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August 29, 2005.

DANIEL R. FINNEY, Plaintiff,

The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge


Factual Background and Procedure

Before the Court are separate motions for summary judgment filed by defendants Royal Sun Alliance Insurance Company ("Royal") and Patrick J. Loughney, Esquire. After careful consideration of the motions for summary judgment and plaintiff Daniel R. Finney's responses, the memoranda of law in support and in opposition, and the voluminous materials produced by the parties in support and in opposition, the Court will grant summary judgment for defendants.

  This Court withdrew the automatic reference to Bankruptcy Court on October 21, 2004 of Plaintiff/debtor's amended adversary complaint stating claims under Pennsylvania's Dragonetti Act, 42 Pa.C.S. § 8351, "Wrongful use of civil proceedings" against Royal (Count I) and Loughney (Count II), and for common law abuse of process against both defendants (Count III). The Second Amended Complaint sets forth the following.

  On June 1, 2000, a fire destroyed Daniel Finney's house and barn in Elizabeth Pennsylvania. Finney had a policy of homeowner's insurance with Royal for over one million dollars, including personal property coverage, and he made a claim immediately after the fire. Mr. Finney, a general contractor by trade, had a $410,000 mortgage on the property, which he had taken out in March 2000 to pay for his home remodeling project, which he had just completed.

  On advice of counsel, Dennis Spyra, Esquire, plaintiff did not make his mortgage payments while the claim was being investigated, and declared bankruptcy given the impending mortgage foreclosure on September 13, 2000. Eventually, on March 23, 2001, Royal paid off the mortgage, but refused to pay anything else on plaintiff's claim. Royal's investigation indicated the June 1st fire had been intentional, and that plaintiff had made a claim against another insurance company in November 1996 for a fire at his previous residence that Royal learned had been caused by arson. Plaintiff did not disclose that previous claim on his application for insurance with Royal, and defendants deemed that to be fraud in the application.

  Attorney Spyra filed an adversary action in the bankruptcy proceeding against Royal for breach of contract and bad faith under Pennsylvania's insurance bad faith statute, 42 Pa.C.S. § 8371, and another member of this Court granted Royal's motion to withdraw the automatic reference on January 17, 2001. Finney v. Royal Sun Alliance Insurance Company, Civil Action No. 01-120. Defendant Loughney drafted and filed a counterclaim on Royal's behalf, asserting that plaintiff had committed fraud in his application for insurance and had caused the fire intentionally, and seeking costs and expenses, including refund of the payments it already had made.

  A jury in a trial before Chief Judge Donetta Ambrose of this Court found on April 12, 2002 that defendant had breached its contractual obligations to plaintiff by refusing to pay additional amounts on the claim, and awarded damages in the amount of $147,225.54 (as modified by the Court which added prejudgment interest in the amount of $38,584.08). The jury returned a verdict for Royal on the bad faith claim, however, and for plaintiff on Royal's counterclaim.

  Plaintiff alleges in his Second Amended Complaint that Royal and attorney Loughney acted without probable cause and for an improper motive in filing and prosecuting the counterclaim alleging he committed arson and fraud, primarily for the purpose of "coercing, intimidating and dissuading Mr. Finney from pursuing his claim against Royal thereby saving a substantial amount of money by not paying the claim." Second Amended Complaint at ¶ 38. Both defendants filed motions for summary judgment asserting that the record evidence shows as a matter of law that there was probable cause to file their ultimately unsuccessful counterclaim and that they acted for legitimate business and strategic reasons, and that plaintiff has not produced sufficient contradictory evidence to support his claims. The Court agrees and will grant summary judgment for defendants.

  Summary Judgment Standards

  Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "`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."Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir. 2001) (citations omitted). An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A factual dispute is material if it `bear[s] on an essential element of the plaintiff's claim,' and is genuine if `a reasonable jury could find in favor of the nonmoving party.'" Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201, 210 (3d Cir. 2002) (quoting Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)) (alteration in original). "The substantive law governing the dispute will determine which facts are material, and only disputes over those facts `that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" DeHart v. Horn, 390 F.3d 262, 267-68 (3d Cir. 2004), quoting Anderson, 477 U.S. at 248.

  When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by `showing' — that is, pointing out to the District Court — that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993).

  In deciding a summary judgment motion, a court must take the facts in the light most favorable to the nonmoving party, and must draw all reasonable inferences and resolve all doubts in their favor. Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001); Woodside, 248 F.3d at 130; Heller v. Shaw Indus., Inc., 167 F.3d 146, 151 (3d Cir. 1999). Moreover, a district court may not make credibility determinations or engage in any weighing of the evidence at the summary judgment stage; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. ...

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