Wednesday, August 28, 2013

Primer on Wrongful Use of Civil Proceedings and Abuse of Process


The torts of malicious prosecution and abuse of process are separate and distinct, but often confused. Werner v. J. Plater-Zyberk, 2002 Pa. Super. 42 (2002); Hart v. O'Malley, 781 A.2d 1211, 1219 (Pa. Super. 2001); Al Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 491, 644 A.2d 188, 191 (1994).

Wrongful use of civil proceedings arises when a party institutes a lawsuit with a malicious motive and without probable cause. Id.  Abuse of process, on the other hand, is concerned with a perversion of the process after it has issued and occurs when the legal process is utilized to accomplish some unlawful purpose for which it was not designed. Id.  Another essential difference between these two causes of action are their geneses. Abuse of process is a state common law claim. However, allegations of malicious prosecution invoke Pennsylvania's statutory law in the form of the wrongful use of civil proceedings statute, also known as the "Dragonetti Act," 42 Pa.C.S.A. §§ 8351-8355.

The Dragonetti Act states, in pertinent part:

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 [if]:

(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.

42 Pa.C.S.A. § 8351.

Thus, in an action for wrongful use of civil proceedings, plaintiff first must demonstrate that the person taking part in the initiation, procurement or continuation of civil proceedings either acted in a grossly negligent manner or lacked probable cause.  Sentner, 725 A.2d 779, 782, 1999 Pa. Super. 24 (1999). The plaintiff must also prove that the prior proceedings terminated in its favor and against the Dragonetti action defendant. Id.

Conversely, "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." McGee v. Feege, 517 Pa. 247, 259, 535 A.2d 1020, 1026 (1987); Shiner v. Moriarty, 706 A.2d 1228, 1236 (Pa. Super. 1998); Rosen v. Am. Bank of Rolla, 426 Pa. Super. 376, 627 A.2d 190, 192 (1993).

To establish a claim for abuse of process, plaintiff must demonstrate that defendant: (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and that (3) harm has been caused to the plaintiff. Id. This tort differs from that of wrongful use of civil proceedings insofar as the gravamen of an abuse of process claim is the "perversion of legal process" in order to achieve a purpose which is not an authorized goal of the  procedure in question. Werner, 2002 Pa. Super. at 42; Rosen, 627 A.2d at 192.

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