criminal defendant to proceed with a malicious prosecution claim would permit a collateral attack on the conviction through the vehicle of a civil suit. Id. Perhaps most importantly, it has been noted that courts will simply not tolerate inconsistent judgments. 52 Am.Jr.2d, Malicious Prosecution § 29 at 205.
The confusion arises, however, when the underlying criminal action is disposed of in some manner short of a judgment of guilty or not guilty. It is clear that the civil plaintiff need not demonstrate that the charges were disposed of on the merits, but only that the disposition was "consistent with innocence" or, in other words, in a manner that is "inconsistent with guilt." Thomas v. E. J. Korvette, Inc., 329 F. Supp. 1163, 1168 (E.D.Pa.1971), rev'd on other grounds, 476 F.2d 471 (3d Cir. 1973); Restatement of Torts (2d) § 660. Several examples of terminations which are short of "determinations on the merits" but which are nonetheless sufficiently favorable to allow the claim to move ahead are:
(1) a discharge by a magistrate at a preliminary hearing;
(2) the refusal of a grand jury to indict;
(3) the formal abandonment of the proceedings by the public prosecutor; or,
(4) the quashing of an indictment. Restatement of Torts (2d) § 659.
A termination which is "indecisive" will not support the malicious prosecution claim. Id., § 660. Several examples of indecisive terminations are:
(1) a charge that is withdrawn pursuant to an agreement with the accused (Restatement of Torts (2d) § 660);
(2) a charge that is withdrawn out of mercy requested or accepted by the accused (Id.);
(3) the entry of a plea of nolo contendere (P.L.E. Malicious Prosecution § 5 at 289); or,
(4) a pardon by the executive (Id.).
It is necessary to briefly outline the salient features of the A.R.D. program, as established by Rules 175-185 of the Pennsylvania Rules of Criminal Procedure. The procedure is as follows: The prosecutor, on his own motion or at the defendant's request, may "move that the case be considered" for A.R.D. Rules 175, 176. Notice must then be sent to the defendant, and to the victim, of the prosecutor's intention to institute an A.R.D. proceeding. Rule 177.
Subsequently, a hearing is held in open court during which the court must conduct a colloquy with the defendant, who must state that: (1) (s)he n* understands that completion of A.R.D. will permit them to "earn a dismissal" of the charges; (2) (s)he understands that the failure to comply with the program may lead to further prosecution; and, (3) (s)he agrees that if they are accepted into A.R.D. they will waive their rights under applicable speedy trial and statute of limitations provisions of law. Rule 178.
Upon completion of the terms imposed, the defendant may make application for dismissal. Rule 185. However, if the defendant violates such terms, the A.R.D. disposition may be cancelled and the prosecutor may proceed with the charges. Rule 184.
In sum, although A.R.D. is not an adjudication of guilt (see Advisory Committee Report), very substantial, onerous and costly terms and sanctions may be imposed. Moreover, a failure to comply may place the defendant in the same position on the criminal justice track that (s)he occupied before the A.R.D. disposition. In the words of Rule 178(1), (s)he must "earn" the dismissal of the charges. On the other hand, it is clear that A.R.D. cannot be imposed on a defendant. Rather, on at least two separate occasions during the colloquy, the defendant must request or accept the A.R.D. program. This Court views A.R.D. as an arrangement which is agreed to by the prosecutor, the court and the defendant but which includes the correctional goals of punishment and rehabilitation. See Shade v. Commw. of Penna. Dept. of Trans., 394 F. Supp. 1237, 1240 (M.D.Pa.1975). It is the goal of rehabilitation which is enhanced by the non-adjudicatory features of A.R.D.
The Court's examination of the decisional authorities on the question of whether A.R.D. or any similar program is a "favorable termination," for the purpose of a malicious prosecution claim, has yielded no directly applicable case law. Nonetheless, analogous Pennsylvania cases convince the Court that Davis' claim must be dismissed.
In Alianell v. Hoffman, 317 Pa. 148, 176 A. 207 (1935), the accused agreed to pay $ 20 in restitution in return for which the charges of theft were dismissed. The Supreme Court of Pennsylvania stated as follows:
It is clear that in these circumstances appellant has no ground for maintaining an action to recover damages for the alleged malicious prosecution. By compromising and settling the criminal charges made against him, appellant destroyed an essential element in his case. To entitle plaintiff to recover in an action for malicious prosecution, it must clearly appear that the prosecution was without probable cause: . . . The settlement of the criminal case negatives (sic) the averment that the prosecution was made without probable cause. "Where the termination of a criminal prosecution or civil action has been brought about by the procurement of defendant therein, or by compromise and settlement, an action for malicious prosecution cannot be maintained."
Id. at 149, 176 A. at 207-08 (emphasis added) (citation omitted). This position comports with the position taken in § 660(a) of the Restatement of Torts (2d) that a compromise or a settlement which occurs by agreement is not a favorable termination. Comment c to § 660(a) states as follows:
c. Compromise. Although the accused by his acceptance of a compromise does not admit his guilt, the fact of compromise indicates that the question of his guilt or innocence is left open. Having bought peace the accused may not thereafter assert that the proceedings have terminated in his favor.