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April 5, 2001


The opinion of the court was delivered by: William H. Yohn, Jr.


Plaintiff DaimlerChrysler Corp. ["DaimlerChrysler"] filed a claim for wrongful use of civil proceedings under 42 Pa. Cons. Stat. § 8351 ["Dragonetti action"] against defendants William Askinazi and Greitzer & Locks ["G&L"] [collectively, "the lawyers"], as well as defendant Brian Lipscomb ["class representative"]. DaimlerChrysler's suit stems from a class action in which DaimlerChrysler, Ford Motor Co., General Motors Corp., and Saturn Corp. ["class action defendants"] were named as defendants. This class action was filed by the lawyers on behalf of the class representative and all others similarly situated. Pending before the court are Greitzer & Locks, William F. Askinazi and Brian Lipscomb's [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.

I. Background

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 amended complaint.

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 of a 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 ...

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