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LESSARD v. JERSEY SHORE STATE BANK

April 12, 1988

Paula M. Lessard, Plaintiff,
v.
Jersey Shore State Bank, et al., Defendants


Edwin M. Kosik, United States District Judge.


The opinion of the court was delivered by: KOSIK

EDWIN M. KOSIK, UNITED STATES DISTRICT JUDGE.

 Plaintiff, Paula M. Lessard, instituted the instant action on March 31, 1987. The basis of the action arises out of the formation and subsequent attempted dissolution of a corporation. On May 14, 1987 a motion to dismiss the complaint was filed by defendants, Rieders, Travis, Mussina, Humphrey & Harris, and Malcolm S. Mussina. On that date, a motion to dismiss, to strike or for a more definite statement was filed by defendants Thomas and Kyle Keivit. A motion of defendants Thomas and Kyle Keivit to dismiss the cross-claim of defendant Jersey Shore State Bank was filed on June 19, 1987. The appropriate briefs were filed by the parties and the matter is now ripe for disposition.

 I.

 
Defendants Rieders, Travis, Mussina, Humphrey & Harris and Malcolm S. Mussina motion to dismiss Count V of plaintiff's complaint.

 On May 14, 1987 defendants Rieders, Travis, Mussina, Humphrey & Harris and Malcolm S. Mussina *fn1" filed a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). The defendants assert that the only cause of action asserted against them is Count V, proceedings under 42 Pa. C.S.A. § 8351 and/or for abuse of process and that the complaint fails to state a cause of action.

 The standard to be applied by this court in considering a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is clear. When a motion to dismiss is filed the court must accept the allegations in the plaintiff's complaint as true. Hishon v. King & Spalding, 467 U.S. 69, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). Moreover, we can dismiss a complaint pursuant to Rule 12(b)(6) only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id.

 42 Pa. C.S.A. § 8351 provides in pertinent part:

 
(a) Elements of action. - A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
 
[1] He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
 
[2] The proceedings have terminated in favor of the person against whom they are brought.

 Defendants assert that plaintiff cannot establish all of the required elements of a cause of action under 42 Pa. C.S.A. § 8351. Specifically, defendants argue that [1] plaintiff has no standing to maintain a 42 Pa. C.S.A. § 8351 claim against the defendants because she was not a party to the underlying state court proceeding; [2] plaintiff cannot prove that the proceeding in the state court "terminated in favor of the person against whom they were brought" since the temporary injunction was dissolved at the request of counsel for the Keivits when the reasons for the institution of the injunction became moot; and [3] that the allegations of plaintiff's complaint establish that the primary purpose of the emergency petition was to establish the Keivits' right to possession of the premises, which was an entirely proper use of legal process. Attached to defendants' motion and briefs are documents from the state court proceeding which form the underlying basis of plaintiff's claim. Defendants 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. *fn2" 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. *fn3" 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 ...


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