Hart v. O'Malley

• Decision Date: 16 August 1994
• Citation: 647 A.2d 542,436 Pa.Super. 151
• Parties: David L. HART and Ann B. Hart, Appellants, v. Elizabeth O'MALLEY and Charles J. Aliano, Appellees.
• Court: Pennsylvania Superior Court

Page 542

647 A.2d 542

436 Pa.Super. 151

David L. HART and Ann B. Hart, Appellants, v. Elizabeth O'MALLEY and Charles J. Aliano, Appellees.

Superior Court of Pennsylvania.

Argued Oct. 27, 1993.

Filed Aug. 16, 1994.

Charles M. Watkins, Reading, for appellants.

Frank T. Blasi, Scranton, for O'Malley, appellee.

Joseph E. Jane, Scranton, for Aliano, appellee.

Before ROWLEY, P.J., and McEWEN and KELLY, JJ.

KELLY, Judge:

In this appeal, we must determine if an individual, who should have been joined as an indispensable party in an equity action but was not joined as an indispensable party, now has standing to bring a cause of action for wrongful use of civil proceedings against the party who instituted the equity action. We conclude that an indispensable party has standing to bring a cause of action for wrongful use of civil proceedings. We are next asked to determine if 1) the complaint alleges causes of action for wrongful use of civil proceedings and abuse of process against the plaintiff in the underlying equity action and against the plaintiff's attorney and 2) whether a cause of action for intentional infliction of emotional distress has been alleged against the plaintiff in the equity action. Under the facts of this case, a cause of action has been stated for wrongful use of civil proceedings against the plaintiff in the equity case. No cause of action has been stated against the plaintiff's attorney. Nor has a cause of action for abuse of process or intentional infliction of emotional distress been stated. Finally, we are called upon to determine if a plaintiff has the absolute right to plead over against a defendant when the plaintiff's preliminary objections to a defendant's preliminary objections are dismissed. We conclude that when there are two defendants in the case and both defendants file separate but substantially similar preliminary objections to the plaintiff's complaint and the plaintiff has responded to one of the defendant's preliminary objections, the plaintiff has, for practical purposes, responded to the other defendant's preliminary objections. Thus, we reverse in part and affirm in part.

The facts are as follows. Appellants, the Harts, own a mobile home park which they wished to expand. The Harts filed the necessary applications for approval with the Susquehanna County Planning Commission ("the Planning Commission"). Just as the Planning Commission was about to grant final approval, appellee, Elizabeth O'Malley, through her attorney, appellee, Charles Aliano, filed a suit in equity against the Planning Commission seeking to preliminarily and permanently enjoin the Planning Commission from approving the Harts' application. The Harts' land adjoins that of Mrs. O'Malley.

The Honorable Kenneth W. Seamans, President Judge of Susquehanna County, on March 5, 1992 granted Mrs. O'Malley's ex parte petition for a preliminary injunction and enjoined the Planning Commission from granting approval to the Harts' application. Pursuant to Pennsylvania Rule of Civil Procedure 1521(d), a hearing was scheduled on Mrs. O'Malley's complaint for March 10, 1992. However, on March 6, 1992, Judge Seamans approved and entered a stipulation in which the Planning Commission agreed "to continue the preliminary injunction in effect until a hearing or further order of court." March 6, 1992 Stipulation. On March 9, 1992, Judge Seamans recused himself. The case was reassigned to the learned President Judge Brendan J. Vanston of the Sullivan County Court of Common Pleas.

On April 9, 1992, the Harts filed a petition to intervene which was granted. The Harts filed a petition requesting that a hearing on the injunction be scheduled. The trial court scheduled a hearing for July 10, 1992. However, the effort to schedule the hearing was frustrated by the parties' agreements to multiple continuances of the hearing. (Trial Court Opinion of President Judge Brendan J. Vanston, March 28, 1993 at 2). A hearing was scheduled for August 10, 1992, but on June 15, 1992, at the request of the County Solicitor, the hearing was continued. A new hearing date was set for October 16, 1992.

The Harts retained new counsel who diverted the direction of this case by improperly filing in the Commonwealth Court, on June 25, 1992, an appeal from an interlocutory order. In July, 1992 the appeal was dismissed and reconsideration was denied. The Commonwealth Court remanded the record to the trial court.

On October 16, 1992, the trial court held an evidentiary hearing and heard argument on the validity of the preliminary injunction. Following the hearing, the trial court vacated the preliminary injunction and granted summary judgment in the equity suit in favor of the Planning Commission and the Harts. In its opinion, the trial court states:

At long last, this Court was finally able to conduct an evidentiary hearing and argument on the issue of continuation on the preliminary injunction on October 16, 1992. Following the hearing, the court vacated the injunctions and granted summary judgment in favor of Harts and the Planning Commission.

Trial Court Opinion of President Judge Brendan J. Vanston, May 28, 1993 at 2.

The Harts then instituted the case which is now before us on appeal. The Harts filed a complaint against both Elizabeth O'Malley and Charles Aliano, alleging wrongful use of civil proceedings and abuse of process. The complaint also included a count of intentional infliction of emotional distress against Mrs. O'Malley. Mrs. O'Malley and Mr. Aliano separately filed preliminary objections. The Harts filed preliminary objections to Mr. Aliano's preliminary objections. The trial court dismissed the Harts' preliminary objections to Mr. Aliano's preliminary objections, sustained both appellees' preliminary objections and dismissed the complaint against both appellees. This timely appeal follows.

The Harts raise the following issues for our review:

1. DOES AN INTERVENOR, WHO IS ACTUALLY AN INDISPENSABLE PARTY TO AN ACTION, HAVE STANDING TO BRING A SUIT FOR WRONGFUL USE OF CIVIL PROCEEDINGS AGAINST A PERSON WHO WRONGFULLY PROCURED, INITIATED, OR CONTINUED THE UNDERLYING ACTION?

2. DOES AN INTERVENOR, WHO IS ACTUALLY AN INDISPENSABLE PARTY TO AN ACTION, HAVE STANDING TO BRING A SUIT FOR ABUSE OF PROCESS TO RECOVER DAMAGES FROM A PARTY TO THE UNDERLYING ACTION?

3. DOES A PARTY HAVE AN ABSOLUTE RIGHT TO PLEAD OVER WHEN PRELIMINARY OBJECTIONS TO PRELIMINARY OBJECTIONS ARE OVERRULED?

4. MAY A COMPLAINT FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BE DISMISSES [sic] ON A PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER BASED SOLELY UPON CONFLICTING PLEADINGS?

Appellants' Brief at 4.

Our standard of review of an order granting preliminary objections in the nature of a demurrer is well-settled.

All material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party's right to succeed is certain and the case is so free from doubt that further proceedings would clearly be fruitless. Ford Motor Credit Co. v. Caiazzo, 387 Pa.Super. 561, 566, 564 A.2d 931, 933 (1989) (collecting cases). Finally, "the novelty of a claim or theory alone, does not compel affirmance." Neff v. Lasso, supra, 555 A.2d [1304] at 1305 [ (1989) ].

Foflygen v. R. Zemel, M.D., 420 Pa.Super. 18, 32, 615 A.2d 1345, 1352 (1992) (quoting Valley Forge Towers South Condominiums v. RonIke Foam Insulators, Inc., 393 Pa.Super. 339, 345, 574 A.2d 641, 644 (1990), affirmed per curiam, 529 Pa. 512, 605 A.2d 798 (1992)). See also Kelly-Springfield Tire Co. v. D'Ambro, 408 Pa.Super. 301, 596 A.2d 867 (1991).

An action for wrongful use of civil proceedings differs from an action for abuse of process. Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190 (1993); Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017 (1984); Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983). "The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it. Mayer v. Walter, 64 Pa. 283; Annotation, 80 A.L.R. 581 ... Malicious use of civil process has to do with the wrongful initiation of such process." Rosen v. American Bank of Rolla, supra, 426 Pa.Super. at 381, 627 A.2d at 192. See also Weiss v. Equibank, supra.

Wrongful use of civil proceedings is a tort which arises when a person institutes civil proceedings with a malicious motive and lacking probable cause. Rosen v. American Bank of Rolla, supra; Shaffer v. Stewart, supra. See also Kelly-Springfield Tire Co. v. D'Ambro, supra. The tort has been codified at 42 Pa.C.S.A. § 8351 as follows:

§ 8351. Wrongful use of civil proceedings

(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.

To succeed in a cause of action for wrongful use of civil proceedings, a plaintiff must allege and prove the following three elements: 1) that the underlying proceedings were terminated in their favor; 2) that defendants caused those...