The Pennsylvania Superior Court’s recent decision in Carmen Enterprises, Inc. v. Ely Goldin, Esq. and Fox Rothschild, LLP is a important reminder about PA’s Wrongful Use of Civil Proceedings Act (“WUCP”), 42 Pa.C.S. §§ 8351–8354 (often called the “Dragonetti Act“). The Superior Court confirmed that a WUCPA claim can be hard to kill. It often raises a fact question of fact for the jury. Thus, it is not usually a matter for dismissal on summary judgment.
Overall, the decision functions as a procedural correction by the Superior Court. In particular, the trial court resolved disputed facts and credibility issues. However, those issues should have been left to a jury.
A Brief Context: WUCP (Dragonetti Act)
Under WUCP, liability may arise when a party:
- participates in the procurement, initiation, or continuation of civil proceedings,
- without probable cause or in a grossly negligent manner, and
- primarily for an improper purpose,
- and the proceedings terminate in favor of the plaintiff.
WUCP focuses on whether the underlying claims themselves lacked probable cause. The doctrine reflect a core principle. Litigation must be terminated when it becomes clear the claim (or defense) lacks any basis in fact or law.
Carmen Enterprises, Inc. The Underlying Dispute
The case arises from long-running litigation between Carmen Enterprises and Murpenter. The dispute involved a failed 2001 business transaction. Specifically, it involved the sale of a customer list containing approximately 1,900 names.
Initially, Carmen Enterprises sued Murpenter for breach of contract and related claims.
In response, Murpenter filed counterclaims. Attorney Ely Goldin and Fox Rothschild, LLP represented Murpenter.
Those counterclaims included:
- fraud, based on an alleged failure to provide the full customer list, and
- conversion, based on alleged photocopying of a 15-page employee manual.
As the case developed, however, the factual support for those claims became weaker.
The Fraud Counterclaim
The fraud claim alleged that Carmen Enterprises failed to provide the agreed-upon list of 1,900 customers.
However, the record showed something important. Murpenter already possessed the customer list in electronic form.
In addition, Attorney Goldin later admitted that he discovered the disk containing the list during the litigation.
Then, during a deposition, Carmen Enterprises again produced the full list.
At that point, the Superior Court noted a key issue. A jury could find that (1) any arguable basis for continuing the fraud claim had disappeared and (2) the counterclaim continued, nevertheless.
The Conversion Counterclaim
The conversion claim was based on Attorney Chasan allegedly photocopying a 15-page manual.
However, the manual was immediately returned.
There was no allegation of damage or permanent deprivation.
Therefore, the Superior Court emphasized a legal principle. Conversion requires a serious deprivation of property rights. It does not include temporary or harmless interference.
On these facts, a jury could find that the conversion claim was a legal nonstarter. But a jury could also find the opposite: though a thin claim, a jury could find some merit to it.
The Trial Court’s Error
The Superior Court concluded that the trial court erred in granting summary judgment. In particular, the court improperly resolved factual disputes.
Instead, those disputes should have gone to a jury.
1. Probable Cause Can Be a Jury Question
Under WUCP, probable cause is often a question of fact.
Therefore, when evidence supports competing interpretations, the issue cannot be decided on summary judgment.
Here, the record supported different inferences about knowledge and intent.
As a result, the issue required jury determination.
2. Continuation of Claims Matters
WUCPA liability does not depend only on filing claims.
Instead, it also applies to continuing claims without probable cause.
Here, the record suggested something important. A jury could find that the fraud claim should have been withdrawn once the customer list was produced.
However, the claim was not withdrawn.
3. Expert Disputes Must Go to the Jury
The trial court also discounted expert testimony offered by Carmen Enterprises.
However, that testimony supported Carmen Enterprises’ theory that the counterclaims were continued after probable cause had dissipated. The expert further opined that a reasonable attorney, upon learning the relevant facts during discovery, should have recognized that the fraud and conversion claims lacked legal and factual support.
The Superior Court concluded that the trial court improperly weighed that testimony instead of viewing it in the light most favorable to the non-moving party, as required at the summary judgment stage.
Importantly, summary judgment is not a trial. A court deciding a summary judgment motion does not determine which witness is more credible, which expert is more persuasive, or which side’s interpretation of the evidence is ultimately correct. Rather, the court’s task is limited to deciding whether genuine disputes of material fact exist.
Here, the parties presented competing views regarding whether probable cause existed to continue pursuing the counterclaims and whether a reasonable attorney would have withdrawn those claims as additional facts emerged during discovery. Because the expert testimony supported differing conclusions on those issues, the Superior Court held that the dispute could not be resolved by the court as a matter of law.
Instead, those competing opinions must be evaluated by a jury. Jurors are responsible for assessing credibility, weighing expert testimony, and deciding which interpretation of the evidence is more convincing. As a result, the existence of conflicting expert opinions provided another reason why summary judgment was inappropriate and why the case should proceed to trial.
Takeaway: WUCPA Claims Are Not Easily Dismissed
Carmen Enterprises v. Goldin highlights several important principles.
First, probable cause is often a factual issue. It is not purely legal.
Second, continuation of litigation matters as much as initiation.
Third, conversion and fraud counterclaims must still meet basic legal standards.
Fourth, summary judgment is improper when intent and credibility are disputed.
Fifth, expert disagreement often signals a jury issue.
WUCP claims are not simple procedural add-ons. Instead, they often involve extensive discovery and competing expert opinions.
At the same time, the decision confirms something equally important. These claims are not easily dismissed when the record supports competing interpretations.
Therefore, for both plaintiffs and defendants, the message is clear. Wrongful-use litigation is fact-heavy, high-stakes, and often belongs in front of a jury rather than on summary judgment.
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