*1 Nieves CRUZ Cruz, Appellants Oscar COMPA INSURANCE
PRINCETON Gold, Esquire
NY, Alan S. Robins, P.C., Appellees. Pennsylvania.
Superior Court 26, 2006.
Argued Oct. 24,
Filed March Pedersen, ap- E. Philadelphia,
Anne pellants. McCarron, B.
Jeffrey Philadelphia, Gold, appellees. Bart, Philadelphia, for Prince-
Jonathan ton, appellee.
15
P.J.,
ELLIOTT,
(Pa.Super.2002),
Hosp.,
FORD
tor
discus-
million. Settlement
litigation
how to handle this
$8
$10
February
through
continued
sions
accept
the settlement offer
whether
*3
rejected Princeton’s offer
but-Appellants
Co. made on
of Princeton Insurance
$7,000,000.
for
case
to settle the
Hospital.
behalf Northeastern
17, 2002,
April
this Court af-
On
FN2.
Further,
12.
a
conflict of
potential
Ap-
in favor of
judgment entered
firmed the
plaintiffs’
interest
between
exists
Hospital,
pellants.
Northeastern
(Pa.Super.2002).
counsel and the interests
minor
A.2d 602
client, [Adam],
light
in
particularly
27, 2002,
of his
February
on behalf
On
client, Attorney
petitioned
disagreement
parents
Gold
among his
with
guardian
a
ad litem for
appoint
court to
offer.
respect
settlement
pertinent
in
petition alleged
The
Adam.
appointment
guardian
13. The
of a
part:
litem will
ad
insure that
interest of
en-
have
6. Princeton
the Cruzes
protected.
the child will be
The
negotia-
in excessive settlement
gaged
guardian
pursue
ad
would
litem
Gafni,
with the aid of Abraham
tions
on
litigation
behalf
[Adam]
judge
former
of Common
Court
evaluate settlement offers.
me-
Philadelphia County
Pleas of
as a
parties
The
reached an
diator.
have
Appointment
Petition for
of Guardian
in
impasse
negotiations.
those
Litem For
The
Ad
Adam
trial
Cruz[.]
has offered
Princeton Insurance Co.
court denied the
March
$7,000,000to the
This consti-
Cruzes.
2002, and,
thereafter, Appellants
shortly
support
sufficient
money
tutes
accepted
principle
in
Princeton’s settle-
for the
his life. This
rest of
[Adam]
$7,100,000.
offer of
offer
ment
This
money has been
down.
turned
ultimately approved by the trial court on
believes
7.
Insurance Co.
September
2002.
possibility
that a substantial
exists
pre-
that Northeastern
will
Hospital
22, 2003,
May
Appellants
On
filed a
appeal
vail on the
that the Cruzes
complaint
the instant action for abuse
may
money
receive no
for [Adam].
process against Appellees alleging
expenses would
8.
[Adam’s]
that, by improperly filing
a
taxpay-
then become
on the
burden
litem,
ad
appointment
guardian
Ap-
ers of this Commonwealth.
caused
pellees
them “extreme emotional
oppor-
would not have the
9.
[Adam]
distress,
fear,
anxiety
upset and
have the
that he
tunity to
full services
parental rights
could be terminat-
parents accepted
if his
would
that they
ed” and
“became so fearful of
$7,000,000.
subsequent
parental
assaults on their
respect-
10. Princeton Insurance Co.
rights
agreed to
settlement
appoint
fully requests that this Court
$7,000,000
offer of
rather than to contin-
ad
litem to evaluate
negotiations.”
Complaint,
with
ue
represent
settlement demand and
5/22/03,
contention,
at 5.
latter
On this
litiga-
interest of
in this
[Adam]
any
have
Appellants
dropped
since
dam-
tion.
that,
a result of the
ages
par-
11. Princeton
believes
disagree-
the guardianship petition,
ents have had
substantial
were
prematurely settling
disputed
into
elements of the
coerced
case.FN3
that,
claim and asserted
consequently,
trial court’s order should be reversed and
argument
FN3. At en banc oral
matter, Appellants' counsel
the case remanded for a trial
confirmed
is-
on the
damages
longer-seeking
Appellants
no
(Todd,
sues.
Id. at 17
J. dissenting).
coercion to settle
case.
related
Appellees
separate
filed
motions
5 We rendered our decision on May
summary
the trial
judgment, which
2007, following which the
sought
granted in
on Oc-
separate
court
orders
appeal
allowance of
to the Supreme Court
Appellants’
tober
motion for
*4
Pennsylvania.
review,
of
Upon
the Su-
denied, and
reconsideration was
this preme
decision,
our
Court reversed
per
timely appeal followed.
curiam,
way of' the
following order:
.
Co.,
853,
v. Princeton Ins
925 A.2d
Cruz
NOW,
2008,
AND
day
this 29th
May
of
(Pa.Super.2007).
854-856
the Petition for Allowance Appeal
of
is
.
panel
a
Following
argument,
4
oral
of
GRANTED and the Superior Court’s
Court found that
court had
this
trial
decision is REVERSED in part to the
in granting summary
rea-
judgment,
erred
extent it holds that there
genu-
was no
soning that
in dis-
evidence adduced
ine
of material
covery raised an issue
fact
issue
fact
of material
regarding
concerning the extent to
which
the use of the process
whether
pri-
guardian-
and its counsel commenced the
marily
for a purpose
used
which
action for the
of
ship
improper purpose
designed.
was not
See Wimer v. Pa.
forcing the
underlying
settle the
Fund,
Emp.
Trust
[
impose
(1996)).
here
not raise such
Inasmuch as the evidence
does
the evidence
ing that
whatsoever,
any impact
the Cruzes sus
suggests
fails to establish
question,
life,”
an
rub
only a “transient
ques
tained
should find no
Gold asserts that we
enough to warrant
serious
injury “[not]
concerning
fact
tion of material
may be
although there
some
compensation,
should,
claim and
element of the Cruzes’
Gold,
Appellees
Brief for
attached.”
pain
consequently, affirm the trial court’s order
al.,
(quoting
Kirk
Van
et
on Remand
Brief for
granting summary judgment.
(Pa.Su
O’Toole,
185-86
A.2d
v.
Remand, at 5.
et al. on
Appellees
Ponist,
Boggavarapu
(quoting
per.2004)
Nevertheless,
cites no case law that
Gold
(1988)).
To
Pa.
“impact
the restrictive
rule” to
applies
conclusion, Gold cites testimo
support this
nor have we in
process,
claims of abuse of
ny
depositions
taken at the
any.
our research discerned
the plaintiffs
in which
and Oscar
Cruzes, asserting
questions
8 The
upon learning
state
their mental
described
of material fact remain for consideration
*5
“upset”
as
or
the guardianship
factfinder, rely on this
deci-
by the
Court’s
accompa
without elaboration
“angry,”
1228,
manifestations;
v.
706 A.2d
Moriarty,
sion in Shiner
nying physical
Shiner,
the
(Pa.Super.1998).
In
1236
addition,
relies,
upon
in
our
7 Gold
whether the evidence of
Court considered
“im
the restrictive
enunciating
decisions
suffi-
by
plaintiffs
harm adduced
negligent
or
inflic
rule” in intentional
pact
judgments entered on
cient
to sustain
cases, which lim
emotional distress
tion of
process
plain-
of'abuse of
where the
claims
in
to’ instances
grounds
actionable
its
testimony to
produce
tiffs failed to
medical
harm
emotional
re
plaintiffs
where the
document
emotional
her
impact
to his or
physical
sulted from
Shiner,
tion deposition testimony of emotional not as evidence that distress] does apply to the instant ... emotionally Although abuse harmed. McNeil, Supreme materially In our Court addressed of action are identical in all other however, statutory Wrongful respects, interpret Supreme Use of Civil we that, Proceedings, popularly § 42 Pa.C.S. Court's direction as an indication Dragonetti subject known as the Act. While element shall be to the same substan- proof tially measure of in both causes of action. similar to the common law cause of process, wrongful action of abuse of use incorporates action a different causation ele- dropped 6. The Cruzes have their claim of ment, i.e., proba- pecuniary the defendant did not have loss occasioned Princeton's fil- ing petition. ble cause for his action. Because causes of die (“[Oscar peti- 111-112 This Cruz:] the de- id. at hyperbole on which
devoid tion, my insist, record. And brother plaintiffs’ public tes- it was fendant’s would mean, I He read that. I is incarcerated. upset anger indicates the timony embarrassing It’s of a handi- felt embarrassed. parents as the experienced know that we don’t even people a truculent ad- me to have confronted capped child good parents At his de- we’re not unending litigation. stating that versary in testified as follows: what he should settle Adam to decide position, Oscar Cruz for.”). Cruz, you tell us what ef- can Q: Mr.
fect, appoint any, if addition, fur- In Mr. offered you on the decision had exchange with Jac- ther detail about his made to settle the Cruz, the cou- reflecting Nieves queline case? insult: ple’s shared Well, it’s like petition, when that A: Q. your you me what wife told Tell know, you do try, would petition. about this give pretty us much anything A. The exact words or? So, my from understand- nothing. you If don’t remember Q. petition together ing they put you then I want to tell exact words how else decide to have someone gener- you me what can remember So, get or not. much should we ally about the conversation. What got really upset. me you she tell was filed? did you
A. I tell her exact words be- will them exact cause still remember you you asked if had Q: Mr. Silverman words, crazy people them from the being upset any counseling from company insurance want tell us petition? [filing] about care of our kids. that we can’t take A: Yes. Id. at 70. about the Q: you upset Were *7 Further, Nieves Cruz Jacqueline being filed? feelings responses those reaffirmed any counseling get A: Yes. But I didn’t deposition: her own upset for it. I was about it. Q: you you Did did learn the —when Q: you Jacqueline upset Were filed, you dis- petition had been did it, your knowledge? about to cuss this with Oscar? A: Yes. Yes, A: I did. Q: upset you? about it What Q: And what was the substance of that try go That Princeton would to A: did discussion with Oscar? What know, to, they could set- you far so you discuss? case, for or guess, I less tle I upset. A: was more, matter. But to it doesn’t instead of have someone else decide * * * us. Q: you And did tell him? what (Exhibit J) of Oscar to (Deposition Cruz I my understanding, A: From of Plaintiffs to Motion of Defen-
Response parents. unfit was—we were Gold, Gold, Esquire dants Alan S. Robins, Q: you say par- unfit Summary Okay. for And when Butkovitz & P.C. ents, by that? 4/26/04, you what do mean Judgment), at 138-35. See also Q.. like—how this? say A: I felt can I We And the would be to able all worthy enough to make deci- make wasn’t decisions that one Adam, Adam, typically would well-being. for for his that one sions —for typically expect a way parent I felt. would to That’s make? n
A. Correct. They trying put were to else someone school, Q. he went Where of type guardian, Adam’s because like I had, care he type all that of said, we were make worthy not information? decisions Adam. A Correct. of Nieves Cruz (Deposition (“I Id. at See 94-95. also id. at 153 still (Exhibit Response K to Plaintiffs say my rights parental were to be trying Gold, Alan Es- Motion Defendants S. away.”). given taken Not surprisingly, Robins, quire and P.C. Ms. understanding Cruz’s of the proceed- 5/15/04, Summary Judgment), at OI- ing, she related having “anxiety attacks” OS). before accepting settlement See offer. ¶ Moreover, Ms. Cruz’s recollection (‘We id. at were both tired of back is under- her distress reinforced her was, know, you and forth. I anxi- getting standing of the guardianship petition was, ety you attacks and know—this was which, incorrect, although legally reflected me.”). very overwhelming for Ms. her state mind nevertheless. in her was adamant assertion she solely foregoing Based direct objective understood evidence, compelled we are recognize rights. be the her parental termination question of material fact concerning extent to which the Cruzés your suffered harm Q. understanding [of What as a result of the guardianship purpose of guardianship pe- petition. parties Both offered matter-of- back then? tition] fact of anger, upset, recollections embar A. When filed this? rassment, that, and insult while not medi Q. Yes. documented, cally are nevertheless direct only A. The I had was understanding Even and consistent. were we to conclude wasn’t, you know— n however, contrary, the circum trying to take Osear I or elimi- attending stances the filing from making any major *8 nate us de- and are its aftermath themselves substan cisions for Adam. tial from jury, evidence which a in its Q. it was major So decisions for experience, exercise of human could dis Adam? significant cern emotional distress. Peu Any A. decisions for Adam. America, geot Stout, Motors Inc. v. 310 of Q. your understanding it was So that 412, (1983) Pa.Super. 1005 they trying your were to terminate a (affirming party may that establish its ability— evidence). entire on case circumstantial My parental rights. A. noted, argue As we have the defendants Q. your It’s understanding stridently filing the of guardian the
trying parental your terminate ship petition impose could significant no rights? Nevertheless, sug emotional harm. their A. the gestion experience Correct. Cruzes’ re- 22 was, with consistent this or further consideration
garding guardianship the been, Opinion. a “tran no more than have should life,” enough ... serious “[not] rub of sient ¶ MELVIN, files a 17 ORIE J. Appel- Brief for compensation,” to warrant dissenting opinion in which FORD ah, at removes on Remand lees et ELLIOTT, LALLY-GREEN, P.J. J. and context, a conse and as from the matter join. find of mark. We quence, falls wide the implicit in the defendants’ guidance no BY ORIE DISSENTING OPINION experiences of the Cruzes’ comparisons MELVIN, J.: Kirk, bite, A.2d (citing 857 a id. Van dog from the respectfully 1 I dissent ma- odor, 185-86), body id. at unpleasant an at the decision to reverse order jority’s 814-15), at or Gregorio, 4 A.2d (citing summary judgment favor of granting in the shock incurred psychic “the minor Appellees. disagree genuine that a issue (id. living,” Arm daily quoting course of regarding fact of material exists whether Pa.Super. Hosp., Mem. strong v. Paoli process third element of the abuse of the (1993)). Consequent A.2d Rather, was met I believe that here. assertions ly, reject the defendants’ we have Appellants failed to show sus- wholly at odds as untenable and point this compensable a degree tained emotional expect The bond experience. human with guard- the harm as result of the child, which we parent ed between ianship action.1 attention in cases of custo pay deserving ¶ 2 “To a claim for abuse of establish parental dy, adoption, termination it must be shown that the defen- process litigation. at is no less issue this rights, (1) against a legal process dant used the establish, circumstances The (2) primarily accomplish a plaintiff, pur- (despite misunderstanding perceived which not pose was de- law), that their exercise of the usual (3) harm has been caused to signed; was prerogatives parenthood duties and Plater-Zyberk, plaintiff.” Werner v. by the awesome subject to interference A.2d 785 (Pa.Super.2002). Abuse circum power of state. Given those cases turn on frequently stances, every experience human offers conjunc- three-part second element of this suspect very reason distress and, test, hence, tive the courts of this accordingly, Cruzes claim. -We conclude opportunity little Commonwealth have had record, light in a most viewed element of harm to discuss the third Cruzes, gives to the rise to favorable plaintiff. caused question concerning of material fact Moriarty, 706 3 In Shiner v. pro element of the Cruzes’ (Pa.Super.1998), although reversed action, can which the factfinder only cess plaintiffs’ pro- the verdict on abuse Consequently, we are constrained resolve. such grounds claim on cess disposition to remand this matter for Code, Bankruptcy preempted *9 trial. arguably suggested that emotional Court summary judgment compensable pro- in an abuse granting 16 Order harm is by the award affirming cess action REVERSED. Case REMANDED Co., Group, recognize reached Ltd. v. CGU Ins. 1. I that this was not Brickman issue below, may Court by (Pa.Super.2004). court but this trial basis the record. supported affirm on damages for emotional distress without and Jacqueline made to settle the differentiating between the three different case? (i.e., presented theories intentional inflec Well, A: when that petition, it’s like distress,
tion of emotion process abuse of know, try, you would do and intentional interference with contrac anything give pretty us much relations). (noting tual See id. at 1239 So, nothing. my from understand- expert testimony that is not re they ing put petition that together quired to establish a claim for abuse of to have someone else decide how process). This Court did not describe So, much should we get or not. alleged “emotional distress” plain got me really upset. however, tiffs Shiner. It does appear, in other generally courts states rec ognize emotional harm as a compensable Q: Mr. Silverman you you asked if had injury in abuse of actions. See any counseling being upset from generally 20 Susan Causes Action about the [filing] petition? Lentz, A. of Action Cause for Abuse of (2006); §§ Process see also Seltzer v. A: Yes.
Morton, 336 Mont. 154 P.3d Q: you Were upset about petition (2007) (upholding damages award in abuse being filed? and prosecution malicious ac A: Yes. But I get any didn’t counseling tion where plaintiff testified he lived in a for it. upset I was about it. panic” accompanied “state of by physical Q: you Were Jacqueline and upset complications anxiety, including irregu - it, about your knowledge? function, lar bowel perpetual upset stom A: Yes. ach sleeplessness and as a result of defen conduct); dant’s Sanders Pete & Sons Q: What about it upset you? Inc., Garage, (Mo.Ct.App. S.W.2d 844 A: That Princeton try go would- 1989) (affirming grant of new trial to de to, know, you far so could set
fendants on counterclaim of pro case, tle guess, I for less or cess where defendant that plain testified more, it doesn’t matter. But tiffs required suit her to appear court have someone else decide instead of nervous, and made her causing upset us. stomach sleeplessness). (Exhibit (Deposition of Oscar Cruz J to case, 4 In present Appellants as- Response of Plaintiffs to Motion of Defen- serted in complaint them suf- Gold, Alan Esquire dants S. distress, fear, fered “extreme emotional Robins, P.C. for Summary upset anxiety their parental 133-135). 4/26/04, Judgment), Appel- rights conclude, would be terminated.” lant Nieves Cruz testified as however, that in Appellants this case have follows: compensable failed to show a degree of Q: you you Did did learn the —when and, therefore, emotional harm cannot es- filed, you had been did dis- tablish the prima third element of their cuss this with Oscar? Critically, deposition, case. at his facie Yes, A: I did. Appellant Oscar Cruz testified as follows:
Q: Cruz, Q: Mr. you can tell And what was the us what ef- substance of that
fect, if any, discussion with appoint Oscar? What did *10 guardian you had on the decision you discuss? event, mere as de- upset I conclude that upset.
A: I was as a matter of above is insufficient
scribed satisfy requirement the harm law Accordingly, I process. claim for abuse him? you tell Q: And what did respectfully dissent. I understanding, my A: From parents. unfit were was—we say par- unfit you And when
Q: Okay. mean that?
ents, you do what sayI this? like—how can We
A: I felt deci- worthy enough to make
wasn’t Adam, well-being. for his for
sions way I felt.
That’s
# # [*] # Brandon WILES, Appellant v. else trying put someone They were because like guardian, Adam’s TAX WASHINGTON COUNTY said, worthy any make we were not CLAIM BUREAU for Adam. decisions Nieves Cruz (Deposition Jacqueline (Exhibit Plaintiffs to Response K to William Vanzin. Gold, Es- of Defendants Alan S.
Motion Robins, P.C. quire Pennsylvania. Commonwealth Court 5/15/04, at OI- Summary Judgment), Submitted on Briefs Dec. 2008. OS).2 guard- that the 5 The record reflects Feb. 2009. Decided February filed on ianship petition was petition The trial court denied the thereafter, shortly
on March 2002 and in the
Appellants agreed to settlement Jacqueline Nieves
underlying case. As to her parental claim that she believed
Cruz’s terminated, point I would
rights would be scope was limited
out that her possibility
and never asserted terminated. At
parental rights would be
most, Appellants have established “upset” for their appoint suggest
child. I do not mean to While by that upset had no basis to be (Exhibit G to Motion deposition Nieves Cruz testimo- 2. While there is additional ny Jacqueline Nieves Cruz Summary Judgment in the record from Defendant Prince- 168-172; anxiety depression, 5/15/04, clari- regarding she Company), Insurance ton attributing this to the fied that she was not at 202-204. see also id. Deposition See actions of the defendants.