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March 11, 1997


The opinion of the court was delivered by: PADOVA

 Padova, J.

 March 11, 1997

 This lawsuit, brought in diversity, resulted from a prior suit in which Plaintiff, Patricia Mansmann ("Mansmann"), was a defendant, and Defendants Joan and Kenneth Tuman ("the Tumans") were plaintiffs who were represented by attorneys, Defendants Gary Ginsberg ("Ginsberg") and Joseph Rizzo ("Rizzo"). In that suit, the Tumans alleged that the defendants, while providing psychological counselling to their daughter, had implanted in her mind false memories of satanic rituals they her parents had supposedly performed and that they had encouraged their daughter to move to another state and cut off all communications with them. On April 25, 1996, an Order was entered in that case granting Patricia Mansmann's motion for summary judgment as to all counts. Tuman v. Genesis Assoc., 935 F. Supp. 1375 (E.D. Pa. 1996). Patricia Mansmann now sues the Tumans, Ginsberg, and Rizzo for damages allegedly resulting from that suit and other conduct in which they engaged while pursuing it.

 The four Defendants have filed three Motions to Dismiss the Amended Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). (The Tumans filed a single motion.) Because many of the issues and arguments in the three motions are essentially the same, they will be addressed together.


 The purpose of a Motion to Dismiss pursuant to Federal rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718 (E.D. Pa. 1994), aff'd, 72 F.3d 318 (3d Cir. 1995). A claim may be dismissed under Rule 12(b)(6) for failure to state a claim only if the plaintiff can prove no set of facts in support of the claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In considering such a motion, a court must accept all of the facts alleged in the complaint as true and must liberally construe the complaint in the light most favorable to the plaintiff. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). The question is not whether the plaintiff will ultimately prevail, but whether she is entitled to present evidence in support of her claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974)

 A federal court sitting in diversity applies the Federal Rules of Civil Procedure. Hanna v. Plumer, 380 U.S. 460, 473, 85 S. Ct. 1136, 1145, 14 L. Ed. 2d 8 (1965). Therefore, "Federal Rule of Civil Procedure 8(a), not Pennsylvania pleading law, governs the standard of specificity applicable to plaintiff's claim[s]." Lynch v. Borough of Ambler, 1995 U.S. Dist. LEXIS 3217, No. A. 94-6401, 1995 WL 113290, at *5 (E.D. Pa. March 15, 1995). Under Rule 8(a), the Amended Complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).



 The elements of a cause of action for wrongful use of civil proceedings under Pennsylvania law are as follows:

(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 [if]:
(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.

 42 Pa. Cons. Stat. Ann. § 8351 (1982) (West 1982), quoted in Hart v. O'Malley, 436 Pa. Super. 151, 160, 647 A.2d 542, 546-47 (1994), aff'd, 544 Pa. 315, 676 A.2d 222 (1996).

 1. The Attorneys

 In their Motions to Dismiss, the two attorneys, Ginsberg and Rizzo, make essentially the same arguments. I will therefore consider their motions together, relying primarily on Ginsberg's Memorandum. Ginsberg states that an important consideration in applying this statute to attorneys is that it not intimidate counsel in their zealous representation of their clients, thereby adversely affecting the adversarial system. (Ginsberg Mem. in Supp. ("Ginsberg Mem.") at 6.) For this reason, a plaintiff has a heavy burden in stating and sustaining a claim against an attorney for wrongful use of civil proceeding. (Id. at 7.)

 Ginsberg claims that the Amended Complaint fails to allege a cause of action against him for wrongful use of civil proceedings in two respects, either of which is sufficient reason to dismiss this count against him: it fails adequately to allege that he brought the prior action primarily for an improper purpose, and it fails adequately to allege that he lacked probable cause.

 Plaintiff makes the following allegations under Count One of her Amended Complaint:

20. Defendants failed to fully investigate the allegations of the claim against Plaintiff MANSMANN.
21. Defendants further failed to secure appropriate and adequate professional expert opinions regarding the allegations of the complaint prior to filing this action, and otherwise had no probable cause for bringing the action.
22. Moreover, based on evidence adduced during discovery it is clear the Complaint was filed with actual malice and without probable cause.
23. The Defendants violated 42 P.S.C. Section 8351 et seq. at the time of filing and further violated the provisions therein by continuing in spite of evidence making it clear that continuation was improper, and merely for purposes of harassment or to maliciously injure Plaintiff MANSMANN in her individual and professional capacity.

 (Am. Compl. PP 20-23.)

 a. Improper purpose

 Plaintiff alleges that defendants acted "with actual malice" and "merely for purposes of harassment or to maliciously injure" her in filing the underlying action against her. (Am. Compl. PP 22-23.) These allegation track the language of 42 Pa. Cons. Stat. Ann. §§ 8351 and 8352 (quoted supra and infra, n.2). Ginsberg argues that the allegations are conclusory and do not properly allege that the attorneys did not initiate the underlying suit "primarily for the purpose of aiding [their] client in obtaining a proper adjudication of [her] claim." 42 C.S.A. § 8351(a)(1); (Ginsberg Mem. at 8-10.) Ginsberg further notes that Plaintiff does not allege he brought the action knowing it to be invalid, but merely alleges that he did not investigate his client's claims properly or secure proper expert witnesses before filing the case on his clients' behalf. (Ginsberg Mem. at 8-10.) Ginsberg contends these allegations may be sufficient to sustain a claim of negligence, but not one of wrongful use of civil proceedings, and he notes that this case contrasts sharply with cases in which Pennsylvania appellate courts have either allowed claims for wrongful use of civil proceedings to go forward against attorneys or have affirmed judgments against them based on such claims because of an attorney's improper purpose. (Id. at 9-10 (citing Kelly-Springfield Tire Co. v. D'Ambro, 408 Pa. Super. 301, 596 A.2d 867 (1991) (holding that plaintiff stated a § 8351 claim in alleging that attorney, knowing his client had defaulted in real estate purchase agreement, acted to prevent vendors from selling to a third party and to force them to transfer property to client by subjecting property to encumbering litigation in state court and withdrawing that action and starting new action in federal court just before a hearing on the state court action)); Ludmer v. Nernberg, 433 Pa. Super. 316, 640 A.2d 939 (1994), appeal denied, 664 A.2d 542 (Pa. 1995), cert. denied, 116 S. Ct. 1849 (1996) (affirming verdict against an attorney who brought a suit unauthorized by his client against a doctor on a claim personal to the client)).

 I conclude that Plaintiff has not properly alleged that the attorneys acted with an improper motive in bringing the suit. Failing to investigate allegations fully and failing to secure appropriate expert opinions before filing a suit do not support an allegation of improper motive in filing it. Those tasks are frequently undertaken or completed after filing. Plaintiff alleges that the attorneys filed the law suit "with actual malice," and "merely for purposes of harassment or to maliciously injure her," but none of the facts she alleges in Count One support a claim of an improper motive. The allegations are insufficient to give notice to the attorneys as to what they allegedly did or didn't do to give rise to this claim of an improper motive.

 Plaintiff argues that she is alleging not just that the attorneys wrongfully initiated the underlying suit, but also that they wrongfully continued it "in spite of evidence making it clear that continuation was improper, and merely for purposes of harassment or to maliciously injure" her. (Am. Compl. P 23.) But here too, there is nothing in the Amended Complaint that elaborates on this point and no indication what this evidence might have been. Insufficient evidence to withstand a summary judgment motion is not in itself evidence of improper motive. I conclude the allegation that the attorneys continued the lawsuit merely to harass or maliciously to injure Plaintiff in spite of unspecified "evidence" fails to state a claim for the same reason that the allegation the attorneys initiated the law suit for an improper purpose fails: not enough is alleged to give the attorneys reasonable notice of what conduct gave rise to the claim, even under the very liberal standard of Federal Rule of Civil Procedure 8(a).

 b. Probable cause

 Ginsberg also argues that Plaintiff cannot make out the second element of the cause of action: probable cause. *fn1" But this element does not apply to an attorney unless he acted with an improper purpose. The Pennsylvania Superior Court has quoted the Restatement (Second) of Torts on this point:

An attorney who initiates a civil proceeding on behalf of his client[,] . . . even if he has no probable cause and is convinced that his client's claim is unfounded, . . . is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client's claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
If, however, the attorney acts without probable cause or belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.

 Hart v. O'Malley, 436 Pa. Super. at 167-68, 647 A.2d at 550 (quoting Restatement (Second) of Torts § 674 comment d (1977). Therefore, because I have concluded the Amended Complaint failed adequately to allege an improper motive on the part of the attorneys, the question of probable cause does not arise with respect to them. Nonetheless, I will address the question.

 In arguing this point, both sides rely on materials from the prior case that are not part of the pleadings. Federal Rule of Civil Procedure 12(c) states: "If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Because the parties have not had a reasonable opportunity to present all material made pertinent to these motions as summary judgment motions, I will not convert them, and I therefore cannot consider materials outside the pleadings.

 Considering only the Amended Complaint, the Plaintiff has failed adequately to allege that the attorneys lacked probable cause. She alleges a lack of probable cause in their filing the action without fully investigating the allegations against her and without securing adequate expert opinions on the allegations, but, as noted above, a completed investigation is not required or expected before filing. She alleges they had no probable cause to continue the lawsuit, based on evidence adduced during discovery, but gives no clue as to what the evidence was. Ginsberg cites as an example of a case in which the plaintiff adequately pled lack of probable cause Gentzler v. Atlee, 443 Pa. Super. 128, 660 A.2d 1378, appeal denied, 543 Pa. 694, 670 A.2d 142 (1995) (holding plaintiff stated a claim against attorney who, acting for client who was infected with HIV as a result of a blood transfusion, sued the cardiologist who had recommended the patient enter the hospital for tests when the attorney knew the cardiologist had not ordered the transfusion or participated in the tests or surgery and had no duty to obtain informed consent).

 2. The Tumans

 Under the Restatement (as quoted by the Pennsylvania Superior Court), litigants do not have the special protection against this claim that attorneys enjoy; however, Count One also fails to state a claim against the Tumans. This count is the first one in the Amended Complaint, and it contains only those allegations listed in the count and the prior allegations, which are incorporated by reference. The only substantive allegations are those quoted above, PP 20-23, which are directed mainly to the attorneys. The attorneys are the ones who had the responsibility for investigating the Tumans claims and for securing expert testimony. They also had the responsibility for deciding whether the case should be continued, based on "evidence adduced during discovery." (Am. Compl. P 22.) It is unclear what role Plaintiff assigns to the Tumans in this process other than alleging that they acted with malice and an intention to harass and maliciously to injure plaintiff, completely conclusory allegations in the language of the statute. If Plaintiff had alleged the Tumans had intentionally lied to their attorneys or withheld material information from them for the improper purpose of getting them to file a lawsuit the Tumans knew was not warranted, Plaintiff would have stated a claim against them for wrongful use of civil proceedings. As it is, she has failed to give them notice of what they did to warrant such a claim. As I stated elsewhere: "It is true that the Federal Rules of Civil Procedure contemplate a system of notice, rather than factual, pleading. Nonetheless, a modicum of factual pleading may be required to effectuate the purposes of notice pleading, i.e., giving the opposing party general knowledge of the conduct for which it must answer." Berger Bldg. Prod. Corp. v. American Protection Ins. Co., 1997 U.S. Dist. LEXIS 2525, No. 96-6959, slip op. at 3 (E.D. Pa. March 3, 1997). Therefore, I find that the Amended Complaint fails to state a claim against the Tumans for wrongful use of civil proceedings.


 The elements of a claim for defamation under Pennsylvania law are: (1) a defamatory communication; (2) pertaining to the plaintiff; (3) published by the defendant to a third party; (4) who understands the communication to have a defamatory meaning with respect to plaintiff; and (5) that resulted in plaintiff's injury. Petula v. Mellody, 138 Pa. Commw. 411, 588 A.2d 103 (1991); 42 Pa. Cons. Stat. Ann. § 8343 (1982).

 Defendants Rizzo and Ginsberg make two arguments in their Motions to Dismiss with respect to this count:

 1. The Attorneys

a. Failure to allege an element of ...

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