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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. : No. 08-1980 CIVIL IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J., EBERT, J., and PECK, J. OPINION and ORDER Currently before the court is a Motion for Judgment on the Pleadings filed by Plaintiff, Ralph L. Foster. Plaintiff requests the entry of judgment on and against Defendant Keith A. Blessing’s counterclaims for malicious prosecution and abuse of process. A similar motion was previously filed, but was denied without prejudice by the Honorable Albert H. Masland due to the pendency of an appeal to the Supreme Court of Pennsylvania. That appeal having since been denied, and for the reasons that follow, the instant Motion for Judgment on the Pleadings will be granted and Defendant’s counterclaims will be dismissed. The facts relevant to the instant motion may be summarized as follows. Plaintiff commenced the underlying action by way of a Complaint filed on February 28, 2008, which sought to compel the specific performance of an installment sales agreement for real property. Following preliminary objections, Plaintiff filed an Amended Complaint, which was responded to by way of an Answer to Plaintiff’s Amended Complaint, New Matter and Counterclaim, filed January 26, 2009. Defendant’s Answer contained counterclaims of, inter alia, malicious prosecution and abuse of process stemming from Plaintiff’s suit to compel specific performance of the agreement. On July 21, 2009, Plaintiff filed a Motion for Judgment on the Pleadings with regard to Plaintiff’s claim for specific performance, which was ultimately granted by Order of Court, dated October 26, 2009. Thus, Plaintiff’s suit having been successful, an order was entered compelling the performance of the agreement. Defendant thereafter appealed to the Superior Court, but his appeal was quashed in light of the still unresolved counterclaims. Defendant filed a Petition for Allowance of Appeal, which was treated as a Petition for Review, which has since been denied by the Supreme Court of Pennsylvania. We previously entered an order denying without prejudice a similar Motion for Judgment on the Pleadings on the basis that, although the motion was not without merit, the pendency of Defendant’s appeal to the Supreme Court presented the possibility of reversal of certain prior decisions upon which a resolution of Plaintiff’s Motion depended. Specifically, one element of the tort of malicious prosecution requires that the party asserting the claim must have had the underlying proceedings terminated in his favor. 42 Pa. C.S. § 8351(a)(2). Here, although Defendant had lost the underlying proceeding, he had appealed that decision. If the Supreme Court had granted his appeal, reversed the Superior Court, and remanded for consideration of the appeal on the merits, Defendant’s claim would still have been alive. Then, if the Superior Court reversed the trial court’s initial decision, Defendant would have had the underlying claim terminated in his favor. Thus, Plaintiff’s earlier Motion for Judgment on the Pleadings was premature. However, since that time, the Supreme Court has denied Defendant’s Petition for Review, and the matter is now ripe for disposition. A motion for judgment on the pleadings under Pennsylvania Rule of Civil Procedure 1034 may properly be granted after the relevant pleadings are closed and in cases so free and clear of doubt that a “trial would be a fruitless exercise.” Bata v. Central-Penn Nat. Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966); Pa.R.Civ.P. 1034(a). In ruling on such motions, the court looks only the pleadings and any documents properly attached thereto. 2 Id. at 179; Travelers Cas. & Sur. Co. v. Castegnaro, 565 Pa. 246, 250-51, 772 A.2d 456, 459 (2001). Judgment on the pleadings may not be entered where material issues of fact are in dispute. Miami National Bank v. Willens, 410 Pa. 505, 507-08, 190 A.2d 438, 439 (1963). The trial court must accept as true “all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Delaware River Preservation Co., Inc. v. Miskin, 2007 PA Super 113, ¶ 10, 923 A.2d 1177, 1180. In reviewing an order granting a motion for judgment on the pleadings, the appellate court will apply the same standard employed by the trial court. Conrad v. Bundy, 2001 PA Super 142, ¶ 10, 777 A.2d 108, 110. The tort of malicious prosecution, also known as wrongful use of civil proceedings, has been codified at 42 Pa. C.S. § 8351 which provides, in pertinent part, 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: (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. (b) Arrest or seizure of person or property not required. The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter. 42 Pa. C.S. § 8351. The Superior Court has explained that the wrongful use of civil proceedings “is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable 3 cause.” Kit v. Mitchell, 2001 PA Super 94, ¶ 13, 771 A.2d 814, 819 (quoting Ludmer v. Nernberg, 433 Pa.Super. 316, 323, 640 A.2d 939, 942 (1994)). In addition to the above-quoted statutory elements, the legislature has also delineated five factors that a plaintiff must show in order to succeed in the action: (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 proceedings were based; and (5) the plaintiff has suffered damages. 42 Pa. C.S. § 8354. These elements must be proven by a preponderance of the evidence. Kit, 2001 PA Super 94, ¶ 13, 771 A.2d at 819; Mi-Lor Inc. v. Di-Pentino, 439 Pa.Super. 636, 640, 654 A.2d 1156, 1158 (1995). The tort of abuse of process, often confused with malicious prosecution, is a state common law claim defined as “the use of legal process against another primarily to accomplish a purpose for which it is not designed.” Werner v. Plater-Zyberk, 2002 PA Super 42, ¶ 15, 799 A.2d 776, 785 (internal citations omitted). To establish a claim for abuse of process, a plaintiff must show that a 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.” Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super. 1998); Werner, 2002 PA Super 42, ¶ 15, 799 A.2d at 785. “Abuse of process is, in essence, the use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process. Thus, the gravamen of this tort is the perversion of legal process to benefit someone in achieving a purpose which is not an authorized goal of the procedure in question.” Werner, 2002 PA Super 42, ¶ 15, 799 A.2d at 785 (internal citations omitted). In support of a claim for abuse of process, 4 a plaintiff “must show some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process. . .; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Lerner v. Lerner, 2008 PA Super 183, ¶ 17, 954 A.2d 1229, 1238 (quoting Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa.Super. 1998)). The term “legal process” has been “interpreted broadly, and encompasses the entire range of procedures incident to the litigation process. Thus, it is broad enough to include discovery proceedings, the noticing of depositions and the issuing of subpoenas.” Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 381-82, 627 A.2d 190, 192 (1993). Moreover, the significance of the word “primarily” is that “there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant. . . .” Id. Applying the forgoing, Defendant’s counterclaim for malicious prosecution, or wrongful use of civil proceedings, must clearly fail as the underlying civil proceedings, including appellate review at every level, were unquestionably terminated against him and not on his behalf, as required by 42 Pa. C.S. §§ 8351 and 8354. The underlying specific performance action in this case was terminated in favor of Plaintiff by way of an Order, entered October 26, 2009, which granted Plaintiff’s Motion for Judgment on the Pleadings and directed Defendant to accept pre- payment of an installment sales contract and tender a deed of certain real property over to Plaintiff. We have been unable to find any authority, whatsoever, which stands for the proposition that the well-established “termination in favor of a plaintiff” element of the tort of malicious prosecution may be disregarded. Indeed, the idea that one may be civilly liable over to another following the successful completion and litigation of his lawsuit simply eludes us. 5 Turning to Defendant’s counterclaim for abuse of process, a review of the averments contained in the Answer, New Matter and Counterclaim demonstrates that Defendant has failed to allege a cause of action against Plaintiff for abuse of process. In his counterclaim for abuse of process, Defendant asserts that Plaintiff Foster, by and through his attorney, “threatened to forward a baseless criminal prosecution against Blessing.” (Answer to Plaintiff’s Amended Complaint, New Matter & Counterclaim, ¶ 38 (hereinafter “Answer, ¶ __)). Attached to Defendant’s counterclaim was a letter from Plaintiff’s attorney to Defendant’s attorney upon which Defendant has based his claim for abuse of process. The letter, dated February 21, 2008, provides, in pertinent part, as follows: Once again we are requesting that you schedule a settlement date to transfer the ownership of the property. If you choose not to do so we will file an action to compel the transfer of ownership and we will seek counsel fees and costs in that action. In addition, please be advised that this matter has been discussed with a representative of the Cumberland County District Attorney’s office and they have expressed an interest in prosecuting your client. As we would prefer to avoid the filing of a suite [sic] to compel the settlement, and we would prefer to avoid any involvement with a criminal prosecution, we are making this final request of you to schedule a date for settlement to transfer the ownership of the property at your very earliest convenience. (Answer, Ex. 1). Defendant avers that, although no criminal charges were filed, the “threat of the use of a criminal prosecution to effectuate a civil settlement is a manifest abuse of the judicial system and the criminal process.” (Answer, ¶¶ 40, 45). Defendant avers that, as a result of Plaintiff’s contact with the District Attorney’s office, he was “coerced and forced to drop his appeal in the ejectment matter.” (Answer, ¶ 42). Initially, we note that the foregoing averments contained in Defendant’s counterclaim fail to establish that Plaintiff used a legal process against Defendant. Although the term “legal process” has been interpreted broadly, the Superior Court has explained that the term is not all- 6 encompassing of any legal happening which has ever occurred between two parties; specifically, the term “legal process” involves “the entire range of procedures incident to the litigation process.” Rosen, 426 Pa.Super. at 381, 627 A.2d at 192 (emphasis added). Thus, a claim for abuse of process encompasses some sort of misuse, threat, or adultery of some legal proceeding in order to obtain a tactical advantage over another in a current and specific lawsuit. Here, it is clear from both the date and the text of the document that the letter was sent prior to Plaintiff’s action to compel specific performance, which prompted the counterclaims sub judice. In the letter, Plaintiff’s attorney writes that “if you choose not to [schedule a settlement date] we will file an action to compel the transfer of ownership and we will seek counsel fees and costs in that action. In addition, please be advised that this matter has been discussed with a representative of the Cumberland County District Attorney’s office and they have expressed an interest in prosecuting your client. ” (Answer, Ex. 1) (emphasis added). Thus, the actions of Plaintiff in speaking with the District Attorney’s office were not incident to the specific performance litigation; rather, the action was prior to the litigation and, therefore, not a “legal process.” Moreover, even if Plaintiff’s discussion with the District Attorney’s office were to be characterized as a “legal process,” the counterclaim fails to address an essential element of the tort of abuse of process, i.e., that the process was used primarily for a purpose for which the process was not designed or intended. Rosen, supra, 426 Pa.Super. at 381-82, 627 A.2d at 192; McGee v. Feege, 517 Pa. 247, 253, 535 A.2d 1020, 1023 (1987); Rosen v. Tesoro Petroleum Corp., 399 Pa.Super. 226, 235, 582 A.2d 27, 32 (1990). Engaging in an action with a collateral purpose in mind is insufficient to make out a claim for abuse of process; specifically, the Superior Court has held the following: A cause of action for abuse of process requires “[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate to the use of the 7 process . . . [;] there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Lerner, 2008 PA Super 183, ¶ 17, 954 A.2d at 1238 (quoting Shiner, 706 A.2d at 1236). With regard to Plaintiff’s discussion with the District Attorney’s office, Defendant’s counterclaim alleges that “Foster knew or should have known his actions were baseless, particularly where his trial counsel withdrew and / or dropped all claims of fraud or any other quasi criminal action from the prior trial in ejectment for a lack of proof or support.” (Answer, ¶ 41). Defendant’s averment is insufficient to state a claim for abuse of process; proof of abuse of process based on Plaintiff’s discussion with the District Attorney’s office requires that Defendant’s counterclaim factually set forth that the discussion and information provided to the District Attorney was not used principally for the purpose for which such a discussion is intended. See Hart v. O’ Malley, 436 Pa.Super. 151, 171-72, 647 A.2d 542, 552 (1994) (where a plaintiff’s complaint failed to state a claim for abuse of process when the complaint asserted that an injunction was continued “for the purpose of interfering with Plaintiffs’ beneficial use of their land” and that “use of the said injunction was for an unlawful purpose and not for a purpose for which injunctions are intended,” yet failed to state that the continuance itself was not used for the purpose for which continuances are intended). Here, Defendant’s counterclaim makes no such claim. Rather, it merely avers generally that Plaintiff Foster should have known his actions were “baseless”; this assertion, even if true, is not the equivalent of an assertion that Plaintiff engaged in a discussion with the District Attorney for purposes other than that for which such discussions are intended. As a result, Defendant has failed to properly state a claim for abuse of process. For the foregoing reasons, Plaintiff’s Motion for Judgment on the Pleadings will be granted, and the following order will be entered: 8 ORDER nd AND NOW, this 22 day of May, 2012, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings, and after oral argument, Plaintiff’s Motion is GRANTED and Defendant’s remaining counterclaims for malicious prosecution and abuse of process are DISMISSED. BY THE COURT, ___________________________ Kevin A. Hess, P.J. 9 RALPH L. FOSTER, JR., : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : KEITH A. BLESSING, : Defendant. : No. 08-1980 CIVIL IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, P.J., EBERT, J., and PECK, J. ORDER nd AND NOW, this 22 of May, 2012, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings, and after oral argument, Plaintiff’s Motion is GRANTED and Defendant’s remaining counterclaims for malicious prosecution and abuse of process are DISMISSED. BY THE COURT, ___________________________ Kevin A. Hess, P.J. James E. Hockenberry, Esquire Stephanie Chertok, Esquire William P. Douglas, Esquire For the Plaintiff Karl Rominger, Esquire For the Defendant :rlm