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February 5, 1982

Julian FOX

The opinion of the court was delivered by: GILES


This case gives rise to a novel question on the Pennsylvania law of abuse of process, and an unusual situation in which plaintiff's motion for voluntary dismissal with prejudice is opposed. This opinion memorializes bench decisions on these issues. *fn1"


 Plaintiff Sheridan, principal owner of an apartment building, brought this defamation action against an active member of the building's tenant association. In essence, plaintiff alleges that defendant Fox falsely told a local newspaper that plaintiff's business practices caused one of his tenants to die of a heart attack, and that the newspaper published an article with identical implications. *fn2" Defendant counterclaimed for abuse of process and wrongful use of civil process. When the case finally was called for trial on January 28, 1982, plaintiff moved for dismissal of the counterclaims, and for dismissal of the claim without prejudice. The latter motion was denied, and a jury was impaneled. The next morning, plaintiff moved to withdraw its claim with prejudice. Defendant opposed the motion.


 The counterclaim alleges abuse of process and wrongful use of civil proceedings by Sheridan in this and other cases. *fn3" Sheridan contends that the counterclaim fails to state a claim because there has been neither a termination of a prior proceeding in Fox's favor nor arrest or seizure as required by the "English rule." Fox argues that termination is not a precondition, and that the English rule has been abolished by statute.

 The Pennsylvania law of abuse of process and wrongful use of civil proceedings *fn4" contains two oddities. First, the common law "has long followed the "English Rule' 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." *fn5" Second, the legislature has recently codified "Wrongful Use of Civil Proceedings." 42 Pa.Cons.Stat.Ann. §§ 8351-8354 (Purdon 1981).

 That codification eliminates the English rule for actions brought under the statute. *fn6" Fox argues that the statute eliminates the English rule for abuse-of-process actions. I disagree, because the statute does not encompass abuse of process.

 Wrongful use of civil proceedings and abuse of process are different torts. The gravamen of wrongful use of civil proceedings is the baseless or reckless prosecution of a suit, while the gravamen of abuse of process is use of proceedings for an improper purpose. *fn7" Essential elements of wrongful use of process, such as lack of probable cause and prior termination, are not required for an abuse of process. The Pennsylvania codification of wrongful use of process closely tracks the Restatement. Compare, e.g., 42 Pa.Cons.Stat.Ann. § 8351, with Restatement, supra note 4, § 674. Both include essential elements which are excluded from abuse of process. The legislature codified only wrongful use of civil proceedings, not abuse of process. Because the latter remains a common-law action, and because the English rule is eliminated only for statutory actions, arrest or seizure continues as an essential element of abuse of process. *fn8" Thus, Sheridan is entitled to judgment on the pleadings as to the counterclaim for abuse of process. *fn9"

 It is hornbook law that termination of a prior proceeding in plaintiff's favor has always been prerequisite to a wrongful-use-of-process suit. *fn10" That requirement continues as part of the statute. *fn11" Here, no proceeding has terminated in favor of Fox. *fn12" Therefore, an essential element of the statutory claim is missing. Thus, all statutory claims must be dismissed without prejudice as unripe. Dismissal is without leave to amend this complaint. na


 Plaintiff moves for dismissal with prejudice. *fn13" Defendant opposes the motion. Because an answer has been filed, the motion is one for voluntary dismissal with prejudice by court order pursuant to Fed.R.Civ.Pro. 41(a)(2). The essential question in deciding such a motion is whether the defendant will be unfairly prejudiced by dismissal. *fn14" This test also applies to voluntary dismissals with, as well as without, prejudice. E.g., Wainwright Securities, Inc. v. Wall Street Transcript Corp., 80 F.R.D. 103, 104 (S.D.N.Y.1978). But see note 18 infra & accompanying text. Of course, whether the dismissal is a final adjudication on the merits is relevant to whether the defendant would be unduly prejudiced. Id.

 A dismissal with prejudice gives defendant all the relief to which he is entitled on plaintiff's claim, "i.e., not only final determination of the controversy in his favor, but also freedom from the possibility of further suit from the plaintiff on the same cause of action." *fn15" Dismissal with prejudice comports with the purpose of rule 41, preventing defendant from being dragged into court for no purpose. *fn16"

 Defendant argues that dismissal might subject him to undetermined prejudice in that a jury verdict in his favor would be more of an aid to a future suit for wrongful use of process. If this amounted to legal prejudice, then any defendant could block dismissal at will simply by asserting this argument. Dismissal with prejudice will not leave in an undetermined state any right or property put in issue by plaintiff's defamation claim. *fn17" The possible undetermined effect of a dismissal with prejudice on an unripe claim for wrongful use of process does not constitute the sort of legal harm amounting to prejudice to the defendant. Because defendant is getting everything to which he is entitled were he to prevail on the merits in this action, he is not prejudiced by dismissal with prejudice.

 It may even be an abuse of discretion to deny a motion to dismiss with prejudice. In Smoot v. Fox, 340 F.2d 301 (6th Cir. 1964), the trial judge denied plaintiff's motion to dismiss his libel action with prejudice. The court of appeals reversed, finding the denial to have been an abuse of discretion. Indeed, if dismissal with prejudice would dispose entirely of a case, it may always be an abuse of discretion to deny dismissal. *fn18" Other than Smoot, I can find no case in which a district court refused to dismiss with prejudice, and no case reversing a district court for dismissal with prejudice. *fn19" In fact, denial of the motion would be futile, as plaintiff could refuse to proceed, in which event the appropriate sanction would be dismissal with prejudice. *fn20"

 Therefore, plaintiff's motion will be granted, and his claim dismissed with prejudice. Because each party prevailed on the other's claim, *fn21" no costs will be taxed. *fn22"

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