Don’t Forget Your Probable Cause Argument in Dragonetti Proceedings
Our Lawyers’ Professional Liability Practice Group in Pittsburgh has noticed a growing trend in western Pennsylvania plaintiffs’ practice concerning Wrongful Use of Civil Proceedings tort claims filed by original defendants arising from actions with “split outcomes.” “Split outcome” actions occur when an original plaintiff prevailed on some, but not all, of their claims against an original defendant. The original defendant then sues the original plaintiff and asserts, among other claims, a Wrongful Use of Civil Proceedings count. We have seen a noticeable increase in such filings in 2023 and 2024.
This trend necessitates an important reminder that early dismissal of these counts should be pursued based upon established case law, that the split outcome of the original action can actually result in the dismissal of the wrongful use claim.
The tort of Wrongful Use of Civil Proceedings, commonly referred to as a “Dragonetti Action,” is codified at § 42 Pa.C.S.A. 8351. In order to prove a wrongful use claim, a plaintiff must plead and prove that: (1) the underlying proceedings were terminated in their favor; (2) the defendants caused those proceedings to be instituted or continued without probable cause; and (3) the proceedings were instituted primarily for an improper cause. Sabella v. Milides, 992 A.2d 180, 188 (Pa. Super. 2010).
It is critical to note that multiple courts have found that, when probable cause existed for one claim within an action, probable cause can be considered to have existed for the entirety of the proceeding. Bobrick Corp. v. Santana Prods., Inc., 698 F. Supp. 2d 479, 493-94 (M.D. Pa. 2010), aff’d, 422 Fed. Appx. 84 (3d Cir. 2011); Rosen v. Tabby, 1997 WL 667147 (E.D. Pa. Oct. 9, 1997), aff’d mem., 175 F.3d 1011 (3d Cir. 1999); Laventhol & Horwath v. First Pennsylvania Bank, N.A., 18 Phila. 580, 1988 WL 679860 (Phila. C.P. Phila. Co., Nov. 10, 1988). Put another way, the probable cause/gross negligence prong of a Wrongful Use of Civil Proceedings claim under Pennsylvania law pertains to the entirety of a “proceeding” rather than any individual claims asserted therein.
When facing Wrongful Use claims arising from split outcome actions, Dragonetti-claim defendants should, therefore, seek early dismissal of these counts by arguing the fact that a competent tribunal ruled in favor of the original plaintiff on some of the claims asserted in the original action means that probable cause existed for all such claims.
Legal Update for Lawyers’ Professional Liability – September 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. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.