Justice also prepared another affidavit of probable cause that included a more detailed factual recitation and identified McAllister and Shenkman as the sources of the information obtained through the interviews of September 21, 1987 and September 30, 1987. Justice then sent the new affidavit of probable cause to Tompkins, who in turn gave it to Callahan for review. Callahan subsequently sent the affidavit to Shenkman for his review and comments. Justice then gave the affidavit to Montgomery County Assistant District Attorney William McElroy (who had been involved in the hearings on the initial complaint). McElroy reviewed the affidavit and, after urging Justice to make some minor changes in its form, signed it and presented it, along with the second criminal complaint, to District Justice John Kowal.
On March 8, 1988, District Justice Kowal approved the second complaint. Gilbert, having been given prior notice of the second complaint, surrendered to the authorities upon its issuance.
Gilbert again applied for a writ of habeas corpus. On January 5, 1989, after a preliminary hearing and oral argument on the habeas petition, the Montgomery County Court of Common Pleas granted Gilbert's petition for habeas corpus without opinion or explanation, and the charges against Gilbert were dropped.
In February 1989, Feld brought a civil action against both Gilbert and Suny in the Montgomery County Court of Common Pleas. Feld alleged, among other claims, that Gilbert made various fraudulent and negligent misrepresentations, breached their contract and, along with Suny, engaged in an unlawful civil conspiracy. In particular, Feld claimed that (1) with regard to the sale of the lot at 115 DeKalb Pike, Gilbert failed to reveal that Suny had a property interest in the lot equal to his own; (2) after Suny's interest was revealed, Gilbert repeatedly assured agents of the purchasers that Suny would consent to the Agreement; and (3) Gilbert used these misrepresentations to extort an additional payment of $ 66,000 from Feld for the lot. On September 18, 1991, the jury found that Gilbert had fraudulently misrepresented his interest in the property, and awarded Feld $ 66,000 in damages.
The Court of Common Pleas denied defendant Gilbert's motion for a j.n.o.v. or for a new trial, and, on November 23, 1992, the Superior Court affirmed the trial court's denial of Gilbert's post-trial motion. Gilbert's application for reargument is currently pending before the Superior Court of Pennsylvania.
On June 14, 1991 -- after Feld's state civil action against Gilbert was initiated, but before the trial -- Gilbert filed the instant federal complaint against Feld, Shenkman, Tompkins, the defendant law firm, and Justice. The complaint alleged causes of action against all defendants for: (1) malicious prosecution; (2) abuse of criminal process; (3) false arrest/imprisonment; (4) intentional infliction of emotional distress; (5) civil conspiracy; and (6) violation of Gilbert's civil rights under 42 U.S.C. § 1983.
In a March 30, 1992 order, in response to defendants' motions to dismiss, I dismissed the § 1983 claims against the private-party defendants (Feld, Shenkman, Tompkins and the defendant law firm) and the civil conspiracy claim against defendant Justice, but allowed the § 1983 claim against Detective Justice and the various state law claims against all of the defendants to proceed, with diversity as the basis for federal jurisdiction against the private-party defendants. Thus the claims that remain are: (1) malicious prosecution (against all defendants); (2) abuse of criminal process (against all defendants); (3) false arrest/imprisonment (against all defendants); (4) intentional infliction of emotional distress (against all defendants); (5) civil conspiracy (against all defendants except Justice) and (6) civil rights violations under § 1983 (against Justice only). Presently before this court are the defendants' various motions for summary judgment on all of the remaining claims.
Standard of Review
Summary judgment may be granted when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in that party's favor.
Malicious Prosecution (all defendants)
Under Pennsylvania law, which the parties agree applies to plaintiff's state law claims, a plaintiff alleging malicious prosecution must prove that, whether the defendant is a law enforcement official or a private party, (1) the defendant instituted proceedings against plaintiff (a) without probable cause and (b) with malice, and (2) the proceedings terminated in favor of the plaintiff. Griffiths v. Cigna Corp., 988 F.2d 457, 463 (3d Cir. 1993); Kelley v. General Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (Pa. 1988).
If any of these elements cannot be proven, the malicious-prosecution plaintiff cannot prevail.
There is no question that the criminal proceedings against Gilbert terminated in his favor (with the granting of his second petition for habeas corpus). Each of the defendants, however, disclaims responsibility for instituting the proceedings; and each of the defendants denies malice. Whether there are material issues of fact with respect to those ingredients of Gilbert's claim I need not determine, since I am persuaded that Gilbert has failed to establish that there was no probable cause for the institution of criminal proceedings against him.
A person who institutes a criminal proceeding with clear malicious intent cannot be held liable for the tort of malicious prosecution if, at the time of initiating charges, he or she has probable cause to believe that a crime has been or is being committed. That is to say, "want of probable cause is an indispensable element" of a claim of malicious prosecution. Byers v. Ward, 368 Pa. 416, 84 A.2d 307, 309 (Pa. 1951) (emphasis in original).
According to the Pennsylvania Supreme Court:
By probable cause is not meant an actual state of guilt. One is justified in launching a criminal investigation if the facts convince him, as a reasonable honest and intelligent human being, that the suspected person is guilty of a criminal offense.
Neczypor v. Jacobs, 403 Pa. 303, 169 A.2d 528, 530 (Pa. 1961). The plaintiff bears the burden of demonstrating the absence of probable cause, notwithstanding the fact that the criminal proceedings terminated in his favor. See Simpson v. Montgomery Ward & Co., 354 Pa. 87, 46 A.2d 674, 676 (Pa. 1946) ("Neither an acquittal of the defendant in a criminal prosecution, nor the ignoring of the bill against him by the grand jury, nor his discharge by the examining magistrate, constitute proof of want of probable cause, or shifts the burden of proof to the defendant in the civil action."). The Pennsylvania Supreme Court has emphasized that the plaintiff's burden is a heavy one. Concerned that law enforcement not be compromised and that honest prosecutors not be deterred from seeing that criminals are brought to justice, the Pennsylvania Supreme Court has repeatedly noted that malicious prosecution claims are disfavored, with the risk of false accusation borne, as a general matter, by the defendant. See Kelley, 544 A.2d at 942; Miller, 89 A.2d 809 at 809-10; Simpson, 46 A.2d at 681.
Motivated by this desire to shield the honest prosecutor from liability for damages flowing from an unsuccessful prosecution, and by the concern that jurors are apt to confuse the question of the criminal defendant's guilt or innocence, as determined in the criminal proceeding, with the question of whether the malicious prosecution defendant had probable cause to initiate that proceeding, Pennsylvania courts treat the existence of probable cause as a legal question for the court to decide before trial:
There is no principle more firmly imbedded in the law than the principle that in case of malicious prosecution, the question of want of probable cause for the criminal prosecution which gave rise to the civil action, is a question not for the jury but for the court. . . . It has been immemorially held that the public interest requires that the legally trained mind of the judge and not the more or less emotional minds of jurors, decide whether or not there was probable cause for the initiation of the prosecution. Jurors are likely to confuse the issue of guilt or innocence of the defendant in the criminal case out of which the civil action originated with the basic issue whose determination decides the civil action. The basic issue is the want of probable cause for the criminal prosecution.
Simpson, 46 A.2d at 676. When the probable cause determination depends upon disputed issues of material fact, the trial court should submit only the factual disputes to the jury and then make the probable cause determination based upon the jury's findings of fact. See Thomas v. Korvette, Inc., 476 F.2d 471, 475 (3d Cir. 1973); Simpson, 46 A.2d at 678-79.
The test for probable cause described above has a subjective and an objective component. Whether a malicious prosecution defendant had probable cause to initiate the criminal prosecution out of which the malicious prosecution claim originated depends upon both: (1) whether the defendant honestly believed that the accused committed the crime for which the accused was prosecuted (the subjective component); and (2) whether the defendant reasonably believed that the accused was guilty of the crime charged (the objective component). See Neczypor, 169 A.2d at 531; Simpson, 46 A.2d at 678. I will address these two questions in turn, with respect to each of the defendants named in the malicious prosecution counts.
A. Honesty of belief
1. Defendants Shenkman and Feld
The existence of probable cause cannot be ascertained at the summary judgment stage with respect to Shenkman or any other defendant if Gilbert has produced evidence from which a jury could reasonably find that, at the time of the prosecution, the defendant in question lacked an honest or actual belief that Gilbert had committed a crime. However, with respect to Shenkman the uncontradicted evidence reveals that he actually believed that Gilbert had committed a crime at the time the criminal charges were brought.
It is undisputed that, when Shenkman, in mid-July of 1987, contacted the defendant law firm to see whether Gilbert could be prosecuted, Shenkman (1) knew that Gilbert had, on October 31, 1986, signed the Agreement of Sale that described him as the "Seller" and (2) believed that Gilbert had not told any representative of Today's Man about Suny's co-ownership before the Agreement was signed.
There is substantial and uncontradicted evidence, in the form of Shenkman's own statements to Gilbert, that Shenkman actually believed that Gilbert's conduct was criminal. In mid-July, 1987, Shenkman told Gilbert that Gilbert had "committed a criminal violation" and that if Suny did not sign the agreement by the end of the week, Gilbert would hear from the FBI. Plaintiff's App. III, Ex. DD at 96. After agreeing in the July 17th meeting to pay Gilbert the full $ 520,000 sought, Shenkman told Mandel that he thought that he had been a victim of extortion and indicated that he intended to ask counsel whether Gilbert's actions violated any criminal laws. Plaintiff's App. III, Exh. EE at 46-47. Immediately after settlement on September 16, 1987, Shenkman accused Gilbert and Suny of being crooks. See Plaintiff's App. II, Exh. H at 81-82; Plaintiff's App. II, Exh. G. at 51.
Gilbert points to no evidence that casts doubt on the sincerity of Shenkman's repeatedly expressed belief that Gilbert had committed a crime. Indeed, Gilbert himself relies on Shenkman's accusations as evidence of Shenkman's malice. See Gilbert's Brief in Opposition to Feld and Shenkman's Motion for Summary Judgment, at 64. Based on the facts considered in the light most favorable to Gilbert, I conclude there is no evidence of record that casts doubt on the proposition that Shenkman honestly believed that Gilbert's actions were criminal.
As explained in note 26, supra, Gilbert seeks to hold defendant Feld vicariously liable for the alleged malicious prosecution by his agent, Shenkman. Because there is no evidence to cast doubt on the honesty of Shenkman's belief that Gilbert had committed the crimes with which he was charged, there is likewise no reason to doubt the honesty of Feld's belief.
2. Defendant Tompkins and Defendant Law Firm
Like Shenkman, Tompkins knew that Gilbert had signed the Agreement of Sale in which Gilbert was described as "Seller" without disclosing Suny's co-ownership of the property. Tompkins also testified that, based on his conversation with Callahan, he thought that Gilbert had at some point represented that he owned the property or had authority to convey it. See Plaintiff's App. I, Exh. E, at 32-33. It is undisputed that Gilbert did not make any affirmative representation to the effect that he was the sole owner of the property. Nonetheless, Gilbert points to no evidence that (1) suggests that Tompkins knew about the inaccuracy in the facts described by Callahan or (2) otherwise casts doubt on the honesty of Tompkins' belief that Gilbert's conduct was criminal.
As explained in note 28, supra, Gilbert proceeds against defendant law firm on a theory of vicarious liability. Because I find that there is no evidence in the record that casts doubt on the honesty of Tompkins' belief that Gilbert committed the crimes with which he was charged, there is likewise no evidence to cast doubt upon the honesty of the law firm's belief.
3. Defendant Justice
As described above, Tompkins and Lukas met with Chief of Detectives Oscar Vance on September 15, 1987, the day before the settlement. Tompkins gave Vance a copy of the private complaint form and a completed criminal complaint, and Tompkins also orally summarized the information for Vance. Toward the end of the meeting, Vance called Detective Justice into his office to discuss Gilbert's arrest. Vance gave Justice a copy of the completed criminal complaint and told Justice to take the complaint to Montgomery County District Justice Katherine Speers for her approval and for an arrest warrant. Vance also instructed Justice to carry out the arrest. On September 16, 1987, Justice arrested Gilbert after the settlement.
Although Gilbert criticizes Justice for failing independently to verify the facts in the criminal complaint -- facts which were reiterated in the probable cause affidavit signed by Justice -- Gilbert points to no evidence that Justice did not honestly believe that Gilbert had committed the crime charged, Securing Execution of Documents by Deception, 18 Pa. C.S.A. § 4114. After Gilbert's first habeas petition was granted on the ground that the probable cause affidavit failed to specify the sources of the information, First Assistant District Attorney Carpenter told Justice to examine the relevant documents and interview witnesses and, if the information in the original complaint was verified, to re-arrest Gilbert. Justice gathered some additional documents and interviewed Tompkins, then prepared a second criminal complaint which added the charge of Theft by Deception, 18 Pa. C.S.A. § 3922(a)(1)&(3). Again, Gilbert points to no evidence to cast doubt on the sincerity of Justice's belief that Gilbert had committed the crimes charged.
B. Reasonableness of belief
On the undisputed facts, defendants Shenkman, Tompkins and Justice reasonably believed that Gilbert had committed the two crimes with which he was charged. Gilbert proceeds against defendant Feld and defendant law firm on a theory of vicarious liability for alleged torts of their agents. Therefore, I do not need to analyze independently whether Feld and the law firm reasonably believed that Gilbert had committed the crimes with which he was charged.
In the first criminal complaint, Gilbert was charged only with Securing Execution of Documents by Deception, in violation of 18 Pa. C.S.A. § 4114. That section provides:
A person commits a misdemeanor of the second degree if by deception he causes another to execute an instrument affecting or purporting to affect or likely to affect the pecuniary interest of any person.
The second criminal complaint added the charge of Theft by Deception, in violation of 18 Pa. C.S.A. § 3922(a)(1)&(3). Section 3922 provides:
(a) Offense Defined-- A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally: