The opinion of the court was delivered by: BRODY
Plaintiffs, Henry and Donna Miniscalco and Miniscalco Corporation, brought this action claiming deprivation of their civil rights in violation of 42 U.S.C. § 1983, intentional infliction emotional distress, and abuse of process. Defendant Conrad H. Gordon has filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For reasons that follow, I will grant Gordon's motion in part and deny it in part. The other two defendants, James B. Speers and Bridgeport Materials, Inc. ("Bridgeport"), have also filed a motion to dismiss. Their motion will be addressed separately at a later date.
Plaintiffs' complaint alleges the following: In April of 1994, Bridgeport, acting through its officer and agent, James B. Speers, filed a civil complaint against "Henry Miniscalco, Individually DBA Petroleum Technologies" in Montgomery County, Pennsylvania. (Complaint at P 10, emphasis added.) At a hearing on the complaint, the state court district justice, acting sua sponte, amended the designation of the defendant to read "H. Miniscalco Inc., DBA Petroleum Technologies." (Complaint at P 11, emphasis added.) On or about November 4, 1994, he signed an Order of Execution against "H. Miniscalco, Inc. DBA Petroleum Tec" and gave it to defendant Conrad H. Gordon, a constable of the Commonwealth of Pennsylvania, for service and levy. (Complaint at P 12, emphasis added.) Gordon, acting for or on behalf of the other defendants, altered the document or caused it to be altered so that it appeared to be issued against "H. Miniscalco, IND, DBA Petroleum Tec." He then purported to levy upon and seize personal property belonging to the individual plaintiffs and posted notices of levy and sale. (Complaint at PP 13-14.)
Plaintiffs list four causes of action in the complaint. In the first, the two individual plaintiffs claim a violation of their civil rights pursuant to 42 U.S.C. § 1983. In the second, the corporate plaintiff claims a violation of its civil rights pursuant to 42 U.S.C. § 1983. In the third, the individual plaintiffs claim intentional infliction of emotional distress under the common law of Pennsylvania. In the fourth, all the plaintiffs claim abuse of process under the common law of Pennsylvania.
In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the defendant has the burden of showing that no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991). In deciding whether to grant the motion, I must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The issue in a 12(b)(6) motion is not whether the plaintiffs will ultimately prevail, but rather whether they would be entitled to relief under any set of facts consistent with the claims set forth in the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).
B. The Corporate Plaintiff
The complaint alleges nothing suggesting that the corporate plaintiff, Miniscalco Corporation, suffered any actual damage or legal wrong as a result of defendants' alleged misdeeds. While the complaint alleges in conclusory terms that the corporate defendant suffered a deprivation of its constitutional rights and was required to spend substantial sums of money to defend itself and its property, the facts of the complaint do not support these allegations. The claims of the corporate plaintiff will therefore be dismissed without prejudice.
C. Intentional Infliction of Emotional Distress
The United States Court of Appeals for the Third Circuit has predicted that the Pennsylvania Supreme Court will recognize the tort of intentional infliction of emotional distress. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 85 (3d Cir. 1987). While the Supreme Court of Pennsylvania has not yet formally recognized the tort,
the Pennsylvania Superior Court has adopted Section 46 of the ...