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HomeMy WebLinkAbout02-0766 CIVILREG, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW OWEN MEALS, JR., Defendant NO. 02-0766 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Before HOFFER, P. J., HESS, J. and OLER, J. Before the court are the preliminary objections of the defendant, Owen Meals, Jr., to the Complaint of the plaintiff, REG, Inc. ("REG"). Plaintiff REG brings this action in law against defendant Meals, alleging breach of contract, trespass, wrongful use of civil process, and unjust enrichment, for disputes arising out of a lease agreement between the parties. In addition, REG is also seeking punitive damages under the counts of trespass and wrongful use of civil process. Defendant Meals's preliminary objections in the form of a demurrer contend that REG's counts of trespass, wrongful use of civil process, and punitive damages are legally insufficient pursuant to Pa. R.C.P. 1028(a)(4). FACTS On June 12, 1991, defendant Meals entered into a Commercial Lease ("Lease") with REG for 2000 square feet of office space at 800 Belvedere Street, Carlisle, Pennsylvania. The Lease also included parking facilities in the front of the building and five parking spaces in the rear. Meals was not given exclusive use of the utility room that contained air conditioners, a furnace, and storage space for the Lessor. The term of this lease was to begin on June 1, 1991 and end on July 31,2001. Paragraph 14 of the Lease states, "Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the Lease, peaceably and quietly surrender and deliver the demised premises to Lessor free of subtenancies, all in good condition and repair. Lessees shall repair and restore all damage to the demised premises caused by the removal of equipment, trade fixtures and personal property." Paragraph 17 of the Lease states, "All damages or injuries done to the premises other than those caused by fire or ordinary wear and tear or by the acts or omission of the landlord shall be repaired by Lessee herein including repairs to the existing paneling or replacement of same if not repairable." Prior to the end of Meals's lease term, July 31, 2001, REG gave Meals full and adequate notice that his term would not be extended. Prior to that date, REG had negotiated a lease agreement with Lil' Ponderosa Enterprises ("Ponderosa") for the premises for a three year term with a rental rate of $3,300 per month. Pursuant to this lease agreement, Ponderosa paid a $3,300 deposit. Meals did not surrender the property on July 31, 2001, the date of the end of his lease term. On August 3, 2001, REG filed an Eviction and Request for Order of Possession with the District Justice court. REG sought payment for physical and unjust detention damages and recovery of the leased premises. On 2 August 21,2001, Meals filed a Cross-Complaint seeking recovery of damages for REG's destruction of his property and lost business income for REG's refusal to repair the air conditioning and related systems at the leased premises in accordance with the Lease Agreement. After conducting a hearing on August 30, 2001, the District Justice issued an Order of Possession and Notice of Judgment in favor of REG for rent in the amount of $3,034.00 per month and costs of $79.18. This amount was reduced by $500.00, the sum awarded to Meals under his Cross-Complaint. The District Justice did not award REG any monies for physical damages to the leased premises or damages for unjust detention. Neither party appealed from this Notice of Judgment within thirty days. Meals vacated the premises on September 30, 2001, upon receiving the Order for Possession, Return and Notice on September 18, 2001, which stated that if Meals remained on the premises eviction would commence on October 5, 2001. As a result of Meals's delay in vacating the premises, Ponderosa was unable to grant an extension of the time to take possession of the premises, and had to back out of its three year contract with REG. REG is seeking a variety of damages for each count in the Complaint. For Count 1 of breach of contract, REG is seeking a liquidated amount of $122,100.00, plus interest. This amount represents 36 months of rent that Ponderosa would have paid plus the $3,300.00 deposit. Under Count 2 for breach of contract, REG is seeking the costs to restore and/or repair the property pursuant to the contract terms, plus interest, this entire amount to be determined at trial. Under both counts REG is seeking attorney fees and costs of litigation. Under the counts of trespass and wrongful use of civil process, REG is demanding an amount in excess of the jurisdictional limit for compulsory arbitration, plus interest, attorney fees, and punitive damages. Finally, under the unjust enrichment claim, REG is seeking the amount of $6,068.00, two months rent, that Meals received unjustly as a result of his two month delay on the subject property. Defendant Meals is objecting only to the counts of trespass, wrongful use of civil process, and punitive damages. DISCUSSION Defendant's first preliminary objection alleges that, pursuant to Pa.R.C.P. 1028(a)(4), the plaintiff failed to state a cause of action as a matter of law for wrongful use of civil process.~ ~ Count 4 of plaintiff REG's complaint asserts Wrongful Use of Civil Process. (PI. Cmpl. at 8). In its Brief in Opposition to Defendant's Preliminary Objections to Plaintiff's Complaint, REG states that it actually wishes to pursue the common- law tort of "abuse of process," and that the defendant was confused by the title in the Complaint. Because the title does in fact explicitly state "Wrongful Use of Civil Process," not "abuse of process," the defendant's analysis in his preliminary objection stands. Even if Count 4 did correctly assert "abuse of process," the defendant's objection would be sustained. Restatement (Second) of Torts § 682 defines the tort abuse of process as "the use of legal process against another primarily to accomplish a purpose for which it is not designed." Hart v. O'Malley, 436 Pa. Super. 151,168,647 A.2d 4 The defendant analyzed the plaintiff's claim based on the tort of wrongful use of civil proceedings, or the Dragonetti Act. 42 Pa. C.S.A. §§ 8351 to 8355. The tort is defined as follows: (a) Elements of action. A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings when: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and (2) The proceedings have terminated in favor of the person against whom they are brought. 42 Pa. C.S.A. § 8351(a). By statute, the plaintiff has the burden of satisfying the following five factors: (1) The defendant has procured, initiated or continued the civil proceedings against him; (2) The proceedings were terminated in his favor; (3) The defendant did not have probable cause for his action; (4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the 542,551 (1994) (Citations omitted). An abuse of process claim is analyzed using three prongs. "To establish a claim for abuse of process, it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed, and (3) harm has been caused to the plaintiff." Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 382,627 A.2d 190, 192 (1993). In support of this claim, REG contends that the defendant used the legal process against the plaintiff in bad faith. There is nothing in REG's Complaint to support this claim of bad faith, therefore, the first prong is not satisfied. Further, the plaintiff has not shown that the defendant directly intended to abuse the legal process. Because the first two prongs have not been satisfied, the plaintiff has no claim for damages under the tort "abuse of process." proceedings were based; and (5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages). 42 Pa. C.S.A. § 8354. Wrongful use of civil proceedings arises when "a party institutes a lawsuit with malicious motive and lacking probable cause." Rosen v. American Bank of Rolla, 426 Pa. Super 376, 380, 627 A.2d 190, 191 (1993). The claim also should allege that the defendant wrongfully procured, initiated or continued civil proceedings against the plaintiff. Pawlowski v. Smorto, 403 Pa. 71, 77, 588 A.2d 36, 39 (1991). REG's claim is based on its assertion that Meals forced it to file an Eviction and Request for Order of Possession. The presence of this alleged "force" does not satisfy the first element of wrongful use of civil proceedings. In addition, REG alleges that Meals "continued, prolonged and defended said legal process and civil suit in bad faith." (PI. Compl. at 40). But there is nothing in the record that indicates that Meals maliciously continued or prolonged the suit before the District Justice. A malicious use of civil process claim centers on the initiation of a suit, not activities done after the commencement of such a suit, even if such activities are conducted in bad faith. Rosen, at 381,627 A.2d at 192. In regards to the probable cause element, REG has the burden of showing that the defendant did not have a reasonable basis for initiating his Counterclaim to REG's Complaint. Because the District Justice did in fact award the defendant damages for REG's damage to the premises, there is sufficient evidence to show that the defendant did have probable cause to support his Counterclaim. In addition, REG's request for attorney fees in regards to this claim is denied. The court in Hart v. O'Malley, 781 A.2d 1211, 1217 (Pa. Super. 2001), specifically held that attorney fees may not be awarded in a wrongful use of civil proceedings claim, and in fact can only be awarded for the prosecution of an underlying claim. Id. Because REG has not satisfied the elements of a claim for wrongful use of civil proceedings, the defendant's preliminary objection is sustained. The defendant's second preliminary objection alleges that, pursuant to Pa.R.C.P. 1028(a)(4), the plaintiff failed to state a cause of action as a matter of law for punitive damages. Because REG has not established a claim for wrongful use of civil proceedings, punitive damages with regard to such claim cannot be awarded. The second preliminary objection is sustained. The defendant's final preliminary objection alleges that, pursuant to Pa.R.C.P. 1028(a)(4), the plaintiff failed to state a cause of action as a matter of law for trespass. In support of his claim the defendant argues, with facts set forth in his brief, that REG had previously given the defendant holdover tenant status on a month-to-month basis. This affirmative defense is not appropriate in a preliminary objection because it is based on facts not set forth in the pleadings, and in fact should be set forth in an answer. Therefore, the defendant's final preliminary objection is denied. Mark F. Bayley, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 For the Plaintiff Douglas G. Miller, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 REG, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW OWEN MEALS, JR., Defendant NO. 02-0766 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Before HOFFER, P. J., HESS, J. and OLER, J. ORDER OF COURT AND NOW, this day of ,2002, upon consideration of defendant Owen E. Meals, Jr.'s Preliminary Objections by way of demurrer to plaintiff's complaint, it is hereby ORDERED that the objections with respect to Counts 4 and 5 are SUSTAINED, and the objection with respect to Count 3 is DENIED. By the Court, George E. Hoffer, P.J. Mark F. Bayley, Esquire Rominger & Bayley 155 South Hanover Street Carlisle, PA 17013 For the Plaintiff Douglas G. Miller, Esquire Irwin, McKnight & Hughes 60 West Pomfret Street Carlisle, PA 17013 ]0