Triester v. 191 Tenants Ass'n
| Decision Date | 16 November 1979 |
| Citation | 415 A.2d 698,272 Pa.Super. 271 |
| Parties | Stanton TRIESTER, Leonard J. Mercer, Jr. and Claude L. Benner, Appellants, v. 191 TENANTS ASSOCIATION, Morris A. Kravitz, Edward Haisfield, Elaine Lieberman, Rita Korn, Meyer Marcus, Harry Penneys, Edward Polisher, David Ginsberg, Samuel L. Lieberman, Sanford M. Rosenbloom, Mr. & Mrs. Joseph Ariano, Mr. & Mrs. David Becker, Julie Becker, Mr. & Mrs. Morris Berger, Mr. & Mrs. Bordman, Herbert Brilliant, Mr. & Mrs. Lou Brooks, Mrs. Leo Chadwin, Mr. & Mrs. Joseph Cohen, Mr. & Mrs. Sam Cravitz, Joyce Creamer, Mr. & Mrs. Daniel Denenberg, Mr. & Mrs. Max Elion, Mr. & Mrs. Stanley Elkman, Mr. & Mrs. Reuben Feinberg, Dr. & Mrs. Harry Fields, Arthur First, Mr. & Mrs. Philip Frank, Mr. & Mrs. Harry Gold, Mr. & Mrs. Jack Golden, Dorothy Rodgers, Mr. & Mrs. Jack Roeberg, Mr. & Mrs. Samuel Rosenblum, Dr. & Mrs. Oscar Ross, Mr. & Mrs. Harry Ruben, Mr. & Mrs. Ralph Schwartz, Rose Selden, Mr. & Mrs. Abe Serot, Morton Sherman, Mr. & Mrs. Louis Slonsky, Mr. & Mrs. Albert Solomon, Mr. & Mrs. Jerry Solomon, Lillian Soll, Lillian Strickler, Philip Goldstein, Mr. Martin Goodman, Mr. & Mrs. Emanuel Grabell, Mr. & Mrs. Larry Gregg, Mr. & Mrs. Gross, Estelle S. Hirshorn, Alan Horowitz, Mr. & Mrs. Arnold Jacobs, Mr. & Mrs. Cyril Karafin, Mr. & Mrs. Maurice Kendall, Mrs. Stanley Kessler, Mrs. Louis Kushner, Mr. & Mrs. Jack Light, Mr. & Mrs. Michael T. Lubin, Mrs. William Leiser, Mr. & Mrs. Abe Mass, Dr. & Mrs. Jerome Miller, Mr. Marcucilli, Mr. Frank Netsky, Mr. & Mrs. John Netsky, Adele Niessen, Mr. & Mrs. Albert Olanoff, Mr. & Mrs. Charles Penneys, Dr. & Mrs. Raymond Pizor, Mr. & Mrs. Victor Potamkin, Mr. & Mrs. Maurice Rifkin, Mr. & Mrs. Aaron Robinson, Mr. & Mrs. Archie Robinson, Mr. & Mrs. Harry Robinson, Helen Sullivan, Jack Sullivan, Mr. William Sullivan, Mr. & Mrs. Charles Sernaker, Mr. & Mrs. Harry Teplick, Beatrice Toub, Helen Weiss, Mr. & Mrs. Ralph Whitaker, Edgar Woolmington, Mr. & Mrs. Simon Ysem, Trustees Ad Litem and Individually, Joseph W. Pelino, Esquire, David E. Wasserstrom, Esquire, Morris Chucas, Esquire, Tom P. Monteverde, Esquire; Wasserstrom, Chucas & Monteverde, a partnership. |
| Court | Pennsylvania Superior Court |
Argued March 22, 1979. [Copyrighted Material Omitted]
Lenard L. Wolffe, Philadelphia, for appellants.
Charles Craven, G. Wayne Renneisen, Joseph R. Thompson, Philadelphia Desmond J. McTighe, Norristown, Harry Rutenberg Philadelphia, William H. Kinkead, III, and with him William H. Bradbury, III, Norristown, Donald J. Matthews, Jr., Deborah R. Willig, Philadelphia, and Arthur R. Tilson, Ambler, for appellees.
Before PRICE, SPAETH and LIPEZ, JJ.
The instant appeal is from an order of the trial court granting appellees' preliminary objection in the nature of a demurrer to appellants' action for disparagement of title, malicious use of civil process, and abuse of process. For the reasons stated herein, we affirm.
In May of 1973, appellants purchased a ten story apartment building known as 191 Presidential Boulevard, located in Lower Merion Township, Montgomery County. On July 30, 1973, they filed a Declaration and Code of Regulations [1] with the Recorder of Deeds in Montgomery County establishing 191 Presidential Boulevard as a condominium. In August of 1973 appellee, 191 Tenants Association, was formed by the tenants of 191 Presidential Boulevard to oppose the planned conversion from apartments to condominiums. In furtherance of its opposition, the tenants association, through its legal advisors, commenced an equity action on January 15, 1974, requesting, inter alia, that appellants be enjoined from converting the apartments into condominiums and from increasing the rent of any tenant whose lease may expire in the interim. [2] On March 28, 1974, judgment on the pleadings was entered on behalf of appellants and the case dismissed. [3] See 191 Tenants Association v. Triester, 98 Mont.Co.L.R. 206 (1974). That decision was affirmed per curiam by the Supreme Court of Pennsylvania on October 3, 1975. 191 Tenants Association v. Triester, 463 Pa. 143, 344 A.2d 466 (1975).
On April 18, 1977, appellants filed suit against the tenants association, its members, and its legal advisors seeking damages allegedly sustained as a result of the prior equity action. Appellants alleged that prior to the initiation of the equity action, appellees threatened to slander appellants' title to the premises and threatened to engage in meritless litigation to delay the conversion to condominiums. The complaint further alleges that appellees subsequently instituted a meritless suit, and that as a result the title to the planned condominiums was rendered unmarketable and uninsurable, thus preventing appellants from soliciting prospective condominium purchasers. Finally, the complaint alleges that because of the delay caused by the meritless suit and appellee-tenants' refusal to pay rent increases, appellants encountered a cash flow problem such that they were unable to pay the mortgage, taxes and other charges associated with the operation of the building. All of this was done maliciously with the result that appellants were forced to default on the mortgage and their ownership interest in the building was divested causing a loss of $15,000,000.
Preliminary objections in the nature of a demurrer were filed on behalf of all appellees. After argument before an en banc court, the objections were sustained and appellants' complaint dismissed in an order dated July 3, 1978. It is from that order that appellants appeal, alleging that their complaint sufficiently stated causes of action for disparagement of title, abuse of process, and malicious use of process.
It is axiomatic that a party presenting a preliminary objection in the nature of a demurrer admits, for purposes of the motion, all material and relevant facts that are pleaded and every reasonable inference that may be deducible therefrom. See, e. g., Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Philadelphia v. Penn Plastering Corp., 434 Pa. 122, 253 A.2d 247 (1969). The same standard is applied on appeal from a trial court's order sustaining a demurrer. See, e. g., Consumers Education and Protective Ass'n v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977); National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977).
Appellants' first theory of recovery was on a claim for disparagement of title arising from the prior equity suit wherein appellees alleged sixty-seven defects in the structure at 191 Presidential Boulevard. Appellants claim that these allegations disparaged, slandered and clouded their title to the property.
Disparagement of title, variously labeled slander of title, defamation of title, or in other contexts, slander of goods, trade libel or injurious falsehood, is the false and malicious representation of the title or quality of another's interest in goods or property. See Young v. Geiske, 209 Pa. 515, 58 A. 887 (1904); Paull v. Halferty, 63 Pa. 46, 3 Am.Rep. 518 (1870). Without resolving whether appellees' complaint in the prior suit was sufficient to sustain such an action, the trial court ruled that as a matter of law, appellees were entitled to an absolute defense since the statements were made during the course of litigation.
Under the Restatement (Second) of Torts § 587 (1977)
"(a) party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding." (Emphasis added).
This defense has been recognized in this Commonwealth for ordinary actions of defamation. See, e. g., Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971); Greenberg v. Aetna Ins. Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied sub nom. Scarselletti v. Aetna Casualty & Surety Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968); Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977). While recognizing the judicial defense, appellants assert that the defense is inapplicable in the instant proceeding for several reasons.
First, they claim that an action for disparagement of title is different from an action for pure defamation and that the defense is inapplicable in the former proceeding. The action of defamation is designed to protect the reputation of the plaintiff while disparagement of title is intended to protect the owner's saleable interest in the property. See Note, Disparagement of Property: A Right of Action, 65 Dick.Law Rev. 145 (1961); cf. Paull v. Halferty, supra; Hygienic Fleeced Underwear Co. v. Way, 35 Pa.Super. 229 (1908). The Restatement (Second) of Torts § 635 (1977) provides that the privileges available in defense of an action in pure defamation are also available in an action for disparagement of title. Although our research has failed to uncover any cases in this Commonwealth in which the judicial privilege was asserted in a disparagement of title case, we can perceive of no reason why the defense should not be available in both actions. Appellants' attempted distinction based upon the interest to be protected is without merit.
Second appellants claim that even if the privilege does exist in a disparagement of title action, it is unavailable when the disparaging statements are made with a malicious motive. In effect, appellants would have this court convert the judicial privilege from one that is absolute to one that is qualified. See Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971) (...
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