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ZAPPALA v. HUB FOODS

April 18, 1988

Richard Zappala and Ronald A. Rosenfeld, trading as First City Rochester Associates, Plaintiffs,
v.
Hub Foods, Inc., Michael P. Ondrusek, Jr., Amelia A. Ondrusek, Mark Ondrusek, Wetterau Incorporated, and Wetterau Finance Company, Defendants



The opinion of the court was delivered by: COHILL, JR.

 COHILL, Chief Judge

 The plaintiffs in the above-captioned action, Richard A. Zappala and Ronald A. Rosenfeld, trading as First City Rochester Associates (collectively referred to as "First City"), have filed (1) a Motion to Dismiss Counterclaim of Defendants Hub Foods, Inc., Michael P. Ondrusek, Jr., and Mark Ondrusek (collectively "Hub Foods") and to Strike Affirmative Defense of Statute of Limitations, and (2) a Motion to Dismiss Counterclaim of Defendants Wetterau Incorporated and Wetterau Finance Company (collectively "Wetterau") and to Strike Affirmative Defense of Statute of Limitations. For the reasons set forth below, we will grant First City's motions to dismiss the counterclaims and will deny First City's motions to dismiss the statute of limitations defenses.

 I. BACKGROUND

 Hub Foods, one of the defendants, subleases a building in the Kaufmann Rochester Shopping Center, Rochester, Beaver County, Pennsylvania, and operates a Foodland grocery store in it. The building, and the entire shopping center in which it is located, is owned by plaintiff First City. The lease under which Hub Foods occupies the building contains a restrictive covenant preventing First City from permitting another grocery store to operate on the shopping center property. First City has leased approximately one half of the shopping center to Giant Eagle, Inc. for use as a grocery store. The Giant Eagle store is scheduled to open in May, 1988.

 Hub Foods then sued its sublessor, Wetterau Finance Company in the Court of Common Pleas of Beaver County at No. 1175-1987 seeking to force it to enforce the covenant in their lease with First City. Wetterau Finance joined First City and Giant Eagle as additional defendants. A hearing has been scheduled for April 26, 1988, on Hub Foods' and Wetterau's motions for injunctive relief.

 First City filed a Complaint in this court on January 13, 1988, alleging that Hub Foods and Wetterau violated Section 1 of the Sherman Act, 15 U.S.C. § 1, by combining and conspiring among themselves and with others in refusing to establish a super grocery store at First City's shopping center in Beaver County, Pennsylvania, and by combining and conspiring to prevent others from establishing a super grocery store in the shopping center.

 In response to the Complaint, Hub Foods and Wetterau both filed an Answer and Counterclaim. The counterclaims allege that First City's conduct in filing the Complaint in this Court constitutes an abuse of process. First City responded by filing motions to dismiss the defendants' counterclaims and motions to strike the defendants' statute of limitations defenses.

 II. MOTIONS TO DISMISS COUNTERCLAIMS

 In both motions to dismiss, First City argues that Hub Foods' and Wetterau's abuse of process counterclaim must be dismissed since neither defendant has properly pled such cause of action.

 At the outset, we note that Pennsylvania law governs. Choice of law rules of the forum state are applied to determine which state's law governs a counterclaim. Klaxon Co. v. Stentor Elec. Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). Under the flexible contacts/interest analysis adopted in Pennsylvania in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the substantive law of Pennsylvania would govern in determining the counterclaim since the plaintiff is a resident of Pennsylvania, the action involves contracts entered into in Pennsylvania, and no other state appears to have a dominant interest in the events at issue.

 Pennsylvania recognizes two separate and distinct forms of civil tort actions to recover for damages incurred as the result of another's misuse of legal processes. One action is for abuse of process. The gist of an abuse of process claim is the improper use of process after it has been issued; where a "party employs it for some unlawful object not the proper purpose which it is intended by the law to effect." McGee v. Feege, 517 Pa. 247, , 535 A.2d 1020, 1023 (1987) (citing Publix Drug Company v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413 (1943)). A seizure of property is not an element to an abuse of process claim Id. at 1026. Typical forms of abuse of process include extortion by means of attachment, execution or garnishment, and blackmail by means of arrest or criminal prosecution. W. Prosser & W. Keeton, Prosser and Keeton on Torts § 121 (5th ed. 1984).

 Distinct from an abuse of process claim is a claim for malicious use of process, i.e. the wrongful initiation of a legal proceeding. While this form of action was originally founded on the common law, the Pennsylvania legislature codified it in 1980 in the Dragonetti Act. 42 Pa.C.S. § 8351-54. See Denenberg v. AM Family Corp. of Columbus, Ga., 566 F. Supp. 1242, 1247 n.4 (E.D. Pa. ...


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