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NANCY KELLEY v. GENERAL TEAMSTERS (07/28/88)

decided: July 28, 1988.

NANCY KELLEY, APPELLEE,
v.
GENERAL TEAMSTERS, CHAUFFEURS, AND HELPERS, LOCAL UNION 249, APPELLANT



Appeal from the Order of the Superior Court at No. 127 Pittsburgh, 1985, dated November 10, 1986 denying Appellant's Application for Reargument, the Order of the Superior Court at the same number and term dated September 22, 1986, affirming in part and reversing in part the judgment entered December 31, 1984 in the Court of Common Pleas of Allegheny County, Civil Division, No. GD-80-18565. 361 Pa. Super. 639; 517 A.2d 1368 (1986).

COUNSEL

John J. McLean, Jr., Buchanan Ingersoll, P.C., Pittsburgh, for appellant.

Louis H. Ceraso, New Kensington, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, Justice, files a concurring opinion.

Author: Flaherty

[ 518 Pa. Page 519]

OPINION OF THE COURT

Local Union 249 of the General Teamsters, Chauffeurs and Helpers appeals from the order of the Superior Court affirming an award of damages against the union entered upon a jury verdict in a malicious prosecution case brought by a former employee, Nancy Kelley. Due to the fact that the union proved, as a matter of law, that it had probable cause to initiate criminal proceedings against Ms. Kelley, we reverse the order of Superior Court and direct the entry of judgment n.o.v. in favor of the appellant union.

Ms. Kelley was hired by the union local in 1967, and worked in the department which received and accounted for the dues paid by over 6,000 union members. In October 1978, her co-worker Deborah Banks confessed that she had been stealing from the union. Banks signed a statement admitting the theft, expressing a desire to restore the funds though she did not know how much money she had stolen, and stating that no one else was involved.

A private labor attorney, Joseph Pass, was retained to supervise an investigation. He engaged Richard Bell, an auditor from the international union, to audit the local union's funds. In December 1978, the audit concluded that $9,697 was missing, and Banks provided a second statement indicating she had stolen that amount. The investigation continued, however, due to the belief of Pass, Bell and Melvin Brooks, a CPA employed by the local union, that the thefts would have been difficult if not impossible for one person to accomplish alone.

In January 1979, Banks gave a third statement, in which she repudiated her prior statements that she had acted alone; she implicated Ms. Kelley in the scheme and alleged that the two had split the stolen money. Ms. Kelley denied the accusation, but she was suspended immediately pending further investigation. She filed a grievance over her suspension, but did not pursue it. The continuing investigation included a polygraph examination of Banks on October 8,

[ 518 Pa. Page 5201979]

, which indicated that she was truthful in implicating Ms. Kelley and denying the involvement of any union officials. Ms. Kelley declined an offer to undergo a polygraph test. Banks agreed to repay half the loss, or $5,000, and in return for her confession, cooperation, and restitution, the union agreed to forgo criminal proceedings against her.

Attorney Pass informed the district attorney of the investigation and received his approval to bring criminal charges against Ms. Kelley. Pass recommended to the union that charges be filed, and a union officer signed a criminal complaint. At Ms. Kelley's preliminary hearing, the magistrate held the case for court, and the district attorney subsequently ...


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