Edgar Martinez and Ruth Martinez His Wife v. E. J. Korvette, Inc

477 F.2d 1014, 1973 U.S. App. LEXIS 9996

• Court: Court of Appeals for the Third Circuit
• Decided: May 10, 1973
• Docket: 72-1101
• Status: Published

Opinions

OPINION OF THE COURT

WEIS, Circuit Judge.

In this diversity action for malicious prosecution, the court below granted the defense motion for a directed verdict at the conclusion of the plaintiff’s testimony. A motion for a new trial was later denied and a Memorandum Order filed. (335 F.Supp. 886, E.D.Pa.1971).

On October 24, 1969 plaintiff, Ruth Martinez, accompanied by her husband and brother-in-law went to one of the Korvette stores in the suburban Philadelphia area, planning to buy a new coat. Her testimony was that before trying on any of the new coats she took off her old trench coat and laid it on top of the display rack. After some time, Mrs. Martinez decided on a purchase but was then unable to find the old trench coat. She strolled to another portion of the store to look at other items of clothing, went to a check out counter in that area, and advised the clerk that, since the trench coat had disappeared, plaintiff intended to wear the new one home. Mrs. Martinez claimed that the new coat was purchased by the use of a credit card, and that she was given a sales slip and a cash register receipt.

After the plaintiff walked out of the store she was accosted by a female security officer who asked her about the coat. The two women then went back inside the building where Mrs. Martinez dis- . played the sales receipt. However, when she and the security officer went to see the cashier who had handled the particular transaction, she could not be found.

The plaintiff then was taken to the security office in the store where she was shown her old trench coat and was told by the security people that it had been found on a hanger on the rack.

After refusing to sign a document which the plaintiff described as one releasing Korvette, the parties proceeded to a police station where a hearing was held before a justice of the peace.

The evidence about what transpired at the magistrate’s office is extremely brief. Mrs. Martinez testified there, as did the female security officer, a finding of guilt was made, and the defendant sentenced to pay a fine.

Later, an appeal was taken to the Court of Common Pleas of Montgomery County. No one from the defendant’s store appeared at the time set for the trial and the case was dismissed.

There was no testimony in the district court as to what evidence was introduced by the parties at the magistrate’s hearing or anything tending to show that the guilty finding was returned as the result of fraud or corruption. The trial judge, therefore, was confronted with positive evidence of a guilty finding against the plaintiff by the justice of the peace as well as testimony by Mrs. Martinez which would, if believed, establish her innocence of the crime in fact.

The Pennsylvania courts have historically taken a grudging view toward recovery in suits for malicious prosecution, and have imposed a heavy burden which must be met before a case may be submitted to a jury. The plaintiff has the burden of proving lack of probable cause and despite the difficulty of establishing a negative, the requirement is rigidly enforced. In Miller v. Pennsylvania Railroad, 371 Pa. 308, 89 A.2d 809, 812 (1952), the court said:

“Plaintiff has produced no affirmative evidence that defendant lacked probable cause. Plaintiff does not make out a prima facie case simply by proving his arrest on a criminal charge and his acquittal.”

In Byers v. Ward, 368 Pa. 416, 84 A.2d 307, 309 (1951), it was said:

“Want of probable cause is an indispensable element. [citation]. And such want is in no sense dependent upon the guilt or innocence of the accused. Probable cause does not depend on the state of the case in point of fact but upon the honest and reasonable belief of the party prosecuting. * * *

“The question of want of probable cause is exclusively for the court. Where there is no conflict in the testimony, the court has no need for a finding of a jury.”

See, also, Psinakis v. Psinakis, 221 F.2d 418 (3rd Cir. 1955).

The Restatement of Torts, § 667, holds that, absent evidence of fraud, perjury or corruption in procurement, the conviction of the accused by a magistrate, even though later reversed by an appellate tribunal, conclusively establishes the existence of probable cause. While there is some question that Pennsylvania would consider such evidence to be conclusive, see MacDonald v. Schroeder, 214 Pa. 411, 63 A. 1024 (1906), it is, at the least, strong prima facie evidence of probable cause.

The remaining relevant parts of the plaintiff’s testimony established that the security officer was dealing with a woman who had worn a new coat out of the store, who claimed that a sales receipt which she displayed proved payment for the coat but who was unable to corroborate her version when given the opportunity to locate and identify the cashier allegedly involved. This, coupled with the fact that the plaintiff’s coat had been found in or on the rack where the new garments were hung, would be evidence tending to show the existence of probable cause rather than lack of it.

While we are required in the present posture of the case to consider the evidence in the light most favorable to the plaintiff, and thus to accept Mrs. Martinez’ statement that she had paid for the coat, no such obligation was imposed upon the security officer at the time the event occurred. The fact that the plaintiff protested her innocence then does not establish knowledge of lack of her guilt on the part of the security personnel.

In the absence of the conviction, obviously the evidence of probable cause is not overwhelming, but the burden was not on the defendant to establish that factor, but rather on the plaintiff to negative it. When the unimpeached fact of conviction is weighed along with all of the plaintiff’s other, testimony, it is clear that she has failed to meet her burden of showing lack of probable cause.

When arguing the motion for dismissal, plaintiff’s counsel took the position that, having established that Mrs. Martinez was not guilty but had been arrested, he had made out a prima facie ease. The Pennsylvania cases cited above make it clear that proof of the fact of innocence does not establish lack of probable cause and that in the absence of other proof the plaintiff’s case must fall.

Pennsylvania does impose more stringent requirements on plaintiffs in cases of malicious prosecution than in other tort areas. This is a matter of policy well within the realm of authority inherent in the state and must be respected by federal courts in a diversity action.

For a more complete review of the applicable law in a case stronger for the plaintiff than the one at bar, see Thomas v. Korvette, 476 F.2d 471 (3rd Cir. 1973).

The action of the trial judge will be affirmed.