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HomeMy WebLinkAbout01-3407 CivilHOLLY C. HOFFMAN-BAUER, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. 01-3407 CIVIL HARRISON BAUER, Defendant CIVIL ACTION - LAW IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM BEFORE BAYLEY AND HESS, J.J. OPINION AND ORDER Before the court are the plaintiff' s preliminary objections to the defendant's counterclaim. The plaintiff' s brief aptly sets forth the background of this case as follows. The plaintiff, Holly C. Hoffman Bauer ("Holly") commenced the instant action, against her former husband, Harrison Bauer ("Harrison"). The plaintiff' s complaint consists of allegations of Invasion of Privacy, Intentional Infliction of Emotional Distress, and a violation of the Pennsylvania Wire Tap Act. The allegations in the complaint were brought by the plaintiff as a result of the defendant's actions in audio and video recording of the plaintiff while in stages of undress and engaging in sexual relations. The defendant responded to the complaint by filing an answer with new matter and a counterclaim. The defendant's counterclaim consists of the following; 52.) The Plaintiff has filed this complaint as a direct result of the divorce/separation action and she is seeking to use this Court to fraudulently reclaim monetary judgments awarded the Defendant by intentionally misstating the truth surrounding the video and audio taping encounters. 01-3407 CIVIL 53.) The Plaintiff is using this malicious action in an attempt to secure custody of the parties' minor child. 54.) The Plaintiff has offered to withdraw the suit if the Defendant would forfeit all property and monetary rights claimed in the divorce/separation action. She is using this action as leverage to recover sums awarded the Defendant through extortion. 55.) The Plaintiff is attempting to discredit the Defendant by filing this frivolous action, as he is aware of several crimes code violations committed by the Plaintiff and was in the process of exposing them to the proper authorities. Wherefore, the Defendant respectfully request this Honorable Court to dismiss the Plaintiff' s claim as frivolous and malicious and that judgment be enter in favor of the Defendant and against the Plaintiff in an amount in excess of $25,000.00. The plaintiff filed preliminary objections for legal insufficiency of the counterclaim, as well as the inclusion of scandalous or impertinent matters. These preliminary objections are now before the court. Pennsylvania Rule of Civil Procedure 1020(a)(4) provides that preliminary objections may be filed for "legal insufficiency of a pleading (demurrer)." Pa.R.C.P. 1028(a)(4). When preliminary objections are raised in the nature of a demurrer, the court must determine, solely on the basis of the pleadings, if recovery is possible. Mellon Bank. N.A.v. Fabinyi, 437 Pa. Super. 559, 567-568, 650 A.2d 895, 899 (1994). "Specifically, a preliminary objection in the nature of a demurrer is deemed to admit all well-pleaded facts and all inferences reasonably deducible therefrom." Giffin v. Chronister, 151 Pa. Cmmwlth. 286, 290, 616 A.2d 1070, 1072 (1992). The defendant's counterclaim, in this case, sets forth four paragraphs containing allegations regarding 2 01-3407 CIVIL why the plaintiff filed the complaint. Nowhere in his counterclaim does the defendant expressly identify a cause of action. In his brief, defendant contends that the facts which he alleges in his counterclaim give rise to a cause of action for the malicious abuse of process. This tort is distinguished under Pennsylvania law from the malicious use of process. The Pennsylvania Superior Court in Weis v. Equibank, 313 Pa. Super. 446, 460 A.2d 271 (1983), quoting from a decision of the United States Court of Appeals for the Third Circuit, compared the two torts as follows: The Pennsylvania decisions have drawn a distinction between actions for malicious use of process and actions for malicious abuse of process. The prime distinction between the two torts is that in actions for malicious use of process, the original issuance of process cannot be justified on the facts, but the process is used in the manner in which the law contemplated its use. If the plaintiff has no cause of action against the defendant but nonetheless maliciously brings suit against him, the action is a malicious use of process. In actions for malicious abuse of process the original issuance of the process was justified but the process itself was put to an illegal use. If the plaintiff sues the defendant on a valid cause of action but brings the suit, for example, not to collect his just debt but for a collateral purpose such as blackmail the action is a malicious abuse of process. Id. 460 A.2d at 276. The elements of the malicious use of process are that legal process was used with malice, that there was a lack of probable cause for the legal process, and that the process terminated in the current plaintiff' s favor. In the matter sub judice, the process in question has not yet terminated. Thus, aspects of the counterclaim which are directed to the falsity of the allegations in the underlying lawsuit are premature. Specifically, paragraphs 52 and 55 will be stricken for this reason. 01-3407 CIVIL We do not believe that the remaining two paragraphs, 53 and 54, are sufficient to set out a claim for malicious abuse of process. In paragraph 53, the defendant fails to allege any facts to support a contention which is otherwise conclusory. Paragraph 54, in effect, contains an offer of settlement allegedly conveyed by the plaintiff to the defendant. ~ We do not believe the allegations of that paragraph support a claim of the malicious abuse of process. For the foregoing reasons, the counterclaim of the defendant will be stricken. Because of this disposition, we need not address the question of whether the new matter of the defendant is scandalous or impertinent. ORDER AND NOW, this day of February, 2002, the preliminary objections of the plaintiff to the counterclaim of the defendant are SUSTAINED and said paragraphs are stricken. BY THE COURT, Joseph L. Hitchings, Esquire For the Plaintiff Matthew J. Eshelman, Esquire For the Defendant :rim Kevin A. Hess, J. ~ Settling competing claims is another way of offering a cash settlement. Calling it extortion is just another way of saying that the demand is too high. 4 HOLLY C. HOFFMAN-BAUER, Plaimiff VS. HARRISON BAUER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-3407 CIVIL CIVIL ACTION - LAW IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM BEFORE BAYLEY AND HESS, J.J. ORDER AND NOW, this day of February, 2002, the preliminary objections of the plaintiff to the counterclaim of the defendant are SUSTAINED and said paragraphs are stricken BY THE COURT, Joseph L. Hitchings, Esquire For the Plaimiff Matthew J. Eshelman, Esquire For the Defendant :rlm Kevin A. Hess, J.