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

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 ...


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