NO. 1202 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Lackawanna County, Civil, No. 1946 of 1980.
Roger Mattes, Scranton, for appellant.
Allan Molotsky, Philadelphia, for appellees.
Cavanaugh, McEwen and Beck, JJ.
[ 307 Pa. Super. Page 201]
We here consider an appeal from an order of the Common Pleas Court of Lackawanna County which sustained the appellees' preliminary objections in the nature of a demurrer to the suit instituted by appellant for malicious use of process and abuse of process. We affirm.
[ 307 Pa. Super. Page 202]
This action is based on a prior suit, commenced in 1975, in which the appellees had joined appellant, a licensed practical nurse, as a third party defendant in a wrongful death and survival action which had been brought against appellees Black, Froozan and Piczon, individually and trading as Neurological Associates. In that medical malpractice action a summary judgment was granted in favor of appellant in February, 1980.
Appellant then filed a complaint in trespass on April 3, 1980 and an amended complaint on November 17, 1980, in which she sought damages for malicious use of process and abuse of process. Appellees filed preliminary objections in the nature of a demurrer in which they alleged that no cause of action was stated for either malicious use of process or abuse of process since appellant had not alleged an interference with either her person or property. We note that our study of this issue is subject to the principle that "a party presenting a preliminary objection in the nature of a demurrer admits, for purposes of the motion, all material and relevant facts that are pleaded and every reasonable inference that may be deducible therefrom. The same standard is applied on appeal from a trial court's order sustaining a demurrer." Triester v. 191 Tenants Assoc., 272 Pa. Super. 271, 276, 415 A.2d 698, 701 (1979) (citations omitted).
Appellant presents two issues for our review: (1) whether a plaintiff must prove an arrest or seizure of property in order to establish a cause of action for abuse of process; and (2) whether the appellant pleaded sufficient facts to meet the requirement of an arrest or seizure of property. Our Supreme Court in Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 348-49, 32 A.2d 413, 415 (1943), articulated the distinction between these two causes of action:
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
[ 307 Pa. Super. Page 203]
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, 64 Pa. 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 ...