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filed: November 6, 1981.


No. 267 Pittsburgh, 1980, Appeal from the judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. 17 July Term 1969.


David B. Washington, Pittsburgh, for appellants.

H. David Rothman, Pittsburgh, for appellee.

Spaeth, Shertz and Montgomery, JJ. Montgomery, J., files a dissenting statement.

Author: Spaeth

[ 292 Pa. Super. Page 230]

This is an appeal from an order denying a motion for judgment n.o.v. or new trial. The action is for malicious prosecution. The jury returned a verdict of $20,000 compensatory damages and $30,000 punitive damages. Appellant argues that the verdict was not supported by the evidence, and was excessive. Finding no merit in either of these arguments, we affirm.

[ 292 Pa. Super. Page 2311]

This action was brought in April 1969. In July 1973 the case was tried. When appellant failed to appear, findings by a judge sitting without a jury of $2,500 compensatory damages and $2,500 punitive damages were entered against him. On June 17, 1976, appellant petitioned to open the judgment that had been entered on the findings. The petition was granted on May 25, 1977, and the case was retried, before a jury, in November 1979. The evidence may be summarized as follows.

Appellee, James R. Shelton, was a self-employed plumber, and a life-long friend of Robert and Jessie Evans. He had often made repairs on properties owned by the Evanses. Robert Evans died in 1946. Jessie Evans died in 1967 and in her will named appellee as her sole heir. Her executor, a Pittsburgh attorney, asked appellee to collect the rents on the properties in her estate. Appellee did, depositing the rents he collected in a special account. The executor also transferred an automobile from the estate to appellee.

Appellant, Benjamin Amos, was an attorney practicing in the District of Columbia. He represented several relatives of Robert Evans who were pressing claims against the estate under a contingent fee arrangement whereby appellant would receive a percent of the monies he succeeded in recovering from the estate. Appellant associated himself with a Pittsburgh attorney, Robert Truel. Truel served appellee with a notice of deposition. Answering all questions put to him, appellee was deposed for two days concerning his involvement with the estate. A couple of weeks after the deposition, a constable appeared at appellee's home late in the evening. In the presence of his wife, appellee was served with a warrant for his arrest on four separate criminal complaints alleging that he had wrongfully converted assets of the estate. The complaints were signed by a relative of Robert Evans, Ethel Evans, whom appellee had known all his life. When the constable ordered appellee to accompany him back to the jail, appellee called his attorney,

[ 292 Pa. Super. Page 232]

    who convinced the constable that appellee need not go to jail but would appear to answer the charges.

Two hearings were held before the magistrate. On March 12, 1968, Ethel Evans appeared but offered no evidence in support of any of the four complaints. At appellant's request, the magistrate postponed the proceedings until April 16, 1968, at which time appellant asked that the charges all be withdrawn.

There is no question but that the charges were baseless. Truel testified that he first learned of the charges from appellant. He further testified that Ethel Evans, an elderly, uneducated woman, did not understand either the contents of the charges or the nature of the criminal process she had invoked, and that appellant had asked him to sign the complaints. He further testified that after the first hearing, appellant had assumed the responsibility for gathering evidence to support the charges but never asked him to verify the transfer of the automobile -- an asset alleged to have been wrongfully converted.

A cause of action for malicious prosecution requires that the following elements be proved:

A private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged is subject to liability for malicious prosecution if

(a) he initiates or procures the proceedings without probable cause and primarily for a purpose other than that of ...

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