(D.C. Civil Action No. 70-546). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
McLaughlin, Gibbons, and Weis,*fn* Circuit Judges. Gibbons, Circuit Judge, dissenting.
In this diversity action for malicious prosecution, the court below granted the defense motion for a directed verdict at the conclusion of the plaintiff's testimony. A motion for a new trial was later denied and a Memorandum Order filed. (335 F. Supp. 886, E.D. Pa. 1971).
On October 24, 1969 plaintiff, Ruth Martinez, accompanied by her husband and brother-in-law went to one of the Korvette stores in the suburban Philadelphia area, planning to buy a new coat. Her testimony was that before trying on any of the new coats she took off her old trench coat and laid it on top of the display rack. After some time, Mrs. Martinez decided on a purchase but was then unable to find the old trench coat. She strolled to another portion of the store to look at other items of clothing, went to a check out counter in that area, and advised the clerk that, since the trench coat had disappeared, plaintiff intended to wear the new one home. Mrs. Martinez claimed that the new coat was purchased by the use of a credit card, and that she was given a sales slip and a cash register receipt.
After the plaintiff walked out of the store she was accosted by a female security officer who asked her about the coat. The two women then went back inside the building where Mrs. Martinez displayed the sales receipt. However, when she and the security officer went to see the cashier who had handled the particular transaction, she could not be found.
The plaintiff then was taken to the security office in the store where she was shown her old trench coat and was told by the security people that it had been found on a hanger on the rack.
After refusing to sign a document which the plaintiff described as one releasing Korvette, the parties proceeded to a police station where a hearing was held before a justice of the peace.
The evidence about what transpired at the magistrate's office is extremely brief. Mrs. Martinez testified there, as did the female security officer, a finding of guilt was made, and the defendant sentenced to pay a fine.
Later, an appeal was taken to the Court of Common Pleas of Montgomery County. No one from the defendant's store appeared at the time set for the trial and the case was dismissed.
There was no testimony in the district court as to what evidence was introduced by the parties at the magistrate's hearing or anything tending to show that the guilty finding was returned as the result of fraud or corruption. The trial judge, therefore, was confronted with positive evidence of a guilty finding against the plaintiff by the justice of the peace as well as testimony by Mrs. Martinez which would, if believed, establish her innocence of the crime in fact.
The Pennsylvania courts have historically taken a grudging view toward recovery in suits for malicious prosecution, and have imposed a heavy burden which must be met before a case may be submitted to a jury. The plaintiff has the burden of proving lack of probable cause and despite the difficulty of establishing a negative, the requirement is rigidly enforced. In Miller v. Pennsylvania Railroad, 371 Pa. 308, 89 A.2d 809, 812 (1952), the court said:
"Plaintiff has produced no affirmative evidence that defendant lacked probable cause. Plaintiff does not make out a prima facie case simply by proving his ...