McGee v. Feege

• Citation: 535 A.2d 1020,517 Pa. 247
• Parties: Mary Jane McGEE, Appellant, v. Edward H. FEEGE, Hayes & Feege, P.C., Charles W. Craven, Francis E. Marshall, Anthony P. Tinari, Marshall, Dennehey & Warner, Travelers Insurance Company and Harry C. Shayhorn, Appellees.
• Decision Date: 28 December 1987
• Court: United States State Supreme Court of Pennsylvania

Page 1020

535 A.2d 1020

517 Pa. 247

Mary Jane McGEE, Appellant, v. Edward H. FEEGE, Hayes & Feege, P.C., Charles W. Craven Francis E. Marshall, Anthony P. Tinari, Marshall Dennehey & Warner, Travelers Insurance Company and Harry C. Shayhorn Appellees.

Supreme Court of Pennsylvania.

Argued Nov. 13, 1987.

Decided Dec. 28, 1987.

Paul Shalita, Philadelphia, for appellant.

Kean K. McDonald, Philadelphia, for appellees Charles Craven, Francis Marshall, Anthony Tinari & M.D. & W.

Curtis P. Cheyney, III, Philadelphia, for Travelers.

Edward Griffith, Philadelphia, for Feege and Hayes & Feegee, P.C.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

LARSEN, Justice.

The principal issues raised in this appeal are: (1) whether a seizure or deprivation of property is an essential element of the tort of abuse of process, and (2) if a seizure or deprivation of property is necessary, are the facts in this case sufficient to establish such a seizure or deprivation of the property of the appellant, Mary Jane McGee. The Court of Common Pleas of Montgomery County, in granting appellees' Motion for Summary Judgment, held that, at the time the cause of action arose in this case, seizure of property was an indispensible element of an action for abuse of process. Further, the lower court held that on the facts alleged, there was no seizure or deprivation of appellant's property to sustain an action for abuse of process. The Superior Court affirmed, holding that for the appellant to prevail "she must establish that she was deprived of her property or was arrested." ¹ We disagree and now reverse.

The genesis of this action was the protracted and bitterly fought workmen's compensation case appellant, Mary Jane McGee, successfully prosecuted against her employer L.F. Grammes & Sons, Inc. On August 28, 1968 the appellant sustained a work related injury to her right thumb while she was working as a welder in the employ of L.F. Grammes & Sons, Inc. Shortly after she suffered the injury, appellant and her employer entered into an agreement for compensation at the rate of $60.00 per week. The compensation agreed to was payable for an indefinite period commencing September 4, 1968.

In July of 1970, appellant's employer filed a petition for termination of the Compensation Agreement on the grounds that appellant had recovered and was able to return to work as of November 26, 1968. The employer's Petition to Terminate was denied by the Referee and the employer appealed to the Workmen's Compensation Appeal Board (Board). After reviewing the record, the Board remanded the case for a physical examination of the appellant by an impartial physician.

Following appellant's examination by an independent doctor, the case came up for hearing before a new referee. That referee, after hearing the testimony of the impartial physician, entered an order suspending the agreement for compensation. On appeal, the Board affirmed the suspension of compensation, and the Commonwealth Court affirmed the order of the Board. We granted allocatur and held that based upon the record, the employer had failed to satisfy its burden of proof in that the evidence did not show either that appellant's disability had ceased or that her continued disability was the result of an independent action. McGee v. L.F. Grammes & Sons, Inc., 477 Pa. 143, 383 A.2d 864 (1978). We reversed the order of the Commonwealth Court that affirmed the order of suspension and remanded the case to the Board. Upon remand, the Board, on July 13, 1978, set aside the suspension order of the referee and ordered that compensation be reinstated at the rate of $85.51 a week. No appeal was taken from this order of the Board and, after the appeal period passed, it became final.

Despite the finality of the Board's order for payment of compensation at $85.51 a week, the appellant's employer through the appellees ² in this case participated in the initiation and pursuit of a series of frivolous and meritless legal maneuvers designed to delay and frustrate payment to the appellant. Those maneuvers included, inter alia, filing of the following: a Petition for Rehearing; a Petition to Amend Termination Petition; an Amended Petition for Review; Petitions for Stay; Petitions for Supersedeas; Petitions to Open and Strike Judgment; a Motion for a Hearing, ³ and an Answer and New Matter in response to appellant's Petition to Enforce Judgment.

On March 23, 1979, after considering the appellant's petition to enforce judgment and the answer and new matter filed thereto, this Court entered an order as follows:

We now grant the petition to enforce judgment and direct that the July 13, 1978 Order of the Workman's Compensation Board be complied with forthwith. All other proceedings conflicting with this order are hereby dismissed.

In spite of this Court's Order of March 23, 1979 as quoted above, the employer continued to resist payment of the compensation due appellant. The employer, by and through the appellees, filed in this Court an Application for Reargument and a Motion for a Stay of Proceedings. In addition, Motions to Reconsider the Dismissal of the Petitions to Open and/or Strike Judgment were filed in the Philadelphia County Common Pleas Court and in the Montgomery County Common Pleas Court. ⁴ On April 20, 1979 we entered a Per Curiam Order denying the Application for Reargument and Motion for a Stay.

Nonetheless, the employer, through the appellees, persisted in refusing payment to appellant and filed yet another petition in this Court. This time it was a Petition for Clarification of our Order of April 20, 1979. In the meantime, appeal proceedings from the denial of one of the various motions, that had been brought to the Commonwealth Court by the appellees, were still pending. In May of 1979, the Commonwealth Court issued a briefing schedule, set an argument date and indicated that the parties were expected to comply notwithstanding the previous recent orders of this Court. The appellant responded by filing in this Court a petition for a Writ of Prohibition and an Application for a Stay.

Both the appellees' petition for Clarification and the appellant's Petition for a Writ of Prohibition came before us for disposition. In a Per Curiam Order of July 6, 1979, the appellant's Petition for Prohibition was granted and appellee's Petition for Clarification was denied. ⁵

On October 18, 1979, the appellant commenced an action in trespass against the appellees alleging malicious use of process and abuse of process. Basically, in her complaint, the appellant charges that the appellees conspired and agreed to pursue a series of successive dilatory legal maneuvers for the sole purpose of avoiding payment to her as ordered by the Board and mandated by this Court. Appellant alleges that all of the legal proceedings initiated and maintained by the employer after March 23, 1978 were commenced pursuant to the alleged conspiracy to deny payment to the appellant. Cross Motions for Summary Judgment were filed by the appellant and the appellees. The trial court refused appellant's motion and granted appellees' motion, entering summary judgment in favor of the appellees.

Turning to the issues raised in this appeal, we initially note that there is often confusion in the two separate and distinct actions of malicious use of process and abuse of process. The distinction recognized between the two actions was set forth in Publix Drug Company v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413 (1943). In that case we said:

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. "An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it ... On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated ... other than its proper effect and execution": Mayer v. Walter, supra, p. 285; Johnson v. Land Title B. & T. Co., 329 Pa. 241, 241, 242, 198 A. 23. Malicious use of civil process has to do with the wrongful initiation of such process, while abuse of civil process is concerned with a perversion of a process after it is issued.

347 Pa. at 349, 350, 32 A.2d 413. In this case the appellant alleges that the appellees misused the legal process so as to be guilty of malicious use of process and abuse of process. The lower court held that a seizure or deprivation of property is an element of both torts, and since there was no seizure or deprivation of property, judgment was entered in favor of the appellees ⁶.

In concluding that seizure or deprivation of property is an element of the tort abuse of process, the lower court relied upon: Publix Drug Co. v. Breyer Ice Cream Co., supra; Ace v. Argonaut Insurance Co., 307 Pa.Super. 200, 452 A.2d 1384 (1982); Blumenfeld v. Shoemaker, 286 Pa.Super. 540, 429 A.2d 654 (1981) and Garcia v. Wall & Ochs, Inc., 256 Pa.Super. 74, 389 A.2d 607 (1978). A review of these authorities reveals that Publix, and Garcia are cases involving an action for malicious use of process. Each case applies the "English Rule" that a seizure or deprivation of property is a required element of a claim for malicious use of process. ⁷ In the cases of Blumenfeld v. Shoemaker, supra. and Ace v. Argonaut Insurance Company, supra, the court addressed the question of the required elements in a claim for abuse of process.

In Blumenfeld, a jury returned a verdict finding both a malicious use of process and abuse of process. On appeal, the Superior Court reversed holding that a seizure or deprivation of property was a necessary element of both torts and such a seizure had not been established. In reaching this conclusion the Superior Court in Blumenfeld...