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JACK W. BLUMENFELD AND JANE DEVELOPMENT CORPORATION v. R. M. SHOEMAKER CO. (05/01/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 1, 1981.

JACK W. BLUMENFELD AND JANE DEVELOPMENT CORPORATION,
v.
R. M. SHOEMAKER CO., APPELLANT

No. 1780 October Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Trial Division, at No. 2513 January Term, 1972.

COUNSEL

Herbert S. Levin, Fox, Rothschild, O'Brien & Frankel, Philadelphia, for appellant.

Milton S. Lazaroff, Philadelphia, for appellees.

Wickersham, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 286 Pa. Super. Page 541]

Appellant contends that appellees failed to plead or prove causes of action for malicious use of process or abuse of process. We agree and, accordingly, reverse the judgment of the lower court.*fn1

In 1968, appellee Jack W. Blumenfeld began preparations to build a high-rise apartment building in Philadelphia. His solely-owned corporation, appellee Jane Development Corporation, took title to the premises in December, 1969. In

[ 286 Pa. Super. Page 542]

February, 1970, appellees entered into negotiations with appellant R. M. Shoemaker Co. regarding construction of the project. Appellees discontinued these negotiations on August 6, 1970. On August 17, 1970, a representative of appellant met with an employee of appellees, made various demands for compensation, threatened litigation, and stated that appellant would attempt to halt appellees' project. Appellees subsequently engaged another contractor, received a mortgage commitment, and obtained a building permit. The loan was scheduled to close early in November, and construction was to have commenced soon thereafter.

On October 27, 1970, appellant filed an action in equity alleging a breach of an oral joint venture agreement to construct appellees' apartment building. Additionally, appellant filed a praecipe to have its complaint indexed as a lis pendens against appellees' property. Settlement on the loan was postponed because of the filing of the lis pendens. On November 4, 1970, appellees filed preliminary objections to the complaint and a petition to strike the lis pendens. On December 22, 1970, Judge Edward J. BRADLEY of the Court of Common Pleas of Philadelphia sustained the preliminary objections, transferred the case to the law side of the court, and struck the lis pendens.*fn2 The loan closed on December 30, 1970, and construction commenced shortly thereafter. Subsequently, after a non-jury trial, Judge Lois G. FORER entered judgment for appellant in the amount of $31,200. This Court affirmed without opinion. R. M. Shoemaker Co. v. Blumenfeld, 251 Pa. Super. Ct. 627, 381 A.2d 913 (1977). Appellees unsuccessfully petitioned our Supreme Court for allowance of an appeal.

On January 18, 1972, appellees commenced the instant action in trespass, alleging that appellant had knowingly and maliciously caused its complaint to be indexed as a lis pendens without any factual or legal basis solely for the

[ 286 Pa. Super. Page 543]

    purposes of halting appellees' project and inducing a favorable settlement of their contractual dispute. Appellant's preliminary objections asserting, inter alia, that appellees' complaint failed to state a cause of action, were overruled. On June 13, 1978, a jury found that appellant had engaged in both malicious use of process and abuse of process, and awarded appellees $225,000 compensatory damages and $25,000 punitive damages. Appellant's motions in arrest of judgment, for judgment n. o. v., or for a new trial were denied and judgment was entered. This appeal followed.

Appellant contends that the judgment cannot stand because appellees had failed to allege or prove a seizure of their property, an essential element of their causes of action.*fn3 "Pennsylvania has long followed the 'English rule'

[ 286 Pa. Super. Page 544]

    which requires a plaintiff to prove either an arrest of the person or seizure of property in order to state a cause of action for malicious use of civil process."*fn4 Garcia v. Wall & Ochs, Inc., 256 Pa. Super. 74, 76, 389 A.2d 607, 608 (1978) (footnote omitted). See also Triester v. 191 Tenants Association, 272 Pa. Super. 271, 279, 415 A.2d 698, 703 (1979); DeLeo v. Munley, 261 Pa. Super. 90, 91, 395 A.2d 957, 957 (1978); Restatement (Second) of Torts § 677 (1977). Appellees argue, however, that under our cases, a mere interference with their property will suffice. See, e. g., Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 349-50, 32 A.2d 413, 415 (1943); Muldoon v. Rickey, 103 Pa. 110, 113 (1883). The lower court agreed, and concluded that the filing of this lis pendens constituted a sufficient interference with appellees' property to sustain their actions. We disagree. As this Court recognized in Roberts v. Gibson, 214 Pa. Super. 220, 224, 251 A.2d 799, 801 (1969), our cases have always held that an arrest or a seizure is required to sustain the causes of action. See also Triester v. 191 Tenants Association, supra, 272 Pa. Super. at 280-81, 415 A.2d at 703-04; Garcia v. Wall & Ochs, Inc., supra, 256 Pa. Super. at 77-79, 389 A.2d at 609-10. Indeed, as Justice SHARSWOOD succinctly stated: "If the person be not arrested or his property seized, it is unimportant how futile and unfounded the action may be . . . ." Mayer v. Walter, 64 Pa. (14 Smith) 283, 289 (1870) (citations omitted). That principle has been often reiterated

[ 286 Pa. Super. Page 545]

    by our courts,*fn5 and remained the law of this Commonwealth until the passage of the Act of December 19, 1980, P.L. 1296, No. 232, to be codified at 42 Pa.C.S.A. §§ 8351-8354 (abolishing the arrest or seizure requirement in establishing a statutory cause of action for wrongful use of civil proceedings) (effective February 17, 1981).*fn6 Consequently, we conclude that the lower court erred in measuring appellant's conduct by the lesser standard of a mere interference.

Even if the lower court had applied the correct standard, appellees' pleadings and proofs were insufficient to establish a seizure of their property as a consequence of the filing of the lis pendens. Although one common pleas court has held that a lis pendens constitutes a seizure within the meaning of the English rule,*fn7 no appellate court of this

[ 286 Pa. Super. Page 546]

Commonwealth has had the occasion to address the issue. We are guided, however, by other cases in which civil process has affected a litigant's property interests without rising to a seizure under the English rule. In Muldoon v. Rickey, supra at 113, our Supreme Court held that commencing an action in ejectment "temporarily clouds the title to the property in controversy, and so may for the time prevent a sale or mortgage upon it" but would not support an action for malicious use of process. Similarly, the Court held that a writ of estrepment, an ancillary remedy which was issuable as of course upon the filing of an affidavit in an action for waste, could not sustain a cause of action under the English rule. Eberly v. Rupp, 90 Pa. (9 Nor.) 259, 261 (1879). More recently, judgment liens have been held not to constitute a seizure of property within the meaning of the English rule. Publix Drug Co. v. Breyer Ice Cream Co., supra, 347 Pa. at 350, 32 A.2d at 415. Accord, Baird v. Aluminum Seal Co., 250 F.2d 595, 602 (3d Cir. 1957) (applying Pennsylvania law). Moreover, in Triester v. 191 Tenants Association, this Court specifically rejected a claim that an unfounded equity action which clouded title to a condominium project and thereby inhibited solicitation of prospective purchasers constituted a seizure of the property. 272 Pa. Super. at 282, 415 A.2d at 704. Likewise, although a lis pendens may temporarily cloud someone's title and therefore make encumbrancing or conveyancing difficult, it is nevertheless clear that it does not even establish a lien upon the affected property.*fn8

[ 286 Pa. Super. Page 547]

A fortiori, a lis pendens does not constitute a seizure of property within the purview of the English rule.*fn9 Consequently, appellees failed to establish a cause of action for either malicious use of process or abuse of process.

Judgment reversed. Case remanded with directions to enter judgment for appellant, R. M. Shoemaker Co., against appellees, Jack W. Blumenfeld and Jane Development Corporation.


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