One of the questions most frequently asked of a lawyer is this: “Can I sue the other guy for suing me?” Almost no one believes they deserve to be sued. Nearly every person named as a defendant in a lawsuit believes, and often rightly so, that the plaintiff’s case against him is so plainly frivolous that no one could possibly see it any other way. Surely the judge will quickly slice the case down to its rotten core, and award attorney’s fees plus damages for pain, suffering and the inconvenience to the unjustly accused. This is the all-but universal assumption of the first-time defendant. Yet the assumption is almost always wrong.
In some countries, the courts follow what is often called the “English rule,” which requires the losing party to pay the winner’s attorney’s fees. However, the American courts have been more encouraging of those who seek redress through the courts, and therefore less inclined to penalize those who fall short on their proofs at trial. Thus, the American rule is that each party bears his own legal expenses.
The Pennsylvania legislature has carved out a number of exceptions to the so-called “American rule” such as the Unfair Trade Practices and Consumer Protection Law, and various other consumer protection statutes which shift the burden of attorney’s fees from the aggrieved consumer to the defendant where the consumer prevails on the underlying claim. Attorney’s fees are also available under various other statutes, such as the Contractor and Subcontractor Payment Act, where attorney’s fees can be awarded to the substantially prevailing party, primarily as a means of forcing owners and contractors to deal fairly with the contractors and subcontractors working under them.
In addition, a Pennsylvania statute allows the courts to award reasonable counsel fees to any party at the conclusion of a case if it finds that the “conduct of another party in conmmencing the matter or otherwise was arbitrary, vexatious or in bad faith.” 42 Pa. C.S.A. § 2503(9).
All of the remedies discussed above can be awarded as part of the original lawsuit, and need not be pursued as a separate action. In certain limited circumstances, however, a party who believes he has suffered injury as a result of a frivolous or ill-motivated lawsuit filed against him can later file a separate action against the original Plaintiff.
The Dragonetti Act
In 1980, the Pennsylvania legislature enacted what is commonly known as the Dragonetti Act. The primary provision of the Act, entitled “Wrongful Use of Civil Proceedings”, is codified at 42 Pa.C.S.A. § 8351(a) and reads as follows:
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 [if]:
(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.
The Act also provides, at § 8351(b) that the arrest or seizure of the personal property of the Plaintiff is not required in order to bring an action under the Act.
The Dragonetti Act must be understood in the context of the common law which it replaces. At common law, Pennsylvania provided a cause of action for “malicious use of process” or “malicious prosecution.” At common law, in order to prevail against someone who had wrongfully pursued civil or criminal process against him, the Plaintiff had to establish not merely a malicious motive, but also an arrest of one’s person or seizure of his property. Thus, the Dragonetti Act expands the availability of the cause of action by relaxing the standard of proof from malice to gross negligence, and by making the remedy available to those who have suffered injury short of the arrest of their person or the seizure of their property.
One critical detail of the Dragonetti Act is that a claim cannot be made until after the prior proceedings have terminated in favor of the party who wishes to proceed with a Dragonetti Act claim. That is, a Dragonetti Act claim is premature if there is still a chance that the original plaintiff might yet prevail at trial or on appeal. The question is whether there has been a final resolution of the underlying case. Even if the case was voluntarily withdrawn by the original plaintiff, a Dragonetti Act claim may still be available, depending on the circumstances, so long as the termination of the underlying claim is final, with no remaining opportunities for appeal or reinstatement.
It is a defense to a Dragonetti Act claim if the original plaintiff reasonably believed that the facts of his or her case supported a valid claim under existing law or developing law. Thus, the Dragonetti Act makes allowances for lawyers and parties who proceed with a reasonable belief that their case may contribute to a needed change in the law. The Dragonetti Act also allows defenses to parties based upon their good faith reliance upon the advice of counsel and to attorneys based upon their good faith reliance upon the representations made to them by their clients. 42 Pa.C.S.A. § 8352.
In a successful Dragonetti Act claim, the plaintiff can recover for the “harm normally resulting from any arrest or imprisonment, or any dispossession or interference with the advantageous use” of his property, the “harm to his reputation by any defamatory matter alleged as the basis of the proceedings,” attorney’s fees, other pecuniary loss, emotional distress and, “in appropriate cases,” punitive damages, 42 Pa.C.S.A. § 8353.
While the primary liability standard under the Dragonetti Act is acting “in a grossly negligent manner,” the Dragonetti Act also allows for liability if the original plaintiff has acted “without probable cause,” which is a lesser standard of proof than gross negligence, so long as the original plaintiff acted “primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim.” Here the Dragonetti Act incorporates elements of the common law claim of “abuse of process.”
Abuse of Process
At common law, malicious prosecution and abuse of process were conceptually separate causes of action. Whereas the gist of an action for malicious prosecution or wrongful use of civil proceedings was an insufficient factual or legal basis for bringing suit, a claim for abuse of process is grounded not in an absence of probable cause, but in the original plaintiff’s use of a civil action to achieve some purpose for which the action was never intended. While the Dragonetti Act subsumes this element of an abuse of process claim as one potential basis for recovery under the act, the Dragonetti Act did not eliminate abuse of process as a separate cause of action. Thus, there is still a common law action for abuse of process in Pennsylvania.
In order to establish a claim for abuse of process, the plaintiff in the second action must prove that the original plaintiff (1) used a legal process against the current plaintiff; (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff. Werner v. Plater-Zyberk, 799 A.2d 776 (Pa.Super. 2002). It is not necessary that the prior proceedings be terminated in order to bring a claim for abuse of process. Nor is it necessary that there be no probable cause for the original action. The basis of the action is improper ulterior motive, not the absence of probable cause.
There is no simple standard by which to determine whether a plaintiff’s purpose for filing a lawsuit is legitimate or illegitimate. However, the case law yields various examples. Filing a lawsuit against an individual for his properly reporting environmental violations to a government agency can give rise to an abuse of process. Filing criminal charges against one in order to intimidate him into paying a civil debt can also constitute an abuse of process. Likewise, the pursuit of a criminal case in order to persuade or pressure one into not pursuing a valid claim can constitute an abuse of process. But generally speaking, it is not enough that a party acted with malice or spite in pursuing the earlier claim. Rather, there must be some act or threat not authorized by process, or the process must be used for an illegitimate aim such as extortion or blackmail, or to coerce or compel one to take some collateral action beyond the proper purpose of the underlying action.
In theory, there are any number of mechanisms by which a party wrongfully sued can attain some measure of restitution and damages for the inconvenience, indignity, counsel fees and other losses they have suffered in the process of a lawsuit. In practice, however, courts remain concerned about unduly inhibiting access to our judicial system, and are therefore reluctant to penalize plaintiffs for filing suit except in extreme circumstances. As a result, while it is possible to make a claim for counsel fees against a party who has sued in bad faith or without probable cause, the award of counsel fees or other damages to the wrongfully sued remains an extraordinary remedy, and often not worth the additional counsel fees one will incur in pursuing the remedy. Whether any particular lawsuit is so lacking in probable cause or good faith to justify an attorney’s fee claim or separate action against the original plaintiff is a matter best discussed between the wrongly accused and his counsel.