DocketNumber： 2977
Judges： McEwen, Sole, Tamilia
Filed Date： 3/4/1987
Status： Precedential
Modified Date： 10/19/2024
In May of 1981, appellee instituted two separate actions against her former husband/appellant. One action in the U.S. District Court for the Eastern District of Pennsylvania alleged claims for rape, assault, burglary, theft, fraud, breach of fiduciary duty, intentional infliction of emotional distress and breach of a settlement agreement. The other action in the Superior Court of New Jersey sought to set aside a settlement agreement.
In August of 1981, the federal court denied a motion to dismiss the tort claims and on November 9, 1981, granted appellee’s motion for a voluntary nonsuit dismissing the claims without prejudice to appellee’s right to renew them in the New Jersey action.
Appellant, in December of 1981, brought an action alleging wrongful use of civil proceedings. Preliminary objections were granted on November 29, 1982 with the court dismissing the claim while holding that the voluntary non-suit “neither constituted a judgment in favor of [appellant] nor represented a termination of the Federal Court action consistent with his innocence.” Robinson v. Robinson, 28 D & C3d 54, 58 (1982). The court went on to state:
Indeed the federal court’s specific refusal to dismiss the claims with prejudice reflects that these claims have not been determined and are subject to further adjudication in an appropriate forum. The instant action therefore, is*571 premature, pending final resolution of the claims in the New Jersey action.
Robinson, supra at 58.
The New Jersey action concluded on January 22, 1985 with the decision rendered by the trial judge on April 30, 1985. The claims formerly made by appellee in her federal action were not discussed by the court because the pleadings were never amended to raise those issues.
Appellant, in August 1985, filed a petition seeking to amend his complaint to include a count for malicious use of civil proceedings, contending the New Jersey action resulted in the federal action being terminated in his favor. The court denied the petition finding the proceedings at issue did not terminate in favor of appellant as required under 42 Pa.C.S.A. §§ 8351-8354. We do not agree and reverse the holding of the lower court.
Appellees contend that appellant should have appealed from the November 29, 1982 Order granting appellees’ preliminary objections and dismissing the claim for wrongful use of civil proceedings and failure to do so precludes bringing this appeal. Alternatively, appellees maintain the Order presently appealed from is interlocutory and thus this Court lacks jurisdiction to hear this appeal.
Both issues raised involve an analysis of what constitutes a final appealable Order. Initially, we agree with the court in the present action which stated that the Order and Opinion of November 29, 1982 “did not foreclose plaintiff [appellant] from filing a petition to amend after the conclusion of the New Jersey action.” (Slip Op. White, J., 12/17/85, p. 2). This conclusion is supported by a reading of the Opinion in Robinson, supra, where the court specifically states that the action was premature. The accompanying Order did not dismiss the wrongful prosecution claim with prejudice so as to put appellant entirely out of court on the cause of action and appellant’s subsequent attempt to amend the pleading, following the conclusion of the New Jersey litigation, was proper.
The first issue to be resolved is whether appellants are properly before this Court. An appeal will lie only from a final order unless otherwise permitted by statute. “A final order is usually one which ends the litigation or, alternatively, disposes of the entire case____ ‘Conversely, an order is interlocutory and not final unless it effectively puts the litigant “out of court.” ’ ” Praisner v. Stocker, 313 Pa.Super. 332, 336-337, 459 A.2d 1255, 1258 (1983) (citations omitted), quoting Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). See also: Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa.C.S.A § 742. ‘As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.’ Prainser v. Stocker, supra, 313 Pa.Super. at 337, 459 A.2d at 1258. This is so because in most such instances ‘the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action.’ Id., 313 Pa.Superior Ct. at 338, 459 A.2d at 1258. However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is ‘out of court’ with respect thereto. Id., 313 Pa.Superior Ct. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id., 313 Pa.Superior Ct. at 341, 459 A.2d at 1260.
*573 The dismissal of Count No. 3 was final. Appellants are out of court on their claim for damages because of Century’s alleged interferences with Cloverleaf s negotiations with third party, potential buyers. Therefore, we will review the averments in Count No. 3 to determine whether they are sufficient to state a cause of action.
The existing counts in the complaint are for conversion and defamation, each separate causes of action and independent from wrongful use of civil proceedings. Unlike the situation following the dismissal of the complaint in 1982, where the pending New Jersey decision prompted the court to characterize the action as premature, here, the court concluded that even upon resolution of the New Jersey action, appellant did not have the litigation terminated in his favor as required by the statute. Appellant is thus precluded from pursuing the merits of this claim and the Order is properly appealable.
The merits of the court’s decision must thus be addressed and we conclude that the court improperly determined that the prior litigation did not terminate in appellant’s favor as required by the statute.
42 Pa.C.S.A. § 8351 provides:
§ 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*574 of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.
1980, Dec. 19, P.L. 1296, No. 232, § 1, effective in 60 days.
The sole basis for the court’s denial of appellant’s petition to amend was that appellant did not show that either the federal action or the New Jersey action terminated in his favor as required by section (a)(2) of the statute.
We agree, that for the purpose of applying the statute, the federal action did not terminate in appellant’s favor because appellee was specifically allowed to raise the claims in the contemporaneous New Jersey action. We think the court erred, however, in holding that since appellee chose not to pursue the claims in the New Jersey action and the merits were never litigated, there was no termination in favor of appellant.
In the case of Woodyatt v. Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962), the court, in ruling on a common law claim of malicious prosecution, held that although one of the prerequisites to such an action is that the criminal prosecution upon which it is based be terminated favorably to the party seeking damages, this did not require that it be terminated on the merits. If the charges were abandoned or withdrawn by the prosecutor this was sufficient to satisfy the element of prior favorable termination. Woodyatt, supra, 408 Pa. at 259, 182 A.2d at 501. Citations ommitted.
In Shaffer v. Stewart, 326 Pa.Super. 135, 473 A.2d 1017 (1984), this Court, noting that the tort of malicious use of process has been codified at 42 Pa.C.S.A. §§ 8351-54, held that the favorable termination element was satisfied when the parties who filed a caveat to the probate of a will agreed to voluntarily dismiss their claims.
Shaffer also discussed the fact that Pennsylvania law was now in conformity with the Restatement (Second) of Torts § 674. A reading of that section and the comments indicates that civil proceedings may be considered terminat
Although Woodyatt dealt with criminal proceedings, the rationale applied is still appropriate when dealing with a wrongful use of civil proceedings action. Coupled with the holding in Shaffer and a review of § 674 of the Restatement (Second) of Torts, we find that the termination of the New Jersey action, in which appellee had the opportunity to raise the claims made in the federal action and did not do so, must be considered a favorable termination for appellant under the statute. Any other result would allow a party to initiate suit and then withdraw or abandon the claims before trial so as to escape potential liability. The statute provides protection against such action by imposing liability for the procurement, initiation or continuation of civil proceedings in a grossly negligent manner or without probable cause with improper purposes. Although favorable termination is called for, there is no requirement that it be based upon the merits and to impose such a requirement would lead to unjust results as set forth above.
In the present case, appellant is attempting to impose liability on appellee for initiating the action in federal court. The courts determination that the action was never terminated favorably to appellant precludes him from pursuing the action even though the action was not pursued because of a decision by appellee. It is not argued that appellees decision was the result of a compromise between the parties nor are other circumstances shown which would qualify the
We are not addressing the merits of appellant’s underlying claim, and he will have the burden of establishing the elements required in 42 Pa.C.S.A. § 8354, which provides:
§ 8354. Burden of proof
In an action brought pursuant to this subchapter the plaintiff has the burden of proving, when the issue is properly raised, that:
(1) The defendant has procured, initiated or continued the civil proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages).
1980, Dec. 19, P.L. 1296, No. 232, § 1, effective in 60 days.
At that time, appellee will be able to raise any defenses she may have to the claim of wrongful prosecution.
The Order appealed from is reversed and the case remanded to allow an amended pleading to include a count for wrongful use of civil proceedings.
Order reversed and case remanded.