Neill v. Eberle
| Decision Date | 22 March 1993 |
| Citation | 153 Pa.Cmwlth. 181,620 A.2d 673 |
| Parties | James M. NEILL, Appellant, v. Mary C. EBERLE, Charles H. Hoeflich, Robert A. Holland, Ralph Ketterer, A. Warren Kuly, Jr., Barbara Thomas and Kenneth Wasser. |
| Court | Pennsylvania Commonwealth Court |
Before CRAIG, President Judge, PELLEGRINI, J., and BLATT, Senior Judge.
James M. Neill (landowner) appeals from an order of the Court of Common Pleas of Bucks County (trial court) which sustained the preliminary objections of Mary C. Eberle, Charles H. Hoeflich, Robert A. Holland, Ralph Ketterer, A. Warren Kuly, Jr., Barbara Thomas, and Kenneth Wasser (collectively appellees) to the landowner's claims of abuse of process and wrongful use of civil proceedings. 1 We affirm.
A proper analysis of the claims requires a brief review of the procedural history of this action. The landowner owns a thirty acre parcel in Bedminster Township which had previously been used as a camp. He sought a special exception for conversion of seven of the buildings (manor house, farmhouse, two ranchhouses, barn, gymnasium and cottage) located thereon into sixteen residential units pursuant to Section 405(B)(10) of the Township Ordinance. 2 The Zoning Hearing Board (Board) asked the claimant if he would consent to a condition limiting development to the uses set forth in the application. He refused. The application was subsequently denied by the Board which found the conversion provision inapplicable because the dilapidated condition of the buildings would require rebuilding rather than mere conversion of an "existing" building; because the ordinance was intended to provide for the conversion of large farmhouses and not a children's camp; and because of concerns that the landowner would later seek approval for an apartment complex and subdivision.
The landowner appealed the denial of the conversion to the Court of Common Pleas. Bedminster Township filed a motion to intervene pursuant to Section 1004-A of the Pennsylvania Municipalities Planning Code (MPC). 3 The trial court held that the conversion ordinance was applicable to the property, reversed the decision of the Board, and remanded with the direction that the Board grant the special exception subject to any reasonable conditions which the Board deemed appropriate.
The Township appealed the trial court's decision to this Court which held that the trial court erred in ordering the Board to grant the application and remanded the matter to the trial court with directions to remand to the Board for findings of fact regarding whether the application complied with the requirements and conditions of the conversion ordinance. Neill v. Bedminster Twp. Zoning Hearing Bd., 140 Pa.Commonwealth Ct. 365, 592 A.2d 1385 (1991). We held that the Board abused its discretion by narrowly interpreting the term "residential conversion" to preclude the requested development of the property and that the record lacked crucial findings as to whether the plan complied with the requirements of the conversion ordinance.
The landowner then filed a suit against each of the appellees alleging abuse of process and against Holland, Kulp, Thomas, and Eberle alleging wrongful use of civil proceedings. 4 Appellees Hoeflich, Ketterer and Wasser are Board members; Holland, Kulp and Thomas are members of the Board of Supervisors (Supervisors); and Eberle is the solicitor for the Board of Supervisors.
The appellees filed preliminary objections in the nature of demurrers alleging that the landowner failed to state causes of action for abuse of process and wrongful use of civil proceedings. The trial court sustained the objections and dismissed the complaint, finding that the request for the condition and the intervention in the zoning action were authorized by the MPC so as to preclude an abuse of process cause of action and that there was probable cause and a termination in the landowner's favor so as to preclude a "malicious prosecution" cause of action. The landowner appeals here from the trial court's order. 5
The landowner raises two issues on appeal: (1) whether the request to agree to a non-development condition and subsequent denial of the application supports an abuse Preliminary objections in the nature of a demurrer test the legal sufficiency of a complaint. All well-pleaded facts set forth in the complaint and all inferences reasonably deducible therefrom are accepted as true, Foster v. Health Market, Inc., 146 Pa.Commonwealth Ct. 156, 604 A.2d 1198 (1992), but conclusions of law, unwarranted inferences from facts, argumentative allegations, and expressions of opinion are not admitted. Dep't of Public Welfare v. Portnoy, 129 Pa.Commonwealth Ct. 469, 566 A.2d 336 (1989), affirmed, 531 Pa. 320, 612 A.2d 1349 (1992). Preliminary objections should be sustained only where it appears with certainty that the law will not permit recovery on the facts presented. Bickert v. Borough of Riverside, 118 Pa.Commonwealth Ct. 91, 545 A.2d 962 (1988).
of process cause of action and (2) whether the Township's intervention in the landowner's appeal and its own appeal of the Court of Common Pleas' reversal to this Court supports a wrongful use of civil proceedings cause of action. When reviewing a trial court order sustaining preliminary objections in the nature of a demurrer, this Court is limited to determining whether the trial court abused its discretion or committed an error of law. Muncy Creek Township Citizens Comm. v. Shipman, 132 Pa.Commonwealth Ct. 543, 573 A.2d 662 (1990).
To establish a common law cause of action for abuse of process "[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of process, is required." Dietrich Indus., Inc. v. Abrams, 309 Pa.Superior Ct. 202, 212, 455 A.2d 119, 125 (1982). The touchstone of the action is a perversion of the process for a purpose for which it was not intended. Triester v. 191 Tenants Ass'n, 272 Pa.Superior Ct. 271, 415 A.2d 698 (1979).
The landowner first argues that the Board's attempt to extract a concession precluding further development of his property was unlawful and exceeded the requirements and applicable conditions for a conversion. He argues that this fact, coupled with the facts that the request was made off-the-record, that it would effect a total ban...
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In re Solfanelli
...v. Walter, 64 Pa. 283 (1870). Its "touchstone" is a use of process for a purpose for which it was not intended. Neill v. Eberle, 153 Pa.Cmwlth. 181, 620 A.2d 673, 674 (1993). While there is no cause of action for abuse of process if the claimant, even with bad intentions, merely carries out......
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...of the action is a perversion of the process for a purpose for which it was not intended. Citations omitted. Neill v. Eberle, 153 Pa.Cmwlth. 181, 185, 620 A.2d 673, 674 (1993). Plaintiff argues in its proposed findings of fact and conclusions of law and supporting arguments as Clemens has s......
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Paparo v. United Parcel Service, Inc., CIV. A. 99-1597.
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