Electronic Laboratory Supply Co. v. Cullen

trial, and, impartial therefore, fair and no

grounds for a mistrial existed. The Com

monwealth requested the sidebar after the made,

statement was no made effort to ex

ploit and, fact, the statement requested Also,

the curative instruction. the trial court prompt timely instructed manner jury disregard trooper’s statement.

We find that cautionary the trial court’s in error,

struction was sufficient to cure presumed

and it is jury followed the

court’s instructions. Commonwealth v. Tra

vaglia, 541 Pa. 661 A.2d 352

Additionally, noted, Appel as the trial court

lant acquitted of several of the more

serious offenses with charged. which he was reasons,

For all of the foregoing we find that prejudice

no resulted from the statement.

Accordingly, the decision of the trial court

is affirmed.

Affirmed.

ELECTRONIC LABORATORY SUPPLY Snyderman,

CO. Jack

Appellants,

Raymond CULLEN, Hauben, Ronald Joseph Wolfson.

Superior Pennsylvania. Court of

Argued 1997. Nov. April

Filed Thomas, Philadelphia, appel-

Wayne M. lants. ap- Kittredge, Philadelphia, for

Patrick W. pellees. CIRILLO, Judge

Before President HOFFMAN, Emeritus, and JOHNSON JJ.

CIRILLO, Judge Emeritus: President Supply Laboratory Appellants Electronic (“ELSCO”), Snyderman, appeal Jack Co. of Com- the order entered Court Philadelphia mon County granting occurred, Pleas After the seizure ELSCO and Appellees favor of counterclaimed in Federal Cullen, Raymond Hauben, Ronald and Jo- Motorola and its ... officers seph attorneys and the (collectively procured Wolfson who referred to as the the ex defendants”). parte “attorney seiz[ure] order on Motorola’s behalf. We affirm.1 years, Over the course of the next few all aptly The trial court pro- summarizes the against Motorola’s claims ELSCO and litigation tracted underly- and involved facts Snyderman dismissed, were leaving active ing this case: only against Motorola’s claims other defen- 1980’s, During the Plaintiff Electronic Lab- discussion, dants -not relevant to this and (“ELSCO”) oratory Supply Company, Inc. Snyderman’s against ELSCO’s and claims purchased large quantities scrap materi- the Motorola and counsel. al, Motorola, Inc., which then ELSCO Subsequently, May 1991 the Motorola (or smelted) smelted to caused to re- (and parties, Snyderman ELSCO and claim ingredients, various metal pre- both original other defendants Motorola’s silver) (e.g. gold, cious precious and non suit) agreement, entered into (e.g. copper). Snyderman Plaintiff EL- is agreed appeal which Motorola not to president. SCO’s original against dismissal suit as Snyderman, pay ELSCO and to ELSCO In early concerned, Motorola became $259,206.00, Snyderman and and to dismiss because it believed that material it had ELSCO, the Motorola v. et al action as to sold scrap—perhaps as to ELSCO—had defendants, prejudice. all with up turned intact and sale Asia. In return for dismissal of the Motorola suit Motorola then conducted two of EL- audits above, payment and the described ELSCO operation, SCO’s and concluded that EL- portion and dismissed SCO was the source—or at least a ELSCO, Motorola, et al vs. et al directed scrap products, source—of the diverted against parties, preju- the Motorola with and filed suit Federal dice, specifically preserved but its claims Pennsylvania Eastern District counsel, Motorola’s in the ELSCO, Snyderman others, on March action, Cullen, Hauben 23, 1988, claiming—among things— Wolfson. that ELSCO was “passing off’ inferior Court, Subsequently, the District on De- scrap Motorola first-quality as Motorola 30, 1991, cember dismissed ELSCO’s parts, Act, in violation of the Lanha[m] pursuant claims for seizure to the seq. U.S.C. et Subsequently, Mo- Act, process, Lanham violation of due parte torola moved for the ex issuance of a seizure attor- unreasonable Seizure, pursuant Writ of to the Lanha[m] ney only defendants. Since those were the Pennsylvania and the Rules of Civil question” remaining—and “federal claims applicable Procedure to parte the ex issu- diversity because there was no of citizen- ance of such writs. ship lawyer ELSCO and the de- dismissed the

fendants—the District Court Appellees (ex- 1. Appel- exactly pages have filed a conventionally-typed motion to strike tains brief, or, alternative, reply lants' portions to strike cluding twenty pages of exhibits that consist of a Appellants' reply due brief to the law). Accordingly, motion and memorandum of length. Specifically, Appellees brief’s take issue Appellants we do not find that have violated "lengthy with the footnotes" contained within spirit either the or the letter of Rule While reply brief. footnotes, the brief does contain a number of Pennsylvania Appellate Pursuant Rule of does not rise to the level of a violation of our (exclusive pages Procedure 2135 "briefs con- appellate necessary we rules such that find it contents, taining table of tables of citations and portion reply strike all of or a brief. Fur- etc., any opinions, containing addendum thermore, agree Appellees' we do supplementary provided other similar matter Appellants merely have restated matters al- rules) pages these shall not exceed ... 15 ready original appellate raised in brief. their typographical-printing.” conventional Pa.R.A.P. We, therefore, Appellees’ DENY motion to strike. 2135(2). Presently, Appellants’ reply brief con- (for was an summary judgment where there law

remaining state claims Mer of law. or an error abuse discretion Proceedings) preju- Civil without Inc., Newspapers, Philadelphia juris- riweather dice—declining “pendent to exercise A.2d, 137, 140 to State over them—for transfer diction” proper is when Summary judgment Court. to inter depositions, answers pleadings, the transferred claims ELSCO docketed file, and affidavits rogatories, admissions February mean- Court on genuine no there exists demonstrate its appealing “federal while dismissal party moving and the of material fact issue lawyer question” against the defen- of law. judgment as a matter entitled to Ap- Third Court of dants Circuit 1035.2, 42 In determin Pa.C.S.A. Pa.R.C.P. peals. summary judgment a grant ing whether to dismissal of Circuit affirmed the The Third against the resolve all doubts trial court must claims, holding only the Lanham Act in the record a moving party and examine Plaintiff, attorneys, the and not its non-moving party. light most favorable wrongful seizure be liable for under grant judgment only be Summary Id. Lanham Act. in it is clear and free ed cases where court, transferring case to state After moving party entitled to is doubt a attorney defendants filed motion judgment as a matter of law. Id. summary judgment in the Court Common Normally, motion has been where a County asserting that Philadelphia Pleas of preserved where no new and decided and in proceedings did not terminate the federal seek presented in a second motion facts (ELSCO), and, accused there- favor of the relief, the court’s decision ing the same fore, ELSCO had failed to state a claim based on motion be followed the first should wrongful process. motion use of civil judicial effi economy and considerations were set for was denied and the state claims Inc., Joy Technologies, ciency. Drapeau v. Thereafter, judge court trial. another trial (1996), 560, citing 165 Pa.Super. 670A.2d 447 summary judgment motion second Pennsylvania College Harrity v. Medical ap- This filed (1994). 10, 5 Pa.Super. 439 653 A.2d Hospital, peal followed. prevents shopping forum because This rule pres- appeal, On ELSCO and rule, same issue could this without following ent the issues for our consideration: judges of repeatedly before different raised (1) entering summary Did the Court err in judge litigant finds a same court until in after judgment favor de- position. Id. See his or her sympathetic to summary judgment motion for fendants’ Dep’t Pa v. Commonwealth Yudacufski previously raising same had issues 612, 605, 454 Transportation, Pa. A.2d 499 judge? another been denied (1982) (“[a]bsent compel 923, the most 926 (2) finding circumstances, Did the Court err in that settle- follow the judge ling should underlying claims ment of the court colleague on the same of a decision facts.”). plaintiffs parties released and the Motorola on the same set when based plaintiffs’ those defendants however, to exception, There is law, notwithstanding as a matter prohibiting judge trial from overrul rule one contrary language to the express provides that This rule ing the other. agreement? settlement to overrule the judge is authorized second (3) proceedings in the United Did the newly legal or decided first if new evidence in favor of terminate States District Court compel to do so. him or her authorities under the Dra- plaintiffs so that an action Rosenau, Pa.Super. & 410 v. Dion Golden 8351, seq., et 42 Pa.C.S.A. gonetti (1991) 506, citing Vincent v. 600 A.2d plaintiffs? maintained could be 108, Pa.Super. 582 A.2d Company, 400 Fuller (1990). excep employing Courts in cases of 1367 standard of review Our excep following situations view the is This tion well settled. judge permit which entry tional circumstances trial court’s only will reverse the court (1) judge prior overrule a It equally same court: evident from the record intervening Judge copy where there has been an change O’Keefe did have a (2) law; controlling parties’ where there has settlement at the time he change been substantial in the facts decided first motion. or dispute Neither the defendants’ giving evidence rise to the first motion for sum- matter, (3) mary judgment, prior plaintiffs’ nor the judge’s holding response where a clearly to said motion discuss the settlement agree- erroneous and would create a Moreover, ment and its terms. order to injustice manifest if followed. Riccio v. Co., thoroughly properly analyze plaintiffs’ Republic American Pa.Super. Ins. 364, 1226, (1996). pro- cause of action for of civil See cess is essential that a Ins., court examine the Pennsylvania Auto. Rosenfield agreement. This will 636 A.2d 1138 ultimately prove whether case, present the evidence is clear terminated ELSCO’s favor at the federal in December of the Honorable level, and, therefore, whether an essential O’Keefe, Joseph D. the Court Common element use cause of action has Philadelphia County Pleas denied de- been stated.2 fendants’ summary judgment; motion for Further, Judge we note that Goodh- April of the Honorable Bernard J. eart not did decide the second motion with Goodheart, Philadelphia also from the giving thought out first as to whether it was Pleas, of Common the defendants’ appropriate judicial light Judge action in summary judgment second motion. The rec- prior summary judgment ruling. O’Keefe’s Goodheart, contains Judge letters to ord 18, proceedings Transcribed from November counsel, appellants’ appellees’ from both Judge 1996 reveal Goodheart deter regarding Judge the issues that Goodheart is mined that “[he could] decide the issue that to “re-examine” hr the second judg- already by was Judge been decided [sic] 17, appellees’ ment motion. In November point.” [He O’Keefe. revisit it at could] reply 1996 to a Judge letter written Judge Goodheart made this comment imme Goodheart, appellees state: diately advising after the attorneys that he receipt am in of Your Honor’s letter of would need additional to documents decide 20[, requesting copy November 1996] such motion. Because trial court re settlement and release be- motion, consider a al plaintiffs parties. tween and the Motorola ready colleague decided of the same clerk, explained your As I appears law court when the motion contains new evidence Your Honor’s letter was sent before the record, or facts this issue is meritless. Kittredge “timeline” submitted Mr. Golden, supra. The trial court did abuse [plaintiffs’ counsel] on November 22nd light its discretion in of the new evidence copy which contains a of that highly parties’ was relevant to the dis at Tab 21. Since counsel Riccio, supra. pute. time, I have checked docket entries on appeal, Appellants In their next issue (Timeline 33) Tabs 32 and and see no improperly assert that the trial court deter- proceeding record of courtroom con- mined, law, parties’ aas matter of that the cerning May 7th settlement either agreement effectively precluded settlement the federal matters. bringing them from for wrongful suit use of Accordingly, Judge provided proceedings against attorney-defen- Goodheart was civil' evidence, effect, namely parties’ with appellants new im- dants. claim portant agreement, settlement incorrectly relationship when he de- court viewed the be- (Motorola summary judg- appellees cided the defendants’ second tween and the defendants) and, ment motion. as that principal-agents proven person 2. One of the elements which must be ed in [ELSCO] favor whom bring wrongful 8351(a)(2). order process use of they successful civil brought.” § are 42 Pa.C.S.A. action is that “the terminat-

309 (attor- (2) proceedings have terminated therefore, The agents not find the they whom person against their favor of potentially liable where ney-defendants) (Motorola) brought. principal has been released parties’ under the all future suits (a) added); (emphasis § 8351 42 Pa.C.S.A. agreement. Robinson, Bannar, v. 362 supra; Robinson (1987); 568, Dietrich Pa.Super. 525 A.2d 367 42 Pa.C.S.A. Abrams, 202, Pa.Super. 455 v. 309 Indust. 8351, permits § one who is sued without (1982). toa the Restate- A.2d 119 Comment plaintiff in probable cause to sue the (Second) 674, which has Torts Miller, v. 701 A.2d 232 turn. Bannar approval in with several been cited Mi-Lor, v. DiPen (Pa.Super.1997). See Inc. involving civil cases claims of (1995) tino, 636, Pa.Super. 439 654 A.2d 1156 phrase meaning of the process, defines the process a tort which use of is (wrongful proceedings.” Georgiana v. “initiation of party a lawsuit UMW, when a has instituted Pa.Super. arises 392 probable Pa.Super. lack of Rosenfield, with malicious motive and a 431 See cause). (“Pennsylvania law Accordingly, attorney who know A.2d at 1141 proceed- wrongful use of civil groundless regarding action to ac ingly prosecutes conformity the Restatement purpose may ings held complish a malicious 674.”). Tort, Second, § de- The comment Dragonetti Act. Adel accountable under the who “sets Rosenbaum, fines the term as someone Pa.Super. man v. motion, machinery law in whether he Indus., (1938), Inc. A.2d 15 cited in Dietrich of a third his name or in that acts in own Abrams, 455 A.2d 119 proceedings are person, or whether (1982) (appellee-attorney was not invulnera his own or brought to enforce claim of allegations process use of ble (Second) person.” a third Restatement party counsel to the merely because he was (1977). § 674 cmt. a Torts record). of Looking 674 and its to section process wrongful A of civil action use in guidance, we conclude comment for a cannot be instituted one who was not process of bring wrongful a use civil order to action; however, party underlying to the the action, to plaintiff required is not include the non-party underlying fact that a to the action parties principals or which any and all third wrongful as for use of is sued a defendant party may to the real have had a connection long process significance is of as as the no proceedings” in under the the who “initiated Dragonetti to a Act claim are estab Rather, party’s poten elements lying the real action. Pa.Super. Equibank, upon his her lished. Weiss v. or liability may tial based (1983). wrongful to the personal 460 A.2d 271 Pursuant actions. Conse own Act, attorney-defendants Dragonetti person though for the quently, a is liable the tort even enforcing legal a claim have been wrongful process of use of civil under Inc., employer, their Motorola interest of following circumstances: in they as properly were sued defendants (a) person of action.—A who Elements capacities in the instant their individual part procurement, initiation takes proceedings civil case. We wrongful use of proceedings of civil continuation therefore, find, court erred that the trial subject liability to to another not have a viable holding appellants did proceedings wrongful for use of other civil attorney-defen against the of action cause if: its merely Motorola settled because dants (1) Appellants man- a grossly negligent against appellants. in a had He acts pri- process of civil bring wrongful use probable right ner or without cause to a sepa marily attorney-defendants than that of purpose other a negotiated settle discovery, joinder apart from such securing proper of rate and underlying 42 Pa.C.S.A. case. adjudication of the claim in ment of parties or 8351(a). heard; § proceedings are which Having law, Appellees proper compromise found that are of a matter does indeed fail Appellants’ requirements use to meet of favorable termi- action, process civil we must now determine purposes [for nation of-a use civil Appellants successfully process action], whether the estab- thereby rendering cause Drago- lished the enumerated elements for a summary judgment appropriate.” Id. Fur- Weiss, end, supra. netti Act claim. thermore, To this “whether or an withdrawal aban- appellants improp- assert that the trial court donment a final termination of a constitutes erly determined proceedings did person against case in favor of the whom the ELSCO, and, thus, terminate in favor of proceedings brought depends are ... on the the Appellees were to entitled proceedings circumstances under which the matter law. Pennsylvania withdrawn.” v. Rosenfield Ins., Pa.Super. Auto. ease, present appellants’ In the cause (Sec- (1994), citing Restatement process/inten- action for malicious abuse ond) j Torts 674 cmt. Addition- process tional misuse was converted ally, proceedings as withdrawals of a result cognizable claim a federal state claim compromise or agreement, impossi- or the under 42 Pa.C.S.A. trial, bility bringing an accused to do § 8351. This conversion occurred when the par- constitute a termination favorable federal court allowed its ELSCO amend ty against proceedings whom have been complaint upon removal In to state court. brought. Id. order to determine whether properly were terminated favor of EL- UMW, In Georgiana SCO, we must pro- determine whether the (1990), 572 A.2d 232 the trial court dismissed ceedings that terminated federal court complaint filed Mr. Georgiana, and Mrs. level constituted “termination favor of EL- (h/w), asserted, alia, wrongful inter words, In SCO.” whether settle- process civil action United entered into (UMW). Mine Workers America parties is considered sufficient “termination” originally Georgianas, UMW had sued the purposes of wrongful process use of accusing Georgiana Mrs. of fraud. The fraud action. charges ultimately dropped were when the par- the final settlement agreement. entered into acknowledge ties that the federal or- court’s When trial court found that the settle- preju- der final and dismissed with agreement ment a did not constitute termi- dice against Motorola’s claims and ELSCO nation in dis- Georgianas, favor the it of the other defendants. The document further Georgianas’ complaint alleging the missed agreement “represents states that the a com- wrongful process. use of civil promise disputed and satisfaction of claims appeal, Georgiana On Mr. asserted that his binding and shall final reso- constitute a wife, alone, settlement entered into the disputes, rights lution of all the and obli- agreement Accordingly, he with UMW. gations by ... that could have been raised claimed that the trial not have court should litigation.” also Motorola wrongful in of dismissed his interest use agreed attempt appeal, that it not would process by finding was action that he bound modify vacate or the judgment entered in by recog- the settlement. The trial court favor of and ELSCO. jury in nized that some circumstances a Finally, acquiesced signing in a Motorola by party may infer that settlement one stipulation preju- dismissing and order with regard party, “effective” with to another such ELSCO; against all in nothing dice rep- that the the suit does not settlement of however, agreement, was intended to “di- a in resent termination favor extinguish or minish the claims of EL- ... purposes party for of an under the action attorney] SCO defendants.” [the Georgiana, Pa.Super. Act. Ioli, original).

In Corp. (emphasis Dravo 572 A.2d at 235 in In fact, acknowledged court a husband- (1991), that, our “acknowledged relationship court a an as wife could raise such infer-

3H it not a “favorable stances we do consider on both ence of a settlement effective the issue was one termination.” parties. Finding that factfinder, gone to a the court should have Georgiana glean We from both Georgianas’ its reversed dismissal that settlement various Restatement sections complaint for a determination and remanded not favor- agreements are often considered effectively of whether the husband was wrongful purposes for of a termination able purposes a the settlement for of bound present process In the use of civil action. wrongful of use of civil viable cause action for case, in the record there is clear evidence proceedings. parties truly settled their claims— that the Georgiana, interpreted In court indicates settlement process requires civil element that abuse agreement “represents compromise a person against in favor of the “termination More- disputed of all claims.” satisfaction proceedings] brought” [the whom over, parties’ had the entire the trial court looking to section 660 of the Restatement agreement before when decid- (Second) “in- governs Torts. Section 660 Dra- ing summary judgment motion. Cf. proceed- of [criminal] decisive termination supra (summary judgment inappropriate- vo ings.” While there an obvious distinction is ly appellee trial court granted where unjustifiable litigation in civil ver- a any compromise identify and where failed j proceeding, sus criminal of sec- a comment were showed that no affidavits evidence tion in 674 directs one to section 660 order presented concerning the nature of such the effect of withdrawal” “determin[e] resolution compromise; court could not term process civil case. “compromise” such that it case proceedings did not would show that (Sec 660 of the Section Restatement pur- in favor of the accused terminate ond) plaintiff Torts states that has process). poses of Ac- wrongful use civil made out successful cause action cordingly, we did find that the prosecution criminal malicious where favor; when the not terminate ELSCO’s plaintiff charge was withdrawn court dismissed ELSCO’s federal district pursuant abandoned to an or com attorney defen- federal claims (Second) Torts, promise. Restatement prejudice, the court determined dants with § pro 660. Under such circumstances the genuine no fact existed issue material ceeding considered to have “terminat 8351(a)(2); the ease bar. Pa.C.S.A. phrase ed in favor of the accused”—a mirror (where mo- see trial court Rosenfield ing analogous civil element in a plain- tion for favor process use of action. a situation where lawsuit, underlying where such law- tiffs accepted compromise has accused withdrawn, voluntarily court found suit prosecution under section com to state a claim for that defendants failed compromise states “the fact process prior wrongful use civil because question of [the accused’s] indicates favor defen- lawsuit was terminated open. Having guilt or is left innocence dants). however, important, is the fact More peace bought the accused not thereafter case; parties to settle the agreed that both proceedings assert that the have terminated circumstances, liability under such ELSCO’s (Second) in his favor.” Restatement Torts Summary legally was never determined. (a). Similarly, § 660 cmt. on clause in the granted; clear properly judgment was present com parties’ agreement to settle and judgment as a Appellees were entitled to action, promise parties civil their federal Merriweather, supra. of law. matter jointly in a agreed to end nature; non-litigious liability of the de affirmed.3 Order fendant, therefore, legally never was deter JOHNSON, J., Dissenting Opinion. files by a In such eircum-

mined fact-finder. Pennsyl- recognize Court for the Eastern District 3. While we that federal district court District binding with our resolution appellate which is in accord are not law on our state vania case cases Rutter, court, Segen Appellants’ et recently final issue. In filed United States we refer to JOHNSON, dissenting: Further, Judge, plaintiffs to Judge admitted litigation O’Keefe that the with Motorola had agree with law much as stated in by been resolved a settlement. Plaintiffs’ Opinion. However, Majority upon based in Opposition Memorandum of Law to Defen- unique presented facts that are in this for Summary Judgment, dants’ Motion dated case, I cannot concur in the determination 15, 1994, 3, parties November at 15. All properly granted the trial court sum- that, were aware after the District had Court mary judgment attorney in favor de- favor, granted summary judgment in Elsco’s fendants. I would judgment vacate the litigation Elsco had ended the with Motorola remand this action for trial. therefore agreement. parties via a settlement All also join Majority cannot Opinion. agreement knew of the clause the. First, agree I cannot that the Honorable right reserved the to continue the claim presented Bernard J. Goodheart was attorney Any asser- any revisiting “new facts” such attorney tion defendants to the con- summary judgment question appropri- is, view, trary my disingenuous. I simply Joseph ate. The Honorable D. O’Keefe de- agree cannot agreement that the settlement nied the defendants’ mo- 1991, in May possibly entered into be a 2, tion on December Majority 1994. The “new fact” in 1997. emphasizes copy May that a issue, I would not reach the merits of this agreement was not included however, pre- because Elsco had failed O’Keefe, Judge record before and therefore appellate serve the issue for review. concludes that is “new evi- following transpired record reflects that the However, dence.” although agree- the actual Judge November when Goodh- ment was not an exhibit to the motion for pre-trial eart hearing conducted a regarding summary judgment, Stipulation and Or- parties. several motions limine filed relating der to the was made a that, Judge opined surely Goodheart “as as part of stipulation provides: the record. This night day,” follows thé defendants hereby It is stipulated that the claims of present would a motion a compulsory plaintiffs in this action are dismissed with case, following plaintiff’s nonsuit and he prejudice as defendants Motorola suggested therefore to the that his Inc., P. Horrigan, William W. Michael Ka- considering the matter before trial would talinic, and Robert Lewis. This dismissal judicial parties’ save resources well as the does not affect in plaintiffs’ manner N.T., money. time and November to remaining Ray- claims as 33-34, 38-40, Cullen, Hauben, mond T. B. Ronald Wolfson, Joseph specifi- which claims Specifically, following transpired: cally reserved. your THE so I COURT: Just understand Dismissal, Stipulation and position, notwithstanding Order Filed you the fact that 6,1991, May attached as Exhibit A recognize to Defen- of your conclusion case, Summary ease, dants’ Motion for Judgment, you your try filed after there would 30,1994. September compulsory abe defense motion for non- al., 97-6335, parties' underlying No. 1998 WL 1998 U.S. action was terminated civil (E.D.Pa. 1998), agreement. Dist. LEXIS 2306 March a confidential settlement Id. at *1. United States District Eastern Dis The defendants in the action then initi- alia, Pennsylvania anticipate alleging, trict held that it would ated action inter two counts of supreme our proceedings pursuant that state court "would rule that a use of civil to the Dragonetti civil settlement is a against § not favorable termination for 42 Pa.C.S.A. the *1, purposes original plaintiffs.' [42 8351.” Id. at at Id. *1. Plaintiffs in the Pa.C.S.AJ 12(b)(6) coming 1998 U.S. *4. Dist. LEXIS 2306 at In a to action filed Rule motion to decision, parties' its the "considered] District Court rele dismiss. Id. The court found that the [sic], decisions, precedents analogous vant state negotiated settlement did not consti- dicta, works, scholarly considered purposes' and tute "favorable termination” for convincingly tending meeting Dragonetti reliable data to show how a critical element under *1, dismiss, therefore, the issue at hand would be Id. at decided.” Act. Id. The to motion was Segen, 1998 U.S. Dist. LEXIS 2306 at *2. In in Plaintiffs' favor. transcript does Elsco in the revisit this Nowhere required

suit where I will be to revisiting lodge objection to the court’s an you allow suggested I issue—and have motion. does Nor point—and to be visited at this this issue exception to note its Elsco instruct the court way suggesting it this to save I’m we do Moreover, if even actions. to the court’s money your part, your client’s time and on objection during the above discus- was noted part, tying up the for two as well as record, this will place off the sion that took so, could or as I envision this case weeks issue, preserve as what is not serve to anticipate that I all be if all the issues and purposes of for not of record does exist anticipate testify—that I will the witnesses McCaffrey Pittsburgh Athlet- See v. review. proceed you prefer to to trial would Association, 151, 293 A.2d 51 448 Pa. ic this not allow me to decide this issue at (1972). object is therefore to Elsco’s failure I can’t do it once point in time. Because appeal. reviewing matter on fatal to our decision, I judge motion has made the Steiman, Boyle supra. also Bannar v. See you it until can’t take a second crack at Miller, (Pa.Super.1997) v. 701 A.2d give you your I choice. rest. will a nor a (holding specific neither that where (Discussion record.) charge off the to the general objection to the court’s trial, jury the issue was waived was raised at attorney] MR. I don’t [Elsco’s THOMAS: pre- appeal). Although Elsco failed to on to hit a [sic] have be over the head issue, agree this Court serve this I sledgehammer. remaining the merits of issues reach N.T., 18, 1996, at Mr. November 38-39. appeal. they argue if Thomas then asked Majority’s conclusion agree I with the also motions limine so that all would holding that this the trial court erred prepared for trial. Id at 39. The court be instituted cause of action could not responded: attorney because of the relationship Motoro- agent/principal you to that? THE COURT: Do want do However, I attorney la defendants. Look, predicting I’m You can do that. Majority’s with the resolution disagree you going to on the lose issue raised Did the action ultimate issue of this case: do, counsel], you why but if have [defense an favor such that below terminate Elsco’s the motion in limine? sup- Act can be action under the right. MR. All I have confi- THOMAS: Drago- ported? Majority holds that the lose; going we that’s dence that aren’t to attorney defendants is netti time, Iwhy would rather not waste this agreement. While barred the settlement knowing it in preparation and would assist an general proposition agree going what the issues are be. not a claim is out-of-court settlement party” for our favor of “termination Id At the of this hear- at 39-40. conclusion 309-311, I cannot slip op. at purposes, see ing, Judge “I can parties, Goodheart told the con- principle agree that this well-established already [sic] the issue that was been decide Specifically, I ease. trols the outcome of this by Judge can revisit decided O’Keefe. Majority’s decision to cannot countenance point.” this Id. at 80. language of the settlement ignore the clear preserve appellate In order to an issue of action agreement that reserves cause review, timely and party must make a my specific objection to trial court at the view, be dismissed language should not Boyle stage proceedings. appropriate Majority, I Like the note that out of hand. Steiman, applicable law the Restate- both case thorough review “Where encourage the circum- us consider no basis conclude the record discloses surrounding the settlement of stances appellant preserved an issue raised his if deciding proceed- an underlying action when timely specific litigant. ings for a new trial in favor of motion are terminated op trial, § 674 objection (Second) is waived such issue See ToRts Restatement UMW, 58, Georgiana v. j; emt appellate review.” Id. purposes (1990)(When 232, 30, 1991, determining Agreement, April Final Settlement 3; that wife’s at settlement a claim with R.R. 267a. UMW Elsco and Motorola filed did not bar action stipulations husband’s reflecting with the District Court forward, going of civil this in agreement the terms the settlement that; May stated “we convinced that the 1991. The action then continued question attorney whether one defendant’s against [of] settle- defendants under sever- ment anof action should bind another defen- recovery, al theories of which both included depend particular dant must on the circum- federal claims and state law claims. Subse- settlement[.]”). surrounding requested stances that quently, Elseo the District therefore Dragonetti believe that resolution of this issue Court reinstate the Act claim requires carefully history us to against attorney examine the In re- defendants. attorney of this case. sponse, mo- defendants filed a summary judgment, tion for claiming Dragonetti The basis for Elsco’s Act claim Elsco had not stated a for which relief parte is the ex seizure order filed granted. could be attorney in the District defendants Court on Motorola’s on behalf March Elseo The District Court handled this turn application maintains that the the seizure entering events two orders on December attorney filed defendants -contained 1991. The first order Elsco’s reinstated attorney statements attorney defendants against Act claim Order, Hutton, J., knew to be serious of fact misstatements and defendants. December 1991; attorney law. Elsco asserts that the defen grant- R.R. 330a. The second order knew, grossly negligent dants or were in attorney request ed the defendants’ for sum- knowing, application contained these mary'judgment prejudice and dismissed with misstatements. This seizure action was un the federal that had claims been asserted Motorola, day through Order, dertaken one after against attorney defendants. defendants, attorney complaint Hutton, J., 30,1991; had filed its December R.R. at 344a. Sheet, in District Court. Civil See Docket This also order dismissed Elsco’s state law Elsco, 88-2452, Motorola docket number prejudice, claims El- permitted without 3; entries and R.R. at 361a. Pennsylva- sco transfer the matter to the nia Court of Common Id. Pleas. years complaint Almost three after the Elsco, against grant- filed the District Court Considering the surround- circumstances summary judgment ed Elsco’s motion for in Motorola, espe- ing Elsco’s settlement with Motorola’s action and dismissed all claims cially Elsco’s careful reservation its cause Order, J., against Hutton, Elsco. Jan- dated against of action defendants later, uary 1991. Three months Elsco stipu- agreement both the settlement and the Motorola entered into settlement Court, I con- lations filed the District agreement whereby agreed pay Motorola underly- clude that Elsco’s settlement $259,206 damages agreed Elseo and also prevent ing claims with Motorola should not appeal entry summary judg- not to proceeding against action from attor- against it the action at No. docketed Rather, ney believe that a agreed 88-2452. Elsco to dismiss the coun- against final termination of Motorola’s claims ter suit No. Motorola docketed at 88- purposes January our Elsco occurred for following with the limitation: when the District Court Summary

It is the Judgment. intention that the Elsco’s Motion for resolved, remaining grant defendants Civil No. 88-4494 This (E.D.Pa.) Cullen, favor, (namely concerning all defendants Hau- the attor- Elsco’s Wolfson) dismissed, obtaining ben ney shall not be actions in ex defendants’ parte but shall remain Nothing as defendants. seizure order. Motorola’s pursue appeal contained in this extinguish change to diminish or intended decision does not the fact claims of the District and ELSCO Court had concluded Cullen, Hauben and Wolfson. the actions taken Elsco had no merit. great above-quoted I lan- give weight agreement specifical-

guage in the settlement

ly against the preserving the claims Although Majority does determinative, passage I

consider this to be lan- accept the conclusion that this

cannot

guage is without effect. that the claim

Because would conclude the Dis-

was terminated Elsco’s favor grant judgment,

trict Court’s Act

would find that viable, and remand

remains would therefore

this matter for trial. Hence dissent. EMGE, Appellant,

Robert J. HAGOSKY, Mutschler,

Gary H. S. Bernard

Individually Gary Hagosky S. Skyler Mutschler,

Bernard H. t/d/b/a Builders, Appellee. Pennsylvania.

Superior Court of

Argued Jan. 1998. April

Filed

Case Details

Case Name: Electronic Laboratory Supply Co. v. Cullen

Court Name: Superior Court of Pennsylvania

Date Published: Apr 27, 1998

Citation: 712 A.2d 304

Docket Number: 1740

Court Abbreviation: Pa. Super. Ct.