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TERRY HESS v. COUNTY LANCASTER CITY LANCASTER ET AL. (09/05/86)

decided: September 5, 1986.

TERRY HESS, SR., APPELLANT
v.
COUNTY OF LANCASTER; CITY OF LANCASTER; ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Lancaster County, in case of Terry Hess, Sr. v. County of Lancaster, Pa., City of Lancaster, Pa., Jerry P. Crump, Individually and in his official capacity as a Police officer of the City of Lancaster, Joseph P. Geesey, Individually and in his official capacity as a Police officer of the City of Lancaster, Kathleen V. Mumma, Individually and in her capacity as an official and employee of the County of Lancaster, Court of Common Pleas, and Randy K. Klivansky, No. 111 January Term, 1983.

COUNSEL

Michael K. Simon, Metter & Simon, for appellant.

James M. Sheenan, with him, Timothy I. Mark, Goldberg, Evans & Katzman, P.C., for appellees, County of Lancaster and Kathleen V. Mumma.

George C. Werner, Barley, Snyder, Cooper & Barber, for appellee, Jerry P. Crump.

Judges Craig and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 100 Pa. Commw. Page 318]

Terry Hess, Sr., appeals an order of the Lancaster County Court of Common Pleas sustaining Jerry Crump's (Crump or appellee) preliminary objections to Hess' complaint that appellee conspired to and engaged in malicious prosecution, malicious abuse of process, false arrest and intentional infliction of emotional distress against Hess.

On February 2, 1976, Hess claims that he overheard Crump suborn the perjured testimony of Randy Klivansky in the men's restroom facility on the third floor of the Lancaster County Courthouse by providing a cash payment to Klivansky to give false testimony as a rebuttal witness for the Commonwealth in the trial of Commonwealth v. Haefner,*fn1 a trial in which Hess was a witness favorable to the defendant. The trial ended in a mistrial when the Court discharged the deadlocked jury. At a subsequent hearing on Haefner's Application to Quash his retrial on March 10-11, 1976, Hess testified that he observed the perjury agreement between Crump and Klivansky on February 2, 1976. At this hearing both Crump and Klivansky denied this charge.*fn2 Detective Joseph P. Geesey, a City of Lancaster police officer, shortly thereafter initiated an investigation of the testimony of Hess, Klivansky, and Crump. As a result of this investigation, Hess was charged with and

[ 100 Pa. Commw. Page 319]

    prosecuted for perjury. On January 19, 1981, the Lancaster County District Attorney's Office nol prossed the perjury charged against Hess. On January 14, 1983, Hess filed a complaint against the County of Lancaster, City of Lancaster, Crump, Detective Joseph Geesey, Randy Klivansky and Kathleen V. Mumma, alleging four separate causes of action: malicious prosecution (Count I), malicious abuse of process (Count II), false arrest (Count III), and intentional infliction of emotional distress (Count IV). Crump filed preliminary objections in the nature of a demurrer and on April 11, 1985, the trial court sustained the preliminary objections to Count I, reasoning that Hess had failed to set forth any factual allegations that Crump had initiated or procured the prosecution of Hess. The trial court then sustained Crump's preliminary objections to Counts II, III and IV, finding those actions barred by the applicable statutes of limitation found at 42 Pa. C.S. Section 5524. The court sustained the preliminary objections filed by the other defendants as to all Counts with the exception of the Count I claim against Detective Geesey. Although all those individuals named above are named in this appeal, Hess, in his brief, addresses only the trial court's ruling with respect to Crump and Count I -- malicious prosecution.*fn3

In ruling on preliminary objections, the court accepts as true all well-pleaded facts and inferences reasonably deducible therefrom, but not averments or conclusions of law. Moyer v. Davis, 67 Pa. Commonwealth Ct. 251, 446 A.2d 1855 (1982), aff'd, 501 Pa. 192, 460 A.2d 754 (1983).

[ 100 Pa. Commw. Page 320]

Appellee asks that we affirm the trial court inasmuch as it properly concluded that he, Crump, neither initiated nor procured the prosecution of Hess for perjury. In addition, Crump argues that since he did not participate in the filing of the charges and preparation of the complaint, and since Hess did not allege that Crump provided ...


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