Oruska, J. et al v. Kelly, P. et al (memorandum)

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J-A07043-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JOSEPH ORUSKA AND CYNTHIA ORUSKA, HUSBAND AND WIFE, AND ANTHONY ORUSKA IN THE SUPERIOR COURT OF PENNSYLVANIA v. PAUL A. KELLY AND JOHN L. VANDERMARK, EXECUTOR OF THE ESTATE OF GUY E. VANDERMARK, SR. APPEAL OF: PAUL A. KELLY No. 1120 MDA 2013 Appeal from the Judgment Entered June 6, 2013 In the Court of Common Pleas of Susquehanna County Civil Division at No: 2006-01754 BEFORE: GANTMAN, P.J. , DONOHUE, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED DECEMBER 09, 2014 Appellant Paul A. Kelly, Esq. appeals from the June 6, 2013 judgment entered by Court of Common Pleas of Susquehanna County (trial court) in favor of Appellees Joseph, Cynthia and Anthony Oruska. 1 Upon review, we affirm. ____________________________________________ 1 Appellant erroneously appealed from the trial court’s June 11, 2013 order denying his post-trial motions. It is settled that an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court. Maya v. Johnson & Johnson, 297 A.3d 1203, 1208 n.2 (Pa. Super. 2014) (citation and quotation marks omitted). In fact, an appeal from an order denying post-trial motions is interlocutory. Id. (citation omitted); (Footnote Continued Next Page) J-A07043-14 This panel previously summarized the procedural history: Briefly, Appellees filed a complaint against Appellant alleging wrongful use of civil proceedings and abuse of process. Following a jury trial, the jury returned a verdict in favor of Appellees. The jury also awarded punitive damages against Appellant. Appellant filed post-trial motions for judgment notwithstanding the verdict (JNOV) with respect to each count of the complaint and with regard to punitive damages. The trial court denied the motions. This appeal followed. Oruska v. Kelly, No. 1120 MDA 2013, unpublished memorandum at 2 (Pa. Super. filed July 11, 2014). Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that it properly denied Appellant’s post-trial JNOV motion. On appeal,2 although Appellant raises 17 arguments for our review, the thrust of his argument is that the evidence is “grossly insufficient” to (Footnote Continued) _______________________ Pa.R.A.P. 301(a), (c), and (d). Here, however, the final judgment was entered on June 6, 2013, and we have corrected the caption accordingly. 2 Our standard of review of a trial court’s denial of a motion for JNOV is as follows: A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant. When reviewing a trial court’s denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. In so doing, we must also view this evidence in the light most favorable to the verdict winner, giving the victorious party the benefit of every reasonable inference arising from the evidence and rejecting all unfavorable testimony and inference. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. If any basis exists upon which the jury could have properly made its award, then we must affirm the trial (Footnote Continued Next Page) -2- J-A07043-14 support Appellees’ causes of action and award of punitive damages.3 Appellant’s Brief at 10. On July 11, 2014, we issued a memorandum decision, remanding the matter to the trial court because we were unable to engage in a meaningful appellate review of the issues raised. Id. at 3. Specifically, we reasoned that the trial court failed to set forth the relevant facts “pertaining to the wrongful use of civil proceedings and abuse of process causes of action, and the punitive damage award[.]” Id. at 6. Consistent with our July 11, 2014 memorandum decision, the trial court issued an amended Rule 1925(a) opinion on September 16, 2014. After careful review of the parties’ briefs, the record on appeal, and the relevant case law, we conclude that the amended 1925(a) opinion authored by the Honorable David J. Williamson adequately disposes of Appellant’s issues on appeal. See Trial Court Opinion, 9/16/14, at 2-17. We, therefore, affirm the trial court’s order denying Appellant’s post-trial motion for JNOV. We direct that a copy of the trial court’s September 16, 2014 Rule 1925(a) opinion be attached to any future filings in this case. Judgment affirmed. (Footnote Continued) _______________________ court’s denial of the motion for JNOV. A JNOV should be entered only in a clear case. Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pa., 872 A.2d 1202, 1214-15 (Pa. Super. 2005) (citation omitted), aff’d, 923 A.2d 389 (Pa. 2007). 3 Appellant essentially argues that Appellees are unable to point to any evidence of record to sustain the jury verdict. -3- J-A07043-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/9/2014 -4- Circulated 11116/201404:45 P COURT OF COMMON PLEAS OF SUSQUEHANNA COUNTY T ffiRTY-FOURTH JUDICIAL DISTRICT COMMONWEALT H m- PEI\'NSYL VANIA JO SEPH ORUSKA and CYNTHIA ORUSKA, hu sband and wife, and ANTHONY ORUSKA, NO. 2006 - 1754 c.P. ,. Plaintiffs \'S. , ) PAUL A. KELLY and JOHN L. VANDERMARK, Execut or of the ESTATE OF GUY E. YANDERMARK, SR., : Defendants PA.R.A.P. 1925(a) AMENDE D STATEMENT PURSUANT TO PA.R.A .P. 1925(a) UPON REMAND This matter has been remanded back to this Court to supplement the prior statement pursuant to Pa. R.A.P. 1925(a), setting forth this Court's reasoning for denial of Appellant's (Paul Kelly' s) Motion for Judgment Notwithstanding the Verdict (JNOV). Appe llant's Motion for JNOV included the wrongful use of civil proceedings cause of action, the abuse of process cause of action and punitive damage claim submitted to the jury. The Superior COUlt has requested this Court issue an opinion identifying the trial evidence relied upon in denying the Motion for !NOVas to those claims. We have supplemented and revised our initial statement filed in this matter as fo llows: Md. Circulated 11f18f2014 04'45 P ThlS matter came before tllis COUl1 followlllg a Jury trial. 'j"he jury returned a verdict in favm oftl,e Oruska<; and against tl,e Appellant Paul A Kelly (Appellant) for \vrongful use of civil proceedings and abuse 0 Cprocess. The jury awarded compcnsatory damages and punitive dmnages. AppeUant filed tllncly post-trlalmotions tl,at were dellled by thi<; Court A J\'otice of Appeal was filed and the Appellant ba<; now filed a Concise Statement o[ !vfattCl"<; Complained of Oil Appeal. The Appellant rai<;ed (17) issues for review on Appeal. 'ne errors complained oChy the Appellant can es<;entially be broken down to the followll1g issue: This Court's failure to grant post-trial motions and judgment notv.!ithstanding the verdict on four separate reyuests Ortl,e Appellant. i This Court did not grant Appellant'<; motion for judgment notwithstanding the verdict (JNOV) as to both count<; of tile suit; wrongful use of civil proceedings and abuse o[proccss. Appellant also requested tllat the punitive damages awarded by the jury be <;et a<;ide. Finally, the Appellant alleges the Court erred by denying the lllotion for judgment notwlthst31lding tl,e verdict (.ll\OV) tl,at rccjuested Imposilion of a remitter of the award of S200,OOO in punitive damages. In support oflli<; motion [or post-trial relief [or JNOV as to the jury's finding of wrongful use of civil proceedings, the Appellant states the Oruskas failed to meet tlleir burden of proof Specifically, the Appellant argues the Oruskas did not prove tI,e Appellant acted without probable cause in filing civil proceedings as an atlorney and on behalf of hltl1Se][ against tile Oru<;kas, The Appellant claim<; in tl,e alternative that the Oruskas failed to prove the Appellant acted in a grn<;sly neglrgent manner. The Appellant next contends that the Oru<;kas failed to prove the proceedings were instituted for an improper or malicious PUll'ose unrelated to <;eemillg an adjudicatton of the claim<; on which the proceedings were based. finally, the Appellant I Appellant als() alleges this Court erred in not granting compulsory non-'iuil iind dJrected verdict as to all counts. 2 CI"",!ed 11/1812014 ON5 pr , alleges the Oruskas failed to prove the underlying action \vas an action term mated Oruskas. This includes tbe Appellant's cuntentiun that the ()nl.~kas 111 favor of the did !lot prove the underlying action \\'as terminated in favor of per~()ns against ,Vhlltn they were brought a~ the result of some lillgious actilll1 a~ defined by this Court 111 instructions to the jury. As to \vnmgful use of civil proceedings, the relevant StatuLc slates as !c)llc)\vs: " A per.~on "vho takes part 111 the procurement, ll1itiatilll1, Of continuatioll of and pmceedings against 31lDthcr is subject to liabil ity to the other for wrongful use of civil proceedings: I. He acb in a grossly negligent manner or \vithout probable cause and primal'lly for a purpose other tllall that D[ secunng tIle proper discovery \ joinder of pmiies, Dr adjudication of the claim in \"hich the proceedings are based; and 2. The pwceedings have terminated in favor Dr the person agairlst \"hom they are brought" 411'a. C.S A §8351 (3)(1). The facts set finih at trial included testimony regarding 1\"0 underlying actions that led to a suit filed under the caption suhject to this appeal (#2006 Ciyil 1754), and Olle under a caption not on appeal (#2007 Civil 229; also referred to herein as the "ejectment action"). In the eJectment action, Appellant filed suit on hehalf Dr Guy Vandermark agamsl the Oruskas, and it \vas ultimately settled and dismissed. (The parties agreed tlle Oruskas o\\'lled the land upon which the ejectment action vms based?) As a result, this Court granted A])pellant's request 1'0], a non-suit as to the count of wrongful use of civil proceedings that pertained to that underlying case (#2007 Civil 229). The jury still found that Appellant had committed an ahuse of process in Tlic partir:,., slipulated to the Oruskas ownmg the disputcd ],llld a., part of the Ol'u.,ka~\ request fOT qLllet titlc 'declaratory relicfbroughl by a ~epar,ltc claim, and summary judgmcnt was entered in favor of tbe OrLlskas on thc e,icctmcnl count. 2 3 I Circulated 11f18f2014 04'45 ~M that case, llllt awarded $0 in damages. That matter, #2UU7 Civil 229, is not on appeal. The other sLiit filed hy the Oruskas under this caption, #2U06 Civil 1754, claimed that the Appellant acted llnpropcdy in a separate sliit ill which he was a PlaintiiI and also the lawyer fOI" other CoPlail1tifTs, agamst tbe Onrsbs. Appellant and his olbel" Co-Plaintiffs claimed the OlUskas committed various torts, lllcluding mterference with contractual ohligations. Appellant also made contract and qU3s1-con1ract chums TJl8t slIit was voluntarily discontinued ll)' Appellant on his own llcbalftbc ddy after the PlaintifilOruskas, as Defendants in that case, praccipcd the maHer for trial. The uthet" Plaintiffs in that case (including Defendant in this matter, Estate or ellY Vandermark) had pt"eyious]y discontinued theu" claims in the action. Notal,l)', the facts showed Appellant had a lease prepared between himself' and (luy Vandenmuk and between himself and the Orllskas fat" quany nghts on l,oth the Vandermark and Oruska property. (:'-,1.1. 5/l3/13 pp. 37-38 and 78-79; Plaintiff's Exh. 863-;\; Pbltltiffs Exh. S()3-182, ~.T. 5/l 5/1 3 pp. 55-56) The Vandermark ,md Oruska property lxmicred each otber. (Pbintilrs Exll. 463])), Quarrying activities subsequently took place on both the \iandenllat"k and Ol"Uska propertie!) at the C0l111110n horder of the two properties. The Oruskas latet" questioned the royalty payments they were receivLng from Appellant under the Lease. (Plaintiff's Fxh. S63B). They believed Kelly w,is yuart"ying mare from theit" property than they were heing paid. (ld.) Appclbnt then filed an ejectment action against the Oruskas on hebalf of Vanderma.l"k shortly therealter (Plal11tiffs Exh. 863-1) That was the m8tlet" eyentually settled hy the parties t1181 was the sllhJect ofclaulls in case #2007 Ovi1229, which is not on appeal. The eJectment action claimed the Orusbs did nol actllally ovm the land upon which the quarry \""a~ located, rather C;uy V8ndelll13rk owned the entire land upon which the qualT)' was located. Paul Kelly, \vho had Circulated 11/18/201404:45 P a lease with both Oruska and Vandermark to mine the quany, liled the suit for Vandermark against Oruska, (Id.) Appellant had also arranged for other patiners or subcontractors, referred to in this suit as the "QumTymen", to operate the quarry on lands of Vandermark and Oruska to remove stone. (N.T. 5113113 pp. 88-90; N.T. 5114113 pp. 120-123, 153-157, 175-177). Testimony of Joseph Oruska, Paul Kelly and (he quarrymen (Joe Roberts, James Donahue and Ronald Degraw) showed the Oruskas and AppelJant had further disagreements about their Lease and quarrying actLvity, Appellant then filed the separate underlying suit agmnst the Oruskas, hoth on his behalf, and on behalf of tbe Quarrymen partners and Vandermark. (Plaintiffs Exh. 862-4). The suit \vas amended to add Joseph Oruska's brother, Anthony Oruska as a Defendant. (Plaintiffs Exh. 862.24). That suit was eventually voluntarily disconttnued by the Quarrymen, and the Vandermark Estate:' (Plaintiffs Exh. 862·32; Plaintiffs Exh. 862·36). Appellant eventually discontinued the suit on his own behalf, but only after the Oruskas filed a praecipe to list the matter for trial. The actions in that suit gave rise to the Oruskas' claims for wrongful use of civil proceedings, abuse of process, and punitive damages in this matter, now the subject of the appeal. There were enough facts for the malter to go to ajury to consider wrongful use of civil proceedings. In reviewing all of the facts as a whole, a jury could have found the Defendant acted in a grossly negligent manner, or without probable cause and primarily for a purpose other than securing proper discovery or adjudication of the claims in the proceedings. Although the existence of probable cause is a question of law, the stahlte contains three dtfferent factual proof :---._---- .. Guy Vanuermark did during tht: proceedings on February 1-1, 2006, and his Estate, by his Executor Jolll1 Vanuermark, was substituted as the correct party. (Plaintiffs Exh. 863·134), J 5 Circulated 11/18/201404:45 P standards, such that a jury has to decide ,,,,hether or not these facts have been proven, Bannar v. Miller, 701 A.2d 232 (Pa. Super. 1997). Probable cause exists if a person who takes part in civi.l proceedings reasonably believes in the eXLstence of the facts upon which the claim is based and either: (1) Reasonably believes that under those facts the claim may be valid under the existing or developing law; (2) Believes to this effect in reliance upon the advIce of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and infonnation; or (3) Believes as an attorney of record, in good fmth that his procurement, initiation or continuation of a civil cause is not llltended to merely harass or maliciously injure the opposite paliy. 42 Pa. C.S.A. §8352. An attorney acts ,,,,ithout probable cause on behalf of clients when he so acts with the belief the claim will not succeed, but continues it anyway for an improper purpose. KellvSpringfield Tire Co, v. D' Ambro, 596 A.2d 867 (Pa. Super. 1991). Absent material conflicts in evidence, the presence of probable cause is for a Court to detennine. M~iksin y. Howard H<±nna Co., Inc., 590 A.2d 1303 (Pa. Super. 1991). But, the objective reasonableness of the belief in probable cause is a credibility issue for ajury to determine. J)lllUlar, supra. IIere, there were various factual issues. Many of the factual issues rested on the credibility of witnesses. The facts for a jury to weigh consisted of the following: Oruska had a business relationship with Appellant Kelly as previously cited herein. '111is business relationship allowed Kelly to quarry and remove stone from Oruska's land in exchange for royalties based upon a percentage of monies received when the stone was sold. (Plaintiffs Exhibit 863-A-Quarry Lease). Kelly was a practicing attorney at the time. (N.T. 5114/13 pp. 190-191). Kelly also entered into a business relationship with Guy Vanderrnark. (1\.T. 5/13/13 pp. 37-38, 78-79; N. 1'. C",,'ated 11/181201404 ..5 5/1S/13 Pl'- 55-56). Kelly had represented Guy Vandellllark since rrt least 1972. as one of his first client~. (?\T.T. 5il4/J 3 pp, 219; 191). Kelly hrrd both [eases prepared by h1:;;; ]!rrrtner/brother IJa\vrence Kelly (I\."l' 5/14/13 pp. 207; 221-222). Kelly testified thai there small quarry on Vandermrrrk's land first. Od. llllly have been a At pp. 207-208). Kelly believed the quarry he operated expanded from Oruska's lrrnd to Vrrndermark's land. (Jd. pp. 208-209), J osepb Oruska believed Kelly \vas not [lccDunting propeJ 1)' for all of the stone removed from his property. (Plaintiff~ Exhibit 86~-A; N.T . .')/13/J 3 pp. 124; l\'.T. 5/14/13 pp. 209-210), Oruska believed this persistence in questioning Kelly ahom royalties ,vas (he ultimate rea~on Kelly filed the ejectment suit on behrrlf of Vandermark, rrnd the claims filed on behalf of the quanymen, Vandermark. rrnd Kelly himself; a~ retrrliation. These ~uit~ \verc filed by Kelly <;oon after Oruska, through his attorney, gave notice of termination of the Lease Agreement on September 7, 2004 (Plrrintiffs Exh. 863-B). Cynthirr OrllSka testified that dming the teml of the Lease with Prrul Kelly, and prior to the Oruskas termimting the Lease, Paul Kelly hrought her a check for royrrlties. The back of that check had typed on il rr strrteme11l that by endorsing the check, the ljWl.rry lease \\"Ollld be extellded for rrll rrdditional ten years. (N.T. 5/13/13 pp. 123-124). The origiml Lease Agreement presented by Paul Kelly to the Onlskrrs for the quarry called for a ten year term on tell acres ofbnd. Joseph Oruska crossed that out and l11serted five years and five acres. Od. pp. 79; Plaintiffs Exhibit 863-J\-Quarry Lease). '111erefore, the check for royrrlties presented by Kelly to Cynthia OrllSka, purported to chrrnge the terms of the lerr~e if endorsed. Cynthia Oruska further testified that Prrul Kelly came to see her at the office she \\"Ol"ked 111 at the time in the Susquehannrr Cmmty Coul1house \vhile the Lease v·,'rrs stil1lll effect. 7 r Circulated 11f18f2014 04"45 P She stated that Paul Kelly told her that "if my husband didn't stop asking questions about the accounling, that this \vas going to get ugly." (.\.'1'. 5/13/13 pp. l24). This \""as PrJor t() the Oruskas gJying notice of termination of the Lease, and prior to the lawsuits ftied by Kelly. There was also eyidence introduced regarding the ejectment action filed hy Kelly on bc11alf of Vandermark against (huska. 'l"he matter eventually I,vas settled by stipulation, recognizing ownershIp of the disputed laJlds as belonging lo Oruska. As the matter ended by a settlement, the \""l"Ollgful use of ciyi] process claim \""as dismissed by this Court as to that actIOn HoweyCl", we note in that matter, Kelly filed a deed on behalf of Vandermark, claiming Vandermark owned 16 acres or land believed to be O\vned by Oruska. This deed \""as filed ailer Oruska lerminaled the Lease \vllh Kelly (Plaintiff's Exh. 863-57 - attachment NT. 5/13.,1337:18)_ Kelly later filed a deed in which he and his wire were Grantors and Cynthia Oruska Grantee, purporting to qLllt claIm any interest (iuy Vandemlark had in the 16 acre parcel, but stated it in no \""ay affected the quarry lease of Oruskas and Paul Kelly. (Plaintiffs Exb 863126-4 & Exh. 863-C)-t. This deed Iva') recmded 1/31/2006. (Id.) "lhe deed \\-as ultimately set aside and declared a Ilulhty by the Court. (Plaintiffs Exh. 863-145). Prior to settlement oIthe ejectment actlOn_ Paul Kelly \vas remoyed as counscl for Vamlemlark due to a connlCl of Juterest. (N.T. 5/15/13 pp. 75-76). Howeyer, he still filed the quit clalln deed thereafter purpOliing to declare (iuy Vandermark had no interest in the disputed 16 acre parcel. The 10rt c1alll1 and breach of contract case continued. Roberts, Donahue and iJegra\\-, (the "quarrymen"), yoluntarily discontinued 111e matter as lo them in October 2005 (.\ .T. 5/14/13 pp. 146; 161: 182- 183; Plamlifr s Exh. 862-32 recorded April 4; 20(5). The Vandemlark Estate filed a discontinuance June 5, 2006. (Plaintiff's Exh. 862-36). The "We note this was shOlt!y before the Vi:lndermark Esti:lle and Oruskas settled the ejectment action aod agreed the Oruskas owned the disputed land and prior to Kelly discontinuing his OWI1 action agaimt the Oruskas for breach of contract regarding the Q1Ii:IJry Lease. 8 C",,'ated 11/181201404 ..5 qumrymcn all signed (lfftd(lvits III October 2007 regcuding the rCi1S011S for their suit tlWl were prcpnred by Peml Kelly_ (Def. Kelly Exh. 36,37,38; \r.T. 5/14/13 pp. 145; 158; 171-172). The discontinmlllCCS were Clbo prcp(lTcd by Paul Kelly (Pl(lintitrs Exh. 862-32 (lnd 862-36). On JUllC 5,2000, the nHorney for the Orusbs placed the c(!se 01l the trial list. (.1\.1. 5/15/13 p. 64) Pi1u) Kelly filed a discontinuance on behalf of himself as Pbintifftllc next d(lY (Td. P 65). No dl~covcry WClS tnken ,lIld the IllCltter never proceeded to trinl. (ld. At 66). After the filing of the to Ii claim (,llld breach of contwct Celse against the Onlskns, Paul Kelly was directed by the Comlto file em amended pleClding clarifying thell the Amended Comp!,unt previously filed in the mi'ltter W(lS filed solely on behalf of Kelly representing hImself nnd not on behnlfofthe uther PlnintifTs. (Defendcmts' Vandermarks Exh. 862-23) hItting nil uf these r:'1ClS together, Orusb cl(limed probClblc e(luse existed that the suit was brought by Pmll Kelly on his own behCllf, Clndiur on beh(llf of his clients, in lJi1d faIth nnd for improper rensollS. The renson bemg rewliation for questioning the accounting and termi]wting the QlldIT:;' Lease with Pmll Kelly. It could be inferred from thIS testimony tlwt the Oruslws believed Pmd Kelly Clcted with m(liice to Ci'll1se hann to the Oruskns. Viewing these facts in the light most f(lvomblc to the Orusk(ls, ns the preVClilmg party, n j llry could find probClble cause existed. The testimuny of the qumrymen and Pmd Kelly \VClS that Joseph Oruska engnged 1ll some, or (lll of the tortlUus conduct eompl(llned of in the bwsuit filed agClinst the Omsbs. '1 here \vas no testimony that Cynlhin Oruska engClged in any threClls or yandCllism. There WClS only Paul Kelly's lestlll10ny that Cynthia Oruska, together with Joseph Oruska, terminnted the Quany Lease. This wns the only testimony in support of the 13re(lch of Contract cbim ilsselied against Cynthin Oruskn, nnd the only clnim that pe11nined to her in the undcrl)"1J1g suit at No. 862-2004, listing Degr(lw, Domhue, Robe11s, VClndennark and Pmll Kelly (lS Pbintiffs. The 9 r Circulated 11f18f2014 04'45 P issue of "\vhether or not smt was brought by Paul Kelly, on his O"\V11 behalf, against C)"nthla Oruska for breach of contract (v./bich would he a reasonable basis for the suit since the QUi:l.1TY T.ease ",'as terminated) as he claimed, or for the mere Pl11110Se to harass CynthIa Oruska, "\vas a question of credibility for the jury to decide. Like,vlse, the testimony of the quarrymen and Paul Kelly as to the: reasons for ["lling their lil\vsurt as to Joseph Oruska ,vas an issue of credibility to be weiglled against the testimony of Joseph and Cynthia Oruska. A jury could choose to llelieve the testllllOn}· of the Oruskas, and based on that testimony, together ".;ith the Pxhlbils and other testimony they found to be credible, find that Paul Kelly initiated the litigation, at least as to hIS own claims, bad 111 eaith and "\vith llltent to hmass the Oruskas for questioning the accountings andior lermll1ating tlle Lease As Cynthia Oruska slated, Paul Kelly told heL prior to termination ofliLe Quarry Lease and the resulting litigation filed by and/or on bel-lalf ofhuuself, that if Joseph Oruska did 110t stop askll1g questions about the accounting, it ,vas "going to get ugly." (K.T 5/13/13 p. 124). The jury could choose to believe this testimony, as the reason Paul Kelly filed suit, at the very least, for hiS own claims made, and not for a legitimate or good faith reason. The jury could cJl()O~e not to believe Kelly's testimony. It appeared to be an issue for thejury to decide as 11 hmged on the credibility and determination of disputed facts. The jury could have found the quarrymen credible, or not, and still found Kelly acted ,VitlloUt probable cause and ,villl the llltent to harass or v.;ith malice. Even if the jury fOUlld the quanyrnen, and Kelly, filed suit for the tOJ1ious conliuct in good faith on behalf of the quarrymen, the jury could fmd Kelly not credible in his testimony regarding fillllg Sllit for his o\vn personal claims. The quanymen and the Vandermark Estate ultimately discuntinued the suit pnor to Kelly doing tlle same. Tlleir claims "\vere separate from the claims of Kelly LO Circulated 11f18f2014 04'45 Theref(He, even if there was undlsllllted eVldence of conduct giving rise to the quarrymen and Vandennark claims, granting probable cause, the personal clamlS of Kelly hHllself mc sepal"il.te and distinct. By filing counts on bel13lf of himself, Kelly holds hirmelf out as more than Just the attorney for the parties; he V'ias a party participant as w"CIl. Therefore, the credIbility of Kelly as to his intent, at least \vith regard to his mvn claims in the law'suit, was an issue in dispute wIth the Oruska testimuny. Putting all of the previously dIscussed trial evidence together with Cynthia Orusb's testimony that P[lul Kelly advised it "WJS goillg to get ugly," supported. [I find.ing that Appellant Paul Kelly acted \vithoul prohable cause and primarily for a purpose other thall il13t of securing the proper discovery, joinder of panics or adjudication of a claim, We concede there is no ~Jlloking gun, per ~e, where there l~ clear evidence of an attorney hringing suit when lhere IS no argument thut under the law recuvery IS impossible. However, there ~tlll has to be Justificatioll for the action taken. Whether or 110t the testimony concerning the justificalioll IS credible or not \vuuld appear to be a question for the jury undcr Meiksin and Hannar supl'a. The facts were abu term mated. 1tl ~uiTlcient that ajury could find the underlying proceeding~ favor of the Oruskas. A prior favorable termiJJatlon need not be an udJLl(lication the merits; It can occur as the result of a voluntary di~missal 011 of the underlying proceeding or an abandonment of the proceedings. DiLorento v. Costigan, 600 F. Supp 2d 671 (E.D. Pa. 2000), affirmed 351 red. App. 747,2009 Wf, 3683784. Therefore, thi~ was a proper factual determination for the jury to consider. There were also issues of fact and credibility of\vilnesses for the jury to \veigh as to the moti vation for the voluntary dismissal. These issues lllcludeu: the tlll11ng of the (hscontinuanee by Kelly orhis claims the day aiter the malter was placed un a lrial list in 2006; the quarryman discontinuing their claims in 2005; the Vandermark Estate 11 M I Circulated 11118/2014 04:451M discontinuing all claims after the death ufGuy Vandermark and resolution of the disputed land case by Stipulatiun in favur of the Oruskas; the fact no discovery took place; and the fact no settlement or agreement was rcached between Oruska and Kelly (or the quarrymen). As such, the jury could find facts sufficient to find the maHer terminated in favor urthe Oruskas. Appellant also contends the Oruskas failed to meet their burden of proving abuse of process. An action for abuse of process requires a showing of the improper usc of process after it has been issued. E!lbUx Drug Co. v, Brever lc.c Cream Co., 32 A,2d 413 (Pa. 1943). The lack ofprobablc cause is not necessary to prove abuse of process. Murph\' v. Shipley, 41 A.2d 671 (Pa. 1945). Here, the Oruskas contended that Appellant, in both underlying actions, continued the suits for an improper purpose. In both instances, the Oruskas alleged the mallers were continued by Appellant after filing, and that further Court hearings were necessary, even though the Oruska::; contended the ~uits lacked merit. The Ormkas alleged the Appellant \:!,'as retaliating against them, over the Quarry Lease. The Oruskas contended that the Appellant continued the suit while lacking proof of events or legal theories. This also included the Appellant continuing his underlying ::;uit, causing the Oruskas to ill(;Ur attorney's fees, even after the other underlying action for ~iectment concerning the propeliy line and extent of the quarry boundaries Oil tbe Oruska property was resolved and after the quarrymen discontinued their suit. The facts and credibility of witnesses was an issue for ajury to decide why the underlying suit was continued under the circumstances. The underlying suit was filed after the Oruskas terminated the Quarry Lease. The relevant testimony in support of the Oruskas' claim for abuse of process was Cynthia Oruska \ testimony about Paul Kelly's statements prior to filing. That statement being that it '\\'as going 12 Circulated 11f18f2014 04'45 P to get ugly" The suit continucd through Amendments to the Complaint (resulting in the FOUl"th Amended Complaint) folloVl.'ing prclinunary objections. The suit continued after Paul Kelly was admonished to file an amended pleading clarifying that the Amended Complaint flIed January 25,2005 was filed solely on hehalfofKelly and not on behalf of the other Plaintiffs. The SUlt claLllling breach of contract on the Quarry Lease continued after Paul Kelly prep:1l'ed and filed a deed (attached to Plaintiff's Exh. 863-57) from Guy Vandermark to Guy Vandermark on Octoher 27, 2004 claiming to ov'm 16 acres purrJOrledly owned by the Oruskas that \vas in dispute in the ejectment case, which eventually settled in favor of the Oruskas. Appellant \','as claiming a hreach of contract by tcnlllnating the Lease at the same time he \,>'as asse11ing on behalf of Vandermark lhat the Oruska:; did not e\'er oV'm the land on which the quarry vms located. 'fhe case continued after Paul Kelly recorded a deed on .r anuary 31 . 2006 hom Paul Kelly and Pamela Kelly pU!1Jorting to quit claim any interest of Guy' Vandermark in Ille disputed 16 acre parcel. (PlaintirCs Exh. 863-C). Said deed had no purpose, "other thatl the acknowledgment ufMr. Vandermark not being the owner or sald 16 acre parcel. 'ihis deed in no way affects the Quarry Lease between the Omsk as and PaulA. Kelly." (TeL). ny Court Order dated June 6,2006, the Court in case No 863-2004 (ejectment case - Vandermark v Oruska), concluded that the panics had settled their boundary l111e dispute, and that the deed prepared and filed by Kelly (and Plaintiffs Fxh. 863-C herein) conveyed no cognizahle mterest and was therefore a nullity, making it void and \vithout legal effect. (Plaintiffs Exh. 863-145) TIle suit continued after the quarrymen filed a discontinuance as to their claims in 2005 The suit continued after the VandeJJnark Estate filed a discontinuance in 2006 The Oruskas claimed lhe reason for the SUlt vms retaliation, supported by Kelly's il1ltial statement to 13 Circulated 11/18/201404:45 pr I Cynthia Oruska, and the fads of record cited herein. These facts could give rise to a conclusion by the jury that Appellant aimed the suit at an objective that was not legitimate: the harassment of the Oruskas. Again, there was not much evidence, but enough for a jury, based upon the above facts, to weigh credibility and find as it did. Appellant next contends this Court erred in allowing the jury to consider punitive damages and that their motion for JNOV should have been granted. The Appellant alleges the Oruskas failed to prove the Appellant acted outrageously under the circumstances. The testimony regarding the Appellant's actions are set forth on the record and discussed in pali herein. This testimony included the fact that Paul Kelly entered into a lease bctv,,'een himself and the Oruskas to estahlish a quarry on the land. Kelly entered 1Oto a similar lease "vith Vandermark. Kelly had represented Vandelmark for thirty years at lhat point. Joseph Oruska began to disagree with Kelly over payment of royalties and the accounting for stone removed from his land and Vandermark's land Kelly submitted a check for royalties to Cynthia (huska on which a clause required an extension of the lease for ten years upon endorsement of the check. Kelly told Cynthia Oruska that iCher husband did not stop questioning the accounting, it "was going to get ugly." The testimony also included the Quarry Lease being terminated by the Oruskas in September 2004 due to failure of accounting and other reasons. Kelly then filed an ejectment action on behalf of Vandermark claiming {he Oruskas did not O\:vn the land upon which the Quarry Lease with Kelly existed. Kelly then prepared and filed a deed from Vandermark to Vandennark, purporting to own the 16 acres of the Oruskas' land subject to the ejectment action. Kelly was ordered by the Court to end representation of Vandermark in the ejectment action due 14 Circulated 11/18/201404:45 P to a conflict of interest. Kelly filed suit on his own behalf, and on behalf of the quarrymen and Vandermark for money damages against the Oruskas. Kelly \vas then ordered to file a pleading indicating he only represented himself in that action. Eventually, the ejectment case was dismissed and the parties stipulated to the Oruskas O\vning the 16 acres on which a pOliion of the quarry existed. 'I11e quarrymen discontinued their suit in 2005. The Vandennark Estate discontinued the money damage case when the ejectment action was settled. Kelly discontinued his personal claims the day after the matter \vas listed for trial by counsel for the Oruskas. Kelly prepared and filed a deed prior to disc0l1tinuing his suit against the Oruskas, and after he was ordered to no longer represent Vandermark in the ejectment action. The deed was declared to be nullity of no legal effect, and purportedly cancelled Vandermark's ownership claim of'the 16 acre parcel. The deed listed Paul Kelly and his wife as Grantors and Cynthia Oruska as Grantee. The deed fmiher claimed it had no eITect on the Quarry Lease with the Oruskas. The deed was filed January 31, 2006. Paul Kelly testified he was an attorney since 1972 and 95% ofllis practice consisted of real estate. (NT. 5114113 p. 191). All of these facts, when taken together, and if found credible by the jury, can show outrageous conduct under the circumstances. There is overlap among the facts orthe two suits filed by Kelly against the Oruskas, and taken as a whole, can support the claim for outrageous behavior. '111is is especially so given Kel1y's personal involvement with the Lease Agreements; his long standing representation of Vandermark; his personal financIal interest in a quarry located on both lands; his alleged comments tu Cynthia Oruska; his kno\vledge and experience as a real estate attorney, yet ftling Ule deed for Vandennark and the in\'alid quit-claim deed from himself to Cynthia Oruska; his filing an ejectment al:tion for a client and subsequently 15 Circulated 11f18f2014 04'45 his own hreach of contract claim against the Oruskas, with \\.'hom lle was leasing the very land in the ejectment dispute, and engaglIlg in litigatioll ultimately discontinued as soon as It \\'a5 listed for Ina!. Therefore, \ve denied the Post-Trial \10Iions. hnally, Appellant alleges the Court erred in denying the post-triallllotion for J:--JOV \vith regard to the amount of the punitiyc damage award of $200,000, The Appellant states the award \\'a5 exceSSive under the facts of the case, that it shocks the sense of justice so as to suggest that the jury was lIlfluenced hy partiality, prejudice, mistake or corruption, and it \\.'a5 a violation orthe Appellant's rights under the United Slates Constitulion and the Commonvl"ealth of Penns), Ivallia. V./e cannot say that fUl a\\'ard of$200,000 ill punitive damages ill this case is exceSSlve. The Oruskas alleged they were threatened and intimida1cd by the Appellant Ollce they questioned the royalties the Appellant was paylllg them. Eventually, quarry activities and royalties ceased. The Oruskas alleged that after they sought legal counsel, and tell11i1l3ted the lease, tl1e Appellmll filed the ejectmenl acti011. The Oruskas 1I1curred attorneys fees to defend lwo separate lavl"suits filed hy the Appellant, ill \vhich there appeared to he a con11icl of illte]"e51 by the Appdbnt. The litigious conduct only stopped after the PlallltifiiOruskas praeciped the unuerlying sml for trial on the merits. The Oruskas also teslitled to COIlU11ell(S and actions of the Appellant that they round to he threatcllillg and intimidating. Tllere \\'as 110thing to mdic3te the jury award was exceSSive, nor should the Court disturh the jury's a'l'mrd 111 this matter The Appellant also claims the jury 3\\',-mi shock'> the sense of justice and/or the Jury was lllfluenced by partiality, prejudice, mistake or cOlTuption. v','e cannot say that under these facts that the jury's 3\"vard shocks the sense of justice. furthermore, there was no 16 M Circulated 11f18f2014 04'45 PM suggestion or showing 1h8t thc.jury \vas influenced by partJalit)-" prejudice, llllstakc or COlTU1Jtion Appellant's claim that the award is a violation of his Tights is also not sUllported by the record. for these reaSOns, we denied the Appellant's Motion [or J.\fOV BY TilE COURT: (\\ , \ . III I I . ~ I{) )\ DAVID J. \\IILLIiil'Isok: .J. ' , Dated: September 15, 2014 cc: Specially rr~siding l\lonrne Coupty Courthouse Stroudsburg\ PA 18360 Charles \1. Watkins, T'squire Laurence IVi. Kelly, Esquire Michael Hriechle, Esquire Susquehanna County Court Administrator 17

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