*1 еntities, we must to such limited Guinn its decision expressly this matter and remand of the court below vacate the decision finding. for that critical the trial court ORDER December, 1992, the order NOW, day 7th AND this at No. GD County, Armstrong Pleas of Common the Court of and this 18, 1992, vacated hereby 91-0673, March dated consistent proceedings to the court for is remanded matter opinion. this with relinquished.
Jurisdiction A.2d 1145 FRANKIE, Appellant, LA
Patrick J. MIKLICH, Appellee. A. Robert Pennsylvania. Court 21, on Briefs Oct. Submitted Dec. 1992: Decided provides which P.L. 53 P.S. the Act June "paid fire company with a may replace a volunteer municipality no change. such a majority therein vote of the voters company” unless *3 for Sigmon, appellant. Mark S. Gen., appel- Atty. T. Senior
Gwendolyn Mosley, Deputy lee. DOYLE, COLINS, CRAIG, and Judge, President
Before FRIEDMAN, SMITH, McGINLEY, and JJ. PELLEGRINI SMITH, Judge.
Patrick J. La appeals Frankie from an of the Court order Common Pleas of Northampton County denying his motion for post-trial relief granting judgment and in favor of Robert Miklich) (Trooper Miklich notwithstanding verdict for La on an process Frankie abuse of claim. The issues on court appeal are whether the trial erred by submitting to the jury the question whether Frankie was crimes of underlying unlawful use of a credit card and forgery; and the trial properly whether determined that Trooper Miklich is immune from suit.
I Miklich arrested Frankie on November and him with unlawful use chаrged of a credit card and forgery. Lehigh County District entered a Attorney nolle prosequi September on 1985. La parents Frankie 11, 1986 filed a civil action on against June the Commonwealth of Pennsylvania, police, officials, police state various Miklich, and the clerk who in the worked store where the credit сard was allegedly unlawfully used and who identi person fied La Frankie as being who used it. Trooper Miklich complaint filed answer to the which included new matter asserting the affirmative sovereign defenses of immunity, official and subsequently filed a counterclaim. Pri- trial, or Commonwealth, La Frankie’s parents, the state police police and various officials were removed from this counterclaim action. The claim against the store clerk during resolved trial. Consequently, surviving *4 claims La allegations Trooper Frankie’s that Miklich legal process abused the maliciously prosecuted and and false ly him. arrested
The trial court the charged jury on the issue of probable cause and submitted to special them interrogatories verdict determine, alia, which jury directed the to inter whether La guilty Frankie was of the crimes charged. During their deliberations, jury the returned to the trial court with the following question we have to be “[d]o sure of Patrick’s guilt enough not evidence there is jury feel [sic] or innocence? The repeated response, the trial way.” In to decide either to Miklich’s burden it Trooper instruction that previous its charged; the crimes guilty was that La Frankie prove aby fair proof on the burden of charge the standard reviewed evidence; and instructed of the weight preponderance or the jury the deliberating. Subsequently, jury the to continue interrogatories presented of the affirmatively to all responded trial court deter- findings, on the and based these them La cause to arrest Trooper probable that Miklich had mined favor on a in Miklich’s Trooper entered Frankie and addition, the deter- jury In prosecution malicious claim. disregard in not act reckless Trooper that Miklich did mined misconduct, falsely arrest La and did not or wanton with However, trooper of abuse jury found the Frankie. damages. awarded no process, but seeking for relief new post-trial Frankie filed a motiоn La alia, by inter that the trial court erred contending, trial jury. The trial court guilt of his to the submitting the issue determined, pertinent part, in La Frankie’s motion and denied “so to the broader issue that was related guilt the issue in pre-trial proceed- it fairly cause that was raised relief, post-trial As Miklich’s motion ings.” Trooper immune from suit troоper trial court concluded that and was he because he investigat- when employment Frankie, prosecuted arrested and ed the crimes and in did not act jury found that he specifically because the or with wanton misconduct. disregard reckless Court, La that On to this Frankie maintains jury his to the was error submission of issue of the issue as an affirmative Miklich did not raise as Pa.R.C.P. No. 1030 required his new matter defense La Frankie further main thereby waived defense. error trial court’s action constitutes reversible tains that the severely prejudiced it case. With as confused notwithstanding respect grant judgment trial court’s verdict, was not Miklich Frankie contends *5 168
еntitled to the sovereign immunity defense of because he was not within employment when he abused legal process; he engaged willful or malicious miscon- duct; and he estopped should be from claiming protection of sovereign immunity because he was a trial adjudged by to have violated La rights.1 Frankie’s constitutionаl
II
In an action for malicious prosecution,
plaintiff
a
has
the burden to establish thát the defendant initiated the under
criminal
lying
proceeding without probable cause and primari
ly for a purpose other than to
bring
justice;
offender to
and that
prosecution
terminated in his or her favor.
Carson v. City
Philadelphia,
74,
133 Pa.Cоmmonwealth Ct.
(1990);
(Second)
[pjursuant
declared to be the intent of
hereby
it is
Pennsylvania,
Commonwealth, and its officials
Assembly that the
General
duties,
shall
their
employees
within
(1987).
Feege,
An
for false
Pa.
This Court has held that
when an
of a Common-
agency
wealth
was acting
duties,
of his or her
*7
the Commonwealth employee
protected
is
by sovereign immu-
nity
imposition
from the
liability
of
for intentional tort claims.
McDermott,
Yakowicz v.
479,
120 Pa.Commonwealth Ct.
548
(1988),
denied,
A.2d 1330
appeal
523 Pa.
171 (1992) a immunity employ- Commonwealth protects (sovereign liability from scope within the duties acting ee distress). cause emotional intentional acts which Allentonm, However, City in Freedman v. (1989), this Court 562 A.2d Pa. Ct. Board of Proba Pennsylvania employee stated they actions if for his or her and Parole would be liable tion Contrariwise, test proper willful misconduct. constituted is from employee protected if determine a Commonwealth § 2310 and 42 Pa.C.S. to Pa.C.S. liability pursuant acting was the Commonwealth to consider whether whether employment; his or her within and damages was injury negligent act which сauses alleged immunity availability of recoverable but for the would be of the nine defense; and the act fits within one whether To the sovereign immunity. See Yakowicz. exceptions sets which is con proposition that Freedman forth extent test holding Yakowicz trary reasoning herein, is overruled.4 set forth Freedman Hence, action emanates since Frankie’s cause of Trooper Miklich is a Com from intentional tort claims and to be resolved to employee, only question monwealth immunity if is whether Miklich determine attaches a state acting trooper of his duties as prosecution. he and initiated the when arrested Frankie Thе trial court concluded that Miklich trooper as a when he within duties state *8 Frankie more investigated the crimes and arrested La over, the complaint admitted in 9 of paragraph Frankie hereto, that all times hereinafter mentioned and relevant “[a]t Brooks, Miklich and as the acting agents, Defendants however, agency employees, immunity where lose their defense 4. Local fraud, crime, malice or willful their actions constitute actual actual Abington Township, Cassidy Ct. misconduct. 131 Pa.Commonwealth denied, (1990) A.2d A.2d 527 Pa. 8550). special interrogatories and the trial (applying 42 Pa.C.S. applied the test instructions to indicate court's agеncy employee a Com- determining whether a local rather than for protection. immunity lost monwealth Commonwealth, servants and of Defendant employees Thus, employment.” within the of their inasmuch as the employment acted within the of his and La Trooper in any category Frankie’s claims do not fall within which waived, by is Miklich is sovereign immunity Trooper protected Ac- immunity imposition liability from the this matter. cordingly, judgment notwithstanding properly entered the trial court.
ORDER NOW, December, 1992, this 7th the order of day AND af- Northampton County the Court of Common Pleas firmed.
McGINLEY, Judge, concurring dissenting. majority opinion I concur in the Miklich acted employment and that La Frankie’s any exceptions claims do not fall within of the eight However, I sovereign immunity. respectfully dissent majority opinion which concludes that the trial portion of the issue of La Frankie’s to the court’s submission jury was error. controversy,
In the La Frankie in his com- present alleges reasonably that “a well trained officer should plaint: police underlying have known that the affidavit criminal case probable failed to established cause an arrest warrant taking quality into account the actual amount and of informa- application tion known to Miklich at the time of the for an warrant”; probable arrest that “Miklich had no сause for the 13, 1984”; arrest that occurred on November and that Miklich Plaintiff, “caused criminal to be issued proceedings against LaFrankie, cause, probable Patrick with malice and without such pursue charges probable and continued without 63; Complaint, Paragraphs cause.” June 55 and (R.R.) R13, Record at R17 and R19. Reproduced Miklich denied that he was without pled cause in his answer and in New Matter that he “had *9 La Frankie.” cause to arrest Patrick and reasonable 76; Matter, Paragraph New December Answer cause, the trial As to constitutes probable R34. what R.R. at to the following: as court instructed the making the arrest cause that person Probable means person and a reasonable at the time of arrest believed have believed that same circumstances would also under the as and the information to both facts he had sufficient crime reasonably to that a had been law applicable believe com- arrested wаs of person committed and that the the crime. mitting arrest when the facts
Probable cause for an exists person making knowledge circumstances within the reasonably trustworthy arrest and which he had in a per- themselves warrant information sufficient person that son of reasonable caution the belief committing or was a crime. arrested had committed 3, 1990, at Herein the Testimony, July pleadings Notes I guilt of La Frankie’s sufficiently preserved the defense from proving Miklich was not foreclosed believe Matter. guilt pled La Frankie’s this was not New because Also, testimony trial eyewitness court noted purchasing La Frankie identifying person Jan Orwan as “was merchandise with the Bielefeld’s credit card sufficient guilt.” of the Trial support Opinion ... determination 8; Court, R.R. at at R55. trial April submitted the defense La Frankie’s correctly jury.