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PAUL S. SHAFFER v. ROBERT STEWART AND LIVERANT (03/02/84)

filed: March 2, 1984.

PAUL S. SHAFFER, APPELLANT,
v.
ROBERT STEWART AND LIVERANT, SENFT AND COHEN



No. 343 Harrisburg, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of York County, No. 82-S-1128.

COUNSEL

Allen H. Smith, York, for appellant.

Albert G. Blakey, York, for appellee.

Wieand, Cirillo and Johnson, JJ.

Author: Wieand

[ 326 Pa. Super. Page 137]

May an attorney who, without probable cause, files a caveat to the probate of a will for the sole purpose of "extracting an unwarranted settlement" be sued for malicious use of process after he and his client have agreed to a dismissal of the caveat? The trial court held that such actions could not be maintained because there had been no seizure of property. Therefore, it sustained preliminary objections in the nature of a demurrer to the complaint and entered judgment in favor of the attorney. This appeal followed. We reverse.

Richard F. Buser died August 17, 1981, leaving a will and several codicils which purported to name Paul S. Shaffer as executor and principal beneficiary. When Shaffer presented the will and codicils for probate he found that Robert Stewart, Esquire, had filed a caveat with the Register of

[ 326 Pa. Super. Page 138]

Wills on behalf of several named persons.*fn1 These persons were neither heirs of the decedent nor testamentary beneficiaries "under any colorably valid [w]ill" and, therefore, lacked standing. On or about September 29, 1981, Walter D. Fisher, who did have standing to challenge probate of the decedent's will, joined the caveat previously filed by Stewart. Thereafter, Stewart and his clients agreed that the clients' interest in the will contest should be dismissed; and the proceedings continued on behalf of Fisher alone. Stewart's filing of the initial caveat, according to the averments of the amended complaint filed by Shaffer, was done "without reasonable or probable cause" and "maliciously and in utter disregard of the Plaintiff's rights, and with a design and purpose of causing undue delay in the administration of the Estate of Richard F. Buser and with a view toward extracting an unwarranted settlement from the Plaintiff."

Malicious use of process is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause. Dietrich Industries, Inc. v. Abrams, 309 Pa. Super. 202, 208, 455 A.2d 119, 122 (1982). See also: Dumont Television and Radio Corp. v. Franklin Electric Co., 397 Pa. 274, 279-280, 154 A.2d 585, 587-588 (1959); Morphy v. Shipley, 351 Pa. 425, 429, 41 A.2d 671, 673-674 (1945); Triester v. 191 Tenants Association, 272 Pa. Super. 271, 279, 415 A.2d 698, 703 (1979). It must be distinguished from the separate and distinct tort of abuse of process which occurs when the legal process is utilized for some unlawful purpose, not one for which it was intended. In other words, it is a perversion of legal process. Dumont Television and Radio Corp. v. Franklin Electric Co., supra; Dietrich Industries, Inc. v. Abrams, supra; Triester v. 191 Tenants Association, supra. A cause of action

[ 326 Pa. Super. Page 139]

    for abuse of process requires "[s]ome definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process . . . [;] there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Di Sante v. Russ Financial Co., 251 Pa. Super. 184, 189, 380 A.2d 439, 441 (1977), quoting Prosser, Torts ยง 100 at 669 (2d ed. 1955). See also: Junod v. Bader, 312 Pa. Super. 92, 96-7, 458 A.2d 251, 253 (1983).

In the instant case, the averments of the amended complaint are that the caveat was filed maliciously and without probable cause in the hope of effecting a settlement on behalf of persons having no legally recognizable claim. Although appellant argues that he has causes of action for malicious use and abuse of process, it is readily apparent that if he has a cause of action, that cause can only be for malicious use of civil process. His complaint does not allege a cause of action for abuse of process.*fn2 See and compare: Dumont Television and Radio Corp. v. Franklin Electric Co., supra (malicious use of process if defendant filed involuntary bankruptcy petition against bankrupt to prevent plaintiff from collecting on recently acquired judgment when defendant was not a ...


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