the court of common pleas granted plaintiff's uncontested "petition for striking of bench warrant and removal of petition for contempt." (Document 72, Exhibit P-001).
The equity action between plaintiff and Ursula Harvey was finally settled by written agreement of the parties on April 14, 1976. (Document 67, Exhibit J). A notice of settlement was later filed with the Court of Common Pleas on May 31, 1977. (Document 107, Exhibit 2.1.1).
On February 13, 1978, Harvey brought this action against Pincus and others based upon the aforementioned state-court litigation. As stated at the outset, while the complaint alleges causes of actions based upon state law and the federal civil rights laws, only the state-law claims against Pincus remain. The second amended complaint is 53 pages and several hundred paragraphs in length, and contains 22 "Counts." Not all of the counts, however, relate to Pincus. Of those counts of the complaint
which do refer to Pincus, only eight could conceivably serve as a basis for imposing liability on him under Pennsylvania state law.
Count III alleges that Pincus "maliciously and in bad faith, wrongfully initiated proceedings in Equity against plaintiff without probable cause" in the Court of Common Pleas for Montgomery County on September 3, 1975. (Complaint paras. 3.2 to 3.5).
Count IV alleges that on September 3, 1975, Pincus "maliciously and in bad faith, wrongfully initiated ancillary civil proceedings against plaintiff without probable cause, in the manner of a 'Writ of Ne-Exeat'." (Id., PP 4.2, 4.5).
Count V alleges that Pincus "perverted" the writ of ne exeat "for coercive purposes akin to the imprisonment, for debt, without adjudication . . . to 'compel' plaintiff to post excessively high 'bond' when confronted with incarceration in civil proceedings." (Id. PP 5.12 to 5.13).
Count VI alleges that on September 4, 1975, deputies from the Montgomery County Sheriff's office served papers on plaintiff "relevant to the . . . Equity action", arrested him and perpetrated a "battery" upon him "by placing him in handcuffs." (Id., PP 6.2 to 6.5).
Count XII alleges that Pincus coerced plaintiff into agreeing to "block" the funds in the Liechtenstein account through the use of threats that plaintiff would remain in jail "forever" if plaintiff did not agree. (Id. PP 12.2, 12.3).
Count XIV alleges that on November 4, 1975, Pincus "maliciously and in bad faith, wrongfully continued and maintained aforesaid civil proceedings against plaintiff through the initiation of a Petition for Contempt . . . [and] caused a bench warrant for the arrest of plaintiff to be issued. (Id., PP 4.2 to 14.5). It is further alleged that the bench warrant was "dismissed by adjudication in favor of plaintiff" on April 23, 1976. (Id., P 14.9).
Count XV alleges that on February 14, 1976, deputies of the Montgomery County Sheriff's Office arrested plaintiff at his home and, in the process, committed a battery upon plaintiff by placing him in handcuffs and transporting him to the Montgomery County Prison, (Id. PP 15.4 to 15.16); that Pincus instigated this arrest pursuant to a stale bench warrant, (Id. P 15.11); and that Pincus' action was designed "to coerce compliance with [Pincus'] demands, primarily for plaintiff's action and inaction in separate civil proceedings, in [settlement] negotiations which had begun only two days previously, on February 12th, 1976." paras. 15.2 to 15.3, 15.9 to 15.10).
Count XXI alleges that Pincus conspired with each of plaintiff's attorneys "to injure, threaten, harass, oppress, intimidate, and terrorize plaintiff, . . . [and] to allow . . . Pincus to sequester funds and property for his client preventing possible valid claims by plaintiff, other Sovereigns [ sic ], and third parties." (Id. PP 21.2 to 21.3).
While Harvey has styled his state-law causes of action under the headings malicious use of process, malicious abuse of process, and negligence, I have not construed his pleadings so narrowly in considering Pincus' motion. Nevertheless, under even the most liberal construction of the complaint, I conclude for reasons hereafter discussed that Pincus is entitled to summary judgment on the state-law claims.
Pincus argues that he is entitled to judgment as a matter of law on the state-law claims because (1) the statute of limitations has run on those claims; (2) the complaint fails to state a claim upon which relief can be granted; (3) plaintiff has failed to join an indispensable party; and (4) plaintiff's claims are barred by the doctrines of settlement, accord and satisfaction. I address only the first two bases of Pincus' motion.
Count III of the complaint -- relating to Pincus' institution of the action in equity -- alleges facts sufficient to state a cause of action for malicious use of process or, perhaps, malicious prosecution, but Pincus contends that these claims are barred by the statute of limitations. I agree. On February 13, 1978, when this action was commenced, Pennsylvania
applied a one-year statute of limitations to suits to recover damages for malicious prosecution or malicious use of civil process.
12 P.S. § 51; Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir. 1977); Tarasi v. Pittsburgh National Bank, 2 D&C 3d 406, 410 (Allegheny County 1977). Since the equity action was settled by written agreement on April 14, 1976, any claim based upon the wrongful institution of the proceedings in equity was surely time-barred by the time the action in this court was commenced.
Even assuming the timeliness of the cause of action for malicious use of process, Pincus would still be entitled to summary judgment on that claim. To sustain this cause of action, Harvey would be required to prove that the equity proceedings were instituted without probable cause and that the proceedings were terminated in his favor. Dumont Television & Radio Corp. v. Franklin Electric Co., 397 Pa. 274, 154 A.2d 585 (1959); Curley v. Automobile Finance Co., 343 Pa. 280, 23 A.2d 48 (1941); Casa Di Sardi v. Alpha Motors, Inc., 227 Pa. Super. 415, 323 A.2d 288 (1974). Since it is undisputed that Harvey agreed to pay his former wife a minimum of $67,000 to settle the equity action (Document 67, Exhibit J, para. 1), he cannot argue that those proceedings were terminated in his favor. See 1 F. Harper & F. James, The Law of Torts, § 4.4 (1956). Furthermore, Harvey has come forward with no evidence to establish the existence of a fact question on the probable cause issue. The Pennsylvania courts have frequently stated that probable cause depends "upon the honest and reasonable belief of the party prosecuting." Byers v. Ward, 368 Pa. 416, 421, 84 A.2d 307 (1951) (collecting cases). In suing for an accounting in the equity action, Pincus alleged that "Robert F. Harvey had surreptitiously acquired [Ursula Harvey's] sole and separate property at [the] Swiss Bank Corporation by means of fraud, misrepresentation and possible forgery." (Document 67, Exhibit A, para. 9). From the record before me on this motion, Pincus' allegations not only rest upon probable cause but appear to represent the actual state of affairs. During the hearing on the propriety of the issuance of the writ of ne exeat, Harvey admitted that he had obtained the property in his wife's accounts through misrepresentation and that he had refused to return the property to her. Given this evidence, Harvey cannot rest upon the vague allegations in his complaint that he had a valid defense to the accounting action. Fed.R.Civ.P. 56(e); DeLong Corporation v. Raymond International, Inc., 622 F.2d 1135, 1139 (3d Cir. 1980).
Like Count III of the complaint, Count IV appears to state a cause of action for malicious use of process or malicious prosecution. The sole distinction is that Count IV relates to Pincus' conduct in seeking the writ of ne exeat. This claim is also barred by the one-year statute of limitations in effect at the time. 12 P.S. § 51. At the very latest, all state-court proceedings involving the issuance of the writ of ne exeat were concluded by April 14, 1976, well over a year before this action was commenced. Even if the claim were timely, however, Pincus would still be entitled to summary judgment. The finding of the Court of Common Pleas that the writ of ne exeat had properly issued is prima facie evidence in the instant action that probable cause existed for the issuance of the writ. See Miller v. Pennsylvania Railroad Co., 371 Pa. 308, 313, 89 A.2d 809 (1952); Byers v. Ward, supra, at 421. Once again, Harvey rests on his pleadings. He has come forward with no evidence to show that a question of fact exists as to the issue of probable cause.
The writ of ne exeat is also the subject of Count V of the complaint, but instead of charging malicious use of process, Count V charges Pincus with malicious abuse of process. These torts are plainly distinguishable:
Decisions in this state and in other jurisdictions have drawn a distinction between actions for abuse of legal process and those for malicious prosecution, which, when founded on civil prosecutions, are usually described as malicious use of civil process. The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it: Mayer v. Walter, 64 Pa. 283; Annotation, 80 A.L.R. 581. "An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it . . . On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated . . . other than its proper effect and execution." Mayer v. Walter, supra, p. 285; Johnson v. Land Title B. & T. Co., 329 Pa. 241, 242, 198 A. 23. Malicious use of civil process has to do with the wrongful initiation of such process, while abuse of civil process is concerned with a perversion of a process after it is issued. All the analogies of an action for a malicious arrest belong to an action for malicious use of civil process.
Publix Drug Co. v. Breyer, 347 Pa. 346, 348-49, 32 A.2d 413 (1943). See also Jennings v. Shuman, 567 F.2d 1213, 1217-18 (3d Cir. 1977); Blumenfeld v. R.M. Shoemaker Co., 286 Pa. Super. 540, 429 A.2d 654, 656 n.3 (Pa. Super 1981).
There are two basic elements to the cause of action for malicious abuse of process: an ulterior motive and a use of the process for a purpose other than that for which it was designed.
Sachs v. Levy, 216 F. Supp. 44, 47 (E.D. Pa. 1963). It is immaterial that the process was issued on probable cause. Mayer v. Walter, 64 Pa. 283, 286 (1870). Similarly, a plaintiff in a malicious abuse case need not show that the prior proceedings were terminated in his or her favor. The cause of action accrues immediately upon the improper use of the process. Fenton Storage Co. v. Feinstein, 129 Pa. Super. 125, 130, 195 A. 176 (1937); Whelan v. Miller, 49 Pa. Super. 91, 99-100 (1912). There is one other important distinction between malicious use and malicious abuse. Actions for malicious use of process are subject to a one-year statute of limitations, whereas the limitations period on actions for malicious abuse of process is two years. Jennings v. Shuman, supra.
Applying these legal principles to Count V of the complaint, there can be no doubt that Pincus is entitled to judgment as a matter of law on the abuse of process claim. Harvey alleges in Count V that Pincus "perverted" the writ of ne exeat for "coercive purposes akin to the imprisonment for debt" in order to "'compel' plaintiff to post an excessively high 'bond'." (Complaint paras. 5.12 & 5.13). The uncontroverted facts set forth earlier in this opinion establish that Harvey was not imprisoned for his failure to pay a debt. Pincus sought the writ of ne exeat in conjunction with the action for an accounting for the property misappropriated by Harvey from Ursula Harvey's Swiss bank account. The Pennsylvania Supreme Court has held that "where ne exeat issues ancillary to an equity action, . . . wherein the claim is based on fraud rather than contract, it does not run afoul of the statutory prohibition against imprisonment for debt." Elkay Steel Co. v. Collins, 392 Pa. 441, 450, 141 A.2d 212 (1958). Furthermore, the very purpose of the writ is to confine "a person to the limits of the jurisdiction of the court until he has satisfied the . . . claim or given bond for the satisfaction of the decree of the court." Id. at 446-47. There simply is no triable issue of fact on the propriety of Pincus' use of the writ of ne exeat. Even if there were a fact issue, the abuse of process claim would be barred by the statute of limitations. The alleged improper use of the writ of ne exeat was complete by September 5, 1975, more than two years before the instant action was commenced.
The allegations in Count VI of the complaint pertain to the September 4, 1975 arrest and incarceration of plaintiff by deputies of the Montgomery County Sheriff's Office. Given a liberal reading, these allegations do suggest a basis for imposing liability upon the arresting officers for false arrest, false imprisonment, assault and battery.
Nevertheless, because the arrest and incarceration were directed by a judge of the Court of Common Pleas, Pincus cannot be held responsible for the actions of the arresting officers. See Lentz v. Raum, 59 Pa. Super. 260 (1915). This principle has been aptly explained by the late Professor Prosser:
If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. He is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose.
W. Prosser, Handbook of the Law of Torts, 49 (1971). See also Restatement (Second) of Torts § 45A comment c (1965); F. Harper & F. James, supra, at § 3.9.
Even if Pincus could be held vicariously liable for the actions of the arresting officers, any claim plaintiff may have based upon the officers' conduct would be barred by the statute of limitations. Because the officers "purport[ed] to act for the purpose of securing the administration of the law," the one-year statute of limitations applicable to false arrest, not the two-year limitations on actions for false imprisonment, would govern the arrest and incarceration claims. Gagliardi v. Lynn, 446 Pa. 144, 149, 285 A.2d 109 (1979). Furthermore, since the alleged assault and battery was inextricably intertwined with the arrest, the assault and battery would be subsumed into the false arrest for statute of limitations purposes. Id. at 150; see Polite v. Diehl, 507 F.2d 119, 122-23 (3d Cir. 1974) (en banc); Kedra v. City of Philadelphia, 454 F. Supp. 652, 672-73 (E.D. Pa. 1978). Hence, any claim based upon the facts alleged in Count VI is barred by the statute of limitations.
In Count XII, Harvey alleges that Pincus threatened that he (Harvey) would remain in jail forever if he did not agree to block the assets of the Liechtenstein Corporation during the pendency of the action in equity. These threats were allegedly made on September 5, 1975, during negotiations between Pincus, Harvey and Harvey's attorney. Whether this claim is read as one for false imprisonment or abuse of process, it is barred by the two-year statute of limitations. See 12 P.S. § 31; Jennings v. Shuman, supra.
Aside from the statute of limitations, there is nothing alleged in Count XII which requires a trial. Harvey's confinement was not the result of threats by Pincus; his confinement and the condition for his release had been imposed by the Court of Common Pleas. Under the court's order, Harvey could obtain his release by either posting $100,000 bond or by agreeing to secure the moneys in dispute in the equity proceedings until such time as those proceedings were resolved. Pincus' alleged threats merely reiterated the terms of the court's order and therefore cannot serve as a basis for a claim of false imprisonment or a claim for abuse of process. Once again, to quote Elkay Steel Co. v. Collins, supra, the very purpose of the writ of ne exeat is to "confine a person to the limits of the jurisdiction until he has satisfied the . . . claim or given bond for the satisfaction of the decree of the court." 392 Pa. at 446-47. Because agreement to secure the funds had been suggested by the Court of Common Pleas as an alternative to bond, Pincus' alleged threats do not evidence any abuse of process.
Everyone has a right to use the machinery of the law, and bad motive does not defeat that right. There must be a further act done outside the use of the process -- a perversion of the process. If he uses the process of the court for its proper purpose, though there is malice in his heart, there is no abuse of the process . . . .