Cosmas v. Bloomingdales Bros., Inc.

660 A.2d 83
CourtSuperior Court of Pennsylvania
DecidedMay 31, 1995
StatusPublished

This text of 660 A.2d 83 (Cosmas v. Bloomingdales Bros., Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83 (Pa. Ct. App. 1995).

Opinion

OLSZEWSKI, Judge:

Appellant Ayse Cosmas was an employee of appellee Bloomingdales Bros., Inc. from July 1982 through September 1986. On July 3, 1986, appellant purchased several items from Bloomingdales using the Diners Card of a Mr. John Ryan. Bloomingdales security subsequently found out that John Ryan had passed away on July 1, 1986: two days before appellant made her purchases. During questioning, appellant explained that she and Ryan were having a relationship, and that he had authorized her use of the credit card on this and other occasions. She further stated that various store personnel were aware of the relationship, and of her prior use of Ryan’s credit card.

Notwithstanding appellant’s explanations, she was suspended and later fired from Bloomingdales. Additionally, Bloomingdales security personnel filed a criminal complaint against appellant, alleging forgery, theft by deception, criminal conspiracy, and receiving stolen property. District Justice M. William Peterson heard the charges on February 15, 1987, and held appellant over for trial. Upon subsequent review, the Montgomery County District Attorney’s Office decided to drop all charges against appellant, and her record was expunged.

On October 2, 1987, appellant filed suit against Bloomingdales and six individual employees of Bloomingdales that were involved in this incident. Appellant alleged malicious prosecution, defamation, and interference with contractual relations. Since a 1990 bankruptcy petition barred appellant’s suit against appellee Bloomingdales, the Honorable Paul W. Tressler granted summary judgment in favor of Bloomingdales on December 29, 1993. Subsequently, and after further review, Judge Tressler also granted summary judgment in favor of the individual appellees. Appellant appeals the decision to grant summary judgment in favor of four of the individual appellees: James Coia, Clarence Turk, Gloria Savoya and Helen Bobb.1

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact. DeWeese v. Anchor Hocking, 427 Pa.Super. 47, 48, 628 A.2d 421, 422 (1993). When a trial court is considering a summary judgment motion, it must examine the record in the light most favorable to the nonmoving party. Id. On appeal, we will not disturb a trial court’s entry of summary judgment unless we find an error of law or a clear abuse of discretion. Id.

I.

Count I of appellant’s complaint contains a claim of malicious prosecution. In order to make out a successful claim of malicious prosecution, a plaintiff must show that “the defendants instituted proceedings without probable cause, with malice, and that the proceedings were terminated in favor of the plaintiff.” Amicone v. Shoaf, 423 Pa.Super. 281, 285, 620 A.2d 1222, 1224 (1993); Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 276, 488 A.2d 1117, 1122 (1985). The trial court granted summary judgment against appellant because it found that, as a matter of law, appellees had probable cause to institute the criminal proceedings against appellant. The primary basis for this finding was the fact that a district justice held appel[86]*86lant over for trial on the charges instituted by appellees.

In a malicious prosecution action, the plaintiff has the burden of proving lack of probable cause. Id. “Probable cause 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 the party is guilty of the offense.’ ” Wright v. Schreffler, 421 Pa.Super. 428, 430, 618 A.2d 412, 414 (1992) (quoting Cibrone v. Stover, 351 Pa.Super. 250, 254, 505 A.2d 625, 627 (1986) (citations omitted)). In certain instances, a defendant can introduce conclusive evidence of the existence of probable cause, thereby defeating plaintiffs claim of malicious prosecution. E.g., Kelley v. General Teamsters, Chauffeurs and Helpers, Local Union 518 Pa. 517, 521, 544 A.2d 940, 942 (1988) (actions taken on the advice of counsel, if such actions are taken in good.faith and after full disclosure, are conclusively established to be actions taken with probable cause). In many states, one such instance of conclusiveness is a plaintiffs conviction in the underlying criminal action. Even if the conviction is later overturned, it is conclusive proof of the existence of probable cause, unless the convicted party can show fraud or other undue influences at work in the conviction proceedings.2 See Restatement of Torts, 2d § 667(1) (1976). But see Williams v. City of New York, 508 F.2d 356 (2d Cir.1974) (stating that a conviction ultimately upset is accorded only the force of prima facie evidence of probable cause).

While a conviction may serve as conclusive evidence of the existence of probable cause, the action of a district justice or magistrate in holding the plaintiff over to be tried in court is not similarly conclusive. See Restatement of Torts, 2d § 663(2) (a holding over of the accused is simply evidence of probable cause). See also Miller v. Pennsylvania Railroad Co., 371 Pa. 308, 317, 89 A.2d 809, 813 (1952) (stating that a holding over for trial, like a grand jury indictment, was “affirmative evidence of probable cause”); De Salle v. Penn Central Transportation Co., 263 Pa.Super. 485, 492, 398 A.2d 680, 684 (1979) (same). It is true that a holding-over represents a decision by a neutral and experienced judicial officer that the prosecution has made out a prima facie case. Commonwealth v. Fox, 422 Pa.Super. 224, 233, 619 A.2d 327, 332 (1993), appeal denied, 535 Pa. 659, 634 A.2d 222 (1994). A determination of a prima facie case, however, does not necessarily equal a finding of probable cause such as will bar an action for malicious prosecution.

The definition of prima facie is “[a]t first sight; on the first appearance; on the face of it.” Black’s Law Dictionary 1071 (6th ed. 1990). Prima facie evidence is defined as “[ejvidenee which, standing alone and unexplained, would maintain the proposition and warrant the conclusion.” Id. These definitions indicate that a preliminary hearing, where the justice or magistrate looks for a prima facie case, will oftentimes barely scratch the evidentiary surface of a case. See Commonwealth v. Smith, 436 Pa.Super. 277, 289, 647 A.2d 907, 913 (1994) (stating that a preliminary hearing is “a much less searching exploration into the merits of a case than a trial”). If the individual that [87]*87initiated the prosecution was hasty or acted with lack of deliberation or care, this will not necessarily be apparent at a preliminary hearing where the only question is whether there is a prima facie case.

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Bluebook (online)
660 A.2d 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cosmas-v-bloomingdales-bros-inc-pasuperct-1995.