Freundlich & Litman, LLC v. Feierstein, E.
157 A.3d 526
| Pa. Super. Ct. | 2017Background
- Freundlich & Littman (plaintiffs) represented a client in a negligence suit; defendants (Feierstein, Chasan, Law Offices of Chasan) filed a counterclaim plaintiffs allege was meritless and retaliatory.
- Plaintiffs claim the counterclaim and related communications were intended to bully plaintiffs and intimidate Littman’s brother (a witness in unrelated criminal trial) and included insulting/threatening emails.
- The state trial court dismissed the counterclaim in April 2014; arbitration later favored plaintiffs and the underlying matter settled.
- Plaintiffs then sued defendants for wrongful use of civil proceedings (Dragonetti Act) and common-law abuse/misuse of process based on the allegedly frivolous counterclaim and communications.
- Defendants filed preliminary objections (demurrer), arguing judicial privilege/absolute immunity barred the claims; the trial court sustained the demurrer solely on that basis and dismissed the case.
- The Superior Court vacated and remanded, holding that judicial privilege does not categorically bar Dragonetti Act or abuse-of-process claims and remanding for the trial court to address remaining defenses and the sufficiency of the pleadings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judicial privilege/immunity bars suits under the Dragonetti Act (wrongful use of civil proceedings) | Privilege should not shield attorneys who file actions without probable cause and for improper purposes; Dragonetti Act and privilege can coexist | Privilege provides absolute immunity for communications and pleadings in judicial proceedings, so it bars these claims | Court held judicial privilege does not categorically bar Dragonetti Act claims and vacated dismissal |
| Whether judicial privilege bars common-law abuse/misuse of process claims arising from allegedly improper litigation conduct | Privilege should not protect conduct that perverts process or is aimed at illegitimate objectives (e.g., witness intimidation) | Privilege covers pleadings and communications made in the regular course of proceedings, even if malicious or false | Court held privilege should not be applied as a blanket bar to abuse-of-process claims; remanded for further consideration of pleadings sufficiency |
| Whether the trial court properly resolved preliminary objections solely on privilege without addressing sufficiency of pleadings | Plaintiffs argued trial court improperly relied only on privilege and failed to test legal sufficiency of claims | Defendants argued the privilege was dispositive and supported dismissal | Court found trial court erred to decide solely on privilege and remanded to consider other preliminary objection grounds and pleading sufficiency |
| Whether alleged extrajudicial motives (e.g., witness intimidation in unrelated criminal case) remove privilege protection | Plaintiffs: extrajudicial motives make privilege inapplicable where litigation was instituted without probable cause and for illegitimate purpose | Defendants: communications arose in judicial context and thus are privileged regardless of motive | Court indicated such motives can be relevant and that privilege does not automatically shield such claims; further factual/pleading development required |
Key Cases Cited
- Bochetto v. Gibson, 860 A.2d 67 (Pa. 2004) (describing absolute judicial privilege for communications pertinent to judicial proceedings)
- Richmond v. McHale, 35 A.3d 779 (Pa. Super. 2012) (procedural standard for testing preliminary objections and privilege scope for counsel communications)
- Silver v. Mendel, 894 F.2d 598 (3d Cir. 1990) (discussing coexistence of judicial privilege and wrongful-use statutes; privilege should not protect filings made without probable cause for improper purposes)
- Moses v. McWilliams, 549 A.2d 950 (Pa. Super. 1988) (extending privilege beyond defamation to other torts occurring in connection with judicial proceedings)
- Stone Crushed Partnership v. Kassab Archbold Jackson & O’Brien, 908 A.2d 875 (Pa. 2006) (discussing preemption in bankruptcy context and acknowledging Dragonetti Act’s scope)
- McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006) (recognizing statutory measures like the Dragonetti Act to combat frivolous litigation)