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HomeMy WebLinkAbout2008-1980 RALPH L. FOSTER, JR., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KEITH A. BLESSING, : DEFENDANT : 08-1980 CIVIL TERM IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., January 3, 2011:-- Before the court are the motions for judgment on the pleadings filed by Plaintiff, Ralph L. Foster, Jr. Plaintiff asks the court to enter judgment on Defendant Keith A. Blessing's counterclaims for malicious prosecution and abuse of process. For the following reasons, the motions are denied without prejudice to Plaintiff's right to refile them after the completion of the appellate litigation relating to the suit giving rise to the counterclaims. Defendant's counterclaims arise from Plaintiff's suit to compel performance of an installment sales agreement. Plaintiff’s suit was successful and an order was entered compelling specific performance of the agreement. Defendant then appealed to the Superior Court but his appeal was quashed in light of the still unresolved counterclaims. Defendant has now petitioned for allowance of appeal to our Supreme Court arguing that orders granting specific performance are immediately appealable. Due to the pendency of this petition, the instant motions are denied. 08-1980 CIVIL TERM As the Plaintiff's brief acknowledges, an element of malicious prosecution is that the party asserting that claim must have the underlying proceedings terminated in his favor. 42 Pa. C.S. §8351(a)(2). Here, Defendant lost. However, he has appealed that decision. If the Supreme Court grants his appeal, reverses the Superior Court, and remands for consideration of the appeal on the merits, Defendant's claim would still be alive. Then, if the Superior Court reversed the trial court's initial decision, Defendant would have the underlying claim terminated in his favor, rendering judgment on the pleadings inappropriate. This series of events may be unlikely but it is not impossible. Accordingly, the motion for judgment on the pleadings on the claim for malicious prosecution is denied without prejudice to Plaintiff's right to refile after the related appellate litigation is finished. Next, Plaintiff seeks judgment on the pleadings on Defendant's counterclaim for abuse of process. Plaintiff argues Defendant's complaint fails to satisfy the first element of such a claim because “[n]o legal process was used against Defendant other than the current action.” Pl.'s Br. at 6 (emphasis added). As the underlined text indicates, the current action is a legal process Plaintiff is using against Defendant. Accordingly, Defendant has not failed to plead the first element of an abuse of process claim and Plaintiff's motion is denied. We also note two other outstanding motions, which Plaintiff argued before the court. First, Plaintiff seeks special relief in the form of a court order authorizing future payments under the installment sales agreement to be deposited into an escrow account pending resolution of the assorted claims in -2- 08-1980 CIVIL TERM this matter. Plaintiff contends that such an arrangement would prevent Defendant from profiting from the interest on the payments, thereby removing any incentive for Defendant to needlessly extend this litigation. Though we sympathize with Plaintiff's predicament, this motion is not properly before us and we decline to act upon it at this time. Similarly, we cannot now address Plaintiff's petition for contempt. In that petition, Plaintiff demands that Defendant abide by the terms of the court order requiring Defendant to accept prepayment of the installment sales agreement and tender the deed to the property. Based on the pleadings it appears that Defendant may be in contempt of the court’s order; however, such a conclusion requires a factual determination based on a record created during a hearing on the petition. Accordingly, we make no ruling on Plaintiff's petition for contempt at this time. ORDER OF COURT AND NOW, this ___ day of January, 2011, Plaintiff's motions for judgment DENIED. on the pleadings are The denial is without prejudice to Plaintiff's right to refile the motions in the event Defendant's appellate litigation is unsuccessful. By the Court, Albert H. Masland, J. -3- 08-1980 CIVIL TERM Stephanie E. Chertok, Esquire William P. Douglas, Esquire Brian C. Yeager, Jr., Esquire For Plaintiff Karl E. Rominger, Esquire For Defendant :saa -4- RALPH L. FOSTER, JR., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : KEITH A. BLESSING, : DEFENDANT : 08-1980 CIVIL TERM IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J. AND MASLAND, J. ORDER OF COURT AND NOW, this ___ day of January, 2011, Plaintiff's motions for judgment DENIED. on the pleadings are The denial is without prejudice to Plaintiff's right to refile the motions in the event Defendant's appellate litigation is unsuccessful. By the Court, Albert H. Masland, J. Stephanie E. Chertok, Esquire William P. Douglas, Esquire Brian C. Yeager, Jr., Esquire For Plaintiff Karl E. Rominger, Esquire For Defendant :saa