King v. Bernstein

Opinion by Flood, J., This is an appeal from an order sustaining preliminary objections in tbe nature of a demurrer to tbe plaintiffs complaint for malicious use of legal process and dismissing bis complaint without leave to amend. Tbe effective averments are that tbe defendant, maliciously and without cause, sued tbe plaintiff, as administrator of tbe estate of Nat Cohen, deceased, in tbe County Court of Philadelphia for tbe sum of $1005.26, with interest, for printing material; that tbe evidence given by tbe defendant at tbe trial of that suit was false and untrue; that a verdict was rendered for tbe present plaintiff from which the defendant did not appeal and that tbe defendant subsequently instituted another suit in Camden, New Jersey, upon tbe same claim, naming South Jersey Shopper, Inc. and tbe plaintiff individually as defendants in that action. Tbe court below had no alternative to sustaining tbe defendant’s demurrer to tbe plaintiff’s complaint in view of tbe decision of tbe Supreme Court in Publix Drug Company v. Breyer Ice Cream Company, 347 Pa. 346, 32 A. 2d 413 (1943). While tbe action has not been so limited in all jurisdictions, in Pennsylvania no recovery has been allowed for malicious use of process unless there was some interference with tbe person or property of tbe defendant in tbe earlier action. Ibid. This has been laid down in a long line of Pennsylvania cases running from Kramer v. Stock, 10 Watts 115 (1840), to tbe Publix Drug Company case, supra. In the latter case tbe court quoted with approval tbe following statement of Justice Sharswood in Mayer v. Walter, 64 Pa. 283, 289 (1870) : “Now, undoubtedly, a mere suit, however malicious or unfounded, cannot be made tbe ground of an action for damages. If tbe person be not arrested or bis property seized, it is unimportant bow futile and unfounded tbe action may be; as tbe plaintiff, in con *182 sideration of law, is punished by the payment of costs: Ray v. Law, 1 Peters C.C. 210; Kramer v. Stock, 10 Watts 115.” Since it appears that the earlier action involved only an unsuccessful attempt by the defendant to obtain a money judgment against the plaintiff, without any interference with the person or property of the plaintiff, the plaintiff could not recover upon a trial of the case. Consequently, the court below properly dismissed the complaint without granting the plaintiff leave to amend. . Order affirmed.