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JOSEPH CAP v. K-MART DISCOUNT STORES (08/08/86)

SUPERIOR COURT OF PENNSYLVANIA


decided: August 8, 1986.

JOSEPH CAP, APPELLANT,
v.
K-MART DISCOUNT STORES, INC., K-MART STORE NO. 3361, JEFFREY L. MILLER, "JOHN DOE" MECHANIC, K-MART CORP., SUPERVISORS AND MANAGERS OF JEFFREY L. MILLER AND JOHN DOE, APPELLEES

Appeal from the Order Entered August 14, 1985 in the Court of Common Pleas of Lehigh County, No. 85-C-474.

COUNSEL

Joseph E. Cap, in propria persona.

Edward H. McGee, Allentown, for appellees.

McEwen, Olszewski, and Kelly, JJ. Kelly, J., concurred in the result.

Author: Olszewski

[ 357 Pa. Super. Page 10]

Appellant challenges the lower court determination that his action for malicious prosecution should be dismissed because: (1) the statute of limitations bars the claim,*fn1 and (2) the complaint does not state a cause of action. Our decision today specifies that the statute of limitations for a malicious prosecution claim begins to run, not on the day of

[ 357 Pa. Super. Page 11]

    the incident, but at the time a plaintiff is successfully vindicated of the charges against him. Pursuant to this holding, that part of the lower court opinion declaring otherwise is reversed. Our decision also reverses that part of the lower court dismissing the complaint for not stating a cause of action.

The facts, as set out in the complaint, are as follows. On February 11, 1982, appellant took his automobile to K-Mart to have it inspected. When told that it would not pass inspection without certain repairs being done first, appellant disagreed and refused to pay the cost of the inspection, $8.88. Appellant and his vehicle were detained at the K-Mart garage while an employee called the police. Appellant was charged with theft of services for refusing to pay for the inspection. On July 8, 1982, appellant was found guilty by a "justice of the peace."

Appellant took his case to the Lehigh County Court of Common Pleas. After a de novo hearing, he was found not guilty on March 7, 1983. Appellant filed a pro se complaint on March 6, 1985 raising claims of negligent inspection, false imprisonment, wrongful detention and malicious prosecution. Only the claim of malicious prosecution is presently before us.

We first address the issue concerning the statute of limitations. Specifically, we are called upon to determine when the statute of limitations begins to run in a malicious prosecution case. Appellant argues the run date should be the date the action was terminated in his favor, March 6, 1985, for our purposes. Appellees, however, contend the run date starts the day of the incident resulting in the arrest, which is February 11, 1982 in this case. The lower court agreed; we do not.

The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. 51 Am.Jr.2d, Limitation of Actions Sec. 107 (1970).

[ 357 Pa. Super. Page 12320]

A.2d 117 (1974). Further, in ruling on a demurrer, the court may consider only such matters as arise out of the complaint; it cannot supply a fact missing in the document under scrutiny. Linda Coal and Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964).

As set out previously, there are three elements of an action for malicious prosecution: (1) malice, (2) lack of probable cause, and (3) favorable termination. Although ultimately found not guilty, appellant was initially found guilty of the summary offense before a "justice of the peace." The lower court relied upon Lynn v. Smith, 193 F.Supp. 887 (W.D.Pa.1961), which held that a conviction by the justice of the peace in a summary proceeding, even though reversed on appeal, is sufficient proof of cause to defeat an action for malicious prosecution. We do not agree. Appellant's complaint, therefore, was improperly dismissed.

Order vacated. Remanded. Jurisdiction is relinquished.

Disposition

Order vacated. Remanded. Jurisdiction is relinquished.


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