Appeal from order of Court of Common Pleas of Lancaster County, April T., 1972, No. 2, in case of Casa Di Sardi, Inc., Marchilio Sardi, and Donna Sardi v. Alpha Motors, Inc., t/d/b/a Eastern Equipment Leasing Company.
Daniel H. Shertzer, for appellants.
R. Nuffort, with him William A. Atlee, Jr., and Geisenberger, Zimmerman, Pfannebecker & Gibbel, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J. Spaeth, J., concurs in the result.
[ 227 Pa. Super. Page 416]
This is an appeal from the order of the Court of Common Pleas, Civil Division, of Lancaster County, sustaining preliminary objections in the nature of a demurrer.
The plaintiffs-appellants, Casa Di Sardi, Inc., and Marchilio Sardi and Donna Sardi, filed a complaint in trespass, a suit described as being for malicious prosecution, against the defendants-appellees, Alpha Motors, Inc., t/d/b/a Eastern Equipment Leasing Company.
The plaintiffs raise the same questions that were raised in a Petition to Open Judgment involving the same parties and ending in an appeal before this Court which ended in a per curiam decision on the ground that the matter had become moot. Eastern Equipment Leasing Company v. Casa DiSardi, Inc., 221 Pa. Superior Ct. 803 (1972). Although the plaintiffs describe their action as malicious prosecution, it should be characterized as malicious use of civil process.
The cause of the action arises out of the entry and execution of a judgment entered against the plaintiffs by the defendants by virtue of a judgment note in the
[ 227 Pa. Super. Page 417]
usual form with a power of attorney. The parties had entered into a contract for the delivery of certain items for an agreed price. The plaintiffs gave the judgment note in payment and later on stopped making the contracted payments on the ground of failure of consideration. The defendants then entered the judgment and issued execution. The plaintiffs then filed a Petition to Open Judgment and staying the execution. On December 16, 1970, the petition was denied, the stay revoked and the sale of property took place.
The plaintiffs appealed from the denial of the petition to open and on the day of argument in this Court, the defendants advised the Court that the judgment was satisfied. On May 30, 1972, this Court remitted the record to Lancaster County and dismissed the appeal as moot on May 18, 1972.
The plaintiffs contend that they never had their day in Court regarding the allegation of failure of consideration but this action seems to be a round-about-way of proceeding. The defendants feel that the whole matter had already been decided and that they waived their day in ...