Challenger, G.&S. v. Boyer, J.

J-A07033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GLENN GORDON CHALLENGER AND IN THE SUPERIOR COURT OF
SHERRY LEE CHALLENGER PENNSYLVANIA
Appellants
v.
JOHN C. BOYER AND WATKINS TOWER,
INC., F/K/A TOWER SALES, INC. AND
D/B/A TOWER SALES MINI MARKET AND
SCOTT J. WATKINS AND DEBRA L.
DEETER
Appellees No. 1551 MDA 2013
Appeal from the Order Entered July 29, 2013
In the Court of Common Pleas of Schuylkill County
Civil Division at No: S-566-2012
BEFORE: GANTMAN, P.J., DONOHUE, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 20, 2014
dismissing with prejudice their complaint against Appellees, John C. Boyer
es Mini Market) (hereinafter
remand.
J-A07033-14
On March 16, 2012, Appellants filed a complaint against Appellees
alleging a single count of malicious prosecution against each Appellee.
Appellees filed preliminary objections, subsequent to which Appellants filed
an Amended Complaint on May 16, 2012. Once again, the Amended
Complaint alleged a cause of action for malicious prosecution against each
Appellee and all Appellees filed preliminary objections. On July 11, 2012,
and di
from the July 11, 2012 order, concluding the order was not final.
Challenger v. Boyer, 69 A.3d 1302 (Pa. Super. 2012) (unpublished
memorandum).
Subsequent to the quashal, Appellants filed in the trial court a motion
for leave to file a Second Amended Complaint. The trial court denied that
lants
filed a timely appeal from that order. They raise five issues:
1. May a plaintiff in a malicious prosecution action who had been
acquitted of retail theft after tendering payment establish a
lack of probable cause when he had not paid for the goods?
2. In a malicious prosecution action brought by two plaintiffs
after both were acquitted on retail theft charges, may a lack
of probable cause be established by the plaintiff who did not
participate in the alleged theft?
3. May a private individual who knowingly provides information
to police that precludes liability for the offense of retail theft
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be held liable for malicious prosecution regardless of whether
the information provided to the police officer is true or false?
4. May a plaintiff in a malicious prosecution action defeat a
establishing that the police officer, operating jointly with
private individuals, had actual knowledge of facts which
precluded criminal liability for the offense of retail theft?
5.
a Second Amended Complaint an abuse of discretion?
-5.
preliminary objections, we examine the averments in the complaint,
together with the documents and exhibits attached thereto, in order to
D'Elia v. Folino, 933 A.2d
117, 121 (Pa. Super. 2007), appeal denied, 948 A.2d 804 (Pa. 2007). The
impetus of our inquiry is to determine the legal sufficiency of the complaint
Id.
In our review, we accept as true all well-pleaded material facts set forth in
the [complaint] a
Thierfelder v. Wolfert, 52 A.3d 1251, 1253 (Pa. 2012).
Here, Appellants alleged a cause of action for malicious prosecution
In order to establish a claim for malicious
prosecution a party must establish that the defendants instituted
proceedings against the plaintiff: 1) without probable cause, 2) with malice,
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and 3) the proceedings must have terminated in favor of the plainti
Bradley v. Gen. Accident Ins. Co., 778 A.2d 707, 710 (Pa. Super. 2001).
We begin our analysis with a review of the facts alleged in the
Amended Complaint. According to that document, Glenn pumped $25.00
worth of fuel at Tower Sales Mini Market in Tower City, Pennsylvania.
Amended Complaint, 5/16/12, at ¶¶ 12, 17. Glenn and Sherry entered the
store and tendered a debit card for the purchase of the gas and several
other items. Id. at ¶¶ 19-22. The store clerk processed the payment for
everything except the fuel. Id. at ¶ 25. Appellants allege they left the store
believing they paid for the fuel. Id. at ¶ 26.
Boyer, a Tower City police officer, filed a summons against both
Appellants for retail theft, pursuant to 18 Pa.C.S.A. § 3929. Id. at ¶¶ 28-
41. Upon receiving the summons, Glenn visited Tower Sales Mini Market
and spoke with Watkins to assert his innocence and attempt to resolve the
outstanding charges. Id. at ¶¶ 11, 54. At trial, a district magistrate judge
found Appellants not guilty of retail theft. Id. at 67-68. The prosecution
witnesses at the trial were Boyer and Deeter. Id at ¶ 64. Deeter was the
manager of Tower Sales Mini Market. Id. at ¶ 9. Despite their victory at
trial, the magistrate informed Appellants they each remained obligated for a
$125.00 fingerprinting charge. Id. at ¶ 69. In reference to that exchange
u would
Id.
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The Amended Complaint alleges that Appellees, by virtue of video
footage taken of Appellants during the transaction at the Tower Sales Mini
Market, had knowledge that Appellants tendered payment and were not
guilty of retail theft. Id. at ¶¶72-78, 84. The Amended Complaint further
alleges Appellees acted with malice and had no probable cause to bring
criminal charges against Appellants. Id. at 87-91.
Appellees do not dispute that Boyer instituted proceedings against
Appellants for retail theft.1 Likewise, Appellees do not dispute that the retail
ascertain whether the retail theft proceedings were instituted with malice
and without probable cause. Bradley
two assertions of error claim the retail theft prosecution was instituted
without probable cause. We will consider those arguments together.
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1
§ 3929. Retail theft.
(a) Offense defined. --A person is guilty of a retail theft if he:
(1) takes possession of, carries away, transfers or
causes to be carried away or transferred, any
merchandise displayed, held, stored or offered for
sale by any store or other retail mercantile
establishment with the intention of depriving the
merchant of the possession, use or benefit of such
merchandise without paying the full retail value
thereof[.]
18 Pa.C.S.A. § 3929.
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Probable cause exists where a person of reasonable caution would
believe a crime has been committed and the accused was the perpetrator.
Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa. Super. 1999), appeal
denied, 749 A.2d 470 (Pa. 2000). Probable cause is based on a finding of
the probability, not a prima facie showing, of criminal activity.
Commonwealth v. Baker, 615 A.2d 23, 25 (Pa. 1992).
Appellants assert Boyer lacked probable cause to institute the retail
theft prosecution because Appellants tendered payment for the gas, as seen
on surveillance footage of the transaction. Further, the Tower Sales Mini
Market Appellees were privy to that footage prior to providing it to Boyer.
The store clerk observed Appellants, who were regular customers, and
turned on the pump so that Glenn could fill his gas tank. Subsequently,
Appellants entered the store and tendered a debit card, and the clerk
charged Appellants for several items but did not charge for the fuel. The
amended complaint does not allege the amount Appellants paid, nor does it
allege whether they received or signed a receipt.
In any event, the Tower Sales Appellees immediately contacted law
enforcement, and Boyer filed charges. Appellants allege the prosecution
resulted from a political vendetta. To that end, Appellants allege Glenn lost
a Tower City mayoral bid by a very small margin, and that Boyer was under
the chain of command of the candidate who defeated Glenn. Amended
Complaint, 5/16/12, at ¶¶ 79-
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d he repeated
that message when the district magistrate told Glenn he could not get a
refund for the $125.00 fingerprinting fee charged to each Appellant. Id. at
¶¶
to pay the $25.00, Boyer informed Appellants that any future contact with
the Tower Sales Appellees would result in an intimidation of witnesses
charge. Id. at 55.
As we are reviewing an order sustaining preliminary objections, we
must draw inferences in favor of Appellants. Thierfelder, 52 A.3d at 1253.
Section 3929 criminalizes the carrying away of merchandise without paying
full retail value and with the intent to deprive the merchant of the use or
value of the merchandise. 18 Pa.C.S.A. § 3929(a). Though Appellants did
not pay for the fuel, the complaint alleges they tendered a debit card.
Appellants claim their tender of payment defeats the intent element of retail
theft. The pertinent question for our analysis, however, is whether the
Amended Complaint sufficiently alleges that Boyer had no probable cause to
believe Appellants acted with the requisite intent.
According to the Amended Complaint, Boyer was aware that
Appellants entered Tower Sales Mini Market after pumping fuel and tendered
a debit card. Boyer also was privy to surveillance video documenting the
the Amended Complaint sufficiently alleges a factual scenario that would not
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lead a person of reasonable caution to believe Appellants committed a crime.
The alleged facts appear consistent with clerical error. In tendering a debit
card to the store clerk, Appellants provided identification and bank account
information, conduct we would not expect from persons intent on
committing a theft. Thus, we believe the Amended Complaint sufficiently
alleges facts from which a jury could find that Boyer lacked probable cause
to charge Appellants with retail theft, i.e., and intent to steal gas.
Next, we must determine whether the Amended Complaint sufficiently
alleges malice. In a malicious prosecution action, malice can be inferred
from the absence of probable cause. Kelly v. Local Teamsters Union, 544
A.2d 940, 941 (Pa. 1988). As explained above, the Amended Complaint
contains sufficient allegations of lack of probable cause. Since we are
that malice can be inferred from lack of probable cause, we believe the
Amended Complaint sufficiently alleges malice.
subsequent threats of witness intimidation charges and his statement that
with malice in instituting the retail theft prosecution.
Appellants also assert that the Tower Sales Appellees are liable for
malicious prosecution even though they provided factually accurate
information to Boyer (i.e., Appellants did not pay for their fuel). In Bradley,
the plaintiffs alleged malicious prosecution against the defendant insurance
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company. The plaintiffs sought first party benefits from an alleged
occurred. Bradley, 778 A.2d at 709-10. After investigation, the insurance
company reported plaintiffs for insurance fraud, and the local district
attorney filed charges against plaintiffs. Id. The ensuing criminal
investigation revealed the tortfeasor was lying and law enforcement dropped
the charges against the plaintiffs. Id. at 710.
The plaintiffs thereafter filed a malicious prosecution action against
several parties, including two insurance companies. This Court addressed
the circumstances under which a private party is liable for malicious
prosecution:
A private individual may be subjected to liability for
malicious prosecution: if (a) he initiates or procures the
[institution of criminal] proceedings without probable cause and
primarily for a purpose other than that of bringing the offender
to justice, and (b) the proceedings have terminated in favor of
the accused. Criminal proceedings are initiated by making a
charge before a public official or body in such form as to require
the official or body to determine whether process shall or shall
not be issued against the accused.
Id. (quoting Tomaskevitch v. Specialty Records Corp., 717 A.2d 30, 33
(Pa. Cmwlth. 1998), appeal denied, 740 A.2d 236 (Pa. 1999)).
The Bradley Court also relied on the Restatement (Second) of Torts:
A private person who gives to a public official information
supposed criminal misconduct, of which the official
is ignorant, obviously causes the institution of such subsequent
proceedings as the official may begin on his own initiative, but
giving the information or even making an accusation of criminal
misconduct does not constitute a procurement of the
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proceedings initiated by the officer if it is left entirely to his
discretion to initiate the proceedings or not. When a private
person gives to a prosecuting officer information that he believes
to be true, and the officer in the exercise of his uncontrolled
discretion initiates criminal proceedings based upon that
information, the informer is not liable . . . even though the
information proves to be false and his belief was one that a
reasonable man would not entertain. The exercise of the
own and protects from liability the person whose information or
accusation has led the officer to initiate the proceedings.
If, however, the information is known by the giver to be
impossible, and a prosecution based upon it is procured by the
person giving the false information. In order to charge a private
person with responsibility for the initiation of proceedings by a
public official, it must therefore appear that his desire to have
the proceedings initiated, expressed by direction, request or
decision to commence the prosecution, or that the information
furnished by him upon which the official acted was known to be
false.
Id. at 711 (quoting Restatement (Second) of Torts § 653 cmt. g (1977)).
As explained above, the Amended Complaint alleges facts from which
a factfinder could reasonably conclude the disputed transaction was a simple
matter of clerical error by the Tower Sales clerk. The clerk, however,
remains unidentified. Notably, Boyer did not put the clerk on the witness
stand at the criminal trial. Amended Complaint, 5/16/12, at ¶ 65. Thus, the
refusal to accept payment after the fact, and a criminal trial at which Boyer
failed to put a key witness on the stand. These allegations permit an
inference that the Tower Sales Appellees contacted Boyer despite their
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knowledge of a clerical error, and that their desire to have Appellants
prosecuted was the determining f
prosecution. We therefore conclude the Amended Complaint alleges
sufficient facts in support of the malicious prosecution cause of action
against the Tower Sales Appellees.
nnot claim official immunity
from a claim of malicious prosecution.2 Boyer argues he is immune from
8546. That section
any action brought against an employee of a
local agency for damages on account of an injury to a person or property
based upon claims arising from, or reasonably related to, the office or the
42 Pa.C.S.A. § 8546. Boyer
recognizes, however, that the Act does not apply to willful misconduct on the
part of the government employee. 42 Pa.C.S.A. § 8550.
____________________________________________
2
On September 27, 2013, Boyer filed a motion to transfer this appeal to the
10, 2013 and directed the parties to brief the jurisdictional issue for this
panel. Boyer argues, pursuant to 42 Pa.C.S.A. § 762(a)(4)(i) and (7), that
the Commonwealth Court has exclusive jurisdiction over matters involving
applies to actions arising under zoning codes, home rule charters, or
statutes governing elections or the affairs of municipalities. 42 Pa.C.S.A.
§ 762(a)(4)(i). It has no obvious application to this appeal. Section
762(a)(7) applies to immunity waivers, but this case does not involve the
occurrence of an immunity waiver. We conclude § 762 does not preclude
our jurisdiction over this appeal.
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In any action against a local agency or employee thereof
for damages on account of an injury caused by the act of the
employee in which it is judicially determined that the act of the
employee caused the injury and that such act constituted a
crime, actual fraud, actual malice or willful misconduct, the
provisions of sections 8545 (relating to official liability
generally), 8546 (relating to defense of official immunity), 8548
(relating to indemnity) and 8549 (relating to limitation on
damages) shall not apply.
42 Pa.C.S.A. § 8550. As we have explained, Appellants have alleged
sufficient facts from which a factfinder could conclude that Boyer acted with
malice.
For their final assertion of error, Appellants claim the trial court erred
in denying their motion for leave to file a Second Amended Complaint. As
we
objections to the Amended Complaint, we need not address this argument.
preliminary objections to the Amended Complaint and remand for further
proceedings consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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