*2 McLAUGHLIN, Before VAN DUSEN ROSENN, Judges. Circuit THE OPINION OF COURT Judge. McLAUGHLIN, Circuit entry appeal on This is based judgment Lawrence Thomas’ favor accord with F.R.Civ.P. explained in 6A Moore’s Fed.Prac. 59.15 $150,000 The sum of [1]. was awarded on Thomas his malicious against suit E. Korvette. Motions for J.
a new trial and n. v. were o. court, by D.C., denied the trial 329 F. Supp. cross-ap- Also involved is a peal by plaintiff-appellee amount damages. $750,000 awarded plaintiff Thomas, this amount judge from remitted the trial $750,000 $150,000. brought against Kor- The action was security by Thomas, who was the
vette’s security King Prussia, appointment time head Korvette’s usage head, ques- was familiar with its time the incident in store at the 12, 1965 Thomas and format. tion. On November seen another store com- facts, Smith the basis of these On ground down an escalator fide determined that there was a bona package his arm. He floor with a against case so he called *3 looking a observed around bit at was e.2 polic po On the arrival of again glanc- of the escalator and bottom (7:20 P.M.) lice that Thomas claimed ing directly in front of about while purchased he had in two items ap- of the store. This was outside door toy department, carried them to his car proximately Thomas left the A.M. 11:30 through door, placed the front them package. no with There was store police, in the trunk of his auto. The package that evidence at time considering presented the facts as paid then been for. Thomas was had story, felt was sound that there a placing package in the trunk seen (P. against 678a) cause of action Thom his automobile which was store against complaint as. The Thomas was report by parking lot. On the signed by employee then Brown who had observing employee to the store leaving witnessed in Thomas’ actions management, security one a officer from game. store with the These were all of stores was sum- Korvette’s other concerning the facts the incident which investigate. A Mr. Smith moned predicate filing Brown had to his of the investigator upon, called who complaint. experienced con- in the field. Smith hearing questions concern- a fronted Thomas with There was before a Justice alleged ing package many in car. his Peace which factual time disputes he have two that did Thomas claimed became evident. Thomas here reg- games explanation an attached had a further his trunk with as to the day signifying payment. receipt, question. events on the his ister He al- leged, effect, in- opened trunk and an had his car he carried any game receipt produced or first out of spection no even the store follow- while game package.1 suspected shoplifter. a tape He residue on the asserts placed that he questioning it his trunk for conven- Thomas claimed that paid register tape ience and for it specific would later the after- cashier and a game paid noon he for a story. when second verify not turn out Such did his put along he in his had trunk a to take Thomas refused to be case. game. produced, the first time, He at this polygraph had test at time. He receipt toy department a test, from undergone previously such a receipts policy such article with the have so concealed was to attach 1. The store converting cellophane by packages intention of the same to means purchase paying by tape. own use without felt Thus Smith price meaning piece tape thereof within a affixed had there been * * * (a) package packages, this section subsection or time to one concealing goods may Persons so such be remained some evi- would at least have detained, receipt tape residue, in a reasonable manner even if the dence of length time, by missing. for a reasonable now itself were peace officer or merchant or employee 816.1, in order re- merchant’s § P.L. 872 2. Act June may covery goods July 5, 1957, of such be effected. § P.L. 501 added peace officer, by (b) Such detention P.S. 4816.1 subsection amended 18 pertinent part: provides or a merchant’s shall merchant officer, peace concealing person wilfully “(b) Any merchant render such employee, criminally unpurchased goods or merchant’s or merchandise or * * * arrest, civilly any liable false false either store imprisonment premises premises or unlawful detention.” of such or outside presumed store, prima facie shall be register launching question, the date in a criminal cash if the exactly him, correspond reasonable, facts convince as a hon- but it did intelligent games being, plus price est human tax. He al- that the two girl suspected person guilty leged some the check-out a criminal error arresting person discrepancy.3 may offense. cause of this The error, in one, if his error is an honest As a result of the conflict factual malice, personal not motivated money in- accounts and the small sum of bias, revenge, the law will hold him volved, the of the Peace decided Justice harmless, regardless of the re- eventual discharge putting the case costs of prosecution.” sult of the criminal on defendant Thomas.4 $11 regards problem arises with to who Thomas thereafter instituted this ac- should decide that in this liti- prosecution against gation. tion for malicious The trial court allowed the special Korvette. elements for a cause make factual determi- *4 nations, prosecution action for malicious are but also decide the ultimate concerning question (1938) in stated Res. Torts the existence of 653. Sum- § marizing, probable disputes says the Restatement if cause. Korvette this that proceedings disposition by declaring judge (1) were initiated with- trial probable cause, solely (2) pri- out that this is a decision with the mary bring- purpose court. other than ing justice, private per- an offender to judgment Korvette asks for a proceedings son who initiated such according o. v. n. 5A Moore’s liable, held in be cases where a [2], grant may Fed.Prac. 50.07 such be proceeding criminal had been instituted only when, weighing ed without against by defendant credibility evidence, there can be proceedings where termination of the but one reasonable conclusion as to the was in favor of the accused. proper judgment. Where there con is
Although grounds flicting evidence, there are numerous or there is insufficient appeal raised on this re- time the “one-way” to make evidence verdict prosecution sult all malicious cases judgment proper, n. o. v. not be primarily by is or affected awarded. The court must view the evi probable not there was for the cause light dence most favorable to the filing complaint. Probable cause party who secured verdict. prosecution in malicious matters de- is light conflict, of the factual obvious Co., fined Miller Pa. v. R.R. Pa. 371 story from the different versions of the 308, 314, 809, (1952) 89 A.2d 812 as here, told there is no foundation to order ground suspicion support- “reasonable However, n. o. v. motions ed circumstances sufficient to war- are on the new trial based court’s ordinary prudent rant an man in the appellate discretion and “the court will believing same par- situation in that the ty power guilty lower also, exercise its to review the of the offense.” See Neczypor Jacobs, v. ruling 403 Pa. and reverse when the court’s low ** * (1961) states, 169 A.2d which er court failed to exercise its “By probable cause is not meant an ac- discretion; or the trial where court guilt. justified tual state of One abused its discretion.” 6A Moore’s policy singly 3. Store was to total all sales of the Peace did feel The Justice register say- so that no mistake would attention this case deserved serious However, money made totals. isn’t was ad- “The amount of involved (for important enough mitted that some of the clerks him.” did not to hold “ * * * absolutely policy court) (a) this am follow at all times I P. 717 and instead added the for a deal cost more than about bucks worried 718(a) one item in their heads. like this.” P. may query there- which be found under the Our evi- 59.05 [5].5 Fed.Prac. dence, preju- the defendant did did if fore is to determine initiating the trial court dicial error proceedings.” (Emphasis supplied). adversely affected substantial suit which rights appellant a new dictate Simpson has mentioned Each here side on merits. Ward, Montgomery 354 Pa. A. An examination the Restate (1946) 2d 674 which discussed the re- it has inter of Torts and been ment how which, and cited words statement certain Pennsylvania pertinent preted by case they feel, respective posi- support their question. help will to decide this law urges point. tions on the Korvette d, Torts, Comment Restatement adopted Simpson holds, prosecution in malicious by Pennsylvania v. Pa. Miller suits, cause for A.2d R.R. Co. 371 the criminal decided must be considering situation, type (1952) Simpson, by the su- court. Thomas cites states: standing pra, proposition “ *** testimony, of fa- there is a conflict in the issues where the trial must submit the issue termination
vorable
jury.
cause,
We think
has
the function
finding
side is correct to an extent.
each
the circumstances
good
appeal provides a
acted. The
This
discussion
the defendant
court
*5
whether,
in
those
of the law the area and
the
determines
under
cir-
illustrates
determining
cumstances,
complicated function of
termination was suf-
the
containing
accused,
problems
ficiently
probable
in
and
favorable to the
d,
conflict. Res.
Comment
the
had or had
factual
whether
probable
defendant
type
is-
provides
no
to
is
two solutions
the
of
cause.
Where
us;
testimony
the
in
to
a “better”
well as
the
what
sue before
as
conflict
were,
presents
appeal
has
circumstances
the court
“usual” method. This
the
finding
jury.
difficulty
jury
of the
The notice
a
no need for
which
distinguishing
probable
jury
unless
not called
to act
guilt
innocence
there is a conflict
cause from obvious
presents
of
for its
of dilem-
an issue
fact
areas.
In that kind
which
certain
recognizes
necessity
ma, Simpson
of
determination.
probable
judicial
cause.
determination
respective
functions of
“The
the situation in
673d
This is
which Res.
determining
jury in
is-
court and
using
less usual
dictates
“better
cause,
probable
sue of
can
exercised
be
cause,
determining probable
method”
ways.
bet-
them one of two
The
designated
according
Simpson. That
to
require
to
ter but less usual method is
likely
being
“jurors
where
are
situation
special
jury
the
ting
verdict set-
find
guilt
inno-
or
the issue
confuse
forth the circumstances
criminal
the defendant
cence of
proceedings
find
which
origi-
case,
civil action
out which
findings
Upon
were initiated.
issue, whose deter-
nated
the basic
with
then determines
court
civil
That
decides the
action.
mination
The
defendant had
cause.
is the want
basic issue
usual
is for
court
method
Simpson,
prosecution”,
criminal
charge
jury under
what combina-
at
In the
circumstances,
46 A.2d
354 Pa.
tion or
combinations
grade
abuse,
applied
meant when
than what is
when
a court’s
a different
5. The term
peculiarly
its dis-
to have abused
its
said
discretion is
court
exercise
legal significance, wholly
in law means
Abuse
discretion
unrelated to the
cretion.
meaning
was in error as
court’s action
used in
of the same term when
parlance.
such abuse
And when
of law.
would be
matter
common
Action that
exists,
ordinary
necessary
will
ordered.
reversal
be
make
affairs to
one
abuse,
guilty
an
connotes conduct
matter,
jury
certainly
error,
specific
instant
situation
was
harmless
finding
(the high
jury might
jury,
likelihood that the
since
because of
its
guilt
up
“no
or innocence with
cause” came
with
confuse
cause)
exist,
yet
so,
award in
did
even
enormous
Thomas’ favor. “An
* * *
jury.
improper
of ma-
submitted
submission
through
problem
plainly
jury
can
seen
terial
issue to
is another
undisputed
ground
facts and circumstances
for a new trial.”
Fed.
Moore’s
attorney
[2],
appeal.
in this
for Thom- Prac. 59.08
compounded
dif-
as accentuated
ficulty by
There were additional factors
told
his summation when he
present
necessity
show
also
games?
jury
“Did he steal
those
questioned
a new trial. Korvette has
only question
That is the
when
because
permitting
the district
court’s actions
you get
question,
the answer to that
plaintiff to introduce evidence on a 1969
legal questions
then all of the
about
claim.7
slander
Korvette asserts this to
probable cause,
investigation,
reasonable
damaging
defense;
have been most
to its
that,
right
place
fall
and all
*
into
alleged
pleaded
slander
or
*
(489a). Furthermore,
pre-trial
included
order and was
recognized
himself
mo-
barred
statute of limitations.
rass which this statement created for
Some mention of that
had been
claim
remarked,
sidebar,
when he
pre-trial solely
respect
made at the
appellant
brief,
notes in his
“Let me
damage
earning
item of loss of
point
your (plaintiff’s counsel)
out that
capacity,
(p. 23a).
It was determined
argument
entire
directed
“possibly
admissible
to serve to
guilt
innocence,
to the issue of
vir-
light
any
shed
claim of
malice
con
tually your
argument.”
entire
Those
original
nection with the
transaction.”
complicated
statements and the
nature
31a).
(p.
However, through the action
confusing
tone much
the evi-
granting
of the trial court
Thomas’ mo
presented
trial,
very
dence
make
complaint,
tion to amend his
it allowed
*6
example
clear that this
anwas
excellent
entirely
an
by
new claim to be considered
why
question
of
a
is for
jury
passing upon
it
while was
jury
the court to decide after the
has
original
plaintiff.
contention
of
interroga-
appropriate special
answered
permit
The decision of whether or not to
tories,6
though
even
conflict
there was
change (in
pre-trial order)
a
is
testimony.
Some indication of
judge
within the discretion of the trial
jury’s
ques-
confusion of the real
“appellate
and
interference with this
by
tion here
their
be evidenced
kept
discretion should be
at a minimum.”
inquiry
rendering
verdict,
on
a
at
Ely
Reading Co.,
(3
v.
n. o. v. on a 1965
slander
ground
suspicion supported
sonable
(4) permitting
introduction
of evi-
circumstances
sufficient
to warrant
dence as to the 1969 slander.
ordinary prudent
an
man
the same
believing
party
situation in
society
Because
is concerned with bal-
guilty of the offense.”
ancing
effective
enforcement
against protecting
criminal
law
the indi-
I. ALLOCATION
OF FUNCTIONS
“unjustifiable
vidual
oppres-
BETWEEN
AND
JUDGE
JURY.
litigation
charges,”1
sive
of criminal
question
The crucial
raised here is
safeguard
courts have laid down rules to
whether,
in the trial of an action for
private persons who aid in the enforce-
prosecution,
malicious
the determination
against
ment of the law
suits for mali-
presence
probable
or lack of
prosecution.
balancing
cious
jury.
is for the court or the
The trial
interests,
Pennsylvania
Supreme
judge,
denying
Korvette’s motion for
regards
apparently
Court
interest of
v.,
n. o.
held that
society in law enforcement
as the more
jury.
was for
He concluded that
important.
Pennsylvania
See Miller v.
disputed
there were
factual
issues with
Co.,
308,
809,
310,
R.R.
A.2d
Pa.
respect
probable cause,
and that “it
(1952). Therefore,
ma-
action for
would
that,
have been error to declare
prosecution
licious
will not
lie unless
law,
probable
matter
there was
previous
there has been a
unsuccessful
this case.”
proceeding
prosecuted
criminal
that was
without
interrogato-
cause and
malice.
The trial
submitted
plaintiff
prov-
has the burden of
ries to the
in which he asked them
(cid:127)
each
element.2
Want of
determine whether
there was
indispensable
cause is an
cause for
element of the
the arrest of Thomas on No-
action.
It
is determined as of the date
vember
and whether
prosecution
press
initiated and is in
cause to
dependent
guilt
no
18,
sense
1965,
in-
November
the date of the
Byers
hearing.4
Ward,
nocence of the accused.
v.
Torts, chapter 29,
1. Restatement
packages
intro-
the two
were tied to-
ductory
gether
they
note at 380.
when
were found in the
plaintiff’s car,
trunk of
and even as to
Simpson Montgomery
Co.,
&Ward
string
the color of the
with which
(1946) ;
479
Simpson
ques-
appeared
approve
normal
of law is that
the anal-
rule
The
jury
ques- ysis
the
for
in
of Torts
fact are
the
Restatement
tions of
possible
court. Because there are two
of action
of law are for the
courses
tions
judge
protecting
exercising
from for the
in
re-
trial
societal concerns
jus-
sponsibility
probable
public
who aid
cause in
intimidation citizens
decide
however,
tice,
the
the
diffi-
event of controverted factual issues:
and because
distinguishing
culty
jurors
be-
for
respective
The
the
functions
probable cause
of lack of
tween
issue
jury
determining
is-
court and
criminal
defendant’s
and the issue of
probable
sue of
by
exercised
cause can be
innocence,
guilt
in this
variations
or
ways.
them in one
two
The bet-
developed in mali-
principle of law have
require
ter
is to
but less usual method
Curley
prosecution
In
v.
suits.
cious
jury
special
set-
verdict
find
280,
Co.,
Pa.
Finance
343
Automobile
ting
forth
circumstances
290,
48,
(1941), the court
A.2d
53
23
proceedings
they find that the
which
general
pre-
not
rule did
that the
noted
findings
Upon
were
initiated.
cases,
prosecution
“for
in malicious
vail
court then determines whether
judge
not the
cases the trial
in such
jury
probable
The
defendant had
cause.
not
or
determines
is for
the court
usual method
(i. e., the
prosecutor
case
criminal
charge
combina-
under what
trying) had
in the civil action
defendant
circumstances,
tion or
combinations
existence of
an honest belief
may
under the evi-
which
be found
prosecution’s ini-
probable
dence,
did or did
the defendant
Montgomery
Simpson v.
In
tiation.”
initiating
probable
cause for
87,
Co.,
A.2d 674
Pa.
46
&
Ward
proceedings.
opportu-
(1946),
had a further
the court
d
Restatement of Torts
comment
nity
question.
It reversed
to review
case,
In
Miller
Penn-
at 437.
sylvania
a later
v.
Simp-
plaintiff
favor
Co.,
308, 89
R. R.
A.2d
judge
concluding
son,
Supreme
(1952),
Pennsylvania
a fundamental error when
“committed
Hugee
adopted
v.
comment
See
Court
d.
or non-
existence
he submitted
basic
Co.,
Pennsylvania R. R.
376 Pa.
the ar-
existence of
cause for
(1954).
101 A.2d
jury.”
Simpson
It
rest Mrs.
stated:
FEDERAL OR
II.
STATE LAW.
firmly
principle
no
more
There is
mind,
precedents in
it is
With these
princi
law than the
embedded
appropriate to
what law—state
discuss
prosecu
ple that in case of malicious
governs
The
or
issue.
federal—
tion,
question
want
relationship
problem of
between
prosecution
cause for
the criminal
perennial
is a
one.
state and federal law
gave
action, is
rise to
civil
significant Supreme
Court
most
Byrd
proclamation
purposes
our
Ridge
Cooperative,
Blue
Electrical
court.5
legally
mind of the
2. Was there lack
trained
press
or less
minds
the more
emotional
jurors,
or not
November
1967? Yes.
decide whether
prosecuting
plaintiff,
cause for the initiation
3.
likely
prosecution.
are
defendant motivated
malice?
Jurors
guilt
innocence
the issue of
Yes.
confuse
criminal case
of the defendant
court,
originated
civil
Pa. at
U.S. ease, judge jury (1958). In that a workman tween a matter bound damages rights brought up action to recover with the fundamental injuries parties, procedural in the personal as a matter. suffered constructing procedural view, job character, electric of his The their course by employer options con- hired to lines. is illustrated available His coop- judge. Simpson Mont the lines for the defendant the trial See struct cooperative gomery Co., 87, on 46 A.2d The defended & erative. Ward 354 ground (1946). workmen’s not here state 674 The choice would remedy any predictable compensation made its affect the outcome in statute against Moreover, pre cooperative as well has exclusive fashion. this circuit employer, viously attempting plaintiff’s held that a “to as the immediate rule being part decide, jury as its the work done define when must because cooperative’s trade, function, particular or occu- ele business whether practice liability impinges in the pation.” on The established ments of exist” question Gatenby was to have the field state courts reserved for federal law. 443, part Corp., the defend- work was Aviation F.2d v. Altoona 407 occupation” “trade, (3d 1968); de- ant’s business or 446 see Lind v. Schene Cir. jury. judge, ly Industries, Inc., 79, (3d The cided 278 F.2d Cir.), denied, courts 835, federal Court held that cert. 364 U.S. S.Ct. following prac- should, 58, (1960). state instead 5 L.Ed.2d resolution tice, employ let rule and a federal one this issue is of the “details relat question. jury It reasoned: decide this ed to its own conduct of business” follow a federal court need independent system federal is an state In law. See Cohen v. Beneficial administering justice system 555, Corp., dustrial Loan 337 U.S. ju- litigants properly its who invoke L.Ed. 1528 S.Ct. essentia] An characteristic risdiction. (1949); Moore, Federal Practice J. cf. system the manner is (2d 1959). ed. ¶0.312 actions,
which,
it
in civil common-law
inquiry
between
functions
distributes
Our next
federal
is whether
judge
jury.
policy
permit
.
should
the trial
submitting
option
disput-
exercise the
Moreover,
Id. at
481 sions, any such as whether the prosecution;6 the com- indi- the cause for instructing jury representing pos- viduals the defendant plexity in the involved upon plain- proper sessed a reasonable belief in the based the verdict to guilt. among many tiff’s different the its choice possible of factual find- combinations III. JUDGMENT N.O.V. ON FALSE ; society ings importance to and the ARREST AND MALICIOUS encouraging to citizens and the courts of PROSECUTION. prosecuting the law.7 aid in violators argues Korvette is entitled to court Because trial submitted jury, probable n. o. v. on the actions false to the basic issue of cause and to a new arrest malicious be- I is entitled believe defendant prove cause, alia, trial, to in- inter Thomas failed should trial. In that court prosecu- jury lack of for the only the facts. to find struct motive, enjoyed improper interrogatories tion special and and it He should submit statutory critical, immunity for the arrest. The pertaining disputed issues opinion jury was of the that there He not ask fact.8 original legal any cause for Thomas’ questions requiring conclu- (February Against difficulty Crimes Business 9 the ad- This is illustrated Depart- report 1972). case, testimony mission, This of the U.S. in this allegedly Ward, ment of Commerce also observes: Thomas’ who witnessed shoplifting appears games allegedly payment to be While stolen. problem testimony only for retail estab- serious most to the His relevant lishment, guilt most observers believe ultimate issue of or innocence. It of the reluctance of business- because was irrelevant issue of whether magnitude possessed their admit men to employee Korvette reasonable belief problem, figure guilt. prosecu- is theft In a Thomas’ malicious seriously suit, believe understated. Some tion quiry false relevant in- or arrest employee per- accounts for sub- that stantially theft is the reasonableness shoplifting by ceptions Therefore, than more loss accusers. pertaining customers. relevant matter to Ward was what Thomas told Smith prior him about inventory Apparently, result al- losses which Total arrest. entirely shoplifting parties important and em- here did realize most high ployee theft are estimated as distinction. percent five of sales at some four growth magnitude shoplifting 7. The virtually equal This stores. employee country, theft in this and its profit margins retailing. normal society, burden on enormous is revealed Id. 9-11. reports agencies. of several federal A 673, study, by comment on 8. Restatement Torts the Small Administra- Business (a) 438, tion, against business, states: clause small crime em- perform report has no function to [A] bodied transmitted the issue of with reference to United States Senate Select Committee April 3, Business, 1969, unless there is conflict Small estimated “ordinary under as to the circumstances to small cost business of initiating year 1967, acted in which defendant crimes” billion for $1.4 proceedings. although If these circumstances crimes consideration party relatively narrowly. ifor are admitted either were defined 1970, For upon crimes, ordinary uncon- them is clear and this loss evidence in- finding shoplifting cluding employee theft, need tradicted there is no give approximately informa- court $4.8 estimated Forty-one percent to determine re- tion billion. of this sum shoplifting existence nonexistence flected losses Corpora- study by A cause. theft. The Rand apparently Department law of This now the tion conducted for Pennsyl Pennsylvania. Hugee November, 1971, Justice, discloses that See private Co., prevention R.R. Pa. crime vania the cost (1954) ; Pennsyl Miller v. 1969 exceeded Pre- A.2d $3.3 billion. See Report Co., liminary vania R.R. A.2d Staff of Bureau of (1952). Commerce, Department of Domestic U.S. Commerce, Impact Economic *11 tapes registers. on arrest but concluded that of the other'two recognize suggested jury.9 that on was for the We Smith that Thomas take a appeal polygraph the facts must be viewed lie-detector test examina- light to Thomas. tion. most favorable Thomas refused. acknowledged fol- at trial the Thomas action, At trial of this Thomas the. lowing He had removed the basic facts: testified that when the cashier of the game Getaway from the Korvette Chase register” “end was called Smith to placed store it in trunk of his security questioned office paying car at about 11:30 A.M. without purchase whether he had made a at her opened for it. he the trunk of his When replied affirmatively. booth she She presence car of Smith later purchased was asked whether he the two day, allegedly pay- after he made the games and, first, found in his trunk at games ment, the two were there and the said, said, she “I think so.” She then register receipt could not be found. however, positive.” “I am not When he and returned to the Smith se- acknowledged that the store rules laid curity store, office at Smith at security down in the manual em- request, pulled tape Thomas’ “the detail ployees prescribed clearly register” and, from end in an effort purchases paid were to be for and left at pay- to corroborate Thomas’ claim of department the sale until could be ment, looking tape “went over the detail picked up and taken to the time clock (the price for a total sale $10.69” area.10 games plus tax). the two Smith said he Thus, by po the time Smith tape called could not find the <fti amount lice, suggested might merchandise had been found in that Thomas have car, the trunk of register Thomas’ Thomas was been mistaken as to the produce receipt, unable to register alleged none payment made, which the was alleged tapes supported pur gone possibly and that he chase, through apparent there registers. violation one of the other two security regulations, written suggested pulling tapes Smith the detail registers. Although Thomas had refused to lie- submit other two polygraph detector test or examination. Thomas insisted that he not mistak- en, He also Smith, nonetheless, testified at trial that he refused went out and police to tell return, his Upon version of the facts checked. five about later, reported minutes by my he that he was because “I had been advised at appropriate unable to find the amount torney not to make a statement.” Un- During trial, 9. 10. Thomas contended that course the trial the rule was judge indicated counsel that he con- applicable him, the store man templated instructing jury, or at ager, manager, assistant store or the commenting strongly, least was there manager. inapplica floor This asserted probable original cause for the ar- bility, however, ques is irrelevant to the colloquy rest. In a counsel a few cause, tion of since there was later, minutes he stated: Brown, no evidence that either Smith or at the time of the arrest and clearly [I]t seems to me rather prosecu orig- there is tion, cause for the regulations inappli considered the inal transaction. The issue would cable. be with the whether information at justice hand at police time of the report investigation, of this peace hearing however, offered evidence at trial point. cause still Thomas, existed at that give discloses that he did short, time, they as of the statement, didn’t substantially which varied any any purchase have all; evidence of from his at trial and differed you say I don’t see how can’t from the statement of his counsel probable cause, there wasn’t hearing but that before Justice of the Peace jury. is a going matter for the I am Thomas. The record reveals that defend- pass to let them representatives it. ant’s had such statement circumstances, finally Brown it to his der own use. The fur- statute signed complaint evening. provides part ther that: Magistrate found that Williams concealing goods may Persons so such cause for the issuance detained, in a reasonable manner proof process. This without more would *12 length time, and for a reasonable to lack of have failed establish by peace a officer or a merchant or a presence improper purpose; and cause merchant’s in order that re- contrary, on the it would have estab- covery goods may of such be effected. probable cause as a matter of lished law. detention shall not Such . . . officer, peace render such constraining pre- merchant or one The factor that employee, criminally merchant’s concluding or vents me from that was civilly, arrest, for false false im- liable as matter of is the a law prisonment given or unlawful detention. testimony by Thomas on cross-ex- prior had told amination that he Smith apparent 18 Pa.Stat. in- 4816.1. The § Ward, to the arrest that his friend a tent of this statute afford mer- security employee store, former at the deciding leeway chants some whether payment had witnessed for the prosecute to detain and someone games. testimony point Thomas’ on this suspect of theft. Even under Thomas’ extremely suspect he never men- since trial, pre- prima version at he facie was. evening police tioned the Ward to the game sumed to have concealed first the alleged prelimi- or theft the with the intent it at time he steal hearing. Nevertheless, nary it was the it, removed since he admits he had not obligation jury’s to evaluate his credibil- paid focus, it at that time. Our finding pertinent ity and to make however, must be on time of deten- fact. If the believed Thomas that prosecution. tion and At time light Ward, he told about Smith alleged goods pur- were apparent by corroboration the cash- chased. He testified that he (equivocal was) iers as it of Thomas’ told Smith that Ward would corroborate purchased games, claim to have then payment. disputed In view of this particular I circumstances be- testimony, say I a matter of cannot Pennsylvania place lieve that law would statutory presumption law that at- personnel a burden store to at- Pennsylvania provide taches. could tempt prior to check with Ward com- person may a he be detained whenever mencing prosecution. alleg- produce receipt goods cannot edly purchased, it has not. but Korvette also contends Pennsylvania law,12 statutory it en- opinion The trial of the liability titled to detain Thomas without separate question that a statute, any for false arrest. Under this whether, production “the the re- concealing person willfully unpurchased hearing ceipt at the Justice of the Peace goods any or merchandise store is have, did, should convince the defend- prima presumed facie to have con- so employees plaintiff’s ant’s innocence.” cealed it with the intention of convert- I believe that this should not have been ed police available to them magistrate reducing from the offense They hearing. prior the start of that larceny shoplifting as defined by interrogated knew Thomas had been statute, 'history legislative police report police. reflects the The Representatives in the state House of police presence station of Kor- primary purpose reveals representatives police vette’s when the statute to eliminate the enormous “was investigating officer, Sergeant Detective bulk of [actions]. malicious Nasielski, interrogation arrived for the Legislative Journal, .” 1959 Pa. latter’s dis- Thomas. (June (statement by 16, 1959) at 1798 presence closes their continued after sponsors Ellberg, Mr. one of the interrogation. House). bill in the 18 Pa.Stat. 4816.1. When an amend- prohibit ment was enacted 1959 to separate inquiry that, indicating guilt even if anee as or innocence were, Bryant facts as to existence of Kuntz, accused.” change Pa.Super. (1904) [Emphasis did material- ly- Moreover, added]. receipt convinced Kor- hearing preliminary on November plaintiff’s vette of innocence is rele- by was not conducted issu- vant since Korvette took no action after authority, Williams, Justice hearing magistrate decided Peace Frank Thomas. At to dismiss the case because of sum hearing, .appeared Brown and Smith involved. gave testimony subjected were'
searching counsel cross-examination Whether n. o. v. should have Thomas, however, for Thomas. did not been entered on the false arrest and ma- *13 testify. merely produced His counsel licious counts is an extreme- register receipt alleg- cash that Thomas ly case, ap- close this it but edly day following on the pears found ar- his that the court did not err since ear, rest the crucial, trunk his in the sum disputed question there was a $10.35, price $10.69, not pertaining alleged fact to the communi- games plus receipt two tax. The that presence cation to Smith Ward’s at produced was indicated that it was is- games. payment the time of on sued November at about (Smith 4:15 P.M.13 at the store IV. arrived THE SLANDERS. investiga- at 4:00 P.M. to conduct A. The 1965 Slander tion.) Thomas also claimed that Korvette my opinion, hearing, In any- if days had slandered him several his after thing, increased the reasonableness prove action, arrest. To this cause of he guilt. Korvette’s belief in Thomas’ Mary Turner, called Thomas’ trial version the events was testified Korvette. She that several put hearing. into the record this at It days arrest, after the November conflicted with his earlier version con- had Smith asked her whether Thomas police report. tained in the This con- anything day purchased on the flicting pro- version combined with the replied arrest. She that she saw Thom- alleged register receipt duction of the go through register did the end but discrepancies reflecting with its and purchased. pro- not know what he She payment only at about 4:15 P.M. could objection testify ceeded to over that: suspicion. have increased Korvette’s asking not “[Probable confined to the cause] He me said the reason he was truth of the that matters lead to the is because Thomas had over Mr. prosecution, appear- but extends to their toys or thousand dollars’ worth of day arrest, Brown following estimated time as 4:15 his car the that hearing, P.M. spare on the basis he tire removed the and found the the number receipt, produced magistrate’s sale and time the register tape (Although hearing, spare-tire was confiscated. inside “down transcript hearing tape of such in- was not wheel . . . with stick at- cluded in the evidence submitted to the tached.” He notified neither Korvette jury, put produced the court alleged ruled that it would be find his nor re- ceipt them, into the record for consideration it in led making rulings questions its drop charges. that Korvette He not jury.) were not acknowledged to be receipt pro- submitted to the report police officer, In his hearing to the wrong Thomas duced “was purchase amount,” stated that he had made personally he made games of the two at about 11:30 no A.M. search of the trunk when he first trial, however, At opened receipt he testified that he for Smith. ad- paid games mittedly discrepancies two at about 2:30 bore in the dollar purchase P.M. amount of the and in the num- At case, trial of the instant ber of items. testified that he searched the trunk of something alleged [Emphasis to that at 301. The statement is not de- effect. famatory cryptic on its face. In its con- ours.] text, it cannot said that the defama- The court submitted the slander claim tion is biguous The statement is am- obvious. allegation basis of an equivocal. It can be rea- charg- complaint paragraph sonably toys pur- construed refer ing publish- speaking Korvette acquired chased as, although otherwise Thom- defamatory on No- false words it is doubtful that complaint does vember 1965. The Therefore, Thomas the intention. had defamatory uttered state words proving Mrs. Turner the burden of and, opin- judge noted in his the trial defamatory. understood words to be ion, plaintiff’s pre-trial “the statement Moreover, carry He did burden. singu- pre-trial the final order were ex- Turner certain Mrs. larly respect to this uninstructive with something “they words were act used— deficiencies, Despite incident.” these She did not elaborate.14 effect.” go permitted the court because the incident court, reasons, closely to the main thrust related refusing to direct a verdict of erred plaintiff’s claim. the defendant at conclusion judgment enter n. o. v. evidence and to my opinion, however, this testimo *14 this count. on support ny inde insufficient to an is pendent plain of action because carry to tiff’s failure burden B. The 1969 Slander 12 Pa.
proof on an element. essential provides 1584a(1)(d) specifically retried, Stat. must com- Since case be § this respect plaintiff action that the defamation to made with ment should be recip relating proving admissibility has burden to an “[t]he understanding According alleged communi ient’s [the slander. 1969 meaning.” job evidence, defamatory applied See Thomas cation’s] Greyhound Inc., February Harbridge Lines, Miley Agency v. 294 Detective Miley, (E.D.Pa.1969). Snyder, F.Supp. employee This stat 1969. checking incorporation Re Thom- ute is a verbatim that in testified 613(1) (d). telephoned background The of- Korvette’s statement Torts he § as’ King on this section in- Restatement comment After he of Prussia store. explains plaintiff operator is relieved that he wanted formed what identified this burden if the communication to a who he referred man manager. defamatory Sny- security on its face. Restatement as the himself 613, (1) employee Torts comment on subsection the Korvette that der testified Judgment justified accuracy 14. o. be auditor’s n. v. was said but sensation) ground perception physical (the on the basis of the this alone on slander, addition, rule libel or some that sounds. actions the word defamatory frequently susceptible vari- “the and matter should false words are pleaded meanings, depending be v. the in- haeo vería.” Foltz able Lines, flection, tone, Moore McCormack F.2d and circumstance (2d Cir.), denied, danger The of a mis- cert. 342 U.S. were used. permit (1951). understanding great S.Ct. L.Ed. 655 too Foltz, purpose rule, equivocal proof as stated in in a ease such as this. example, possibility is “to enable the court decide For consider spoke just issues of the words as used Smith that word differ- one apply ently to the and tend to de than him the statement attributed grade eyes community. him in the No defama- witness. substance tory possible . . .” Before are words deemed to connotation if would be defamatory per se, proof said, pur- be Smith in fact “Mr. what unequivocal. was uttered should also chased over a thousand dollars worth of spoken toys.” Proof of the word involves only an accurate recollection of what leaving opinion Part II of this and, scribed after him to wait asked interrogatories special minutes, the submission of back telephone for a few came govern trial, “Well, you shall said, a thief to the at the new if want and (b) go working you, hire the 1969 slander evidence was ahead irrelevant on the issue of Snyder then told malice he was said him.” admitted, lar- not have been as stated arrested for Thomas had been opinion. of this 1965 and under IV-B ceny by in November he in 1965 arrested when he was “and on basis actions about his lied trusted, fired he was not be he could day.”
the same evidence admitted this
The trial court could be
and instructed light the existence to “shed used relating in- back ill will malice or GOVERNMENTOF VIRGIN I think of November 1965.” cident ISLANDS This evi- of discretion. was an abuse question of dence was irrelevant TORRES, Appellant. Emerito allegedly individual who malice. No. 72-1835. identified spoke these words give authority in- character Appeals, and his United States Court Third employees Circuit. formation about clearly years three Over established. Argued Feb. 1973. elapsed the arrest and between had April 4, Decided 1973. Moreover, there telephone conversation. May 7, As Amended to connect evidence Smith was no *15 Brown, the 1965 arrest initiated who prosecution, conversa- with the 1969 nothing Finally, to indi- there was tion. speaker knew
cate untrue; nor were statements anyone Kor-
anything show making or responsible for the vette’s retaining anyone con- records or prosecution knew with the
nected they false. Unless statements be thought untrue
were would part
not indicate malice—even phantom speaker. prejudicial evidence of the admission effect
outweighed proba- very speculative its
tive value. opinion in this
For the reasons stated judgment of the dis-
I reverse the would the case with
trict court and remand n. o. v. to enter directions retry slander count and
the 1965 arrest malicious
false opinion.
counts accordance with Judge in this concurs Van Dusen Judge Mc-
opinion, as well as
Laughlin’s subject opinion, to the under-
standing (a) procedure de-