HomeMy WebLinkAbout2003-993 Civil
SUZANNE SPENCER
ABEL,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MOONEY &
ASSOCIATES, JOHN
JAMES MOONEY, III,
ESQUIRE, and JUDITH
KOPER MORRIS,
ESQUIRE,
Defendants
NO. 03-993 CIVIL TERM
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
OLER, 1., January 12,2007.
In this wrongful use of civil proceedings case, Plaintiff has sued Defendants
in connection with ( a) three civil actions allegedly filed against her for fraud,
wrongful eviction, deprivation of personal property, and breach of contract, and
(b) an alleged objection to her discharge in a bankruptcy proceeding. 1 Defendants
have filed a motion for summary judgment asserting that (1) Plaintiff s claims as
to two of the civil actions against her are time-barred, (2) Plaintiffs claim as to the
third civil action against her is fatally defective due to a lack of termination in
Plaintiffs favor and/or a lack of damages, and (3) Plaintiffs claim arising out of
activity in a bankruptcy proceeding is preempted by federal law?
Oral argument on Defendants' motion for summary judgment was held on
October 25, 2006. During the argument, Plaintiffs counsel conceded that her
1 Plaintiffs Complaint, filed May 27, 2003 (hereinafter Plaintiffs complaint).
2 Motion for Summary Judgment of Defendants, Mooney & Associates, John James Mooney, III,
Esquire and Judith Koper Morris, Esquire, filed August 24,2006 (hereinafter Defendants' motion
for summary judgment).
claim based upon Defendants' alleged conduct during a bankruptcy proceeding
was preempted by the Bankruptcy Code.3
F or the reasons stated in this opinion, Defendants' motion for summary
judgment will be granted in part and denied in part.
STATEMENT OF FACTS
On a motion for summary judgment, the record includes
"pleadings, . . . depositions, answers to interrogatories, admissions and affidavits,
and. . . reports signed by an expert witness. . .." Pa. R.C. P. 1035.1. In the
present case, the record includes Plaintiff s complaint, Defendants' answer to the
complaint with new matter, 4 Plaintiff s reply to Defendant's new matter, 5
Defendants' motion for summary judgment, Plaintiff s answer to Defendants'
motion for summary judgment, 6 docket entries from the civil cases and bankruptcy
proceeding upon which Plaintiff s complaint is based,7 deposition testimony of
Plaintiff, 8 and deposition testimony of Defendant John James Mooney, III,
E . 9
sqUIre.
3 See Stone Crushed Partnership v. Jackson, 908 A.2d 875 (Pa. 2006); Plaintiffs Brief in
Opposition to Defendant's Motion for Summary Judgment, submitted October 20,2006, at 16.
4 Defendants' Answer with New Matter to Plaintiffs Complaint, filed June 30, 2003 (hereinafter
Defendants' answer).
5 Plaintiffs Reply to Defendants' New Matter, filed October 10, 2003 (hereinafter Plaintiffs
reply).
6 Plaintiffs Answer to Defendants' Motion for Summary Judgment, filed September 22, 2006
(hereinafter Plaintiffs answer to motion for summary judgment).
7 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibits A-C, E, F, filed August
24, 2006.
8 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D, filed August 24,
2006.
9 See Appendix to Defendants' Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit G, filed August 24,
2006.
A number of exhibits were submitted by Plaintiff to the Cumberland County Court
Administrator in a document entitled "Appendix to Plaintiff s Answer and Brief in Opposition to
Defendant's Motion for Summary Judgment." Briefs and attachments to briefs in Cumberland
2
Plaintiff is Suzanne Spencer Abel. 10 Defendants John James Mooney, III,
and Judith Koper Morris are attorneys and partners in, or owners of, Defendant
Mooney & Associates, a law firm. 11 Defendants have represented a man named
Walter Wiltschek. 12
On June 28, 1998, Walter Wiltschek transferred title to real property
located at 119 South Duke Street, York, York County, Pennsylvania, to Plaintiff. 13
On February 19, 1998, Walter Wilscheck transferred title to a 1992 BMW
automobile to Plaintiff. 14
According to deposition testimony of Plaintiff, she and Mr. Wiltschek had
been involved in a brief romantic relationship which began in December of 1997.15
She stated, with reference to her last contact with him, as follows:
The last time I talked to him he threatened me physically,
he threatened my children, and he promised me that he would
make sure I never practiced as an attorney. 16
On June 19, 1998, Defendant Mooney commenced two civil actions on
behalf of Wiltschek against Plaintiff in the Court of Common Pleas of Cumberland
County,17 at Nos. 98-3425 Civil Term (for fraud and breach of contract related to
the real property transfer) and 98-3426 Civil Term (for fraud and breach of
County are not part of the record. See Cumulus Broadcasting, Inc. v. Bond, 52 Cumberland LJ.
108 (2003). The document has not been docketed, and the court is not in a position to accept its
exhibits as part of the record.
10 Plaintiffs complaint, para. I; Defendants' answer, para. 1.
11 Plaintiffs complaint, paras. 2-4; Defendants' answer, paras. 2-4.
12 Plaintiffs complaint, para. 5; Defendant's answer, para. 5.
13 Plaintiffs complaint, para. 5; Defendants' answer, para. 5.
14 Plaintiffs complaint, para. 6; Defendants' answer, para. 6.
15 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D (deposition
transcript), at 38.
16 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D (deposition
transcript), at 33.
17 Plaintiffs complaint, para. 11; Defendants' answer, para. 11.
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contract related to the BMW transfer and an alleged 10an).18 On December 21,
1998, Defendant Morris filed a complaint on behalf of Wiltschek against Plaintiff
in the Court of Common Pleas of York County, at No. 98-SU-0602l-09 (for fraud
and theft of personal property).19 On November 22, 1999, Defendant Morris filed
a "Complaint in Objection" on behalf of Wiltschek to Plaintiff s discharge in a
bankruptcy proceeding docketed at 99-03707RJW-l.2o
In Wiltschek's Cumberland County civil actions against Plaintiff, the
Honorable Kevin A. Hess entered a verdict, accompanied by an opinion, on
October 4, 1999, in favor ofPlaintiff.21 No motion for post-trial relief was filed by
Wiltschek, and his pro se appeal from the verdict22 was quashed sua sponte by the
Pennsylvania Superior Court on February 29,2000.23 In Wiltschek's York County
civil action against Plaintiff, the case was terminated on September 10, 2001, by
the Prothonotary for inactivity. 24
The present action by Plaintiff was commenced on March 5, 2003, by
praecipe for writ of summons?5 Plaintiff s complaint against Defendants for
wrongful use of civil proceedings,26 arising out of their alleged actions on behalf
of Wiltschek with respect to the two Cumberland County actions, the York County
civil action, and the bankruptcy proceeding, was filed on May 27,2003.
18 Plaintiffs complaint, para. 15; Defendants' answer, para. 15.
19 Plaintiffs complaint, para. 18; Defendants' answer, para. 15.
20 Plaintiffs complaint, paras. 31, 41; Defendants' answer, paras. 31,41.
21 Defendants' motion for summary judgment, para. 5; Plaintiffs answer to motion for summary
judgment, para. 5.
22 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibits B-C.
23 Defendants' motion for summary judgment, paras. 6-8; Plaintiffs answer to motion for
summary judgment, paras. 6-8.
24 Defendants' motion for summary judgment, para. 14; Plaintiffs answer to motion for summary
judgment, para. 14.
25 Plaintiffs Praecipe for Writ of Summons, filed March 5,2003.
26 Defendants' motion for summary judgment, para. 2, Plaintiff s answer to motion for summary
judgment, para. 2.
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According to deposition testimony of Plaintiff, she suffered financial harm
as a result Mr. Wiltschek's litigious activities, including damages resulting from
her deferment of a bar examination due to the cloud upon her character which they
caused.27 Her testimony is also replete with references to the humiliating character
and distressing character of the litigation,28 its adverse effect upon her reputation,29
and therapy that she received for emotional distress and mental anguish. 30
However, she declined at the deposition to commit herself to a release of records
related to her therapy.31
Defendants' motion for summary judgment asserts that ( a) Plaintiff s
claims related to the Cumberland County actions were filed after the expiration of
the applicable statute of limitations,32 (b) Plaintiff s claim related to the York
County action is not legally cognizable because the elements of a termination of
the case favorable to Plaintiff and of compensable damages are lacking,33 and (c)
Plaintiff s claim related to the bankruptcy proceeding is federally preempted. 34
27 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D (deposition
transcript), at 128-29.
28 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D (deposition
transcript), at 43,44,68, 71-72, 140.
29 See Appendix to Defendants, Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D (deposition
transcript), at 144-47.
30 See Appendix to Defendants' Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D (deposition
transcript), at 148-55.
31 See Appendix to Defendants' Mooney & Associates, John James Mooney, III, Esquire and
Judith Koper Morris, Esquire's, Motion for Summary Judgment, Exhibit D (deposition
transcript), at 155.
32 Defendants' motion for summary judgment, para. 9.
33 Defendants' motion for summary judgment, paras. 14-15.
34 Defendants' motion for summary judgment, para. 20.
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DISCUSSION
Statement of Law
Motion for summary judgment. Pennsylvania Rule of Civil Procedure
1035.2 provides as follows:
After the relevant pleadings are closed, but within such time as
not to umeasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the
cause of action or defense which could be
established by additional discovery or expert
report, or
(2) if, after the completion of discovery
relevant to the motion, including the production
of expert reports, an adverse party who will bear
the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action
or defense which in a jury trial would require the
issues to be submitted to a jury.
In evaluating a motion for summary judgment, the court must view the
record in the light most favorable to the non-moving party. Demmler v.
SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996).
Summary judgment "may be granted only in cases where the right is clear and free
of doubt." Musser v. Vilsmeier Auction Co. v. International Harvester Co., 522
Pa. 367, 370, 562 A.2d 279, 280 (1989) (citing Thomson Coal Co. v. Pike Coal
Co., 488 Pa. 198,412 A.2d 466 (1979)).
Burden of proof As a general rule in civil cases, the plaintiff bears the
burden of proof with respect to the elements of his or her claim. See generally
Soda v. Baird, 411 Pa. Super. 80, 600 A.2d 1274 (1991). In addition, "[o]nce a
defendant has pleaded the statute of limitations, the burden is upon the plaintiff to
bring his or her claim within the statute." Westinghouse Elec. Corp. v.
6
Pennsylvania Dept. of Environmental Protection, 705 A.2d 1349, 1354 (Pa.
Commw. Ct. 1998) (citation omitted).
Wrongful use of civil proceedings-elements and damages. "Wrongful use
of civil proceedings is the statutory name for the common-law action of malicious
use of process. Malicious use of process or malicious prosecution is statutory [in
Pennsylvania]." 4 Standard Pennsylvania Practice 2d 923:125 (2006).
In this regard, the elements of the tort of wrongful use of civil proceedings
are set forth in Section 8351 of the Judicial Code:
(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 [if]:
(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. 35
With respect to the question of whether a case has been terminated in favor
of a party, the Pennsylvania Superior Court has stated the following:
Whether a withdrawal or an abandonment [of a case]
constitutes a final determination of the case in favor of the
person against whom the proceedings are brought. . . depends
upon the circumstances under which the proceedings are
withdrawn.
Buchleitner v. Perer, 2002 PA Super. 35, ,-r13, 794 A.2d 366,372 (2002) (citations
omitted). As a general rule, a termination of a case due to inactivity is "with
prejudice." See Pa. R.c.P. 230.2(c).
Recoverable items of damage III an action for wrongful use of civil
proceedings are specified in Section 8353 of the Judicial Code:
35 Act of December 19,1980, P.L. 1296, ~l, 42 Pa. C.S. ~8351(a).
7
When the essential elements of an action [for wrongful use
of civil proceedings] have been established. . . , the plaintiff is
entitled to recover for the following:
(1) The harm normally resulting from any
arrest or imprisonment, or any dispossession or
interference with the advantageous use of his
land, chattels or other things, suffered by him
during the course of the proceedings.
(2) The harm to his reputation by any
defamatory matter alleged as the basis of the
proceedings.
(3) The expense, including any reasonable
attorney fees, that he has reasonably incurred in
defending himself against the proceedings.
(4) Any specific pecuniary loss that has
resulted from the proceedings.
(5) Any emotional distress that is caused by
the proceedings.
(6) Punitive damages according to law in
. 36
appropnate cases.
Statute of limitations. "The true test in determining when a cause of action
arises or accrues is to establish the time when the plaintiff could have first
maintained the action to a successful conclusion." Buchleitner v. Perer, 2002 P A
Super. 35, ,-r25, 794 A.2d 366, 376 (2002) (citations omitted). The statute of
limitations with respect to a claim for wrongful use of civil proceedings is two
years. Act of July 9, 1976, P.L. 586, 92, as amended, 42 Pa. C.S. 95524 (2006
Supp.). The statute of limitations for wrongful use of civil proceedings begins to
run on the date the proceedings terminated favorably to the accused. See Cap v.
K-Mart Discount Stores, Inc., 357 Pa. Super. 9, 12, 515 A.2d 52, 53 (1986).
Application of Law to Facts
With respect to the issue of whether Plaintiff s claims based upon the
Cumberland County civil cases are barred by the applicable two-year statute of
36 Act of December 19, 1980, P.L. 1296, ~l, 42 Pa. C.S. ~8353.
8
limitations, it appears clear that the causes of action accrued no later than February
29,2000, when the Pennsylvania Superior Court quashed Defendant's appeal from
the verdict of Judge Hess. Plaintiff s praecipe for writ of summons was filed in
the instant case on March 5, 2003-more than three years later. Accordingly,
Plaintiff s claims based upon the Cumberland County actions are time-barred and
will be dismissed.
With respect to the issue of whether Plaintiff s claim based upon the York
County civil case is fatally defective due to a lack of termination in Plaintiff s
favor and/or an absence of damages, the first contention appears to the court to be
legally unsound and that the second is, at best, premature. First, it is difficult to
conceive of a more conclusive termination of a case in a defendant's favor than a
dismissal with prejudice. Second, Plaintiff s deposition testimony contains
numerous references emotional distress, inter alia, although it may be that she will
ultimately be precluded from pursuing such cognizable damages if she fails to
provide discovery on the issue.
With respect to the issue of whether Plaintiff s claim based upon alleged
misconduct in a bankruptcy proceeding is federally preempted, it has been
previously noted that Plaintiff has conceded the point.
F or the foregoing reasons, the following order will be entered:
ORDER OF COURT
AND NOW, this lih day of January, 2007, upon consideration of
Defendants' motion for summary judgment, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. Defendants' motion with respect to Plaintiff's claims for
wrongful use of civil proceedings based upon the two
Cumberland County actions referred to in her complaint is
granted and the claims are dismissed;
9
2. Defendants' motion with respect to Plaintiff s claim for
wrongful use of civil proceedings based upon the York County
action referred to in her complaint is denied; and
3. Defendants' motion with respect to Plaintiff s claim for
wrongful use of civil proceedings based upon alleged conduct
in the bankruptcy proceeding referred to in her complaint is
granted and the claim is dismissed.
BY THE COURT,
s/ 1. Wesley Oler, Jr.
1. Wesley Oler, Jr., 1.
Michael E. Kosik, Esq.
4503 North Front Street
Harrisburg, P A 17110-1708
Attorney for Plaintiff
Timothy 1. McMahon, Esq.
4200 Crums Mill Road
Suite B
Harrisburg, P A 17112
Attorney for Defendants
10
11
SUZANNE SPENCER
ABEL,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
MOONEY &
ASSOCIATES, JOHN
JAMES MOONEY, III,
ESQUIRE, and JUDITH
KOPER MORRIS,
ESQUIRE,
Defendants
NO. 03-993 CIVIL TERM
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this lih day of January, 2007, upon consideration of
Defendants' motion for summary judgment, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. Defendants' motion with respect to Plaintiff's claims for
wrongful use of civil proceedings based upon the two
Cumberland County actions referred to in her complaint is
granted and the claims are dismissed;
2. Defendants' motion with respect to Plaintiff s claim for
wrongful use of civil proceedings based upon the York County
action referred to in her complaint is denied; and
3. Defendants' motion with respect to Plaintiff s claim for
wrongful use of civil proceedings based upon alleged conduct
in the bankruptcy proceeding referred to in her complaint is
granted and the claim is dismissed.
13
BY THE COURT,
1. Wesley Oler, Jr., 1.
Michael E. Kosik, Esq.
4503 North Front Street
Harrisburg, P A 17110-1708
Attorney for Plaintiff
Timothy 1. McMahon, Esq.
4200 Crums Mill Road
Suite B
Harrisburg, P A 17112
Attorney for Defendants