Rose v. Wissinger

• Decision Date: 08 January 1982
• Citation: 439 A.2d 1193,294 Pa.Super. 265
• Parties: Margaret G. ROSE and A. Ray Rose, her husband, Kenneth Behrend and Mark B. Aronson, Appellants, v. H. Andrew WISSINGER, Robert S. Grigsby, John David Rhodes, Thomson, Rhodes& Grigsby, a partnership.
• Court: Pennsylvania Superior Court

Page 1193

439 A.2d 1193

294 Pa.Super. 265

Margaret G. ROSE and A. Ray Rose, her husband, Kenneth Behrend and Mark B. Aronson, Appellants, v. H. Andrew WISSINGER, Robert S. Grigsby, John David Rhodes Thomson, Rhodes& Grigsby, a partnership.

Superior Court of Pennsylvania.

Argued April 15, 1980.

Filed Jan. 8, 1982.

Kenneth W. Behrend, Pittsburgh, for appellants.

John W. Jordan, IV, Pittsburgh, for appellees.

Before SPAETH, WICKERSHAM and LIPEZ, JJ.

WICKERSHAM, Judge:

This appeal was taken from a lower court order sustaining appellees' preliminary objections in the nature of a demurrer and dismissing appellants' complaint. We agree with the Honorable Ralph H. Smith, Jr. of the Court of Common Pleas of Allegheny County that appellants did not set forth a cognizable theory in their complaint upon which they may seek recovery under the law of Pennsylvania, and we, accordingly, affirm the lower court order dismissing that complaint.

The relevant facts may be summarized as follows. While a patient at St. Francis General Hospital, Inc. (hereinafter Hospital), Margaret G. Rose, suffered a fracture of the left femur and a shortening of her left leg. Her husband, A. Ray Rose, and she retained the services of the law firm of Behrend and Aronson, the members of which included Attorneys Kenneth Behrend and Mark B. Aronson. Behrend and Aronson instituted suits against the Hospital and H. Andrew Wissinger, a physician, on behalf of Mr. and Mrs. Rose for the injury which Mrs. Rose had sustained in the Hospital.

The suit against H. Andrew Wissinger was commenced on July 7, 1976, by the filing of a praecipe for a writ of summons in trespass and assumpsit which was subsequently issued and served upon Wissinger. This action against Wissinger was discontinued at the election of Mr. and Mrs. Rose without a complaint being filed.

On January 30, 1978, Wissinger filed a complaint in trespass at No. GD 78-2021, in which malicious use of process was alleged against Mr. and Mrs. Rose, and Kenneth Behrend and Mark Aronson, trading as Behrend and Aronson, a partnership. The basis of Wissinger's complaint was that the defendants had filed the previous suit against him with malice and without probable cause, and that Wissinger was, therefore, entitled to punitive damages. Wissinger was represented by the law firm of Thomson, Rhodes & Grigsby, the members of which included Attorney Robert S. Grigsby, who later became a judge of the Court of Common Pleas of Allegheny County, and Attorney John David Rhodes. Wissinger subsequently discontinued his action.

On January 29, 1979, Mr. and Mrs. Rose, Behrend and Aronson, all of whom are appellants herein, commenced the instant suit by writ of summons in trespass against Wissinger, Grigsby, Rhodes and the law firm of Thomson, Rhodes & Grigsby, a partnership, and against Employers Insurance of Wausau, a corporation. On March 26, 1979, the latter was dropped by consent of all parties from the records as a party defendant, and a complaint in trespass was filed against the remaining defendants, appellees herein. The subject matter of this complaint was the preparation, filing and service of the complaint at No. G. D. 78-2021 by appellees. We adopt the lower court's summary of the contents of appellants' complaint:

In the instant case, the complaint of Dr. Wissinger is incorporated into the plaintiffs' complaints (sic) and made a part thereof (P 8). The Wissinger Complaint contains the following:

1. Identification of Dr. Wissinger as a physician (P 1);

2. Identification of Margaret G. Rose and A. Ray Rose as individuals residing in Fayette County (P 2);

3. The identification of Behrend and Aronson as attorneys practicing in Pittsburgh (P 3);

4. That Behrend and Aronson filed a praecipe against Dr. Wissinger at No. G. D. 76-14870 with the permission and consent of Margaret G. and A. Ray Rose (Ps 4, 5, 6, 7 and 13) and that action was brought as a result of their advi(c)e;

5. That the Prothonotary issued a writ in accordance with the praecipe (P 8), that the writ was delivered to the Sheriff for service (P 9) and was subsequently served by the Sheriff on July 16, 1976 (P 10);

6. That on February 16, 1977, a praecipe to discontinue the action against Dr. Wissinger was filed by Behrend and Aronson (P 11) and this termination was without imposition of liability on the part of Dr. Wissinger (P 14);

7. That the filing of the praecipe against Dr. Wissinger on behalf of the Roses by Behrend and Aronson was without probable cause (P 12) and that it was done 'with malice and without probable cause to believe that there could be (any) reasonable basis for recovery therein'; ...

....

Plaintiffs contend that the instant complaint sets forth four separate theories which are recognized by the law and upon which it would be entitled to recover. These theories are:

1. Defamatory remarks made in a court filing, not protected by privilege;

2. Outrageous conduct causing emotional distress under Restatement of Torts 2d Sec. 46;

3. Conspiracy to commit defamation; and,

4. Conspiracy to commit outrageous conduct causing severe emotional distress.

Lower ct.op. at 2-3 (footnote omitted).

On April 2, 1979, appellees filed preliminary objections in the nature of a demurrer alleging that appellants' complaint failed to state a cause of action. On June 21, 1979, the lower court sustained appellees' preliminary objections and dismissed appellants' complaint. This appeal followed. ¹

The standard for reviewing an order sustaining preliminary objections in the nature of a demurrer is set forth in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979):

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Id. at 149-50, 404 A.2d at 673-74.

Appellants first contend that the language of the complaint at No. GD 78-2021 was defamatory in that it charged appellants with filing a lawsuit which was unjustified, without probable cause, and motivated by malice. We disagree.

The specific language of the complaint at No. GD 78-2021 which appellants allege to be false and defamatory is the following:

'12. The action at No. GD 76-14870 filed by the Defendants Margaret G. Rose and A. Ray Rose, her husband, upon the advice and direction of the Defendants Kenneth Behrend and Mark B. Aronson, trading as Behrend and Aronson, a partnership, was filed without probable cause...

'15. (A) He (H. Andrew Wissinger) has been unnecessarily subjected to Civil litigation...

(D) The Plaintiffs suffered an emotional distress as the consequence of the unjustified litigation;

(E) The Plaintiff is entitled to punitive damages resulting from the Defendants' malicious use of process.'

Complaint, para. 22.

In Greenberg v. Aetna Insurance Company, 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366, the supreme court affirmed the lower court's orders sustaining the defendants' preliminary objections and dismissing the complaints in trespass for libel because they showed on their face that plaintiff had no cause of action. The libel action was based on statements made in the answers filed in an assumpsit action involving the same parties. The supreme court held that the statements in question were relevant, material and, if established, constituted a complete defense to the assumpsit action, and were, therefore, absolutely privileged. The court held further that even if those statements were made falsely or maliciously and without probable cause, an absolute bar to the libel action based on such statements still exists.

When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them. Moreover, if questioned or challenged by the opposite party, all reasonable doubts (if any) should be resolved in favor of relevancy and pertinency and materiality.

....

In Kemper v. Fort, 219 Pa. 85, 67 A. 991, supra, the Court analyzed and reviewed at great length the authorities in this field and in an able Opinion pertinently said (pages 93-94, 67 A. page 994):

'All charges, all allegations and averments contained in regular pleadings addressed to and filed in a court of competent jurisdiction, which are pertinent and material to the redress or relief sought, whether legally sufficient to obtain it or not, are absolutely privileged. However false and malicious, they are not libelous. This privilege rests on public policy, which allows all suitors * * * to secure access to the tribunals of justice with whatever complaint, true or false, real or fictitious, they choose to present, provided only that it be such as the court whose jurisdiction is involved has power to entertain and adjudicate....

Public policy requires this, even if at times the privilege of immunity for false and malicious averments in pleadings is abused. Justice can be administered only when parties are permitted to plead freely in the courts and to aver whatever ought to be known without fear of consequences, if a material and pertinent averment should not be sustained. Wrong may at times...