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Recent Common Pleas Court Decision Calls into Question Defense Attorneys Ability to Sue for Frivolous Litigation

May 27, 2016

Since its enactment in 1980, the Dragonetti Act, 42 Pa. C.S.A. § 8351 et. seq. , has been a tool used by defense attorneys throughout Pennsylvania to curtail frivolous litigation.  Under the Dragonetti Act, a defendant could sue a plaintiff and/or a plaintiff’s attorney for damages if the underlying claim resolved in the defense’s favor, and there was not probable cause to pursue the suit.  
In a recent case not handled by Zarwin attorneys, the Chester County Court of Common Pleas ruled that, the Dragonetti Act was ruled unconstitutional on the basis that it infringed on the judiciary’s power to control the conduct of the attorneys as set forth by the Pennsylvania Constitution. Villani v. Seibert, No. 2012-09795 (Chester Co. C.C.P. Aug. 27).  The court held that under Article V, Section 10, the Pennsylvania Constitution reserves to the judiciary the sole power to regulate the conduct of attorneys.
The court held that the Dragonetti Act applies a more stringent standard for probable cause than the Rules of Professional Conduct, and thus, an attorney may run afoul of the Dragonetti Act while still complying with his or her ethical obligations.  
Currently, the Pennsylvania Supreme Court, upon referral from the State’s intermediate appellate court,  is weighing whether to hear the case.  
In the meantime, the status of the Dragonetti Act is uncertain, as is the defense bar’s ability to pursue a claim under the Act.  While the ruling from the Chester County Court of Common Pleas is not binding on other trial courts throughout the State, the decision strongly supports the arguments plaintiffs’ attorneys have been using to defend against the Act since its inception.  
While Pennsylvania also recognizes a common law cause of action for the wrongful use of civil proceedings, the Chester County Court noted that the common law cause of action was preempted by Dragonetti.  Thus, if Dragonetti is ultimately deemed unconstitutional, there is the possibility defendants will be without recourse for frivolous claims.  
Until the Pennsylvania appellate courts address the status of the Dragonetti act, defendants ability to pursue Dragonetti claims will remain uncertain.  

For more information, please contact Ross DiBono at

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