No. 1542 October Term, 1977, Appeal from the Order in the Court of Common Pleas of Montgomery County, Civil Action-Law Division, at No. 76-10271.
William J. Brennan, King of Prussia, with him Butera & Detwiler, King of Prussia, for appellants.
Jane B. Porcelan, Philadelphia, with her Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Spaeth, J., agrees that the order of the lower court should be affirmed, but only because in his opinion this court is bound by the Supreme Court's adoption of, and adherence to, the English rule; were the question open for this court's examination, he might be persuaded that this rule should be abandoned in favor of the Restatement Rule. Price, J., joins in Spaeth, J.'s opinion.
[ 256 Pa. Super. Page 76]
Pennsylvania has long followed the "English rule" which requires a plaintiff to prove either an arrest of the person or seizure of property*fn1 in order to state a cause of action for malicious use of civil process.*fn2 In this appeal, appellants ask us to reconsider our adherence to this rule. We decline to do so*fn3 and, therefore, affirm the lower court's order sustaining appellee's demurrer.
In the instant complaint, filed on June 25, 1976, appellant-Dr. Garcia averred that he is an opthalmologist in King of Prussia, Montgomery County; that in October, 1974, appellee, a corporation engaged in the dispensing and sale of eyeglasses, commenced an action in trespass in the Montgomery County Court of Common Pleas charging appellant with trade libel, defamation, and interference with business relations; that during discovery, appellees voluntarily discontinued the action; and that the action was commenced maliciously and without probable cause. The complaint averred that as a result of the original trespass action,
[ 256 Pa. Super. Page 77]
appellant-Dr. Garcia suffered damage to his reputation, severe mental anguish and anxiety, loss of consortium and companionship with his wife, and was compelled to engage legal counsel to defend against appellee's claims. In his prayer for relief, he averred that he was entitled to $3574.50 in counsel fees and costs expended for his defense to appellee's trespass action, $10,000 to compensate for counsel fees and costs incurred in bringing the instant action, $10,000 in compensatory damages for the loss of companionship and consortium with his wife, and $10,000 in punitive damages. In count III of the complaint, appellant-Mrs. Garcia incorporated by reference the foregoing factual averments and prayed for $10,000 in compensatory damages for loss of companionship and consortium with her husband, and $10,000 in punitive damages.
In its preliminary objections, appellee answered that appellants failed to state a cause of action for malicious use of process because they did not aver any seizure of person or property. Appellee asserted that an adverse effect on one's reputation, expenditures for legal fees incurred, and loss of consortium are not the kind of damages properly recoverable in an action for malicious use of process. In sustaining appellee's preliminary objections, the lower court stated that it was unwilling to alter the seizure requirement to allow appellants' complaint to state a cause of action for malicious use of process. This appeal followed.
It has been the law in Pennsylvania since our Supreme Court decided Kramer v. Stock, 10 Watts 115 (1840), that in order to sustain an action for malicious use of process, it is necessary to demonstrate "that the party . . . committed an illegal act, from which positive or implied damage ensues."*fn4 supra at 117. In Mayer v. Walter, 64 Pa. 283, 289 (1870), Chief Justice SHARSWOOD held, in an often quoted passage: "Now, undoubtedly, a mere suit, however malicious
[ 256 Pa. Super. Page 78]
or unfounded, cannot be made the ground of an action for damages. If the person be not arrested or his property seized, it is unimportant how futile and unfounded the action may be. . . ." Subsequent cases have similarly confined the action. In Muldoon v. Rickey, 103 Pa. 110, 113 (1883), our Supreme Court held that the damage which results from a temporary cloud on title to realty "is not more direct than that resulting from the expenses, loss of time, and often loss of credits, arising from the ordinary forms of legal controversy. All are troublesome, expensive, and often ruinous, and if for such damage the action of case could be maintained, there would be no end of litigation, for the conclusion of one suit would be but the beginning of another. It has, therefore, been wisely determined that for the prosecution of a civil suit, however unfounded, where there has been no interference with either the person or property of the defendant, no action will lie." In Norcross v. Otis Bros. & Co., 152 Pa. 481, 25 A. 575 (1893), the Supreme Court reiterated the policy behind the requirement of an actual arrest of the person or a seizure of property: "If the law were not so, there would be no end of litigation. If the ...