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MARTINEZ v. KORVETTE

December 29, 1971

Edgar MARTINEZ and Ruth Martinez, his wife,
v.
E.J. KORVETTE


Gorbey, District Judge.


The opinion of the court was delivered by: GORBEY

GORBEY, District Judge.

 Plaintiffs brought this diversity action alleging malicious prosecution of plaintiff, Ruth Martinez, by the defendant. At a trial before a jury, I granted defendant's motion for a directed verdict under Fed. R. Civ. P. 50, made at the close of plaintiffs' case.

 Before the Court is the plaintiffs' motion for a new trial.

 In a jointly prepared pre-trial order, counsel for both sides stipulated to the following facts:

 
On the evening of October 24, 1969, plaintiff, Ruth Martinez, was apprehended by an employee of defendant, E. J. Korvette, and charged with the theft of a ladies sport coat. Later that evening she was brought before a Justice of the Peace, found guilty of shoplifting and fined. Upon appeal and retrial, a verdict of not guilty was entered.

 In support of their motion, plaintiffs contend that a prima facie case of malicious prosecution had been made out, and therefore it was error to direct a verdict for the defendant.

 The elements of a cause of action for malicious prosecution are set out in the Restatement of Torts, § 653:

 
"(1) A private person who initiates criminal proceedings against another who is not guilty of the offense charged is liable to him for the harm done thereby if the proceedings
 
(a) were initiated
 
(i) without probable cause, and
 
(ii) primarily because of the purpose other than that of bringing an offender to justice, and
 
(b) terminated in favor of the accused." *fn1"

 Plaintiff has the burden of proving lack of probable cause in a suit for malicious prosecution. Miller v. Pennsylvania R. Co., 371 Pa. 308, 89 A. 2d 809, 811 (1952). Lynn v. Smith, 193 F. Supp. 887, 890 (E.D. Pa. 1961). At the end of plaintiffs' case in chief, I concluded that they had not met their burden, that, on the contrary, probable cause had been established as a matter of law. At the time of directing the ...


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