# Appendix — Losier v. Kalatschinow

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0947%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 819

## Text

y@ Court, U.S.
FILED

O&1589MAR 15 2008
OFFICE OF THE CLEriK

NO.

IN THE
SUPREME COURT OF THE UNITED STATES

PICARD LOSIER AND ASSOCIATES
Petitioner

V.
GOGOL KALATSCHINOW

Respondent

On Petition For a Writ of Certiorari
To
The Supreme Court
of the
Commonwealth of Pennsylvania

APPENDIX

Picard Losier and Associates
1518 Walnut Street, Suite 807
Philadelphia, PA 19102
215-790-9570

(ORIGINAL PAGE NUMBERS OF OPINION APPEAR IN
BRACKETS [ })

A-1

OPINION OF THE COURT OF COMMON PLEAS,
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
(PHILADELPHIA COUNTY)

GOGOL B. KALATSCHINOW
Plaintiff

V.

ALEX H. PIERRE, ESQUIRE
PICARD LOSIER & ASSOCIATES
AND ANTHONY BOMBACI
Defendants

No. 0917, June Term, 2000

IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION-CIVIL SECTION

GOGOL B. KALATSCHINOW : JUNE TERM,
: 2000

VS. ; : NO.0917
ANTHONY BOMBACI AND : SUPERIOR
ALEX H. PIERRE AND : COURT
PICARD LOSIER & ASSOCIATES : 2993 EDA 2002

: 3114 EDA 2002

3649 EDA 2002
OPINION
March 23, 2003

Joseph, J.
I. HISTORY

1. This matter involves an appeal of a finding for Plaintiff,
Gogol B. Kalatschinow, on claims for wrongful use of civil
proceedings and abuse of process under 42 Pa.C.S.A. § 8351, also
known as the Dragonetti Act.!

2. On or about April 15, 1998, suit was brought against
Sassafras International Café by Defendant, Alex H. Pierre, Esquire,
a member of the law firm of Defendant, Picard Losier &
Associates, on behalf of Anthony Bombaci. The suit alleged that
on October 8, 1996 Gogol B. “Bobby” Kalatschinow, the sole
owner and proprietor of Sassafras, assaulted Mr. Bombaci, an
employee of Sassafras, while off-duty after Mr. Bombaci refused
to discuss a work-related matter with him. The Complaint
additionally averred resulting lumbosacral, cervical and [2] right
shoulder sprain and strain.

Throughout the course of pre-trial discovery it was
asserted thet Mr. Bombaci treated with Dr. Yves Jerome for
approximately six (6) months and suffered from lumbosacral
sprain and strain as a result of the alleged occurrence with Mr.

! Both of these torts are now subsumed under the Dragonetti Act. U.S.
Express Lines, Ltd et., al. 281 F 3d 383,394 (3™ Cir. 2002).

Kalatschinow. It was also asserted that Mr. Bombaci had incurred
medical expenses in the amount of six thousand five hundred
dollars ($6,500.00). Despite the advisement to counsel for
Sassafras that medical records were forthcoming and would be
provided, they never were.

3. Mr. Bombaci testified at deposition in the inderlying
matter that on the evening in question he had a problem with his
assistant in the kitchen. He mentioned something to Mr.
Kalatschinow and then continued with his business. When he got
off work he stayed at the bar. Mr. Kalatschinow then came over
and wanted to discuss the incident with him. However, Mr.
Bombaci did not want to discuss the matter at that time. As Mr.
Kalatschinow began getting louder, Mr. Bombaci went to leave.
As Mr. Bombaci was walking out the door he felt something hit his
back. He was not sure if it was the door or what it was. He
testified that he was told by Matt Curci and Alicia Heck, who were
both present, that Mr. Kalatschinow kicked him in the back.

At deposition Mr. Bombaci further testified that the day
after the incident he called a physical therapy/rehabilitation center
in Center City Philadelphia as the middle of his back hurt. They
referred him to Dr. Yves Jerome.? He allegedly treated with with
Dr. Jerome for approximately six (6) months.

[3]

4. Following an arbitration hearing at which
Sassafras prevailed, Mr. Bombaci, still represented by Alex Pierre,
filed an appeal. At the arbitration Mr. Pierre presented no medical
evidence on Mr. Bombaci’s behalf. An affidavit in the name of
Matt Curci, Mr. Bombaci’s roommate, was presented at arbitration |
to substantiate Mr. Bombaci’s claim. However, Matt Curci did not
appear. [urther, two (2) customers, Debbie Hagedorny and Alicia
Heck, who were present at the time of the alleged incident between
Mr. Bombaci and Mr. Kalatschinow, testified that there was no

* Mr. Kalatschinow testified that he never assaulted Mr. Bombaci, or any
other employee for that matter. On the evening in question he indicated
that he fired Mr. Bombaci after he would not answer questions regarding
a dispute he, Mr. Bombaci, had with a dishwasher.

* This is contradicted by Mr. Pierre who states that he referred Mr.
Bombaci to Dr. Jerome.

assault.’ Mr. Pierre indicated that he did not file the appeal from
the arbitration award. However, he stated that he prepared the
appeal and provided it to Mr. Bombaci to file if he had sufficient
funds to do so. Mr. Pierre indicated that in his opinion at that
point, since Mr. Curci did not appear at the arbitration, the matter
boiled down to a credibility call between the two (2) parties.

3 Subsequently, the deposition of Dr. Jerome was
taken.’ Dr. Jerome testified that when he received a subpoena in
October 1998, he searched his records, including list of patients,
and determined that none existed for Mr. Bombaci and that he did
not treat Mr. Bombaci. Although clear that Mr. Pierre represented
Dr. Jerome at the time of the deposition, there was some confusion
as to whether Mr. Pierre represented Dr. Jerome at the time of the
receipt of the subpoena as Mr. Pierre testified inconsistently in this
regard.

6. After over one (1) year of litigation, and almost
three years since the alleged [4] incident in question, on August 4,
1999 a praecipe to withdraw the appeal from the arbitrator’s award
was filed by agreement and on September 2, 1999 a discontinuance
was ordered.

3 On June 6, 2000 Mr. Kalatschinow then filed the
- instant matter. Interestingly, despite what had occurred in the
underlying matter and despite the fact that Mr. Pierre testified that
Mr. Bombaci’s credibility was shot beyond repair and that he
would no longer represent him, the law firm of Picard Losier &
Associates entered an appearance on behalf of Mr. Bombaci in the
instant matter.

8. Among other things, Mr. Kalatschinow alleges the
following in his Complaint: the fact that Alex Pierre, Picard Losier
& Associates, and Anthony Bombaci acted in a grossly negligent

4 Of note, it is Alecia Heck whom Mr. Bombaci testified told him Mr.
Kalatschinow struck him in the back. Moreover, it is these two (2)
customers that came in three (3) to four (4) times per week that Mr.
Kalatschinow indicated no longer frequented his business.

5 It should be noted that the deposition of Dr. Jerome occurred after the
granting of a motion to compel. Moreover, Mr. Pierre, who represented
Dr. Jerome at this proceeding, was friendly with Dr. Jerome, having
known Dr. Jerome for approximately six (6) to seven (7) years. Mr.
Pierre has been to Dr. Jerome’s office and home on a few occasions and
had lunch with him on at least one (1) occasion. Additionally, both men
have referred clients to each other.

manner and without probable cause by initiating and/or continuing
the underlying lawsuit even though they knew or should have
known there was no legitimate cause of action; initiating and/or
continuing the suit based on the false statements of Anthony
Bombaci or Alex Pierre; alleging that Anthony Bombaci was
assaulted by Gogol Kalatschinow and suffered injuries for which
he treated with Dr. Yves Jerome and incurred medical expenses
when they knew or should have known this was untrue; knowingly
filing and verifying pleadings, discovery and other documents
containing false statements; initiating and/or continuing the
underlying suit for the purpose of harassing, inconveniencing,
embarrassing, ‘retaliating and securing money from Gogol
Kalatschinow; abusing the legal process without justification for
illegal, improper and perverted purposes; using the legal process
for purposes for which the process was not intended or designated;
and abusing the legal process to coerce a desired result and for
improper actions rather than for some use for which process is not
proper. In raising such claims, Mr. Kalatschinow asserted that
Alex Pierre was an employee and/or partner of Picard Losier &
Associates and that any acts and/or omissions on his part were in
the course and scope of his employment with Picard Losier &
Associates. [5]

9. On August 14, 2000 default judgments were
obtained against Alex Pierre and Picard Losier & Associates.
Although no answer or responsive pleading was ever filed on
behalf of Anthony Bombaci, no default judgment was ever sought
or entered against him.

10. On September 28, 2000, Defendants, Alex Pierre
and Picard Losier & Associates’ petition to open default was
denied without prejudice by the Honorable Nitza I. Quinones
Alejandro. Reconsideration was denied on November 8, 2000. A
second petition to open default was denied with prejudice on June
22, 2001 by the Honorable Arthur S. Kafrissen.

11. On June 28, 2001 the matter was transferred to
arbitration.

12. On July 12, 2001 Defendants’ motion for
summary judgment was dismissed by the Honorable Patricia A.
McInerney. With respect to Alex Pierre and Picard Losier &
Associates the motion was dismissed as moot due to the unopened
default judgments. With respect to Anthony Bombaci the motion

was dismissed as premature as the relevant pleadings were not
closed.

13. On September 17, 2001 an arbitration hearing took
place. The panel of arbitrators awarded Plaintiff, Gogol
Kalatschinow, twenty-five thousand dollars ($ 25,000.00).
Defendants subsequently appealed on October 15, 2001.

14. Due to failure to provide responses to discovery
requests, the Honorable Matthew D. Carrafiello entered an order
dated March 6, 2002 precluding Defendants from opposing or
introducing any evidence or testimony at trial or from cross-
examining any witnesses.° No motion for reconsideration was
filed.

15. A non-jury trial took place on June 3 and 4,
2002.

16. Mr. Kalatschinow testified that as a result of suit
being filed against him he was [6] scared and nervous, especially
due to the fact that after he reported the matter to his insurance
company he received a reservation of rights letter which meant,
and he understood to mean, that he could personally be
responsible. While he did mention that he thought it was a joke, he
explained that he did not mean a funny joke, but rather a joke as in
that the whole situation was unbelievable.

17. Mr. Kalatschinow further stated that as a result of
Mr. Bombaci’s lawsuit there was a negative atmosphere about his
business and that he lost business in the amount of ten percent
(10%). However, there was no testimony as to the amount of his
total business. Moreover, while he stated that two (2) regular
customers, Debbie Hagedorny and Alicia Heck, no longer came to
his establishment, they both testified on his behalf at the arbitration
hearing in the underlying matter.

18. Mr. Pierre testified that, despite his referral, he did
not know that Mr. Bombaci had not treated with Dr. Jerome. He
stated that, although there was no indication in the file, he
requested Mr. Bombaci’s records from Dr. Jerome’s office.
However, in his experience, Dr. Jerome’s office was very hard to
deal with in this regard.

* Four (4) previous discovery orders had been entered due to the failure to
provide the same discovery requests, the last two (2) of which imposed
monetary sanctions. Moreover, an order of July 13, 2001 warned that this
would be a potential future sanction.

19. Mr. Pierre further testified that, although he was
without supporting records, he prepared the answers to
interrogatories, which included the diagnosis of lumbosacral sprain
and strain and medical expenses in the amount of six thousand five
hundred dollars ($ 6,500.00). He indicated that these answers were
based on his experience as a personal injury attorney. Later, he
stated that Mr. Bombaci provided the answers and he just typed
them.

20. On the issue of punitive damages, testimony was
presented that Picard Losier & Associates’ earnings were as
follows:

1996 $455,174.00 gross $175,616.00 net
1997 $329,147.00 gross $95,312.00 net
1998 $399,361.00 gross $98,079.00 net
1999 $315,000.00 gross $102,652.00 net

[7]
2000 $256,000.00 gross $48,191.00 net

21. Further, testimony was presented that Mr. Pierre’s
earnings were as follows:

1996 $51,422.00

1997 $77,900.00

2000 $61,739.25

22. On August 22, 2002, this court entered a finding in
favor of Plaintiff, Gogol Kalatschinow, in the amount of ten
thousand ($10,000.00) compensatory damages; punitive damages
against Defendant Alex Pierre, in the amount of ten thousand
dollars ($10,000.00; punitive damages against Defendant Picard
Losier & Associates, in the amount of seven thousand dollars
($7,000.00); and punitive damages against Defendant, Anthony
Bombaci, in the amount of five thousand dollars ($5,000.00).

23. All parties, except Defendant, Anthony Bombaci,
filed post-trial motions. Plaintiff. Gogol Kalatschinow moved for
post-trial relief asserting that Defendant, Picard Losier &
Associates, is vicariously liable for the punitive damage finding
against Defendant, Alex Pierre, as well as for the finding
specifically against them.

Defendant, Picard Losier & Associates, moved for
judgment notwithstanding the verdict asserting: the evidence was
insufficient to prove either compensatory or punitive damages; the
evidence was insufficient to prove that Picard Losier & Associates
was vicariously liable; the evidence was insufficient to prove
wrongful use of civil proceedings and abuse of process; and the
verdict was against the weight of the evidence. Said defendant
additionally moved for new trial asserting: error in denying
petitions to open default; error in precluding defendants from
presenting evidence in their defense and allowing them to cross-
examine witnesses; error in awarding compensatory damages;
error in awarding compensatory damages as they were against the
weight of the evidence; error in awarding punitive damages against
Picard Losier & Associates; and error in finding for Plaintiff
against the weight of the evidence. In the [8] alternative, said
defendant moved for remittitur. Defendant Alex Pierre, moved for
judgment notwithstanding the verdict asserting: error and/or abuse
of discretion in denial of the petitions to open default; error and/or
abuse of discretion in denial of the motion for summary judgment;
error and/or abuse of discretion in not apportioning liability; error
and/or abuse of discretion in finding compensatory damages; error
and/or abuse of discretion in imposing punitive damages for
conduct which is no longer outrageous; error and/or abuse of
discretion for imposition of damages where Plaintiff had
committed a wrong worse than the gravamen of the Complaint.

Said motions were denied by this court on
September 11, 2002. No motion for reconsideration was filed by
any of the parties.

24. On September 26, 2002 Defendant Picard Losier
& Associates, filed a Notice of Appeal.

25. On October 11, 2002 Defendant, Alex Pierre,
filed a Notice of Appeal.

26. On October 21, 2002 this court entered an order
requiring Alex Pierre and Picard Losier & Associates file a
Statement of Matters Complained of on Appeal pursuant to
Pennsylvania Rule of Civil Procedure 1925(b). Pursuant to this
order, said defendants filed same on October 30, 2002 as well as a
praecipe to enter judgment.

Defendant, Alex Pierre, asserts the following issues on
appeal: error and/or abuse of discretion in denial of petitions to

et

open default; error and/or abuse of discretion in denial of summary
judgment; error and/or abuse of discretion in finding compensatory
damages; error and/or abuse of discretion in imposing punitive
damages where there was no basis for compensatory damages;
abuse of discretion in assessing damages for behavior which is no
longer outrageous; error and /or abuse of [9] process in imposing
damages where Plaintiff had not committed a wrong worse than
the gravamen of the Complaint.

Defendant Picard Losier & Associates, asserts the
following issues on appeal: the evidence was insufficient to prove
damages; the evidence was insufficient to prove vicarious liability;
the verdict against weight of evidence; error and/or abuse of
discretion in denying petition to open default; error in precluding
defendants from presenting evidence in their defense or cross-
examine witnesses; error in awarding punitive damages; error as
compensatory damages were against the weight of the evidence;
error in awarding punitive damages against Picard Losier &
Associates; error in finding for Plaintiff against weight of the
evidence; error and/or abuse of discretion in denying remittitur;
error in denying request for court en banc; error in denying post-
trial motions.

27. On November 25, 2002, Plaintiff, Gogol
Kalatschinow, filed a cross-appeal.

28. On December 17, 2002, pursuant to this court’s
order, Plaintiff filed a Statement of Matters Complained of on
Appeal asserting that Defendant, Picard Losier & Associates,
should be vicariously liable for the punitive damage award against
Defendant, Alex Pierre.

- II. DISCUSSION
A. Default Judgments
Pennsylvania Rule of Civil Procedure 237.3 states:
(a) A petition for relief from a judgment of non
pros or of a default entered pursuant to Rule 237.1

shall have attached hereto a verified copy of the

complaint or answer the petitioner seeks leave to
file.

Le ee NR EN PN RES CREATE UNAS G P hw yee em ie 4;

(b) If the petition is filed within ten (10) days after
entry of [10] judgment on the docket, the court
shall open the judgment if the proposed complaint
or answer states a meritorious cause of action or
defense.

This rule further states that “[a] defendant who seeks to
file a pleading other than an answer is not entitled to the benefit of
this rule but must comply with the requirements of Schultz v. Erie
Insurance Exchange...” Additionally, the Explanatory Comment
notes via illustration that a defendant who files a timely petition to
vacate default but seeks leave to file preliminary objections “is not
entitled to the benefit of Rule 237.3(b), although the petition is
timely filed, the rule does not provide for preliminary objections to
be attached to the petition.”

While the court in Peters Township Sanitary Authority v.
American Home and Land Development Co., ___ Pa. Cmwith.

, 696 A.2d 899 (1997), held that a motion to vacate a
judgment of default should have been granted where filed within
ten (10) days and preliminary objections were submitted, the
preliminary objections were not attached to the motion to vacate as
a potential pleading. : Instead, they were filed the same day the
petition to enter default judgment was filed.

Accordingly, as the preliminary objections in this matter
were attached to the petition to vacate in an attempt for leave to
file said pleading should the petition be granted, the denial of
petitions to vacate default was proper.

B.Summary Judgment

Pennsylvania Rule of Civil Procedure 1035.2 states:
After the relevant pleadings are closed, but within

such time as not to unreasonably delay trial, any party
may move for summary judgment in whole or in part
as a matter of law

(1) Whenever there is no genuine issue of material
fact as to a necessary element of the cause of action or
defense which could be established by additional
discovery or expert report, or [11]

(2) if, after the completion of discovery relevant
to the motion, including the production of expert

reports, an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts
essential to the cause of action or defense which in a
jury trial require the issues to be submitted to a jury.

In the case at bar, default judgments were entered against
Defendants, Alex Pierre and Picard Losier & Associates. These
default judgments were not opened. Accordingly, summary
judgment would not be proper as to these defendants.

Further, while there was not a default judgment entered
against Defendant, Anthony Bombaci, the matter was transferred
to arbitration on June 28, 2001 with a new case management
schedule not set until November 27, 2001. Moreover, there were
outstanding discovery requests as evidenced by the numerous
discovery orders in this matter commencing on January 25, 2001.
Therefore summary judgment was premature with regard to Mr.
Bombaci as the relevant proceedings were not closed.’

Moreovey, and more importantly, it does not appear that it
was even appropriate for Defendants to challenge the denial of
summary judgment via post-trial motion.

The note to Pa.R.C.P. 227.1( c ) states that a

motion for post-trial relief may be filed following

a trial by jury, a trial by a judge without a jury in

an action at law pursuant to Rule 1038 or a trial by

a judge without a jury in an action in equity.

Logically, post-trial motions may not be filed to

orders disposing of pre-trial motions (i.e., orders

disposing of preliminary objections, motions for

summary judgment, motions relating to
discovery) or motions relating to proceedings not
constituting a trial.

. Notwithstanding, it is difficult to imagine a situation in which it would
have been appropriate to grant summary judgment in favor of Defendant,
Anthony Bombaci. As no answer or responsive pleading was ever filed
on his behalf, the allegations against him are deemed as true,
Pennsylvania Rule of Civil Procedure 1029, and he is in violation of the
Statute.

(emphasis added). Bostick, et al. v. Schall’s Brakes and Repairs,
Inc., Pa. Super. , 725 A.2d 1232, 1235 (1999).

[12]

A. Discovery Sanctions

“The decision to sanction a party for a discovery violation

and the severity of that sanction are matters vested in the sound
discretion of the trial court.” Smith v. Philadelphia Gas Works,
Pa. Cmwith. , 740 A.2d 1200,1202 (1999). Further, the
court noted that “under Pa.R.C.P. No. 4019(a)(1)(vii), a trial court
may ‘make an appropriate order’ if a party ‘fails to make discovery
or to obey an order of court respecting discovery.’ Similarly,
Pa.R.C.P. 4019(c)(2) specifically authorizes trial courts to enter
order prohibiting the disobedient party from introducing evidence
at trial.” Id. This is the same sanction entered in this matter.

Moreover,

Pennsylvania courts have long recognized that
under the coordinate jurisdiction rule, judges of
coordinate jurisdiction sitting in the same case
should not overrule each other’s decisions.
(citation omitted). The coordinate jurisdiction rule
is premised on the sound jurisprudential policy of
fostering finality in pre-trial proceedings, thereby
promoting judicial economy and_ efficiency.
(citation omitted). This rule prevents forum
shopping because without this rule, the same issue
could be raised repeatedly before different judges
of the same court until a litigant finds a judge
sympathetic to his or her position. (citation
omitted). An exception to this rule is when there
is new evidence or newly decided legal authorities
compelling the second judge to overrule the first
judge’s decision.(citation omitted).

Baysmore_v. Brownstein, Pa. Super. fas
A.2d 54,58 (2001). See also Riccio v. American Republic Ins. Co.
(550 Pa. 254, 260-261, 705 A.2d 422,425 (1997); Commonwealth

v. Starr, 541 Pa. 564, 573-574, 664 A.2d 1326,1331 (1995);

National Railroad Passenger Corp. v. Fowler, et. al.. Pa.
Cmwith. , 788 A.2d 1053, 1060 (2001).

However, this does not preclude a succeeding judge from
overruling a prior order where the motions differ in kind, nor does
it prevent a succeeding judge from doing so when presented in the
context of a motion for post-trial relief. Riccio, 550 Pa. at 261-
262, 705 A.2d at 425.

In this matter, by order of Judge Carafiello dated March 6,
2002 Defendants were [13] precluded from Opposing or
introducing any evidence or testimony at trial or from cross-
examining any witnesses. At the time of trial, this court was
therefore bound to enforce the erder of Judge Carafiello.
Nevertheless, given that there were a total of four (4) prior orders
compelling discovery responses, two (2) of which awarded
monetary sanctions, and one (1) of which warned of this sanction,
this court does not disagree with this order. Aditionally, no request
for reconsideration was made after the order was entered by Judge
Carafiello and one was not made until almost the end of trial.

B. Liability

Pursuant to 42 Pa. C.S. A. § 8351(a):
A person who takes part in the procurement,
initiation, or continuation of civil proceedings against
another is subject to liability to the other for wrongful
use of civil proceedings [if]:

(1) He acts in a grossly negligent manner or without
probable cause and primarily for a purpose other than
that of securing the proper discovery, joinder of
parties or adjudication of the claim in which the
proceedings are based; and

(2) The proceedings have terminated in favor of the
person against whom they are brought.

Further, as provided in 42 Pa.C.S.A. § 8352, such a person
has probable cause if he has a reasonable belief in the facts
substantiating his claim, and

(1) reasonably believes that under those facts the
claim may be valid under existing or developing
law;

(2) Believes to this effect in reliance upon the
advise of counsel, sought in good faith and given
after full disclosure of all relevant facts within his
knowledge and information; or

(3) Believes as an attorney of record, in good faith
that his procurement, initiation or continuation of a
civil cause is not intended merely to harass or
maliciously injure that opposite party.

Conversely,

[14]

Gross negligence is defined... as a lack of slight
diligence or care, or a conscious, voluntary act or
omission in reckless disregard of a legal duty and
of the consequences to another party, who may
typically recover exemplary damages.{citation
omitted]. Gross negligence has also been
described as the “want of even scant care” and ‘the
failure to exercise even that care which a careless
person would use.” [citations omitted].

Hart v. O’Malley, et., al., Pa. Super. , 781 A.2d 1211,
1218 (2001).

Here, given that default judgments were entered against
Defendants, Alex Pierre and Picard Losier & Associates, said
defendants are ir violation of this statute. Further, as no answer or
responsive pleading was ever filed on behalf of Defendant,
Anthony Bombaci, the allegations against him are deemed true,
Pennsylvania Rule of Civil Procedure 1029, and he is in violation
of 42 Pa.C.S.A. § 8351, et.seq., also known as the Dragonetti Act

8 The tort of ‘abuse of process’ is defined as the use of legal
process against another ‘primarily to accomplish a purpose for
which it is not designed.” (citations omitted). To establish a claim
for abuse of process it must be shown that the defendant (1) used a

a te ee ee ee

—— ee ee Nn Pa

[15]

Notwithstanding, based on the evidence presented to this
court, Defendants would be in violation of the Dragonetti Act. Mr.
Bombaci pursued this matter indicating injury as a result of an
altercation with Mr. Kalatschinow and treatment for said injury
with Dr. Jerome. While an affidavit in the name of Matt Curci,
Mr. Bombaci’s roommate, was presented to support the underlying
claim, Mr. Curci never appeared to testify. And, in fact, Alicia
Heck and Debbie Hagedorny testified in contravention to Mr.
Bombaci’s claim. Further, despite allegations of injury and
treatment with Dr. Jerome, Dr. Jerome testified at deposition that

legal process against the plaintiff, (2) primarily to accomplish a
purpose for which the process was not designed; and (3) harm has
been caused to the plaintiff.” Id. This tort differs from that of
wrongful use of civil proceedings in that, in the former, the
existence of probable cause to employ the particular process for its
intended use is immaterial. See id. The gravamen of abuse of
process is the perversion of the particular legal process for a
purpose of benefit to the defendant, which is not an authorized goal
of the procedure. Id. In support of this claim, the Shiners must
show ‘[s]ome definite act or threat not authorized by the
process...; and there is no liability where the defendant has done
nothing more than carry out the process to its authorized
conclusion, even with bad intentions.’(citations omitted).

Shiner v. Moriarty, Pa. Super , 106 A.2d 1228, 1236
(1998), app. denied, 556 Pa. 639, 523 A.2d 346 (1998). See also
Shaffer v. Stewart, et., al., 326 Pa. Super. 135, 138-139, 473 A.2d
1017, 1019 (1984), Hart v. O’Malley, 436 Pa. Super. 151, 170-
171, 647 A.2d 542, 552 (1994); Triester, et. al.. v. 191 Tenants
Ass’n. et. al., 272 Pa. Super. 271, 279, 415 A.2d 698, 703-703
(1979).

Although the torts of abuse of process and wrongful use of
civil proceedings are now subsumed under the Dragonetti Act,
given the default judgments, and the fact that the allegations in the
pleadings are deemed as true, defendants would be liable with
regard to this tort, regardless.

he did not treat Mr. Bombaci and had no records of such a patient.
Nevertheless, Mr. Bombaci continued the underlying suit and even
filed an appeal following an arbitration award in favor of
Sassafrass.

Moreover, an attorney is not required to “prejudge” a
client’s claim and is entitled to “rely in good faith upon the
statement of facts made to him by his client....” Meiksin_v.
Howard Hanna Co., Inc., et.al., 404 Pa. Super. 417, 420-421, 424,
590 A.2d 1303,1305,1306 (1991). However, if counsel acts
“without probable cause for belief in the possibility that the claim
will succeed, and for an improper purpose... he is subject to the
same liability as any other person.” Shaffer v. Stewart, et., al., 326
Pa. Super. 135, 140-141, 473 A.2d 1017, 1020 (1984). See also
Gentzler, et., al. v. Atlee, et., al., 443 Pa. Super. 128, 135, 660
A.2d 1378, 1382 (fn. 6)(1995); Meiksin, 404 Pa. Super. 417,420-
421, 590 A.2d 1303,1305 (1991). Specifically, in Meiksin the

court found that counsel who relied upon statements of an
employee of the client in bringing the underlying suit was not
liatte under the Dragonetti Act as they did not act without
probable cause and there was no evidence of action for an
improper purpose. 404 Pa. Super at 423-425, 590 A.2d at 1306-
1307. The court found that there was probable cause as there was
sufficient evidence to support the statements of the employee.
Supporting the finding of probable cause, the court [16] looked to
the fact that counsel relied on the employee’s statement, which was
not disputed, and led to the trial court’s granting of summary
judgment. Id. At 423-424, 590 A.2d at 1306. Further, the court
looked to the fact that there were motions for summary judgment
and compulsory non-suit in the underlying matter that were denied
suggesting a legitimate dispute of facts. Id. At 423-425, 590 A.2d
at 1306-1307.

Here, Mr. Pierre not only filed a Complaint alleging
personal injury without viewing any medical documentation
whatsoever, but he responded to discovery without such evidence
thereby fabricating a diagnosis and amount of medical expenses
incurred. Further, there was no evidence presented that Mr. Pierre
even requested such documentation. Additionally, at arbitration no
medical evidence was presented and Matt Curci did not testify and
corroborate Bombaci’s story. Instead, two (2) other witnesses,
Alicia Heck and Debbie Hagedorny, testified to the contrary.
Following the loss at arbitration Mr. Pierre prepared an appeal and

continued to represent Mr. Bombaci and incredibly his firm
entered their appearance on his behalf in this matter. Unlike
Meiksin, the statements and testimony of Mr. Bombaci which Mr.
Pierre relied upon were disputed, not only by Mr. Kalataschinow,
but by two (2) witnesses, Alicia Heck and Debbie Hagedorny.
Further, there was no medical evidence supporting any claim of
personal injury. Accordingly, there was not sufficient evidence to
support Mr. Bombaci’s claims. Therefore, Mr. Pierre did not have
probable cause and would be liable under the Dragonetti Act. The
law firm of Picard Losier & Associates would be vicariously liable
for the reasons discussed later with regard to damages.

However, this court previously did not apportion liability.

A court can direct the apportionment of liability

among distinct causes only when the injured party

suffers distinct harms or when the court is able to

identify “ a reasonable basis for determining the

contribution of each cause to a single harm.” ...

Determining whether “ a logical, reasonable or

practical” basis for apportionment exists

necessarily requires the court to consider the

unique [17] circumstances of each case. Although

most single personal injuries defy objective

apportionment, citation omitted, we should not

allow one party to bear an entire liability if the

particular facts of the case will support a

reasonable alternative. On the other hand, we

cannot allow an arbitrary apportionment merely to

avoid imposition of entire liability. A court should

not limit the innocent plaintiff's ability to recover

the full measure of damages unless the court has

some reasonable basis for doing so.

Glomb v. Glomb, et., al., 366 Pa. Super. 206,212, 530 A.2d 1362,
1365 (1987). |

In determining whether to apportion liability the court in
Glomb noted the following factors: the identity of a cause of action
against each of two or more defendants; the existence of a
common, like duty; whether the same evidence will support an
action against each; the single, indivisible nature of the injury to
the plaintiff; whether the injury is direct and immediate, rather than
consequential[;] responsibility of the defendants for the same

injuria as distinguished from damnum. Id. At 213, 530 A.2d at
1366. Nonetheless, the court also indicated that the dtermination
is one that needs to be made on a case by case basis and that
sometimes some of the aforernentioned factors help and sometimes
none of the factors help. Id. At 213-214, 530 A.2d at 1366.

In the case at bar, while this court addressed liability, as
indicated, liability was not required to be determined and the
matter was merely an assessment of damages given the default
judgments and the failure to file an Answer or responsive pleading.
Accordingly, this court does not apportion liability.

C. Damages
With respect to damages, 42 Pa. C.S.A. § 8353 states:

When the essential elements of an action brought
pursuant to this subchapter have been established
as provided in section 8351 (relating to wrongful
use of civil proceedings), the plaintiff is entitled to
recover for the following: [18]

(1) The harm normally resulting from any arrest or
imprisonment , or any dispossession or
interference with the advantageous use of his land,
chattels, or things, suffered by him during the
course of the proceedings.

(2) The harm to his reputation by any defamatory
matter alleged as the basis of the proceedings.

(3) The expense, including any reasonable
attorneys fees, that he ahs reasonably incurred in
defending himself against the proceedings.

(4) Any specific pecuniary loss that has resulted
from the proceedings.

(5) Any emotional distress that is caused by the
proceedings.

Se

(6) Punitive damages according to the law in
appropriate cases.

The above can be separated into compensatory damages
which are covered by subsections (1) through (5) and punitive
damages which are covered by subsection (6).

Of note regarding subsection (5) is the fact that, contrary
to Defendants’ assertions, expert testimony is not required to be
presented with regard to emotional distress. Shiner v. Mori
et.al., Pa. Super , 106 A.2d 1228,1239 (1998), app.
denied, 556 Pa. 639, 523 A.2d 346 (1998).

1. Compensatory Damages

In Cilo v. Shields, 33 Pa.D.&C.4" 10 (Pa.Com-Pl. 1996),
Attorney Cilo filed a suit for wrongful use of civil process against
Shields, the husband of one of his clients, alleging inappropriate
actions on the part of Cilo. The court awarded compensatory
damages, stating as follows:

Cilo testified that he suffered anger,
anxiety, and emotional upset as a result of the
allegations and accusations by Shields. As an
attorney, Cilo’s professional reputation is not only
vital to his ability earn a living and support his
family, but to his emotional well-being in his day-
to-day relationship [19] with his friends, fellow
attorneys, and general public. Cilo testified that
Shields’ initial writ of summons and complaint in
the prothonotary’s office of Mifflin County were
open to the public, members of the bar, courthouse
employees, etc. and caused him embarrassment
and anger, rendering it necessary from him to file
the written complaint in this case against Shields,
adding that the considerable time consumed in the
preparation of this case detracted from his regular
practice of law.

Id. At 17-18.

In this matter, no attorneys fees are being claimed as Mr.
Kalatschinow’s insurance company paid for the defense of the
underlying matter. However, with respect to the remaining areas
of compensatory damages, Mr. Kalatschinow testified that he was
nervous, scared and embarrassed as a result of the lawsuit that was
filed by Mr. Bombaci. Further he testified that he felt like his
restaurant had a bad atmosphere about it as a result of the lawsuit.
As a result, two of his regular customers, Alicia Heck and Debbie
Hagedomy, no _ longer patronized Mr. Kalatschinow’s
establishment and he lost ten percent (10%) of his business. There
is no explanation why Alicia and Debbie no longer patronize Mr.
Kalatschinow’s establishment as they testified in Mr.
Kalatschinow’s behalf at the arbitration hearing in the underlying
matter. Likewise, Mr. Kalatschinow merely stated that business
dropped ten percent (10%). He offered no testimony as to the total
amount of his business. Accordingly, he is entitled to
compensatory damages for damage to his reputation and his
emotional distress in the amount of ten thousand dollars
($10,000.00).

2. Punitive Damages

As indicated, in subsection (6) punitive damages may be
awarded if appropriate. It has long been held that as punitive
damages are for the purpose of punishment they are appropriate
only where the conduct is outrageous. Dean Witter Reynolds, Inc.
v. Genteel, 346 Pa. Super. 336, [20] 347-348, 499 A.2d 637, 642-
643 (1985). See also Kirkbride v. Lisbon Contractors, Inc., 521
Pa. 97, 555 A.2d 800 (1989); Hart v. O’Malley, Pa. Super.

. 781 A.2d 1211 (2001); Shiner _v. Moriarty, Pa.
Super. , 706 A.2d 1228 (1998), app. denied, 556 Pa. 639,
523 A.2d 346 (1998).

Punitive damages are defined by section 908(1) as
damages other than compensatory OF nominal,
awarded against a person to punish him for
outrageous conduct and deter him and others like
him from similar conduct in the future. Section
908(2) provides that :

Punitive damages may be awarded for
conduct that is outrageous, because of the

defendant’s evil motive or his reckless
indifference to the rights of others. In
assessing punitive damages, the trier of fact
can properly consider the character of the
defendant’s act, the nature and extent of the
harm to the plaintiff that the defendant
caused or intended to cause and the wealth
of the defendant.

Thus, punitive damages are proper when the actt
“imports insult or outrage, and is committed with a
view to oppress or is done in contempt of
plaintiffs’ rights.... Punitive damages may be
given when the act is done with reckless
indifference, as well as, bad motive.” [citations
omitted]. Punitive damages must be based on
conduct which is malicious, wanton, reckless,
willful or oppressive. [citations omitted]. The
imposition of damages to a civil defendant is
appropriate only where the conduct complained of
is especially egregious. [citation omitted]. We
must look to the act itself, together with the
circumstances, including the motive of the
wrongdoers and the relations between the parties.
[citation omitted]. “The state of mind of the actor
is vital. The act, or the failure to act, must be
intentional, reckless or malicious.”{citations

omitted].
Dean Witter Reynolds, Inc. 346 Pa. Super. At 347-348, 499 A.2d
at 642-643.

In Hart the court held that as the defendant was found to
have violated the Dragonetti Act punitive damages were
warranted. Pa. Super. , 781 A.2d at 1218. Further, in
Bannar et.al. v. Miller et.al., the court held that punitive damages
were warranted where an attorney filed and continued a suit
knowing there were factual inaccuracies in the pleadings.

Pa. Super. , 701 A.2d 232, 242 (1997).

Moreover, while the underlying suit must be founded,

compensatory damages need not be

[21]

awarded in order to award punitive damages, nor must they be
proportionate to compensatory damages. Kirkbride, 521 Pa. at
101-102, 555 A.2d at 802-803.

Given that punitive damages are therefore penal “[t}he size
of a punitive damages award must be reasonably related to the
State’s interest in punishing and deterring the particular behavior
of the defendant and not the product of arbitrariness or unfettered
discretion.” Shiner , Pa. Super. at , 706 A.2d at 1241.

In this matter, Plaintiff, Gogol Kalatschinow, is entitled to
punitive damages from defendant , Alex Pierre. Not only is Mr.
Pierre in violation of the Dragonetti Act given the default
judgment, but given the allegations of the Complaint in this matter,
which are deemed admitted pursuant to Pennsylvania Rule of Civil
Procedure 1029 and which the default judgment is based, the
behavior of Mr. Pierre was outrageous, reckless and deserving of
punitive damages. Further, based on evidence presented to this
court, punitive damages are warranted. As stated previoiusly,
while Mr. Pierre stated he did not know that Mr. Bombaci did not
go to Dr. Jerome, not only did he prepare a Complaint, he prepared
discovery in the underlying matter fabricating a diagnosis and
amount of medical expenses. Although he testified that he
requested medical records from Dr. Jerome, no evidence was
presented to suggest that he ever requested said records. The
behavior is outrageous and reckless and deserving of punitive
damages.

Similarly, Mr. Kalatschinow is entitled to punitive
damages from Defendant, Picard Losier & Associates, given the
default judgment. Further, as with Mr. Pierre, given the allegations
of the Complaint, which are deemed admitted and which the
default judgment is based, the behavior of Picard Losier &
Associates was outrageous, reckless and deserving of punitive
damages.

Likewise, Mr. Kalatschinow is entitled to punitive
damages from Defendant, Anthony Bombaci. This would be based
on the allegations of the Complaint which are deemed admitted
[22] as no responsive pleading was ever filed. Additionally,
punitive damages would be warranted from the evidence presented
at trial. Despite the fact that Mr. Bombaci never went to Dr.
Jerome, throughout litigation of underlying matter he maintained

the fact that he did and continued to pursue his suit in that manner.
Further, despite the fact that he may have been able to maintain a
suit regardless, he pursued a claim based on alleged injuries that
were not diagnosed by Dr. Jerome or any medical professional.

D. Vicarious Liability

Under the law of agency, a master is a principal that is
responsible for the acts of his agent, a servant, on the basis of
vicarious liability due to the nature of control retained by the
master. Turley v. Trotter, 263 Pa. Super. 523, 529-530, 398 A.2d
699, 702-703 (1979). See also Smallich v. Westfall, 440 Pa. 409,
413-414, 269 A.2d 476, 480-481 (1970). Accordingly, an
employer may be responsible for the acts of an employee
committed during the course and scope of employment on the basis
of vicarious liability. Valles v. Albert Einstein Medical Center, et
al., 569 Pa. 542, _, 805 A.2d 1232, 1237 (2002).

Moreover, a master and/or principal may be responsible for
punitive damages on the theory of vicarious liability. Shiner v.
Moriarty, et_al., Pa. Super. , 106 A.2d 1228, 1240
(1998), app. denied, 556 Pa. 639, 523 A.2d 346 (1998); Dean
Witter Reynolds, Inc. v. Genteel, 346 Pa. Super. At 348-349, 499
A.2d at 643. “Punitive damages may be awarded on the basis of
vicarious liability. [citation omitted]. In Pennsylvania, there is no
requirement that an agent commit a tortuous act at the direction of
his principal, nor must the principal ratify the act, in order for
punitive damages to be imposed on him.” Shiner, Pa. Super.

, 706 A.2d at 1240. More importantly, Pennsylvania has not
adopted section 909 of the Restatement Second of Torts which
contains a less restrictive rule of law regarding vicarious liability
and limits an employer’s [23] liability. Dean Witter Reynolds,
Inc., 346 Pa. Super. At 348-349, 499 A.2d at 643. Nevertheless, a
plaintiff must establish a vicarious relationship.

It is deemed admitted that Alex Pierre was an employee of
and/or partner of Picard Losier & Associates and that any acts
omissions alleged were committed or omitted in course and scope
of his employment with Picard Losier & Associates. This is as no
Answer or responsive pleading was ever filed and a default
judgment was entered. Hence, Picard Losier & Associates are
vicariously liable for punitive damages as the result of Alex
Pierre’s actions. Accordingly, this court’s finding should be

corrected to make Picard Losier & Associates additionally
responsible for the judgment of punitive damages against Alex
Pierre.

Even if the testimony with regard to the employment
relationship of Alex Pierre and Picard Losier & Associates were
reviewed, Picard Losier & Associates would still be vicariously
liable for the actions of Alex Pierre.

Mr. Pierre testified that he handles all of the personal injury
matters for the firm, regardless of who generates the case. He
indicated that he handles these cases as he sees fit without being
micro-managed and that the firm generally pays the expenses of
the case. When questioned as to his employment status at the firm
Mr. Pierre stated that he is a 1099 independent contractor who
receives a percentage of the income he generates for the firm. At
trial he characterized this as “employment for fee.” However, he
additionally stated that he considers himself an associate, in fact,
“the associate.” Mr. Losier testified similarly, except while Mr.
Pierre testified that he was never a salaried employee, Mr. Losier
testified that Mr. Pierre was a salaried employee prior to being
compensated based on his productivity or performance with an
occasional draw. Mr. Losier indicated that this change was due to
economic issues surrounding the firm.

Clearly, while Mr. Pierre manages his own case load, he is still
an employee of Picard [24] Losier & Associates. Many associates
at law firms, especially mid to upper level, handle their own cise
load and proceed as they see fit; however, they are still employees
of the law firm. Likewise, although Mr. Pierre handles all of the
firm’s personal injury matters, this does not make him an
independent contractor rather than an employee. Many firms have
an attorney or attorneys who specialize in certain areas. Therefore,
just because the other attorneys at Picard Losier & Associates may
practice and concentrate in another area of law, the fact that Alex
Pierre handles personal injury matters does not make him any less
a part of Picard Losier & Associates. Further, while the firm did
not pay for Mr. Pierre’s insurance or provide other benefits’, the
firm would pay for the expenses of the cases handled by Mr.
Pierre, which included those generated by someone in the firm
other than Mr. Pierre. More importantly, Picard Losier likely may

9 1t should be noted that Mr. Pierre did not pay for these benefits for
himself either.

terminate Mr. Pierre if he sees fit. Hence, while Mr. Pierre may
call himself a 1099 independent contractor, as illustrated by the
testimony of Picard Losier, the arrangement with Picard Losier &
Associates was an arrangement out of economic necessity. Mr. ~
Pierre was nonetheless still an employee of Picard Losier &
Associates. As his actions with regard to the underlying suit were
in the course and scope of his employment with Picard Losier &
Associates, the firm would therefore be vicariously liable.

G. Remittitur

In Refuse Management Systems, Inc. v. Consolidated
Recycling and Transfer Systems, Inc. et a.l1, 448 Pa. Super. 402,
671 A.2d 1140 (1996) the court made it clear that the trial court in
a non-jury trial may not grant a remittitur. The court stated:

A remittitur by definition is:

The procedural process by which an excessive
[25]

verdict of the jury is reduced. If money damages
awarded by a jury are grossly excessive as a
matter of law, the judge may order the plaintiff to
remit a portion of the award. In the alternative, the
court may award a complete new trial or a trial
limited to the issue of damages. The court may
also condition a denial of a motion for a new trial
upon the filing by the plaintiff of a remittitur in a
stated amount. (citation omitted)(emphasis
omitted). It is readlily apparent, therefore, that a
motion for a remittitur should only be made, and
can only be granted, when there is a jury trial and
a verdict.

In the instant case, we have a non-jury trial.
Accordingly, LCA’s motion for remittitur was
improvidently made and granted. It would defy
logic to hold otherwise. We would be hard
pressed indeed to find that a court could so shock
its Own conscience in granting an award. Rather,

the appropriate procedure in a non-jury action is to
move for a modification of the verdict.

This matter was a non-jury trial. Consequently, a party
could not move for and this court cannot grant remittitur.

H. Court en banc
Pursuant to Pennsylvania Rule of Civil Procedure 227.2:

All post-trial motions and other post-trial matters
shall be heard and decided by the trial judge unless
the trial judge orders that the matter be heard by a
court en banc of which the trial judge shall be a
member. If the trial judge for any reason cannot
hear the matter, another judge shall be designated
to act. No more than three judges shall constitute
the court en banc.

While a party may request a court en banc, the
Explanatory Comment to this rule states that “it is in the discretion
of the trial judge to grant the request.”

Accordingly, as there is nothing unique or novel with
regard to the legal issues raised by the parties in this matter, this
court did not abuse its discretion in denying the request [26] for a
court en banc with respect to the post-trial motions.

Ill. CONCLUSION

For the foregoing reasons, the post-trial motions were
denied.
BY THE COURT:

/s/ Barbara A. Joseph
J.
COPIES SENT

PURSUANT TO Pa.R.C.P. 236(b)
MAR 25 2003
First Judicial District of Pa.
User I.D.: /s/ mas

————

A-2

BRIEF FOR APPELLANT PICARD LOSIER AND
ASSOCIATES FILED IN THE PENNSYLVANIA SUPERIOR
COURT

IN THE SUPERIOR COURT OF PENNSYLVANIA

NO. 2993 EDA 2002
NO. 3114 EDA 2002
NO. 3649 EDA 2002

GOGOL B. KALATSCHINOW
Appelle/Cross Appellant
Vv.
ALEX H. PIERRE, ESQUIRE
Appellant/Cross Appellee

PICARD LOSIER & ASSOCIATES
Appeliant/Cross-Appellee
And
ANTHONY BOMBACI
Cross-Appellee

BRIEF FOR APPELLANT PICARD LOSIER &
ASSOCIATES

SHARON WILLIAMS LOSIER
PICARD LOSIER & ASSOCIATES
1518 Walnut Street, Suite 807
Philadelphia, PA 19102-3419
Counsel for Appellant/Cross Appellee

(ORIGINAL PAGE NUMBERS OF BRIEF IN BRACKETS | |]
WITHIN AND ABOVE TEXT )

TABLE OF CONTENTS

|. STATEMENT OF JURISDICTION

I STATEMENT OF SCOPE OF REVIEW AND — :
STANDARD OF REVIEW.....--.:-+s:seseeeseee 2

II, ORDER IN QUESTION ..........--s:ssesseeeeeseees 3

IV. STATEMENT OF QUESTIONS INVOLVED

rena 4

Vi. SUMMARY OF THEARGUMENT

Vil. ARGUMENT

A. THE LOWER COURT ERRED AS A MATTER
OF LAW AND ABUSED ITS DISCRETION IN DENYING
APPELLANT PICARD LOSIER & ASSOCIATES’ (‘LOSIER’)
PETITIONS FOR RELIEF FROM DEFAULT

SUIT oc. isis iankaiecncnssdepiniess ceoamenseseasaspaneeieaeeennny* 9
B. THE LOWER COURT ABUSED ITS
DISCRETION AND DENIED LOSIER DUE PROCESS

WHEN IT REFUSED TO PERMIT LOSIER TO INTRODUCE
ANY EVIDENCE IN HIS DEFENSE, OR CROSS-EXAMINE
APPELLEE KALATASCHINOW, AFTER LOSIER HAD
COMPLIED WITH THE COURT’S PRIOR DISCOVERY
CORT 5s hha Flakes EG ATRIA BR 16

os THE LOWER COURT ERRED IN AWARDING
COMPENSATORY DAMAGES FOR HARM TO
KALATSCHINOW’S REPUTATION AND EMOTIONAL
DISTRESS WHERE KALATSCHINOW FAILED TO PRESENT
ANY EVIDENCE THAT HE SUSTAINED ANY HARM.-TO HIS
REPUTATION OR EMOTIONAL
CTE iy ccnnntitvinnncpbuandnche en cpp Gapsetapsenesennscacsntvenes 18

D. THE EVIDENCE WAS INSUFFICIENT AS A
MATTER OF LAW TO SUPPORT THE COURT’S FINDING

THAT LOSIER WAS VICARIOUSLY LIABLE FOR THE

ACTIONS OF ATTORNEY ALEX H.

i yeaneee OE ETE Py OUR ed (By eI EIB REE ph ee OSI nj ADR 27
E. THE COURT ERRED IN AWARDING

PUNITIVE DAMAGES ; AGAINST

RDM ibte ie vec DU ial uhaa tei pddte tis siceigsiy Janus veasa todas 32

bi ene ree? Wat aerial eee y MWS MG od 38

TABLE OF CITATIONS
CASE LAW

Allegheny Hydro 1 v. American Line Builders.
Tae BAB TOS a, Saat. TI on inc sti eee 9

BMW of North America v. Gore.
517 U.S. 559,116 S.Ct. 1589, 134 L.Ed. 2d 809

(Rios bad teaches sleeekiciipeeeceete et eee LS ee sien om 33
Cilo v. Shields,

33Pa.D. & C. 4*, 10 (Pa.Com-Pl. 1995) ......2-005.0000002.000 2 24
Commonwealth v. Starr,

CON AZO TARO TR T99O AO e oie 17
Dean Witter Reynolds, Inc. v. Genteel,

346 Pa. Super. 336, 499 A.2d 637 (1985).........cccecceceeceeees 32
Gajkowski v. Internat’! Brotherhood of Teamsters,

350 Pa. Super. 285, 504 A.2d 840 (1986)............cccecc eee eees 28

Juarbe v. City of Philadelphia, et., al.,
288 Pa. Super. 330, 431 A.2d 1073 (1981)...........0..0cceeceee 28

Kazatsky v. King David Memorial Park,

Fae WAN WP OPER ssl iasetcds asd acs ee aie tee 23

MacGregor Vv. Medig,

395 Pa. Super. 221, 576 A.2d 1123 (199)....--+++ 15

Meiksin v. Howard Hanna Co.. Inc., et.,al., 404 Pa. Super. 417,
590 A.2d 1303 (1991)....----+-eesee eee 11

Peters Township Sanitary Authy v. American Home and Land
Dev.Co,

696 A.2d 899 (Pa. Cmwlth. 1997)......-...seeseeeeeeeerees 14

Provident Credit Corp. v. Young,
446 A.2d 257 (Pa. Super. 1982)......-+--seeercererseneeee 9

Schultz v. Erie InsuranceExchange, |
505 Pa. 90, 477 A.2d 471 (1984)....----22eererrereessees 14

Shiner v. Moriarty, et., al.,
706 A.2d 1228 (Pa. Super. 1998) app. den.
556 Pa. 639, 523 A.2d 346.......-ssneeereersrreesseresse 20

Sinn v. Burd, = -
A86 Pa. 146, 404 A.2d 672 (1970)........ccceeeeereceeeeeees 24

Smallich v. Westfall,
440 Pa. 409, 269 A.2d 476 (1970)........seeeeeee ere eeee ees 27

State Farm Mutual Auto Insurance Co. v. Campbell,
4003 LEXIS 2713 (2003)......--::ssseesrsreeeseeseetse te 34

Turley v. Kotter,
263 Pa. Super. 523, 398 A.2d 699 (1979).....----0eeeeee 31

[ii]

Table of Citations (cont’)

STATUTES

United States Constitution (U.S.. Const. +),

PRRUEND Witkin cipicendescéectinadsstbeccscnasece 16
U.S. Const., Amendments 5 and 14 ste eeeeeeeeeeeeees 16

Pennsylvania Constitution (Pa. Const.)

SUIS Pa kdhabitik cUbaeincdidesch cnvdscuccusctucesscecawens 16
RN, ESI klk. Cenoknahvnahabegcabustasavnnh tons 21
ts PEE BO ical sovabeccsccascsdsuntecssaees l

42Pa.C.S.A. 8351, 8353, 8354................ 18-19, 22
Sees ees BAPML ENE ok WOOT cedcncccssccoccncncesensesece 15
Pe Ua ckbcndentiaunststncsckastnvactenseusst 16
Ns HUE ackkictiachdecedencsdksaui¢ansehnsindces am 17

[iii]

al gi be Salita

I. STATEMENT OF JURISDICTION

This is an appeal from the final order of the Philadelphia
County Court of common Pleas, Civil Division. This Court
has jurisdiction over this matter pursuant to 42 Pa.C.S.A.
section 742 and Pennsylvania Rule of Appellate Procedure

341.

:
i
}
:
:
:
|
:
:
|
|
i

[2]

Il. STANDARD AND SCOPE OF REVIEW

The issues raised on appeal by Losier Picard Losier &
Associates involve questions of law. Therefore, this Court’s
review is plenary . Flanagan v. Fidelity Bank, 652 A.2d 930,932
(Pa. Super. 1995). The scope of review on the issues raised should
address whether the trial court abused its discretion, committed
errors of the law, and denied Losier due process and equal
protection of the laws under the Pennsylvania and United States
Constitutions.

(3]
IL. I N

Appellant Picard Losier & Associates (‘Losier’) appeals
from the Order of September 11, 2002, denying his Motion for
post-trial relief.

AND NOW, this 11" day of September, 2002, it is hereby
ORDERED AND DECREED that Defendant, Pierre’s, post trial

motion for judgment notwithstanding the verdict and verdict, a
new trial, or in the alternative, remittitur are DENIED.

BY THE COURT:

/S/ Barbara Joseph

[4]

IV. STATEMENT OF QUESTIONS INVOLVED

A.

DID THE LOWER COURT ERR AS A MATTER OF
LAW AND ABUSE ITS DISCRETION IN
DENYING LOSIER’S PETITIONS FOR RELIEF
FROM DEFAULT JUDGMENT?

DID THE LOWER COURT ABUSE ITS
DISCRETION, AND DENY LOSIER DUE
PROCESS WHEN IT REFUSED TO PERMIT
LOSIER TO INTRODUCE ANY EVIDENCE IN ITS
DEFENSE, OR CROSS EXAMINE WITNESSES,
AFTER LOSIER COMPLIED WITH THE COURT’S
PRIOR DISCOVERY ORDER?

DID THE LOWER COURT ERR IN AWARDING
COMPENSATORY DAMAGES FOR HARM TO
KALATSCHINOW’S REPTATION AND
EMOTIONAL DISTRESS WHERE
KALATSCHINOW FAILED TO _ PRESENT
SUFFICIENT EVIDENCE THAT HE SUSTAINED
ANY HARM TO HIS’ REPUTATION OR
EMOTIONAL DISTRESS?

DID THE LOWER COURT ERR AS A MATTER OF
LAW IN DETERMINING THAT APELLANT
PICARD LOSIER AND ASSOCIATES WAS
VICARIOUSLY LIABLE FOR THE ACTIONS OF
ATTORNEY ALEX H. PIERRE?

DID THE LOWER COURT ERR IN AWARDING
PUNITIVE DAMAGES AGAINST LOSIER?

(ALL ANSWERED IN THE NEGATIVE BELOW)

pee bee 7 mg par

[5]
Vv. | STATEMENT OF THE CASE

See eee eee

On June 8, 2000 Gogol B. Kalatschinow (‘kalatschinow’)
initated a civil action for
wrongful use of civil proceedings and abuse of process in the
Philadelphia Court of
Common Pleas against Picard Losier & Associates (‘Losier’),
Alex H. Pierre, an
associate of the firm (‘Pierre’), and a client of the firm,
Anthony Bombaci
(‘Bombaci’) (Losier’s Reproduced Record (R)26a-36a).

The instant action was predicated upon a civil action
initiated by Bombaci against Sassafras International Café, a
restaurant owned by Kalatschinow (Bombaci_v. Sassafras
international Café, Philadelphia Common Pleas Court ( CCP)
Civil
Division, July Term 1998, No. 1257). Attorney Pierre
represented Bombaci in the forgoing matter.

In the underlying suit, Bombaci had alleged that he had
been assaulted by Kalatchinow, and the suit, was grounded
upon the restaurant’s breach of duty to
ensure Bombaci’s saftey. Kalatschinow was not named
personally as a defendant in he underlying matter.

Pre-trial proceedings in the underlying matter included the
following:

1) Bombaci’s delivery to Pierre, an affidavit from one

Matthew Curci, identified by Bombaci as an eyewitness to

the assault alleged in Bombaci’s comlaint (R, 37a);

2) an interview with Bombaci conducted by an
investigator for the insurance company for Sassafras
International Café on February 5, 1997(R, 38a-57a);

3) interrogatories and requests for documents
propounded by Sassafras International Café
(‘Sassafras’) to Bombaci, and answered by Losier
(R, 58a-72a) ; and

[6]

4) Bombaci’s deposition taken on Octoer 2, 1998 (R, 73a-197a)

Throughout pre-trial proceedings, Bombaci cooperated with
Sassafras’ investigation of the case and gave extensive testimony
regarding the incident complained of, his injuries, and the medical
treatment he received, identifying Dr. Yves Jerome as his treating
physician. However, at the arbitration on December 10, 1998,
Bombaci’s witnesses failed to appear, and the Arbitrators entered
judgment for Sassafras. (R, 198a). Pierre filed an appeal on behalf
of Bombaci in Common Pleas Court (R, 199a).

Kalatschinow then moved the Court to preclude Bombaci from
introducing expent testimony (R, 200a-232a). The Court then
ordered Dr. Jerome to appear and be deposed. At his deposition on
May 7, 1999, Dr. Jerome testified that when he received a
Subpoena in October 1998, he searched his records, and
determined that none existed for Bombaci and that he did not treat
Bombaci, for a deposition. (R, 233a;Trial Court Opinion,
(Op.),p.3).

Thereafter, Sassafras and Bombaci, by and through counsel,

mutually agreed that Bombaci’s suit should be withdrawn, and the
parties jointly filed a Praecipe to Withdraw the Appeal of the
Arbitrator’s ruling (R, 258a).
Kalatschinow then instituted the civil action now before this Court
for review. On August 14, 2000, after Appellant Picard Losier &
associates (‘Losier’) failed to file -a responsive pleading to
Kalatschinow’s Complaint, the lower court entered default
judgment against Losier . On ‘August 21, 2000, Losier timely filed
a Petition for Relief from Default Judgment, Preliminary
Objections attached thereto, and a Supporting Memorandum of
Law (R, 261a-297a). On September 26, 2000, the lower court (per
Quinones-Alejandro, J.) denied Appellant Losier’s [7] Motion on
September 26, 2000 (R, 298a). On October 4, 2000, Losier timely
filed a Motion for Reconsideration of the Court’s denial on (R.
299a-307a). The Court denied the Motion, without prejudice (R,
308a).

Discovery was propounded by both Kalatschinow and Losier,
however, after Losier failed to respond to Kalatschinow’s punitive
damages interrogatories and requests and requests for documents,
Kalatshinow moved the Court to impose sanctions. On July 13,
2001, the Court ordered Losier to respond to Kalatschinow’s

discovery requests, and further ordered that if Losier failed to
provide discovery, Losier “may be” precluded from offering
testimony on Kalatschinow’s punitive damages clams (R, 309a).
On September 14, 2001, the action was tried before a panel of
Arbitrators and was limited to assessment of damages due to the
unopened default judgment. The Arbitrators awarded
Kalatschinow $25,000.00 in damages, and Losier appealed to
Common Pleas Court (R. 310a; 31 1a).

The dispute over Kalatschinow’s discovery requests continued
until March 6, 2002, wen the Cort entered sanctioned Losier by
precluding him from opposing or introducing any evidence or
testimony at trial or from cross-examining any witnesses (R, 31 2a).

Losier’s sole proprietor, Picard Losier, complied with
Kalatschinow’s discovery requests and was deposed on April 5,
2002 (R, 314a). A non-jury trial took place on June 3, 2002 and
June 4, 2002. Kalatschinow had maintained in his complaint (R,
26a, pp3la, 34a, 35a) and pretrial memorandum (R, 343a-346a, p.
344) that he incurred harm to his reputation, emotional distress,
attorney’s fees and expenses. However, at trial on his damages
claim, Kalatshinow failed to prove any economic damages for, or
harm to, his reputation, or emotional distress. Kalatschinow
further admitted that he had incurred no attorney’s fees or expenses
(R, 250a, Op.,

FN1 Matthew Curcl’s affidavit was presented at the
arbitravion hearing.
[8]

p19). Nevertheless, the Court entered judgment for Kalatschinow
and against Losier, awarding compensatory damages in the amount
of $10,000.00 compensatory damages for harm to Kalatscchinow’s
reputation and emotional distress, $17,000.00 on the basis of
vicarious liability for the actions of Alex Pierre, and a separate
award of $10,000.00 punitive damages against Losier.

Losier timely filed a Motion for Post-trial Relief (R, 347a-
352a). Post verdict motions were denied (R, 353a). Whereupon,
Losier appealed to this Court for Relief. Pursuant to
PaR.A.P1925(b), on October 21, 2002, the lower court served upon
Losier an Order to file a Statement of Matters Complained of on
Appeal within 14 days of the date of the Order (R, 354a). On

October 30, 2002, Losier timely complied the Court’s order (R,
355a-357a).

VI. SUMMARY OF THE ARGUMENT

The lower Court committed errors of law, abused its
discretion, misapplied the laws of this Commonwealth, and
denied Losier due process and equal protection of the laws
under the Pennsylvania and United States Constitutions, when
it unjustifiably denied Losier’s Petition for Relief from Default
Judgment to allow Losier to defend itself, refused to lift
sanctions even after Losier complied with the Court’s
discovery orders prior to trial, and entered Judgment against
Losier for both compensatory and punitive damages, where the
evidence was insufficient to prove that Kalatschinow (Plaintiff
below) had sustained any compensable losses, or that
Kalatschinow was entitled as a matter of law to punitive
damages, and where Kalatschinow risrepresented to the Court
the extent and amount of his damages.

[9]
VI. ARGUMENT

A. THE LOWER COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN
DENYING LOSIER’S PETITION TO OPEN THE
DEFAULT JUDGMENT.

A petition to open a default judgment is an appeal to the
equitable powers of the court. The decision to grant or deny a
petition to open a default judgment is within the sound discretion
of the trial court and will not be overtumed absent a manifest abuse
of discretion or error of law.

Allegheny Hydro 1. v. American Line Builders, 722 A.2d 189 (Pa.
Super. 1998).

The lower court abused its discretion and erred as a matter of
law when it denied Losier’s Petition for Relief from Judgment By

Default. Pa Rule of Civil Procedure (Pa.R.C.P.) 237.3 provides as
follows:

(b) If the petition [for relief from a judgment by default] is filed
within ten days after entry of the judgment on the docket, the court
shall open the judgment if the proposed complaint or answer states
a meritorious cause of action or defense, (emphasis added)

Rule 237.3(b) effectively mandates that the court open a
judgment where the petition is filed within ten days of the
judgment, and the answer states a meritorious defense. The
requirement that the defense be meritorious means that the
petitioner need only plead a defense which, if proven at trial,would
justify relief. See Provident Credit Corp. v. Young, 446 A.2d 257,
262 (Pa. Super. 1982) (emphasis added).

Default judgment was entered against Losier on August 14,
2000. Losier filed its Petition for Relief from Judgment by Default
(‘the Petition’) on August 21, 2000, seven days after the entry of
default judgment. Therefore, Losier’s petition was timely filed.
Losier also [10] articulated a meritorious defense in both his initial
Petition (R, 261-267a)and his Motion for reconsideration of the
Court’s prior denial. (R, 301a-306a):

1) Both parties in the underlying action had
stipulated to the discontinuance of the action.

2) Plaintiff, by propounding discovery, had
waived Losier’s default.

3) Losier had probable cause to commence
and continue the underlying action, onn grounds
that Losier’s Associate Pierre had relied upon
Bombaci’s statements as well as an affidavit from
another person who claimed to have witnessed the
incident alleged to have occurred in the underlying
complaint.

Losier submits that the lower court denied the firm due process
when it pre-judged, on the strength of the allegations in the
Kalatschinow’s complaint alone, that Losier would not have been
able to prove probable cause to initiate and continue the action. It
should be noted that the lower court inaccurately stated the

chronology of events culminating in the withdrawal of Bombaci’s
appeal in the underlying case. Contrary to the court’s statement,
Bombaci did not file his appeal after Dr. Jerome had given his
deposition testimony dening that Bombaci was his patient (R,
246a, Op., p. 16); on the contrary, Bombaci filed his appeal from
the arbitrators award in December of 1998, prior to Dr. Jerome’s
deposition testimony. Dr. Jerome was deposed in May of 1999,
several months after the appeal was filed. Thereafter, by
agreement of the parties, Pierre withdrew the appeal, prior to trial
de novo in the Court of Common Pleas.

The Court below also placed great significance on the fact
that Pierre initiated the suit on Bombaci’s behalf before
obtaining any medical documentation from him (R, 247a;
Op., p. 16). Losier submits that the Court placed undue
importance on this factor in determining that Losier’s
associate, Pierre acted recklessly in filing suit. Losier further
submits that rarely, if ever, will [11] an injured client bring
his medical records to an attorney’s office, especially if the
client’s injuries occurred recently and he has only just begun
treatment..

Moreover, Doctors are often reluctant to release medical
records to an attorney. Rather, doctors normally require a formal
written request for medical records from the attommey, and, such
records are never released without written authorization of the
patient. It can often take several weeks or months to obtain all the
medical records necessary to substantiate a client’s claim,
especially if the client is still undergoing treatment during the
course of the litigation. The more common practice for most
attorneys is to prepare and file a complaint based upon the client’s
statement of the facts, obtaining written authorization from the
client for release of his medical records at the same time. Medical
records are then requested during the course of the litigation.

Furthermore, it has been held that an attorney is not required to
verify the accuracy of his client’s statements prior to filing suit,
and may rely in good faith upon the statement of facts make to him
b his client. Meiksin v. Howard Hanna Co., Inc., et. al., 404 Pa.
Super. 417, 420-421,424.590A2.d 1303, 1305, 1306 (1991).

|

Given the strength of Bombaci’s deposition testimony, and the
affidavit from Matthew Curci, who purported to have witnessed
the assault, it is not inconceivable that a jury might have believed
that:

1) prior to Dr. Jerome’s deposition testimony, in
initiating suit and pursuing Bombaci’s appeal Pierre
reasonably relied upon his client’s statements regarding his
injuries and medical treatment he received; and

2) after Dr. Jerome’s testimony revealed that
Bombaci had probably fabricated his claims, Pierre took
prompt action to withdraw the appeal.

[12]

In pre-judging, at the stage of determining whether Losier’s
pleadings stated a defense to Kalatshinow’s claims, that Losier
would not be able to prove “probable cause/good faith” defense at
trial even if the judgment were opened, the Court exceeded its
scope of review of the Petitions for Relief, and denied Losier due
process.

In addition to the above defenses, Losier should have been
allowed to plead via Preliminary Objections or as an affirmative
defense, the fact that Kalatschinow was not a
named defendant in the underlying proceedings, and thus lacked
standing to bring suit.

On its face, Kalatschinow’s complaint failed to allege a key
element of a cause of action for wrongful use of civil proceedings
and abuse of process: that he was named as a defendant in the
underlying civil action giving rise to the cause of action. The
reason for such an omission was clear: the record shows that in the
underlying case, Bombaci_v. Sassafras Kalatschinow was not
personally named as a defendant. The suit was in the
nature of a premises liability suit and was directed solely toward
the negligence of the Café itself, for failing to provide adequate
security to protect customers from assault by employees. 3 If a
judgment had been entered against Sassafras International Café,
Kalatschinow would not have been personally liable to satisfy the
judgment. Therefore, Kalatschinow lacked standing to bring this
suit, and that fact appeared of record.

Where, on its face, Kalatschinow’s complaint showed that the
he did not have standing to initiate the instant action, Losier was
entitled to raise that defense via
preliminary objections pursuant to Pa. R. of C.P. 1028(a)(4) (legal
insufficiency of a pleading) and/ or 1028(a)(5)(lack of capacity to
sue, nonjoinder of a necessary party, or misjoinder of a cause of
action).

FN3 The complaint alleged that Kalatschinow assaulted
defendant Anthony Bombaci, a fellow employee of the café. In
his complaint, Bombaci alleged that the assault took place after
his working hours were over. As such, Mr. Bombaci was, for
purposes of the suit, a business invitee of the cafe.

[13]

On August 21, 2000, when Losier filed its first Petition for
Relief to Open Default Judgment, Pa. Rule of Civil Procedure
237.3 provided as follows:

(a) a petition for relief from judgment of non pros or
of default entered pursuant to 237.1 shall have
attached thereto a verified copy of the complaint
or answer which petitioner seeks leave to file.

(b) If the petition is filed within ten days after the
entry of judgment on the docket, the court shall
open the judgment if the proposed complaint or
answer states a meritorious cause of action or
defense.

(emphasis added).

The comment to Rule to 237.3 in effect at the time Losier filed
its first Petition, indicated that the Rule dose not change the law of
opening judgments, but only provides that a petition filed within
ten days of default is presumptively a timely filed petition.
However, the mandatory language providing that the Court “shall”
open the judgment if the proposed complaint or answer “states a
meritorious cause of action or defense” is directly inconsistent with
the comments. Therefore the language of the Rule itself should
have controlled, and the Court should have granted Losier’s
Petition for Relief.

The lower court apparently rested its decision to deny Losier’s
petition upon the fact that Losier sought leave to file Preliminary
Objections, rather than an “Answer” to the Plaintiff's complaint. If
that was the court’s primary reason for denying Losier’s Petition,
the court abused its discretion and committed an error of law in not
opening the judgment. |

The lower Court denied Losier’s Petition on the basis that the
comments to Rule 237.3 provide that “A defendant who seeks to
file a pleading other than an answer is not entitled to the benefit of
Rule 237.3 but must comply with the requirements of Schultz v.
Erie Insurance [14] Exchange, 505 Pa. 90, 477 A.2d 471 (1984).”
However, the court erred as a matter of law, because the |
amendment to the comments of Rule 237.3, (depriving the benefits
of that Rule to those seeking leave to file Preliminary Objections)
did not become effective until July 1, 2001, almost a full year after |
Losier’s first Petition had been denied, and two months after his
second Petition was submitted. In any event, the comments to the
rules are not part of the rules themselves and are intended only as
guides to the construction of the rules, not substantive rules in and |
of themselves. See Pa.R.C.P. 129(e)(A note to a rule or an
explanatory comment is not a part of the rule but may be used in |
construing the rule).

~~ eee de

The lower court should not have applied the amended
comment to Rule 237.3 as if it were a substantive rule of law, or
applied the amended comment retroactively to the date that Losier
filed its first Petition for Relief on August 21, 2000. In applying
ex post facto, provisions of a comment to Rule 237.3, which were
not in effect until after Losier had filed his Petition for Relief, and }
which was not a part of the rule, the lower court violated Losier’s
right to due process and equal protection of the rules of law in
effect at the time Losier’s petition was filed. See Pa.R.C.P. 128,
(providing that in ascertaining the intention of the Supreme Court
in promulgating a rule, the courts may be guided by the
presumption that the Supreme Court dose not intend to violate the
Constitution of the United States or of this Commonwealth).

Furthermore, at the time Losier filed its Petition for Relief
the proper interpretation of Rule 237.3 had been enunciated
in, Peters Township Sanitary Authority v. American Home
and Land Dev. Co., 696 A.2d 899 (Pa. Cmwith. 1997). In

Se

that case, interpreting Rule 237.3 in para materia, with
Pa.R.C.P. 1037 and 126, the Court held that a defendant may
attach preliminary objections as a proposed responsive
pleading, 696 A.2d at 901. The Court noted that Rule 126
[15] requires that “[T]he rules shall be liberally construed to
secure the just, speedy and inexpensive determination of
every action or proceeding to which they are applicable. The
Court at every stage of any such action or proceeding: may
disregard any error or defect of procedure which dose not
effect the substantive rights of the parties.” The Court
reasoned further that the Explanatory Comment to
subdivision (b) demands the more expansive reading:

If the petitioner files a petition for relief after entry of the
judgment on the docket, the rule requires the court to open the
judgment if the proposed pleading states a meritorious cause of
action or defense.

The appellate court found further support for its interpretation
from the comments to Rule 1037 pertaining to Judgment Upon
Default or Admission:

The rule spoke of failure to file “an answer.”
This left unclear the effect of filing preliminary
objections. This rule is changed to refer to “a
pleading,” a term which under Rule 1017(a)
includes both an answer and preliminary
objections. The filing of an answer or preliminary
objections will clearly prevent the entry of a
default judgment.

696 A.2d at 901.

The Court concluded:

Based upon our review of rules 126, 237.3 and
1037, in conjunction with their associated
Explanatory Notes, we conclude that [defendant] —
did not invalidate its Petition to Open by attaching
preliminary objections, rather than a complaint or

ee ee

answer, to that Petition, and we believe that the
trial court abused its discretion by finding that it
did.

696 A.2d at 901.

Furthermore, even if Losier’s Petition was “technically” flawed
in that Losier sought to file Preliminary Objections rather than an
“Answer” to Kalatschinow’s Complaint, the Court elevated from
over substance, thereby abusing its discretion, by not allowing |
Losier leave to resubmit the proposed responsive pleading in the ;
form of an answer to the Complaint, so as to comply with Rule
237.3. See MacGregor v. Mediq, 395 Pa. Super. 221, 576 A.2d
1123 (1990). [16] Therein, a panel of this Court reversed the trial
court’s denial of the Appellant’s request for leave to amend the
pleadings, stating:

“although the decision of whether to grant
leave to amend a pleading is a matter of judicial
discretion, such amendments should be allowed at
any stage of the proceedings to secure a decision
on the merits, unless they violate the law or
unfairly prejudice the rights of the other party.
(citation omitted). Thus, if no prejudice results,
pleadings may be amended after pleadings are
closed, while a motion for judgment on the
pleadings is pending, at trial, after judgment, or

after an award has been made and an appeal taken
therefrom.” Biglan v. Biglan, 330 Pa. Sper. 512,

§21, 479 A.2d 1021, 1025-26 (1984)(citations
omitted). “The fundamental purpose of this rule is
to prevent cases from turning on purely technical ;
defects.” Id. At 521,479 A.2d at 1026.

395 Pa. Super at 227, 576 A.2d at 1126 (emphasis added).

Finally, The Court’s elevation of the comments to Rule 237.3 to
a Rule of substantive law, and retroactively applying the comments
so as to deprive Losier of the right to rise defenses via preliminary
objections (a legitimate pleading pursuant to Pa.R.C.P. 1017),
violated Losier’s right to equal protection of the rules of the

Supreme Court in effect at the time Losier filed its first and second
petitions.

Because the lower court erred in the application of the rules of
civil procedure, and abused its discretion in not permitting Losier
to re-submit its Petition in the format required by Rule 237.3, this
Court should reverse the lower Court’s denial of Losier’s first
Petition for Relief from Default Judgment, its Motion for
Reconsideration, and its second petition for relief.

B. THE LOWER COURT ABUSED ITS DISCRETION,
AND DENIED LOSIER DUE PROCESS WHEN IT
REFUSED TO PERMIT LOSIER TO INTRODUCE
ANY EVIDENCE IN ITS DEFENSE, OR CROSS-
EXAMINE KALATSCHINOW, AFTER LOSIER
HAD COMPLIED WITH THE COURT’S PRIOR
DISCOVERY ORDERS.

The lower court refused to allow Loiser to introduce any
evidence in its defense, or to cross-examine Kalatschinow, on the
ground that Losier had failed to comply with previous [17]
discovery orders. While PaR.C.P. 4019( c ) (2) authorizes a trial
court to enter orders prohibiting a disobedient party from
introducing evidence at trial. However, that rule does not apply in
this matter, since Losier complied with the Court’s discovery
orders. Losier and Pierre were deposed, on April 5, 2002, and all
documents Kalatschinow requested pertaining to Losier and
Pierre’s finances were disclosed to Kalatschinow well in advance
of trial. (June 2-4, 2002).

Once Losier had complied with the Court’s discovery orders,
the rationale for the imposition of sanctions no longer existed, and
the lower court abused its discretion in refusing to rescind the
sanctions.

The Court also erred in determining that it lacked any basis to
modify or rescind the prior orders of court imposing sanctions. In
general, judges of coordinate jurisdiction sitting in the
circumstances, this rule can be disregarded. Commonwealth v.

Starr, 664 A.2d 1326 (Pa. 1995). These circumstances are defined

as a substantial change in the facts or evidence giving rise to the
dispute involved or where the prior holding was clearly erroneous

and would create a manifest injustice if followed. Ibid (eraphasis
added).

In this matter, at the time of the trial on Kalatschinow’s claim
for damages, Losier had fully complied with the court’s prior
discovery orders. Furthermore, facts uncovered during discovery
and the damages hearing disclosed that Kalatschinow had
misrepresented material facts pertaining to the nature and amount
of his damages claim. Among other things, Kalatschinow had
falsely claimed in his complaint and pre-trial memorandum, that in
defending himself in the underlying action, Bombaci v. Sassafras,
he had incurred damages in excess of $50,000.00 (Complaint, R,
34a), and attorney’s fees and other expenses in the amount of
$5,000.00 (Plaintiff's Pre-Trial Memorandum, R, 344a). It was
revealed at the trial on [18] Kalatschinow’s damages claim, that
no such damages fees and expenses had been incurred by
Kalatschinow (R, 250a; Op., p.19)

Where, as here, Kalatschinow had clained in his Complaint that
Losier had knowingly initiated and continued a false claim against
him, and at trial to assess his damages Kalatschinow admitted that
he had misrepresented material facts in his complaint and pre-trial
memorandum presented to the court, it is clear that Kalatschinow
had “unclean hands” in this matter. Kalatschinow’s intentional
misrepresentations to the Court justified lifting the sanctions
previously imposed so that Losier could defend itself under the
equitable doctrine of “unclean hands.” Equity and due process
demanded that, at a minimum, Losier should have been permitted
to cross-examine Kalatschinow regarding all of his claims.

Since Losier’s situation came squarely within the exception to
the rule that courts of coordinate jurisdiction should not overrule
each other, it was abuse of discretion and a manifest injustice for
the Court not to vacate its prior order prohibiting Losier from
introducing evidence in its defense or cross-examining
Kalatschinow.

Cc. THE LOWER COURT ERRED IN
AWARDINGCOMPENSATORY DAMAGES FOR HARM
TO KALATSCHINOW’S REPUTATION AND
EMOTIONAL DISTRESS WHERE KALATSCHINOW
FAILED TO PRESENT SUFFICIENT EVIDENCE THAT
HE SUSTAINED ANY HARM TO HIS REPUTATION OR
EMOTIONAL DISTRESS

With respect to damages in an action brought for wrongful use
of civil proceedings, 42 Pa.C.S.A. section 8353 provides as
follows:

When the essential elements of an action brought pursuant to
his subchapter have been established as provided in section 8351
(relating to wrongful use of civil proceedings) the plaintiff is
entitled to recover for the following:

[19]

(1) The harm normally resulting from any arrest or
imprisonment or any dispossession or interference with
the advantageous use of his land, chattels, or things,
suffered by him during the course of the proceedings.

(2) The harm to his reputation by any defamatory matter
alleged as the basis of the proceedings.

(3) The expense, including any reasonable attorney's fees,
that he has reasonably incurred in defending hithself
against the proceedings.

(4) Any specific pecuniary loss that has resulted from the
proceedings.

(5) Any emotional distress that is caused by the proceedings.

(6) Punitive damages according to law in appropriate cases.

Under 42 Pa.C.S.A. section 8354, the Plaintiff bears the burden of
proving damages provided under section 8353.

Kalatschinow produced no evidence to support an award of
damages pursuant to subsections (1) through (3) of section 8353.
No evidence was produced to show that Kalatschinow had been |
imprisoned, dispossessed of his property, or that the lawsuit had i
interfered with the use of his property or business. The lower t
Court conceded that Kalatschinow incurred no attorneys fees or
other expenses in defending the underlying civil action.
Kalatschinow was not the defendant in the underlying action and
expenses were paid by the insurance company for Sassafras
International Café, not Kalatschinow.

Kalatschinow also failed to prove any specific pecuniary loss of
his business under subsection (4). Although Kalatschinow testified
that after the suit was filed he lost ten percent of his business, he

AN a my an se

produced no evidence of the monetary value of his business ether
before or after the suit was failed, so as to enable the Court below
to determine the specific amount of his loss.

[ 20]

The Court acknowledged Plaintiffs failure to prove any
specific pecuniary losses or damages (R, 250a; Op., p.19).
Nevertheless, despite a total lack of evidence of any pecuniary
losses, the lower Court pronounced that Kalatschinow had suffered
harm to his reputation and emotional distress and awarded
compensatory damages in the amount of $10,000.00 against Losier
Picard Losier & Associates.

The Court’s award was arbitrary, based on insufficient evidence
and against the weight of the evidence. Kalatschinow presented no
evidence that his personal reputation in the community had been
harmed by the underlying suit, and the court below acknowledged
as much in its opinion:

“[Kalatschinow ] testified that he felt like his restaurant had a
bad atmosphere about it as a result of the lawsuit that was filed by
Mr. Bombaci. As a result, two (2) regular customers, Alicia Heck
and Debbie Hagedomy, no longer patronized his establishment and
he lost ten percent (10%) of his business. There is no explanation
why Alicia and Debbie no longer patronize Mr. Kalatschinow’s

establishment as they testified in Mr. Kalatschinow’s behalf at the
arbitration hearing in the underlying matter.”

(R, 250a) (emphasis added).

Because the lower Court lacked any factual basis for its
conclusion that Kalatschinow’s reputation was harmed by the
lawsuit, or that Kalatschinow’s restaurant lost patronage because
his reputation was harmed as a result of the lawsuit, the Court’s
award for harm to Kalatschinow’s reputation should be vacated. 4

The lower court also awarded damages for emotional distress
on the basis of the Superior Court’s holding in Shiner v. Moriarty,
et, al., 706 A.2d 1228 (Pa. Super. 1998), appeal denied, 556 Pa.
639, 523 A.2d 346. Shiner held that expert testimony is not
required to be presented with regard to emotional distress in causes
of action brought pursuant to 42 Pa.C.S.A. [ 2!] section 8351.
While it could be conceded that emotional distress can be
established without producing a medical expert, that begs the
question of whether, in the trial below, Kalatschinow’s testimony

describing his emotional reaction to the underlying lawsuit met the
definition of “emotional distress” as those terms have been defined
and elucidated in prior appellate decisions of this Commonwealth
discussing emotional distress claims. The trial court did not
discuss the sufficiency of Kalatschinow’s evidence on this issue,
apparently on the assumption that any testimony regarding
emotions was sufficient to prove emotional distress.

Losier submits that the Pennsy!vania legislature never intended
to allow recovery of damages when a plaintiff merely feels
nervous, scared, disbelief, or similar emotions that a person of
normal sensibilities would ordinarily experience in the course of
defending himself or participating as a witness in a lawsuit. Losier
submits that when the legislature provided for damages for
emotional distress, it intended to provide compensation only in
those cases where the aggrieved plaintiff suffers emotional stress
of such severity as to require treatment by a physician. A contrary
interpretation of the terms “emotional distress” would result in
verdicts and monetary awards of damages for the slightest
emotional reaction.

Under the Statutory Construction Act, !Pa.C.S.A. section 1922,
in ascertaining the intent of the General Assembly, the Court must
presume “That the General Assembly dose not intend a legislature
surely must not have intended to achieve the absurd result of
plaintiffs recovering large damage awards predicated upon the
slightest emotional discomfort occasioned by a violation of section
8351. Nor should the court presume that the legislature intended to
create

FN4 Kalatschinow also failed to prove any actual pecuniary
losses as a result of losing two of his regular customers.

[ 22]

two different classes of plaintiffs claiming emotional injuries,
giving a plaintiff in a section 8351 action strategic advantages over
a defendant that a plaintiff alleging Intentional Infliction of
Emotional Distress (IIED) would not have. Conversely, a
defendant in a section 8351 action is exposed to greater liability for
conduct that in many cases will be much less offensive than tat
required te prove ITED.

Under section 46 of the Restatement of Torts, 2d, to establish a
cause of action for IIED, the plaintiff must prove that the
defendant’s conduct was “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community.” Under section 8351, a plaintiff need prove
only that the defendant’s actions were grossly negligent, or without
probable cause and for an improper purpose. 42 Pa..C.S.A.
8351(A) (1). Therefore, a plaintiff in a section 8351 case need not
prove that the defendant’s conduct was outrageous or extreme in
order to recover for emotional distress.

Except in the most egregious cases, it is difficult to imagine
that wrongful use of civil proceedings would involve conduct “so
extreme in degree as to go beyond all possible bounds of decency”,
“atrocious”, and “utterly intolerable in a civilized community.”
Therefore, Losier submits that it is unjust, inequitable, and
unrea* onable to deny recovery to victims of truly outrageous acts
on the basis that they are unable to present expert medical
testimony of their emotional injuries, while permitting recovery to
victims of far less offensive conduct upon the basis of lay
testimony alone.

The unequal burdens of proof for essentially the same injury
actually encourages people to commit outrageous acts against a
would be adversary, rather than chance initiating suit to

FNS5 Losier had filed a motion in limine to bar Kalatchinow
from presenting any evidence of his emotional claims, absent
medical testimony.

[ 23]

Settle their differences, upon pain of subsequently having to
defend oneself in a section 8351 action. Under the unequal
standards of justice now I force pursuant to Shiner, persons whose

conduct is so outrageous that it cannot be tolerated in a civilized
society can rest assured that when their victim comes to court, her
burden of proving that she suffered emotional distress will be
great, while the person whose conduct is less extreme or
outrageousness, may find himself liable for great damages upon
the slightest proof of emotional injuries.

One need only examine Kalatschinow’s selective choice of
remedies in the action below to see the mischief to be averted if
section 8351 actions and ITED claims were made subject to the
same burden of proof. In Kalatschinow’s complaint, Losier was
charged with behavior that was “extreme and outrageous”
(Complaint, R, 33a-34a, Count I par. 29; Count Il, par. 36).
Extreme and outrageous behavior is an element in a cause of action
for MED. However, Kalatschinow’s learned counsel, no doubt
aware of the higher burden of proving emotional distress in ITED
cases, wisely omitted from the complaint a claim for IIED. Thus,
Kalatschinow was able to recover monetary damages upon little or
no evidence of emotional injury. The legislature cannot be
presumed to have intended such an absurd result.

Losier asserts that due process and equal protection require that
a plaintiff seeking to recover damages for emotional distress under
42 Pa.CS.A. section 8353, should be required to meet the same
burden of proof required of a Plaintiff seeking recover for IIED, as
elucidated in the Pennsylvania Supreme Court’s opinion in
Kazatsky V King David Memorial Park, 515 Pa. 183 (1987).
Therein, the Court stated the proper standards for determining
when an emotional response to a given event or events will
constitute “emotional distress’ of the kind justifying the award of
compensatory and punitive damages. Citing its decision in Sinn v.
Burd, 486 Pa. 146, [24] 404 A.2d 672 (1979), the Court
established an objective standard for the recovery of damages,
limiting recovery for:

“serious mental distress to situations where a reasonable
person normally constituted would be unable to adequately cope
with the mental stress engendered by the circumstances of the
event.”

515 Pa. at 193. (other citations omitted)(emphasis added). After
discussing the inherent difficulties in distinguishing between the
outrageousness of the defendant’s conduct and the plaintiff's
resultant injury, the Court held as follows

It is basic to tort law that an injury is an element to be proven.
Given the advanced state of medical science, it is unwise and
unnecessary to permit recovery to be predicated on an inference
based on the defendant’s “outrageousness” without expert medical

confirmation that the plaintiff actually suffered the claimed
distress. Moreover, the requirement of some objective proof of
severe emotional distress will not present an insurmountable
obstacle to recovery. Those truly damaged should have little
difficulty in procuring reliable testimony as to the nature an extent
of their injuries. We therefore conclude that if section 46 of the
Restatement is to e accepted in this Commonwealth, at the very
least, existence of the alleged emotional distress must be supported
by competent medical evidence.

515 Pa. at 197.

Losier asserts that Kazatsky enunciated the proper application
of the law in this Commonwealth, and that under the standards set
forth therein, Kalatschinow failed to prove that he suffered the
kind of emotional distress which the legislature intended to be
compensable under 42 Pa. C.S.A. section 8351.

The case cited by the lower court in support of its award of
damages for harm to Kalatschinow’s rreputation and emotional
distress, Cilo v. Shields, 33 Pa. D. & C. 4", 10(Pa. Com. PI. 1996)
lacks precedential authority and is easily distinguished from
Kalatschinow’s situation. In_Cilo, the plaintiff was an attorney
who bought suit for wrongful use of civil proceedings against the
husband of one of his clients. The trial court awarded
compensatory [25] damages for the attorney’s claims for
emotional distress and harm to the attorney’s reputation, based
upon the fact that the defendant’s filing of the complaint against
the attorney in Common Pleas Court was not only open to the
public, members of the bar, courthouse employees, and Judges of
the court wherein he regularly practiced. Additionally, the time
consumed in preparing his defense in the civil action had distracted
him from his regular practice of law. In Cilo, because the plaintiff
was an attorney, the defendant’s filing of the lawsuit had an
immediate negative impact upon the attorney’s reputation, law
practice, and emotional state.

Unlike the attorney in Cilo, Kalatschino was not personally

named as a defendant in the underlying litigation (Bombaci _v.
Sassafras International Café). Therefore, it is impossible to

imagine how the filing of the lawsuit in and of itself, could have
negatively affected his personal reputation on the community.

More importantly, Kalatschinow presented no evidence that his

reputation in the community had in fact been harmed. As the court
below noted, there was no explanation as to why two of his regular
customers stopped coming to Kalatscchinow’s restaurant, as it was
apparent from the record that those same customers had testified
for Kalatschinow at the Arbitration hearing on the underlying case,
and therefore, did not believe that Kalatschinow had committed the
acts complained of. Therefore, the Court below was left with
Kalatschinow’s unsupported imaginary belief that his reputation
had been harmed. Therefore, in concluding that Kalatschinow was
in fact harmed, the Court below engaged in pure conjecture.

Furthermore, unlike the attorney in Cilo, Kalatschinow
presented no evidence whatsoever that he was so emotionally
distracted by the lawsuit that he was unable to carry out his regular
business and social activities, or unable to adequately cope with
unfolding events in connection with the lawsuit.

[26]

In conclusion, Losier submits that, by establishing unequal
standards of proof for plaintiffs seeking to recover damages for
emotional distress under section 8351 than for Plaintiffs in IIED
cases, this Court’s prior decision in Shiner created a legal
distinction without a difference, between plaintiffs seeking redress
for essentially the same injury. In so doing, the Court denied
Losier, defendants in a section 8351 action, due process and equal
protection of the laws under both the United States and
Pennsylvania Constitutions. Indeed, the lower burden of proof for
plaintiffs who claim to have suffered emotional distress pursuant to
42 Pa.C.S.A. section 8353 opens the very floodgates of frivolous
litigation about which our Supreme Court expressed legitimate
concern in its opinion in Kazatsky.

Therefore, Losier request that this Court overrule its holding in
Shiner, to the extent that said holding overruled our Supreme
Court’s holding in Kazatsky by implication, established a lower
burden of proof for plaintiffs seeking damages for emotional
distress in a section 8351 action than for plaintiffs seeking similar
damages for IIED, and created two unequal classes of defendants
in emotional distress cases.

Finally, even if this Court finds that the standards for
admissibility of Kalatschinow’s testimony set forth in Shiner for
proving emotional distress complies with due process and equal

protection of the laws, Losier nevertheless requests that this Court
reverse the decision of the lower court on the ground that
Kalatschinow’s testimony as to his emotional reactions to the
underlying lawsuit was insufficient as a matter of law to prove that
he suffered “emotional distress” as that term was defined by the
Supreme Court of this commonwealth. See Kazatsky, supra.

[27]

D. THE EVIDENCE WAS INSUFFICIENT AS A
MATTER OF LAW TO SUPPORT THE COURTS’ FINDING
THAT APPELLANT PICARD LOSIER & ASSOCIATES WAS
VICARIOUSLY LIABLE FOR THE ACTIONS OF ATTORNEY
ALEX H. PIERRE

The lower court determined that Losier is vicariously liable for
the acts of attorney Pierre under the theory that “a master is a
principal that is responsible for the acts of his agent, a servant on
the basis of vicarious liability due to the nature of control retained
by the master” (R, 253a, Op. p.22). The problem with the lower
court’s finding is that there is no evidence in the record that the
relationship between Losier and attorney Pierre was that’ of master
and servant. While the court below may have correctly stated the
general rule, the court failed to properly analyze and apply the law
pertaining to principal and agent, master and servant, and therefore
reached the wrong conclusion with respect to Losier.

Not every relationship of principal and agent forms the basis of
vicarious liability of the principal for the acts of the agent. To
establish tort liability of the principal for the acts of his agent, the
plaintiff must show that the agent was subject to the principal’s
control over the details of his performance of the task for which he
was appointed. See Shiner v. Moriarty, 706 A.2d at 1240 (Pa.
Super. 1998). See also, Smallich v. Westfall, 440 Pa. 409, 269
A.2d 476 (1970), wherein it wes explained that only the degree of
control involved in a master-servant relationship, a subspecies of
agency, is sufficient to establish vicarious tort liability.

There is no evidence in the record to support the lower court’s
conclusion that the relationship between Losier and Pierre was that
of Master and Servant, since no evidence was presented that Losier
retained any control over Pierre’s handling of cases on Losier’s

behalf in general, or with respect to the underlying case forming
the basis of Kalatschinow’’s action below.

[28]

The interrel.*ionship between the concepts of principal and
agent, master and servant and the circumstances which will give
rise to vicarious liability of the principal for the acts of his agent
were eloquently explained by a panel of his Honorable Court in
Juarbe v. City of Philadelphia et., al., 288 Pa. Super. 330, 431 A.2d
1073 (1981). In summary, a principal will be vicariously liable for
the acts of his agent only if two conditions are met:

(1) _ the relationship between the principal and his agent must
e that of master and servant, rather than independent
contractors; AND

(2) the principal (master ) must retain control over the
agent’s (servant’s ) performance of work on behalf of the
principal.

The Court explained as follows:

A principal and agent can be in the relationship
of a master and servant, or simply in the status of
two independent contractors. See Smallich v.
Westfall, 440 Pa. 409, 269 A.2d 476 (1970);
Turley v. Kotter, 263 Pa. Super. 523, 298 a.2d 699
(1979). Ifa particular agent is not a servant, the
principal is not considered to be a master who may
be held vicariously liable for the negligent acts of
the agent (citations omitted). A servant is an agent
whose physical conduct in the performance of the
service is controlled or is subject to the right of
control by the master ; that is, a master controls
not only the results of the work, but the manner in
which the work is to be performed.

288 Pa. Super. At 335 (emphasis in the original). Since an agent
who is not a servant is not subject to any right of control by his
principal over the details of his physical conduct, the responsibility

rests upon the agent alone, and the principal is not liable for harm
caused by his unauthorized negligent physical conduct.
Gajkowski v. International Brotherhood of Teamsters, 350 Pa.
Super. 285, 302; 504 A.2d 840, (1986) (emphasis in original).

The record presented below established that at the time the
underlying lawsuit was filed, April 15 1998, and for several years
thereafter:

[29]

(1) attorney Alex H Pierre (‘Pierre’) was employed by
Losier (a sole proprietorship) as an independent
contractor to perform work on personal injury and other
matters which fell outside of Losier’s primary practice
of law, workers’ compensation;

(2) Losier exercised no control over Pierre’s handling of
cases assigned to him or bought by him to the firm;

(3) Losier retained no right to control Pierre’s handling of
cases in this area of practice; and

(4) With respect to Pierre’s representation of Mr. Bombaci,
in the underlying matter, Losier had no involvement in
the matter, exercised no control over Pierre’s handling
of the matter, and retained no right to exercise control
over Pierre’s handling of the matter.

In his deposition on April 5, 2002 6 Losier’s owner and
proprietor, Picard Losier (‘P.L.’) testified that Pierre, was an
independent contractor associated with the firm to handle personal
injury and other types of cases outside of the firm’s primary area of
practice, workers compensation. (P.L. Deposition (Dep.), R, 315a-
316a, 319a; Dep., pp. 8-12, 21-24). P.L. testified that depending
upon the source of the business, Pierre received either a draw or a
percentage of his productivity which varied from thirty to fifty
percent (R, 318a: Dep., pp. 17-18).

With respect to management of the work of the firm, P.L.
testified that Pierre had authority to handle litigation as he felt
appropriate, tat he did not “micromanage” and trusted people to do
the right thing, and that he trusted Pierre’s judgment, expected him
to handle his caseload and do whatever had to be done (R, 319a-

320a; Dep., pp.21-24, 28).7 Additionally, P.L. testified that he
gives Pierre a 1099 tax form and takes no taxes out of Pierre’s
compensation. (R, 329a, Dep., p.63).

FN 6 R, 314a-342a.

FN 7 The record reflects that even with regard to the matter
instantly before this Court, Picard Losier trusted that Mr.
Pierre would handle the defense of the law firm without his
intervention (R, 323a, Dep., pp. 37-38).

[30]

With respect to Bombaci_v. Sassafras International Café, the
underlying matter upon which Kalatschinow based the instant
cause of action, P.L. testified that he did not know Anthony
Bombaci, that he did not know that Bombaci had been a client of
the firm until after Kalatschinow’s complaint had been filed, and
that after that he learned of the details of Bombaci’s case; that
Pierre was responsible for handling the case as he saw fit and that
he had no involvement at all in the handling of the Bombaci matter
(R, 318a, Dep., pp20-22; R, 321a3, Dep., pp 29-30).

The record supports Picard Losier’s testimony. In the
underlying case, Pierre prepared and verified Bombaci’s
complaint, conducted all discovery, answered the interrogatories
and other requests for discovery propounded by Kalatschinow’s
counsel, attended the deposition of both Anthony Bombaci and Dr.
Yves Jerome, whom Mr. Bombaci had identified as his treating
physician. Pierre also attended the arbitration hearing at which
Kalatschinow prevailed. Pierre prepared and filed an appeal on
Bombaci’s half in Philadelphia Common Pleas Court. Pierre
also prepared and filed the Praecipe to Withdraw Bombaci’s
appeal from the Arbitrators decision.

Sensing that there was a problem with Kalatschinow’s evidence
with respect to the issue of Losier’s control over Pierre’s conduct
of the underlying case, the Court characterized Pierre as an
“employee” based upon the fact that he was at times a salaried
employee compensated via a “draw” against the firm’s funds, prior
to being compensated based upon his productivity and
performance (R, 318a, Dep., pp18-19). However, the manner in
which Losier compensated Pierre for work assigned to him or
brought by him to the firm, is immaterial to the issue of whether

there was a master-servant relationship between Losier and Pierre,
and cannot be used as a basis for imposing vicarious liability upon
Losier. See Turley v. Kotter, 263 Pa. Super.

[31]

523, 398 A.2d 699 (1979). In that case, it was contended that the
method of calculating a truck driver’s compensation and fringe
benefits established a master-servant relationship between the
driver and the owner of the trucking company who had engaged
his services. The Superior Court rejected that contention:
“The lease which provided for the method by

which each party’s compensation was to be

determined stated that the owner’s share was to be

72% of gross revenue... The gross earnings of the

driver and all fringe benefits due to the driver were

to be deducted from the 72% gross revenue and

the difference paid to the owner as equipment

rental. Therefore Plaintiff's compensation was

directly linked to the efficiency of the driver’s

performance. However, this situation does not

establish that Plaintiff had control over the driver.

In many instances the performance of a servant of

a party to a contract will have a direct hearing on

the profits made by the other party to a contract.

This does not establish a master-servant

relationship between the employee and the other

party to the contract.

267 Pa. Super at 532.

Therefore, the manner in which Pierre was compensated for his
services did not prove a master-servant relationship between Losier
and Pierre, and the Court erred in finding that it did.8

The question is whether, from the time that Bombaci_v.
Sassafras International Café was initiated. until the action was
withdrawn, Pierre was an employee subject to the firm’s control. or
an independent contractor with full control over cases referred to
or bought by him to the firm. The record shows that during the

time period in question, Pierre’s relationship with Losier was that
of an independent contractor.

The Court also imposed liability on Losier because Pierre’s
work on the Bombaci case was “within the scope and course of his
employment.” (R, 254a-255a; Op., 23-24). This fact is irrelevant,
since the issue is not whether Pierre’s work on the Bombaci case
was within the scope and course of his employment, but whether

Losier exercised control over the work pe rformed by

FN 8 It should be noted that the court acknowledged that
Losier did not provide insurance or other benefits for Pierre.
(R, 255a; Op., p24)

[32]

Pierre in Bombaci_v. Sassafras International Café. The record
shows that Losier did not at any time exercise control over or
direct Pierre in the conduct of that litigation. In fact, Losier’s
principal, Picard Losier, was not even aware that Bombaci was one
of the firm’s clients until Kalatschinow initiated the instant action
(R, 318a, 321a; Dep., pp. 20-29).

Therefore, the lower Court lacked any basis for imposing
vicarious liability upon Appellant Picard Losier & Associates for
the actions of Pierre.

E. THE COURT ERRED IN AWARDING PUNITIVE
DAMAGES AGAINST LOSIER.

Punitive damages must be based on conduct that is malicious,
wanton, reckless, willful, or oppressive. Dean Witter Reynolds,
Inc. v. Genteel, 346 Pa. Super. 336, 499 A.2d 637, 642-43 (1985).
The record shows that Losier is a sole proprietorship, and that the
principal attorney of the firm, Picard Losier, primarily practices
workers compensation law. The record further shows that Picard
Losier engaged attorney Pierre to handle personal injury cases and
other matters not within Losier’s primary area of practice, and that
Pierre had full control over the conduct of cases to which he was
assigned or which he himself brought into the firm. With respect
to the underlying matter giving rise to Kalatschinow’s cause of
action, neither Losier nor any associate at the firm, other than
Pierre, participated in the conduct of that case.9 Not only did
Kalatschinow fail to prove that Losier’s conduct was malicious,
wanton, redkless,willful, or oppressive, See Witter, supra,

Kalatschinow failed to prove that Losier engaged in conduct of any
kind, with respect to the underlying matter. Therefore there was
nofactual basis supporting the Court’s award of punitive damages
against Losier.

FN 9Contrary to the trial court’s assertion, Pierre was not
“the” associate. Sharon Williams Losier, Picard Losier’s wife,
is also an associate with the firm. (R, 315a-316a; Dep., pp. 8-
16)

(33]

In awarding punitive damages against Losier, the Court relied
upon Kalatschinow’s allegations in the Complaint of outrageous
conduct and entitlement to punitive damages. The court’s reliance
is misplaced. First, Kalatschinow’s legal conclusions as to his
entitlement to punitive damages are deemed to be denied by the Pa.
Rules of civil Procedure, and Losier was not required to answer
those allegations. Therefore, the default judgment entered against
Losier did not automatically entitle Kalatschinow to punitive
damages. Second, since Kalatschinow did not specifically state the
amount of punitive damages claimed, Pa.R.C.P. 1037 required that
he prove facts entitling him to punitive damages. Third, 42
Pa.C.S.A. § 8353 specifically places the burden on the plaintiff,
Kalatschinow, to prove facts entitling him to punitive damages.

Furthermore, even if liability for punitive damages was
factually established upon entry on the default judgment, the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution protects a tortfeasor from the imposition of a “grossly
excessive” punitive damages award. See Shiner, 706 A.2d at 1241
(1996), citing BMW of North America Inc., v. Gore, 517 U.S. 559,
560-61, 116 S.Ct. 1589, 1592, 134 L.Ed. 2d 809, 818 (1996). The
size of the punitive damages award must be reasonably related to
the State’s interest in punishing and deterring the particular
behavior and not the product of arbitrariness or unfettered
discretion. Id. At 567-68, 116 S.Ct. at 1595, 134 L. Ed. 2d at 822.

In Gore, the United States (U.S.) Supreme Court erected three
guideposts for Courts in reviewing the propriety of a punitive
damages award. These are the degree of reprehensibility of the
defendant’s conduct, the ratio of punitive damages to the actual or
potential harm inherent in that conduct, and the existing civil and
criminal penalties for similar conduct. Gore, at 573-82, 116 S. Ct.
at 1598-1603, 134 L. Ed 2d at 826-33.

[34]

Recently, the U.S. Supreme Court has further amplified the
standards established by Gore, in the case of State Farm Mutual
Auto Insurance Co. v. Campbell, Sup. Ct. Docket No. 01-1289,
2003 LEXIS 2713 (April 7, 2003). Therein the Court warned
against the dangers of unfettered Court discretion. The Court
recognized that punitive damages are imposed “for purposes of
retribution and deterrence” and that punitive damages awards
“serve the same purposes as criminal penalties.” Id., at 2717-18.
Because greater discretion is given fact-finders in civil trials as
opposed to criminal trials, there exists a greater danger that the
award may be grossly excessive to the point of causing arbitrary
harm. Therefore, the Court reasoned, it is imperative that an award
of punitive damages be based “upon an ‘application of law’, rather
than “a decision maker’s caprice.” Id., at 2719-20.

Further explicating the guidelines set forth in Gore, the
Campbell Court set forth the factors the Court must consider in
determining whether a tortfeasor’s conduct is sufficiently
reprehensible to warrant imposing punitive damages:

We have instructed courts to determine the
reprehensibility of a defendant by considering
whether: the harm caused was physical as opposed
to economic; the tortuous conduct evinced as
indifference to or reckless disregard of the health
or safety of others; the target of the conduct ha
financial vulnerability; the conduct involved
repeated actions or was an isolated incident; and
the harm was the result of intentional malice,
trickery, or deceit, or mere accident.

Id. At 20. The Court further stated: “[t]he existence of any one of
these factors weighing in favor of a plaintiff may not be sufficient
to sustain a punitive damages award: and the absence of them all
renders any award suspect.” Id. (emphasis added).

Considering the about factors, it is readily apparent that it was
not proven that Losier engaged in any conduct with respect to the
underlying matter that caused Kalatschinow to suffer either
physical or economic harm. Losier did not participate in or control
Pierre’s or Bombaci’s [35] actions in the underlying matter.

| ;

Second, Kalatschinow was not “the target” of Pierre and
Bombaci’s suit, and was not financially vulnerable. Kalatschinow
had no pecuniary losses associated with the underlying matter. In
fact, it was apparent at trial that Kalatschinow had exaggerated and
misrepresented his damages. Kalatschinow failed to prove any
economic losses to his business, harm to his reputation, or
emotional distress beyond that which any adult of normal
sensitivity would ordinarily feel when confronted with a lawsuit.
Kalatschinow incurred no attorney’s fees or expenses as claimed in
his complaint. Therefore Losier’s economic losses and injuries
were largely unsubstantiated.

Third, it cannot be said that Losier engaged in any repeated
pattern of offensive conduct toward Kalatschinow. Even when one
considers Pierre and Bombaci’s filing of the appeal from the
adverse award of the arbitrators, that one act fails as a matter of
law to constitute the kind of conduct warranting punitive damages,
since the period of time Kalatschinow was involved in the suit was
relatively brief (April 1998 to sometime in May 1999), and after it
became apr2rent that Bombaci’s claims had no merit, the appeal
was promptly withc-awn before trial in Common Pleas Court.

In this Commonwealth, in wrongful use of civil proceedings
cases, the Courts have awarded punitive damages against attorneys
only in the most egregious cases. See Shiner, supra. In that case,
the Superior Court upheld a punitive damages award of $1,900,000
against a law firm and its individual attorneys, where it was shown
that in representing tenants attempting to prevent a lawful eviction,
over a five year period the tenant’s attorneys used every available
legal mechanism against the tenants’ former landlords, repeatedly
filing numerous petitions for a stay of execution and injunctive
relief, and several appeals in the Allegheny County Court of [36]
Common Pleas, Pennsylvania Superior and Supreme Courts,
United States (U.S.) Bankruptcy Court, and the U.S. Court of
Appeals for the Third Circuit.

Finally, Kalatschinow failed to pivve that Losier was involved
in any acts of malice, trickery or deceit, even if such acts could be
attributable to Pierre and Bombaci. It really serves no rational
purpose to punish someone who was not involved in the offensive
conduct. Therefore, Losier should not be responsible for punitive
damages awarded on the basis of vicarious liability for Pierre’s
actions or the punitive damages separately awarded against the
firm. 10

However, should this Court find that the award of punitive
damages against Losier were properly imposed according to the
standards set forth in Gore and Campbell, then Losier submits that
the amount of the punitive damages awarded was excessive.
While the Campbell Court was reluctant to set forth a bright line
ratio of compensatory to punitive damages that would be
appropriate, the Court declared that “[w]hen compensatory
damages are substantial, then a lesser ratio, perhaps only equal to
compensatory damages, can reach the outermost limit of the due
process guarantee.” Campbell, at 30-31. Here, the compensatory
damages of $10,000 are substantial in comparison to the actual
harm suffered by Kalatschinow. Yet the punitive damages
awarded against Losier is almost three times the amount of the
compensatory damages.

Moreover, in determining the amount of a punitive damages
award, the Court was required to consider the civil and criminal
penalties authorized or imposed in comparable cases, and the
wealth of the defendant. The Campbell Court acknowledged that
comparable criminal penalties are more often examined when
punitive damages are awarded. It should be noted that a violation
of analogous criminal statutes, filing a false statement or claim
with an insurance [37] company, (18 Pa.C.S.A. § 4117), carries a
maximum financial penalty of $5,000.00 for a first offense. The
court’s award is more than five times that amount.

Finally, in awarding punitive damages, the trier of fact can
properly consider the wealth of the defendant. Kirkbride v. Lisbon
Contractors, Inc., 521 Pa. 97; 555_A.2d 800 (1989). The

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0947%3A2. Public record. Not legal advice.