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09/04/97 HARRY B. STRICKLAND v. UNIVERSITY SCRANTON

September 4, 1997

HARRY B. STRICKLAND, APPELLANT
v.
THE UNIVERSITY OF SCRANTON AND INDIRA SRIVASTAVA, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lackawanna County, Civil Division, at No. 90-CV-3328. Before MUNLEY and HARHUT, JJ.

Before: Cavanaugh, Hudock and Hester, JJ. Opinion BY Hudock, J.

The opinion of the court was delivered by: Hudock

OPINION BY HUDOCK, J.:

Filed: September 4, 1997

In this appeal, Harry Strickland (Appellant) contends that the trial court erred in granting the preliminary objections of Appellee University of Scranton (the University) and the motions for summary judgment filed by both the University and Appellee Indira Srivastava (Appellee) filed in response to Appellant's multi-count complaint. We affirm.

The facts and procedural history may be summarized as follows: Appellant was employed by the University from 1963 through 1988 in various capacities. He became Dean of the Graduate School in 1969 and joined the University's administration in 1983. By 1983, Appellant had also achieved the status of tenured faculty member. On December 11, 1980, Appellee's Husband, a fellow faculty member at the University, was killed in a automobile accident. Thereafter, Appellee loaned a sum of money to Appellant. A dispute arose between them as to whether Appellant had repaid the loan and, in October, 1987, Appellee filed a lawsuit to collect these monies. On December 21, 1987, Appellant was suspended by the University. Sometime in early 1988, the Lackawanna County District Attorney's Office commenced a criminal investigation into Appellant's financial dealings with Appellee. In February, 1988, Appellant was removed from his administrative positions at the University. At that time, he was told that his administrative contract was not going to be renewed. During this same time period, the provost of the University told Appellant that, unless he resigned from employment, a formal dismissal would be initiated as provided for in the faculty handbook. On June 6, 1988, Appellant executed a general release with the University, after several months of negotiations. According to its terms, in consideration of $120,000.00, Appellant agreed to relinquish all causes of action, suits, contract rights, agreements, promises and judgments against the University.

In March, 1991, Appellant filed a ten-count complaint against Appellee and the University. The complaint included the following counts against Appellee: Count I--malicious prosecution; Count II--false arrest; Count III--intentional interference with contractual relations; and Count IV--intentional interference with potential contractual relations. Appellant included the following counts against the University: Count V--breach of contract; Count VI--wrongful discharge; and Count VII--promissory estoppel. As to both Appellee and the University, Appellant filed the following counts: Count VIII--invasion of privacy; Count IX--intentional infliction of emotional distress; and Count X--civil conspiracy. In addition to compensatory damages, as to all counts Appellant requested punitive damages.

On April 2, 1991, the University filed preliminary objections in the form of a demurrer to Counts V through X of the complaint along with a supporting brief. By order dated April 3, 1991, the trial court granted the preliminary objections as to Counts V, VI, IX, and X, but denied the preliminary objections as to Counts VII and VIII. *fn1 Appellant filed a notice of appeal to this Court which quashed the appeal as interlocutory. Strickland v. University of Scranton, Pa. Super. , A.2d (1992) ( No. 01619 Philadelphia 1992, filed October 14, 1992). Following the completion of discovery, the University, on March 8, 1995, filed a motion for summary judgment on Counts VII and VIII. On May 22, 1995, Appellee filed a motion for summary judgment on Counts I through IV, and VIII of the complaint. The University's motion was granted on October 18, 1995, and Appellee's motion was granted on July 2, 1996. This direct appeal followed. We will address the trial court's Disposition of each count in the order they appear in the complaint. *fn2 Initially, however, we note the applicable standards of review for granting preliminary objections in the form of a demurrer and summary judgment. Our Supreme Court has stated the standard of review for preliminary objections as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983).

McMahon v. Shea, 547 Pa. 124, 128, 688 A.2d 1179, 1181 (1997). Our Supreme Court has summarized the manner of reviewing grants of summary judgment as follows:

In reviewing the trial court's grant of summary judgment, "an appellate court may disturb the order of the trial court only where there has been an error of law or a manifest abuse of discretion. Notwithstanding, the scope of review is plenary and the appellate court shall apply the same standard for summary judgment as the trial court." Cooper v. Delaware County Medical Ctr., 539 Pa. 620, 632, 654 A.2d 547, 553 (1995).

BLaST Intermediate Unit 17 v. CNA Insurance Companies, 544 Pa. 66, 70, 674 A.2d 687, 689 (1996).

Count I of Appellant's complaint asserts a claim for malicious prosecution against Appellee. Summary judgment was granted in favor of Appellee as to this count by order dated July 1 or 2, 1996. *fn3 In his complaint, Appellant averred that Appellee "initiated criminal proceedings without probable cause for the sole reason of affording [Appellant] to personal gain [sic], to wit, collecting an alleged debt which she knew had been repaid. Said action was done with malice and with the intent to harm [Appellant]." Complaint, 3/12/91, at P 40. In essence, Appellant claims that a genuine issue of material fact existed as to whether Appellee initiated the criminal action solely to collect the debt she alleged he owed her such that summary judgment should have been denied. We cannot agree. To establish a successful claim of malicious prosecution, a plaintiff must show that the defendant "instituted proceedings without probable cause, with malice, and that the proceedings were terminated in favor of the plaintiff." Cosmas v. Bloomingdales Bros, Inc., 442 Pa. Super. 476, 481, 660 A.2d 83, 85 (1995) (citations omitted). Probable cause in the context of the tort of malicious prosecution does not require proof beyond a reasonable doubt, but rather, is defined as "a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that a party is guilty of the offense." Cosmas, 660 A.2d at 86 (citations omitted). A showing of probable cause to institute proceedings against a plaintiff establishes an absolute defense against an action for malicious prosecution, which renders immaterial the issue of whether the prosecutor's motive is malicious or otherwise. Bruch v. Clark, 352 Pa. Super. 225, 228-229, 507 A.2d 854, 856 (1986). "Where the evidence is undisputed or only slight differences exist in collateral matters, the issue of probable cause is a matter for the court and not the jury." Jaindl v. Mohr, 432 Pa. Super. 220, 228, 637 A.2d 1353, 1357 (1994), aff'd, 541 Pa. 163, 661 A.2d 1362 (1995) (citation omitted).

In the present case, the record demonstrates that Appellee provided Appellant with $19,000 for "investment purposes" and she never received repayment or even an accounting as to the return on her investment. Relying on the advice of counsel, Appellee did file a private criminal complaint, an investigation was initiated by the Attorney General's office, theft charges were filed against Appellant, and, ultimately, the criminal prosecution was not pursued. "Criminal proceedings initiated upon advice of counsel are conclusively presumed to be supported by probable cause when the advice of counsel was sought in good faith and the advice was given after full disclosure of the facts to the attorney." Kelley v. General Teamsters, Chauffeurs, and Helpers, Local Union 249, 518 Pa. 517, 521, 544 A.2d 940, 942 (1988). Thus, as no genuine issue of material fact with respect to probable cause exists to support the criminal proceedings as to Appellant's claim of malicious prosecution, summary judgment was properly granted. See Jaindl, 637 A.2d at 1357-58 (summary judgment properly granted where employer and co-workers had probable cause to initiate criminal proceedings against employee based upon suspicion of theft of employer's funds); Cibrone v. Stover, 351 Pa. Super. 250, 252-255, 505 A.2d 625, 626-27 ...


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