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October 9, 1963

Joseph MINA and Josephine Mina, his wife
Samuel MELNICK and Ida Melnick, his wife, also known as Ida Tonuci

The opinion of the court was delivered by: WOOD

This is an action for malicious abuse of process. To reach the legal issues in this case, a recital of the rather complicated facts is essential.

From some time prior to 1953, either the plaintiffs or their parents were the sole owners in fee of the premises located at 900, 902, 904 and 909 Morris Street, Philadelphia, Pennsylvania.

 At no time did Joseph Rabena, a half-brother of Josephine Mina, have any interest, legal or equitable, in this real estate, a fact known to the defendants.

 In August of 1953, Rabena operated a grocery store at 902 Morris Street. He was in need of funds and was recommended to Samuel Melnick as a source of financial aid. As a result, Melnick advanced $ 4000 of money belonging to his wife, the co-defendant Ida Melnick, also known as Ida Tonuci. When he did so he demanded that Rabena acknowledge the receipt of $ 5200 and in addition pay him the sum of $ 750 for his services in 'conveyancing and making the searches and an appraisal of the properties and also for assuming the responsibility and for getting the money.' (N.T.154)

 Melnick was at that time, and for a long period prior thereto, engaged 'as a mortgage broker and an attorney.' (N.T.152) In the light of what subsequently occurred his knowledge of the law generally and real estate in particular becomes increasingly important. Also, at this time he was acting both as principal and agent for his wife who was aware or should have been aware of the complete nature of the transactions in which they were involved.

 In order to secure the loan Melnick obtained a mortgage against the entire premises in the sum of $ 5200 from Philip Muratore, step-father of Rabena, notwithstanding that he only actually loaned $ 4000 and was paid $ 750 for his services. The rate was six per cent and interest was paid on $ 5200 rather than on $ 4000. We place emphasis on that because after process was issued in 1957, the plaintiffs were compelled to satisfy that mortgage in order to clear title to the premises notwithstanding a valid defense as to the amount due and particularly since no foreclosure proceedings were instituted and from the record, there is no evidence that the mortgage was in fact in default.

 There were further dealings between Melnick and Rabena but which involved only the defendants and Rabena but which ultimately compelled plaintiffs to pay additional sums to Melnick and his wife. On February 2, 1955, Melnick advanced $ 1150 of his wife's money to Rabena, immediately took back $ 150 and collected for a long period of time six per cent interest on the full amount of $ 1150. On June 7, 1956, the same thing occurred except that he took back $ 200 on a $ 1200 transaction.

 In 1957, Rabena was unable to keep up his payments to Melnick on the mortgage transaction and the two loans for which he executed judgment notes.

 Melnick and his wife thereupon instituted an action in Equity in the Court of Common Pleas No. 7, March Term, 1957, No. 7159, in which defendants alleged, inter alia, that Rabena was the real owner of the premises and that they, Rabena and the Minas, conspired to defraud Ida Tonuci by transferring property which belonged to Rabena and placing it in names of plaintiffs, Joseph Mina and Josephine Mina. They did this notwithstanding Melnick's having, as a lawyer and real estate broker, searched the title and being personally familiar with the chain of title going back to the original mortgage of 1953. Furthermore, the defendants knew that Rabena could not and did not transfer title since it had always been in her parent or parents name.

 At about this time, the Minas had the premises at 900 Morris Street under agreement of sale and obviously the Equity action placed a cloud on the title. The plaintiffs sought the advice of an attorney and after considerable negotiation and threats from Melnick were compelled to satisfy the mortgage in order to complete the transfer. (The exact amount paid to satisfy does not appear in the record, but from all the evidence it was clearly in a disputed amount.)

 Melnick then, having forced satisfaction of the mortgage by holding up the sale of 900 Morris Street, instituted a second and similar proceeding in the Municipal Court of Philadelphia (now County Court), November Term 1957, No. 76, in which precisely the same complaint was used except that the property at 900 Morris Street was crossed out. This, of course, had the same result as to the remaining three properties since they were also at that time under agreement of sale. Negotiations were carried on again. In the meanwhile, the Minas were compelled to move out of the property and allow the prospective purchaser to take possession or risk being in default on their agreement of sale.

 Eventually, in order to remove the cloud created by the Municipal Court action, the plaintiffs were compelled to pay $ 500 to Melnick and his wife for a debt which they did not owe and were under no obligation, legal or otherwise, to pay. In fact, it is doubtful that Rabena owed them anything.

 These facts, adequately substantiated by the evidence and supported by the verdict of the jury, gave rise to the instant litigation.

 The essential elements of the tort of malicious abuse of process involve: (1) That the process though properly instituted was predicated upon an ulterior motive; (2) that such process was put to an illegal use or perverted beyond its intended purpose; and (3) the plaintiff or his property was arrested or seized. See Grainger v. Hill, 132 Eng.Rep. 769 (1838); Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413 (1948); Mayer v. Walter, 64 Pa. 283 (1870); Johnson v. Land Title Bank & Trust Company, 329 Pa. 241, 198 A. 23 (1938); ...

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