Villani v. Seibert Appeal of: Seibert

credit at the denying for specific reasons writing its state initial decision. time parole to revise its matter, Board wish final

As a check, areas separate form to two include hearing report precluded automatically if a parolee one determine liberty parole, on and for time spent credit receiving on if has or “no” the Board discretion “yes” to state second Further, time served. granted it has credit whether time it at the indicate certainly opportunity Board credit, exercising the basis whether to award determines Nevertheless, imposing require- credit. deny its discretion reason in a written must now articulate ment that the Board language plain outside the remedy, extreme and all cases is an of the statute. in part. I and dissent

Accordingly, part concur dissenting opinion. concurring joins Justice Wecht 159 A.3d 478 Capacity VILLANI, Individually her Louise Jean Representative Estate Personal Villani, Deceased Guerino v. SEIBERT, Mary Jr. and Seibert John Seibert, Mary Frederick John Jr. and Seibert Schneider, Esquire Thomas D. Jean Louise Villani Seibert, Mary Seibert Frederick John Jr. and Appeal of: No. 66 MAP 2016 Pennsylvania. Supreme 6, 2016 ARGUED: December April DECIDED: Brown, Albert, O. Amicus for Nicholas Esq., B. Jeffrey Curiae. LLC, White, for Cottone, Esq., Burns

Anthony Salvatore Federation, Amicus Curiae. Liability Defense The Professional O’Connor, Pennsylvania for Fiebach, Esq., Cozen H. Robert Ass’n, Amicus Curiae. Bar Attorney Beemer, PA Office Gener- Esq.,

Bruce Richard Office, Attorney al, for General’s Shapiro, Esq., D. Joshua Participants. Tanner, Newman, Esq., Esq., Mark William Michael

Peter Dodig Weinstock & Wohlgelemter Shepherd Tanner Feldman Jr., Seibert, Appel- John LLP, and Frederic Seibert Mary lants. Donatelli, McErlane, PC, Jean Esq., Lamb

Guy Anthony Villiani, Appellee. Louise Christopher Troy, Kane,

Paul Esq., Knoell, & Pugh, Troy Kramer, L.L.P., for Schneider, Thomas D. Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION CHIEF JUSTICE SAYLOR interlocutory

In this direct appeal by permission, we consid- er whether a legislative enactment recognizing cause of for wrongful action use civil proceedings infringes upon this constitutionally prescribed power regulate prac- law, tice of wrongful-use insofar as such actions against advanced attorneys. underlying litigation

The arose out of a land-ownership dispute Villani, between Jean Louse co-plaintiff who was a her late death, with until husband his and defendants John Seibert, mother, Jr. his Mary (“Appellants”). Seibert Appellants prevailed both an initial quiet title action and ejectment ensuing proceedings. During the course dispute, represented Viliams were by Thomas D. Schneid- er, Esquire (“Appellee”).

Subsequently, Appellants notified Mrs. Villani and they pursue intended to a lawsuit for wrongful civil use of proceedings upon based Mrs. Appellee’s Villani’s and invoca- judicial tion process to raise purportedly groundless claims. November Mrs. Villani countered com- mencing judicial her action seeking own a declaration vindicat- ing position that nothing wrong her she did no bore liability Appellants. Appellants proceeded, they as had that they do, advised file complaint would a naming Ms. Appellee as The declaratory judgment Villani defendants. complaint in having lodged County, been Chester but ensuing wrongful-use action in being Philadelphia, filed in decision was made coordinate the matters the Chester County court. objections Appellants’ interposed preliminary

Appellee here, statutory contended that the complaint. As is relevant he of civil wrongful a cause of action for use embodying scheme Act,”1is commonly "Dragonetti referred to as the proceedings, V, Appellee on Article unconstitutional.2 relied Section Pennsylvania Constitution, which invests in this Court prescribe general “governing proce rules power practice, courts,” of all well “admission as as dure law,” laws directing that “[a]ll the bar and to while they to the extent that are inconsistent suspended shall be Pa. Const. art. prescribed provisions.” with rules under these 10(c). V, § also stressed that Court has characterized He supervise and inherent the conduct powers its constitutional See, 103; exclusive. Pa.R.D.E. Com lawyers being e.g., as Stern, 505, 510, monwealth v. Dragonetti Act as an

Centrally, portrayed the Appellee by upon incursion Assembly unconstitutional General 10(c). Article this as- Court’s under Given defect, attorneys claimed that should be immunized serted he these any liability statutory provisions. support, under had a series of cases which Appellee referenced legislative enactments on the basis that those statutes stricken constitutionally powers. on prescribed intruded Preliminary Objec- of Law in Support See Memorandum (“Defendant’s Memorandum”), No. tions Seibert v. Villani (C.P. Chester), Beyers Richmond, (citing 2012-09795 7-9 (codified 1. Act of P.L. at 42 Pa.C.S. Dec. No. "Act”). (the 8351-8354) "Dragonetti §§ Act” or the Notably, specifically Appellants had not referenced the however, proceedings developed, complaint. in their it has As the have Appellants relying upon become clear that the enactment. copy preliminary The served a 2. record reflects objections Attorney Pennsylvania, required upon the General of as is Assembly alleged instances which Act of to be unconstitution- "an General, by litigant. Attorney a civil Pa.R.C.P. No. The howev- al” er, party apparently seek to or make did not intervene as a otherwise enactment, expect- presentation legislative would be in defense of 732-204(a)(3) ("It ordinarily. duty ed See 71 P.S. shall be the Attorney constitutionality uphold of all General to and defend the abrogation prevent suspension their in the absence statutes so as to controlling competent jurisdiction.”). of a decision court

63 654, (2007) 594 Pa. 937 A.2d 1082 (plurality), Shaulis v. Pa. Comm’n, 680, State Ethics (2003), A.2d 123 833 Comm’n, 579, v. Gmerek State Ethics 569 Pa. 807 A.2d 812 (2002) Court), (equally Stern, 505, divided Pa. 549 UCBR, Snyder 509 (1985), Pa. 502 A.2d 1232 Wajert v. Comm’n, State Ethics A.2d 439 (1980), (1889)). and In re A. Splane, 123 Pa.

Appellee that, also observed the contours of defining for liability wrongful use of civil Legislature proceedings, “probable fashioned a cause” permits lawyer that a standard acting in good proceed faith to or litigation, with where he she “reasonably believes under facts supporting] [the claim existing be valid under the or developing law.” 8352(1). § Pa.C.S. According Appellee, however, pre- such scription clashes the Pennsylvania with of Professional Rules promulgated by Court, Conduct attorneys which authorize “extension, good to advance faith arguments modification added). § of existing (emphasis or reversal law.” Pa.R.P.C. 3.1 It was position his “surely repre- asserted difference sents an intrusion by legislature into the exclusive judiciary V, is prohibited under Article 10(c).” Defendant’s Memorandum at 11.

Furthermore, took Appellee issue with the Act’s incorporation See, of subjective e.g., 42 standards. Pa.C.S. 8352(3) (defining “probable another contour cause” as encompassing a good-faith litigation belief that “is intend- merely or maliciously injure opposite party”). ed harass subjectivity objective He such contrasted with the more litmus under established Rule Conduct 3.1. Pa.R.P.C. Professional (“A lawyer 3.1 shall not or or bring proceeding, defend therein, assert controvert an issue there unless is basis in frivolous, so that doing law and is not which includes a fact faith good argument extension, for an modification or reversal added)). existing Appellee opined law.” (emphasis “means, practical statute’s focus on motivation as a subjective matter, that summary disposition exceedingly difficult.” that, Defendant’s at 12. “[o]nce Memorandum He concluded again, the legislature violates Article section regulate attorney through different purporting by the Supreme than those selected Court.” Id. standards argument, similar line of claimed damages viewed monetary be as prescription Act’s for should In province. into this Court’s this a further intrusion exclusive the of regard, Appellee explained Disciplinary Rules Enforcement, Court, also the promulgated by establish of Profes- addressing for violations of the Rules procedures Conduct, stages investigation encompassing all the sional disposi- to the final allegation inappropriate of an conduct Court, as all delineating as by tion a well complaint of discipline. See Pa.R.D.E. 204-208. forms available permit the disciplinary commented that: “Nowhere do rules monetary from an damages to seek attor- opposing party an at 12. According Appellee, Memorandum ney.” Defendant’s grievances and all authorized address only tribunal attorneys Board, Disciplinary is the which functions against oversight. (citing id. Supreme under 205-207). short,” he “the proclaimed, concept “In a R.D.E. on money damages an for based his against lawsuit 10(c).” is section repugnant in case Article a civil conduct 13; (“It is for at accord id. Memorandum Defendant’s for action that attorneys bringing judiciary sanction engaging inappropriate or for in purportedly other baseless conduct.”). Dragonetti Act Appellants response, defended legislation designed, for the remedial benefit

substantive victims, frivo wrongs pursuing committed those redress Appellants explained long that it has been the litigation. lous lawyer that a for may be liable the Commonwealth in his professional capacity. See tortious committed Opposition Preliminary Law Plaintiffs’ Memorandum (“Plaintiffs Seibert, Objections 2012-09795 Memoran No. Rosenbaum, 5 dum”), (citing Pa.Super. 386, Adelman v. 391-92, (1938), for proposition A.2d in a use process common law action malicious defendant privilege attorney acting as an plea “cannot invoke by any is not sheltered client” because “malicious action privilege”); Indus., accord Abrams, Dietrich Inc. v. 202, 208, (1982) (“An Pa.Super. 119, 123 attorney who prosecutes knowingly groundless action to accomplish purpose malicious held in an accountable action for use of process.”).3 malicious

Appellants further offered that the Dragonetti Act was fashioned after Section 674 the Second Restatement Torts, which indicates as follows:

One who an active part initiation, takes continuation or procurement of civil proceedings against another is sub- ject to liability the other for wrongful proceedings civil if (a) he acts probable cause, without and primarily for a purpose other than that of securing proper adjudication of the claim in which the proceedings based, are (b) except when they parte, are ex proceedings have terminated favor of person against they whom brought. 674 (Second) Moreover, Ap- §

Restatement Of Torts pellants alluded to 674, comment to Section provides: d which

If [an] without probable acts cause for belief possibility succeed, that claim [a] will and for an improper Parenthetically, Pennsylvania recognize courts a distinction between the common process law torts of abuse of process. and malicious use of Indus., 206-07, Pa.Super. See Dietrich 309 455 A.2d at 122. See generally (2017) (“An 2 § 2D 19.1 Russell Davis, J. Summ. Pa. Jur. Torts criminal, process, abuse of or either civil party employs arises where a object it some unlawful purpose rather than for the that the law effect; words, thereof, perversion intends it to in other in distinction criminal, process, from malicious use civil either or wherein the process tortfeasor proper intends that the have its effect and execution (footnotes although omitted)). wrongfully it instituted.” Some other courts, however, have found the distinction between the torts be two to and, confounding accordingly, and cumbersome have combined them. See, 92, Torok, e.g., 414, (1986), Yost v. 256 Ga. 344 S.E.2d 417-18 Bank, superseded by recognized statute as in Great W. Bank 234 v. Se. 420, 191, (1999). Indeed, Ga.App. 507 S.E.2d 192-93 Act may torts, regarded encompassing aspects be as of both common law that, given "probable under its definition of support cause” will initiation, legitimate procurement, or proceed of civil continuation ings, lacking such cause is either in the absence of reasonable belief valid, 8352(1), § claim be see 42 Pa.C.S. or without an attorney’s good faith belief that the merely cause is not intended to 8352(3). injure opposing party, harass or see id.

66 person pressure upon as, put for example,

purpose, of another compel payment in order against proceeded proceeded solely person to harass the of his own claim invalid, he is to be a claim known against by bringing liability any person. as other subject to the same Id., cmt. d. repeatedly had Superior noted

Appellants comment d and referenced Section 674 adopted cited and see Plaintiffs’ against attorneys, brought to actions relative Atlee, Pa.Super. v. (citing at 6 Gentzler Memorandum (1995), v. Howard n.6, 1382 n.6 Meiksin 417, 420-21, 590 A.2d Co., Pa.Super. Hanna 135, 140-43, Stewart, (1991), Pa.Super. Shaffer court (1984)), that no had appellate 1020-21 Act is unconstitutional. ever concluded fact that the common Additionally, they “[t]he asserted in 1980 of civil was codified wrongful process claim for use Id. at 8. Accord- the claim unconstitutional.” render does in which by Appellee none of the cases cited ing Appellants, unconstitutional other statutes this Court had declared relevance, pertained prescription since none bore the harm considering for victims for substantive redress lawyer’s tortious conduct. caused Appellee’s depiction with also differed Appellants regulate underlying being legislative purpose Rather, they primary contended law. of action for the common law cause objective codify was it to eliminate the re- adjusting while prosecution, malicious gross negligence or of seizure arrest substitute quirement See Plaintiffs’ Memorandum liability malice as a threshold. for Chevrolet, Inc., III Century Co. v. (citing Nw. Nat’l Cas. at 7 (W.D. 1994)); Walasavage 247, accord F.Supp. (3d 1986). Co., Cir. 806 F.2d Nationwide Ins. (“The 8351(b) or arrest seizure the 42 Pa.C.S. generally shall not plaintiff necessary property or person subchapter.”). to this brought pursuant for an action element According Appellants’ position as stated from outset, the Dragonetti Act the does conflict Rule of with Professional 3.1, govern Conduct which never was intended to civil liability or otherwise or curtail grant parties remedies to third harmed an attorney’s tortious conduct. See Plaintiffs’ Memorandum (citing provision at 7-8 Scope the from the Rules Profes propositions sional Conduct for the that “violation of a Rule should not rise to give against itself a cause of action a lawyer nor it should create presumption such case legal duty been breached” and rules “are not designed to be a civil liability”). Along lines, basis these Appellants also Inc. referenced Maritrans GP v. Pepper, Scheetz, Hamilton & (1992), which this Court Superior chastised for “badly confusing] relationship between under the duties rules of ethics and legal liability rules create actionable apart at rules Id. 602 A.2d at 1284 (empha ethics.” added). In of this light sis essential between distinction ethical laws, regulation Appellants remedial substantive main tained that “supplements, but does not with, operation interfere those rules.” Plaintiffs’ Memo randum 8. pleas granted

The common court Appellee’s preliminary objections grounded challenge on his constitutional Dragonetti Act, essentially the reasons that he had ad Citing vanced. had decisions referenced suspended per Court has statutes its Article county powers, court observed that “Supreme long authority Court has its asserted over Villani, 2012-09795, op. No. at 4 n.1 attorneys.” 2015). (C.P. Chester The court further Aug. reasoned “Dragonetti Act to the heart of what an goes is do, legal judgment trained and called exercise upon about existence of cause law as it probable presently under the at 5 developing.” regard, exists Id. n.1. the court pleas position of common that the Act conflicts credited by adopting with Rule Professional Conduct 3.1 a more liability subjective grounding upon restrictive standard and (“[T]he § Art. legislature violates See id. beliefs. to attor regulate by attempting Pennsylvania Constitution the by other than those selected through standards ney Court.”). with agreed the court Additionally, Supreme under the monetary damages imposition § a further Act, represented transgres see 42 Pa.C.S. this Court so promulgated by no rule sion, disciplinary since concluded, essen pleas again, of common The court provides. echoing Appellee’s arguments: tially to by Supreme Court The tribunal authorized only Disciplinary is the against attorney grievances address against an concept of a lawsuit Pa.R.D.E. 205. The Board. case is damages on how a civil money for based system discipline estab- repugnant is conducted 10(c) of V, § Art. pursuant to Supreme lished Constitution. Pennsylvania ^[*] n ^[*] legislative stated, Dragonetti is a For the reasons Supreme exclusive attempt upon intrude attorneys prac- in the the conduct authority regulate lawyers to sanction judiciary tice of law. It is engaging for otherwise bringing actions are baseless Act, pertains as it inappropriate conduct. The unconstitutional unenforceable. lawyers, is n.1. Id. 6-7 on an interloc sought appeal

Appellants permission basis,4 Court, was initially Superior granted in the utory to this Court. See proceedings transferred after were 722(7) jurisdic original (vesting appellate exclusive Pa.C.S. holding a final order Supreme Court over tion unconstitutional). a chal Our review of Pennsylvania statute constitutionality duly of a enacted statute lenge 36, 49, See, Hopkins, e.g., Commonwealth v. plenary. 247, com- against Villani to be resolved in the The claim Mrs. remained pleas mon court. Presently, Appellants maintain their contention that core Act constitutes a substantive remedial designed provide remedy an essential parties third not litigation, misguided harmed effort by abusive and Assembly to this usurp regulatory power General over attorneys.

Appellants supplement position this with a number obser arguments vations and that did not they specifically present In county court. addition to referencing cases from Superior Court, Appellants relate that this Court has acknowl edged the on Dragonetti Act for several occasions. See Brief Appellants (citing 23 Stone Crushed P’ship at v. Kassab O’Brien, Archbold Jackson Pa. n.1, & 589 299 908 Jordan, n.1 (2006), 413, 438-39, and v. McNeil (2006)). In the decision, Appel McNeil elaborate, lants Court this found Act Dragonetti served as a aid in interpreting useful the Rules of Civil McNeil, governing Procedure pre-complaint discovery. See at 438-39, this, 894 A.2d at 1275. From Appellants Dragonetti comports draw the conclusion that “the Act entire ly duty litigant, attorney, with the whether or party good demonstrate faith ‘in the probable procure and cause ment, initiation or of civil proceedings’ continuation discovery conformity with these basic principles.” 8351(a)); § Brief at Appellants for 26-27 42 Pa.C.S. (quoting (“In words, see also id. at 27 other this Court has extolled Act, Dragonetti law, codified centuries of common as a which necessary for appropriate relief for victims of basis abu conduct.”). sive litigation

Next, Appellants explain that this consid previously Court segment Act, constitutionality Dragonetti ered the of the least, at when it suspended provision its for certifica No. penalties tions civil for violations. Pa.R.C.P. 8355). 1023.1(e) (reflecting suspension of 42 Pa.C.S. According while Appellants, by suspending Act, leaving remaining intact the sections of the Court “tacitly through endorsed constitution Sections for Appellants highlight al.” Brief also Appellants Act as 1023.1, provid referencing Rule note to explanatory proceedings.” dilatory frivolous relief “additional ing at 29 Note; Appellants 1023.1, see Brief Pa.R.C.P. No. 1023.1, Procedure (“The to Rule of Civil comment explanatory cause of as viable Dragonetti Act directly refers has for action, Supreme is further evidence supple Act as a approved decades several proceedings.”). civil of frivolous remedy victims mental do 1023.1 sanctions additionally argue Rule Appellants claims. of frivolous the victims adequately compensate Plater-Zyberk, 799 quote regard, Appellants Werner (Pa. 2002), as follows: Super. A.2d 776 plaintiffs] argue[s] [the defendant] [The im- via sanctions adequately be vindicated interests would However, damages district court. the federal posed by types of from the various are distinct plaintiff] seeks [the court as sanctions by a may imposed penalties Sanctions, monetary sanc- including tortfeasor. against a costs, form of fees or adversary in the paid tions an not those of the court and the interests address motion to rely on a sanction litigant A cannot individual. the sanctionable every injury for compensation seek Rather, request injured must party produces. being free personal his interest damages protect tort proper- person his interference with unreasonable ty.

* * ^[*] who objective parties 11 is not to reward The main Rule filings it by is to deter baseless litigation; are victimized monetary sanctions under imposing and curb abuses. While on a victimized a financial Rule 11 confer benefit on the an incidental substantive litigant, merely this is effect Rule sanctions Simply thereby implicated. put, rights not a and thus are consequential damages include cannot foregoing, tort In we damages. light substitute damages tort plaintiffs] right seek conclude [the of, in addition injuries independently exists alleged his to, any rights might he possess petition for sanctions from the federal district court .... (citations

Id. at omitted); 784-85 accord Perelman v. Perel man, (Pa. 1259, 1269-72 2015). Super.

Appellants further take issue with the distinction by drawn the common pleas court and Appellee the Dragonetti between Act’s probable cause requirement and the standard set forth in Rule of Professional Conduct In regard, 3.1. Appellants again cite McNeil as clarifying “the term ‘probable cause’ is sufficiently well defined and understood in Pennsylvania law objective, to ensure an unified McNeil, standard ....” at Furthermore, Appellants explain that in the throughout decades which Act has been in existence, no Pennsylvania appellate court ever inter- preted the enactment to require that the term “developing law,” as it appears in the enumeration of probable cause standard set forth in 8352(1), should not include an argument for extension, modification or of exiting reversal law. See Brief for (“What, Appellants at 34 all, after is a ‘developing law’ if not a law that subject legal debate, argument and extension, including debate over the law?”). modification or of existing reversal terms the subjective-objective distinction drawn county court Appellee, Appellants asserts that this rests on a misinterpretation of 3.1, Rule Professional Conduct recognizes necessity “good argumenta- faith” in tion. Appellants Pa.R.P.C. 3.1. posit: also charged

Whether with a violation of 3.1 a violation [Rule] Dragonetti Act, the an attorney would with the defend same evidence upon which the attorney his or her based good faith belief that there was a in law fact to basis bring defend the underlying civil either proceeding. case, the finder of fact charged would be with determining whether the lawyer’s reasonable, ie., objectively belief was whether the lawyer had in good by relying upon acted faith creditable facts and a legal argument non-frivolous purposes probable pursue cause to a claim.

72 Appellants argument, In this line of Appellants at 35.

Brief standards, developed in governing as have they note law, highly attorney the decisional relative deferential (“Insofar See, e.g., Perelman, 125 at 1264 judgment. A.3d as concerned, attorney long is 'as an believes liability as that will there is a chance his claims slight that client’s ” duty not successful, attorney’s it case.’ prejudice is (Pa. DiPaolo, 500, (quoting Super. Morris A.2d 2007))). lawyer’s an of a degree To the assessment beliefs that agree pleas not the common necessary, Appellants do with complicates unnecessarily court and that summary judgment process. reme- legislative also that there are other

Appellants relate to authorize operate compensation schemes victims dial For injurious exam- wrongful, attorneys. acts committed the Loan reference Interest and Protection ple, Appellants interest or imposes liability for Law,5 which civil collection under those charges permitted excess of otherwise They that this 502. indicate enactment. P.S. interpretation, confirmed, statutory a matter recently from category persons attorneys are not excluded liability act. See v. Udren subject Law under Glover 629, P.C., Offices, the absence of supportive significance draw Appellants Glover, conflict mention, in of a between enactment Pennsylvania and Article under review Constitution. explain that

Finally, Appellants previously this Court impose rejected challenges constitutional other statutes in- professional requirements upon groups ethical Comm’n, attorneys. See v. State clude Maunus Ethics (1988) upon 544 A.2d 1324 (disapproving an attack requirement employees Pennsylvania for all Ethics Board, Control which included Liquor attorney-employees, interest). highlight file statements financial Appellants Maunus that: enactment challenged observations targeted solely impose not lawyers; was statute did 30, 1974, (as 101-605). §§ Act of Jan. P.L. No. 6 amended 41 P.S. duty upon every attorney in admitted law the Commonwealth; duty imposed was not inconsistent professional with the ethical obligations arising of directives this Court. See id. A.2d at 1328. Indeed, responding assertions of the county court and Appellee that the of imposition upon civil is liability attorneys repugnant, Appellants express position that contrary “im- munization lawyers of who have engaged wrongful use of civil proceedings repugnant.” Brief for at 44. Appellants of support Appellants, amicus curiae Nicholas 0. Brown—who in a is a plaintiff pending action lodged attorney-defendant—invokes I, against an Article Sec I, tion of the Pennsylvania Constitution. See Const. art. "(“All 11§ courts be man for an open; injury shall and every him in lands, goods, person done his or reputation shall have ”). of remedy by due law .... course Amicus views the form lawyer immunity by Appellee fundamentally envisioned constitutionally prescribed inconsistent to a right with this remedy. Furthermore, nothing he Article believes the Legislature’s was ever intended to Section invalidate law, alia, core by fashion compen substantive inter sating persons litigation. harmed abusive and frivolous for

Appellee, opens his part, his brief with extensive array that, arguments, contending mainly waiver-based Appellants present the arguments since failed most in their advanced brief course appellate during court, pleas common proceedings those unavailable for this For present example, Appellee review. asserts Appellants to reference En Disciplinary Rules failed 208 or to though provide developed argument forcement 3,1. Indeed, regard with Professional Rule Conduct according parsimonious to Appellee’s pre view what was court, county sole argument Appellants sented “is appellate review preserved inaccu irrelevant rate claim that the ‘recodified’ (Second) of the Restatement Torts.” at 8 Appellee Brief n.1. arguments pre- merits, reiterates the

theOn some court, highlighting while pleas common vailed principle expressions more doctrinaire this Court’s See, Sutley, v. 474 e.g., Commonwealth powers. separation (1977) “any 780, (pronouncing 256, 262, 783 Pa. legislature judicial power by upon encroachment government,” of our to scheme offensive the fundamental attempting statutory of a scheme invalidating provisions while of certain misdemean- convicted leniency persons extend offenses).6 drug presented he of the seven cases which To the list support in court, opinion adds the Appellee common pleas 513, 605 A.2d 1193 Fishinger, in Lloyd affirmance v. Court) (1992) (determining, by operation (equally divided to curtail solicitations intended law, that statute infringement upon an hospitalized persons represented He regulate attorneys). Court’s exclusive Supreme in Court’s decision Heller the Commonwealth also references (1983) 581, 464 A.2d Frankston, 76 Pa.Cmwlth. attorneys’ fees attempting regulate (finding a statute It is core grounds). Appellee’s separation powers invalid on attempt by yet Act is another that “the position exclusively to this belonging turf to trod on legislature at 31. Appellee Brief for Court.” specific makes respect, Appellee that surmount the summary disposition stage are submitted to juries. lay According Appellee, to it this was Court’s intention to prevent Legislature the from “inventing” monetary reme- dies permitting juries to consider awards of damages against lawyers. Brief for at Appellee

In argument terms of the that Dragonetti Act is sub nature, stantive and remedial in Appellee points to the Stone decision, Partnership Crushed in which this Court indicated that the enactment “punishes” brings who wrongful civil action. P’ship, n.1, Stone Crushed 589 Pa. at 299 Moreover, 908 A.2d at 877 n.1. “Dragonetti because the Act makes attorneys target by opponents lawsuits their cases,” civil Appellee a “regulatory—indeed, discerns inhibito ry—effect on plaintiffs’ attorneys.” Brief for Appellee at 41. To that degree the Act would be found to have remedial attributes, it is Appellee’s that position Article Section exception makes no for remedial considerations.

Additionally, Appellee provide undertakes to some assur- ance that injured other remedies will litigants, be available upon this Court’s disapproval Act. For example, Appellee that explains plaintiffs ability will retain the Act, to sue laypersons under the as well as laypersons and 76 In the of process. common law tort abuse

attorneys for the attorneys properly accepts regard, Appellee latter Court, lawmaking this by common law subject substantive supplant Legislature cannot position of his spite is its lawyers, as pertaining common law otherwise v. generally Sternlicht sphere. in the broader prerogative (2005) 149, 163, (recogniz 912 Sternlicht, in the Assembly substantive the General ing primacy arena). plaintiffs re highlights that lawmaking Appellee also monetary against attorneys sanctions ability tain seek See, e.g., Procedure. Pa.R.C.P. the Rules Civil under 1023.1(d). relates argument, Appellee of his segment (albeit stage) have the not plaintiffs Appellants the Second adopt to ask this Restatement’s ability measures, per its or some remedial variant authority.7 decision-making common law amicus, by Appellants’ issues respect raised With alia, cannot raise issues explains, inter that amici See, litigants. Hosp. e.g., preserved that have been n.10, DPW, Pa. Healthsystem & Ass’n of 606 n.10 by amici the Profes position supported merits Appellee’s Bar Pennsylvania Liability Defense sional Federation arguments Association, policy present both which series policy. represents that the bad to the effect See, Def. Fed’n at e.g., Brief Prof'l Liab. Amicus (asserting “attorneys arguing are dis-incentivized law,” on infringing access changes existing reforms to citizens); (indicating system for id. at the court is “superfluous inappropri that and imposes punishment Act consequences steep appropri set of ately magnifies already an law”); the (suggesting that forth id. ately set actions); Brief for voluntary the of discourages Act settlement encroaching Act on PBA the as (portraying Amicus brief, the consider- applied a surrebuttal has for leave file review, stage of our merits That ation of which was deferred to the of granted, waiver is now albeit that discussion motion the discrete great to our decision precepts brief is not of relevance contained the I. Part here. infra attorney’s duty “an ethical for his or vigorously advocate clients,” jury her since the of trial “prospect facing stands lawyer’s fiduciary repre tension with the ethical and duties client zealously sent each within the the and to bounds interests”); (contending act the client’s that best id. at respect civility the Act “tends to the undermine mutual and other”); Pennsylvania lawyers with which at 29 treat each id. that (suggesting “Dragonetti threat have letters now become weapon leverage routine and as a tactical employed a premature dismissal unfair with impunity”). settlement

I. Waiver In response to claim that have Appellee’s Appellants preserved solely argument aligns that the Torts, with Section 674 of the Second Restatement thus, they have waived and all defenses of the Act’s constitutionality, disagree. we advo plainly Appellants’ While outset, cacy sharper have been could we believe reading fair their to the common presentation pleas court encompasses position the Act as a regarded should be broadly applicable substantive, remedial scheme within province Assembly, General not as a legislative regime targeted lawyer regulation. it such, necessary

Considered was never for Appellants, for specifics of the example, Disciplin- discuss Rules ary regard Procedure. Appellants’ defense on depend particulars statute 204’s does Rule eight forms prescription discipline; Rule 205’s delinea- structure, tion of the power, Disciplinary and duties Board; 206’s provision hearing spe- Rule committees and masters; designation cial Rule of the power 207’s and duties Counsel; or Rule Disciplinary 208’s enumeration procedures, including proceedings, hearings, informal formal action by Disciplinary Supreme review and Board and the Court, emergency temporary suspension orders. See Simply Appellants R.D.E. 204-208. have not put, disputed fact implemented comprehensive regula- this Court tory regime governing professional lawyers; conduct of

78 Act should maintained

rather, merely have they authority such transgressing regarded as be arena. can this be reasons, appeal we believe

For these arguments on the core by this Court based fairly resolved into the extensive digression lengthy and without presented, Moreover, in the Appellee. by presented waiver discussion our de novo upon this Court and pleas common court before heavy review, bears—the Appellee bore—and plenary duly-enacted presumptively establishing that a burden Constitution, violates clearly palpably statute valid statute’s resolved any being favor with doubts 383, See, 375, DOC, 582 e.g., Payne v. validity. county in the both 795, presentations deem the We review present our permit sufficient court and here be so.8 Appellee has done whether event, analysis, necessary, own merits any in our we do not find it presentation. Appellants’ many premises within rely of the minor on acceptance” Appellants’ "tacit example, we not see the line of For do Maloney Valley v. Med. being particularly arguments as useful. Cf. (2009) Facilities, Inc., 399, 417, 478, (rejecting 984 A.2d 603 Pa. that, accept- particular legal approach had been position because lengthy period of time it therefore by for a an intermediate court ed Court, observing while accepted have been should deemed to reasons, develops generally very good our decisional that "[f]or they of cases as incrementally, confines of the circumstances within the Court”). come before the premises, we observe that Parenthetically, minor also in terms of such Appellate terms applicable Rule of Procedure framed ("Issues in the lower not raised preservation. See Pa.R.A.P. "issue” appeal.”). on for the first time cannot be raised court are waived and (3d Cir. Joseph, 339-40 730 F.3d generally United States v. See 2013) interesting difference between discussion of the (offering an context). suppression Al- "arguments” on the centered "issues” and "arguments” waived though certainly Court has deemed various Ballard, 302, see, e.g., Rule Commonwealth with reference to (2013), justice would not be the interests deciding of statewide matters of last resort served were a court well adjustments appellants to make forbid latitude public importance to process. review offered the hierarchical supporting rationales own ratio- reviewing expression of its example, previous court’s For ensuing appellate impact upon focus of may legitimately nale subject focusing the substantially narrowing presentations, by and/or matter. II. Merits begin We with the notion that the powers accorded this Court under Article are exclusive. There why are several this reasons assertion must be considered great circumspection. with

For example, promulgated this Court of and maintains a set per evidence rules its rulemaking under Article authority 10(c), 101(b), expressly see Pa.R.E. while also recog nizing that of some the law of appropriately evidence is governed by id., comment; See also statute. see Common Olivo, 635-36, wealth 633 Pa. 127 A.3d 780 Furthermore, this Court procedural provisions enforces of statutes, such as the Post Act. 42 Conviction Relief § 9545. Pa.C.S. subjects

The Court also acknowledged many has judicial legislation possess both rulemaking attributes and/or implicating this rulemaking power Court’s and substantive-law characteristics province political which are suited to (“We Olivo, branch. See at often recognized 127 A.3d have that the distinction ac- procedural between substantive (citation engenders omitted)); tions little consensus.” see also Laudenberger Cnty., 52, 57, Auth. Allegheny v. Port (1981) 436 A.2d (indicating procedure and sub- stance are often of “rational incapable sepa- “interwoven” and ration,” and the of demarcation “difficult to lines deter- (citations omitted)). mine” and “shadowy” Notably, moreover, per very provision the Constitution which invokes, this simply Court is not to access its permitted rulemaking power modify to nor “enlarge the substantive Const, rights V, § litigant.” (emphasis art. Pa. appropriate degree appellants The such to latitude afforded to alter arguments sharply can be one— most determined cases—unlike this disagrees presentation the Court with a main thrust of courts, rejected prior reviewing was in the court albeit that this might agree supplemental argument appeal. with a on offered Notably, procedural suspend provi- 9. this Court has acted certain statute, 9545(d)(2) (suspended), § sions see Pa.C.S. it but has others, suspended requirement signed as the such certification witness, 9545(d)(1). toas each see id. These intended sorts of differ- ences, Justices, are, implemented by predecessor present comple- Court, explain. ment difficult at

added);10 264-65, at Sutley, 474 Pa. 378 A.2d cf. all of (alluding Legislature’s “promulgate jurisdiction”). substantive lawmaking mixed-faceted Accordingly, multitude ventures, rulemaking discerning judgment obviously some brought through pervading power to sort must bear Indeed, of this the most even inflexible questions. recognized separation historically have decisions degree interdependence “a powers contemplates doctrine Sutley, 474 reciprocity the various branches.” between at Act, notwithstanding respect With agree we with Partnership, Ap- Stone Crushed dictum manifests a legislative purpose statute pellants and, of frivolous and compensate litigation victims abusive therefore, substantive, strong thrust.11 See remedial DiDonato, 209, 1187, 231, 601 Pa. A.2d 1201 Dooner v. 971 (2009) perform that tort im- “necessarily laws (explaining torts,” compensating in role victims albeit portant remedial added)); of a common law tort (emphasis accord context in 234, 112 Burke, 229, 1867, 504 U.S. S.Ct. United States (1992) (“Remedial ... 1871, figure principles 119 L.Ed.2d 34 torts.”). in the definition and prominently conceptualization estimation, in our that the law is of It important, is also to targeted is not specifically legal and general application Maunus, 600, 518 Pa. at 544 1328.12 A.2d professionals. See provides explicit context boundaries of the prescription 10. Such ("Violation Pa.R.P.C., Scope See Conduct. a Rules Professional against lawyer give rise a cause of a itself action nor should not Rule legal duty presumption in a such case that has should it create designed be rules "are not a basis for that the been breached” Maritrans, 602 generally See liability"). 529 Pa. at A.2d at civil profession- (stressing difference between rules of duties under standards). liability substantive al conduct and Legislature’s previously recognized the Notably, de- this Court 11. See, e.g., supplant the common law scheme. remedial sire substantive (1992) Larsen, ("[T]he Matter of prosecution has been codified law of malicious common tort action.”). statutory cause of modified as a support opinion in from Appellee references an affirmance reflecting significance applica- of broad that the scale Gmerek case is no question There the enactment has a punitive punitive since it authorizes the dynamic, award damages law,” § “according 8353(6), it Pa.C.S. and that embodies disapprobation range of conduct specified attorneys. Both these in aspects bear closer review future cases narrowly. that are framed For example, more there may be an argument punitive damages be made awards should against be available attorney-defendants Dragonetti cases, given that this Court has specifically provided for 1023.4(a)(1). sanctions to deter violations. See Pa.R.C.P. No. that, it may case, And also in an appropriate be the Court 10(c)—in might invoke Article a fashion more than according blanket to lawyers restrained immunization from the effects of a substantive-law statute—to construe liability as unwarranted in instances in which a on a pursued good argument claim was based faith existing changed. Potentially, principle should afforded a construction might statutes should be constitutional 1922(3). into play come a case. such Pa.C.S. There no challenge punitive directed damages here, no however, assertion had aspect been good faith, vying, a reversal of when the precedent underlying land-ownership litigation was pur- commenced and Rather, lawyer-immunity sued. focus has far broader been engrafted onto this to the matter Responding case.13 as so framed, recognize generalized immunity we decline to tort principles substantive law embodied 1023.1, (depicting Act. R.C.P. No. Note Accord Gmerek, particular paradigm.

tion is limited to a factual See 569 Pa. at C.J., Affirmance) (Zappala, Opinion Support 807 A.2d at 818 in therein, presented (positing that "was limited Maunus to the situation being regulations by employer imposition employ of an ee/attomey”). Although opinion correctly the context described Maunus, judgment significance our considered of whether sub lawmaking targeted attorneys application stantive is or has broader involving lawyer-employees. scenarios transcends Federalism, Metzger, Challenges 13. Gillian E. Facial 105 Colum. Cf. (2005) (observing litigant partial makes L. Rev. that a “a facial challenge” by arguing particular "a in a statute unconstitutional most”). range applications, if or even not unconstitutional all from “additional relief dilato- providing Act as Dragonetti proceedings”). ry frivolous acknowledges frequently this Court regard,

In this prerogative and institutional superior resources Legislature’s developed analysis. judgments upon making policy social Servs., Inc., 618 Pa. v. Prison Health generally Seebold (2012). In n.19, 1232, 1245-46 & n.19 632, 652-54 & 57 A.3d function, decision-making this exercising the common Assembly—such to the the tools available Court lacks gathering empirical and the self-directed investigations to the is confined adversari hearings—and at public evidence Accordingly, judicial adjudication. al, system record-based in the disadvantage stand at a substantive judges plainly also, steeped is often quite frankly, lawmaking process, among vital judgments, including choices political in difficult competing interests. observations, that the these we find

Consistent with pre his amici are better arguments Appellee and policy clearly this retains Legislature. to the Court sented While residual, lawmaking, law role common substantive to exer Assembly chooses such when cedes to enact prerogative constitutional substantive cise its own See, Sternlicht, Pa. at e.g., legislation. by the referenced prior

912.14In relation decisions opinion may differ judicial philosophy litigants, in the ones, nothing precedent we find predecessor but holding. present our precludes judgment, Appellee in our considered has conclusion, In clearly palpably failed establish legislative arguments pertaining decision to terms gross negligence, liability adjust to subsume standard attorneys harm to as a harbor for who cause rules are not intended safe Similarly, while heedlessness. the Rules others via elevated such lawyers' obligations in ethical Professional describe Conduct liability in the Act's objective fashion than is reflected more threshold, immunizing justice do not favor the interests of Indeed, wrongful subjectively state of mind. undertaken with a certainly subjective liability malice attrib- common law standard of utes. Constitution, violates or that Pennsylvania the this Court per attorneys, attorneys, se immunize as should the tort application principles the substantive promulgated by branch in political Act.15 The pleas reversed, order the common court is and the matter is for further proceedings remanded consistent with opinion. this Baer, Todd, join Dougherty Mundy

Justices and the opinion. Baer Todd file concurring opinions. Justices and joins Justice Wecht the substance Justice Baer’s join concurrence not majority opinion. but does a dissenting Justice Donohue opinion. files BAER, Concurring JUSTICE agree

I with majority failed estab- clearly palpably lish violates this 10(c) V, authority regulate Court’s Article Section however, I separately, law. write distance myself from the majority’s apprehension exclusivity over of our regard. Majority constitutional in this power Opinion at at (stating should we consider with the notion “great circumspection” powers accorded 10(c) V, exclusive). Court under Article Section Con- opinion, with Justice Donohue’s I find that dissenting sistent 10(e) V, authority our Article Section is exclusive. See Dissent- J., Donohue, 87-88, at at ing Opinion, 495-96 (citing disciplinary case law and a well-established rule enforce- recognizing of this Court’s ment the exclusive nature Article 10(c) authority).1 V, Section light disposition, we need of our not address Remedies Clause amicus, event, which, Appellants' raised issue had been presented by Appellants. majority’s appreciate topics I there

1. While concern that have been upon judicial spoken, Op. which both have see statutes rules (referencing evidentiary post-conviction 159 A.3d at 490 rules Act, practices under 42 Pa.C.S. the Post Conviction Relief 9541- 9546), joint expressions interpreted these need not be limitations on however, Article say, that our That is not constitutional plain language is unlimited as the authority rules prescribe denies provision of a See rights litigant. modifying the substantive Const., 10(c) prescribe to power this Court “the V, (affording art. procedure governing practice, rules and the general to to the bar and all courts and admission ... this Constitution are consistent with and if such rules

... rights modify nor the substantive abridge, enlarge neither ”). mandate, constitutional .... Pursuant any litigant determining in wheth- inquiry have held that the threshold we V, 10(c), Article is statute Section particular er a violates is or substantive challenged legislation procedural whether 871 A.2d Payne, in nature. Commonwealth part of the law law is that Generally, “substantive procedural while creates, regulates rights, which defines rights are by that address methods laws are those (Pa. Olivo, 769, 777 Commonwealth v. enforced.” 801). 2015) A.2d at (citing Payne, 871 hesitation, I agree majority with Without legislative compensate Act a Dragonetti purpose “manifests therefore, and, has a litigation victims frivolous abusive 80, 159 A.3d at substantive, Op. thrust.” at strong remedial majority, the statute is by 491. As further referenced targeted specifically legal is not general application and Assembly, appears Id. It the General professionals. Act, Court cannot do enacting did what this benefitting rule, i.e., rights created procedural substantive Pa.R.P.C., Scope litigation. See litigants targeted by abusive (“Violation rise cause give of Rule not itself to a a should it lawyer any presumption nor should create against action breached;” rules legal duty that a such a ease been liability”). not for civil designed “are be basis provi- majority statutory I with the agree Because substantive, I find that the challenged clearly herein are sions V, this Court’s Article upon not encroach Legislature did 10(c) but, rather, recognition as a Section this Court’s Article procedural aspects, topics certain have both substantive exclusive I authority.2 Accordingly, agree with the majority’s mandate reverse the court, order the trial which declared unconstitutional, and re- mand for further proceedings. TODD,

JUSTICE Concurring I join the Majority Opinion full, but write make two additional points.

First, I agree while majority’s with the conclusion that the Dragonetti Act unconstitutional applied attorneys, I underscore the issues the

alized to immunity Dragonetti Act claims—an assertion we reject—and because neither of the above more narrow issues implicated case, facts the majority appropri- ately does not them. Yet, address these questions on focus aspects of Dragonetti which, Act in view, my are most in starkly tension with our exclusive authority regulate the under Article Pennsylva- nia Constitution and will close deserve properly when review before our Court.

My second observation also relates to Appellee’s concern that an good attorney’s faith argument that existing law changed should Dragonetti be could lead to Act liability. Section 8352 of the Act sets forth three scenarios under which person a probable cause for commencing advancing or litigation, and, thus, subject is not to liability.1 It states: As this only generalized 2. case involves challenge Dragonetti applied attorneys, Act as majority's regarding discussion "punitive dynamic" legislation of the and the "disapprobation of a specified range by attorneys," Op. of conduct A.3d at need not be considered at this time. This Court can examine the specific provisions contours of Act when so chal- lenged in appropriate an case. prerequisite liability 1. A person under the Act is that the act "in a grossly negligent probable or manner without cause.” 42 Pa.C.S. § 8351. or initiation procurement, in the part takes person

A who proba- another has against of civil proceedings continuation in the reasonably if he believes doing so cause ble based, which the upon of the facts claim existence either: claim those facts the

(1) that under reasonably believes law; developing or existing under the valid be advice of (2) upon in to this effect reliance believes faith after full disclosure counsel, good given sought information; knowledge facts within his of all relevant or faith that his

(8) record, good as an believes not cause is or continuation of civil initiation procurement, opposite maliciously injure or merely harass intended party. herein by Appellee § The concern forwarded Pa.C.S. an attor- scenario, offers that the first as

implicates or “extension, reversal modification ney who seeks of Profes- the Rules ethically permitted as under existing law” subject might nonetheless be sional Conduct2 viewed might a claim liability Act such because claim that “the belief having upon reasonable based been law,” 42 Pa.C.S. existing developing under the may be valid added). Howev- 8852(1) Brief at 9. Appellee’s (emphasis case, construe a future er, might, we regardless whether “extension, modi- claims for an encompass law” to “developing thus, Drago- and, preclude existing law” fication or reversal 8352(1) basis, subsec- on liability under Section netti (3) attorneys provide a safe appear tion would harbor situations). (as specifically It well other situations as such “in faith good who of record” believes “attorney an protects cause a civil initiation or continuation procurement, his injure maliciously merely harass is not intended 8352(3). concern, I Appellee’s § To party.” Pa.C.S. opposite ("A bring proceeding, lawyer or defend a shall not See 3.1 2. Pa.R.P.C. therein, in law is a basis issue unless there or controvert an or assert frivolous, good faith doing a not which includes so that is and fact for law.”). extension, existing or reversal argument modification for would hard-pressed to envision a scenario which an who seeks, in good faith, the reversal of governing law would be liable under the Act he or because she is nonetheless found to have “intended to merely harass or injure maliciously the opposite party.” DONOHUE, JUSTICE Dissenting This appeal presents a facial challenge1 the Dragonetti Act’s constitutionality as applied to attorneys, requires that we decide the legislation whether violates this Court’s exclusive authority 10(c) under V, Article Section the Penn- sylvania Constitution to regulate the of attorneys conduct practicing in the courts of this Commonwealth. The Majority proposes that we disavow claims such consti- exclusive This, tutional authority. me, is an incorrect and revolution- ary proposition. V, 10(e) Article Section our Constitution entrusts regulation of attorneys practicing this Commonwealth exclusively to Supreme Because Court. the Dragonetti Act constitutes an impermissible legislative encroachment into this Court’s domain, it is uncon- exclusive I stitutional. must therefore dissent.

The Majority contends the “notion” of this Court’s exclusive power under Article to regulate the conduct attorneys “must be great circum- considered with spection.” Majority Op. at now, A.3d at 490. Until Court has power considered its exclusive to regulate the lawyers conduct of aas mere “notion” requiring any “circum- spection,” but rather as an undeniable statement of constitu- tional fact. In adopting the Pennsylvania Rules of Disciplinary Enforcement, example, this Court declared that “it has inherent power and exclusive to supervise the (which attorneys who are its officers is reasserted in disagree I do not Majority's with the appeal characterization of this "partial” challenge, application facial as it is limited to of the statute n.13, (attorneys). a certain class of Majority Op. defendants n.13; Ayotte at 492 see also v. Planned Parenthood Northern 320, 328-329, Eng., New U.S. S.Ct. 163 L.Ed.2d 812 (2006) ("Generally speaking, confronting when a constitutional flaw in statute, try we to limit the problem. prefer, solution to We example, enjoin only statute, applications the unconstitutional of force.”) leaving applications while other 88 10(c) of Pennsylvania) of Article ofV the Constitution

Section promulgates in thereof these rules.” and furtherance Pa. law, repeated our have Similarly, 103. in decisional we R.D.E. acknowledged power govern our and ly “inherent exclusive this practice of in Com the conduct those law privileged Comm’n, 255, monwealth,” 491 Pa. Wajert v. Ethics 420 State 439, 442 no other of (1980), have insisted branch A.2d government every impose applicable our state “may duties in the Commonwealth.” practice admitted Maunus 1324, Comm’n, 592, 518 1325-26 Pa. 544 A.2d v. State Ethics Comm’n, (1988); also v. Pa. State 574 Pa. see Shaulis Ethics (2003); Stern, 123, 129-32 680, v. 549 833 A.2d Commonwealth (1997); 505, Laffey Court A.2d 568 v. Common Pa. 701 1084, 103, 503 468 A.2d 1085 Cty., Pa. Pleas Cumberland 358, 469 (1983); Comm’n, Pa. Kremer Ethics 503 A.2d v. State (1983); Lucarini, v. 593, 595 Counsel Disciplinary Office of 271, (1983); Richmond, 186, Beyers 187 v. 504 Pa. 472 A.2d (2007) 1082, Lloyd 1091 654, (plurality); 937 594 Pa. A.2d (1992) 513, 1193, (plurality); 529 Pa. 1197 Fishinger, A.2d 812, Com’n, 579, 569 Pa. v. State Ethics Gmerek Reversal) (“Cer- (2002) C.J.) Support (Saylor, (Opinion regard authority with tainly, responsibility this Court’s firmly grounded general practice regulation are: ]; supported by concept [Article 103; a function of the powers, inherent Pa.R.D.E. see guarded the assertion of powers, of separation doctrine exclusivity.”). 1968, did not Pennsylvania

Prior to Constitution include regarding rulemaking this au express statement Court’s an In re 42 thority. Pa.C.S. 527, 16 Splane, re Nevertheless, In A. 481

(1889), purported an 1887 down statute struck for admission application to establish standards rejected doing, any suggestion In we Pennsylvania bar. so Legislature constitutional regulate or the in this attorneys of law state. We in the that is anything there clear held that is constitution “[i]f Legislature controversy, possess it does beyond judicial powers. They lodged exclusively judiciary as government.” Id. department a co-ordinate explicit statement rulemaking 10(c) V, authority was Article of set forth Section the newly Pennsylvania Constitution, amended as provides follows: (c) The Supreme Court shall have to prescribe the power general governing practice, rules procedure and the conduct courts, of all of justices the peace and all officers serving process orders, or enforcing judgments or of decrees any justice court or peace, of the including provide the for assignment reassignment of of classes actions or among classes of the appeals several courts as the needs of justice shall for require, and admission the bar and law, the super- administration of all courts and of all of Branch, vision officers the Judicial if such are rules consistent Constitution with this neither abridge, en- nor large modify the of nor rights any litigant, substantive affect the right of the Assembly determine the General jurisdiction justice of or any court nor peace, suspend the nor alter or All statute limitation laws shall repose. suspended to the extent that they inconsistent with prescribed provisions. rules Notwithstanding under these section, provisions of this Assembly General bymay manner of provide testimony statute child victims child material criminal proceedings, witnesses includ- ing of videotaped depositions use or testimony closed-circuit television. 10(c).2 §V,

Pa. Const. art. The is of Majority, authority that our apparently, view provision under this regulate constitutional attorneys practicing exclusive, in this is not Commonwealth concurrently Assembly. rather but shared with the General A careful of this language examination demon- constitutional no begin, that there is basis a contention.3 To strates such adopted part Pennsylvania 2. Article was was amended in 2003 to Constitution 1968. It November add the concluding relating to sentence child witnesses. analysis, conducting analysis, employ we must unstrained "completely one that conforms to the framers intent and which of government, of the separation powers principle under judicial) (executive, legislative, or government of the no branch to another committed exclusively functions may exercise District, See, Philadelphia, v. School e.g., Wilson branch. 309, (1937); Waters, 308 Pa. Bailey 225, 195 A. interpreter ultimate Court, This as the 162 A. Constitution, responsibility has the Pennsylvania of the exclusively committed a matter has been whether “determine Stern, at 570 government.” of the to one branch Tucker, Sweeney v. (citing

(1977)). Constitution, Judiciary,” “The establishes of our

Article V delineates, It tri-partite government. judicial our branch composition the structure and among things, other judicial the Commonwealth’s unified various courts within judi for administration supervisory power The system. of by Court virtue Supreme in the cial is vested branch V, broadly titled “Judicial of Article 10 which Section 10(c) V, § 10. art. Section Pa. Const. Administration.” judicial authority upon confers all straightforwardly power prescribe the to shall have Supreme “The Court: of and the procedure general governing practice, rules authority explicitly of includes grant Id. This all courts...” of “supervision to the relating all rules power prescribe the to attorneys practicing Branch.” All all of the Judicial Id. officers Branch.” of the Judicial in are “officers this Commonwealth Zdrok, 41, See, e.g., Disciplinary 538 Pa. Counsel Office of 830, 645 A.2d 834 is manifested authority Supreme

The the breadth re- areas influence of three discrete by the identification 10(c): V, in Section Legislature Article served to the justice or jurisdiction court power determine repose, of limitation and right to set statutes peace, 505, Bruno, 101 ratifying voter.” In re 627 views of the reflects the 16, Rendell, (2014) 635, 598 Pa. 953 A.2d (quoting Jubelirer v. words, 514, (2008)). language controls In "the constitutional other sense, by interpreted popular as understood be its 'must ” (quoting Stilp they adoption.' v. Com- people voted on its Id. when (2006)). monwealth, 539, 905 A.2d 588 Pa. and the authority provide the manner of testimony child witnesses. Id. Given these specific, limited grants authority to the Legislature,4 no reading there is of Article V of our Constitution room leaves for an interpretation that this Court’s supervisory and rulemaking authority overlaps Legislature’s with the authority. respect

With to our rulemaking powers, this Court has previously recognized that “there is no simply substantial support the proposition grant authority V, Article is anything other than exclusive.”5 In Other 4. sections of grant Article V of the Constitution the General Assembly powers certain present additional relevant to analysis. example, For Assembly power General has the "to establish classes magisterial districts” constitutionally designated based on factors paid justices "fix the peace salaries in each class.” V, 7(b). § Pa. Const. art Assembly The General also has the courts, needed, "establish existing additional courts or divisions of any statutory abolish § court or division thereof.” Pa. 8. Const. art germane These point sections any legislative authority to the judicial within the branch was limited and defined the citizens. support 5. In Legislature’s of its contention for the authority concurrent engage judicial rulemaking, Majority refers to this Court's recognition evidence, Legislature may promulgate rules see Olivo, (2015), Commonwealth v. our and to suspend particular failure to procedural provision in the Post-Convic- Act, 9541-46, 9545(d)(1), §§ tion Relief specifically 42 Pa.C.S. section requires signed which expected certification as to each witness testify evidentiary hearing. Majority at an Op. at A.3d at Olivo, we constitutionality addressed the of 42 Pa.C.S. by its expert terms allows the testimony introduction of in certain cases involving sexual understanding offenses to "assist the trier of fact violence, dynamics of responses sexual victim to sexual violence impact during of sexual violence on being victims and after assaulted.” Id. Olivo dealt with Legislature may the distinct issue of whether the relating enact admissibility substantive laws of certain forms involving alleged evidence in particular trials violations of criminal such, statutes. As our decision present- there was unrelated issue here, namely ed authority whether this Court has the exclusive regulate attorneys practicing the conduct of law in this Commonwealth. my knowledge, litigant challenged To constitutionality a has never 9545(d)(1) of separation section powers of the PCRA under the 9545(d)(1) Regardless, suspend doctrine. our failure to section way V, PCRA in no diminishes the exclusive nature of our Article 10(c) rulemaking powers. Section There Majority be circumstances not identified where this eye legislative Court turned a blind Supreme encroachment into the V, 10(c). powers Court’s exclusive under Article Section This Court concluding, § at In so we 1703, 394 A.2d 448. Pa. C.S. re 42 expressly provides also emphasized that Section Legisla acts of suspend any authority with the Court rules, a that would power inconsistent with our ture Legislature a scheme in which “incongruous with power Id. rule-making authority.” “[A] exercised concurrent ,.. it specifically if has been legislature not adhere to the does Id. government.” to another branch co-equal entrusted Sutley, 474 A.2d (quoting Commonwealth (1977)). authori- recognized its exclusive consistently Court This in this attorneys practicing law regulate conduct ty former common Wajert, example, a Commonwealth. seeking a declaratory judgment action judge filed pleas 3(e) Act, 65 of the State Ethics P.S. that section declaration him a former member 403(e), inapplicable to was (3)(e) Wajert, prohibited Section judiciary. employees representing per- or public former officials governmental body with which son on matter before leaving the year or for one after she had been associated he of Professional Noting Responsibili- that the Code position. Id. precisely same promulgated by this Court addressed ty (3)(e) infringe- issue, “constitute^] we decided section Supreme on the Court's inherent and exclusive ment practice law this govern privileged the conduct those Commonwealth.” Id. at 442. enacted, adopted the Ethics Act was this Court

Long before enunciating Responsibility the Code Professional en- governing professional those standards In the in the in this gaged Commonwealth. Code, it enforcing that had made rules abundant- supervising attorney, the conduct of an includ- ly clear this Com- judge, the courts of ing a former before exclusively monwealth was matter this Court. enforcing exercising any sporadic should be dereliction faulted for 10(c). Falling of our short constitution- the dictates of Article occasion, however, relinquishment. result its al mandate on does not government authority tri-partite system We no to dilute the have by the of this Commonwealth. established citizens Id.; Maunus, see (“[T]his also at Court is the only governmental body regulate discipline entitled professional of attorneys. component class No other our government may state impose duties attor applicable every ney Commonwealth, admitted to practice may nor or discipline another admit to entity practice Commonwealth attorney”). an Stern,

Similarly, unanimously we held section 4117(b)(1) of Code, the Crimes which it a for a crime made lawyer to compensate give “anything of value to a non- lawyer recommending or securing employment by a Stern, client,” was at unconstitutional. 701 A.2d 569. Section 4117(b)(1) 7.2(c) was a “word-for-word restatement” Rule Conduct, our Rules Professional and had the effect of “criminaliz[ing] the conduct of their attorneys practice Id. at statute, In striking law.” 572-73. down the we not did question Legislature’s own exclusive establish power crimes, and classify Legislature determined that but could not, co-equal as a of government, promulgate branch a statute regulated area within authori exclusive ty, namely regulation attorney conduct. practice

We have seen fit to prohibit attorneys paying for referrals in the authority exercise our exclusive supervise attorneys. conduct a matter This involves solely Supreme V, entrusted Court under Article 10(c) of the hold, Section Pennsylvania Constitution. We 4117(b)(1) therefore, it unconstitutional because infringes upon this authority.

Id. authority Pursuant our exclusive V, Article under Section 10(c), this Court promulgated has Rules of Con- Professional duct, of Disciplinary Enforcement, Rules and Rules Civil Procedure, all of directly professional bear on the which of attorneys and the manner in they Any encroaching law. on statute our Article including our powers, power regulate professional attorneys, regarded attempt conduct of “must as vain to exercise a Legislature possess.” which it does Shigon, n.14 This re 462 Pa. a clear to “invalidate action duty legislative repug Daniels, Zemprelli to the constitution.” nant (1981). 1165, 1169 436 Assembly statutory cause of 1980, the General created a of civil proceedings,” commonly the use “wrongful

action for Act, certain proscribes to as the referred §§ tortious conduct. 42 Pa.C.S. 8351- See litigation types (or Act, attorney Pursuant the other person) 8354.6 in or part procurement, takes initiation continuation “who another” be liable under proceedings against of civil variety damages, including, circumstances for a described distress, alia, reputation, pecuniary harm to emotional inter § losses, fees, 42 attorney punitive damages. and Pa.C.S. must plaintiff underlying proceedings The show that were (or his or her favor and other terminated “in negligent or without grossly acted manner person) than other “primarily purpose cause” probable joinder adjudi or discovery, securing proper parties claim in 42 proceedings cation of the which based.” 8351(a). Act provides 8352 the Dragonetti Pa.C.S. attempt legislative process Majority’s 6. Given the characterize the law, superior adjudicative process making to this substantive 81-83, 491-93, Majority Op. history at 159 A.3d at behind the Dragonetti Act discussion. In to the fundamen deserves some addition Legislature problem that the has no to define miscon tal to act view, any by attorneys, my Legislature deference because duct gathering promulgating legislation fact is of its deliberate before entire here, Legislature hastily ly misplaced reportedly as the acted to enact single aggrieved litigant (Joseph Drago- this statute—at the netti). of a behest 70, Journal, Sess., Reg. Assembly, See Pa. L. 164th General No. 19, (Nov. 1980) (characterizing enacting process of 2634-35 minute,” (state despite urgency) statute as rushed and “last a lack Rep. Spitz). Dragonetti apparently ment a "one-man Mr. led cru passage. (stating to ensure the See id. that one sade” Act’s individual (statement legislation”) moving Rep. "has been the factor behind Kukovich). successful, crusade, ultimately His on was focused abolish ing English requirement recog the "old Court had rule”—a that this nized, years, for more than hundred as an essential element of the process, law cause common of action malicious use of discussed in Co., Drug Breyer more detail Publix Co. v. Ice Cream 347 Pa. infra. 413, Co., (1943); Johnson v. Title & Trust 415 Land Bank (1938); McKinney, 198 A. Farmers' Bank v. Watts & Serg. that an attorney defendant probable cause in the underly ing if proceeding he or she “reasonably believes in the exis tence of the facts upon claim based, either, reasonably believes that under those facts the claim may be valid under existing developing law” or believes “in good faith” that his or her action was “not to merely intended harass or maliciously injure the opposite party.” Pa.C.S § 8352(1),(3).7

The Act indisputably notoriously regulates the conduct of attorneys engaged of law. This conclusion contested, is not even by the Majority, which acknowledges that the Dragonetti Act disapproba “embodies tion of a specified range of conduct by attorneys.” Majority Op. 81, 159 A.3d at 491. This Court has prescribed Rules Professional Conduct, Rules Disciplinary Enforcement and Rules of Civil Procedure that specifically precisely address same conduct Legislature the attempts regulate under the Dragonetti Act. Rule 3.1 of the Rules of Professional Conduct provides that an attorney not bring “shall or a proceed defend or ing, assert or controvert an therein, issue unless there is a basis law and fact for doing frivolous, so that is not a good includes faith argument extension, for an modification or of reversal existing law.” Pa.R.P.C 3.1. Rule 208 of the of Rules Disciplinary Enforcement procedures, sets forth the from investigation to final for disposition, enforcing violations of the Rules of Professional 3.1), Conduct (including Pa.R.P.C and Rule 204 lists the of types that discipline may imposed be for violations, said from permanent to private disbarment informal admonition. Pa.R.D.E. 208.8 Rule 1023.1 of the probable 7. Under Section a applies different cause standard rely 8352(2). clients who on the advice of counsel. 42 Pa.C.S. 8. Pursuant to our powers, Article we have established comprehensive system disciplining attorneys for which functions effec- tively any by Legislature. absent interference the disciplinary Our system comprised Disciplinary is of up appointed, Board made of uncompensated attorneys non-attorneys Hearing and and Committees up appointed, made of uncompensated attorneys. Acceptance of an appointment as a Disciplinary Pennsylva- member of the Board of the Supreme nia hearing requires Court or as a officer hundreds of hours uncompensated legal of profession. service the The work Board’s signing, filing, that the provides Procedure Rules Civil constitutes a advocating any or later document submitting being presented the is not document certification or delay; harassment the such as purpose, improper therein are claims, legal contentions set forth defense argument or a nonfrivolous existing by law warranted or existing or extension, reversal modification law; allegations have of new factual the establishment and that evidentiary support; or will have evidentiary support reasonably on a or are evidentiary support have based denials 1023.1(c). Rule Pa.R.C.P. belief. lack information 1023.1(d) for viola imposed that sanctions provides (c). 1023.1(d). Pa.R.C.P. tions of subsection ruling support its opinion In its written unconstitutional, the trial court discussed Act is Dragonetti specific inconsistences detail between some 8/27/2015, 5-6. In Opinion, at rules. Trial Court Act these precise inconsisten view, necessary identify it is not my fact that the highlight cies, only an effort serves as such on this Court’s have encroached should never Legislature Stern, regulate this area. authority exclusive regulate purports The Court, to Article attorneys pursuant this only application of the Rules of Professional Conduct dedicated Court, polestar for the which serve as promulgated by law, integrity of the courts of clients and the protection Commonwealth, Pennsylvania Supreme Court maintains Board The Disciplinary Counsel, both Secretary Disciplinary Office of an Office of the Attorneys prac- paid admitted to range members. employing staff disciplinary operation our Commonwealth fund tice in our imposed by Pennsylvania Supreme through a fee structure system operate authority. The under our exclusive of entities All Court. these system operates disciplinary is evi- in which our manner dedicated that, alone, Disciplinary of the Office by fact denced 3,900 attorney complaints regarding conduct and received Counsel 3,667 discipline. Each of 240 resulted complaints, resolved justices meticulously by the of discipline reviewed is proposed order Report, Disciplinary The it is See Annual before entered. this Court 2016, http:// Pennsylvania, Supreme available at Court Board (noting that a www.padisciplinaryboard.org/about/annualreports.php multiple involving single may attorney consist a disciplinary matter complaints). Pennsylvania Constitution, empow is regulate.9 ered to In so far it applies is to attorneys, Dragonetti Act is unconstitutional.

A finding that the Dragonetti isAct unconstitutional as applied to lawyers would not deprive litigants of a remedy in litigation face tortious I emphasize conduct.10 that a finding unconstitutionality in no way immunizes attorneys from civil suit. As true was the Dragonetti Act, before litigants may bring against civil suits attorneys asserting claims for of process malicious use or abuse of process, common two causes of action this developed Court in recogni- blessed tion of the for a remedy injuries need for legal by inflicted attorneys aberrant under our watch.

Long before the General Assembly enacted the Dragonetti Act, this recognized a tort for the malicious use of process which could brought against be an attorney. See Bank (Pa. Farmers’ v. McKinney, 214, & Serg. Watts 1838) (stating that when “practitioners at process law” used “maliciously and design oppress,” with they “could be sued by the party aggrieved upon ... general of policy principles justice”). To maintain an action for malicious use of process law, common (1) plaintiff to prove had that process against defendant initiated him legal in the underlying (2) action, (3) without probable malice, cause and with the action against him or her was unsuccessful. See Publix Drug Co. Breyer Co., Ice Cream 346, 347 Pa. 413, 32 A.2d Majority’s attempt 9. The space carve out constitutional for the being virtue it substantive and remedial nature unavailing. nothing mitigate These do traits the fact that it sets discipline governing forth rules of every conduct and each and admitted to the courts I Commonwealth. do not laws, question Legislature's authority general to create substantive ly, Stern, but such laws must withstand constitutional muster. See herein, 701 A.2d at legislative 572. As described enactment regulates attorneys, regardless (as the conduct of of its substantive features, opposed procedural) is unconstitutional. 10. The Act could still be used non-lawyer hold liable wrongful proceedings. use of § civil See 1 Pa.C.S. Pursuant Pa.C.S. applied "a statute invalid as to a certain class Com., Sch., generally Dep't and still be valid.” Ed. v. First 705 n.11 Co., 329 Pa. Bank & Trust (1943); Title Johnson v. Land (1938). prove The also had 23, plaintiff A. 241, 198 person his or interference with a seizure there had been element, latter Id. This underlying proceeding. in the property as the century England, known to thirteenth dating back Journal, 164th Assem Pa. L. General rule.” See English “old (Nov. 1980) (statement of Sess., 19, 2634-35 Reg. bly, No. Rep. Spencer). for the at common law can also be sued

An Feege, process. of of McGee v. tort abuse separate and distinct (1987); generally see G. 247, 535 A.2d 517 Pa. Tintner, Wrongful Use Heim, & R. Bochetto, D. J. O’Connell (1st Pennsylvania in Proceedings and Related Torts Civil of 2016) the two distinguishing between (citing cases and ed. torts). can process for abuse of An action common law use improper for “the person a liable brought hold McGee, 1023. 535 A.2d at it has been issued.” process after suit, suit process process a malicious use abuse Unlike “for some unlawful employed alleges process that civil was it is the law not intended object, purpose Id.; Mayer words, of it.” see also effect; perversion other need not Walter, process Abuse 64 Pa. v. require does proceedings initiation relate action underlying or that the probable lack of cause either a Moreover, the “old favor. Id. plaintiffs resolved was process. an element abuse rule” was never English McGee, 535 case, argue could convince litigant

In the future proper rule,” English aspect the “old this Court abolish objectionable when he found common law that Mr. supra, note 6. We Legislature. to the See entreaty took his of the common law is not a rule “[t]here explained have from some earlier rule that has not evolved today force instances, suddenly law, in some more gradually common Flex, Inc., Omega Tincher others.” (2014). Moreover, the common law is one developing 328, 353 our (noting id. at 352 powers. equitable of this Court’s common forms action modify the “authority to involved”). right When the Dragonetti Act enacted, was of our majority sister already states had done away with the English rule,” “old (Second) and section 674 of Restatement (1977) Torts reflects this trend while also eliminating the common law requirement Bochetto, show malice. See G. D. Heim, J. Tintner, O’Connell & R. Wrongful Use Civil Proceedings and Related Pennsylvania, 1-1, Torts in at 5 (1st 2016). have, ed. We in the past, been by logic convinced and the justice interests of to adopt a section of the Restate ment that differs from our common Tincher, law. See at 354 (cautioning that “[a]s with other common rules, the normative principles of ‘adopted’ section a restate ment properly case”). against tested the facts each Any change in common law tort claims imposing liability on attor neys for the manner in which they practice law, including bringing lawsuits, and litigating must come from this Court through the exercise of equitable power our develop common law. This Court is not only uniquely constitutionally qualified engage any such process transformative (given our expertise developed as a of our supervisory result authori inty realm), we are constitutionally exclusive branch of government empowered to do so.

Enactment of the Dragonetti Act was an impermissible intrusion into this Court’s province exclusive to regulate the conduct of attorneys in law this Common- I wealth. would therefore that it is rule unconstitutional and applied unenforceable as to lawyers. I Accordingly, dissent. notes 8352(3) (discussing 42 Pa.C.S. attorneys, see reference of an “attor- good-faith belief cause terms probable legal them in record”), regulate plainly purports ney initi- endeavors, “tak[ing] part procurement, including against another.” Id. proceedings or continuation of civil ation from those distinguishes the scenario § further Appellee Gmerek, Shaulis, such as decisions under consideration Justices, judges well as other and commenta- 6. We note several decisions, tors, with such as expressed substantial discomfort have having policy judgements legislative Sutley, broad-scale, evaluated social which have mainly concern for impacts in terms of a substantive See, Leadership Sch. v. Chester judicial power. e.g., Pa. Charter Friends of 463-64, Appeals, Cnty. Bd. Assessment Todd, J.). J., (2014) concurring, joined by (Saylor, Beyers, where at least some Justices did not the core regard legal representation functions of as necessarily being at stake. See Brief 34 n.4 (discussing author’s responsive opinions Gmerek, Shaulis, Beyers). Appellee also contrasts the monetary sanctions authorized under the civil procedural rules—“an pay order to a penalty court, or, into if imposed on motion and warranted effec- deterrence, tive directing order payment to the movant of some or all of the attorneys’ reasonable fees and other ex- penses violation,” incurred as a direct result of the Pa.R.C.P. (in)—with 1023.4(a)(2)(ii), No. the Dragonetti Act’s authoriza- tion of damages for harm to reputation and distress, emotional punitive as well as damages. 8358(2), (5), Pa.C.S. Moreover, Appellee comfort in takes the fact that a judge what, if any, determines to impose sanctions under Rule 1023.4, while expressing apprehension claims

Notes

notes majority “may bear closer review” a future case—specifically, whether an could be under the Act for liable award dam- punitive ages, and an attorney whether be could despite good liable faith argument that existing law should changed. Majority Opinion 80-82, at 491-92. Because the present challenge concerns a claim that attorneys have gener-

Case Details

Case Name: Villani v. Seibert Appeal of: Seibert

Court Name: Supreme Court of Pennsylvania

Date Published: Apr 26, 2017

Citation: 159 A.3d 478

Docket Number: Villani v. Seibert Appeal of: Seibert - No. 66 MAP 2016

Court Abbreviation: Pa.