## Facts

- G. Brinton Motheral III was involved in a contentious divorce and child-custody dispute with his then-wife, Gretchen Burkhart.
- Ann Burkhart (Motheral’s mother-in-law) reported to police that Motheral threatened to kill her while she waited in her daughter’s car.
- Motheral was arrested and charged with simple assault, terroristic threats, harassment, and intimidation of a witness.
- After a preliminary hearing, some charges were dropped and the remaining charges were later nolle prossed; the criminal matter ended in Motheral’s favor.
- Motheral filed a multi-count civil complaint alleging, among other claims, malicious prosecution and intentional infliction of emotional distress (IIED) against Ann Burkhart and Deborah Lesko (opposing counsel in the custody matter), and malicious prosecution and negligence against Lesko’s law firm.
- The trial court sustained preliminary objections and dismissed all claims against Lesko and the law firm, and dismissed the IIED claim against Ann Burkhart; it left only a malicious-prosecution claim pending against Ann Burkhart.
- Motheral appealed the dismissal of the five counts.

## Issues

1. Whether an order dismissing some but not all counts in multi-count litigation is a final, appealable order when it dismisses all claims against certain defendants but leaves at least one claim pending against another defendant.
2. Whether the pleadings stated a malicious-prosecution claim against opposing counsel and her law firm by adequately alleging they initiated or procured the criminal proceedings.
3. Whether the dismissal of the IIED claim against Ann Burkhart was immediately appealable when another count remained pending against her.

## Decision

- The Superior Court held the order was final and appealable as to Lesko and her law firm because all claims against them were dismissed, putting Motheral out of court as to those defendants.
- The court held the order was not final as to Ann Burkhart because the malicious-prosecution claim against her remained pending; it quashed the appeal to the extent it challenged dismissal of the IIED count against her.
- On the merits, the court affirmed dismissal of the malicious-prosecution claim against Lesko and the law firm for failure to plead facts showing they instituted or procured the criminal proceedings.
- The court also left in place dismissal of the IIED claim against Lesko and the negligence claim against the law firm as part of the final disposition as to those defendants.

## Legal Principles

- A partial dismissal is generally interlocutory when it leaves the plaintiff in court on any theory of recovery for the same alleged harm against the same defendant.
- An order dismissing all claims against a particular defendant is final and immediately appealable because it effectively puts the plaintiff out of court as to that defendant, even if the case continues against others.
- For malicious prosecution under Pennsylvania law, the complaint must allege that the defendant initiated or procured the institution of the criminal proceedings (in addition to favorable termination and other elements); allegations that an attorney provided information to police, without facts showing initiation or procurement, are insufficient.

## Conclusion

The court treated dismissal of all claims against certain defendants as a final, appealable order, but treated dismissal of one theory against a defendant who remained in the case as interlocutory; it affirmed dismissal of malicious-prosecution claims against opposing counsel and her firm because the pleadings did not allege they initiated or procured the criminal prosecution.


Motheral v. Burkhart, 583 A.2d 1180 (Pa. Super. Ct. 1990)