Sachs v. Levy
| Decision Date | 09 April 1963 |
| Docket Number | Civ. A. No. 32280. |
| Citation | 216 F. Supp. 44 |
| Parties | Robert SACHS v. Arthur LEVY and McClenachan, Blumberg & Levy. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Poplow & Shmukler, by Stanley M. Poplow, Philadelphia, Pa., for plaintiff.
Montgomery, McCracken, Walker & Rhoads, by Sidney L. Wickenhaver, James D. Crawford, Philadelphia, Pa., for defendant.
The plaintiff was arrested, detained and taken into custody on December 30, 1960, after one Ada Roland swore to an affidavit leading to warrants issued for his arrest.
He was prosecuted on criminal charges of larceny by bailee, fraudulent conversion, conspiracy and being an accessory before the fact of these crimes.
On June 19, 1961, the trial judge dismissed the case for insufficiency of evidence.
Now, Robert Sachs in this action has brought suit against Ada Roland's attorney and his law firm alleging that the acts of the attorneys were done maliciously and without probable cause.
The Complaint contains separate counts for malicious prosecution, malicious abuse of process and malicious use of process and negligence.
The first count alleging malicious prosecution is barred by the Pennsylvania Statute of Limitations1 which requires such actions to be brought within one year from the termination of the criminal proceeding which gave rise to the action. This Complaint was filed in November 1962 and the aforementioned criminal proceedings terminated in June of 1961, some 16 months earlier.
Therefore, the defendants' motion is granted as to Count I.
Also, paragraph 16 purportedly alleges a count for malicious use of process. This is the same cause of action as malicious prosecution and it is therefore barred by the Statute of Limitations.
The two remaining counts contain averments of an alleged abuse of process and negligence. These counts are not barred by the Statute of Limitations for Malicious Prosecution.
Under Pennsylvania law, when an attorney is guilty of a tortious act to a third person, such as when he encourages and induces his client to commit a trespass on another he is chargeable for his acts the same as anyone else. Adelman v. Rosenbaum, 133 Pa.Super. 386, 3 A.2d 15 (1938).
Where the trespass, allegedly committed by the attorney, involves the initiation or perversion of legal process, the torts of misuse of process and abuse of process occur.
In this case, the alleged negligence of the defendant consisted of urging the arrest and criminal prosecution of the plaintiff without probable cause.
It is apparent that the plaintiff is pleading a repetition of what constitutes a misuse of process or an abuse of process. He attempts to separate his negligence claim as a distinct cause of action.
No Pennsylvania case has been cited to us whereby the mere negligence of an attorney toward someone other than his client is actionable under Pennsylvania law. Therefore, the defendant's motion is granted as to Count III of the Complaint.
An action for abuse of process arises when legal process, whether civil or criminal, is used against another to accomplish a purpose for which it is not designed.2
The elements of this action are defined in the case of Publix Drug Company v. Breyer Ice Cream Company, 347 Pa. 346, 348, 32 A.2d 413, 415 (1943), where the Supreme Court of Pennsylvania held:
"* * * 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 * * *." (Emphasis supplied)
as contrasted with actions for malicious use of process or malicious prosecution which are concerned with the wrongful initiation of process.
The whole purpose of the action of abuse of process is "to provide a remedy for those cases in which legal procedure has been set in motion in proper form, with probable cause and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed."3
Malicious prosecution or malicious use of process were deficient in providing a remedy for situations where the initiation of process was lawful.
Malicious prosecution is distinguished from an abuse of process in that criminal or civil process is maliciously employed for no other purpose than its proper effect and execution. Mayer v. Walter, 64 Pa. 283 (1870).
Some cases distinguish malicious use of process from malicious prosecution when the legal process employed is civil.4 However, the question of whether the proceedings utilized were civil or criminal is not the determining issue in such actions.
In an action for abuse of process, it is only the subsequent acts which give rise to the tort; e. g., where a mortgagee of a ship begins an assumpsit action for a debt but later causes the arrest of the defendant by issuing civil process to compel him to give up the register of the ship thereby preventing him from going to sea.5
An Abuse of Process is defined in 3 Restatement of Torts, § 682, p. 464:
To continue reading
Request your trial
-
Palmer Ford, Inc. v. Wood
...proceedings in a criminal prosecution. See George v. Leonard, 169 F.2d 177 (4th Cir.1948) (applying South Carolina law); Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963); McGann v. Allen, 105 Conn. 177, 134 A. 810 (1926); McClenny v. Inverarity, 80 Kan. 569, 103 P. 82 (1909); Marlatte v. Weickge......
-
Chicarelli v. Plymouth Garden Apartments
...use of the process after its issue — the perversion of it to accomplish an ulterior purpose for which it is not designed. Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963); Blumenfeld v. R.M. Shoemaker Co., 429 A.2d 654 (Pa.Super.1981); DiSante v. Russ Financial Co., 251 Pa.Super. 184, 380 A.2d 4......
-
Tormo v. Yormark, Civ. A. No. 298-73.
...his client for the consequences of his negligence. E. g., Savings Bank v. Ward, 100 U. S. 195, 200, 25 L.Ed. 621 (1880); Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963); 7 Am.Jur.2d, Attorneys at Law, § 196; 7 C.J. S., Attorney and Client, § 52. That rule also has no bearing on the present case......
-
In re Jackson
...relationship is required between the plaintiff and defendant as a condition to maintenance of a legal malpractice action. Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa. 1963); Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983); and Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984). However,......