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MARGARET G. ROSE AND A. RAY ROSE v. H. ANDREW WISSINGER (01/08/82)

filed: January 8, 1982.

MARGARET G. ROSE AND A. RAY ROSE, HER HUSBAND, KENNETH BEHREND AND MARK B. ARONSON, APPELLANTS,
v.
H. ANDREW WISSINGER, ROBERT S. GRIGSBY, JOHN DAVID RHODES, THOMSON, RHODES & GRIGSBY, A PARTNERSHIP



No. 597 April Term, 1979, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 79-2389.

COUNSEL

Kenneth W. Behrend, Pittsburgh, for appellants.

John W. Jordan, IV, Pittsburgh, for appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Wickersham

[ 294 Pa. Super. Page 267]

This appeal was taken from a lower court order sustaining appellees' preliminary objections in the nature of a demurrer and dismissing appellants' complaint. We agree with the Honorable Ralph H. Smith, Jr. of the Court of Common Pleas of Allegheny County that appellants did not set forth a cognizable theory in their complaint upon which they may seek recovery under the law of Pennsylvania, and we, accordingly, affirm the lower court order dismissing that complaint.

The relevant facts may be summarized as follows. While a patient at St. Francis General Hospital, Inc. (hereinafter Hospital), Margaret G. Rose, suffered a fracture of the left femur and a shortening of her left leg. Her husband, A. Ray Rose, and she retained the services of the law firm of Behrend and Aronson, the members of which included Attorneys Kenneth Behrend and Mark B. Aronson. Behrend and Aronson instituted suits against the Hospital and H. Andrew Wissinger, a physician, on behalf of Mr. and Mrs. Rose for the injury which Mrs. Rose had sustained in the Hospital.

The suit against H. Andrew Wissinger was commenced on July 7, 1976, by the filing of a praecipe for a writ of summons in trespass and assumpsit which was subsequently issued and served upon Wissinger. This action against Wissinger

[ 294 Pa. Super. Page 268]

    was discontinued at the election of Mr. and Mrs. Rose without a complaint being filed.

On January 30, 1978, Wissinger filed a complaint in trespass at No. GD 78-2021, in which malicious use of process was alleged against Mr. and Mrs. Rose, and Kenneth Behrend and Mark Aronson, trading as Behrend and Aronson, a partnership. The basis of Wissinger's complaint was that the defendants had filed the previous suit against him with malice and without probable cause, and that Wissinger was, therefore, entitled to punitive damages. Wissinger was represented by the law firm of Thomson, Rhodes & Grigsby, the members of which included Attorney Robert S. Grigsby, who later became a judge of the Court of Common Pleas of Allegheny County, and Attorney John David Rhodes. Wissinger subsequently discontinued his action.

On January 29, 1979, Mr. and Mrs. Rose, Behrend and Aronson, all of whom are appellants herein, commenced the instant suit by writ of summons in trespass against Wissinger, Grigsby, Rhodes and the law firm of Thomson, Rhodes & Grigsby, a partnership, and against Employers Insurance of Wausau, a corporation. On March 26, 1979, the latter was dropped by consent of all parties from the records as a party defendant, and a complaint in trespass was filed against the remaining defendants, appellees herein. The subject matter of this complaint was the preparation, filing and service of the complaint at No. G. D. 78-2021 by appellees. We adopt the lower court's summary of the contents of appellants' complaint:

In the instant case, the complaint of Dr. Wissinger is incorporated into the plaintiffs' complaints [sic] and made a part thereof (para. 8). The Wissinger Complaint contains the following:

1. Identification of Dr. Wissinger as a physician (para. 1);

2. Identification of Margaret G. Rose and A. Ray Rose as individuals residing in Fayette County (para. 2);

3. The identification of Behrend and Aronson as attorneys practicing in Pittsburgh (para. 3);

[ 294 Pa. Super. Page 2694]

. That Behrend and Aronson filed a praecipe against Dr. Wissinger at No. G. D. 76-14870 with the permission and consent of Margaret G. and A. Ray Rose (para. s 4, 5, 6, 7 and 13) and that action was brought as a result of their advi[c]e;

5. That the Prothonotary issued a writ in accordance with the praecipe (para. 8), that the writ was delivered to the Sheriff for service (para. 9) and was subsequently served by the Sheriff on July 16, 1976 (para. 10);

6. That on February 16, 1977, a praecipe to discontinue the action against Dr. Wissinger was filed by Behrend and Aronson (para. 11) and this termination was without imposition of liability on the part of Dr. Wissinger (para. 14);

7. That the filing of the praecipe against Dr. Wissinger on behalf of the Roses by Behrend and Aronson was without probable cause (para. 12) and that it was done 'with malice and without probable cause to believe that there ...


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