Lead Opinion
In this interlocutory direct appeal by permission, we consider whether a legislative enactment recognizing a cause of action for wrongful use of civil proceedings infringes upon this Court’s constitutionally prescribed power to regulate the practice of law, insofar as such wrongful-use actions may be advanced against attorneys.
The underlying litigation arose out of a land-ownership dispute between Jean Louse Villani, who was a co-plaintiff with her late husband until his death, and defendants John Seibert, Jr. and his mother, Mary Seibert (“Appellants”). Appellants prevailed in both an initial quiet title action and ensuing ejectment proceedings. During the course of this dispute, the Viliams were represented by Thomas D. Schneider, Esquire (“Appellee”).
Subsequently, Appellants notified Mrs. Villani and Appellee that they intended to pursue a lawsuit for wrongful use of civil proceedings based upon Mrs. Villani’s and Appellee’s invocation of the judicial process to raise purportedly groundless claims. In November 2012, Mrs. Villani countered by commencing her own action seeking a judicial declaration vindicating her position that she did nothing wrong and bore no liability to Appellants. Appellants proceeded, as they had advised that they would do, to file a complaint naming Ms. Villani and Appellee as defendants. The declaratory judgment complaint having been lodged in Chester County, but the ensuing wrongful-use action being filed
Appellee interposed preliminary objections to Appellants’ complaint. As is relevant here, he contended that the statutory scheme embodying a cause of action for wrongful use of civil proceedings, commonly referred to as the "Dragonetti Act,”
Centrally, Appellee portrayed the Dragonetti Act as an unconstitutional incursion by the General Assembly upon the Court’s power under Article V, Section 10(c). Given this asserted defect, he claimed that attorneys should be immunized from any liability under these statutory provisions. In support, Appellee referenced a series of cases in which this Court had stricken legislative enactments on the basis that those statutes intruded on the Court’s constitutionally prescribed powers. See Memorandum of Law in Support of Preliminary Objections in Seibert v. Villani (“Defendant’s Memorandum”), No. 2012-09795 (C.P. Chester), at 7-9 (citing Beyers v. Richmond,
Appellee also observed that, in defining the contours of liability for wrongful use of civil proceedings, the Legislature fashioned a “probable cause” standard that permits a lawyer acting in good faith to proceed with litigation, where he or she “reasonably believes that under [the supporting] facts the claim may be valid under the existing or developing law.” 42 Pa.C.S. § 8352(1). According to Appellee, however, such prescription clashes with the Pennsylvania Rules of Professional Conduct promulgated by this Court, which authorize attorneys to advance good faith arguments for “extension, modification or reversal of existing law.” Pa.R.P.C. § 3.1 (emphasis added). It was his position that the asserted
Furthermore, Appellee took issue with the Dragonetti Act’s incorporation of subjective standards. See, e.g., 42 Pa.C.S. § 8352(3) (defining another contour of “probable cause” as encompassing a good-faith belief that litigation “is not intended to merely harass or maliciously injure the opposite party”). He contrasted such subjectivity with the more objective litmus established under Rule of Professional Conduct 3.1. Pa.R.P.C. 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” (emphasis added)). Appellee opined that the statute’s focus on subjective motivation “means, as a practical matter, that summary disposition is exceedingly difficult.” Defendant’s Memorandum at 12. He concluded that, “[o]nce again, the legislature violates Article V, section 10(c) by purporting to regulate attorney conduct through different standards than those selected by the Supreme Court.” Id.
In a similar line of argument, Appellee claimed that the Act’s prescription for monetary damages should be viewed as a further intrusion into this Court’s exclusive province. In this regard, Appellee explained that the Rules of Disciplinary Enforcement, also promulgated by this Court, establish the procedures for addressing violations of the Rules of Professional Conduct, encompassing all stages from the investigation of an allegation of inappropriate conduct to the final disposition of a complaint by this Court, as well as delineating all available forms of discipline. See Pa.R.D.E. 204-208. Appellee commented that: “Nowhere do the disciplinary rules permit an opposing party to seek monetary damages from an attorney.” Defendant’s Memorandum at 12. According to Appellee, the only tribunal authorized to address any and all grievances against attorneys is the Disciplinary Board, which functions under the Supreme Court’s oversight. See id. (citing Pa. R.D.E. 205-207). “In short,” he proclaimed, “the concept of a lawsuit against an attorney for money damages based on his conduct in a civil case is repugnant to Article V, section 10(c).” Defendant’s Memorandum at 13; accord id. (“It is for the judiciary to sanction attorneys for bringing an action that is purportedly baseless or for engaging in other inappropriate conduct.”).
In response, Appellants defended the Dragonetti Act as substantive remedial legislation designed, for the benefit of victims, to redress wrongs committed by those pursuing frivolous litigation. Appellants explained that it has long been the law of the Commonwealth that a lawyer may be liable for tortious conduct committed in his professional capacity. See Plaintiffs’ Memorandum of Law in Opposition to Preliminary Objections in Seibert, No. 2012-09795 (“Plaintiffs Memorandum”), at 5 (citing Adelman v. Rosenbaum,
Appellants further offered that the Dragonetti Act was fashioned after Section 674 of the Second Restatement of Torts, which indicates as follows:
One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if
(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and
(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.
Restatement (Second) Of Torts § 674 (1977). Moreover, Appellants alluded to comment d to Section 674, which provides:
If [an] attorney acts without probable cause for belief in the possibility that [a] claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.
Id., cmt. d.
Appellants noted that the Superior Court had repeatedly cited and adopted Section 674 and referenced comment d relative to actions brought against attorneys, see Plaintiffs’ Memorandum at 6 (citing Gentzler v. Atlee,
Appellants also differed with Appellee’s depiction of the legislative purpose underlying the Act as being to regulate the practice of law. Rather, they contended
According to Appellants’ position as stated from the outset, the Dragonetti Act does not conflict with Rule of Professional Conduct 3.1, which was never intended to govern civil liability or otherwise grant or curtail remedies to third parties harmed by an attorney’s tortious conduct. See Plaintiffs’ Memorandum at 7-8 (citing the Scope provision from the Rules of Professional Conduct for the propositions that “violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached” and that the rules “are not designed to be a basis for civil liability”). Along these lines, Appellants also referenced Maritrans GP Inc. v. Pepper, Hamilton & Scheetz,
The common pleas court granted Appellee’s preliminary objections grounded on his constitutional challenge to the Dragonetti Act, for essentially the reasons that he had advanced. Citing to decisions that Appellee had referenced in which this Court has suspended statutes per its Article V, Section 10(c) powers, the county court observed that the “Supreme Court has long asserted its authority over the conduct of attorneys.” Villani, No. 2012-09795, op. at 4 n.1 (C.P. Chester Aug. 27, 2015). The court further reasoned that the “Dragonetti Act goes to the heart of what an attorney is trained and called upon to do, exercise legal judgment about the existence of probable cause under the law as it presently exists or is developing.” Id. at 5 n.1. In this regard, the court of common pleas credited the position that the Act conflicts with Rule of Professional Conduct 3.1 by adopting a more restrictive standard and in grounding liability upon subjective beliefs. See id. (“[T]he legislature violates Art. V, § 10(c) of the Pennsylvania Constitution by attempting to regulate attorney conduct through standards other than those selected by the Supreme Court.”). Additionally, the court agreed with Appellee that the imposition of monetary damages under the Act, see 42 Pa.C.S. § 8358, represented a further transgression, since no disciplinary rule promulgated by this Court so provides. The court of common pleas concluded, again, essentially echoing Appellee’s arguments:
The only tribunal authorized by the Supreme Court to address grievances against an attorney is the Disciplinary Board. Pa.R.D.E. 205. The concept of a lawsuit against an attorney for money damages based on how a civil case is conducted is repugnant to the system of discipline established by the SupremeCourt pursuant to Art. V, § 10(c) of the Pennsylvania Constitution.
* ⅜ *
For the reasons stated, the Dragonetti Act is a legislative attempt to intrude upon the Supreme Court’s exclusive authority to regulate the conduct of attorneys in the practice of law. It is for the judiciary to sanction lawyers for bringing actions that are baseless or for otherwise engaging in inappropriate conduct. The Dragonetti Act, as it pertains to lawyers, is unconstitutional and unenforceable.
Id. at 6-7 n.1.
Appellants sought permission to appeal on an interlocutory basis,
Presently, Appellants maintain their core contention that the Dragonetti Act constitutes a substantive remedial law designed to provide an essential remedy to third parties harmed by abusive litigation, and not a misguided effort by the General Assembly to usurp this Court’s regulatory power over attorneys.
Appellants supplement this position with a number of observations and arguments that they did not specifically present to the county court. In addition to referencing cases from the Superior Court, Appellants relate that this Court has acknowledged the Dragonetti Act on several occasions. See Brief for Appellants at 23 (citing Stone Crushed P’ship v. Kassab Archbold Jackson & O’Brien,
Next, Appellants explain that this Court previously considered the constitutionality of a segment of the Dragonetti Act, at least, when it suspended its provision for attorney certifications and civil penalties for violations. See Pa.R.C.P. No. 1023.1(e) (reflecting the suspension of 42 Pa.C.S. § 8355). According to Appellants, by suspending Section 8355, while leaving intact the remaining sections of the Act, this Court “tacitly endorsed Sections 8351 through 8354 as constitutional.” Brief for Appellants at 28. Appellants also highlight the explanatory note to Rule 1023.1, referencing the Act as providing “additional relief from dilatory or frivolous proceedings.” Pa.R.C.P. No. 1023.1, Note; see Brief for Appellants at 29 (“The explanatory comment to Rule of Civil Procedure
Appellants additionally argue that Rule 1023.1 sanctions do not adequately compensate the victims of frivolous claims. In this regard, Appellants quote Werner v. Plater-Zyberk,
[The Dragonetti Act defendant] argue[s] that [the plaintiffs] interests would be vindicated adequately via sanctions imposed by the federal district court. However, the damages [the plaintiff] seeks are distinct from the various types of penalties that may be imposed by a court as sanctions against a tortfeasor. Sanctions, including monetary sanctions paid to an adversary in the form of fees or costs, address the interests of the court and not those of the individual. A litigant cannot rely on a sanction motion to seek compensation for every injury that the sanctionable conduct produces. Rather, an injured party must request tort damages to protect his personal interest in being free from unreasonable interference with his person and property.
* * *
The main objective of Rule 11 is not to reward parties who are victimized by litigation; it is to deter baseless filings and curb abuses. While imposing monetary sanctions under Rule 11 may confer a financial benefit on a victimized litigant, this is merely an incidental effect on the substantive rights thereby implicated. Simply put, Rule 11 sanctions cannot include consequential damages and thus are not a substitute for tort damages. In light of the foregoing, we conclude that [the plaintiffs] right to seek tort damages for his alleged injuries exists independently of, and in addition to, any rights he might possess to petition for sanctions from the federal district court ....
Id. at 784-85 (citations omitted); accord Perelman v. Perelman,
Appellants further take issue with the distinction drawn by the common pleas court and Appellee between the Dragonetti Act’s probable cause requirement and the standard set forth in Rule of Professional Conduct 3.1. In this regard, Appellants again cite McNeil as clarifying that “the term ‘probable cause’ is sufficiently well defined and understood in Pennsylvania law to ensure an objective, unified standard ....” McNeil,
In terms of the subjective-objective distinction drawn by the county court and Appellee, Appellants asserts that this rests on a misinterpretation of Rule of Professional Conduct 3.1, which recognizes the necessity of “good faith” in argumentation. Pa.R.P.C. 3.1. Appellants also posit:
Whether charged with a violation of [Rule] 3.1 or a violation of the Dragonetti Act, an attorney would defend with the same evidence upon which the attorneybased his or her good faith belief that there was a basis in law and fact to bring or defend the underlying civil proceeding. In either case, the finder of fact would be charged with determining whether the lawyer’s belief was objectively reasonable, ie., whether the lawyer had acted in good faith by relying upon creditable facts and a non-frivolous legal argument for purposes of probable cause to pursue a claim.
Brief for Appellants at 35. In this line of argument, Appellants note that the governing standards, as they have developed in the decisional law, are highly deferential relative to attorney judgment. See, e.g., Perelman,
Appellants also relate that there are other legislative remedial schemes that operate to authorize compensation to victims of wrongful, injurious acts committed by attorneys. For example, Appellants reference the Loan Interest and Protection Law,
Finally, Appellants explain that this Court previously has rejected constitutional challenges to other statutes that impose ethical and professional requirements upon groups that include attorneys. See Maunus v. State Ethics Comm’n,
In support of Appellants, amicus curiae Nicholas 0. Brown—who is a plaintiff in a pending Dragonetti action lodged against an attorney-defendant—invokes Article I, Section 11 of the Pennsylvania Constitution. See Pa. Const. art. I, § 11 "(“All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law .... ”). Amicus views the form of lawyer immunity envisioned by
Appellee, for his part, opens his brief with an extensive array of waiver-based arguments, mainly contending that, since Appellants failed to present most of the arguments advanced in their appellate brief during the course of the proceedings in the common pleas court, those are unavailable for this Court’s present review. For example, Appellee asserts that Appellants failed to reference Rules of Disciplinary Enforcement 204 though 208 or to provide a developed argument with regard to Rule of Professional Conduct 3,1. Indeed, according to Appellee’s parsimonious view of what was presented to the county court, the sole argument that Appellants preserved for appellate review “is the irrelevant and inaccurate claim that the Dragonetti Act ‘recodified’ Section 674 of the Restatement (Second) of Torts.” Brief for Appellee at 8 n.1.
On the merits, Appellee reiterates the arguments that prevailed in the common pleas court, while highlighting some of this Court’s more doctrinaire expressions of the principle of separation of powers. See, e.g., Commonwealth v. Sutley,
To the list of the seven cases which he presented to the common pleas court, Appellee adds the opinion in support of affirmance in Lloyd v. Fishinger,
In this respect, Appellee notes that the Act makes specific reference to attorneys, see 42 Pa.C.S. 8352(3) (discussing probable cause in terms of the good-faith belief of an “attorney of record”), and plainly purports to regulate them in legal endeavors, including “tak[ing] part in the procurement, initiation or continuation of civil proceedings against another.” Id. § 8351. Appellee further distinguishes the scenario from those under consideration in decisions such as Gmerek, Shaulis, and Beyers, where at least some Justices did not regard the core functions of legal representation as necessarily being at stake. See Brief for Appellee at 34 n.4 (discussing this author’s responsive opinions in Gmerek, Shaulis, and Beyers).
In terms of the argument that the Dragonetti Act is substantive and remedial in nature, Appellee points to the Stone Crushed Partnership decision, in which this Court indicated that the enactment “punishes” an attorney who brings a wrongful civil action. Stone Crushed P’ship,
Additionally, Appellee undertakes to provide some assurance that other remedies will be available to injured litigants, upon this Court’s disapproval of the Dragonetti Act. For example, Appellee explains that plaintiffs will retain the ability to sue laypersons under the Act, as well as laypersons and attorneys for the common law tort of abuse of process. In the latter regard, Appellee accepts that attorneys are properly subject to substantive common law lawmaking by this Court, in spite of his position that the Legislature cannot supplant the common law pertaining to lawyers, as is otherwise its prerogative in the broader sphere. See generally Sternlicht v. Sternlicht,
With respect to the issues raised by Appellants’ amicus, Appellee explains, inter alia, that amici cannot raise issues that have not been preserved by the litigants. See, e.g., Hosp. & Healthsystem Ass’n of Pa. v. DPW,
Appellee’s merits position is supported by amici the Professional Liability Defense
I. Waiver
In response to Appellee’s claim that Appellants have preserved solely an argument that the Dragonetti Act aligns with Section 674 of the Second Restatement of Torts, and thus, that they have waived any and all defenses of the Act’s constitutionality, we disagree. While plainly Appellants’ advocacy could have been sharper from the outset, we believe that a fair reading of their presentation to the common pleas court encompasses the position that the Act should be regarded as a broadly applicable substantive, remedial scheme within the province of the General Assembly, and not as a legislative regime targeted to lawyer regulation.
Considered as such, it was never necessary for Appellants, for example, to discuss the specifics of the Rules of Disciplinary Procedure. In this regard Appellants’ defense of the statute does not depend on the particulars of Rule 204’s prescription for eight forms of discipline; Rule 205’s delineation of the structure, power, and duties of the Disciplinary Board; Rule 206’s provision for hearing committees and special masters; Rule 207’s designation of the power and duties of Disciplinary Counsel; or Rule 208’s enumeration of the procedures, including informal proceedings, formal hearings, review and action by the Disciplinary Board and the Supreme Court, and emergency temporary suspension orders. See Pa. R.D.E. 204-208. Simply put, Appellants have not disputed the fact that this Court has implemented a comprehensive regulatory regime governing the professional conduct of lawyers; rather, they merely have maintained that the Act should not be regarded as transgressing the Court’s authority in such arena.
For these reasons, we believe that this appeal can be fairly resolved by this Court based on the core arguments presented, and without a lengthy digression into the extensive waiver discussion presented by Appellee. Moreover, in the common pleas court and before this Court upon our de novo and plenary review, Appellee bore—and bears—the heavy burden of establishing that a duly-enacted and presumptively valid statute clearly and palpably violates the Constitution, with any doubts being resolved in favor of the statute’s validity. See, e.g., Payne v. DOC,
II. Merits
We begin with the notion that the powers accorded to this Court under Article V, Section 10(c) are exclusive. There are several reasons why this assertion must be considered with great circumspection.
For example, this Court promulgated and maintains a set of evidence rules per its rulemaking authority under Article V, Section 10(c), see Pa.R.E. 101(b), while also expressly recognizing that some of the law of evidence is appropriately governed by statute. See id., comment; see also Commonwealth v. Olivo,
The Court also has acknowledged that many subjects of legislation and/or judicial rulemaking possess both attributes implicating this Court’s rulemaking power and substantive-law characteristics which are suited to the province of the political branch. See Olivo,
Accordingly, in the multitude of mixed-faceted lawmaking and rulemaking ventures, some discerning judgment obviously must be brought to bear to sort through the pervading power questions. Indeed, even the most inflexible of this Court’s decisions historically have recognized that the separation of powers doctrine contemplates “a degree of interdependence and reciprocity between the various branches.” Sutley,
With respect to the Dragonetti Act, notwithstanding the dictum from Stone Crushed Partnership, we agree with Appellants that the statute manifests a legislative purpose to compensate victims of frivolous and abusive litigation and, therefore, has a strong substantive, remedial thrust.
There is no question that the enactment has a punitive dynamic, since it authorizes the award of punitive damages “according to law,” 42 Pa.C.S. § 8353(6), and that it embodies disapprobation of a specified range of conduct by attorneys. Both of these aspects may bear closer review in future cases that are framed more narrowly. For example, there may be an argument to be made that punitive damages awards should not be available against attorney-defendants in Dragonetti cases, given that this Court has specifically provided for sanctions to deter violations. See Pa.R.C.P. No. 1023.4(a)(1). And it may also be that, in an appropriate case, the Court
There is no directed challenge to the punitive damages aspect here, however, and no assertion that Appellee had been vying, in good faith, for a reversal of precedent when the underlying land-ownership litigation was commenced and pursued. Rather, a far broader lawyer-immunity focus has been engrafted onto this case.
In this regard, this Court frequently acknowledges the Legislature’s superior resources and institutional prerogative in making social policy judgments upon a developed analysis. See generally Seebold v. Prison Health Servs., Inc.,
Consistent with these observations, we find that the policy arguments of Appellee and his amici are better presented to the Legislature. While this Court clearly retains a residual, common law role in substantive lawmaking, the Court cedes such power when the Assembly chooses to exercise its own constitutional prerogative to enact substantive legislation. See, e.g., Sternlicht,
In conclusion, in our considered judgment, Appellee has failed to establish that the Dragonetti Act clearly and palpably violates the Pennsylvania Constitution, or that this Court should per se immunize attorneys, as attorneys, from the application of the substantive tort principles promulgated
The order of the common pleas court is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Justices Baer and Todd file concurring opinions.
Notes
. Act of Dec. 19, 1980, P.L. 1296, No. 232 (codified at 42 Pa.C.S. §§ 8351-8354) (the "Dragonetti Act” or the "Act”).
Notably, Appellants had not specifically referenced the Dragonetti Act in their complaint. As the proceedings have developed, however, it has become clear that Appellants are relying upon the enactment.
. The record reflects that Appellee served a copy of the preliminary objections upon the Attorney General of Pennsylvania, as is required in instances in which "an Act of Assembly is alleged to be unconstitutional” by a civil litigant. Pa.R.C.P. No. 235. The Attorney General, however, apparently did not seek to intervene as a party or otherwise make a presentation in defense of the legislative enactment, as would be expected ordinarily. See 71 P.S. § 732-204(a)(3) ("It shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.”).
. Parenthetically, Pennsylvania courts recognize a distinction between the common law torts of abuse of process and malicious use of process. See Dietrich Indus.,
. The claim against Mrs. Villani remained to be resolved in the common pleas court.
. Act of Jan. 30, 1974, P.L. 13, No. 6 (as amended 41 P.S. §§ 101-605).
. We note that several Justices, as well as other judges and commentators, have expressed substantial discomfort with decisions, such as Sutley, which have evaluated legislative social policy judgements having broad-scale, substantive impacts mainly in terms of a concern for judicial power. See, e.g., Friends of Pa. Leadership Charter Sch. v. Chester Cnty. Bd. of Assessment Appeals,
. Appellee has applied for leave to file a surrebuttal brief, the consideration of which was deferred to the merits stage of our review, That motion is now granted, albeit that the discrete discussion of waiver precepts contained in the brief is not of great relevance to our decision here. See infra Part I.
. In any event, we do not find it necessary, in our own merits analysis, to rely on many of the minor premises within Appellants’ presentation. For example, we do not see the line of Appellants’ "tacit acceptance” arguments as being particularly useful. Cf. Maloney v. Valley Med. Facilities, Inc.,
Parenthetically, in terms of such minor premises, we also observe that the applicable Rule of Appellate Procedure is framed in terms of "issue” preservation. See Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). See generally United States v. Joseph,
The appropriate degree of such latitude afforded to appellants to alter arguments can be most sharply determined in cases—unlike this one— in which the Court disagrees with a main thrust of the presentation that was rejected in the prior reviewing court or courts, albeit that this Court might agree with a supplemental argument offered on appeal.
. Notably, this Court has acted to suspend certain procedural provisions of this statute, see 42 Pa.C.S. § 9545(d)(2) (suspended), but it has not suspended others, such as the requirement for a signed certification as to each intended witness, see id. § 9545(d)(1). These sorts of differences, implemented by predecessor Justices, are, to the present complement of the Court, difficult to explain.
. Such prescription provides context to the explicit boundaries of the Rules of Professional Conduct. See Pa.R.P.C., Scope ("Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached” and that the rules "are not designed to be a basis for civil liability"). See generally Maritrans,
. Notably, this Court has previously recognized the Legislature’s desire to supplant the substantive common law remedial scheme. See, e.g., Matter of Larsen,
. Appellee references an opinion in support of affirmance from the Gmerek case as reflecting that the significance of broad scale application is limited to a particular factual paradigm. See Gmerek,
. Cf. Gillian E. Metzger, Facial Challenges and Federalism, 105 Colum. L. Rev. 873, 881 (2005) (observing that a litigant makes “a partial facial challenge” by arguing that "a statute is unconstitutional in a particular range of applications, even if not unconstitutional in all or most”).
. In terms of the arguments pertaining to the legislative decision to adjust the liability standard to subsume gross negligence, this Court’s rules are not intended as a safe harbor for attorneys who cause harm to others via such elevated heedlessness. Similarly, while the Rules of Professional Conduct may describe lawyers' ethical obligations in a more objective fashion than is reflected in the Dragonetti Act's liability threshold, the interests of justice do not favor immunizing conduct undertaken with a subjectively wrongful state of mind. Indeed, the common law liability standard of malice certainly has subjective attributes.
. In light of our disposition, we need not address the Remedies Clause issue raised by Appellants' amicus, which, in any event, had not been presented by Appellants.
Concurrence Opinion
Concurring
I agree with the majority that Appellee has failed to establish that the Dragonetti Act clearly and palpably violates this Court’s Article V, Section 10(c) authority to regulate the practice of law. I write separately, however, to distance myself from the majority’s apprehension over the exclusivity of our constitutional power in this regard. See Majority Opinion at 79,
That is not to say, however, that our Article V, Section 10(c) power is unlimited as the plain language of the constitutional provision denies this Court the authority to prescribe rules modifying the substantive rights of a litigant. See Pa. Const., art. V, § 10(c) (affording this Court “the power to prescribe general rules governing practice, procedure and the conduct of all courts ... and for admission to the bar and to practice law ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant .... ”). Pursuant to this constitutional mandate, we have held that the threshold inquiry in determining whether a particular statute violates Article V, Section 10(c), is whether the challenged legislation is procedural or substantive in nature. Commonwealth v. Payne,
Without hesitation, I agree with the majority that the Dragonetti Act “manifests a legislative purpose to compensate victims of frivolous and abusive litigation and, therefore, has a strong substantive, remedial thrust.” Op. at 80,
Because I agree with the majority that the statutory provisions challenged herein are clearly substantive, I find that the Legislature did not encroach upon this Court’s Article V, Section 10(c) exclusive authority.
Concurring
I join the Majority Opinion in full, but write to make two additional points.
First, while I agree with the majority’s conclusion that the Dragonetti Act is not unconstitutional as applied to attorneys, I underscore the issues the majority notes “may bear closer review” in a future case—specifically, whether an attorney could be liable under the Act for an award of punitive damages, and whether an attorney could be liable despite a good faith argument that existing law should be changed. See Majority Opinion at 80-82,
My second observation also relates to Appellee’s concern that an attorney’s good faith argument that existing law should be changed could lead to Dragonetti Act liability. Section 8352 of the Act sets forth three scenarios under which a person has probable cause for commencing or advancing litigation, and, thus, is not subject to liability.
A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
(1) reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
(8) believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.
42 Pa.C.S. § 8352. The concern forwarded by Appellee herein implicates the first scenario, as Appellee offers that an attorney who seeks an “extension, modification or reversal of existing law” as ethically permitted under the Rules of Professional Conduct
. While I appreciate the majority’s concern that there have been topics upon which both statutes and judicial rules have spoken, see Op. at 79,
. As this case involves only a generalized challenge to the Dragonetti Act as applied to attorneys, the majority's discussion regarding the "punitive dynamic" of the legislation and the "disapprobation of a specified range of conduct by attorneys," Op. at 81,
. A prerequisite to liability under the Act is that the person act "in a grossly negligent manner or without probable cause.” 42 Pa.C.S. § 8351.
. See Pa.R.P.C. § 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”).
Dissenting Opinion
Dissenting
This appeal presents a facial challenge
The Majority contends that the “notion” of this Court’s exclusive power under Article V, Section 10(c) to regulate the conduct of attorneys “must be considered with great circumspection.” Majority Op. at 79,
Prior to 1968, the Pennsylvania Constitution did not include an express statement regarding this Court’s rulemaking authority. In re 42 Pa.C.S. § 1703,
In 1968, an explicit statement of this Court’s rulemaking authority was set forth in Article V, Section 10(c) of the newly amended Pennsylvania Constitution, which provides as follows:
(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the Judicial Branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistentwith rules prescribed under these provisions. Notwithstanding the provisions of this section, the General Assembly may by statute provide for the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television.
Pa. Const. art. V, § 10(c).
The Majority, apparently, is of the view that our authority under this constitutional provision to regulate the conduct of attorneys practicing in this Commonwealth is not exclusive, but rather is shared concurrently with the General Assembly. A careful examination of this constitutional language demonstrates that there is no basis for such a contention.
Article V of our Constitution, “The Judiciary,” establishes the judicial branch of our tri-partite government. It delineates, among other things, the structure and composition of the various courts within the Commonwealth’s unified judicial system. The supervisory power for administration of the judicial branch is vested in the Supreme Court by virtue of Section 10 of Article V, which is broadly titled “Judicial Administration.” Pa. Const. art. V, § 10. Section 10(c) straightforwardly confers all judicial authority upon this Court: “The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts...” Id. This grant of authority explicitly includes the power to prescribe all rules relating to the “supervision of all officers of the Judicial Branch.” Id. All attorneys practicing in this Commonwealth are “officers of the Judicial Branch.” See, e.g., Office of Disciplinary Counsel v. Zdrok,
The breadth of the Supreme Court’s authority is manifested by the identification of three discrete areas of influence reserved to the Legislature in Article V, Section 10(c): the power to determine the jurisdiction of any court or justice of the peace, the right to set statutes of limitation and repose, and the authority to provide for the manner of testimony of child witnesses. Id. Given these specific, limited grants of authority to the Legislature,
With respect to our rulemaking powers, this Court has previously recognized that “there is simply no substantial support for the proposition that the grant of authority in Article V, Section 10(c) is anything other than exclusive.”
This Court has consistently recognized its exclusive authority to regulate the conduct of attorneys practicing law in this Commonwealth. In Wajert, for example, a former common pleas judge filed a declaratory judgment action seeking a declaration that section 3(e) of the State Ethics Act, 65 P.S. § 403(e), was inapplicable to him as a former member of the judiciary. Wajert,
Long before the Ethics Act was enacted, this Court adopted the Code of Professional Responsibility enunciating the standards governing the professional conduct of those engaged in the practice of law in this Commonwealth. In the rules enforcing that Code, this Court had made it abundantly clear that supervising the conduct of an attorney, including that of a former judge, before the courts of this Commonwealth was a matter exclusively for this Court.
Id.; see also Maunus,
Similarly, in Stern, we unanimously held that section 4117(b)(1) of the Crimes Code, which made it a crime for a lawyer to compensate or give “anything of value to a non-lawyer for recommending or securing employment by a client,” was unconstitutional. Stern,
We have seen fit to prohibit the practice of attorneys paying for referrals in the exercise of our exclusive authority to supervise the conduct of attorneys. This involves a matter entrusted solely to the Supreme Court under Article V, Section 10(c) of the Pennsylvania Constitution. We hold, therefore, that § 4117(b)(1) is unconstitutional because it infringes upon this authority.
Id. at 573.
Pursuant to our exclusive authority under Article V, Section 10(c), this Court has promulgated Rules of Professional Conduct, Rules of Disciplinary Enforcement, and Rules of Civil Procedure, all of which bear directly on the professional conduct of attorneys and the manner in which they may practice law. Any statute encroaching on our Article V, Section 10(c) powers, including our power to regulate the professional conduct of attorneys, “must be regarded as a vain attempt by the Legislature to exercise a power which it does not possess.” In re Shigon,
In 1980, the General Assembly created a statutory cause of action for the “wrongful use of civil proceedings,” commonly referred to as the Dragonetti Act, that proscribes certain types of tortious litigation conduct. See 42 Pa.C.S. §§ 8351-8354.
The Dragonetti Act indisputably and notoriously regulates the conduct of attorneys engaged in the practice of law. This conclusion is not contested, even by the Majority, which acknowledges that the Dragonetti Act “embodies disapprobation of a specified range of conduct by attorneys.” Majority Op. at 81,
In its written opinion in support of its ruling that the Dragonetti Act is unconstitutional, the trial court discussed in some detail the specific inconsistences between the Dragonetti Act and these rules. Trial Court Opinion, 8/27/2015, at 5-6. In my view, it is not necessary to identify the precise inconsistencies, as such an effort serves only to highlight the fact that the Legislature should never have encroached on this Court’s exclusive authority to regulate in this area. See Stern,
A finding that the Dragonetti Act is unconstitutional as applied to lawyers would not deprive litigants of a remedy in the face of tortious litigation conduct.
Long before the General Assembly enacted the Dragonetti Act, this Court recognized a tort for the malicious use of process which could be brought against an attorney. See Farmers’ Bank v. McKinney, 7 Watts & Serg. 214, 215 (Pa. 1838) (stating that when “practitioners at law” used process “maliciously and with design to oppress,” they “could be sued by the party aggrieved ... upon general principles of policy and justice”). To maintain an action for malicious use of process at common law, a plaintiff had to prove (1) that the defendant initiated legal process against him in the underlying action, (2) without probable cause and with malice, and (3) that the action against him or her was unsuccessful. See Publix Drug Co. v. Breyer Ice Cream Co.,
An attorney can also be sued at common law for the separate and distinct tort of abuse of process. McGee v. Feege,
In the proper case, a future litigant could argue to convince this Court to abolish the “old English rule,” the aspect of the common law that Mr. Dragonetti found objectionable when he took his entreaty to the Legislature. See supra, note 6. We have explained that “[t]here is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others.” Tincher v. Omega Flex, Inc.,
Enactment of the Dragonetti Act was an impermissible intrusion into this Court’s exclusive province to regulate the conduct of attorneys in the practice of law in this Commonwealth. I would therefore rule that it is unconstitutional and unenforceable as applied to lawyers. Accordingly, I dissent.
. I do not disagree with the Majority's characterization of this appeal as a "partial” facial challenge, as it is limited to application of the statute to a certain class of defendants (attorneys). See Majority Op. at 81 n.13,
. Article V, Section 10(c) was adopted as part of the Pennsylvania Constitution of 1968. It was amended in November 2003 to add the concluding sentence relating to child witnesses.
. In conducting this analysis, we must employ an unstrained analysis, one that "completely conforms to the intent of the framers and which reflects the views of the ratifying voter.” In re Bruno,
. Other sections of Article V of the Constitution grant the General Assembly certain additional powers not relevant to the present analysis. For example, the General Assembly has the power "to establish classes of magisterial districts” based on constitutionally designated factors and to "fix the salaries to be paid justices of the peace in each class.” Pa. Const. art V, § 7(b). The General Assembly also has the power to "establish additional courts or divisions of existing courts, as needed, or abolish any statutory court or division thereof.” Pa. Const. art V, § 8. These sections are germane to the point that any legislative authority within the judicial branch was limited and defined by the citizens.
. In support of its contention for the Legislature’s concurrent authority to engage in judicial rulemaking, the Majority refers to this Court's recognition that the Legislature may promulgate rules of evidence, see Commonwealth v. Olivo,
There may be circumstances not identified by the Majority where this Court turned a blind eye to legislative encroachment into the Supreme Court’s exclusive powers under Article V, Section 10(c). This Court should be faulted for any sporadic dereliction in exercising or enforcing the dictates of Article V, Section 10(c). Falling short of our constitutional mandate on occasion, however, does not result in its relinquishment. We have no authority to dilute the tri-partite system of government established by the citizens of this Commonwealth.
. Given the Majority’s attempt to characterize the legislative process as superior to this Court’s adjudicative process in making substantive law, Majority Op. at 81-83,
. Under Section 8352, a different probable cause standard applies to clients who rely on the advice of counsel. 42 Pa.C.S. § 8352(2).
. Pursuant to our Article V, Section 10(c) powers, we have established a comprehensive system for disciplining attorneys which functions effectively absent any interference by the Legislature. Our disciplinary system is comprised of a Disciplinary Board made up of appointed, uncompensated attorneys and non-attorneys and Hearing Committees made up of appointed, uncompensated attorneys. Acceptance of an appointment as a member of the Disciplinary Board of the Pennsylvania Supreme Court or as a hearing officer requires hundreds of hours of uncompensated service to the legal profession. The Board’s work is dedicated to the application of the Rules of Professional Conduct promulgated by this Court, which serve as the polestar for the practice of law, the protection of clients and the integrity of the courts of this Commonwealth,
The Disciplinary Board of the Pennsylvania Supreme Court maintains an Office of the Secretary and Office of Disciplinary Counsel, both employing a range of paid staff members. Attorneys admitted to practice in our Commonwealth fund the operation of our disciplinary system through a fee structure imposed by the Pennsylvania Supreme Court. All of these entities operate under our exclusive authority. The dedicated manner in which our disciplinary system operates is evidenced by the fact that, in 2016 alone, the Office of Disciplinary Counsel received 3,900 complaints regarding attorney conduct and resolved 3,667 complaints, of which 240 resulted in discipline. Each proposed order of discipline is meticulously reviewed by the justices of this Court before it is entered. See Annual Report, The Disciplinary Board of the Supreme Court of Pennsylvania, 2016, available at http:// www.padisciplinaryboard.org/about/annualreports.php (noting that a disciplinary matter involving a single attorney may consist of multiple complaints).
. The Majority’s attempt to carve out constitutional space for the Dragonetti Act by virtue of it being substantive and remedial in nature is unavailing. These traits do nothing to mitigate the fact that it sets forth rules of conduct and discipline governing each and every attorney admitted to practice in the courts of this Commonwealth. I do not question the Legislature's authority to create substantive laws, generally, but any such laws must withstand constitutional muster. See Stern,
. The Dragonetti Act could still be used to hold a non-lawyer liable for the wrongful use of civil proceedings. See 1 Pa.C.S. § 1925, Pursuant to 1 Pa.C.S. § 1925, "a statute may be invalid as applied to a certain class and still be generally valid.” Com., Dep't of Ed. v. First Sch.,