text:
    Commonwealth v. DiNatale

      Mark S. Matthews, assistant district attorney, for Commonwealth.

      Brandon R. Reish, for defendant.
    March 15, 2011
   SIBUM, J.,

Defendant Generro DiNatale has been charged with theft by unlawful talcing or disposition (18 Pa.C.S. §3921(a)), two counts of theft by deception (18 Pa.C.S. §3922(a)(l), (3)), insurance fraud (18 Pa.C.S. §4117(a)(2)), and false reports (18 Pa.C.S. §4906(b)(l)), in connection with events that allegedly occurred on March 17, 2010 after defendant reported a burglary at his home. A preliminary hearing was held on November 2, 2010 at which time all the charges were bound over for court. The Commonwealth filed a criminal information on December 20, 2010, charging defendant with the above named offenses. Defendant filed an omnibus pretrial motion on January 19, 2011 including: (1) a motion for habeas corpus relief, (2) a motion to compel discovery, and (3) a motion to continue trial. A hearing was held on February 4, 2011. Both parties have submitted briefs and we are now prepared to decide this matter.

The relevant facts as provided in the affidavit of probable cause, through testimony presented at defendant’s omnibus hearing, and through the preliminary hearing transcript offered into evidence, follow. On March 17, 2010 at 9:30 a.m., Detective Thomas Lynott (“detective”) of the Pocono Township Police Department responded to Generro “Jerry” DiNatale’s (“defendant”) residence in regards to a reported burglary. Upon arrival, detective spoke to defendant who related the following version of events.

On March 16, 2010, defendant left his home at 4:00 a.m. to go to Floboken, New Jersey where he had several businesses. Defendant took his four German Shepherd dogs with him because he had no one to watch them. Defendant returned to his residence that evening at 9:15 p.m. and left again at approximately 10:3 0 p.m. According to defendant, he was on the Fox network television program “Good Day New York” on March 17, 2010, which airs live weekdays from 7:00 to 9:00 a.m.

Defendant returned to his residence at 8:45 a.m. on March 17, where he noticed that the door leading into the garage was ajar. Defendant entered his garage and noticed that his John Deere 54-inch Zero Turn Lawn Mower was missing, as well as his Yamaha 450 ATV. Defendant reported that a chainsaw, vacuum cleaner, a dog bite suit, and a K-9 bullet proof vest were missing.

According to defendant, his four German Shepherds were retired New York City police dogs, and the bullet proof vest came with one of the dogs when it was retired.

Defendant entered into his home on the first floor and noticed several items missing from the living room, including a 6 5-inch Sharp Aqua Television, an amplifier, speakers, a custom surveillance computer, and a rack containing various CDs. He then proceeded into his office and found that a 54-inch Samsung television, a laptop computer, a digital computer and a floor safe weighing approximately 300 pounds were also missing. Defendant indicated that nothing was taken from the master bedroom.

During their meeting on March 17, defendant provided detective with a list of purported stolen items valued at $19,850.00. Defendant advised that he would provide detective with VIN numbers for the lawnmower and ATV. Defendant also informed detective that he had an alarm system on his home but that it was not activated on the night of the 16th because it had been generating too many false alarms. Approximately one week later, defendant dropped off a revised list of the items stolen during the burglary to detective. The revised list prepared by defendant valued his losses at $84,694.97.

After receiving the above account of the alleged burglary from defendant, detective continued his investigation, which included photographing the entire crime scene. Among the areas photographed was defendant’s master bedroom. The master bed was covered by sheets and blankets.

On March 20, 2010, detective contacted Pocono Tractor, a local John Deere dealer. Store personnel indicated that they had done repair work on defendant’s mower. Detective obtained the VIN number for defendant’s lawnmower and entered it into NCIC.

On March 27, 2010, detective contacted Pocono Motorsports, the store where defendant had purchased the ATV, and obtained the VIN number for the vehicle. Detective then entered the ATV VIN number into NCIC.

Also on March 27,2010, detective interviewed Deanna Lane (“Lane”), a woman who had lived at defendant’s home for several months. Detective informed Lane of the burglary and showed her the list of items defendant reported as stolen. After reviewing the list, Lane advised detective that defendant had previously sold or traded many of the items listed as stolen, including the ATV and large screen television.

On April 21,2010, detective met with Denisha Mitchell (“Mitchell”), a sales representative for Best Buy, the store where defendant had purchased most of the electronics he reported as stolen. According to Best Buy records, a Samsung 26-inch LCD [¶] TV was purchased on October 25,2006 from a Best Buy in Florida. Mitchell testified that the receipt indicated that the TV was returned on October 31, 2006 and repurchased. Another receipt indicated that the repurchased television was then returned on November 1, 2006, and the money was credited to an American Express card belonging to “Forte DiNatale.” Best Buy’s records also revealed that defendant bought the 65-inch [¶] TV on July 5,2008. Defendant returned the television on November 9, 2008 and was issued a store credit for $7,366.99. As of April 20, 2010, the store credit had not been utilized. In addition, Best Buy’s records showed that defendant had purchased a wall mount for the television which was returned. The money received was used to purchase various different items, including a bottle of Vitamin Water, a Call of Duty video game, and a two-year protection plan.

On April 23, 2010, detective spoke to New York City K-9 Officer Veronica Hammer (“Hammer”). Hammer stated that it is NYPD’s policy that when a canine is retired, it is turned over to its handler. According to Hammer, it would be extremely rare if a retired canine would be given to non-police personnel. Hammer also stated that no non-police personnel would be given four retired dogs. Hammer further relayed that NYPD does not issue bullet proof vests for its canines. She indicated that if a dog had a vest, it was purchased through private donations, and NYPD would not give the vest away with a retiring dog as each vest costs approximately $1000.

On May 4, 2010, detective met with Drew Dorbert (“Dorbert”), an insurance adjuster for Chartis Insurance, defendant’s insurance company. Dorbert stated that on April 16, 2010, he interviewed defendant about the burglary. Dorbert related that defendant had stated to him that he had left home on March 16, 2010 at 8:10 p.m. to go to an awards dinner in New Jersey where Bill O’Reilly was present and that defendant was going to be on a Fox talk show in the morning. Dorbert further related that defendant also stated to him that all of the bedding from the master bedroom had been taken and that the police told defendant that the burglars used the bedding to cushion and cover the stolen items.

Dorbert advised that defendant had submitted an insurance claim in excess of $107,000 to Chartis Insurance. David Lenci (“Lenci”), a claims adjuster for Chartis Insurance, was transferred defendant’s claim. Lenci testified that Chartis Insurance issued defendant a check in the amount of $98,183.71. On April 30, 2010, defendant deposited this check into the bank account of Fortunato DiNatale, his father.

On May 8, 2010, detective interviewed Efrain Rivera (“Rivera”) in regards to defendant’s ATV. Rivera stated that in the summer of 2009, his cousin Frank Rivera had gotten the ATV in question from Lason Troutman. Rivera testified that it was his understanding that defendant gave Troutman the ATV to pay off a debt defendant owed to Troutman. Rivera stated that the ATV needed some repairs, so Rivera took it to Offroad Cycle in Delaware Water Gap, Pa. Rivera paid for the repairs and then sold the ATV to Pocono Exchange in Marshalls Creek, Pa.

On May 12, 2010, detective interviewed Jennifer and Michael Kearney, owners of Offroad Cycle. The Kearneys substantiated Rivera’s story and produced a bill for the work from August 29, 2009. Detective testified that he retrieved the VIN number for the ATV repaired by Offroad Cycle, and it matched the VIN number provided by Pocono Motorsports.

On May 19, 2010, detective recovered from Bradley Jones (“Jones”), owner of Pocono Exchange, the ATV defendant claimed was stolen. Jones testified that Frank Rivera had sold it to him for $2,500. Detective ran a registration check on the ATV’s VIN, which indicated that the ATV was registered to Fortunato DiNatale, defendant’s father.

In addition, detective also obtained from Fox News a DVD copy of their “Good Day New York” program that aired March 17, 2010. Defendant was not on that program.

Detective met with defendant on May 19 to inform him of the results of his investigation and the discrepancies it revealed in defendant’s version of the burglary events. Detective informed defendant that by August 2009, the ATV was already in someone else’s possession and had repair work done dated August 29, 2010. Defendant responded that one of his cousins must have damaged the ATV and did not tell him.

Detective then asked defendant why he told Dorbert that on the night of March 16,2010 he was at an awards dinner but told detective that he was on the Good Day New York television show on March 17,2010. Defendant responded that he had been on the New York show several times and must have been confused as to the date he appeared on the show. Defendant then went on to state that if he needed the money, why hadn’t he cashed the insurance check ?

DISCUSSION

1. Motion for Habeas Corpus Relief

When a criminal defendant seeks to challenge the sufficiency of evidence presented against him, he may do so by filing a writ of habeas corpus with the court of common pleas. Commonwealth v. Carmody, 799 A.2d 143,146 (Pa. Super. 2002). In such instances, the habeas court acts in the capacity of a reviewing court to assess whether sufficient evidence exists to require the defendant to be brought to trial. Id. at 146-47.

“At the pre-trial stage of a criminal prosecution, it is not necessary for the Commonwealth to prove the defendant’s guilt beyond a reasonable doubt.” Commonwealth v. Huggins, 575 Pa. 395, 402, 836 A.2d 862, 866 (Pa. 2003). Rather, the Commonwealth establishes a prima facie case when it produces evidence of “each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Id. A prima facie case can be established by evidence that, if accepted as true, would warrant the trial judge to allow the case to go to the jury. Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), allocator denied, 745 A.2d 1220 (1999); In deciding if a prima facie case has been made, any inferences reasonably drawn from the evidence in the record that would support a guilty verdict are to be given effect and “the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). The weight and credibility of the evidence are not factors at this pre-trial stage. Commonwealth v. Wojdak, 502 Pa. 359, 369, 466 A.2d 991, 997 (Pa. 1983).

a. Theft by Unlawful Taking or Disposition

Defendant has been charged with one count of theft by unlawful talcing pursuant to 18 Pa.C.S. §3921 (a), which provides as follows:

(a) Movable property. - A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof §3 921 (a).

“Property of another” is defined as “anything of value, including real estate, tangible and intangible personal property...” which “any person other than the actor has an interest which the actor is not privileged to infringe....” 18 Pa.C.S. §3901.

Here, defendant accepted a check in the amount of $98,183.71 for the value of items allegedly stolen from his residence. The commonwealth has submitted proof that several of the items which defendant claimed were stolen from his residence, including the 65-inch television, the 26-inch television and the Yamaha ATV, were actually traded in or returned to where they were purchased and were not in the possession of defendant at the time of the purported burglary. Nonetheless, defendant reported them stolen and accepted money from the insurance company to replace their value. The Commonwealth has established a prima facie case for the offense of theft by unlawful taking.

b. Theft by Deception - (1) False Impression and (2) Failure to Correct a False Impression

The defendant has been charged with one count each of “theft by deception - false impression” and “theft by deception - failure to correct a false impression” pursuant to 18 Pa.C.S. §3922(a)(l) and (3), respectively. This statute provides in pertinent part as follows:

(a) A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including impressions as to law, value, intention or other state of mind...
(3) fails to correct a false impression which the deceiver previously created or reinforced... 18 Pa.C.S. §3922(a) (1), (3).

The Commonwealth must also establish that the victim relied on the false impression created or reinforced by the defendant. Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa. Super. 2000).

Here, viewing the evidence in the light most favorable to the Commonwealth, defendant reported several items stolen which were not in his possession at the time of the purported burglary. He then met with Chartis Insurance Company’s insurance claim adjusters and relayed that several of the items had been stolen from his possession and provided an itemized list of the items and their purported values in excess of $107,000. Defendant submitted a false insurance claim to Chartis for the items, and in return, defendant received $98,183.71. He then deposited the check into his father’s bank account. Chartis Insurance Company relied upon the deception because its claim adjustor accepted defendant’s insurance claim and reimbursed defendant for the value of the items.

Furthermore, after depositing the check, defendant made no attempt to return the money to the insurance company. The facts as presented sufficiently establish prima facie evidence of the two charges for theft by deception.

c. Insurance Fraud

Defendant has also been charged with committing insurance fraud pursuant to 18 Pa.C.S. §4117(a)(2), which provides as follows:

(a) Offense defined. -- A person commits an offense if the person does any of the following:
(2) Knowingly and with the intent to defraud any insurer or self-insured, presents or causes to be presented to any insurer or self-insured any statement forming a part of, or in support of, a claim that contains any false, incomplete or misleading information concerning any fact or thing material to the claim.18 Pa.C.S. §4117(a) (2).

In our case, defendant relayed that several items were taken from his home after a burglary. Defendant presented the insurance company with a detailed list of items that were stolen from his residence with a replacement value of $107,000. However, when investigated by detective, detective uncovered that several of the items reported as stolen by defendant were not in defendant’s possession at the time of the purported burglary. The evidence presented establishes that several large electronic items such as the 26-inch LCD [¶] TV and the 65-inch [¶] TV televisions had been returned by defendant to Best Buy, and that he gave an ATV away to pay off an alleged debt. The evidence also establishes that defendant knew these items were not in his possession at the time of the “burglary” because he was the individual who personally returned the electronics to Best Buy and who delivered the ATV to Troutman. Defendant then filed an insurance claim with Chartis Insurance Company -to collect reimbursement money for the items in question, even though defendant had already profited from either trading them in or returning them to Best Buy for a credit. These facts are sufficient to establish that defendant committed the crime of insurance fraud.

d. False Reports

Finally, defendant has been charged with false reports pursuant to 18 Pa.C.S. §4906(b)(l), which provides:

(b) Fictitious Reports. — Except as provided in subsection (c), a person commits a misdemeanor of the third degree if he:
(1) reports to law enforcement authorities an offense or other incident without their concern knowing that it did not occur. 18 Pa.C.S. §4906(b)(l).

Here, defendant called the Pocono Township Police Department to report a burglary of his home sometime between the night hours of March 16, 2010 and the early morning hours of March 17, 2010. Defendant advised detective that he had left his house to travel to New Jersey for business. He relayed that he returned briefly at 9:15 p.m. and left again at approximately 10:30 p.m. and that he would be appearing on a Fox television program the morning of the 17th. Defendant then stated that he returned home on the 17th to find that the door leading into his garage was a jar and that several items were taken from his home.

However, when defendant met with Dorbert, the insurance adjuster from Chartis Insurance, defendant relayed a conflicting story about his whereabouts the night of the alleged burglary. Defendant indicated that he left his home on the 16th at 8:10 p.m. to go to an awards dinner in New Jersey and that he was going to be on a Fox talk show in the morning. A review of the broadcasting tapes revealed that defendant was not on the Fox show the morning of the 17th. Defendant also stated to detective that he had an alarm system on his home but that it was not activated on the night of the 16th because it was generating too many false alarms. Moreover, defendant stated that he took his four German Shepherd dogs with him because he had no one to watch them.

Defendant later provided a list of all the items allegedly stolen, including items which were verified as having been returned, exchanged or given away. Even if the burglary occurred, it could not have involved several of the items at issue, including the ATV, the 65-inch television, and the 26-inch television. As previously discussed, the Commonwealth has presented sufficient evidence that defendant did not own the items at the time of the alleged offense and that the items were not stolen from defendant’s home. Submitting these items on the insurance claim as stolen establishes a prima facie case for the offense of false reports. Defendant’s motion for habeas corpus relief will be denied.

2. Motion to Compel Discovery

Defendant filed a motion to compel: (1) the production of an audio recording of defendant, (2) criminal records of defendant and (3) criminal records of the Commonwealth’s potential witnesses.

Pa.R.Crim.P. §573, pertaining to pretrial discovery and inspection, provides in relevant part as follows:

(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth;
(c) the defendant’s prior criminal record;
(d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;
(e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and
(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.
(2) Discretionaiy with the court.
(a) In all court cases, except as otherwise provided in Rule 230 (disclosure of testimony before investigating grand jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(i) the names and addresses of eyewitnesses;
(ii) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
(iii) all written and recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; and
(iv) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.
(D) Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness. Pa.R.Crim.P. §573.

The comment to the rule further provides:

It should also be noted that as to material which is discretionary with the court, or which is not enumerated in the rule, if such information contains exculpatory evidence as would come under the Brady rule, it must be disclosed. Nothing in this rule is intended to limit in any way disclosure of evidence constitutionally required to be disclosed. Id.

The United States Supreme Court case Brady v. Maryland held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Therefore, under this rule, the Commonwealth has no duty to bring evidence to the defendant’s attention that is not exculpatory. See Commonwealth v. Pirela, 556 Pa. 32, 45-46, 726 A.2d 1026, 1033 (Pa. 1999). “Exculpatory evidence is evidence that is material to a determination of guilt or innocence or affects the credibility of key prosecution witnesses.” Commonwealth v. Herrick, 660 A.2d 51, 60 (Pa. Super. 1995).

a. Audio recording

Defendant argues that the Commonwealth has yet to provide the audio recording of defendant speaking with his insurance company, which has been provided in a transcribed version only. In the event the Commonwealth receives a clear recording from the insurance company, they shall immediately provide a copy to defendant.

b. Defendant’s Criminal Record

Defendant next argues that the defendant’s criminal record, if any, is believed to be in the possession of the Commonwealth, and defendant wishes an opportunity to review the same. Rule 573 section (B)(1)(c) explicitly provides that a defendant’s prior criminal record must be disclosed to the Commonwealth. As such, to the extent the Commonwealth has not produced defendant’s criminal record to the defendant, it shall do so immediately.

c. Criminal Records of the Commonwealth’s Potential Witnesses

Defendant argues there are potential Commonwealth witnesses identified in discovery that may have criminal histories which would show convictions of crimen falsi which defendant also wishes to review for impeachment evidence. Defendant claims that the Commonwealth has knowledge of at least some of the witnesses’ criminal history because the Commonwealth prosecuted the witnesses in the past.

Rule 573 does not require the Commonwealth to disclose potential witnesses’ criminal histories. The Commonwealth is only required to provide defendant’s prior criminal history. Furthermore, any information pertaining to witnesses the Commonwealth intends to call at trial is discretionary with the court. Under the discretionary portion of the rule, section (B)(2)(iv) provides a catch-all provision which includes “any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.” §573(B)(2)(iv).

To the extent the Commonwealth has prosecuted and obtained convictions of crimen falsi any of its proposed witnesses, the Commonwealth shall turn such information over to defendant.

3. Motion to Continue Trial

Defendant filed a motion to continue trial from the March criminal trial term, arguing that defendant requires additional time to assemble documentation and to conduct investigations which are critical to his defense. We will grant defendant’s request. This matter shall be continued to the May criminal term of court. All time resulting from the continuance of trial shall run against defendant and not the Commonwealth.

Accordingly, we enter the following order.

ORDER

And now, March 15, 2011, upon consideration of defendant’s omnibus pretrial motion, it is hereby ordered as follows:

1. Defendant’s motion for habeas corpus relief is denied.

2. Defendant’s motion to compel production of the audio recording is granted, in the event the Commonwealth receives a clear recording of defendant’s conversations with his insurance company, the Commonwealth shall provide a copy of same to defendant. To the extent the Commonwealth does not have, obtain or receive such a recording, the Commonwealth shall have no obligation to provide same to defendant.

3. Defendant’s motion to compel defendant’s criminal histoiy is granted.

4. Defendant’s motion to compel the criminal histories of the Commonwealth’s potential witnesses is granted in part. To the extent the Commonwealth has prosecuted and obtained convictions of crimen falsi any of its proposed witnesses, the Commonwealth shall turn such information over to defendant.

5. Defendant’s motion to continue trial is granted. Trial is continued to the May term of court. Defendant shall appear for the call of the criminal trial term on April 19, 2011 at 8:30 am in Courtroom No. 1 ofthe Monroe County Courthouse, Stroudsburg, Pennsylvania. Defendant shall appear for the May criminal trial term on May 3, 2011 at 9:00 am in Courtroom No. 1 of the Monroe County Courthouse. All delay resulting from this continuance shall run against defendant and not the Commonwealth.


source: Caselaw Access Project

author: ZULICK J.,

license: Public Domain

text:
    Fratarcangeli v. Fratarcangeli

      Michael Mancuso, for plaintiff.

      Elliot B. Edley\ for defendant.
    March 8, 2011
   ZULICK J.,

This divorce case came before the court for a hearing on Licet Fratarcangeli’s (wife) motion for special relief on December 21,2010. The motion sought to set aside Frank Fratarcangeli (husband) and wife’s postnuptial agreement, sought to disqualify husband’s counsel, Elliot B. Edley, Esq., for a claimed conflict of interest, and sought to compel discovery. The parties were given an opportunity to obtain a transcript and file briefs following the hearing.

FINDINGS OF FACT

1. Husband and wife were married on September 13, 2002.

2. Their son, Frank Fratarcangeli, Jr., age 9, was bom on July 13, 2001.

3. Husband resides at 773 Blue Mountain Lake, East Stroudsburg, Pennsylvania. The parties’ son Frank resides there with him.

4. Wife, age 33, resides with her parents in New Jersey. She has one other child, Kayla, 14.

5. Wife’s sole source of income is Social Security disability in the amount of $450 per month.

6. On August 19, 2003, husband purchased property on Main Street, Stroudsburg from Penn Stroud Hotel, Inc. for $600,000. At the time of the hearing, he was receiving rents from this property. NT 15.

7. On June 30, 2005, husband and wife purchased Lot 535, Blue Mountain Lake, Stroud Township, Monroe County, Pennsylvania for $395,000.

8. On November 7, 2005, husband purchased an Exxon station on Route 209 in Middle Smithfield Township for $1.6 million dollars.

9. The parties separated on or about October 15, 2007, when wife was given exclusive possession of the marital residence by order of this court.

10. After the parties married, husband was employed managing two tobacco shops he owned. These businesses were called F&T Tobacco.

11. At the time of the hearing, husband managed his Exxon station in Middle Smithfield Township as a full-time occupation.

12. Wife became addicted to painkillers following surgeries she had after the parties’ son Frank Jr. was bom. Husband testified that wife used Codeine, Oxycontin, Percocet and Vicodin.

13. Husband tried to get wife to go into a rehabilitation facility.

14. Elliot B. Edley, Esq. has represented husband in the past and husband considers him his family lawyer.

15. Attorney Edley represented wife in a custody proceeding in Licet Fratarcangeli v. Maria Mendez and Heriberto Quirindongo, No. 1107 Civil 2005, in this court from February through June, 2005. The case involved wife’s claims for custody of her minor daughter Kayla against third parties (the maternal grandmother and father of Kayla, respectively).

16. Attorney Edley filed this action for divorce and custody against wife on October 2, 2007 and has represented husband against wife in these divorce proceedings and in custody proceedings involving the parties’ son Frank.

17. Attorney Edley wrote a letter to the custody conciliator on November 27, 2007 expressing concerns about the mother being “impaired.”

18. Attorney Edley prepared a draft postnuptial agreement on husband’s behalf in May, 2008.

19. On May 14, 2008, husband asked wife to come to the Exxon station where he was working to pick up some money. He did not mention that there was an agreement he wanted her to sign. When she got to the station he showed her the postnuptial agreement and asked her to sign it. When she refused, he said he would not give her any more money or let her see her son if she did not sign it. Wife was relying upon husband for financial support at that point; he was providing her with an apartment, car. and money.

20. The parties signed the agreement before a notary public on May 14, 2008.

21. Husband agreed in the postnuptial agreement to place $30,000 upon the execution of the agreement by wife in escrow with Attorney Edley. Husband has not done this. NT 28.

22. The parties agreed to sell their condominium in the Dominican Republic. The property has never been listed for sale.

23. Since the time of the parties’ separation, wife has been repeatedly hospitalized for mental health disorders and addictions.

24. Wife lived in the apartment provided by husband for a period of two years as stated in the agreement. “Wife shall have the opportunity to live rent free at 38 A Pocono Boulevard in the apartment that she is in for a period of up to two years if she pays all expenses including utilities.”

DISCUSSION

Wife’s motion for special relief seeks several remedies. She asks to set aside the parties’ postnuptial agreement, requests disqualification of husband’s counsel due to an alleged conflict of interest, and seeks to compel discovery.

1. Validity of the Postnuptial Agreement.

The resolution of marital property rights through postnuptial agreements is the means by which most divorce cases are resolved in this county, and this private resolution of parties’ disputes is encouraged by Pennsylvania law. Laudig v. Laudig, 624 A.2d 651, 653 (Pa. Super. 1993). Postnuptial agreements are contracts and are governed by contract law. Laudig, supra. Also, the principles applicable to prenuptial agreements are “equally applicable” to postnuptial agreements. Stoner v. Stoner, 572 Pa. 665, 672, 819 A.2d 529, 533 n. 5 (Pa. 2003); Paroly v. Paroly 876 A.2d 1061, 1063 (Pa. Super. 2005).

The seminal case in Pennsylvania on the validity of these agreements is Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). There, our Supreme Court:

analyzed the enforceability of a prenuptial agreement and clarified the standards for determining the validity of marital settlement agreements generally. Under Simeone, we are not permitted to review the reasonableness of a marital settlement agreement to determine its validity, and the fact that the parties did not have separate representation is not relevant. That case abolished prior, paternalistic approaches to enforcing such agreements and announced, “Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.” Id. at 400, 581 A.2dat 165.
Parolyv. Paroly, 876 A.2d 1061, 1065 - 66 (Pa.Super. 2005).

The Simeone court reaffirmed the “longstanding principle that a full and fair disclosure of the financial positions of the parties is required. Absent this disclosure, a material misrepresentation in the inducement for entering a prenuptial agreement may be asserted.” Simeone at 402, 581 A.2d at 167. The Supreme Court also stated that “(i) f an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted if it is proven by clear and convincing evidence.” Id. at 402, 581 A.2dat 167.

“Whether adequate disclosure has been made will depend on the facts and circumstances of individual cases.” Mormello v. Mormello, 682 A.2d 824, 827 (Pa. Super. 1996). Finally, an agreement is valid even if it does not contain financial disclosure itself and can be upheld if it merely recites that such disclosure has been made. In re Estate of Hartman, 582 A.2d 648 (Pa. Super. 1990) (marital settlement agreement not invalid because it did not contain parties’ respective financial disclosure as it stated that disclosure was made and fact that such disclosure was made was affirmed by testimony of scrivener).

Wife’s decision to sign the postnuptial agreement may not have been a financially prudent one. It is also true that she had battled prescription drug addiction and had mental health issues during the parties’ marriage. On the day she signed the agreement, husband was supporting her in an apartment and threatened to make it difficult to see her son if she did not sign. However, there is no evidence that wife was not competent at the time she signed the agreement. She also could have obtained legal advice before signing the agreement; she had obtained counsel earlier during this case. There is also no evidence that wife was unable to read and understand the agreement on the day she signed it before a notary public. In the absence of threats or actual physical harm, a party who has reasonable opportunity to consult with counsel before entering a contract cannot later invalidate it by claiming duress. Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 430, 233 A.2d 519, 521 (Pa. 1967); Degenhardt v. Dillon, Co., 543 Pa. 146, 153, 669 A.2d 946, 950 (Pa. 1996).

The Stoner court opined that “traditional contract rules should be applied to marriage agreements.” Stoner at 533. The court “expressly rejected an approach which would allow the court to inquire into the reasonableness of the bargain, or the parties’ understanding of the rights they were relinquishing.” Id. The court “decline(d) to resurrect the paternalistic approaches to evaluating marriage contracts by requiring husband to explain to wife the statutory rights that she may be surrendering. Such an approach assumes that wife lacks the intelligence or ability to protect her own rights. Instead, we endorse the parties’ rights to freely contract.” Id.

A review of the parties’ postnuptial agreement reveals that there was apparently full disclosure of the parties’ assets, although husband was receiving most of them. No evidence has been presented to suggest that husband fraudulently concealed assets from wife. The agreement lists the parties’ major marital assets and divides them. Agreement, page 3.

The agreement also has a paragraph that provides:

FINANCIAL DISCLOSURE
Husband and wife asset (sic) that each has made a full and complete disclosure of all of the real and personal property of whatsoever and wheresoever situate belonging in any way to each of them, either jointly or separately, of all sources and amounts of income received or receivable by each party, and of every other fact relating in any way to the subject matter of this Agreement. Each party confirm (sic) that she or he is relying upon the substantial accuracy of the financial disclosure as an inducement of the execution of this Agreement. Further, both parties waive their right to have the inventory or financial disclosure statement of the other attached hereto and made a part hereof.
Postnuptial agreement, page 5.

Wife is bound by this paragraph and has failed to rebut the presumption of full disclosure by clear and convincing evidence. See Sabad v. Fessenden, 825 A.2d 682 (Pa. Super.2003). Wife hastily entered into the postnuptial agreement, perhaps using poor judgment in doing so. However, she has not shown a valid reas on for its revocation on the basis of fraud, duress or non-disclosure.

Husband is also a signatory to this postnuptial agreement and he must also bear its consequences. The parties’ agreement provided as follows:

DIVISION OF PROPERTY
...The marital property in the Dominican Republic and the car located there shall be sold and split evenly between husband and wife. Wife shall receive the sum of $30,000.00 thirty (30) days after the entry of the divorce decree. Husband to place said funds in escrow upon signing this agreement with Elliot B. Edley, Esquire. The sum of $30,000.00 shall be deducted from wifes (sic) one-half share of the division of the Dominican Republic property.
Postnuptial agreement, page 3.

Husband did not deposit $30,000.00 in his attorney’s escrow account at the time of the signing of the agreement, and at the time of the hearing, he still had not deposited the funds. NT, December 21, 2010. Husband’s failure to comply with a material term of the agreement renders the agreement invalid due to failure of consideration. See In re O’Brien, 898 A.2d 1075, 1080 (Pa. Super. 2006) (where husband liquidated a $100,000.00 mutual fund which was to become wife’s asset under the parties’ postnuptial agreement, postnuptial agreement declared invalid). To the extent that wife transferred title to husband by deeds to marital property, those deeds are likewise invalid. The parties’ efforts to otherwise comply with the postnuptial agreement will be taken into consideration in the final decree of equitable distribution and/ or alimony pendente lite.

2. Motion to Disqualify Counsel

Wife’s petition also seeks disqualification of husband’s counsel due to an alleged conflict of interest. Attorney Edley represented wife in a custody action in this court in a suit involving her daughter, Kayla. Attorney Edley filed a complaint to confirm custody on February 11, 2005 on behalf of Licet Fratarcangeli. He attended a custody conciliation conference on her behalf on March 10, 2005.

Attorney Edley then filed this divorce action on behalf of husband on October 2,2007. The complaint included a count for custody of the parties’ minor son Frank, Jr. Wife appeared at a custody conference pro se, and husband was represented by Attorney Edley at the conference. This led to an interim custody order dated December 7, 2007.

The Rules of Professional Conduct address conflicts of interest in Rule 1.9, Duties to Former Clients:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

Rules of Professional Conduct, 1.9.

Wife did not waive her right to object to Attorney Edley’s representation of husband, so the question presented here is whether a conflict exists under these circumstances.

There is a two-prong test with respect to conflicts of interest. See generally International Longshoremen’s Ass’n Local Union 1332 v. International Longshoremen’s Ass’n, 909 F.Supp. 287 (E.D.Pa.1995). The first element is substantial relation of the prior and present matters. Matters are substantially related “when an attorney might have acquired confidential information as counsel in one matter which is also relevant to the other matter.” Id. at 291. The second element is that the former and proposed current clients have materially adverse interests. In re Pittsburgh Corning Corp., 308 B:R. 716, 730 (Bkrtcy.W.D.Pa.,2004). The comment to Rule 1.9 provides clarification of when a second case is “substantially related” to an earlier case:

[3] Matters are “substantially related” for purposes of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce... Rules of Professional Conduct, 1.9 Conflict of Interest, Comment 3.

Attorney Edley represented wife in a custody action involving her older child which was litigated in this court from February through June, 2005. On October 2, 2007, he filed a divorce and custody action against wife on behalf of husband. Although this second litigation involved divorce and a different child in the custody action, certainly the confidential information Attorney Edley obtained from wife in the first custody action could be used against her by husband in the second custody action. The comment to Rule 1.9 says as much:

...A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information that could be used adversely to the former client’s interests in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.
Rules of Prof. Conduct, Rule 1.9, Comment 3.
The record from the hearing reflects the use by Attorney Edley of information gathered from wife in the first matter to advance husband’s cause here:
Q: (Attorney Edley) now, your daughter, Kayla, you gave up custody of her to your in-laws; isn’t that correct?
A: (Licet Fratarcangeli) No, that’s incorrect.
Q: She wasn’t living with her in Brooklyn, New York?
A: I did not give up custody. I signed the papers so that she could go to school while she was there. While she was there, they took that paper and they took her and she made up a story, and the story was not even about me, it was about Frank.
Q: Wasn’t the paper - didn’t the paper state that you gave custody to the grandmother?
A: No, it did not state that.
Q: Wasn’t that the basis that the court sent it back to Pennsylvania?
A: No.
Q: No?
A: We can pull up the file if you like. NT 61.

If an attorney might have acquired confidential information related to the subsequent representation, Pennsylvania Rule of Professional Conduct 1.9 would prevent the attorney from representing the second client. Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973); Estate of Pew, 655 A.2d 521, 545 (Pa.Super. 1994). Attorney Edley is not able to continue to represent husband in this matter because a conflict of interest exists under the Rules of Professional Conduct.

3. Motion to Compel Discovery

Wife’s motion for special relief includes a motion to compel discovery. Wife’s counsel served interrogatories and a request for production of documents upon husband’s counsel on July 8, 2010. Husband responded with objections to the discovery requests on August 20, 2010, citing the parties’ signed postnuptial agreement as the reason for non-compliance with the discovery request.

The court has found that the postnuptial agreement is invalid due to failure of consideration. Therefore, pursuant to P.R.C.P. 1030.5, husband will be directed to answer wife’s outstanding discovery requests.

CONCLUSIONS OF LAW

1. The parties’ postnuptial agreement, signed on May 14, 2008, is invalid due to failure of consideration.

2. Attorney Edley is disqualified from further representation of husband in this matter due to a conflict of interest under Rule 1.9 of the Rules of Professional Conduct.

3. Husband is required to answer wife’s discovery requests in equitable distribution and alimony pendente lite.

ORDER

And now, March 8, 2011, following hearing and consideration of the parties’ briefs and arguments, it is ordered as follows:

1. The parties ’ postnuptial agreement, signed on May 14, 2008, is hereby declared to be invalid due to failure of consideration. Any deeds signed by wife in furtherance of the invalid postnuptial agreement are likewise declared invalid.

2. Attorney Edley is disqualified from further representation of husband in this matter due to a conflict of interest under Rule 1.9 of the Rules of Professional Conduct.

3. Husband shall answer wife’s outstanding discovery requests.

4. Husband is given sixty days to obtain new counsel if he chooses to do so, and to respond to wife’s discovery.

5. To the extent that the parties have otherwise partially performed in accordance with the invalid postnuptial agreement, those efforts will be taken into account in the final decree of equitable distribution.


author: BERNSTEIN, J.,

text:
    Winner Logistics Inc. v. Labor and Logistics Inc.

      Thomas More Marrone and Thomas Martin, for plaintiff.

      John J. Murphy III, Heather M. Tashman, Thomas J. Cole Jr., Christopher P. Zubowicz, and William C. Root, for defendants Labor & Logistics Inc. and Curtis Ball.

      Arthur W. Lefco, Douglas E. Herman, and Jonathan E. Cross, for defendants Joseph A. Bubba, Nancy Conrad and Fitzpatrick Lentz & Bubba PC.
    March 29, 2011
   BERNSTEIN, J.,

This is an action for wrongful use of civil proceedings filed by plaintiff Winner Logistics, Inc. (hereinafter “plaintiff’ or “Winner Logistics”) against attorneys Joseph A. Bubba and Nancy Conrad and their firm Fitzpatrick, Lentz & Bubba, P.C. (hereinafter “attorney defendants”). The attorney defendants represented Labor & Logistics Management, Inc. and its president, Curtis Ball, in an action against their former employee David Wallover and his new employer Winner Logistics for misappropriation of trade secrets and breach of a restrictive covenant. Winner Logistics is a competing company formed by Wallover after he left Labor & Logistics Management Inc.

Labor & Logistics Management, Inc. is in the driver leasing business, providing commercial truck drivers to shippers on a temporary or ad hoc basis. In September 2000, Labor & Logistics Management, Inc. hired Wallover as a driver lease manager with access to Labor & Logistics customer, prospective customer and driver lists. When Wallover was hired, he was not asked to and did not sign any restrictive covenant when he started to work. In July 2002, Ball recognized that he did not have a signed employment agreement with Wallover and directed Wallover’s supervisor to have him sign one. Wallover refused and he was fired.

Thereafter, Wallover started his own business which competed with Labor & Logistics Management, Inc. Ball and Labor Logistics retained Joseph Bubba and Nancy Conrad and their law firm Fitzpatrick, Lentz & Bubba, P.C. (hereinafter “attorney defendants”) to represent them in an action for misappropriation of trade secrets and breach of restrictive covenant against Wallover and Winner Logistics, which was filed in Bucks County.

On December 2, 2002, the attorney defendants filed a complaint in the Court of Common Pleas of Bucks County and a motion for emergency injunctive relief on behalf of Ball and Labor Logistics. The complaint alleged claims for breach of contract, tortious interference with contractual relations and prospective relations, misappropriation of trade secrets, breach of fiduciary duty and unfair trade practices.

On December 13,2004, a non jury trial was held before the honorable John J. Rufe. Judge Rufe found no restrictive covenant existed because Wallover “never executed a written contract of employment with plaintiff LLM and never agreed orally not to compete with LLM in the event of his termination of employment with LLM.” He also held that “Wallover is not prohibited by written or oral contract from engaging in business in direct competition with” LLM, “documents wholly or substantially copied or duplicated from [LLMj’s forms and documents do not constitute trade secrets subject to employee confidentiality, as the same were easily obtainable in the open market or could be easily created.”

Despite the foregoing rulings, on January 24, 2005, Judge Rufe enjoined Winner Logistics and Wallover from contacting LLM’s former customers. Winner Logistics and Wallover appealed the ruling. The Superior Court stayed enforcement of the injunction and subsequently reversed the trial court’s ruling. The Superior Court said, “our established precedent is clear that the type of information contained in LLM’s customer lists does not qualify as trade secrets.” The Superior Court explained that “an employee is free to take with him, when he leaves an employer, such information about the customers of the employer as he remembers.” Because Wallover only contacted customers he remembered from his time at LLM, the Superior Court found that Wallover did not misappropriate any customer list when he left LLM. An “employee, upon terminating his employment relationship with his employer, is entitled to take with him ‘the experience, knowledge, memory, and skill, which he gained while there employed...’” When leaving one company for another, an employee is not required to have a partial lobotomy to remove all information relevant to his former position. The Superior Court explained that “Wallover was free to solicit business from those customers for two reasons: first the customers’ identities were not trade secrets; and, second, even if they were, the former employee cannot be enjoined from using trade secrets retained solely in his memory.” The Superior Court found that LLM was not entitled to an injunction and reversed the Bucks County trial court’s decision granting an injunction. The Pennsylvania Supreme Court denied certiorari.

Winner Logistics, winner of the underlying suit, instituted this action for wrongful use of civil proceedings against LLM, defendant Ball, and defendant attorneys. On May 15,2008, summary judgment was granted in favor of Winner Logistics and against defendants Labor Logistics and Ball. Defendant Ball affirmatively insisted that he did not rely on the advice of counsel when determining whether the underlying action could be initiated or continued. Ball’s sole claim to probable cause was based on his individual and uninformed reasonable belief that the claim may be valid. The court found that a client’s ignorant hopeful intuition based upon a decision not to ask retained counsel whether a valid lawsuit could be brought under the existing or developing law is not acceptable. Since they affirmatively refused to ask counsel, defendants Labor Logistics and Ball must have acted “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” when they proceeded in the underlying action.

Winner Logistics also moved for summary judgment against the attorney defendants. On October 8, 2008, the court denied the motion finding that genuine issues of material fact existed as to what attorney defendants knew before initiating, procuring and continuing the legal action.

From October 14, 2009 to November 5, 2009, the case was tried before a jury against the attorney defendants. During deliberations the jury made a specific request to view a copy of the trial court’s decision in the underlying action. The court, after discussion with counsel, supplied thejury with the trial judge’s opinion as well as the Superior Court opinion overruling it and the Superior Court’s order staying the trial court’s order pending its own resolution of the legal issues.

Among the questions decided by the jury were the following:

Question No. 1:
Do you find that the attorney defendants initiated, or continued the underlying lawsuit for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claims on which the proceedings were based?
Question No. 2:
Were the attorney defendants, as attorneys in the underlying lawsuit, grossly negligent in initiating, or continuing the underlying lawsuit?
Question No. 3:
Did the defendant attorneys reasonably believe in the existence of the facts upon which the claim was based and either:
a) reasonably believe that under those facts the claim may be valid under the existing law properly applied to those facts
or;
b) believe in good faith that the initiation or continuation of the underlying case was not intended to merely harass or maliciously injure the opposite party?

On November 5,2009, the jury provided the court with a note stating they reached a verdict on questions one and three but were unable to reach a consensus on question two. After discussion with counsel, the court decided to take a verdict on one and three. The jury responded “no” to question one and “yes” to question three. After receiving these responses, the jury stepped out. Counsel presented their opinion as to whether jury deliberations should continue. Counsel for the attorney defendants argued that the jury had decided that his clients were not liable for any claims asserted against them and moved for an entry of a verdict in favor of defendants on all counts. Counsel for plaintiff agreed. “I think he [counsel for attorney defendants] is correct.” Shortly thereafter, counsel for plaintiff stated, “Your Honor, I would like to preserve the position we raised earlier, which is that gross negligence alone is ground for liability under the Dragonetti Act.” The verdict was taken by the court and recorded as a defense verdict and the jury was dismissed.

On November 13, 2009, plaintiff filed a post-verdict motion seeking a new trial. On May 20, 2010, after oral argument, the court denied the post verdict motion. On May 27, 2010, attorney defendants filed a praecipe to enter final judgment. On June 9, 2010, plaintiff filed this timely appeal. On June 28,2010, attorney defendants filed a cross appeal. The cross appeal is limited to the following issues: 1) whether the Pennsylvania Dragonetti Act is unconstitutional as applied to the regulation of attorney conduct, and 2) whether success on the merits for the plaintiff in the trial court precludes a later Dragonetti Act claim against that plaintiff or against plaintiff’s lawyer.

DISCUSSION

I. Whether the Attorney Defendants had a Reasonable Belief in the Factual and Legal Validity of the Underlying Claims Against Winner Logistics was a Question for the Jury.

The common law cause of action for wrongful use of civil proceedings has been codified at 42 Pa. C. S. A. § 8352 et. seq. The statute is referred to as the “Dragonetti Act.” The tort of wrongful use of civil proceedings is interpreted and applied broadly against those who use legal process as a “tactical weapon to coerce a desired result that is not the legitimate object of the process.”

In order to state a claim for malicious use of process, a plaintiff must prove that defendant initiated or continued civil proceedings against the plaintiff:

(a) without probable cause or in a grossly negligent manner;
(b) for an improper purpose; and
(c) that those proceedings were terminated in favor of the plaintiff.

Under the Dragonetti Act, “probable cause” is defined as follows:

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
(1) Reasonably believes that under those facts the claim maybe valid under the existing or developing law;
(2) Believes as an attorney of record, in good faith, that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

“Probable cause” is not defined in terms of any specific quantum of evidence or burden of proof. It is defined in terms of reasonable belief and good faith. The reasonableness of an attorney’s belief is assessed objectively. Where there are no material conflicts in the evidence, the existence of probable cause is a question of law for the court. However, the existence of probable cause is not always a question of law. When facts material to the issue of probable cause are in controversy, a factual dispute exists and the issue becomes one for the fact finder to resolve after proper instruction from the court. When the existence of probable cause is a mixed question of law and fact, it cannot be determined as a matter of law.

The record evidence demonstrates that issues of fact existed on the question of whether the attorney defendants had a reasonable belief in the facts to institute and continue the underlying action for breach of restrictive covenant and for misappropriation of trade secrets. The record evidence demonstrates that the attorney defendants were provided with the following facts: Ball testified at trial that he recounted to the attorney defendants Wallover’s initial interview with Ball during which there was a discussion of a requirement for a written covenant not to compete. Ball also testified that a written covenant was specifically mentioned in the employment letter to Wallover following the initial interview. Ball informed the attorney defendants that a Labor Logistics and Management, Inc. policy existed that all managerial employees were required to sign a restrictive covenant and that Wallover was aware that restrictive covenants were required. In fact, on one occasion, Wallover signed as a witness to a restrictive covenant signed by one employee. Ball also provided the attorney defendants with a previously prepared chart listing all salaried employees who had signed restrictive covenants at Labor Logistics Management, Inc. Wallover’s name appeared on the chart as having signed the restrictive covenant.

Additionally, Ball also provided the attorney defendants with typical restrictive covenants agreements signed by Labor Logistics and Management, Inc. employees. Ball informed the attorney defendants that restrictive covenants were signed by Ball and by other managerial employees of Labor Logistics Management who had access to its sensitive and protected customer and related business information.

Testimony at trial was also presented that the attorney defendants researched the issue of missing and lost documents. From their research, the attorney defendants determined that a witness could testify regarding the existence of lost documents. The attorney defendants felt that although the lack of the signed restrictive covenant made the case more difficult, the information provided by Ball would be sufficient to proceed. Defendant Conrad testified that the absence of a signed agreement made the case more difficult, however her investigation and research led her and defendant Bubba to believe that an action seeking injunctive relief and damages on behalf of LLM against Winner could be pursued and won.

The attorney defendants testified at trial that they believed the trade secret claim had a substantial factual and legal basis. Ball informed the attorney defendants about Labor Logistics Management, Inc.’s customers including information about their needs, busy times, loads and the types of drivers preferred. Ball informed the attorneys about the drivers, including experience and availability. Ball informed the attorneys that this information had been developed over a long period of time and was kept on computers that were protected by passwords. The information was not accessible to the whole company but was kept at specific locations and only certain employees had access to the information. The hard copy was kept under lock and key. This information included the customer prospect file, driver profile file, driver database and customer prospect database.

The attorney defendants relied upon cases which identified customer lists as highly confidential and valuable assets. The precedents established by the cases as well as the facts furnished to the attorney defendants by Ball informed their reasonable belief that the trade secret claim had validity. An attorney is not required or expected to prejudge his client’s claim, and although she may be fully aware the chances of success are comparatively slight, the attorney may present it to the court for adjudication if client insists without running the risk of being sued in return. It is the attorney’s responsibility to reasonably and accurately explain to the client the nature of the chances for success. The jury in this case was the proper finder of fact and they properly found for defendants.

II. The Court’s Evidentiary Rulings were Proper.

A. Allowing testimony and publishing on Judge Rufe’s opinion to the jury is not error.

Plaintiff argues that permitting evidence and argument regarding Judge Rufe’s order and opinion in the underlying matter was unfairly prejudicial and confusing. Admission of evidence is a matter within the sound discretion of the trial court and should not be reversed absent a showing that the trial court clearly abused its discretion. An abuse of discretion occurs when the law is overridden or misapplied or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will as shown by the evidence or record. Evidentiary rulings which did not affect the verdict may not provide a basis for disturbing the jury’s judgment. Prejudice means an undue tendency to suggest a decision on an improper basis.

For a new trial to be warranted, an evidentiary ruling must not only be erroneous, but also be harmful. It is incumbent upon the moving party to demonstrate that the prejudice suffered was from the mistake by the trial court.

In this case, Judge Rufe’s opinion played a key role in the historical background of this case. Testimony regarding the order and opinion was necessary. The testimony also included the Superior Court opinion which reversed Judge Rufe’s order and opinion. The jury was informed that Judge Rufe’s opinion was a nullity. The opinions were necessary to convey a complete picture of the underlying case.

The jury respectfully asked the court to read and provide a copy of Judge Rufe’s opinion specifically with respect to trade secrets. The court, after consulting with counsel for both sides, provided the jury with a copy of Judge Rufe’s opinion. Simultaneously, the court provided the jury with the Superior Court’s opinion staying Judge Rufe’s decision as well as the Superior Court opinion that reversed the decision. Providing the jury with a copy of the stay order and the decision of the Superior Court produced no prejudice whatsoever.

The court instructed the jury on the governing law on trade secrets directly from the Superior Court opinion. The court instructed the jury as follows:

[a]n employee is free to take with him when he leaves an employer such information about the customers of the employer as he remembers. The customers’ identities are not trade secrets and an employee can use customer identities retained solely in his memory. So the names on the LLM customers lists does not qualify as trade secrets. Even if it were the names, even if they were to be considered trade secrets, if those names were not stolen or improperly taken from LLM but were simply retained in memory, then they could be used.

By instructing the jury on trade secrets directly from the Superior Court opinion and then providing the jury with the opinion correctly informed the jury that the Superior Court opinion was the law. Introducing and providing a copy of Judge Rufe’s opinion to the jury in response to their specific request could not be error.

B. Permitting Epstein to testify as an expert was not reversible error.

Plaintiff argues that the trial court erred in denying its motion in limine to preclude the attorney defendants’ expert, Alan Epstein, from testifying. Plaintiff alleges that Epstein should not have been permitted to (1) present evidence that ethical rules mandated their frivolous lawsuit and (2) testify regarding improper purpose.

It is well-known under Pennsylvania law that the standard by which a witness qualifies as an expert witness is a liberal one. In order to qualify as an expert witness in a given field, a witness normally need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. Thus, ordinarily, “the test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specializedknowledgeonthesubjectunderinvestigation.” The fact that an expert witness is one who claims a special knowledge or experience beyond that of the normal individual does not confer extra credibility. When expert testimony is admitted, the credibility of the witness and the opinion expressed must be evaluated, even if uncontested. Even when expert testimony is properly admitted, its assistance should not be overstated. Professional expert opinion testimony is generally evidence of low quality, for “an opinion is only an opinion.” Opinion evidence is considered of a low grade and not entitled much weight against positive testimony of actual facts such as statements by the defendant and observation of his actions.

Expert testimony is subject to cross examination where an expert’s opinion becomes so compromised a jury ignores it. Given the lax Pennsylvania standard, however, even this expert’s testimony met the standard. A witness does not fail to meet the reasonable pretension standard by omitting former employers from his resume or denying the clear meaning of a judicial decision or pronouncing that an attorney may sometimes present misleading evidence to the court.

The professional rules upon which expert Epstein testified were not relied upon as any basis for a cause of action. This jury was properly instructed as to the standard which governs the relationship between a lawyer and client. The jury was permitted to disregard any expert testimony that is unsupported by the facts or not credibly presented and this jury obviously did.

Thus, there was not reversible error.

III. Jury Charge

A. The court properly instructed the jury on gross negligence and improper purpose.

Plaintiff contends that the court erred in charging the jury that the attorney defendants could not be held liable for gross negligence under the Dragonetti Act unless the jury also found that the attorney defendants initiated or continued the underlying action for an improper purpose. It is plaintiff’s contention that “based on the text and structure of the Dragonetti Act, gross negligence alone is a sufficient basis for imposing liability under the act.” Neither the text, structure, legislative intent nor legislative history supports the theory that a lawyer who loses a case may be sued by the winning party for any “gross negligence” in the conduct of the litigation.

The court instructed the jury as follows:

The Dragonetti Act, which is really the wrongful use of civil proceedings, that’s what it’s all about, says a person who takes part in the initiation or continuation of civil proceedings against another is subject to liability if 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, period.

The court reviewed the questions on the verdict sheet which incorporated the elements necessary to prove the claim of wrongful use of civil proceedings. The court instructed the jury as follows:

...Question number one, you’re going to get a copy of this question number one: Do you find that the attorney defendants initiated or continued the underlying lawsuit for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claims on which the proceedings were based? Yes or no.
Question Two: Were the attorney defendants, as attorneys in the underlying lawsuit, grossly negligent in initiating or continuing the underlying lawsuit? Yes or no.
Question Three — now, all I’m doing, I read you the statute, all we’ve done here is couch the Statute in terms of questions and we tried to incorporate what we in the law call the elements into each question. So question three has several parts because probable cause requires either or and I think it’s spelled out this way...

The court also correctly instructed the jury on the meaning of gross negligence as follows:

Gross negligence is substantially more than ordinary carelessness, inadvertence, laxity or indifference, but it’s less than wanton or reckless behavior. Gross negligence is an action or a failure to do something, a failure to act which grossly deviates from an ordinary standard of care.

The element of gross negligence under the Dragonetti Act was presented to the jury as a separate issue without any reference to the attorney’s improper purpose. The court coupled the element of gross negligence with improper purpose only when the court decided that the answers to questions one and three rendered a defense verdict and dismissed the jury without requiring any answer to question two, the gross negligence question. Thus, whether this was proper has nothing to do with the jury charge as given and is strictly a question of law, namely one of statutory interpretation.

Title 42 Pa.C.S. § 8351 of the Dragonetti Act imposes liability upon a person, in this case an attorney, who:

.. .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;...

Plaintiff claims this text makes gross negligence alone a sole basis for liability under the act. Plaintiff’s interpretation would potentially subject attorneys to liability from all opposing parties in every unsuccessful action initiated or continued. Liability would be imposed even if the attorney pursued the action in good faith but failed to obtain discovery in accordance with the rules of civil procedure, failed to present motions for discovery, lost discovery or failed to timely submit required court filings such as pretrial motions or points for charge. Such liability amounts to nothing more than legal malpractice claims by non clients which would subject attorneys to punitive damages and attorney fees from the other side. The act was never intended to expand potential liability to include attorney good faith but gross negligent representation. This interpretation transmogrifies the Dragonetti Act into a civil Post-Conviction Relief Act with potentially dire financial consequences for any attorney who unfortunately loses a case.

Plaintiff’s interpretation is contrary to the prior Superior Court interpretation of the act. In the context of the Dragonetti Act, Pennsylvania courts have defined gross negligence to mean the “want of scant care” or “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. The Superior Court has held a defendant attorney is not liable unless the plaintiff can demonstrate the underlying action was filed for an improper purpose even if the defendant attorney either lacked probable cause in or acted with gross negligence by initiating or maintaining the underlying action Pennsylvania courts further explain that an attorney is neither required nor expected to prejudge his client’s claim. Although an attorney may be fully aware that the chances are comparatively slight, it is her responsibility to present it in court for adjudication if the client so insists after she has explained to the client the nature of the chances for success.

The strict goal in interpreting any statute is to ascertain and effectuate the intention of the General Assembly. The Statutory Construction Act of 1972and the Pennsylvania Supreme Court in numerous cases has stated that the plain language of a statute is the best indication of legislative intent. When the statutory language is clear, explicit, and free from ambiguity, courts must discern intent from the language alone, without regard to “spirit” of the statute or legislative history. Courts must construe words and phrases according to their common and approved usage. Courts must construe a statute in such a way as to give effect to all its provisions, if possible. Every provision is presumed meaningful; none should be dismissed as mere surplusage.

Giving effect to all the words in the statute, the only reasonable reading of § 8351 is to interpret the “improper purpose” clause as modifying both “in a grossly negligent manner” and the “probable cause” clause. The word “and,” which appears in the statute after the clause “without probable cause,” is a conjunction connecting each element of the former clause “in a grossly negligent manner or without probable cause” clause to the latter “improper purpose” clause.

The legislative history for the Dragonetti Act requires this interpretation. The legislature believed that the terms malice and gross negligence were synonymous. Since, the legislature maintained the belief that malice and gross negligence were synonymous, some bad activity must be associated with gross negligence as intended in the act. Hence, the act’s improper purpose clause must apply to the gross negligence clause as well.

This interpretation is also supported by the Pennsylvania Civil Standard Jury Instruction committee note for 3.11, Gross Negligence. The subcommittee note reads:

It has been held that there are no varying degrees of negligence under Pennsylvania common law and most, if not all, of the cases that discuss gross negligence are discussing proof of the same as required by various statutes, e.g., the Mental Health Act cited above and the statutory action entitled Wrongful Use of Civil Proceedings, 42 Pa.C.S. §§8351-8354. However, the latter statute cannot be used as a guide in defining gross negligence since an additional component of the statutory tort is acting “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.” Consequently, an element of malice needs to be shown. Hart v. O’Malley, 647 A.2d 545 (Pa.Super. 1994), aff'd, 676 A.2d 222 (Pa. 1996).

An attorney can not be held liable for gross negligence under the Dragonetti Act unless the jury also finds that the attorney initiated or continued the underlying action for an improper purpose. Since this jury found that the attorney did not initiate or continue the underlying lawsuit for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claims on which the proceedings were based, no further deliberations were necessary and the question of gross negligence did not need to be answered. The court properly accepted and recorded a verdict based upon the answers to question one and three and discharging the jury.

B. Clear and convincing standard.

Plaintiff contends that the court should have charged the jury as a matter of law that the attorney defendants could never have proven in the underlying action by clear and convincing evidence that a restrictive covenant existed because no written signed document could be produced. Essentially, plaintiff requests a directed verdict. It is within the province of the fact-finder, not the court, to determine the weight to be accorded each witness’s testimony and to believe all, part, or none of the evidence introduced at trial. Here, it was the province of the jury to consider the evidence presented at trial, to weigh the credibility of the witnesses for both sides, and to accord each piece of evidence the weight that the jury deemed appropriate.

Plaintiff’s position that only direct evidence canpossibly be capable of satisfying the clear and convincing standard is incorrect. For evidence to be clear and convincing, the witnesses must be found credible; the facts to which they testify must be distinctly remembered; and the testimony must be so clear, direct, weighty, and convincing that the jury can reach a clear conviction, without hesitancy, of the truth of the precise facts in issue. Although this is a significant burden of proof, it is not necessary that the evidence be uncontradicted, as long as the evidence leads the jury to a clear conviction of its truth. It is not essential that the contents of a document be proven only by the written words.

A missing written covenant makes it more difficult for a party to prevail in an action for breach of restrictive covenant since a missing instrument must be proved by clear and convincing evidence. However, it is not impossible. Losing the instrument does not bar the action as a matter of law. Viewing the evidence in the light most favorable to the attorney defendants, there is no reason to set aside the jury’s verdict and to enter a directed verdict in plaintiff’s favor in light of the evidence presented at trial.

C. The court properly refused the requested charges.

Plaintiff contends that the court erred in refusing to charge the jury on their proposed points for charges 6, 21, 22, 23 and 24. The trial court has broad discretion in phrasing jury instructions and is not bound to use the exact language of a requested jury charge. It may choose another form of expression so long as it adequately and clearly covers the subject, and fairly and adequately apprises the jury of the relevant law and guides the juiy in its deliberations. Error in the jury charge is sufficient grounds for a new trial only if the charge, taken as a whole, is inadequate, unclear, or has the tendency to mislead or confuse rather than to clarify a material issue and if the substance of that instruction is not otherwise covered by the trial court’s general charge. The charges proposed by plaintiff were either covered within the court’s instruction or improper.

With regard to proposed point for charge 6 and 21, the proposed points were clearly and adequately covered in the court’s charge to the jury. The court’s instruction provided the jury with the relevant law and guided the jury in its deliberations on the questions of improper purpose, probable cause and gross negligence. Plaintiff’s claim for error is misplaced; these proposed points were covered by the court’s instruction.

Plaintiff’s proposed point for charge 23 was also covered. The charge asked the court to charge the jury that the attorneys violated their duty of candor to the court and fairness to opposing counsel when it failed to produce documents requested or presented that were incomplete or missing. During the trial, an issue arose over the production of a copy of Ball’s shareholder agreement. The court instructed the jury as follows:

...It is important that you understand in order to evaluate Mr. Davitch’s testimony that this document, the shareholders agreement which did contain a restrictive covenant that Mr. Ball signed, was contained in the files of Mr. Joseph Bubba at his office as he testified to, but had never been given to plaintiff’s counsel in this case or to Mr. Martin in the underlying case.

As such, the court rejected the proposed point since the court provided the jury with an instruction on the produced document and further instruction was unnecessary.

Proposedpoints for charge 22,23 and24, were improper. Proposed points for charge 22,23 and 24 were intended to provide the jury instruction on the rules for professional conduct. The Rules of Professional Conduct were not designed to impose civil liability upon attorneys.

Since the proposed points were either covered or improper, a claim for error is incorrect.

D. The court did not error in addressing in responding to the jurors’ question to 3(a).

Plaintiff argues that the court erred in responding to the jurors question concerning interrogatory 3a on the verdict sheet. Interrogatory 3 a on the verdict sheet said:

Did the defendant attorneys reasonably believe in the existence of the facts upon which the claim was based and either;
a) reasonably believe that under those facts the claim may be valid under the existing law properly applied to those facts.

The jury raised two questions regarding interrogatory number 3. The jury’s first question was:

In reviewing question 3 a, if we believe that “under those facts the claim,” is not valid under exiting law, but may be valid under developing law or may present the opportunity to change the law, would it be appropriate to vote yes?

In responding, the court again explained question number three to the jury and accurately charged that the defendants in this case did not claim that they were seeking to modify or reverse existing law, they were seeking to extend existing law only to the facts of this particular case. Although defendant objected to this response, plaintiff did not object. This instruction caused no harm to plaintiff. The instruction connected interrogatory three and negated the possibility that the attorney defendants were trying to develop or change the law.

The second question posed by the jury was:

Would the court please read back the instructions on how to respond to question three. It is our belief that if we do not believe that the attorneys believed in the existence of the facts, then our vote is no regardless of haw we would vote on 3a or 3b. If we say yes that the attorneys believed in the existence of the facts, then our vote would be yes if we believed only a) or b) but not both.

The court and counsel agreed that the jury’s belief as stated in the question was correct. The court explained in detail how the jury should approach and answer interrogatory number three and that developing law was not in issue. This particular jury was competent and clearly understood the court’s instruction. This jury deliberated earnestly and asked pertinent questions for the task before them with accurate information and rendered a true verdict.

CONCLUSION

For the reasons discussed above, this court’s order denying post verdict motions should be affirmed.

        . 42 Pa. C.S. § 8351-8355.

      . Labor & Logistics Management, Inc. and Curtis Ball were defe - dants in this action but settled with the plaintiff prior to trial.

      . Labor & Logistics. Inc. v. Winner Logistics. Inc., 02-07933, Court of Common Pleas of Bucks County, memorandum opinion and order no. p.1.

      . Summary judgment opinion dated May 8, 2008 (citing LLM v. Winner, No. 326 EDA 2005 at 11).

      . Summary judgment opinion dated May 8, 2008 (citing Van Prod. Co. v. General Welding, 213 A.2d 769, 766 (Pa. 1965)).

      . Jury verdict sheet.

      . N.T. Vol. 16 p. 3, 12.

      . N.T. Vol. 16 p. 10-11.

      . N.T. Vol. 16 p. 13-14.

      . N.T. Vol. 16 p. 15.

      . N.T. Vol. 16 p. 15.

      . The attorney defendants’ appeal is based respectively on this court’s denial of summary judgment on October 8, 2008 and overruling attorney defendant’s preliminary objections on June 5, 2007. Appellate jurisdiction is generally limited to appeals from final orders of courts of common pleas. Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974); Williams v. Williams, 385 A.2d 422 (Pa. Super. 1978). An order is final and thus appealable if it ends litigation, disposes of the entire case or effectively puts the litigant out of court. T. C. R. Realty. Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). As such no appeal can be taken from an order denying summary judgment or an order overruling preliminary objections since the orders are not final.

      . Plaintiff appeals this court’s denial of summary judgment in their favor. As stated in footnote 12, appeals lie only from final orders that end litigation, dispose of the entire case or effectively put the litigant out of court. Plaintiff’s appeal from the order denying summary judgment should be quashed since it is not a final order subject to appellate review.

      . McGee v. Feege, 517 Pa. 247, 535 A.2d 1020, 1026 (1987).

      . 42 Pa. C. S. A. § 8351 (a)(1) and (2); Rosen v. Tesoro Petroleum Corp. 582 A.2d 27 (Pa. Super. 1990).

      . 42 Pa. C. S. A. §8352.

      . Bannar v. Miller, 701 A.2d 232, 238 (Pa.Super.1997).

      . Broadwater v. Sentner, 725 A.2d 779, 782 (Pa.Super. 1999), a - peal denied, 562 Pa. 664, 753 A.2d 814 (2000). Wainauskis v. Howard Johnson Co., 488 A.2d 1117, 1123(Pa. Super. 1985); Turano v. Hunt, 631 A.2d 822, 825 (Pa. Cmwlth. 1993), appeal denied, 538 Pa. 652, 647 A.2d 905 (1994).

      . Bannar v. Miller, 701 A.2d 232 (Pa. Super. 1997).

      . N.T. Vol. 10 p. 142.

      .D-5.

      . N.T. Vol. 9 p. 195; D-6.

      .D-4.

      . N.T. Vol. 9 p. 193-194.

      . N.T. Vol. 10 p. 78.

      . See e.g. Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 623, 136 A.2d 838, 842, 843 (1957); Robinson Electric Supervisory Co. v. Johnson, 154 A.2d 494 (Pa. 1959); Van Products Co. v. General Welding & Fabricating Co., 419 Pa. 248, 213 A.2d 769 (1965); Felmlee v. Lockett, 351 A.2d 273, 278 (Pa. 1976); Air Products & Chemicals, Inc. v. Johnson, 442 A.2d 1114, 1120 (Pa. Super. 1982).

      . In the event reliance upon defendants’ expert testimony would have been necessary to the verdict, a serious question of sufficiency of the evidence would be presented. See, Samuel-Bassett v. Kia Motors Am., Inc., 2007 Phila. Ct. Com. Pl. LEXIS 304 (Pa. C.P. 2007)(although qualified to offer “expert opinion testimony,” the sincerity with which he conducts his “evaluation,” the methodology or lack thereof, the factual basis on which his opinion is based, his candor, self-interest and bias are all matters for the finder of fact to consider in judging credibility and determining whether to accept all or some or none of his testimony). However, this jury verdict can reasonably be upheld disregarding all such expert testimony. See, S.N. T. Industries, Inc. v. Geanopulos, 525 A.2d 736, 740 (Pa. Super. 1987)(“Where the jury’s verdict is supported by testimony which is not inherently improbable nor at variance with admitted or proven fact or with ordinary experience, a new trial will not be granted.”).

      . Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (Pa. 2009).

      . Callahan v. AMTRAK, 979 A.2d 866, 871-872 (Pa. Super. 2009).

      . Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (Pa. 2000).

      .N.T. Vol. 15 p. 13.

      . Id. at 18-19, 22-23.

      . N.T. Vol. 14 p. 22, 27-28.

      . Plaintiff also contends that the court erred in permitting the e - pert to discuss and opine on the issue of probable cause and Judge Rufe’s opinion. These matters were previously addressed infra and are incorporated herein.

      . Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 481, 664 A.2d 525, 528 (1995).

      . Commonwealth v. McCloud, 455 A.2d 177,179 (Pa. Super. 1983).

      . If this testimony had been essential for this verdict to be upheld a serious issue would be presented because of the demonstrated lack of candor. However, the verdict in this case did not necessarily rely on this expert opinion.

      . Plaintiff’s brief in support of post-verdict motions p. 21-22.

      . N.T. Vol. 14 p. 17.

      . N.T. Vol. 14 p. 20-21.

      . Id. at 28-29.

      . Plaintiff’s brief in support of post trial motions pp. 22-23.

      . See 42 Pa. C. S. § 8353.

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

      . Broadwater v. Sentner, 125 A.2d 779, 784 (Pa. Super. 1999). See also, Morris v. Di Paolo, 930 A.2d 500, 504 (Pa. Super. 2007), and Rosen v. Tesoro Petroleum Corp., 582 A.2d 27 (Pa. Super. 1990) (the court identifies the elements for wrongful use of civil proceeding as lacking probable cause or in a grossly negligent manner and improper purpose).

      . Broadwater v. Sentner, 725 A.2d 779, 784 (Pa. Super. 1999).

      . 1 Pa. C. S. § 1501, et. seq.

      . Commonwealth v. Magliocco, 584 Pa. 244, 883 A.2d 479 (2005); Colville v. Allegheny County Ret. Bd., 592 Pa. 433, 926 A.2d 424 (2007); Pa. Associated Builders Constrs. Inc. v. Cmwlth Dept. of Gen. Services., 593 Pa. 580, 932 A.2d 1271 (2007).

      . 1 Pa. C. S. § 1922; see also In re Adoption of J.A.S., 939 A.2d 403, 405-406 (Pa. Super. 2007).

      . In the legislative journal for the House of Representatives volume 70 page 2634, Mr. Spencer, a representative from Tioga County who supported the motion to create a statutory cause of action for wrongful use of civil proceedings stated: “The purpose of the bill is to abolish what is known as the Old English Rule, a rule that was formulated in 1259. [The Old English Rule required seizure or interference with claimant or claimant’s property in addition to proving that the legal process was initiated without probable cause and with malice. McGee v. Feege, 517 Pa. 247, 535 A.2d 1020 (1987), citing Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 349, 32 A.2d 413 (1943)]. The difference between the Senate bill and the House bill is a matter pretty much of legal semantics. Basically, the real difference is between the use of the word “malice” and the use of the words “gross negligence,” and in all cases that I could find in the Commonwealth of Pennsylvania, the differences are without distinction as far as civil suits are concerned.” 70 Pennsylvania Legislative Journal (House) at 2634-36.

      . Pennsylvania Civil Standard Jury Instruction 5.50A; Spencer v. Colt, 89 Pa. 314 (1879); Cullmans v. Lindsay, 6 A. 332 (Pa. 1886); Highlands v. Philadelphia & Reading R.R. Co., 58 A. 560 (Pa. 1904); Lindemann v. Pittsburgh Railways Co., 96 A. 1085 (Pa. 1916); Ralston v. Philadelphia Rapid Transit Co., 110 A. 329 (Pa. 1920); Broida v. Travelers Ins. Co., 175 A. 492 (Pa. 1934); In re Trust Estate of LaRocca, 192 A.2d 409 (Pa. 1963); In the Estate of Fickert, 337 A.2d 592 (Pa. 1975); Lessner v. Rubinson, 592 A.2d 678 (Pa. 1991); In re Cicchetti, 743 A.2d 431 (Pa. 2000).

      . A lost document may be proven by extrinsic evidence including but not limited to testimony. Pa. R. E. 1004; see also L.C.S. Colliery, Inc. v. Globe Coal Co., 369 Pa. 1, 9, 84 A.2d 776, 781 (1951).

      . “[T]o recover on a lost instrument, a claimant is required to prove its former existence, execution, delivery, contents, that he is the owner thereof at the time of trial, and that the instrument is lost. The evidence to sustain the averments must be clear and convincing.” In re Greggerson is Estate, 344 Pa. 498, 501, 25 A.2d 711, 713 (1942).

      . Plaintiff also claims error with proposed point for charge 27 on clear and convincing evidence. The court adopts and incorporates its prior, discussion on this issue.

      . Chicchi v. Southeastern Pennsylvania Transportation Authority, 727 A.2d 604 (Pa. Cmwlth. 1999), appeal denied, 560 Pa. 750, 747 A.2d 371 (1999).

      . Von der Heide v. PennDOT, 553 Pa. 120, 718 A.2d 286, 288 (1998); Burke v. Buck Hotel Inc., 742 A.2d 239, 246 (Pa. Cmwlth. 1999).

      . N.T. Vol. 14 pp. 16-28.

      . N.T. Vol. 14 p. 29-30.

      . Maritrans GP Inc. v. Pepper. Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277, 1284 (1992); Pa.R.P.C, Scope (stating that “violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules...are not designed to be a basis for civil liability”).

       N.T. Vol. 14 p. 55-56.

      . N.T. Vol. 14 pp.56-57.

      . N.T. Vol. 14 p. 62.

      . N.T. Vol. 15 pp. 9-11.

      . N.T. Vol. 15 pp. 9-12.