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GILBERT v. FELD

December 14, 1993

GARY GILBERT, Plaintiff
v.
DAVID FELD, ZEEV SHENKMAN, RICHARD TOMPKINS, the law firm of FOX, DIFFER, CALLAHAN, ULRICH & O'HARA, a partnership, and EDMUND JUSTICE, Defendants



The opinion of the court was delivered by: LOUIS H. POLLAK

 This case arises out of plaintiff Gary Gilbert's sale of a parcel of land located in King of Prussia, Pennsylvania. Because the defendant purchasers and their attorneys believed that Gilbert had committed criminal fraud in connection with that sale, criminal charges were brought against Gilbert. Those charges were subsequently dismissed. In the instant civil action, Gilbert alleges that various defendants are liable for: (1) malicious prosecution; (2) abuse of the criminal process; (3) false arrest and imprisonment; (4) intentional infliction of emotional distress; (5) civil conspiracy; and (6) civil rights violations under 42 U.S.C. § 1983. All of the defendants have filed for motions for summary judgment. For the reasons given below, the several summary judgment motions are granted in all respects and plaintiff's case is dismissed in its entirety.

 Part I of this opinion describes the factual background and procedural history of this case. Part II provides the standard of review. Parts III through VIII analyze whether on the undisputed facts, the motions for summary judgment should be granted.

 I.

 Factual Background and Procedural History

 At issue today are motions for summary judgment filed by the various defendants; consequently, the following factual recital accepts as true all evidence proffered by the nonmovant plaintiff, with all reasonable inferences drawn in his favor.

 Defendant David Feld is the President and majority shareholder of Feld & Sons, Inc., a retail men's clothing store chain that trades as Today's Man. Defendant Zeev Shenkman served as Vice President and Chief Financial Officer of Today's Man under Feld's immediate supervision from July 1986 through September 1987.

 In 1986, Today's Man -- in search of a desirable location on which to build a retail store -- became interested in a site comprised of six contiguous lots along the DeKalb Pike in King of Prussia, Pennsylvania. Feld authorized Shenkman to purchase these lots for development as a retail outlet.

 In July 1986, Feld retained the law firm of Fox, Differ, Callahan, Ulrich & O'Hara ("defendant law firm") to provide counsel about zoning issues relating to development of the lots. *fn1" One month later, Shenkman, on behalf of Today's Man, agreed to purchase five of the lots from their owner, Robert Euler, at a combined price of $ 1,600,000. *fn2" Shenkman could not purchase from Euler the sixth lot, adjacent to Euler's property and located at 115 West DeKalb Pike, because Euler did not own that lot.

 In an effort to purchase the 115 West DeKalb Pike lot, Shenkman retained a real estate broker, John D. McAllister, Jr. McAllister consulted the Philadelphia Real Estate Directory, which listed Gilbert as the sole owner of the property at 115 West DeKalb. See Defendants' App. III, Ex. R at 1024. McAllister did not check documentary sources such as tax maps or deed records to determine whether Gilbert was actually the owner of the lot or whether anyone else also might have an ownership interest in the lot. In fact, Gilbert's grandmother, Edith Suny, had a fifty percent interest in the lot; that interest had been established approximately a year before by a deed, dated August 20, 1985 and recorded in or about November 1985, in which Gilbert had transferred title to the property at 115 West DeKalb Pike from Gilbert alone to Gilbert and Suny. *fn3"

 Contemporaneously with McAllister's determination, on the basis of the listing in the Philadelphia Real Estate Directory, that Gilbert was sole owner of the lot, Fox, Differ -- the defendant law firm -- reached the same conclusion on the basis of its own investigation. Paul Callahan, a partner in the firm, instructed Richard Tompkins, an associate in the firm, to go to the Montgomery County Courthouse to get a copy of the index to the tax map. The index listed Gilbert as the owner of the lot at 115 West DeKalb.

 In August or September of 1986, McAllister approached Gilbert with the intent of purchasing the 115 West DeKalb lot for Today's Man. McAllister informed Gilbert that Today's Man had purchased the five adjacent lots and asked whether Gilbert was willing to sell the 115 West DeKalb lot. Gilbert requested information concerning the price paid for Euler's property and, after receiving such information, indicated that he wanted $ 520,000 for his property -- $ 200,000 more than had been paid for each of the other pieces of property. See Plaintiff's App. II, Ex. P at 483. Thereafter, McAllister and Gilbert engaged in a series of discussions regarding the purchase of the 115 West DeKalb lot. During these initial discussions, McAllister did not question Gilbert about his ownership of the lot or his authority to sell the premises, and Gilbert never explicitly claimed to be its sole owner. Conversely, Gilbert never intimated that anyone else had an ownership interest in the lot; according to Gilbert, he felt that the existence of a co-owner was "not an issue," so he "never brought it up." Defendants' App. IV, Exh. Sat 1390.

 At an early-morning meeting on October 31, 1986 at Michael's Restaurant in the Valley Forge Shopping Center, attended by, among others, McAllister, Gilbert, and Shenkman, Gilbert agreed to sell the lot to Today's Man for $ 454,000 -- that is, $ 66,000 less than Gilbert had originally asked. Again, during this meeting, no one asked Gilbert about his ownership of the lot or his authority to sell it, and Gilbert did not volunteer the information that his grandmother co-owned the lot. Shenkman instructed McAllister to prepare an Agreement of Sale. *fn4"

  The Agreement of Sale prepared by McAllister listed "Gary M. Gilbert" as "Seller," and "David Feld, or his Nominee, c/o Today's Man" as "Purchaser." Plaintiff's App. II, Ex. T. *fn5" The name of Gilbert's grandmother, Edith Suny, did not appear in the agreement at all, and Gilbert did not raise any question about that omission with McAllister or others. The Agreement provided two signature lines for the "Seller" and one for the "Purchaser." *fn6" The Agreement of Sale provided for, among other things, a refundable $ 10,000 purchase deposit to be held in escrow until settlement on the property. At Gilbert's direction, his attorney, Michael Reed, prepared an Endorsement that made the $ 10,000 deposit non-refundable and payable immediately to Gilbert. After Shenkman orally approved the Endorsement later in the day of October 31, 1986, McAllister presented the Agreement of Sale and the Endorsement to Gilbert. Gilbert reviewed the documents and signed on one of the seller lines, leaving the other line blank. Soon after, Feld also signed the Agreement. Both documents listed Gilbert as the seller, but neither expressly stated that Gilbert was the sole owner of the lot. Gilbert did not mention his grandmother's interest in the property. Settlement for the sale was to be made on or before February 27, 1987. After Feld signed the documents, Today's Man forwarded a $ 10,000 check to Gilbert.

 Shortly after the Agreement of Sale was signed, Callahan applied for a title report on the Gilbert property. He received the report in early December 1986. The report indicated that Edith Suny co-owned the premises. Callahan mailed copies of the report to Shenkman, *fn7" McAllister, and Douglas Coopersmith of Astor, Weiss & Newman. *fn8"

 After McAllister received a copy of the title report, he contacted Gilbert in an effort to obtain Suny's assent to the sale of the property. Gilbert informed McAllister that he did not anticipate a problem getting Suny to agree to the sale (an assurance which he later repeated on several occasions), and requested that McAllister prepare an endorsement with Suny's name on it. See Defendant's App., Vol II, Ex. P, at 784-85; Defendant's App., Vol II, Ex. R, at 1046-47, 1064-67. On January 5, 1987, McAllister sent Gilbert an endorsement of the Agreement of Sale for Suny's signature. Gilbert left the endorsement with Suny for her consideration, but it was never signed.

 In early February of 1987, Feld extended the Agreement of Sale for six months (from February 1987 to August 1987) by depositing $ 10,000 in an escrow account pursuant to paragraph 29 of the Agreement of Sale. On February 11, 1987, McAllister, having been informed by Gilbert that Gilbert did not know if he could locate the Suny endorsement, sent Gilbert another endorsement for Suny to sign and a letter stating that Feld had paid an additional $ 10,000 to extend the agreement. In May 1987, Suny told McAllister that she would not sign the Agreement of Sale. *fn9"

 In mid-July 1987, Shenkman told Gilbert that he had "committed a criminal violation," Plaintiff's App. III, Ex. DD at 96, and that if Suny did not sign the agreement by the end of the week, Gilbert would hear from the FBI.

 On July 17, 1987, David Mandel, of Astor, Weiss & Newman, arranged for a meeting with Gilbert, Suny, McAllister and Shenkman to finalize the purchase of the property. Suny indicated that she owned 50% of the property and, as she had already told Gilbert, would not sell the lot for less than $ 520,000. After an alternative proposal made by Shenkman was rejected -- that Gilbert waive his $ 33,000 and allow Today's Man to pay only an additional $ 33,000 to Suny -- Shenkman and Suny reached an agreement in which Today's Man would pay the entire $ 520,000 price asked for the lot (rather than the $ 454,000 to which Gilbert had agreed at the October 31, 1986 meeting) in return for Suny's consent to the sale of the property.

 At the July 17 meeting, Shenkman told Gilbert that Gilbert was to blame for the increased price and indicated his intention to ask counsel whether Gilbert's actions violated any criminal laws. *fn10" Shenkman then asked for and received another extension of time for settlement. *fn11" Mandel prepared an addendum to the Agreement of Sale that provided for a purchase price of $ 520,000 and an extension of the settlement date not to exceed September 20, 1987. The amendment also provided that the original agreement would remain in effect in all other respects. Gilbert and Suny signed the amendment, and Feld, who did not attend the July 17 meeting, also signed the amendment later that day when it was presented to him.

 The day after the July 17 meeting, Shenkman told Callahan, a partner in defendant law firm, about the meeting. Shenkman considered Gilbert's actions outrageous and requested information about how to inform the proper authorities. Callahan believed that there was room to pursue criminal charges against Gilbert and agreed to research the issue and to find out how to report the information to someone at the District Attorney's office. Callahan then advised Tompkins -- an associate in the firm who was formerly an Assistant District Attorney in Montgomery County -- about the facts and circumstances of the case, relating what he had learned through his discussions with Shenkman. He instructed Tompkins to research whether Gilbert had violated any Pennsylvania criminal laws. According to Tompkins, Callahan indicated to him that Gilbert at some point had "represented" that he owned the property. Plaintiff's App. I, Ex. E, at 32-33. Tompkins then researched crimes that fit the described fact pattern and reported back to Callahan.

 On August 6, 1987 Callahan instructed Tompkins to meet with Bruce Lukas of the Private Complaints Unit of the Montgomery County District Attorney's Office. Tompkins arranged the meeting with Lukas. Tompkins called Mandel, who had been present at the July 17 meeting with Suny, and asked him to attend the meeting with Lukas. On August 13, 1987, Tompkins and Mandel met with Lukas to determine if there was any basis for bringing criminal charges against Gilbert. At the meeting, Tompkins described the events and suggested criminal charges that he felt might be appropriate. Lukas agreed to consider the matter further and get back to Tompkins. The next day, Mandel sent Tompkins a copy of the Agreement of Sale, the July 17 Amendment, and the title report.

 On September 10, 1987, Tompkins discussed the status of the charges against Gilbert with First Assistant District Attorney William Carpenter of the Montgomery County District Attorney's office. Tompkins told Carpenter that he was concerned that the district attorney's office was not working on the complaint. On or about September 14, 1987, Tompkins met with Carpenter for a second time and inquired again about the status of the charges against Gilbert. He informed Carpenter that the settlement on the Gilbert premises was set for September 16, 1987. Following that meeting with Carpenter, and believing that Lukas was not going to act on the charges against Gilbert, Tompkins decided that he needed to discuss the matter directly with District Attorney Thomas Waters. Tompkins informed Callahan of the September 14 meeting and his intention to contact Waters.

 On or before September 15, 1987, Tompkins met with District Attorney Waters to discuss the Gilbert transaction. Tompkins related the facts as he understood them and told Waters that he did not believe Lukas was giving the matter proper attention. Waters indicated that there was insufficient information at that time to support a criminal prosecution and told Tompkins that he should provide any documents he had to support the charges.

 On September 15, 1987, Tompkins met again with Lukas. Lukas listened to Tompkins' version of the facts and informed Tompkins that he could not issue a warrant for Gilbert's arrest at that time despite the fact that settlement was scheduled for the next day. Tompkins then requested another meeting with District Attorney Waters, and Lukas agreed to accompany Tompkins to that meeting.

 At the second meeting with Waters, also on September 15, Tompkins restated his understanding of the facts and showed Waters a private criminal complaint form he had prepared, *fn12" the Agreement of Sale, the title report and, possibly, the deed transferring the premises from Gilbert to Gilbert and Suny. *fn13" According to Gilbert, the account Tompkins gave to Waters was inaccurate in several respects. Most significantly, the private complaint recited that Gilbert had, at the July 17th meeting, "acknowledged that he had told Today's Man that he had authority to convey the property at 115 West DeKalb Pike" and that he had "represented such authority" to McAllister. Plaintiff's App. IV, Exh. OO. Moreover, according to Gilbert, Tompkins failed to inform Waters of the following potentially exculpatory facts: (1) Feld knew that Suny was a co-owner of the property as early as December 1986; (2) Feld, pursuant to paragraph 11 of the Agreement of Sale, *fn14" could have terminated the Agreement if the title to the property was defective; (3) Feld extended the Agreement of Sale in February 1987 for an additional six months despite his knowledge that Suny co-owned the premises and that her consent to the agreement had not been obtained; (4) Feld's lawyers and McAllister knew in December 1986 that Suny co-owned the premises and that Feld could not complete the transaction without her consent, but did not inform Feld of these facts; and (5) McAllister, who had prepared the Agreement of Sale, worked for Feld -- not for Gilbert.

 Based upon the information provided by Tompkins, Waters concluded that Gilbert's conduct amounted to criminal fraud and exortion. Waters believed that the criminal activity committed by Gilbert was "representing himself to be the sole owner and then jacking up the purchase price to obtain the co-owner's signature." *fn15" Plaintiff's App. III, Ex. EE at 26. Waters believed that Gilbert, while representing himself to be the sole owner of the property, knew that he was only the co-owner and used the fact that the sale could not be completed without the co-owner's signature to extort money from the buyers. Accordingly, Waters authorized the issuance of a criminal complaint. *fn16"

 Later on the day of September 15, Tompkins told Callahan that Gilbert's arrest would occur following the settlement on September 16, 1987. Subsequently, Mandel, Shenkman and Feld were informed of Gilbert's impending arrest. Gilbert was not contacted.

 Tompkins and Lukas briefly met with Chief of Detectives Oscar Vance after 4:00 P.M. on September 15, 1987. Tompkins gave Vance a copy of the private complaint form (that he had drafted) and perhaps also a completed criminal complaint for an arrest ("arrest complaint"). *fn17" Tompkins orally summarized the information in the private complaint, and advised Vance that Waters wanted a criminal complaint to be drafted and an arrest warrant to be secured against Gilbert. Lukas confirmed that these were Waters' sentiments. Vance, who was told that Gilbert would appear the next day at settlement in Philadelphia and had scheduled a 4:00 p.m. flight to Florida for that day, understood that Gilbert should be arrested immediately after settlement.

 Toward the end of this meeting, Vance called defendant Edmund Justice, a county detective, into his office to discuss Gilbert's arrest. Vance handed Justice a completed criminal complaint, charging Gilbert with the offense of Securing Execution of Documents by Deception in violation of 18 Pa. C.S.A. § 4114 on October 21, 1986, *fn18" and a completed, typed probable-cause affidavit that, in significant part, mirrored the recital of facts contained in the private criminal complaint form that Tompkins had drafted. Vance told Justice to take the criminal complaint to Montgomery County District Justice Katherine Speers for her approval and for an arrest warrant for Gilbert. Vance also told Justice to carry out the arrest the following day.

 After reading the complaint, the probable cause affidavit and section 4114 of the Pennsylvania Criminal Code, and without any additional investigation, Detective Justice signed both the criminal complaint and probable cause affidavit and brought those documents to District Justice Speers sometime after 5:00 p.m. on September 15, 1987. Justice Speers reviewed the criminal complaint and affidavit of probable cause, signed the complaint, and issued a warrant for Gilbert's arrest. *fn19"

 There were fifteen to thirty people at the settlement, including Gilbert, Reed, Suny, Euler, Feld, Shenkman, and McAllister. Immediately following settlement, at which Gilbert and Suny conveyed the premises to Feld for $ 520,000, Shenkman accused Gilbert of cheating him and identified Gilbert for Tompkins. Out in the hall, Tompkins identified Gilbert for Detective Justice, who arrested Gilbert. Justice brought Gilbert to the Round House where he was held for four hours. Later that evening, Gilbert was taken to the Montgomery County Detectives' office and arraigned before District Justice Speers.

 On September 17, 1987, Gilbert's attorney, Reed, telephoned Tompkins. Reed discovered the following: (1) Tompkins had been brought into the Gilbert matter to help deal with the procedure of filing charges against Gilbert, see Plaintiff's App. IV, Ex. RR at 156; (2) Tompkins did not apprise Reed of Gilbert's forthcoming arrest because he did not think there would be a settlement if Gilbert was arrested prior to settlement, see Plaintiff's App. IV, Ex. RR at 160-1, 166; and (3) the prosecution of Gilbert was an attempt to recover the extra money needed to settle with Suny, see Plaintiff's App. IV, Ex. RR at 163-64.

 Four days later, on September 21, 1987, McAllister went to the Montgomery County District Attorney's office to give a statement to Justice. Tompkins and Mandel attended the meeting. In his statement, McAllister indicated that, during their initial meetings, Gilbert never affirmatively stated that he was the sole owner of the premises. On September 30, 1987, Shenkman also went to the Montgomery County District Attorney's office to give a statement to Justice. Shenkman stated that, at the October 31, 1986 meeting, no one had directly asked Gilbert if he had the right to convey the property, but that Gilbert's statements and actions conveyed that impression. See ...


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