In Pennsylvania, there are several tools which are available to deter baseless claims. Each of these tools has its advantages and disadvantages from the defense perspective.

Pennsylvania’s "Dragonetti Act" is one of the major weapons in combating baseless actions that drive up litigation costs for the insurance industry and businesses alike. Specifically, it provides: "A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; (2) The proceedings have been terminated in favor of the person against whom they are brought.

Section 8352 of the Act provides that a person who takes part in the procurement, initiation or continuation of a civil proceeding has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based and either reasonably believes that under those facts the claim may be valid under existing law or developing law or believes to this effect upon advice of counsel which is sought in good faith and given after a full disclosure of all relevant facts to the attorney. If the Dragonetti suit is being pursued against an attorney of record in the former case, the attorney can avoid liability by establishing that the initiation or continuation of the civil case was not intended to merely harass or maliciously injure the opposite party. If the essential elements of the action have been proven by a plaintiff under the Dragonetti Act, the plaintiff may recover, inter alia, the harm to his reputation by any defamatory matter alleged as the basis of the proceeding; the expense, including any reasonable attorney’s fees that he has incurred in defending himself against the proceedings; any specific pecuniary loss that has resulted from the proceedings; any emotional distress that is caused by the proceedings; and punitive damages in appropriate cases. In cases involving professional liability, such as medical malpractice actions, if the prior proceedings have been terminated in favor of the professional, that person can seek damages for the interruption of his practice, as well as for expenses and emotional distress. In cases where physicians are required to attend trial for one or two weeks, or more, these potential damages could be quite extensive.

It is important to note that the burden of proof under the Dragonetti Act is quite high. It is not simply enough that the underlying action be resolved in favor of the former defendant. In addition, that party must establish that the plaintiff in the underlying suit acted in a grossly negligent manner or without probable cause and for an improper person. The existence of probable cause is a matter of law and is decided by the Court.

Even though pursuing a Dragonetti action is difficult, it is a necessary tool to stem the tide of frivolous lawsuits, which increase the litigation costs for all involved. A Dragonetti action has the best chances of success when a plaintiff continues to maintain the underlying action against the defendant even though, after discovery, it has become clear that the plaintiff has no viable theory of liability.

Another weapon in the defense arsenal to combat baseless claims is Pennsylvania Rule of Civil Procedure 1023.1, which is a new provision allowing for sanctions against attorneys and parties for signing documents where there is no basis in law or in fact for the claim or defense set forth in the document. Unlike the Dragonetti Act, this provision allows a defendant to file a motion for sanctions with the trial court while the underlying case is still pending, i.e., it is not necessary to wait until the underlying case has been resolved in favor of the defendant.

There are several specific requirements governing an application for sanctions under Rule 1023.1. For example, the application cannot be made until a written notice is given to the opposing party regarding the defect in the document. The opposing party has 28 days to correct the defect, at which time, if the error has not been corrected, a motion for sanctions can be filed. This can be a very effective tool to procure early dismissal in actions where there is no question based upon the discovery obtained in the case that there is no admissible evidence of liability against a particular defendant. Interestingly, the rule also provides that the court may act on its own initiative by entering an order to show cause why an attorney, law firm or party should not be held to have violated this rule.

A sanction imposed for violation of Rule 1023.1 shall be limited to that which is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. In addition, the court can strike "the offensive litigation document or portion of the litigation document," which could lead to dismissal of the suit, depending upon the nature of the document. The court can also order payment of a penalty into court. Rule 1023.4 also allows the court to enter an order directing payment to the opposing party of "some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation."

Rule 1023 was adopted in April, 2002 and became effective in July, 2002. This rule was later amended in April, 2003 and became effective in its present form in June, 2003. Therefore, Rule 1023 is a relatively new weapon in the fight against wrongful use of civil process and other abuses which occur during the course of litigation. We will likely see an increased use of this rule in future litigation.

The final weapon against frivolous lawsuits is Rule 1042.3, which was adopted in January, 2003 and was effective immediately. This rule provides that in any action based upon an allegation of professional negligence, the plaintiff must file with the complaint, or 60 days after the complaint has been filed, a Certificate of Merit. The attorney signing the Certificate must verify that an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised by the defendant fell outside the acceptable professional standards and that such conduct was a cause in bringing about the harm.

The Certificate of Merit is another important tool in combating frivolous lawsuits. Rule 1042.3, combined with the Dragonetti Act and Rule 1023, provide defendants with the means to prevent abuses in civil litigation.