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Hilfirty v. Shipman

July 31, 1996






Appeal from the United States District Court for the Middle District of Pennsylvania

(D.C. Civil No. 4:CV-93-1497) Argued January 25, 1996

Before: COWEN and SAROKIN, Circuit Judges and POLLAK, District Judge *fn*

SAROKIN, Circuit Judge.

(Filed July 31, 1995)


Plaintiff Martha A. Miller filed a 42 U.S.C. Section(s) 1983 action for malicious prosecution against numerous defendants after a motion by the state to nolle prosequi her criminal charges was granted. The motion to nolle prosequi her charges resulted from a compromise between the District Attorney's Office and her common law husband, John Hilfirty, who was arrested with her. Pursuant to this compromise, Hilfirty agreed to enter an Accelerated Rehabilitative Disposition ("ARD") program in exchange for dismissal of the charges against him and for the motion to nolle prosequi the charges against Miller.

The district court reviewing Miller's malicious prosecution claim granted summary judgment in favor of defendants on the ground that Miller failed to make out a prima facie case of malicious prosecution because she was unable to meet the threshold requirement of demonstrating that the criminal charges against her were terminated favorably.

We conclude that a grant of nolle prosequi is insufficient to support a claim of malicious prosecution only in circumstances where the accused herself enters into a compromise with the prosecution in which she surrenders something of value to obtain the dismissal or where the accused formally accepts the grant of nolle prosequi in exchange for her knowing, voluntary release of any future claims for malicious prosecution. Because we find that Miller neither compromised with the prosecution to obtain her grant of nolle prosequi nor formally accepted the nolle prosequi in exchange for a release of future civil claims, we conclude that the underlying proceeding terminated in her favor for purposes of sustaining a malicious prosecution claim, and accordingly, we reverse as to the dismissal of the malicious prosecution claim.


John Hilfirty was terminated from his position as a general manager of a recycling center operated by the Lycoming Valley Association for the Deaf (LVAD) on May 7, 1991. His termination followed the deterioration of his relationship with the Chairman of the LVAD Board, Betty Noll, due to a dispute regarding the alleged misuse of some of LVAD's funds. According to the complaint filed by Hilfirty and Miller before the district court, Noll was involved in the mishandling of funds, and she had become frustrated with Hilfirty's refusal to participate in her scheme.

Hilfirty fought against his termination and applied for unemployment compensation, which LVAD contested. Hilfirty alleged that during the course of his unemployment compensation hearing a series of events transpired which led some of the LVAD Board members to participate in a conspiracy with county law enforcement authorities to have criminal charges filed against Hilfirty and Miller, his common law wife, in order to try to ruin Hilfirty's reputation. In particular, Hilfirty claimed that several LVAD Board members supplied false information to the prosecutor's office that Hilfirty had secretly recorded LVAD Board meetings and telephone conversations with LVAD Board members in violation of Pennsylvania's wire-tapping statute. As a result of this information, a search warrant was issued for the premises of the house shared by Hilfirty and Miller. The search warrant identified the items to be searched for and seized to be "[e]lectronical [sic], mechanical, or other device as defined in Pa. Crimes Code Section(s) 5702 Tape Recordings (Audio or Visual) and transcripts, notes pertaining to illegal intercepts." Appellee Appendix at 13.

In the course of the ensuing search, several items were seized from the house, including cassette tapes, recorders, a small amount of illegal drugs and drug paraphernalia including pipes, bongs, and rolling paper. As a result of this seizure, the District Attorney's Office filed criminal complaints against both Hilfirty and Miller, who were arrested as a result. Hilfirty was charged with five counts of violating the Pennsylvania wire-tapping statute, one count of possession of an electronic device capable of illicitly intercepting verbal communications, one count of criminal conspiracy, one count of possession of a controlled substance, and one count of possession of drug paraphernalia. Miller was charged with one count of criminal conspiracy to intercept oral communications, one count of violation of the Pennsylvania wire-tapping statute, one count of possession of drug paraphernalia, and one count of possession of a controlled substance.

Hilfirty and Miller were released on their own recognizance, and their cases were consolidated for trial. In the course of preparing for trial, Hilfirty and Miller filed a motion to suppress the evidence seized during the search on the ground that probable cause for issuing the warrant was lacking. Their motion was denied.

In June of 1992, the District Attorney's Office approached Hilfirty's counsel, suggesting that Hilfirty's case be disposed of through the ARD program, *fn1 whereby the charges against Hilfirty would be dismissed if he agreed to certain terms, including probation for one year, payment of the costs of the prosecution, payment of a $250 administrative fee, payment of the costs of supervision, performance of 32 hours of community service, and the withdrawal of private criminal complaints he had filed against defendants Noll and Shipman. After some negotiations, Hilfirty agreed to enter the ARD program on the condition that the District Attorney's Office would file a motion to nolle prosequi the charges against Miller. Accordingly, Hilfirty signed, and the court approved, a document through which he entered the ARD program. On the same day, the Court of Common Pleas of Lycoming County also separately issued an order granting the Commonwealth's Motion to Nolle Prosequi the charges against Miller. Miller did not sign any documents accepting the grant of nolle prosequi.

According to two affidavits by attorneys from the District Attorney's Office which were presented by defendants to the district court in the instant civil action, counsel for both Hilfirty and Miller were present at these negotiations. Miller presented no evidence to the contrary before the district court, although she asserts on appeal that she neither initiated these negotiations nor participated in any of these discussions herself. Rather, she avers that during these discussions Hilfirty's counsel alone agreed that Hilfirty would be willing to enter the ARD program if a motion to nolle prosequi Miller's charges were granted.

Following the disposition of their criminal case, Hilfirty and Miller filed a civil complaint in federal district court against the following individuals: LVAD Board member David C. Shipman; former LVAD Board member Betty Noll; Lycoming County Detective Kenneth R. Schriner; Lycoming County District Attorney Brett O. Feese; and Stephen C. Schopfer of the Lycoming County Solid Waste Department. Plaintiffs' complaint contained five counts alleging, inter alia, a section 1983 claim based on alleged violations under the First, Fourth, Fifth and Fourteenth Amendments of their right to be free from malicious prosecution, their right to be free from unlawful searches and seizures, their right to their lawful interest in their property and their right not to be falsely arrested without due process of law. Their complaint further alleged claims under section 1983 for conspiracy to deprive plaintiffs of their constitutional rights, as well as claims under section 1986 for failure to prevent a conspiracy and pendent state claims for malicious prosecution and deprivation of life, liberty and property under the Constitution of the Commonwealth of Pennsylvania.

The five individual defendants in this action responded by filing motions to dismiss. Defendants Shipman and Noll framed their motions to dismiss alternatively as motions for summary judgment. The district court treated all five motions as motions for summary judgment because it accepted and considered material outside of the pleadings, specifically affidavits, in disposing of the motions. It granted summary judgment to defendants on all federal claims and Miller's state malicious prosecution claim *fn2 and dismissed the other pendent state claims without prejudice.

With the exception of plaintiffs' section 1983 claim of malicious prosecution, the district court found that all of plaintiffs' federal claims were time-barred because the statute of limitations had run. With regard to the malicious prosecution claim, the district court found that neither Hilfirty nor Miller was able to meet the threshold requirement of demonstrating that the underlying proceeding terminated in his/her favor. Hilfirty v. Shipman, No. 93-1497, slip op. at 16 (M.D. Pa. June 3, 1994) (hereinafter "Dist. Ct. Op.").

The only appellant in this matter is Martha Miller, who appeals to this court only from that portion of the district court's judgment regarding her claim for malicious prosecution. The only appellees here are Schriner, Feese and Schopfer.


The district court had jurisdiction over this matter pursuant to 28 U.S.C. Section(s) 1331 and 1343(3) & (4) and 42 U.S.C. Section(s) 1983. This court exercises jurisdiction over this appeal of a final order of the district court pursuant to 28 U.S.C. Section(s) 1291.Our review of the district court's order for summary judgment is plenary, and we thus apply the same standards that were applicable in the district court. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1530 (3d Cir. 1990), cert. denied, 499 U.S. 921 (1991). Summary judgment is appropriately granted when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). If, however, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), summary judgment shall not be granted. Miller, as the nonmoving party, is entitled to have all reasonable inferences drawn in her favor. See J.F. Feeser, 909 F.2d at 1531.


The district court issued summary judgment in favor of defendants on the malicious prosecution claim because it determined that Miller was unable to meet the threshold requirement of demonstrating that the criminal action "terminated in a manner 'consistent with innocence, such as acquittal or reversal of conviction.'" Dist. Ct. Op. at 16 (quoting Junod v. Bader, 458 A.2d 251, 253 (Pa. Super. Ct. 1983) (citing Anolik v. Marcovsky, 186 A. 418 (Pa. Super. Ct. 1936))). Specifically, the district court concluded that the "nol prossing of charges as part of a plea bargain agreement [does not] equat[e] to the termination of the underlying proceedings in plaintiffs' favor." Dist. Ct. Op. at 19. We are required to ...

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