Lawyers for Bill Cosby accuser Andrea Constand took aim at claims by former prosecutor Bruce Castor in new court papers, arguing that Castor’s lawsuit against them and their client should be dismissed.
Bebe Kivitz and Dolores Troiani filed preliminary objections last week in Castor v. Constand, and the filing became publicly available Monday. Castor sued Constand and her lawyers in the Philadelphia Court of Common Pleas on Nov. 1, alleging that they filed a defamation complaint against him in 2015 to sabotage his chances in the race for Montgomery County district attorney that year.
Castor was the district attorney in Montgomery County in 2005, when Constand initially brought her sexual assault allegations against Cosby. He publicly announced his decision not to bring charges against Cosby at the time, and the comedian wasn’t criminally charged until a decade later, after prosecutors obtained more evidence against him.
Constand’s suit alleges that Castor defamed her in his remarks about her allegations against Cosby. The case is ongoing in the U.S. District Court for the Eastern District of Pennsylvania. Because the litigation is pending, Kivitz and Troiani argued, Castor’s abuse of process and civil conspiracy claims should not survive.
“A lawsuit which depends on termination of a pending lawsuit cannot proceed,” the defendants, represented by Jeffrey McCarron of Swartz Campbell, said in their preliminary objections.
While the complaint brings an abuse of process claim, the preliminary objections said, the language of the complaint better fits the tort of wrongful use of civil proceedings. But Castor cannot bring a claim for wrongful use of civil proceedings while the underlying civil case is pending, the filing said.
“Pursuit of the Constand lawsuit is not actionable as an abuse of process,” Kivitz and Troiani wrote. “Alleged ‘false, scandalous statements’ or ‘fabricated’ or ‘scurrilous’ accusations made in pleadings and court filings in the Constand lawsuit cannot form the basis for defendants’ liability to Castor.”
With regard to the conspiracy allegations, Kivitz and Troiani said there can be no tort to serve as the object of conspiracy if there is no abuse of process claim. Additionally, they argued “a lawyer is not a conspirator with a client,” and Castor did not allege facts to show malice on the part of Constand’s lawyers.
If the complaint is not dismissed, Troiani and Kivitz alternatively asked for the court to strike certain paragraphs of the complaint that describe the alleged sexual assault, criminal investigation and civil settlement between Constand and Cosby. That material is “scandalous and impertinent,” they said.
“Events which occurred prior to Constand’s lawsuit are immaterial to Castor’s claimed abuse of process,” the preliminary objections brief said. “Castor’s averments about how he set the stage for Constand to obtain a big payment by not prosecuting Cosby is not a defense to the defamation and false light claims” against Castor.
Castor’s complaint alleges that Constand and her lawyers helped Kevin Steele, now the Montgomery County district attorney, in making Castor’s 2005 decision not to prosecute Cosby a central campaign issue. Then they filed the defamation suit soon before Election Day in 2015.
“The defendants made it their mission to destroy Castor’s desire and campaign for Montgomery County district attorney—and did—by embarking on a manifest abuse of legal process, hoping they could shield their mischief via their procurement, initiation and continuation of their frivolous, malicious filing,” the complaint asserts.
Jim Beasley of The Beasley Firm is representing Castor, and did not return a call seeking comment.
Cosby was charged with aggravated indecent assault shortly after the 2015 election. His first criminal trial ended with a hung jury and mistrial in June. A second trial has been scheduled for April.