Edgar Martinez and Ruth Martinez His Wife v. E. J. Korvette, Inc ( 1973 )

GIBBONS, Circuit Judge

(dissenting).

This is an appeal from the entry of a directed verdict in favor of defendant at the end of the plaintiffs’ case. Rule 50, Fed.R.Civ.P. The case is a diversity action for malicious prosecution, to which Pennsylvania law is applicable. It presents, however, an issue of the respective roles of judge and jury in the federal courts, as to which, even in a diversity case, state law is not entirely dispositiye. The question whether there was any evidence from which the jury could have inferred a lack of probable cause is one as to which federal standards control. See Part II of Judge Rosenn’s concurring opinion in Thomas v. E. J. Korvette, Inc., 476 F.2d 471 (3d Cir. 1973). As Judge Rosenn points out, in an action for malicious prosecution, if the facts bearing on probable cause are in dispute, the judge should instruct the jury to find the facts by special interrogatories, and based on these facts, make a ruling as to whether there was probable cause.

At the end of the plaintiffs’ case the record contained evidence that Mrs. Martinez had been convicted before the justice of the peace. This conviction, though reversed when the case was retried in the Court of Common Pleas, is under Pennsylvania law prima facie proof that the charging party had probable cause. But it is no more than prima facie proof; evidence of probable cause.

“It is everywhere held that the actions of each of these judicial bodies [justices of the peace and grand juries] are affirmative evidence of probable cause.” Miller v. Pennsylvania R. R., 371 Pa. 308, 317, 89 A.2d 809, 813 (1952).

The action of a grand jury is in Pennsylvania entitled to the same evidentiary value on the issue of probable cause as is the finding of a justice of the peace. Id. That neither is conclusive is established by Judge Jones’ opinion for this court in Hornin v. Montgomery Ward & Co., 120 F.2d 500 (3d Cir. 1941). In that ease the arrested party was held for the grand jury and indicted. He was acquitted at trial. This court affirmed a jury verdict against the employer of the charging party. It found sufficient evidence of lack of probable cause in the circumstances surrounding the plaintiff’s arrest, despite the grand jury indictment.¹ Judge Jones, no stranger to the law of Pennsylvania, wrote:

“As late as Altman v. Standard Refrigerator Co., Inc., supra, 315 Pa. [465] page 480, 173 A. [411] page 417, the Supreme Court of Pennsylvania quoted with approval its earlier definition of probable cause as stated in McClafferty v. Philp, 151 Pa. 86, 24 A. 1042, where it was said that ‘ “Probable cause” is generally defined to be a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man (in the same situation) in believing the party is guilty of the offense.’ It was, therefore, the duty of the court below, as it is this court’s duty on appeal, armed with the above test and cognizant of the facts which the jury could and presumably did find, to determine whether the conclusion of a want of probable cause could be found by the jury.” 120 F.2d at 503.

Judge Jones then reviewed the evidence, not dissimilar to that in this case, and concluded:

“The evidence not only justifies a finding that Stark, by the exercise of ordinary prudence, should have known that he did not have probable cause for proceeding against Hornin, but it further indicates that Stark was actually aware of the want of probable cause.” 120 F.2d at 503.

As Judge Weis’ opinion points out, the circumstances under which Mrs. Martinez left the store were sufficient to arouse in an ordinarily prudent person the suspicion that she had hung her old coat on the rack, put on a new coat, and left the store without paying for it. At this point Mrs. Martinez was taken to the security office. But her testimony is that she produced a register receipt for the coat:

“I showed them the receipt and then he said to me, ‘Well let me have the coat for a minute.’ I took off my coat and he took the receipt.” (Tr. 28).

The security officer took the coat and receipt upstairs apparently to check with the register clerk.

“When he went up with the coat and the receipt — he took it upstairs. That’s when the others came in. He was gone about ten minutes, and when he came back down he had this paper for me to sign.

Q What was that paper as far as you know?

A Well, I didn’t read much of it. It said something about releasing Korvette’s.

He started putting my name down and my address, and then I told him I would not answer any more questions and I wasn’t going to sign.

He said, ‘It’s just something to say we weren’t harassing you.’ It was something like that. I said, T will not sign it.’

Q All right. What happened after that?

A Then he said, ‘Well if you don’t answer the questions here, you will answer them in the police station.’ That’s when he called the police.”

(Tr. 29-30).

Mr. Martinez testified that the coat had been paid for by use of a Unicard credit card and a register receipt was issued. (Tr. 44-45).

Assuming the testimony of Mr. and Mrs. Martinez to be truthful, as in this posture of the case we must, the jury could have found that prior to the decision to charge Mrs. Martinez the security officer was aware that she had a register receipt which she claimed was for the coat, that the receipt was in fact for the coat, that he had taken the receipt and the coat and had verified that in fact the receipt was genuine, that he had thereupon attempted to coerce Mrs. Martinez into executing a paper releasing Korvette's from any charge of harassment, and that only when she refused to sign the release did he decide to charge her despite his knowledge that the receipt was genuine. If the jury so found, I submit, the court would have been required to hold that the plaintiffs had established a lack of probable cause, judged against the standard of the ordinary prudent man similarly situated.

I am as aware as the next man of the enormous problems which retailers face in dealing with shoplifters. Possibly such problems would justify the Commonwealth of Pennsylvania in abolishing the cause of action for malicious prosecution. They do not, however, justify us in blurring the historic line between the functions of judge and jury in the federal courts, for that line is predicated upon federal constitutional considerations. So long as we must entertain diversity cases we must try them by appropriate federal standards. I would reverse and remand for a new trial.

1 . See also Byers v. Ward, 368 Pa. 416, 34 A.2d 307 (1951).