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Abuse of Process Overview

The term ‘process’ refers to the proceedings in any civil lawsuit or criminal prosecution and, particularly, describes the formal notice or writ used by a court to exercise jurisdiction over a person or property.  Such process compels the receiver to come to court, or comply with an order of the Court.  It may take the form of a summons, mandate, subpoena, warrant, or other written demand issued by a court.

Abuse of process refers to the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason.  It is the malicious and deliberate misuse of regularly issued civil or criminal court process that is not justified by the underlying legal action.  Abuse of process includes litigation actions in bad faith that are meant to delay the delivery of justice.  Examples include serving legal papers on someone which have not actually been filed with the intent to intimidate, or filing a lawsuit without a genuine legal basis in order to obtain information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. The determination of what in unfair and wrong is for the court to determine on the individual facts of each case.  The key elements of abuse of process is the malicious and deliberate misuse or of regularly issued civil or criminal court process that is not justified by the underlying legal action, and that the abuser of process is interested only in accomplishing some improper purpose similar to the proper object of the process.  Abuse of process is an intentional tort.  Abuse of process encompasses entire range of procedures incident to the litigation process such as discovery proceedings, the noticing of depositions and the issuing of subpoenas.[i]

Lawyers who are proven guilty of intentional abuse of process can be subject to discipline and punishment. Sometimes abuse of process may occur accidentally, such as an honest belief in mistaken facts used to bring a lawsuit against an improper party, but such missteps may be corrected through voluntary measures.

However, no claim for abuse of process would lie where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.[ii] Cognizable injury for abuse of process is limited to the harm caused by the misuse of process.  It does not include harm such as conviction and confinement resulting from the process’s being carried through to its lawful conclusion.[iii]

In McGann v. Allen, 105 Conn. 177, 191, 134 A. 810, 815 (1926), the court held that expenses incurred by the plaintiff in defending herself against crimes charged against her were not compensable in a suit for abuse of process, since “damages for abuse of process must be confined to the damage flowing from such abuse, and be confined to the period of time involved in taking plaintiff, after her arrest, to [defendant’s] store, and the detention there.

[i] Pellegrino Food Prods. Co. v. City of Warren, 136 F. Supp. 2d 391, 407 (W.D. Pa. 2000)

[ii] Al Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 491 (Pa. Super. Ct. 1994)

[iii] Heck v. Humphrey, 512 U.S. 477 (U.S. 1994)

Inside Abuse of Process Overview