TORTS

Liability • Immunity • Intentional Torts

Orange Stones Co. v. City of Reading, PICS Case No. 14-0464 (Pa. Commw. March 21, 2014) McCullough, J. (24 pages).

City was immune from plaintiff’s intentional tort claims; plaintiff failed to prove that city attorney acted “maliciously,” as to be liable under Tort Claims Act. Affirmed.

Plaintiff filed suit against city and its attorney alleging wrongful use of civil process, abuse of process and intentional interference with contractual relations. Plaintiff claimed that city filed a complaint against it in magisterial district court without probable cause and or based upon inadequate investigation, that the complaint was filed for an improper purpose (i.e., to shut down plaintiff’s operations) and to interfere with plaintiff’s contracts with managed care organizations and county and state agencies. City claimed it filed the complaint based on an enforcement notice that plaintiff was in violation of city ordinance by operating a business without the required license. City voluntarily withdrew its complaint in this prior action without stating a reason. Ruling on plaintiff’s (then defendant’s) cross-complaint, the MDJ found city’s complaint frivolous and awarded judgment in favor of plaintiff (approximately $12,000). City appealed for trial de novo.

Plaintiff filed a complaint and city and attorney filed preliminary objections asserting legal insufficiency and governmental and high public official immunity. Plaintiff countered that its causes of action were viable and that immunity was improperly raised as a preliminary objection. Plaintiff further argued that attorney was not entitled to immunity because he committed willful misconduct and or intentional torts not protected under the Tort Claims Act.

Trial court found that plaintiff failed to sufficiently state its claims and that city and attorney were entitled to governmental and official immunity, respectively. The commonwealth court affirmed.

Immunity from suit is an affirmative defense that must be raised in a responsive pleading under the heading of “new matter.” Pa.R.Civ.P. 1030. However, a party may raise immunity as a preliminary objection where a cause of action is made against a governmental body and it is apparent on the face of the pleading that the cause does not fall within any of the exceptions to governmental immunity. Accordingly, the trial court did not abuse its discretion in determining in the first instance whether governmental immunity barred plaintiff’s claims.

To overcome the defense of governmental immunity, plaintiff’s claims against a local agency must sound in negligence and must fall within one of the eight enumerated exceptions set forth in the act. Here, whether plaintiff’s claims against city were characterized as intentional, willful misconduct or negligence, they were barred by governmental immunity. Therefore, trial court did not err in dismissing all of plaintiff’s claims against city.

However, trial court erred in concluding that attorney was entitled to blanket immunity under the act, without considering whether the alleged torts evidenced willful misconduct, thereby destroying immunity. Since the complaint failed to establish that attorney committed an intentional tort and or willful misconduct, trial court’s error was harmless.

Plaintiff’s chief argument was that it properly pled viable intentional torts against attorney, i.e., that attorney filed the complaint without probable cause based solely upon a meritless enforcement order and failed to investigate the allegations beforehand; that attorney’s actions constituted “willful misconduct”; and that the complaint was filed “for a wrongful purpose, with malice and . . . intent to coerce [plaintiff] into abandoning its use of the property.” Plaintiff makes the same or substantially similar arguments in support of all three of its claims.

To prevail in an action for wrongful use of process, plaintiff must show that defendant maliciously instituted proceedings, lacking probable cause to do so and that proceedings terminated in favor of plaintiff. An attorney of record has probable cause if s/he believes in good faith that pursuing a civil cause is not intended to merely harass or maliciously injure the opposing party.

Here, city’s zoning administrator signed and verified the complaint against plaintiff before the MDJ and relied on the enforcement notice to initiate the proceeding. Zoning administrator consulted with attorney with respect to preparation of the complaint and attorney filed a letter withdrawing city’s complaint after plaintiff filed a cross-complaint. This is the full extent of attorney’s role in this case.

In and of themselves, the averments of the complaint (attorney acted “maliciously,” “without probable cause,” “with . . . specific intent to harm . . . by filing an entirely false claim . . .,” and “intended to impede [plaintiff's] contractual relations”) are markedly insufficient to establish that attorney possessed the wrongful intent necessary to overcome the official/governmental immunity conferred to him by the act.