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Drawing distinctions between two Pennsylvania torts, a federal judge has green-lighted a claim for malicious prosecution but ruled that the same plaintiff has no claim for “abuse of process.” “A malicious use of process claim is not transformed into an abuse of process claim because a party pursues, with the aim of prevailing, a claim that was initiated with malice,” federal Judge Jay C. Waldman of the U.S. District Court for the Eastern District of Pennsylvania wrote in his eight-page opinion in Evans v. Durham Life Insurance Co. In the suit, plaintiff Dianne Evans claims her former employer never had cause to sue her for violating a noncompete clause since she was forced to quit her job due to sex discrimination. Evans won more than $400,000 in a nonjury trial when federal Judge Joseph L. McGlynn ruled that the treatment she suffered was so outrageous that she deserved $100,000 on her claim of intentional infliction of emotional distress and $310,000 in lost earnings on her breach of contract claim. Evans, who was represented by Raymond J. Quaglia, was a highly successful life insurance saleswoman earning nearly six figures with Metropolitan Life when she was recruited away by Durham. But new management took over after Peoples Security Life Insurance Co. acquired Durham, and Evans said her success made her a lightning rod for abuse by sexist managers. One man, she said, told her she made “too much money for a goddamned woman.” Ultimately, she said she was kicked out of her private office and her secretary was taken away — both perks she was promised when she was recruited — and important files mysteriously disappeared. When Evans quit and took a job with the Paul Revere Life Insurance Co. and sold policies to 16 of her former clients, Durham sued her for violating a noncompete clause despite never having sued a male agent who left and sold policies to 170 of his Durham clients. Evans countersued for sex discrimination. Judge McGlynn ruled that Durham was estopped from seeking enforcement of the noncompete clause since a company vice president told Evans it was no longer in effect. After finding that Evans was “constructively discharged,” or forced to quit, McGlynn calculated her lost wages based on $119,000 per year. On appeal, Durham argued that many of the alleged acts of harassment never occurred and that even if they had, they were so few and far between that they did not constitute a hostile work environment. The 3rd U.S. Circuit Court of Appeals upheld the verdict in January 1999, saying the case came down to a credibility contest and that McGlynn had the right to credit Evans’ story since it was plausible and since “Title VII does not have a corroboration requirement.” Evans then filed a second lawsuit that accused Durham and Peoples of malicious prosecution and abuse of process. Now Judge Waldman has dismissed the abuse of process claim, saying it was premised on a faulty reading of the law and that it was filed too late. To make a claim for abuse of process, Waldman said, the plaintiff must show that the defendant used a legal process to accomplish a purpose “for which the process was not designed.” “Abuse of process involves a perversion of legal process after it has issued to achieve an illegitimate objective for which the process was not intended,” Waldman wrote. The Pennsylvania courts, Waldman said, have held that malicious intentions are not enough to make out a claim for abuse of process. In Al Hamilton Contracting Co. v. Cowder, the Pennsylvania Superior Court held that “there must be an act or threat not authorized by the process, or the process must be used for an illegitimate aim. … 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.” By contrast, Waldman noted that a malicious prosecution claim requires only that the plaintiff show that the defendant instituted proceedings against her that terminated in her favor and that it did so without probable cause. Waldman concluded that Evans had alleged nothing more than malicious prosecution since she is complaining that Durham sued her out of malice and never had a legitimate basis to do so. As a result, Waldman said, the abuse of process claim failed. “One cannot reasonably find from the competent evidence of record that once it initiated its breach of contract and tortious interference action, Durham pursued the litigation for a purpose other than achieving success on the merits,” Waldman wrote. Evans testified that she remembered a lawyer for Durham saying that the company was continuing to press its claims because it wanted to hold onto a “bargaining tool” since Evans had countersued. But Waldman found that one alleged remark by an opposing lawyer was not enough. “A hazy recollection of a comment plaintiff thinks may have been made at the underlying trial by a defense attorney standing alone is simply too speculative to constitute competent evidence of a remarkable admission by an attorney during a trial that her client’s claim had no basis,” Waldman wrote. And even if Evans’ theory wasn’t faulty, Waldman found that she filed the abuse of process claim after the statute of limitations had run. Although the clock doesn’t start running on a malicious prosecution claim until the plaintiff secures a finalized victory in the underlying litigation, Waldman found that an abuse of process claim accrues as soon as the plaintiff knows that the defendant is using a legal process for an improper purpose. “If plaintiff is suggesting that she could not reasonably know that defendants had abused process until the parties’ respective appeals were decided, she does not remotely explain why,” Waldman wrote. “Insofar as she is suggesting that the prosecution of an appeal by the defendants was itself an abuse of process, one cannot reasonably find from the competent evidence of record that defendants, any less than plaintiff, filed an appeal for any purpose other than obtaining a favorable decision.”

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