Beecy v. Pucciarelli

• Decision Date: 09 November 1982
• Citation: 441 N.E.2d 1035,387 Mass. 589
• Parties: Joseph F. BEECY et al. 1 v. William J.C. PUCCIARELLI et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1035

441 N.E.2d 1035

387 Mass. 589

Joseph F. BEECY et al. ¹ v. William J.C. PUCCIARELLI et al. ²

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Oct. 7, 1982.

Decided Nov. 9, 1982.

Stuart F. Liss, Lexington (Victoria Q. Queeney, Lexington, with him) for plaintiffs.

Erik Lund, Boston (Sherry Y. Mulloy, Arlington, with him), for William J.C. Pucciarelli.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ. HENNESSEY, Chief Justice.

The plaintiffs, Mr. and Mrs. Joseph F. Beecy, brought this action alleging various common law tort and statutory claims ³ for injuries allegedly suffered after Mr. Pucciarelli, an attorney for Wm. Filene's Sons Company, Inc. (Filene's), erroneously commenced a collection action on behalf of his client, against the Beecys. The defendant attorney, Mr. Pucciarelli, filed a motion, under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), to dismiss all of the claims asserted against him in this action on the grounds that the plaintiffs failed to state any claim upon which relief could be granted and that the alleged wrongful conduct is protected by an absolute privilege. After a hearing, a judge of the Superior Court allowed Mr. Pucciarelli's motion to dismiss and then ruled, in his memorandum and order for judgment, that the Beecys' defamation claim was barred by Mr. Pucciarelli's absolute privilege and that the other claims should be dismissed under "conventional tests of liability." The judge issued an order for entry of a separate, final judgment as to Mr. Pucciarelli and the Beecys appealed. They contend that the malicious prosecution, abuse of process, intentional infliction of emotional distress, negligence, and G.L. c. 93A claims ⁴ should not have been dismissed either on a theory of privilege or under conventional tests of liability.

There was no error. We do not reach the issue whether there is any relevant attorney's privilege, or whether, if there is such privilege, we should now redefine or abolish it. Rather, we conclude that the plaintiffs have failed to assert any claim for which relief can be granted.

The Beecys allege ⁵ that in late 1977, or early 1978, Mrs. Beecy received a telephone call from a representative of Filene's who inquired why Mrs. Beecy was not using her charge account. Mrs. Beecy responded that her account was active and had been used recently. She also explained that because of the similarity in names, Filene's was confusing her account with that of her husband's uncle, Joseph F. Beecy (deceased in 1971) or the account of her husband's aunt, Alice Beecy, also known as Mrs. Joseph F. Beecy (deceased in 1976).

In early 1978, Mrs. Beecy received a telephone call from a man who stated that he was an attorney in Mr. Pucciarelli's office and he informed her that she had an overdue balance on her charge account. Mrs. Beecy told the attorney that the balance in her account was current and that her account was being confused with someone else's account, perhaps her husband's uncle or aunt. The Beecys allege that, although Filene's and Mr. Pucciarelli had been placed on notice regarding their apparent confusion in not differentiating Mrs. Beecy's charge account from that of another person, Filene's and Mr. Pucciarelli failed to undertake an adequate investigation to determine whether Mrs. Beecy's account was, in fact, past due in early 1978. As a result of this alleged negligence Mr. Pucciarelli, on behalf of Filene's, commenced a collection action against the plaintiffs on or about May 19, 1978.

On or about June 5, 1978, the plaintiffs were notified by a letter from Mr. Pucciarelli that Filene's had commenced the collection action. Upon receipt of the letters, Mrs. Beecy telephone Filene's and was assured by a person in the credit department that her charge account had not been referred to Mr. Pucciarelli for the institution of a collection action. There was, however, a delinquent account in a name identical with Mr. Beecy's. On or about June 9, 1978, the Beecys received a letter dated June 7, 1978, from Mr. Pucciarelli advising them that he had erroneously filed suit against them. The plaintiffs allege, however, that Mr. Pucciarelli did not file a notice of voluntary dismissal with prejudice ⁶ and that he did not instruct the Middlesex County deputy sheriff to recall the summonses and complaints. On June 9, 1978, the Beecys were each served with copies of a summons and the complaint in the collection action. On June 11, 1978, Mr. Beecy suffered a stroke that resulted in permanent physical, mental, and emotional disabilities. Those injuries, as well as others, the Beecys maintain, have been caused by Mr. Pucciarelli's actions.

The Beecys' first contention is that their claim of malicious prosecution should not have been dismissed under either a theory of privilege or conventional tests of liability. We disagree. The Beecys urge us to abandon the limitations that we established in Bicknell v. Dorion, 16 Pick. 478, 490 (1835), on malicious prosecution actions against attorneys. In Bicknell, we concluded that an action for malicious prosecution could not be brought against an attorney who had commenced litigation against another person unless the attorney commenced the suit without the authority of the named plaintiff or unless the attorney and the named plaintiff had conspired or otherwise knowingly agreed to commence a groundless lawsuit. Id. While we recognize that there are compelling reasons to abolish these limitations upon malicious prosecution suits against attorneys, ⁷ it is not necessary to address the immunity issue in this case because the Beecys have failed to allege all of the elements for that cause of action.

To assert a proper claim of malicious prosecution, the Beecys must plead facts that demonstrate that they were damaged because Mr. Pucciarelli prosecuted the collection action with malice and without probable cause, and that the collection action terminated in their favor. See Hubbard v. Beatty & Hyde, Inc., 343 Mass. 258, 261, 178 N.E.2d 485 (1961). The Beecys' claim fails because they have alleged no facts demonstrating that Mr. Pucciarelli acted with malice. ⁸ To succeed on a claim of malice in a malicious prosecution action, the Beecys must demonstrate that (1) Mr. Pucciarelli knew that there was no probable cause for the prosecution and (2) Mr. Pucciarelli either personally acted with an improper motive or he knew that Filene's was motivated by malice. ⁹ See Nelson v. Miller 227 Kan. 271, 282-283, 607 P.2d 438 (1980); Restatement (Second) of Torts § 674 comment d (1977); R.E. Mallen & V.B. Levit, supra § 59, at 121, and cases cited. See also Berlin v. Nathan, 64 Ill.App.3d 940, 948, 21 Ill.Dec. 682, 381 N.E.2d 1367 (1978), cert. denied, 444 U.S. 828, 100 S.Ct. 53, 62 L.Ed.2d 36 (1979) (wilful and wanton conduct does not constitute malicious conduct, particularly where no improper motive of any kind is suggested). The Beecys do not allege any improper motive on Mr. Pucciarelli's part.

The Beecys emphasize that the existence of malice may be inferred from the lack of probable cause. See Seelig v. Harvard Coop. Soc'y, 355 Mass. 532, 537, 246 N.E.2d 642 (1969). The rationale for allowing such an inference is that in some cases the "lack of probable cause may be so obvious that the logical inference is that the prosecution resulted not from an error, but from malice." R.E. Mallen & V.B. Levit, supra § 59, at 124. See also Wills v. Noyes, 12 Pick. 324, 326 (1832). Even if it may be concluded that Mr. Pucciarelli acted without probable cause in filing the collection action, malice could not reasonably be inferred from his actions. Mr. Pucciarelli did commence the collection action against the Beecys after Mrs. Beecy informed an attorney in his office that they were the wrong Beecys. Nevertheless, a person of identical name had a delinquent account with Filene's. Further, Mr. Pucciarelli promptly filed a notice of voluntary dismissal after Mrs. Beecy telephoned the credit department at Filene's. Mr. Pucciarelli also sent a letter to the Beecys apologizing for his mistake and informing them that the suit had been dismissed. He did fail to instruct the sheriff not to serve the summonses and complaints on the Beecys. Viewing the Beecys' allegations in a light most favorable to them, we conclude, however, that Mr. Pucciarelli's actions do not support a conclusion that his actions were maliciously intended.

The Beecys argue that, if Mr. Pucciarelli commenced the collection action when he either knew that he was suing the wrong parties or should have known had he undertaken a reasonable investigation, malice may be inferred. Although there may be situations where such allegations would be sufficient to indicate an improper motive, the actual allegations in this case belie any malice on Mr. Pucciarelli's part. Cf. Adelman v. Rosenbaum, 133 Pa.Super. 386, 388-389, 3 A.2d 15 (1938) (malice was demonstrated where attorney continued to prosecute action after receiving notification that he was suing wrong party by way of two phone calls from wrongly-sued party, a communication from the sheriff sent to levy upon property, two calls from an attorney hired to represent wrongly-sued party, and an offer to compare signatures); Peerman v. Sidicane, 605 S.W.2d 242, 245 (Tenn.App.1980) (malice could be demonstrated where attorney continued to press case without consent or knowledge of client, made allegations in complaint predicated on pure speculation on attorney's part and not on knowledge given attorney by client, and prosecuted groundless appeal without consent of client).

The Beecys' claim of abuse of process similarly fails. To prevail on a cause of action for abuse of process "it must appear that the process was used to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed." Quaranto v. Silverman, 345 Mass....