Ludmer v. Nernberg

553 A.2d 924, 520 Pa. 218, 1989 Pa. LEXIS 7

• Court: Supreme Court of Pennsylvania
• Decided: February 3, 1989
• Docket: 46 W.D. Appeal Docket 1987
• Status: Published

Opinions

OPINION

ZAPPALA, Justice.

We are called upon in this appeal to review the order and memorandum opinion of the Superior Court reversing the order of the Court of Common Pleas of Allegheny County which had granted the Appellant’s preliminary objections. At issue here is whether the Wrongful Use of Civil Proceedings Act (“Act”) as set forth in 42 Pa.C.S. §§ 8351-8354 is applicable to a complaint which was filed prior to the effective date of the Act, although not adjudicated until after the effective date of the Act. The critical facts are not in dispute. The Appellee, Mario Ludmer, is a medical doctor who was the treating physician for one of the Appellant’s clients in a personal injury lawsuit. In preparation for the litigation, the Appellant, Maurice A. Nernberg, Jr., had requested that Dr. Ludmer prepare a written report of his examination and a diagnosis of the client’s medical condition. Dr. Ludmer submitted a report and offered to testify at trial if necessary to clarify his position. During the personal injury trial, the defendant’s wife became ill, resulting in the plaintiff instructing Nernberg to negotiate a settlement rather, than seeking a continuance.

After settling the personal injury action, the Appellant then commenced a lawsuit against the Appellee claiming that the Appellee did not properly cooperate with him in the preparation of the personal injury action and that he had interfered with the contractual relationship between the Appellant and his client. As a result of the Appellee’s actions, the Appellant alleged that he was forced to settle the personal injury action for less money. Following the completion of the discovery, the Appellee filed a motion for summary judgment which was granted. On appeal the Superior Court affirmed and we denied allocatur. Nernberg v. Ludmer, 313 Pa.Super. 596, 460 A.2d 847 (1983).

The Appellee then commenced this present action seeking damages pursuant to the Act. The Appellant filed preliminary objections alleging that the Appellee had failed to allege an arrest or seizure of property which heretofore was a basic requirement of the existing common law necessary for recovery. Furthermore, the Appellant argued that the Act was inapplicable because his complaint against the Appellee was filed prior to the effective date of the Act. The trial court granted the preliminary objections and dismissed the Appellee’s complaint. On appeal, the Superior Court reversed holding that the Appellee’s cause of action did not accrue until he successfully defeated the Appellant and his complaint. 355 Pa.Super. 639, 509 A.2d 1325. At that time, the Act was applicable thereby giving the Appellee a proper cause of action. We granted the Appellant’s Petition for Allowance of Appeal and now affirm.

The Appellant raises two issues for our review: whether the Superior Court has improperly applied the Act retroactively in this case, and assuming the Act was applicable, whether the Appellee set forth sufficient facts to support his cause of action.

Prior to February 19, 1981, the effective date of the Act, a person wronged by the initiation of a lawsuit could either allege a common law malicious use of process or an. abuse of process. Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.3d 413 (1943). To sustain a cause of action, a claimant was required to allege an arrest of the person or a seizure of property. Under the Act, the legislature specifically abrogated this requirement.

(b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this sub-chapter.

42 Pa.C.S.A. § 8351(b). Thus it is critical whether the Act or the common law is applicable. There is no disagreement that the Appellee has not alleged an arrest or seizure of property. If the Act is applicable, this allegation is unnecessary; however, if the common law is applicable, the failure to allege one of these factors is fatal to the cause of action.

The Appellant argues that to make the Act applicable to Appellee’s cause of action would result in a retroactive application of the Act. To support his position, the Appellant argues that under the Act the key element for establishing a cause of action is the wrongful initiation of a lawsuit. Since the underlying lawsuit filed by the Appellant against the Appellee was filed in March of 1979, the Act was not in existence and therefore the Appellant argues that the cause of action did not exist. To permit the current cause of action to continue would thus result in applying the Act to a cause of action which occurred two years prior to its existence. Thus, applying the Act to the case sub judice will result in a retroactive application of the Act.

If we were to accept the Appellant’s initial premise then the logical extension of his argument would be correct. However, since we do not accept his initial argument that the cause of action occurs at the time the underlying lawsuit is commenced, we cannot accept his argument on retroactivity.

Under the Act, a person who participates in the initiation or continuation of a civil action is subject to liability for wrongful use of civil process if he acts in a grossly negligent manner or without probable cause and the proceedings are terminated against him.¹

The elements required to successfully pursue a cause of action under the Act are the initiation of a lawsuit without probable cause or in a grossly and negligent manner and a favorable outcome in that lawsuit. Although the initiation of a lawsuit is one element of the cause of action, the cause of action does not accrue until all the requirements have been met which includes obtaining a favorable outcome. Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 470 A.2d 482 (1983); Sicola v. First National Bank of Altoona, 404 Pa. 18, 170 A.2d 584 (1961). Furthermore, the fact that some of the requirements for application of a statute occur prior to the enactment of the statute, does not result in the retroactive application of that statute. Gehris v. Commonwealth of Pennsylvania, Department of Transportation, 471 Pa. 210, 369 A.2d 1271 (1977). The Appellee’s cause of action did not accrue until such time as he successfully defeated the Appellant in his attempts to have the Appellee held legally liable. In this instance, that did not occur until we denied allocatur on September 14,1983. Having obtained a successful determination in the Appellant’s cause of action, Appellee had met, at least arguably, all the elements of a cause of action under the Act. Thus, the Act was not being applied retroactively to events occurring in March of 1979, but rather prospectively to events occurring in September of 1983. Therefore, there is no merit to the Appellant’s contention that the Act is being impermissibly applied retroactively.²

Next, the Appellant argues that even if the Act applies Appellee failed to allege a cause of action because he failed to set forth with specificity facts supporting an allegation that the Appellant acted without probable cause in initiating the underlying lawsuit. We have reviewed the complaint and are satisfied that the allegations contained therein do not set forth conclusions of law but rather facts upon which the trier of fact could reasonably conclude that the Appellant initiated the underlying lawsuit without probable cause. Therefore, seeing no vitality or validity to either of the Appellant’s arguments, the order of the Superior Court must be affirmed.

ORDER AFFIRMED.

McDERMOTT, J., files a concurring opinion. LARSEN, J., files a dissenting opinion.

1 . Wrongful use of civil proceedings

(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:

(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and

(2) The proceedings have terminated in favor of the person against whom they are brought.

(b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this sub-chapter.

2 . In support of his position the Appellant relies upon Ace v. Argonaut Insurance Company, 307 Pa.Super. 200, 452 A.2d 1384 (1982). In that case, the cause of action accrued one year prior to the effective date of the Act. Therefore, the Act was inapplicable and reliance upon that case is misplaced.