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CAPLAN v. FELLHEIMER

April 28, 1995

MAIA CAPLAN
v.
FELLHEIMER EICHEN KASKEY & BRAVERMAN and DAVID BRAVERMAN



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 Plaintiff has moved this Court to dismiss Defendants' counterclaims against her. Plaintiff brought charges to the EEOC against David Braverman and her former employer, the law firm of Fellheimer Eichen Kaskey & Braverman, and has now brought this action against the Defendants alleging Title VII violations and other torts. Defendants asserted three counterclaims against Plaintiff. Braverman brought one count of malicious abuse of prosecution against Caplan, as did the law firm, in a second count. The third count is a joint claim of civil conspiracy to maliciously abuse process. Caplan now seeks, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss those counterclaims.

 In considering a 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).

 In ruling upon such a motion, the Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 In Pennsylvania, abuse of process is defined as "the improper use of process after it has been issued, that is, a perversion of it." McGee v. Feege, 517 Pa. 247, 253, 535 A.2d 1020, 1023 (1987) (quoting Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413 (1943)). The elements of this cause of action are "(1) an ulterior motive on the part of the alleged abuser and (2) the use of judicial process for a purpose other than that for which it is designed." Total Care Sys. Inc. v. Coons, 860 F. Supp. 236, 242 (E.D. Pa. 1994) (quoting Gilbert v. Feld, 788 F. Supp. 854, 861 (E.D. Pa. 1992)).

 An abuse of process claim must be distinguished from the claim of malicious prosecution. "Whereas a malicious prosecution claim depends upon the wrongful initiation of a meritless suit, 'abuse of process is concerned with a perversion of [legal] process after it is issued.'" Gilbert, 842 F. Supp. at 820 (quoting McGee, 535 A.2d at 1023). *fn1"

 Defendants make the following allegations in their counterclaims for abuse of process:

 (1) Plaintiff "filed an amended charge with the EEOC, naming FEB&K and Mr. Braverman individually." Answer at P 85.

 (2) Plaintiff's "filing of a baseless amended charge with the EEOC against David Braverman was done as a pretext to leverage certain financial demands upon Mr. Braverman and FEB&K." Id. at P 86.

 (3) Plaintiff "has manipulated the legal process in filing and serving baseless charges with the EEOC, for the sole purpose of extortion, a purpose other than that for which it was designed." Id. at P 87.

 (4) Plaintiff's "action in filing a baseless EEOC charge and amended charge against FEB&K was taken as a pretext to leverage certain demands upon FEB&K." Id. at P 94.

 (5) Plaintiff "has manipulated the legal process in filing and serving baseless charges for the sole purpose of extortion, a purpose other than that for which it was designed." Id. at P 95.

 Defendants argue that they have adequately pleaded abuse of process because they allege that the EEOC claim was filed for the purpose of extortion, publicity, and the soiling of Defendants' reputations. In fact, a "classic example of abuse of process claim is '"one of some form of extortion, using the process to put pressure upon the other to compel him to pay a different debt or to take some other action or refrain from it."'" Id. (citations omitted). Typically, however, this is done "by means of attachment, execution or garnishment, and blackmail by means of arrest or criminal prosecution," not simply by bringing ...


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