[together, "defendants"] Motion for Judgment on the Pleading's (Doc. No.
105), and DaimlerChrysler's Motion for Summary Judgment on the issue of
termination (Doc. No. 113). Because no genuine issue of material fact
exists regarding the issue of termination, this court finds as a matter
of law that the class action was terminated with respect to
DaimlerChrysler for the purposes of plaintiff's Dragonetti action.
Accordingly, plaintiff's motion for summary judgment on the issue of
termination will be granted and defendants' motion for judgment on the
pleadings will be denied.
The complaint contains the following allegations. In June 1999, the
lawyers filed a class action complaint ["Lipscomb"] against the class
action defendants in the Court of Common Pleas of Philadelphia County on
behalf of the class representative and all others similarly situated.
See Compl. (Doc. No. 1) at ¶ 11. At its core, the Lipscomb complaint
claimed that the seat recliner mechanisms were defective in certain
vehicles manufactured by the class action defendants. See id. The
Lipscomb complaint contained seven counts but failed to allege that the
class representative owned a DaimlerChrysler vehicle with an allegedly
defective mechanism, had any contact with DaimlerChrysler, or suffered
any damages that were caused by DaimlerChrysler. See id. at ¶ 13.
Indeed, the class representative had never owned a DaimlerChrysler car
with an allegedly defective mechanism. See id.
Regarding the termination issue, the following material facts are not
disputed. On October 20, 1999, the state court held a hearing in the
Lipscomb matter. See DaimlerChrysler Corp.'s App. of Exs. to Mot. for
Summ. J. at Ex. F. At this hearing, the Lipscomb plaintiff's counsel
requested "leave to file an amended complaint which would address the
issue of standing of the representative plaintiffs which was brought up
by defense counsel when we were here last before Your Honor." Id. Ex. F.
at 2-3. Plaintiff's counsel then conceded that at that time, there were
no representative class plaintiffs who owned vehicles manufactured by
either DaimlerChrysler or Ford. See id. Ex. F at 3. The representative
plaintiff, Brian Lipscomb, owned a General Motors vehicle, a Geo Prism.
See id. Ex. F at 4. As such, plaintiff's counsel requested "leave to file
an amended complaint with respect to only the General Motors and perhaps
the Saturn defendant, but not naming the other two defendants
[DaimlerChrysler and Ford] as parties to the case." Id. Ex. F at 3.
Counsel for both Ford and DaimlerChrysler then moved to dismiss the
complaint "as it stands" with prejudice. See id. Ex. F at 3-4. The court
stated that it intended to "dismiss as to both of those defendants with
prejudice as to Mr. Lipscomb, not to anyone else who would therefore have
a right to file a suit if they owned the appropriate vehicle. And I will
grant you leave to file an amended complaint." Id. Ex. F at 4. Pursuant
to the hearing, the court issued the following order:
AND NOW, this 20th day of October, 1999, it is hereby
ORDERED that the claim brought by Brian Lipscomb,
individually, is dismissed as to Ford Motor Company
and DaimlerChrysler Corporation with prejudice.
Further, Plaintiff is hereby given leave to file an
Id. at Ex. G. Finally, at the end of that hearing plaintiff's counsel
sought to clarify that the court had not ruled on the conspiracy claim.
See id. Ex. F at 6. The court responded, "In reality it has not in this
case," and later stated that, "I am not ruling on that particular issue
at the moment
and it could be raised at a subsequent time." Id.
On December 6, 1999, Lipscomb's counsel filed a First Amended Class
Action Complaint wherein plaintiff named only General Motors as a
defendant. See id. at Ex. H. Moreover, the amended complaint did not
include the conspiracy count that was alleged in the original complaint.
See generally id.
On April 19, 2000, the class action plaintiff moved the state court to
vacate its October 20, 1999 order, or alternatively to modify the order
so that the dismissal of DaimlerChrysler and Ford is "without prejudice."
See id. at Ex. I. On May 4, 2000, the court denied this motion. See id.
at Ex. J.
In the instant case, in the context of a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, this court considered whether
DaimlerChrysler stated sufficiently a Dragonetti claim. See
DaimlerChrysler Corp. v. Askinazi, No. 99-5581, 2000 WL 876587, at *3-5
(E.D.Pa. June 29, 2000). The court found that "Pennsylvania law dictates
that the Order of October 20, 1999, terminated not only the class
representative's individual claims against DaimlerChrysler but also the
class claims of DaimlerChrysler vehicle owners against DaimlerChrysler."
Id. at *4. The court, not made aware of the First Amended Complaint filed
in Lipscomb on December 6, 1999, did not decide conclusively whether the
October 20, 1999 Order addressed the issue whether the conspiracy count
claim was likewise dismissed against DaimlerChrysler. See id. at *5. The
court reasoned that discovery or a further order by the Philadelphia
Court of Common pleas might clarify that issue.
• Standard of Review
Either party to a lawsuit may file a motion for summary judgment, and
it will be granted "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing
that there is no genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Where the movant bears the burden of
persuasion at trial, the movant satisfies this initial burden by
"identifying [the evidence] which it believes demonstrate[s] the absence
of a genuine issue of material fact." Id. at 323. Where the nonmovant
bears the burden of persuasion at trial, the moving party may meet its
initial burden and shift the burden of production to the nonmoving party
"by `showing' — that is, pointing out to the district court
— that there is an absence of evidence to support the nonmoving
party's case." Id. at 325. Thus, summary judgment will be entered "against
a party who fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that party
will bear the burden of proof at trial." Id. at 322.
When a court evaluates a motion for summary judgment, "[t]he evidence
of the non-movant is to be believed." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Additionally, "all justifiable inferences are
to be drawn in [the non-movant's] favor." Id. At the same time, "an
inference based upon a speculation or conjecture does not create a
material factual dispute sufficient to defeat entry of summary judgment."
Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir.
1990). The nonmovant must show more than "[t]he mere existence
scintilla of evidence" for elements on which he bears the burden of
production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as
a whole could not lead a rational trier of fact to find for the
non-moving party, there is no `genuine issue for trial.'" Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
Pennsylvania has codified the tort of malicious use of process at 42
Pa. C.S. §§ 8351-8354 ("Dragonetti Act"). In order to recover under
this statutory cause for wrongful use of civil proceedings, "three
essential elements must be proved: `(1) that the underlying proceedings
terminated favorably to the [plaintiff]; (2) that the defendant caused
those proceedings to be instituted without probable cause; and (3)
malice.'" Shaffer v. Stewart, 473 A.2d 1017, 1020 (Pa.Super.Ct. 1984)
(citation omitted). Moreover, in construing the provisions of the
Dragonetti Act, Pennsylvania follows the Restatement (Second) of Torts
§§ 673, 674 (1977). See Dravo Corp. v. Ioli, 584 A.2d 1011, 1013
(Pa.Super.Ct. 1991) (citing Restatement (Torts) § 673, comment d);
Georgiana v. United Mine Workers of Am., 572 A.2d 232, 234 (Pa.Super.Ct.
1990) (Pennsylvania's wrongful use of civil proceedings statute is in
conformity with the Restatement (Second) of Torts § 674) (citations
omitted); Shaffer, 473 A.2d at 1020 (same). In the context of a motion
for summary judgment on the issue of favorable termination, the Supreme
Court of Pennsylvania has advised:
`[U]pon the issue  of favorable termination . . .
the jury has only the function of finding the
circumstances under which the defendant acted. The
court determines whether, under those circumstances,
the termination was sufficiently favorable to the
accused. . . . Where there is no conflict in the
testimony as to what the circumstances were, the court
has no need for a finding of the jury. The jury is not
called upon to act unless there is a conflict in the
testimony which presents an issue for its
Miller v. Pennsylvania R. Co., 89 A.2d 809, 315-16 (Pa. 1952) (construing
the tort of malicious use of process and citing the Restatement (Second)
of Torts § 673, comment d); see also Dravo Corp., 584 A.2d at 1013
(following Miller v. Pennsylvania R. Co. in determining whether summary
judgment should have been granted on the favorable termination element of
a Dragonetti claim).