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June 29, 1983


The opinion of the court was delivered by: SHAPIRO



 This lawsuit is the latest episode in the dispute between the plaintiff Herbert S. Denenberg, former professor and Insurance Commissioner of Pennsylvania and present media personality, and American Family Corp. of Columbus, Ga. and its subsidiary, American Family Life Assurance Co. of Columbus, ("AFC") over his publicized criticism of cancer care insurance sold by AFC and others. AFC sued plaintiff for defamation and conspiracy in New York but the suit was dismissed for lack of personal jurisdiction over him there. Denenberg was also a party defendant in a suit transferred from Maryland to Virginia which he claims defendants instigated and financed; that case was dismissed with prejudice by stipulation of counsel to that suit. Now Denenberg as plaintiff sues the former plaintiff in one suit, its Chief Executive Officer and Chairman of the Board, John B. Amos ("Amos") and its attorney, Anthony K. Dilimetin ("Dilimetin") and seeks actual and punitive damages for malicious prosecution, abuse of process, intentional infliction of emotional distress, civil conspiracy and defamation in bringing, publicizing, and negotiating settlement of the prior litigation.

 Defendants AFC and Amos have moved to dismiss the complaint. *fn1" Defendant Dilimetin has joined in that motion. For the reasons discussed below the motion is granted in part and denied in part. *fn2"


 The complaint alleges that Denenberg, as Insurance Commissioner of Pennsylvania, professor and reporter, criticized cancer care insurance, which is sold by defendant AFC and others, and expressed an opinion critical of such insurance on several occasions in testifying before committees of Congress and elsewhere. Denenberg claims that defendants commenced two lawsuits against him and defamed him in retaliation for this expression of opinion and in order to harass, intimidate and embarrass him.

 The first lawsuit (the Kiplinger/Denenberg suit) was filed by AFC on January 2, 1980 in a New York state court but removed to the United States District Court for the Southern District of New York by Denenberg. This lawsuit arose out of an article which purported to quote Denenberg on the lack of value of cancer insurance policies. According to plaintiff's present complaint, the prior complaint alleged that Denenberg "caused harm to American Family Life Assurance Company of Columbus, and that Denenberg acted in conspiracy with others named as defendants in defaming and otherwise harming said company." Complaint, para. 16. The complaint in the Kiplinger/Denenberg lawsuit was dismissed as to Denenberg for lack of jurisdiction on March 18, 1981.

 The second lawsuit (the ABC/Denenberg suit) was filed on February 3, 1981 in the United States District Court for the District of Maryland and subsequently transferred to the United States District Court for the Eastern District of Virginia. Although AFC was not the plaintiff in that suit, *fn3" Denenberg alleges that AFC, Amos and Dilimetin financed and directed the litigation. According to Denenberg, that complaint alleged that:

Herbert S. Denenberg was employed by and acted as an advisor to the Select Committee on Aging of the House of Representatives of the United States of the Ninetieth Congress, that Herbert S. Denenberg was an agent, servant, and/or employee of ABC and its television program, "World News Tonight," and that Herbert S. Denenberg in said capacity conspired, confederated, and agreed to devise and carry out a scheme or plan to do harm to said Glenda C. Brown.

 Complaint, para. 24. The complaint against Denenberg in the ABC/Denenberg lawsuit was dismissed, with prejudice, by stipulation of counsel, dated December 11, 1981.

 Denenberg also alleges that on September 15, 1980, at a Philadelphia meeting initiated by Dilimetin regarding settlement of the Kiplinger/Denenberg lawsuit, Dilimetin made the following threatening and intimidating statements to Denenberg:

a. That American Family Life was considering "suing" Denenberg in London and Japan (meaning that Denenberg would be forced to defend lawsuits in foreign countries);
c. That Denenberg would have to undergo "educational treatment" from American Family Life to learn about the merits of cancer insurance;
d. That American Family Life had fully investigated Denenberg, knew everything about Denenberg and had even gone to the point of reading Denenberg's doctoral dissertation (implying that American Family Life would go to any lengths to cause harm to Denenberg);
e. That if Denenberg would agree to stop criticizing cancer insurance and American Family Life, the Kiplinger/Denenberg suit against him would be dismissed.

 Complaint, para. 37.


 A. Counts I and III -- Malicious Prosecution and Wrongful Use of Civil Proceedings

 Although plaintiff has brought suit for both malicious prosecution and malicious or wrongful use of civil proceedings under separate counts, they constitute one cause of action and will be considered together. *fn4" The action for wrongful use of civil proceedings was brought under Pennsylvania law, pursuant to 42 Pa.C.S.A. § 8351, which is a codification of the prior common law of malicious prosecution, or malicious use of process, with certain modifications. Blumenfeld v. RM Shoemaker Co., 286 Pa. Super. 540, 429 A.2d 654 (1981).

 The first issue is the substantive law to be applied. Plaintiff asserts that Pennsylvania law governs while defendants contend that New York law should apply although either Maryland or Virginia law might be applicable. To resolve the choice of law issue, this court, sitting in a diversity action, must first determine whether a conflict exists between these states' laws and if so, apply the choice of law rules of the forum state, Pennsylvania. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Pennsylvania now applies a flexible choice of law rule that requires analysis of the policies and interests underlying the issue before the ...

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