Civil Litigation

Can I Get Sued for Suing

In the back of every lawyer’s mind, there is sometimes a fear when initiating a lawsuit that your client could potentially be sued in return for bringing their claims.

By: Gillian Southworth, Law Clerk

In the back of every lawyer’s mind, there is sometimes a fear when initiating a lawsuit that your client could potentially be sued in return for bringing their claims. This fear may come to fruition if opposing counsel finds the claims to have been frivolous. The question then becomes does the defendant have a viable claim against the client and what kind of claim might they have. To answer these questions, it is imperative to understand Pennsylvania’s current legislation regarding Wrongful Use of Civil Proceedings and Abuse of Process.

To understand the differences between these types of claims, it is helpful to understand the origin of these causes of action. Before the Dragonetti Act was signed into law, Pennsylvania followed traditional English law by implementing the tort of Malicious Use of Civil Proceedings. George Bochetto, Robert S. Tintner, David P. Heim and John O’Connell, Dragonetti and Litigation Tort, Pennsylvania Bar Institute, (2017). This law required malice on the part of the defendant, lack of reasonable or probable cause for the defendant in initiating the underlying civil lawsuit, terminating of the underlying civil suit in favor of the plaintiff and seizure or interference with the property or person of the plaintiff in the underlying civil lawsuit. Id. However, in 1980, Joseph Dragonetti successfully campaigned to change the English rule of malicious use of civil proceedings, after he lost a claim against a Bank whom he had spent 5 years in litigation with when they included him in a claim against a textile company he was a consultant for. Id. Dragonetti initially lost his claim because he did not meet the seizure of property or persons element of the tort. However, this requirement would soon be relinquished. Id.

On December 19, 1980, Pennsylvania created the Dragonetti Act, also known as Wrongful use of Civil Proceedings. Id. This restatement discarded the requirements of seizure of property or person and proof of malice. The court found that these elements were not necessary for an individual to have a viable Wrongful Use of Process claim. Now the definition of a Dragonetti claim is, “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 when (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. Cons. Stat. Ann. §§ 8351 (Lexis 2023).

Thus, a losing Plaintiff may be liable of a Dragonetti claim for initiating, procuring or continuing a lawsuit without probable cause and for an improper purpose. A person may be liable under this Act for these three different types of participation in a frivolous lawsuit. Procurement liability under the Dragonetti Act is explained as “one who procures the initiation of civil proceedings is liable under the same conditions as the one who initiates them. Bochetto, Tinter, Heim, O’connell, Supra. Thus, if a party initiates a charge or strongly compels a third party to bring a charge, they could be held liable for these actions. Id. It is enough to compel an otherwise uninterested third party to bring a charge against another person. If an individual advises or encourage someone to bring a charge that they have already been contemplating bringing, this is not considered procuring. However, if the individual advises or encourages a third party to bring proceedings that they previously had no intention of bringing than there may be a finding of procuring. Id.

Furthermore, another element for a Dragonetti claim in Pennsylvania is the requirement that the previous claim terminated in favor of the party bringing the Dragonetti claim. However, it can be hard to determine whether this element of a Dragonetti claim is met when a case ends with withdrawal, abandonment, or settlement.  Pennsylvania has determined that a voluntary dismissal of a lawsuit can qualify as favorable terms for a party to then bring a Dragonetti claim. Babul v. Therapeutics, 15-2937, 2018 WL 994217 (E.D. Pa. Feb. 21, 2018).

However, this depends on the cases individual circumstances. If the action resulted in a settlement, or as some type of compromise, then this outcome will likely be viewed to have not terminate in the plaintiffs favor, preventing the Plaintiff from bringing a Dragonetti claim. And evidently, if the defendant wins the lawsuit, they will be permitted to bring a Dragonetti claim against the Plaintiff.

​Moreover, the Dragonetti Act provides that a plaintiff is entitled to recover for “(1) the harm normally resulting from any dispossession or interference with the advantageous use of his land, chattels or other things, suffered by him during the course of the proceedings; (2) the expense, including any reasonable attorney’s fees, that he has reasonably incurred in defending himself against the proceedings; (3) any specific pecuniary loss that has resulted from the proceedings; and (4) punitive damages according to law in appropriate cases.” Id. Thus, a triumphant Plaintiff should be placed in the position they were in prior to the lawsuit and reimburse for the distress they endured.

Furthermore, a Dragonetti claim slightly varies from the claim for abuse of process. Abuse of process is a judicially based cause of action. Rosen v. Am. Bank, 426 Pa. Super. 376, 627 A.2d 190 (1993). An abuse of process suit has three elements: 1) use of a legal process against the plaintiff; 2) primarily to accomplish a purpose for which the process was not designed; and 3) harm to the plaintiff. The common law cause of action for abuse of process is defined as the use of legal process against another “‘primarily to accomplish a purpose for which it is not designed.” Id.

Abuse of process can be described as, “the use of the legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process.” McGee v. Feege, 517 Pa. 247, 259, 535 A.2d 1020, 1026 (1987). This abuse of process cause of action focuses more on the misuse of the court process in a way it was not intended for, instead of solely on the frivolous intention behind bringing and continuing litigation against someone. Id. However, often times these claims are brought together and can both be viable assertions, as they are relatively similar.

In one of our cases at Very Law, our client was sued by an ex-fiancé merely as retaliation for the dissolution of their relationship. Our client’s former partner did not bring this claim with any reputable basis. Our client and the defendant had previously shared a bank account when they were in a relationship. During this period both parties were continuously contributing to the account. However, once the couple split the former partner made false allegations that our client was using this account and was unauthorized in doing so. The claim was very damaging and resulted in our client being held in jail for a day. Criminal charges were brought against our client with little consideration of the magnitude of harm they would cause. Rightfully, we were able to dispel these allegations and we are now bringing an abuse of process claim and other claims against the defendant.

At Very Law, we are equipped to respond efficiently to damaging and false allegations. If you need the support of an experienced attorney, our team of passionate and driven lawyers is here to help you get the best possible outcome for your case. Book a consultation with our team today.

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