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NECZYPOR v. JACOBS (03/28/61)

March 28, 1961


Appeal, No. 329, Jan. T., 1960, from judgment of Superior Court, Oct. T., 1960, No. 23, affirming judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1956, No. 2561, in case of Stephen S. Neczypor v. Joseph Jacobs. Judgment affirmed; reargument refused April 21, 1961.


Irving R. Shull, with him Alfred I. Ginsburg, and Bernard L. Lemisch, for appellant.

Miles Warner, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 403 Pa. Page 305]


Stephen S. Neczypor, the plaintiff in this case, obtained a verdict of $4,000 against Joseph Jacobs, the defendant, in an action of malicious prosecution. The defendant appealed to the Superior Court which affirmed the verdict. We granted allocatur.

Reading the record with all conflicts in testimony, and all inferences rising therefrom, as resolved in favor of the plaintiff, the following narrative is warranted. On June 4, 1955, Stephen Neczypor engaged himself to chauffeur for his friend John Lew, who was being married in Philadelphia. After the religious ceremony at church and the taking of the bridal pictures, Neczypor started home to get his wife to take her to the wedding reception scheduled for that evening. It was then after 4 p.m.

As he proceeded northwardly on Fifth Street, his car was bumped in the rear by another car being driven by the defendant in this case, Joseph Jacobs. It does not appear that the bump was a severe one, but it would seem that the lesser the damages in collisions of this kind the more apt the drivers are to enter into wordy warfare, each accusing the other of stupidity, gross carelessness and unflattering antecedents. Jacobs, who was a city detective dressed in street

[ 403 Pa. Page 306]

    clothes, informed Neczypor that he had better be careful since he could give him a ticket. Neczypor retorted: "That don't give you no license to run into my automobile."

Operators' licenses and automobile registration cards were exchanged and the episode apparently ended. Both drivers got into their respective cars and continued on their respective journeys.

A few minutes later Jacobs passed Neczypor on the road and the latter noted that Jacobs' car was carrying a dealer's license plate. He pursued and caught up with Jacobs and said to him: "You know you showed me the wrong owner's card," and Jacobs said to Neczypor: "What are you going to do about it?"

As events were to turn out, Neczypor would have fared better if he had said he was going to do nothing about it, and had gone on to participate in the wedding festivities. Instead, he replied to Jacobs: "What do you think I am going to do about it? I am going to get a cop."

And he set out in search of a "cop." At Fifth and Lehigh he found two uniformed policemen and he complained to them: "Look can you help me? A guy just ran into my car. He says he is a cop. He had dealer's tags on it and it looked kind of fishy to me."

Jacobs soon appeared on the scene and spoke to one of the policemen who now asked Neczypor if he wanted to go to the police station. Neczypor replied: "Certainly. I have nothing to lose." In this he was a poor prophet. When he arrived at the station a policeman "frisked" him. The police sergeant on duty ordered him "frisked" the second time. When Neczypor explained that he had already been searched, the sergeant, according to Neczypor, "smashed" him in the face, breaking his glasses and cutting his face.

Neczypor asked: "What did you do that for?"

[ 403 Pa. Page 307]

Jacobs spoke up: "I am going to railroad this... S.B."

Neczypor was taken to a police cell and locked up. Later he was examined by a police surgeon who asked him about consumption of intoxicating beverages. Neczypor explained that that morning, in toasting the wedding of his friend, he had two glasses of whiskey and a couple glasses of beer. It was now about 7 p.m.

He was returned to the cell. Still later he was handcuffed, placed aboard a police van and driven to City Hall where he was fingerprinted and photographed, the resulting picture showing the cut under his eye. He was then returned to the police cell. That evening his brother and a lawyer arrived and his release was effected.

The next day, at a hearing before a committing magistrate he was formally charged with operating an automobile under the influence of intoxicating liquor. In due time he was indicted and on that indictment he stood trial February 9, 1956 in the court of quarter sessions before a judge and jury. He was acquitted.

Now he brought a civil action in trespass against Joseph Jacobs, charging him with malicious prosecution. The defendant joined issue and the case went to trial on January 8, 1958 before Judge CARROLL. Neczypor's attorney, in opening his case to the jury, made some improper remarks, a juror was withdrawn and the case continued.

In April, 1958, the case was tried again, this time before Judge LEVINTHAL and a jury. The jury returned a verdict in favor of Neczypor in the sum of $1500. Jacobs appealed to the Superior Court which ordered a new trial because of trial errors.

In April, 1959, Neczypor and Jacobs, who were now apparently making a career of this case, appeared in court to oppose each other for the fourth time before ...

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