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SHERIDAN v. FOX

February 5, 1982

Robert SHERIDAN
v.
Julian FOX



The opinion of the court was delivered by: GILES

MEMORANDUM

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"

 I. BACKGROUND

 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.

 II. COUNTERCLAIMS

 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.

 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

 III. VOLUNTARY DISMISSAL

 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 ...


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