United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge
before the Court is a Report and Recommendation
("R&R") (Doc. 60) by Magistrate Judge Carlson,
in which the Magistrate Judge recommends granting in part and
denying in part Defendant Amil Minora's Motion to Dismiss
(Doc. 22) in the above-captioned action. Defendant Minora has
filed Objections (Doc. 61) to which Plaintiff has responded
(Doc. 62). For the reasons that follow, upon de novo
review of the R&R, the Court will adopt in part and
overrule in part the pending R&R.
Plaintiff's Claims of Malicious Prosecution and Abuse of
Minora first objects to Magistrate Judge Carlson's
recommendation that Defendant's motion to dismiss
Plaintiffs claims for malicious prosecution and abuse of
process in Count III be denied. (See Doc. 61, at 1-6).
tort of '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.
Am. Bank of Rolla, 627 A.2d 190, 192 (Pa.
Super. Ct. 1993) (quoting Restatement (Second) of Torts
The gravamen of the misconduct for which the liability stated
[under this tort] is imposed is not the wrongful
procurement of legal process or the wrongful initiation of
criminal or civil proceedings; it is the misuse of
process, no matter how properly obtained, for any purpose
other than that which it was designed to accomplish.
Id. (quoting Restatement (Second) of Torts §
682, cmt. a) (emphasis added). To succeed on an abuse of
the plaintiff must show some definite act or threat not
authorized by the process, or aimed at an objective not
legitimate in the use of the process ...; and there is no
liability where the defendant has done nothing more than
carry out the process to its authorized conclusion, even
though with bad intentions.
Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super.
Ct. 2008) (quoting Shiner v. Moriarty, 706 A.2d
1228, 1236 (Pa. Super. Ct. 1998)) (internal alterations
Pennsylvania Supreme Court has characterized the distinction
between abuse of process and malicious prosecution in the
Decisions in this state and in other jurisdictions have drawn
a distinction between actions for abuse of legal process and
those for malicious prosecution .... The gist of an action
for abuse of process is the improper use of process after it
has been issued, that is, a perversion of it"On the
other hand, legal process, civil or criminal, may be
maliciously used so as to give rise to a cause of action
where no object is contemplated other than its proper effect
and execution." Publix Drug Co. v. Breyer Ice Cream
Co., 32 A.2d 412, 415 (Pa. 1943) (quoting Mayer
Walter, 64 Pa. 283, 285 (Pa. 1870}}. Furthermore,
unlike a claim for malicious prosecution, the presence or
absence of probable cause is irrelevant to a claim for abuse
of process nor does the plaintiff have to prove that the
underlying action terminated in his favor. Smith v.
Wambaugh, 887 F.Supp. 752, 757 (M.D. Pa. 1995).
Minora objects to Magistrate Judge Carlson's
recommendation with respect to the abuse of process claim
because "defendant Minora's referral of alleged
criminal conduct to the appropriate authorities to
investigate is not an abuse of legal process" (Doc. 61,
at 6). However, in examining Plaintiffs claim of abuse of
process, Magistrate Judge Carlson noted the following chain
Martin's complaint alleges that the defendants filed an
unfounded criminal complaint against him with the District
Attorney's Office and then induced the District
Attorney's Office to obtain and execute search warrants
on the plaintiffs bank accounts based upon false and
incomplete information. The complaint then expressly alleges
that the defendants attempted to use this ongoing legal
process to leverage favorable civil settlement terms from
(Doc. 60, at 20-21). Defendant focuses only on the first
allegations, namely the filing of a criminal complaint and
the resulting search warrants. As Plaintiff admits, the
"abuse of process claim began to accrue against
Defendant Minora personally when Defendant Minora himself
used the threat of the criminal proceedings as a means of
coercing Martin to enter into a civil settlement." (Doc.
62, at 4). Thus, it is the final event, the use of the
ongoing criminal investigation to leverage a favorable civil
settlement, that, when applied in conjunction with the prior
allegations, sufficiently alleges a perversion of process;
i.e. the improper use of the criminal complaint and
subsequent search warrants to achieve the allegedly unlawful
and unethical objective of ...