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filed: February 15, 1985.


NO. 555 Pittsburgh, 1982, Appeal from the Order of May 14, 1982 in the Court of Common Pleas of Allegheny County, Civil, No. GD79-27460. NO. 565 Pittsburgh, 1982, Appeal from the Judgment entered on May 20, 1982 in the Court of Common Pleas of Allegheny County, Civil, No. GD79-27460. Issue No. 109723.


Giles J. Gaca, Pittsburgh, for appellant (at 555) and appellee (at 565).

Jon L. Friedman, Pittsburgh, for appellant (at 565) and appellee (at 555).

Brosky, McEwen and Beck, JJ. Brosky, J., files a concurring opinion.

Author: Mcewen

[ 339 Pa. Super. Page 269]

Howard Johnson Company [hereinafter appellant] appeals from the $100,000 judgment entered against it in this malicious prosecution action following denial of its motions for judgment n.o.v. and new trial. We affirm.

Appellee, Rose Mary Wainauskis, filed a complaint against appellant, her former employer, setting forth four causes of action, specifically, claims for malicious abuse of process, wrongful discharge, slander and intentional infliction of emotional distress. When appellee had concluded the presentation of the liability portion of her case, the distinguished Judge S. Louis Farino entered a non-suit as to her causes of action for wrongful discharge, slander and

[ 339 Pa. Super. Page 270]

    intentional infliction of emotional distress.*fn1 The jury returned a verdict in favor of appellee and against appellant in the amount of $100,000 on the count for malicious prosecution.

Appellant argues that it is entitled to judgment n.o.v. as the trial court erred when it refused to hold that, as a matter of law, there was probable cause for the institution of criminal proceedings against appellant. Appellant relies upon the opinion of this Court in DeSalle v. Penn Central Transportation Co., 263 Pa. Super. 485, 488, 398 A.2d 680, 681 (1979) for its position.

"In reviewing the denial of a motion for judgment n.o.v., we must view the evidence in the light most favorable to the verdict-winner. Only evidence supporting the verdict may be considered with the rest being rejected. All conflicts in the evidence are to be resolved in favor of the verdict-winner . . . ." Dunlap v. Philadelphia Newspapers, Inc., 301 Pa. Super. 475, 478, 448 A.2d 6, 8 (1982). Accord McDevitt v. Terminal Warehouse Company, 304 Pa. Super. 438, 441, 450 A.2d 991, 993 (1982); DeSalle v. Penn Central Transportation Co., supra 263 Pa. Super. at 488, 398 A.2d at 681. The evidence produced at trial reveals that appellee began working for appellant as a part-time bookkeeper in 1965. A few months thereafter appellee was accepted into appellant's management trainee program and for the next four and one-half years was employed as an assistant manager of appellant's Scott Township store. In 1970, appellee accepted employment with another employer and left Howard Johnson Company. Appellee worked elsewhere until 1976, when she returned to Howard Johnson's Scott Township restaurant. She was then transferred to the McKnight Road store as an assistant manager until late 1977, when she became assistant manager of the Boulevard of Allies restaurant. On July 29, 1978, appellee returned to the Scott Township restaurant as assistant manager. The

[ 339 Pa. Super. Page 271]

    store was then managed by a Mr. Andrews who was transferred to another location in August. Appellee was informed that a replacement manager would be assigned to the Scott Township facility but that until such time as the replacement manager arrived, she was "in charge" of the restaurant.

The area manager for appellant testified that at all times prior to the incident giving rise to the instant action, appellee was considered a "good employee" of Howard Johnson Company. Appellee's duties included authorizing employee time sheets, preparing work schedules, making daily cash receipt deposits, completing daily deposit slips, weekly sales and cash reports and forwarding copies of all such reports to appellant's headquarters and to the area manager. Sometime in December of 1978, appellant became aware that the daily cash receipts from the Scott Township restaurant were not being deposited in accordance with company regulations. Bookkeeping in all of appellant's stores was based upon twenty-four hour periods which began and ended at 3:00 p.m. each day. Receipts from each 24 hour period were to be deposited in the bank each day in the late afternoon or early evening, provided that no employee was to make such deposits alone after dark. During the months of November and December of 1978, appellee assumed the duties of the cook each afternoon after 2:00 p.m. and, therefore, was not able on most days to deposit the daily receipts before dark. She, therefore, deposited the day's receipts the next day, usually between the hours of 10:00 a.m. and 12:00 p.m., by placing the deposit bag in the night depository at the bank.

When Area Manager Thomas Jenkins was directed to ascertain why deposits from the Scott Township restaurant were not being made in a timely fashion, and he informed appellee on December 29, 1978, that bank records indicated her deposits were being made late, they both proceeded that day to the bank to ascertain why the deposits were being entered late. They learned there that those deposits which appellee made by depositing bags in the night depository

[ 339 Pa. Super. Page 272]

    during banking hours were not opened and received by the bank until the following morning. As a result, the deposits were entered by the bank two days after the day on which they were received by the store. Appellee decided while at the bank to pick up the bank deposit bags previously placed in the night depository which the bank customarily held until an authorized employee retrieved them. Appellee then learned, and informed Mr. Jenkins, that no deposit bags were in the possession of the bank. Further inquiry revealed that two of the deposit bags used by the Scott Township store were missing and that the bank had no record of the deposits allegedly made on December 23, December 26, December 27 and December 28. The bank was unable, after further investigation, to discover any record of the missing deposits having been made. Mr. Jenkins informed headquarters of the discrepancy between appellee's records and the bank's records. Appellee continued to perform her usual duties at the Scott Township restaurant until January 4, 1979.

On that date, Earl Bleser, Manager of Security and Loss Prevention for Howard Johnson Company, after reviewing the sales and cash reports and deposit slips regularly forwarded from the Scott Township store by appellee, discussed the matter with Area Manager Jenkins for approximately 30 minutes before proceeding to interview appellee at the Scott Township store.

Mr. Jenkins testified at trial that he thought that he had informed Mr. Bleser that at least six people were in possession of the combination to the safe located in the Scott Township store but admitted that he had not told Mr. Bleser that appellee called him during the first week of December and reported finding a deposit bag containing cash hidden in the linen closet. Appellee testified that when she discovered the money secreted in the closet she called Mr. Jenkins, asked him what measures she should undertake and asked him to change the combination on the store safe. Although Mr. Jenkins assured appellee that he would have the combination

[ 339 Pa. Super. Page 273]

    to the safe changed, he failed to do so prior to January 4, 1979.

Appellee testified that she explained to Mr. Bleser her procedures for depositing daily receipts, namely, that she would complete her deposit slips and reports in the late afternoon or early evening, place the cash and deposit slips in the bank depository bag and place the bag in the safe. The following morning, after arriving at the store and attending to a few simple tasks, appellee would place the sealed deposit bag in her pocketbook, leave the restaurant and drive a few blocks to the bank where she would place the bag in the night depository slot rather than wait in line inside the bank to make her deposit.

Appellee further testified that she gave Mr. Bleser the names of seven other Howard Johnson employees who knew the combination to the restaurant safe, informed him of her discovery of the deposit bag secreted in the linen closet and told him of Mr. Jenkins' failure to pursue cautionary measures in response to the discovery of the hidden deposit bag. Appellee also stated that she informed Mr. Bleser that she had not worked on December 28, 1978, one of the dates for which the daily receipts were missing.

Approximately twenty-five minutes after the interview had commenced, Mr. Bleser informed appellee that in his opinion "[she] was in charge of the store and [she] was responsible for the theft" and asked appellee if she was willing to make restitution. When appellee refused and explained that she would not make restitution as she had not taken the money, Mr. Bleser told appellee that she was dismissed, that she was to balance the contents of the safe with Mr. Jenkins and, that she was to leave the premises. Lieutenant Kowalo of the Scott Township police department arrived shortly thereafter in response to Mr. Bleser's call and explained to Mr. Bleser that the police department would not undertake the prosecution of appellee. Lieutenant Kowalo suggested to Mr. Bleser that he contact the district justice and the district attorney's office if he wished to press charges. Mr. Bleser did so immediately by completing

[ 339 Pa. Super. Page 274]

    a criminal complaint charging appellee with the theft of the four missing deposits. He also subsequently testified against appellee at the preliminary hearing. When the first jury to try appellee on the criminal charges could not reach a verdict, a mistrial was declared. When appellant was retried, the second jury acquitted her. She thereafter instituted the present action against her former employer.

Mr. Bleser testified at trial that he never investigated appellee's prior employment history or her personal background and was even unaware of how long she had been employed by Howard Johnson's at the time that he decided to file criminal charges against her. Mr. Bleser testified, moreover, that he spoke only with Mr. Jenkins and appellee before he concluded that appellee was responsible for the theft of the monies.

In contradiction to appellee's testimony, Mr. Bleser testified that he was never informed of the incident involving the deposit bag found in the linen closet and that while Mr. Jenkins told him that appellee did not work on December 28, Bleser testified that appellee had told him that she had worked on that date.

Mr. Bleser testified at trial that he determined to prosecute appellee for theft based upon the fact that "she told me she took the money." When counsel for appellee inquired into Mr. Bleser's statement that he filed criminal charges against appellee as a result of her ...

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