Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
At the conclusion of pre-trial conferences, in an action for malicious prosecution, the court below, sua sponte, entered an Order of dismissal and directed judgment against the plaintiff and in favor of the defendants "with prejudice and costs."*fn1
In a "Memorandum on Order of Dismissal" the court below found "not only that there was a lack of malice but that there was probable cause." D.C.W.D.Pa. 1959, 178 F.Supp. 866, 869.
On this appeal plaintiff contends that the trial judge erred in resolving factual issues which required resolution by a jury.*fn2
Jurisdiction is based on diversity of citizenship and the requisite jurisdictional amount.*fn3
The premise of plaintiff's action is that he was, at the instance of four of the defendants,*fn4 "maliciously and without probable cause, and with intent to injure" subjected to criminal prosecution on the charge that he had removed a concrete bench from a public park in the village of Pittsfield, Warren County, Pennsylvania; taken into custody by a fifth defendant, a Constable;*fn5 found to be guilty and sentenced, in a summary proceeding, to pay a fine of $50.00 and to serve 60 days in jail by a sixth defendant, a Justice of the Peace;*fn6 and on appeal to the Quarter Sessions Court of Warren County, Pennsylvania, found not guilty and discharged with costs imposed on the county.
The pre-trial proceedings in the court below developed that plaintiff had inherited from his father a dwelling at the corner of Constitution Avenue and Prospect Street, in the Village of Pittsfield, Pittsfield Township: earlier, in May 1949, plaintiff's father had granted permission to the local citizenry to place, at the extreme northwest corner of his property, a boulder to which was attached a bronze plaque bearing the names of Pittsfield's war dead: in the early part of 1955 a controversy developed between plaintiff and the defendant township supervisors and defendant Danielson as to whether the area where the war memorial stood was owned by plaintiff or was public land. The controversy grew in intensity during the succeeding year. On May 8, 1956, plaintiff by letter to the township supervisors, offered to give them a quitclaim deed to a small area surrounding the monument provided "the said property shall be used as a War Memorial and shall be maintained by the Pittsfield Township" and he was reimbursed for "the cost of the legal expense incurred * * * in defending the title to this property."*fn7 The letter also stated that if plaintiff's "proposal is not accepted, you are hereby notified to remove from my property within thirty days from the date hereof the monument, flagpole and shrubbery which is now located thereon."
Shortly thereafter, the supervisors placed a concrete bench at a point described by the court below in its "Memorandum on Order of Dismissal" "either on the same plot of ground on which the memorial was situate or or within a few feet of that ground." Plaintiff, a day or two later, removed the bench and was arrested for doing so.
At the pre-trial conferences plaintiff contended, and said he was prepared to prove at the trial, that the bench was not placed in the vicinity of the memorial boulder but at a point more than fifty feet from it and upon his front lawn. Plaintiff further contended that he was prepared to prove at the trial that the township did not have title to the ground on which the war memorial itself stood, and that the defendants at the time of his arrest, and thereafter, knew that the concrete bench had been placed on his property.
Defendants, at the pre-trial conferences, made the twofold contention that the ground on which the war memorial stood was a "public park" and that the concrete bench had been placed in this "public park" and not 50 feet away as plaintiff urged. They also declared that they had consulted Myron Kornreich, District Attorney of Warren County following removal of the bench and that he had prepared the information charging plaintiff with violation of a Pennsylvania statute making it a criminal offense to remove an ornamental erection in a public park.
On the score of defendants' contention, plaintiff urged that they had not made full disclosure to the District Attorney of all the facts relating to the ownership of the land on which the concrete bench had been placed; specifically, that the defendants knew that the bench was placed on plaintiff's property and had not disclosed that fact to the District Attorney.
The Court below, in what must be characterized as a somewhat unusual step in a pre-trial conference, requested that the District Attorney make an unsworn "statement" as to his participation in the proceedings which led to plaintiff's arrest. The District Attorney said that the defendants, other than the Justice of the Peace, told him "about this man [plaintiff] breaking some kind of ornament in their little park down there, and we went over the thing and as I recall I told them I would look into the law and see what type of charge fitted these particular facts and I would draw a complaint if one oas advisable. In the meantime I believe, from the information they gave me I went to the courthouse and checked the records with reference to this deed through which he claimed ownership to the land, so forth, and I checked the state statute on it, and I came up with this one statute which to me seemed to fit these facts, ...