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MARIO LUDMER v. MAURICE A. NERNBERG (02/03/89)

decided: February 3, 1989.

MARIO LUDMER, APPELLEE,
v.
MAURICE A. NERNBERG, JR., APPELLANT



Appeal from Order of Superior Court dated February 26, 1986, and April 29, 1986 (Reargument denied) At No. 1275 Pittsburgh 1984, which reversed the Order of the Court of Common Pleas of Allegheny County, Civil Division, dated September 20, 1984, at No. G.D. 84-11881. 355 Pa. Super. 639, 509 A.2d 1325 (1986).

COUNSEL

William R. Tighe, Tighe, Evan & Ehrman, Pittsburgh, Pennsylvania, for appellant.

Seymour A. Sikov, Sikov and Love, P.A., Jay N. Silberblatt, Pittsburgh, Pennsylvania, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, J., files a concurring opinion. Larsen, J., files a dissenting opinion.

Author: Zappala

[ 520 Pa. Page 219]

OPINION

We are called upon in this appeal to review the order and memorandum opinion of the Superior Court reversing the order of the Court of Common Pleas of Allegheny County which had granted the Appellant's preliminary objections. At issue here is whether the Wrongful Use of Civil Proceedings Act ("Act") as set forth in 42 Pa.C.S. ยงยง 8351-8354 is applicable to a complaint which was filed prior to the effective date of the Act, although not adjudicated until after the effective date of the Act. The critical facts are not in dispute. The Appellee, Mario Ludmer, is a medical doctor who was the treating physician for one of the Appellant's clients in a personal injury lawsuit. In preparation for the litigation, the Appellant, Maurice A. Nernberg, Jr., had requested that Dr. Ludmer prepare a written report of his examination and a diagnosis of the client's medical condition. Dr. Ludmer submitted a report and offered to testify at trial if necessary to clarify his position. During the personal injury trial, the defendant's wife became ill,

[ 520 Pa. Page 220]

    resulting in the plaintiff instructing Nernberg to negotiate a settlement rather than seeking a continuance.

After settling the personal injury action, the Appellant then commenced a lawsuit against the Appellee claiming that the Appellee did not properly cooperate with him in the preparation of the personal injury action and that he had interfered with the contractual relationship between the Appellant and his client. As a result of the Appellee's actions, the Appellant alleged that he was forced to settle the personal injury action for less money. Following the completion of the discovery, the Appellee filed a motion for summary judgment which was granted. On appeal the Superior Court affirmed and we denied allocatur. Nernberg v. Ludmer, 313 Pa. Super. 596, 460 A.2d 847 (1983).

The Appellee then commenced this present action seeking damages pursuant to the Act. The Appellant filed preliminary objections alleging that the Appellee had failed to allege an arrest or seizure of property which heretofore was a basic requirement of the existing common law necessary for recovery. Furthermore, the Appellant argued that the Act was inapplicable because his complaint against the Appellee was filed prior to the effective date of the Act. The trial court granted the preliminary objections and dismissed the Appellee's complaint. On appeal, the Superior Court reversed holding that the Appellee's cause of action did not accrue until he successfully defeated the Appellant and his complaint. 355 Pa. Super. 639, 509 A.2d 1325. At that time, the Act was applicable thereby giving the Appellee a proper cause of action. We granted the Appellant's Petition for Allowance of Appeal and now affirm.

The Appellant raises two issues for our review: whether the Superior Court has improperly applied the Act retroactively in this case, and assuming the Act was applicable, whether the Appellee set forth sufficient facts to support his cause of action.

Prior to February 19, 1981, the effective date of the Act, a person wronged by the initiation of a lawsuit could either allege a common law malicious use of process or an abuse

[ 520 Pa. Page 221]

    of process. Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.3d 413 (1943). To sustain a cause of action, a claimant was required to allege an arrest of the person or a seizure of property. Under the Act, the legislature specifically abrogated this requirement.

(b) Arrest or seizure of person or property not required. -- The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an ...


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