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MARY JANE MCGEE v. EDWARD H. FEEGE (12/28/87)

decided: December 28, 1987.

MARY JANE MCGEE, APPELLANT,
v.
EDWARD H. FEEGE, HAYES & FEEGE, P.C., CHARLES W. CRAVEN, FRANCIS E. MARSHALL, ANTHONY P. TINARI, MARSHALL, DENNEHEY & WARNER, TRAVELERS INSURANCE COMPANY AND HARRY C. SHAYHORN, APPELLEES



Appeal from Order Entered June 9, 1986 in the Superior Court, No. 804 Phila. 1985, Affirming the order Entered February 26, 1985 in the Court of Common Pleas, Montgomery County, Civil Action Law, at No. 79-20168. Pa. Super , Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.

Author: Larsen

[ 517 Pa. Page 248]

OPINION OF THE COURT

The principal issues raised in this appeal are: (1) whether a seizure or deprivation of property is an essential element of the tort of abuse of process, and (2) if a seizure or deprivation of property is necessary, are the facts in this case sufficient to establish such a seizure or deprivation of the property of the appellant, Mary Jane McGee. The Court of Common Pleas of Montgomery County, in granting appellees' Motion for Summary Judgment, held that, at the time the cause of action arose in this case, seizure of property was an indispensable element of an action for abuse of process. Further, the lower court held that on the facts alleged, there was no seizure or deprivation of appellant's property to sustain an action for abuse of process. The Superior Court affirmed, holding that for the appellant to prevail "she must establish that she was deprived of her property or was arrested."*fn1 We disagree and now reverse.

The genesis of this action was the protracted and bitterly fought workmen's compensation case appellant, Mary Jane McGee, successfully prosecuted against her employer L.F. Grammes & Sons, Inc. On August 28, 1968 the appellant sustained a work related injury to her right thumb while she was working as a welder in the employ of L.F. Grammes & Sons, Inc. Shortly after she suffered the

[ 517 Pa. Page 249]

    injury, appellant and her employer entered into an agreement for compensation at the rate of $60.00 per week. The compensation agreed to was payable for an indefinite period commencing September 4, 1968.

In July of 1970, appellant's employer filed a petition for termination of the Compensation Agreement on the grounds that appellant had recovered and was able to return to work as of November 26, 1968. The employer's Petition to Terminate was denied by the Referee and the employer appealed to the Workmen's Compensation Appeal Board (Board). After reviewing the record, the Board remanded the case for a physical examination of the appellant by an impartial physician.

Following appellant's examination by an independent doctor, the case came up for hearing before a new referee. That referee, after hearing the testimony of the impartial physician, entered an order suspending the agreement for compensation. On appeal, the Board affirmed the suspension of compensation, and the Commonwealth Court affirmed the order of the Board. We granted allocatur and held that based upon the record, the employer had failed to satisfy its burden of proof in that the evidence did not show either that appellant's disability had ceased or that her continued disability was the result of an independent action. McGee v. L.F. Grammes & Sons, Inc., 477 Pa. 143, 383 A.2d 864 (1978). We reversed the order of the Commonwealth Court that affirmed the order of suspension and remanded the case to the Board. Upon remand, the Board, on July 13, 1978, set aside the suspension order of the referee and ordered that compensation be reinstated at the rate of $85.51 a week. No appeal was taken from this order of the Board and, after the appeal period passed, it became final.

Despite the finality of the Board's order for payment of compensation at $85.51 a week, the appellant's employer through the appellees*fn2 in this case participated in the

[ 517 Pa. Page 250]

    initiation and pursuit of a series of frivolous and meritless legal maneuvers designed to delay and frustrate payment to the appellant. Those maneuvers included, inter alia, filing of the following: a Petition for Rehearing; a Petition to Amend Termination Petition; an Amended Petition for Review; Petitions for Stay; Petitions for Supersedeas; Petitions to Open and Strike Judgment; a Motion for a Hearing,*fn3 and an Answer and New Matter in response to appellant's Petition to Enforce Judgment.

On March 23, 1979, after considering the appellant's petition to enforce judgment and the answer and new matter filed thereto, this Court entered an order as follows:

We now grant the petition to enforce judgment and direct that the July 13, 1978 Order of the Workman's Compensation Board be complied with forthwith. All other proceedings conflicting with this order are hereby dismissed.

In spite of this Court's Order of March 23, 1979 as quoted above, the employer continued to resist payment of the compensation due appellant. The employer, by and through the appellees, filed in this Court an Application for Reargument and a Motion for a Stay of Proceedings. In addition, Motions to Reconsider the Dismissal of the Petitions to Open and/or Strike ...


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