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Walasavage v. Nationwide Insurance Co.

submitted: November 21, 1986.

HELEN M. WALASAVAGE, ADMINISTRATRIX OF THE ESTATE OF FRANCIS R. WALASAVAGE, APPELLANT,
v.
NATIONWIDE INSURANCE CO., APPELLEE



Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. 85-6570).

Author: Seitz

Opinion OF THE COURT

SEITZ, GIBBONS, Circuit Judges, and BARRY, District Judge.*fn*

SEITZ, Circuit Judge.

Plaintiff Helen M. Walasavage, Administratrix of the Estate of Francis R. Walasavage, appeals a final judgment of the district court entered in favor of defendant Nationwide Insurance Company (Nationwide). We have jurisdiction under 28 U.S.C. § 1291.

I.

On August 25, 1978 Francis R. Walasavage was fatally injured when the tailgate of a dump truck behind which he was working opened unexpectedly and buried him in hot asphalt. Helen M. Walasavage, as wife and administratrix of his estate, filed product liability and negligence claims in the Pennsylvania state courts against City Welding & Manufacturing Company (City Welding), the manufacturer of the defective dump truck assembly. Robinson Service & Equipment, Inc. (Robinson), the retailer of the truck, was later joined as an additional defendant. Nationwide was Robinson's insurance carrier, and as such actively participated in Robinson's defense.

Following a jury trial in February 1982, the jury returned a verdict for Walasavage. After resolution of post trial motions, the court entered judgment against City Welding and Robinson in an amount exceeding $1,000,000. Pennsylvania Manufacturers Association Insurance Company thereafter paid over $250,000 in full satisfaction of its obligation as City Welding's carrier.

Robinson, however, appealed the trial court's judgment to the Superior Court of Pennsylvania. More than two years later, in September 1984, that court affirmed the trial court's judgment. Robinson then petitioned the Pennsylvania Supreme Court to review the case. Robinson's petition was denied in August 1985. Nationwide paid the balance of Walasavage's judgment in September 1985.

Walasavage then filed the instant action. She alleged that Robinson's appeals in the state court proceedings did not raise legitimate defenses or errors, but were taken solely to forestall Nationwide's inevitable payment of the outstanding balance of the judgment and afford Nationwide use of the money due during the course of the appeals. She claimed Nationwide was responsible for this chicanery, and argues that Nationwide's conduct violates Pennsylvania's Dragonetti Act, 42 Pa. Cons.Stat.Ann § 8351 et seq. (Purdon 1982). The district court dismissed the case for failure to state a claim upon which relief could be granted. Walasavage v. Nationwide Insurance Co., 633 F. Supp. 378 (E.D. Pa. 1986). This appeal followed.

II.

Walasavage contends that the district court erred in dismissing her case for failure to state a claim. Our review is plenary. Merklin v. United States of America, 788 F.2d 172, 174 (3rd Cir. 1986).

In relevant part, the Dragonetti Act provides:

(a) Elements of action. A person who takes part in the procurement, inititiation or continuation of civil proceedings against another is subject to liability to the ...


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