from the Order Entered September 18, 2015 In the Court of
Common Pleas of Lehigh County Civil Division at No(s):
BEFORE: BOWES, J., OTT, J., and SOLANO, J.
appeals from the order entered September 18, 2015, in the
Court of Common Pleas of Lehigh County, sustaining the
preliminary objections of H.C.N. and dismissing P.J.A.'s
amended complaint with prejudice. P.J.A.'s amended
complaint set forth an abuse of process action and a
"Dragonetti" action. P.J.A. claims the trial court
erred in (1) holding that P.J.A.'s abuse of process claim
was barred by the statute of limitations, (2) deciding, at
the preliminary objection stage, the factual question of
whether P.J.A.'s abuse of process claim adequately
pleaded H.C.N.'s improper purpose, and (3) concluding
that P.J.A.'s Dragonetti claim failed to satisfy the
element of a termination in his favor in the underlying
proceedings. See P.J.A.'s Brief at 4. Based upon
the following, we affirm.
trial court has summarized the background of this case, as
The parties married in February of 2006. Their marriage
lasted until March of 2007, at which time they separated and
initiated divorce proceedings. There is one child born from
their marriage, [Child], born in August of 2006.
From March of 2007 to the present, the parties have
continually engaged in extraordinarily contentious litigation
in their custody action, Lehigh County Case No. 2007-FC-0427.
Throughout the preceding eight years, the parties
demonstrated a consistent inability to meaningfully co-parent
their mutual child, leading to countless custody petitions,
petitions for special relief, and allegations of contempt
between the parties. Both parties continuously call on the
courts to make determinations about all major aspects of
[Child's] life, including, inter alia, religious
affiliation and training, daycare, selection of an
appropriate school, sports, and whether and under what
circumstances the child can ride the school bus. Because of
the ongoing series of petitions and court appearances, both
parties have spent innumerable hours in court engaging in
protracted hearings. They have also incurred significant
legal costs through counsel fees, filing fees, and their
presence in court as it impacts upon their respective
In the instant litigation, [P.J.A.] initiated this matter by
filing a pro se Writ of Summons on November 17,
2014. He filed a pro se complaint against [H.C.N.]
on December 31, 2014 alleging Abuse of Process and Wrongful
Use of Civil Proceedings in the parties' custody action.
[H.C.N.] filed preliminary objections to [P.J.A.'s]
complaint. The Court scheduled oral argument on
[H.C.N.'s] preliminary objections. On April 14, 2015,
Attorney Todd Mosser entered his appearance and appeared on
[P.J.A.'s] behalf on the same day for oral argument.
Attorney Mosser requested time to file an Amended Complaint.
The Court struck the original complaint without prejudice and
granted Attorney Moser time to file an Amended Complaint.
On May 4, 2015, [P.J.A.] filed his Amended Complaint.
[H.C.N.] filed the instant Preliminary Objections on May 26,
2015, and [P.J.A.] filed a response on June 16, 2015. The
Court heard oral argument on September 8, 2015.
On September 18, 2015, the Court entered an order with an
opinion sustaining the preliminary objections and dismissing
the case with prejudice.
[P.J.A.] filed a Notice of Appeal on October 16, 2015. The
Court directed him to file a Concise Statement of Matters
Complained of on Appeal, which he filed on November 6, 2015.
Trial Court Opinion, 11/30/2015, at 1-4 (footnote omitted).
outset, we state our standard of review:
Our review of a challenge to a trial court's decision to
grant preliminary objections is guided by the following
[o]ur standard of review of an order of the trial court
overruling or granting preliminary objections is to determine
whether the trial court committed an error of law. When
considering the appropriateness of a ruling on preliminary
objections, the appellate court must apply the same standard
as the trial court. Preliminary objections in the nature of a
demurrer test the legal sufficiency of the complaint. When
considering preliminary objections, all material facts set
forth in the challenged pleadings are admitted as true, as
well as all inferences reasonably deducible therefrom.
Preliminary objections which seek the dismissal of a cause of
action should be sustained only in cases in which it is clear
and free from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief. If
any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super.
2011) (citation omitted).
first contends the trial court erred in determining his abuse
of process claim was barred by the statute of limitations.
There is no dispute that an abuse of process claim is subject
to a two-year statute of limitations. 42 Pa.C.S. §
5524(1). Here, what is in contention is the date upon which
that two-year time period began to run.
limitations period for any claim begins to run "from the
time the cause of action accrued." 42 Pa.C.S. §
5502(a). As the Supreme Court explained in Fine v.
Checcio, 870 A.2d 850 (Pa. 2005):
In Pennsylvania, a cause of action accrues when the plaintiff
could have first maintained the action to a successful
conclusion. Thus, we have stated that the statute of
limitations begins to run as soon as the right to institute
and maintain a suit arises. ... Once a cause of action has
accrued and the prescribed statutory period has run, an
injured party is barred from bringing his cause of action.
Id. at 857 (internal citations omitted). Accord
Kapil v. Ass'n of Pennsylvania State Coll. & Univ.
Faculties, 470 A.2d 482, 485 (Pa. 1983) ("The true
test in determining when a cause of action arises or accrues
is to establish the time when the plaintiff could have first
maintained the action to a successful conclusion.").
common law cause of action for abuse of process "is
defined as the use of legal process against another
'primarily to accomplish a purpose for which it is not
designed.'" Rosen v. American Bank of
Rolla, 627 A.2d 190, 192 (Pa. Super. 1993) (citation
To establish a claim for abuse of process it must be shown
that the defendant (1) used a legal process against the
plaintiff, (2) primarily to accomplish a purpose for which
the process was not designed; and (3) harm has been caused to
Abuse of process is, in essence, the use of legal process as
a tactical weapon to coerce a desired result that is not the
legitimate object of the process. Thus, the gravamen of this
tort is the perversion of legal process to benefit someone in
achieving a purpose which is not an authorized goal of the
procedure in question.
Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa.
Super. 2002) (citations omitted). See Weiss v.
Equibank, 460 A.2d 271, 276 (Pa. Super. 1983 ("If
the plaintiff sues the defendant on a valid cause of action
but brings the suit, for example, not to collect his just
debt but for a collateral purpose such as blackmail the
action is a malicious abuse of process."). Therefore, it
follows that, in an abuse of process case, the statute of
limitations is triggered when the defendant uses "legal
process" against the plaintiff for an improper purpose,
which, in turn, causes harm to the plaintiff.
the trial court determined P.J.A.'s cause of action for
abuse of process arose on July 3, 2012, and, because P.J.A.
did not file a writ of summons until November 17, 2014, his
claim was time-barred by the two year statute of limitations.
The trial court explained its reasoning, as follows:
In [P.J.A.'s] Amended Complaint, [P.J.A.] averred that on
June 28, 2012, he filed a petition in the parties'
custody case requesting leave of Court to enroll the
parties' child in a summer camp program. [H.C.N.] filed
an Answer with New Matter on July 3, 2012. In her New Matter,
[H.C.N.] requested sole legal custody of the parties'
child. [P.J.A.] alleged [H.C.N.] made several "knowingly
false allegations" in support of her request for sole
legal custody. The Amended Complaint in this case asserted
[H.C.N.] falsely alleged that [P.J.A.] baptized the
parties' child without [H.C.N.'s] knowledge or
consent, and further alleged that [P.J.A.] covertly enrolled
the parties' child in kindergarten. [P.J.A.] averred that
[H.C.N.'s] "true purpose in initiating that legal
process [the New Matter] was to attempt to destroy
[P.J.A.'s] good name and reputation; to disrupt
[P.J.A.'s] work obligations; and to compel [P.J.A.] to
incur significant financial expense and emotional
distress." (Amended Complaint, at ¶ 36.)
The statute of limitations applicable to a claim for Abuse of
Process is two years. 42 Pa.C.S.A. §5524(1). The date
that a claim for Abuse of Process accrues is different from
the date when a claim for Wrongful Use of Civil Proceedings
accrues. Wrongful Use of Civil Proceedings claims accrue on
the date of termination of the allegedly wrongful suit
because a necessary element of the claim is that the prior
suit terminated in the current Appellant's favor. By
contrast, Abuse of Process claims accrue on the date the
alleged abuse occurred.
In this case, [P.J.A.] identified [H.C.N.'s] New Matter
she filed in conjunction with her Answer on July 3, 2012, as
the allegedly abusive filing. Because that filing is the
alleged abuse about which [P.J.A.] now complains, the cause
of action accrued on July 3, 2012. Therefore, the statute of
limitations ran until July 3, 2014. [P.J.A.] did not initiate
his claim until November 17, 2014, when he filed a Writ of
Summons. At that point, his claim for Abuse of Process was
On appeal, [P.J.A.] argues that the damages he is seeking in
the form of legal fees were not realized prior to the
rejection of [H.C.N.'s] allegedly false claims. He also
notes that "it is error to require an abuse of process
plaintiff to immediately file an abuse of process lawsuit
while the validity of the underlying process has yet to be
determined." [P.J.A.] does not cite any authority for