request the court to take judicial notice of these documents. Plaintiff objects to defendants' request arguing that the court is precluded from considering these documents in ruling on the motion to dismiss.
We believe that it is appropriate for this court to consider in ruling on the instant motion to dismiss matters contained in the state court action which form the basis of plaintiff's claim and which is referred to in plaintiff's complaint.
The only way for this court to determine whether plaintiff could establish a § 8351 cause of action under any set of circumstances is to consider the pleadings and orders which were entered in the state court proceeding and which were attached as exhibits to defendants' motion to dismiss.
See Pintozzi v. Scott, 436 F.2d 375 (7th Cir. 1970); Iacaponi v. New Amsterdam Casualty Co., 379 F.2d 311 (3d Cir. 1967).
A review of the state court documents indicates that on September 9, 1986 an "Emergency Petition" was filed in the Court of Common Pleas of Lycoming County in the name of QRP, Inc. All allegations in the petition were directed toward the conduct of plaintiff's father Paul Lessard and his operation of QRP, Inc. The allegations set forth in plaintiff's complaint in the instant action also affirm this fact.
Plaintiff argues that while the petition as filed did not refer to the instant plaintiff, Paula Lessard by name, the relief sought also affected the interests of Paula Lessard and, as such, she has standing to bring a claim under 42 Pa. C.S.A. § 8351. Plaintiff cites no case law in support of this proposition.
Defendants argue that the clear language of 42 Pa. C.S.A. § 8351 provides a cause of action only for persons who were parties to the prior civil proceeding and that Paula Lessard was not a party to the state court action. Defendants cite Mintz v. Bur, 6 Pa. D. & C. 3d 779 (Montgomery County 1977), aff'd per curiam, 257 Pa. Super. 641, 390 A.2d 311 (1978).
After reviewing the documents surrounding the Lycoming County action in conjunction with the language of the statute, we agree with the defendants that Paula Lessard, the plaintiff herein, was not a party to the underlying state court action. Thus, she lacks the requisite standing and cannot set forth a cause of action under 42 Pa. C.S.A. § 8351.
However, even assuming arguendo that plaintiff's interest in QRP, Inc. gave her the requisite standing to bring an action under 42 Pa. C.S.A. § 8351, we believe that the motion to dismiss should be granted because plaintiff cannot meet a second element in the statute, namely, establishing that the underlying state court action terminated in her favor. On September 9, 1986, defendants filed an emergency petition in the Court of Common Pleas of Lycoming County.
In the petition, defendants requested possession of the QRP premises be granted to Kyle Keivit. This relief was partially granted by the court in that the court granted equal access and possession of the QRP premises to Thomas and Kyle Keivit and to plaintiff's father pending a hearing set for September 11, 1986.
At the hearing on September 12, 1986, the defendant asserted that based on the understanding that Paul Lessard was not interested in returning to QRP, the defendant requested the court to dissolve the injunction as moot. While an objection was made to any dismissal, the court determined that the only issue before it at the time was whether the preliminary injunction issued on September 9, 1986 should be continued, dissolved or modified.
The court upon petitioner's motion issued an order dissolving the preliminary injunction.
In addressing the favorable termination requirement, plaintiff relies heavily upon the case of Robinson v. Robinson, 362 Pa. Super. 568, 525 A.2d 367 (1987). While we agree with plaintiff that Robinson does not require favorable termination based upon the merits, we do not believe that plaintiff has met the favorable termination requirement to bring an action under 42 Pa. C.S.A. § 8351.
As pointed out above, defendants' emergency petition requested possession of the QRP premises be granted to Kyle Keivit. This relief was partially granted by the court in that the court granted equal access to the premises to the Keivits and plaintiff's father pending a hearing. At that hearing, after the defendants asserted an understanding that plaintiff's father, Paul Lessard, was not interested in returning to QRP, the defendant requested the court to dissolve the injunction as moot. The court issued an order dissolving the preliminary injunction.
We cannot find that the dissolution of the preliminary injunction upon motion is sufficient to constitute favorable termination on behalf of the instant plaintiff.
Count V of plaintiff's complaint also raises a claim for abuse of process. Abuse of process occurs when the legal process is utilized for some unlawful purpose, and not for which it was intended. Dietrich Industries, Inc. v. Abrams, 309 Pa. Super. 202, 455 A.2d 119 (1982). To state a cause of action for abuse of process under Pennsylvania law, a plaintiff must allege an arrest or seizure of his property through the use of legal process for a purpose other than that for which it is designed. Denenberg v. Am. Family Corp. of Columbus, Ga., 566 F. Supp. 1242 (E.D. Pa. 1983).
In applying the law to the facts of this case, this court cannot find that plaintiff can establish a valid claim for abuse of process. Defendants' filing of the emergency petition for possession of the QRP premises and the court's granting of a preliminary injunction giving the defendant Keivits and plaintiff's father equal access and possession of the QRP premises, was the use of legal process for the purpose for which it was intended. Further, we again note that the emergency petition was directed toward plaintiff's father, who was given equal access and possession of the QRP premises. Thus, plaintiff did not even indirectly suffer a seizure of her property. Accordingly, we will grant defendants' motion to dismiss Count V of plaintiff's complaint as it applies to them.
Motion to dismiss, to strike or for a more definite statement of defendants Thomas and Kyle Keivit.