Alternative Dispute Resolution - ADR

Alternative Dispute Resolution or ADR is a valuable tool useful for litigators in helping bring about successfull resolution of cases without the unnecessary cost of a full-blown trial.  ADR can provide an excellent means to resolving cases quickly and in a more cost effective manner.   

When I first began my practice 15 years ago, I started as an Insurance Defense Attorney.   I represented insurance companies with zeal and enthusiasm for the greater part of 9 years.   After a 2 year forray into commercial litigation, I am now (and have been for the past 4 and a half years) representing plaintiffs in all types of personal injury cases.   This experience has put me in an excellent position to sit as a neutral arbitrator in cases where the parties a seeking some kind of ADR.    As such, I have decided to begin actively seeking opportunities to sit as an arbitrator or mediator.  

I hope that you would consider me as your next arbitrator or mediator for your future need.   I can be reached at dory@hgsklawyers.com or at 267-350-6638 if you are interested. 

My mission is to provide everyone involved with an opportunity for a prompt, full, and fair hearing at a reasonable cost.    I look forward to serving all you legal needs. 

Dory L. Sater, Esquire 

Primer on Wrongful Use of Civil Proceedings and Abuse of Process

 

 

WRONGFUL USE OF CIVIL PROCEEDINGS (DRAGONETTI)  vs.　 ABUSE OF PROCESS

 

The torts of malicious prosecution and abuse of process are separate and distinct, but often confused. Werner v. J. Plater-Zyberk, 2002 Pa. Super. 42 (2002); Hart v. O'Malley, 781 A.2d 1211, 1219 (Pa. Super. 2001); Al Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 491, 644 A.2d 188, 191 (1994).

Wrongful use of civil proceedings arises when a party institutes a lawsuit with a malicious motive and without probable cause. Id. 　Abuse of process, on the other hand, is concerned with a perversion of the process after it has issued and occurs when the legal process is utilized to accomplish some unlawful purpose for which it was not designed. Id. 　Another essential difference between these two causes of action are their geneses. Abuse of process is a state common law claim. However, allegations of malicious prosecution invoke Pennsylvania's statutory law in the form of the wrongful use of civil proceedings statute, also known as the "Dragonetti Act," 42 Pa.C.S.A. §§ 8351-8355.

The Dragonetti Act states, in pertinent part:

Wrongful use of civil proceedings

 

(a) Elements of action.--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.

42 Pa.C.S.A. § 8351.

Thus, in an action for wrongful use of civil proceedings, plaintiff first must demonstrate that the person taking part in the initiation, procurement or continuation of civil proceedings either acted in a grossly negligent manner or lacked probable cause.　 Sentner, 725 A.2d 779, 782, 1999 Pa. Super. 24 (1999). The plaintiff must also prove that the prior proceedings terminated in its favor and against the Dragonetti action defendant. Id.

Conversely, "abuse of process is, in essence, the use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process." McGee v. Feege, 517 Pa. 247, 259, 535 A.2d 1020, 1026 (1987); Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998); Rosen v. Am. Bank of Rolla, 426 Pa. Super. 376, 627 A.2d 190, 192 (1993).

To establish a claim for abuse of process, plaintiff must demonstrate that defendant: (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and that (3) harm has been caused to the plaintiff. Id. This tort differs from that of wrongful use of civil proceedings insofar as the gravamen of an abuse of process claim is the "perversion of legal process" in order to achieve a purpose which is not an authorized goal of the　 procedure in question. Werner, 2002 Pa. Super. at 42; Rosen, 627 A.2d at 192.

If you think you have a problem like this, have any questions, or would like to discuss this with me in detail please email me at dory@hgsklawyers.com or call 267-350-6638

See my attorney profile at My profile
 

Taking a break from the practice of law

Weekends provide an opportunity for busy attorneys and associates to take a break and bring balance to their lives. Saturdays for me are really the only chance I get to spend quality time with my wife and 4 year old and 1 year old daughters.

This is a big issues for people in my position. In one hand I want to work hard and excel as a lawyer; to make my bosses and clients happy. On the other hand I need to be a good husband and father. Balancing these two aspects of who I am is probably the hardest thing I have to do. Much harder than making a case to a jury or responding to a difficult motion for summary judgment.

So how do I do it? Well, I don't know. I struggle with this issue every day I go to work. I try to get to work early as I can and stay as late as possible. This usually leaves me with less than two hours a day to see my kids. (I get home at around 7 and they go to bed at 8:30). It's Saturday and Sunday that I have to maximize time with my kids. Saturday and Sunday when I'm taking a break from the practice of law.

So I'm off now to play games with my kids get a good night sleep and make the most of my Sunday with Isabel and Norah and my great wife Donna.

Later all. Dory. Dory@hgsklawyers.com

Serious Impairment of a Body Function – What is it?

Many people in the Commonwealth of Pennsylvania have selected the limited tort option on their automobile insurance policies.   However, I wonder if those people actually know what that means.  What is comes down to is simple and can be put into a simple statement.   In exchange for paying a lower premium on their auto insurance, the person who selects the “limited tort” option gives up the right to sue for pain and suffering and non-economic damages unless they have a serious impairment of a body function.   

If it sounds complicated or confusing, it is.    So where does that leave the analysis? 

If you are subject to limited tort, you need to know what constitutes a “serious impairment of a body function.”  This is where it gets tricky.   Here is some guidance.

Courts in the Commonwealth of Pennsylvania have defined this concept.

In Washington v. Baxter, 719 A.2d 733, 740 (Pa. 1998), the Pennsylvania Supreme Court adopted the following definition of “serious impairment of body function:”

The "serious impairment of body function" threshold contains two inquiries: a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident? b) Was the impairment of the body function serious?

The court adopted the definition set forth in DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896, 901 (1986), since the Pennsylvania legislature had relied upon Michigan law as a model when the limited tort option was created.  Washington, 719 A.2d at 740.  Quoting DiFranco, 398 N.W.2d at 901, the court also stated further that:

The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment.... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.

What does this mean to you, the injured party who is subject to limited tort?  It means that you need to be in the hands of a good attorney who can properly work up the damages aspect of your case with this definition in mind.    
 

If you are injured in an accident or know someone who is and that person is bound by the limited tort option, I would be glad to discuss this with them.   

In my next blog, I will share some examples of cases that overcome limited tort and some exceptions to limited tort.  

Feel free to call or email me with any questions.   I can be reached at dory@hgsklawyers.com or 267-350-6638.  I would love to help.