Rosenfield v. Pennsylvania Auto. Ins. Plan

Decision Date27 January 1994
CourtPennsylvania Superior Court

Malcolm H. Waldron, Jr., Philadelphia, for appellant.

Mary Ellen Krober, Philadelphia, for appellee.


BROSKY, Judge.

Burton Rosenfield appeals from the June 15, 1993 trial court order granting defendant-appellee Pennsylvania Automobile Insurance Plan's ("The Plan") motion for summary judgment, "finding that the litigation that is the subject of this action for malicious use of process did not end with a termination favorable to ... plaintiff [-appellant]." That same day, the trial court entered judgment in favor of The Plan. 1

In March, 1985 appellant was President of the Temple Insurance Agency, a Pennsylvania corporation, and Temple Premium Finance Agency, a New Jersey Corporation. Temple Insurance Agency acted as a broker, for high-risk insureds, subject to the rules of appellee Pennsylvania Automobile Insurance Plan. The Plan was created, pursuant to 75 Pa.C.S. § 1741 et seq. and § 1751 et seq., to provide an "Assigned Risk Plan for the equitable apportionment among those insurers of applicants for motor vehicle liability insurance who are entitled to, but are unable to, procure insurance through ordinary means." 75 Pa.C.S. § 1741. Pursuant to The Plan, "all motor vehicle liability insurers shall subscribe thereto and shall participate in the plan." Id. On March 7, 1985 The Plan filed an equity action against appellant, Temple Insurance Agency and Temple Premium Finance Company, alleging that appellant and his two corporations were violating rules of The Plan. The Plan asked for injunctive relief, asking that "a judgment be entered in favor of the Plan, granting a preliminary and permanent injunction restraining, enjoining, staying and prohibiting" appellant and his corporations from violating enumerated rules of The Plan. The Plan's Complaint In Equity, 3/7/85, at par. 24. In September, 1985 appellant and his corporations filed an answer and averred that they were not violating any rules of The Plan. The case never proceeded to trial. By March, 1986 Temple Insurance and Temple Premium Finance had ceased accepting any new insurance applications or financing applications (i.e., they were no longer in the automobile insurance business or premium financing business), and, hence, no longer subject to the rules of The Plan. The Plan believed that its lawsuit had become moot, and, therefore, on November 5, 1987 it filed a praecipe for voluntary discontinuance, requesting that the trial court "Please mark this action voluntarily discontinued, without prejudice, upon payment of your costs only." The trial court granted the relief requested.

In October, 1988 appellant filed a complaint against The Plan, alleging that it engaged in a wrongful use of civil proceedings (42 Pa.C.S. § 8351) when it filed the presently discontinued lawsuit against appellant. The Plan filed preliminary objections to appellant's complaint, alleging that the voluntary discontinuance of its lawsuit against appellant did "not constitute a termination in favor of" appellant; hence, appellant's claim should "be dismissed for failure to state a cause of action for malicious prosecution." The Plan's Preliminary Objections to Appellant's Complaint, 12/28/88, at par. 5. On July 20, 1989 the trial court denied the Plan's preliminary objections; the trial court did not issue an opinion.

The Plan then deposed appellant and conducted other discovery; on March 8, 1993 it filed a motion for summary judgment, alleging that its lawsuit against appellant did not terminate in appellant's favor, and, hence, there were no genuine issues of material fact regarding appellant's lawsuit. On June 15, 1993 the trial court granted The Plan's motion for summary judgment, finding that The Plan's lawsuit against appellant did not terminate in appellant's favor. The instant appeal followed.

Appellant's statement of questions involved is as follows:

1. In plaintiff [-appellant's] suit for wrongful use of civil proceedings, did the court err in ruling that it is not a disputed issue of fact as to whether or not the underlying civil action terminated in favor of plaintiff herein?

2. In plaintiff's suit for wrongful use of civil proceedings, did the court err in finding that it was not a disputed issue of fact as to whether or not the underlying civil action terminated in favor or plaintiff herein, when a judge of coordinate jurisdiction, sitting in the same court and in the same case, ruled that it was an issue of fact?

Appellant's Brief at 4. We affirm the order of the trial court.

Our Court stated in Burman v. Golay and Co., Inc., 420 Pa.Super. 209, 616 A.2d 657 (1992),

A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court's conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. (entire record before lower court must be examined and all doubts as to the existence of an issue of material fact are to be resolved against a grant of summary judgment). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party's pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. We will overturn a trial court's entry of summary judgment only if there has been an error of law or a clear abuse of discretion. [Citations omitted.]

Id. at 212, 616 A.2d at 658-59.

Our Court stated in Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190 (1993),

Wrongful use of civil proceedings is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause. In this Commonwealth, the tort has been codified at 42 Pa.C.S. § 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.

(b) Arrest or seizure of person or property not required.--The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.

Id. at 378, 627 A.2d at 191-92. Hence, in order to recover under the statute a plaintiff must prove (1) that the underlying proceedings terminated favorably to the plaintiff; (2) that the defendant caused those proceedings to be instituted without probable cause; and, (3) malice. Id.

Appellant first claims that the trial court erred in granting The Plan's motion for summary judgment since there existed a factual issue as to whether The Plan's voluntary discontinuance constituted termination in favor of appellant. However, we note that appellant did not contest The Plan's averment that it voluntarily terminated the lawsuit since subsequent to the filing of the lawsuit appellant effectively ceased participation in the automobile insurance business and was no longer subject to the rules of The Plan, and, therefore, the lawsuit was moot (The Plan's lawsuit asked for injunctive relief in the form of restraining appellant from violating the rules of The Plan); once appellant was no longer subject to the rules of The Plan, there was no need for the injunctive relief. Accordingly, there was no issue for the trial court to address at that point, and, an appellate court will not decide moot or abstract questions. Commonwealth v. Dorler, 403 Pa.Super. 150, 588 A.2d 525 (1991).

Pennsylvania law regarding the wrongful use of civil proceedings is in conformity...

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