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Wrongful Use of Civil Proceedings & Related Torts in Pennsylvania

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George Bochetto, David P. Heim, John A. O'Connell, Robert S. Tintner


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Over the past decade or so, Pennsylvania has seen a significant (if not explosive) increase in lawsuits that, at their core, complain that some other lawsuit was “wrongful” or “abusive.” Such suits are popularly known as “Dragonetti” actions. Typically, these cases are brought not only against the litigants bringing the allegedly wrongful proceedings, but against their lawyers as well. All practicing litigation attorneys – and indeed any lawyer involved in representing clients in litigation – are potential targets of wrongful use actions and should have a thorough understanding of the legal rules and principles by which he or she may be judged.

Despite the fact that “wrongful use” cases have for centuries been debated in the courts, there are few, if any, analytical resources available.

Wrongful Use of Civil Proceedings and Related Torts in Pennsylvania is a comprehensive review of the body of law upon which wrongful use litigation is built. Compiled by author George Bochetto of  Bochetto & Lentz, P.C. and his colleagues, it is based upon years of experience and a close study of the jurisprudence.

Chapters:

  • Wrongful Use of Civil Proceedings
  • Abuse of Process
  • Malicious Prosecution
  • Judicial Privilege
  • Damages

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  • Availability: Available
  • Brand: The Legal Intelligencer
  • Product Type: Books
  • Page Count: 222
  • ISBN: 978-1-62881-345-6
  • Pub#/SKU#: PDRAG17
  • Pub Date: 07/21/2017

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  • George Bochetto

George Bochetto is a nationally acclaimed trial lawyer and litigator and has been recognized in countless cases for his unrelenting and persuasive litigation and trial techniques. Mr. Bochetto’s practice areas are in complex civil trial and appellate litigation, white collar defense, defamation, RICO matters,commercial litigation, tax and fraud prosecution and defense, injunctive actions, and appellate litigation.

Mr. Bochetto has been cited for “Raising the Bar” by the National Law Journal, and has been written about and featured in dozens of trade journals and legal publications throughout the United States.He is also an accomplished author and lecturer, offering numerous legal seminars and speaking at various law schools, including frequent engagements as an expert commentator and consultant in areas of wrongful use litigation,ethics, and trial strategies. Mr. Bochetto has also appeared on countless local and national television broadcasts regarding many of his cases

In addition to his litigation practice, Mr. Bochetto has been a lifelong member oft he athletic community and was appointed Pennsylvania’s State Boxing Commissioner in 1995, serving until 2002, where he completely revamped the regulation of boxing in Pennsylvania. Mr. Bochetto has been listed in Who’s Who in American Law, Men of Achievement, National Registry of Who’s Who, Bar Registry of Preeminent Lawyers, Million Dollar Advocates Forum, The National Law Journal and Best Lawyers in America, and was the recipient of the 1996Chairman’s Award from the Pennsylvania Human Relations Commission, the 1997 Man of the Year award from the Pennsylvania Veterans’ Boxing Association, and the Boxing Commissioner of the Year (1999), award.

Mr. Bochetto received a B.A. in History, magna cum laude, from S.U.N.Y. at Albany and a J.D., cum laude, from Temple University School of Law. He is admitted to practice in Pennsylvania and New York and is a member of the Philadelphia,Pennsylvania, New York, District of Columbia and American Bar Associations. He is also a Member of Temple Law Quarterly 1976-77 and a Fellow of the Academy of Advocacy.




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  • David P. Heim

David Heim’s practice is focused on complex civil litigation, with particular emphasis on Internet law, defamation, commercial disparagement, wrongful use ofcivil process, constitutional law, partnership and shareholder disputes,employment disputes, medical malpractice, and catastrophic injury cases. Mr. Heim has been a frequent lecturer and author of publications concerning defamation, Internet-related legal issues, and wrongful use claims, and is certified as a member of the Million Dollar Advocate’s Forum, whose membership is limited to attorneys with million and multi-million dollar verdicts, awards and settlements.


Mr. Heim has also been recognized as one of the Top Young Attorneys in Pennsylvaniaby Philadelphia Magazine in 2011, 2012, 2013, and 2014.  Mr. Heim has been selected as a Super Lawyer by Philadelphia Magazine for 2015 and 2016.  He has been a frequent co-author and co-presenter for the Pennsylvania Bar Institute


Mr. Heim received his B.A. from Rutgers College, magna cum laude, and J.D. from Rutgers-Camden School of Law. He is admitted to practice in state and federal courts in Pennsylvania and New Jersey.




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  • John A. O'Connell

John O’Connell’s practice is focused on civil litigation, including the areas of wrongful use of civil process, partnership and shareholder disputes, employment disputes, and tax.  Mr. O’Connell received his L.L.M in Taxation, with distinction, from Temple University’s Beasley School of Law in 2015.  He is admitted to practice in state and federal courts in Pennsylvania and New Jersey.


Prior to joining Bochetto & Lentz, Mr. O’Connell was a clerk for the Hon. José L. Linares of the United States District Court for the District of New Jersey.


Mr. O’Connell earned his Juris Doctor, magna cum laude, from Temple University’s Beasley School of Law.  While at Temple, Mr. O’Connell served asArticles/Research Editor of the Temple Law Review, received the Joseph W. PriceIII Memorial Award for Achievement in Taxation, and completed a year-long internship with the Hon. Franklin S. Van Antwerpen of the United States Courtof Appeals for the Third Circuit. Mr. O’Connell received his undergraduate degree in English from Villanova University.

 




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  • Robert S. Tintner

Robert Tintner's practice involves all aspects of real estate litigation, including title insurance matters, commercial litigation, professional liability matters, the representation of attorneys and law firms, defamation and first amendment matters and intellectual property litigation.

Mr.Tintner is a partner at Fox Rothschild LLP in Philadelphia and has served on the firm’s Professional Responsibility Committee, the Accounts Receivable, Billing and Collections Committee, the Diversity Committee, the Recruitment Committee, and the Summer Associate Coordinating Committee (former Chair). He also is a recipient of the "Pro Bono Roll of Honor" award from the First Judicial District of Pennsylvania and was selected as a "Pennsylvania Rising Star" by Philadelphia Magazine and Law & Politics Magazine, 2006.

Mr.Tintner regularly presents seminars throughout the Commonwealth of Pennsylvaniaon professional responsibility, the Dragonetti Act, the avoidance of legal malpractice, quiet title and title insurance. Mr. Tintner presently sits on the board of directors for Philadelphia’s Volunteers for the Indigent Program and the Tangled Title Fund Committee. He previously served on the board of directors for Options and the Senior Law Center of Philadelphia.

Mr.Tintner received his J.D. from the University of Pennsylvania Law School and his B.A., cum laude, from the University of Pennsylvania School of Arts and Sciences. He is admitted to practice law in the Commonwealth of Pennsylvania and the State of New Jersey, as well as before the United State Supreme Court,the United States Court of Appeals for the Third Circuit, the United States District Courts for the Eastern District of Pennsylvania, the Middle District of Pennsylvania and the District of New Jersey. Mr. Tintner is a member of the American, Pennsylvania, New Jersey, and Philadelphia Bar Associations. He is presently serving as the co-chair of the Philadelphia Bar Association’s Professional Guidance Committee.



 

Chapter 1

Wrongful Use of Civil Proceedings


1-1       HISTORY OF THE TORT AND ENACTMENT OF DRAGONETTI ACT

            1-1:1    The Common Law Tort in Pennsylvania

            1-1:2    Enactment of Dragonetti

1-2       THE DRAGONETTI ACT AND ITS ELEMENTS

            1-2:1    Procurement, Initiation, or Continuation

                        1-2:1.1 Procurement

                        1-2:1.2 Initiation

                        1-2:1.3 Continuation

            1-2:2    Gross Negligence

                        1-2:2.1 Standard Defined

                        1-2:2.2 Actual Malice Not Required

            1-2:2    Gross Negligence Applied

            1-2:3    Lack of Probable Cause

                        1-2:3.1 Judge or Jury Questions

                        1-2:3.2 Attorney and Client Liability

                        1-2:3.3 Lack of Legal Support for Claims

                        1-2:3.4 Summary Judgment and Nanty-Glo

            1-2:4    Purpose

                        1-2:4.1 Extortion-like Conduct

                        1-2:4.2 Lessons from Unique Facts of Bannar I

                        1-2:4.3 Shotgun Approach to Naming Defendants

            1-2:5    Favorable Termination

                        1-2:5.1 Early Voluntary Dismissal

                        1-2:5.2 Voluntary Dismissal at Trial

                        1-2:5.3 Settled Claims

                        1-2:5.4 Termination on Statute of Limitation Grounds

1-3       STATUTE OF LIMITATIONS

            1-3:1    Limitations Period

            1-3:2    Accrual

1-4       STATE COURT VENUE

1-5       PARTIALLY FRIVOLOUS SUITS

1-6       STANDING

            1-6:1    Typical Standing

            1-6:2    Non-Party Standing

1-7       VALIDITY OF THE DRAGONETTI ACT

            1-7:1    Federal Preemption

            1-7:2    Constitutionality

1-8       POTENTIAL WAIVER OF ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES

            1-8:1    Waiver by Dragonetti Plaintiff

            1-8:2    Waiver by Dragonetti Defendants

1-9       GOVERNMENTAL IMMUNITY

1-10     STRATEGIC DRAGONETTI CONSIDERATIONS IN UNDERLYING LITIGATION

            1-10:1  Sanctions and Preclusion

            1-10:2  Unsuccessful Summary Judgment Motions

            1-10:3  Dragonetti Warnings

            1-10:4  Expert Testimony

                        1-10:4.1           Certificate of Merit Requirement

                        1-10:4.2           Requirement of Expert Testimony

            1-10:5  Discovery Strategies in the Underlying Litigation

 

Chapter 2

Abuse of Process

2-1       ABUSE OF PROCESS OVERVIEW

2-2       ABUSE OF PROCESS AS DISTINCT FROM THE DRAGONETTI ACT

            2-2:1    Continued Distinct Existence of Abuse of Process

            2-2:2    Initiation as a Bar to Abuse of Process

2-3       ELEMENTS OF ABUSE OF PROCESS

            2-3:1    Use of a Legal Process

                        2-3:1.1 Rosen v.American Bank of Rolla

                        2-3:1.2 Shiner v.Moriarty

                        2-3:1.3 Hart v.O’Malley

            2-3:2    Purpose and Perversion

                        2-3:2.1 Purpose or Perversion is Less Than Extortion

                        2-3:2.2 Insupportable Legal Theory as Perversion

                        2-3:2.3 Primary Purpose, Not a Collateral Purpose

2-4       OTHER ISSUES IN ABUSE OF PROCESS

            2-4:1    Standing

            2-4:2    Attorney Liability

 

Chapter 3

Malicious Prosecution

3-1       MALICIOUS PROSECUTION OVERVIEW

3-2       ELEMENTS OF COMMON LAW MALICIOUS PROSECUTION

            3-2:1    Initiating or Procuring

                        3-2:1.1 Private Persons

                        3-2:1.2 Absolute Immunity for Prosecutors

                        3-2:1.3 Police Officers and Municipal Officials

            3-2:2    Malice

            3-2:3    Probable Cause

                        3-2:3.1 Illustrative Cases

                        3-2:3.2 Advice of Counsel Defense on Probable Cause

            3-2:4    Favorable Termination

3-3       SPECIAL INJURY

 

Chapter 4

Judicial Privilege

4-1       GENERAL SCOPE OF THE PRIVILEGE: POST V. MENDEL

4-2       PENNSYLVANIA SUPREME COURT CASES AFTER POST V. MENDEL

            4-2:1    Preiserv. Rosenzweig

            4-2:2    LLMD of Michigan v. Jackson-Cross

            4-2:3    Bochetto v. Gibson

4-3       MORE LINE DRAWING BY THE LOWER COURTS

            4-3:1    Pre-Suit Litigation Demands

            4-3:2    Press Conferences

            4-3:3    Statements to “Special Masters”

            4-3:4    Expert Witness Testimony

            4-3:5    Statements to Prosecuting Authorities

            4-3:6    Out-of-Court Statements by Witnesses

            4-3:7    Committing Perjury

            4-3:8    Investigator for Administrative Agency

            4-3:9    Inconsistent Application of the JudicialPrivilege

 

Chapter 5

Damages

5-1       SUMMARY

5-2       TYPES OF RECOVERABLE DAMAGES

            5-2:1    Reputational Injury

            5-2:2    Attorney Fees 

            5-2:3    Punitive Damages       

            5-2:4    Emotional Distress