from vexatious conduct, then duties to a client represent his sword, championing his client’s rights and interests in the courtroom. An effective attorney requires both to succeed.

It should be noted that a Dragonetti claim requires that a person take part in the procurement, initiation, or continuation of civil proceedings in a grossly negligent matter or without probable cause and primarily for an improper purpose. While this Superior Court decision does not break from established precedent, it is an effective case study of wrongful use claims. Gross negligence is a high standard to meet, requiring the lack of even the slightest diligence or care, a reckless disregard of a legal duty and of the consequences to others. Ideally, most attorneys acting in any reasonable capacity would not meet that standard. Of course, this is not always the case—professional liability actions persist. 

This case also highlights the importance of proper pleadings. Attorneys must take care to state claims that are plausible on their face if they are to effectively fight for their clients. Otherwise, they risk riding out into battle unarmed. As we move through this new year, attorneys should take note of these lessons. 

---

 

_{Defense Digest, Vol. 30, No. 2, June 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}