                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2001

Trabal v. Wells Fargo Armored
Precedential or Non-Precedential:

Docket 00-2511




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Recommended Citation
"Trabal v. Wells Fargo Armored" (2001). 2001 Decisions. Paper 240.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/240


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Filed October 16, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2511

LUIS TRABAL

v.

WELLS FARGO ARMORED SERVICE CORPORATION,
its successors and/or assigns;**
LOOMIS FARGO CORPORATION; JOHN DOES, 1-100,
the same being fictitious; ABC CORP.
(D.C. Civil No. 98-cv-00858)

JEROME Q. FORD

v.

WELLS FARGO ARMORED SERVICE CORPORATION, its
successors and/or assigns;** LOOMIS FARGO
CORPORATION; JOHN DOES 1-100, the same being
fictitious; ABC CORPORATION, the same being fictitious;
individually, jointly, severally, alternatively
(D.C. Civil No. 98-cv-02225)

Wells Fargo Armored Service Corporation,
its successor and/or assigns,**
Loomis Fargo & Co., John Does 1-100,
the same being fictitious, and ABC Corporation, 1-10,
the same being fictitious; individually, jointly,
severally, alternatively,

       Appellant

Appeal from the United States District Court
for the District of New Jersey
District Judge: Hon. Alfred M. Wolin
_________________________________________________________________

** Deleted per Clerk's Order dated 1/10/01.
Argued: April 17, 2001

Before: BECKER, Chief Judge, McKEE, Circuit Judge
and POLLAK,*** District Judge

(Opinion filed: October 16, 2001)

       JOHN J. GIBBONS, ESQ. (Argued)
       KEVIN MCNULTY, ESQ.
       Gibbons, Del Deo, Dolan, Griffinger
        & Vecchione
       One Riverfront Plaza
       Newark, New Jersey 07102-5497
Attorneys for Appellant,
Wells Fargo Armored Service
Corporation

       HOWARD SIMS, ESQ. (Argued)
       Santoro and Santoro
       304 Maple Avenue
       P.O. Box 38
       South Plainfield, NJ 07080
Attorney for Appellee,
Luis Trabal

       JOSEPH CHARLES, JR., ESQ.
        (Argued)
       Ashley and Charles
       50 Park Place
       Suite 1400
       Newark, NJ 07102
Attorney for Appellee,
Jerome Q. Ford
_________________________________________________________________

*** The Honorable Louis H. Pollak, District Judge, U.S. District Court for
the Eastern District of Pennsylvania, sitting by designation.

                               2
OPINION OF THE COURT

McKEE, Circuit Judge.

This appeal arises from a diversity action for malicious
prosecution that Luis Trabal and Jerome Q. Ford brought
against Wells Fargo Armored Service Corporation. The
district court denied Wells Fargo's motion for summary
judgment and sua sponte granted partial summary
judgment to Trabal and Ford based upon the court's
conclusion that defendant could not establish lack of
probable cause to prosecute Trabal and Ford as a matter of
law. The court thereafter entered judgment for Trabal and
Ford based upon a jury verdict in their favor and against
Wells Fargo. Wells Fargo appeals.

For the reasons that follow, we hold that the charges that
Wells Fargo initiated against Trabal and Ford were
supported by probable cause. Inasmuch as probable cause
is the sine qua non element of the tort of malicious
prosecution, we will reverse and remand to the district
court with instructions to enter judgment for Wells Fargo.

I. Background Facts

This dispute centers around the disappearance of a First
Fidelity Bank money bag containing $190,000. On June 16,
1993, Robert Emond checked the bag in question out of a
Wells Fargo vault. He thereafter reported the bag missing
when he and his partner, Luis Matias, arrived at First
Fidelity later that same day.

William J. Cianci, Wells Fargo Security Loss Prevention
Manager, initially focused on Emond and Matias as
possible suspects in the investigation. Cianci fruitlessly
checked Emond and Matias's credit histories and took
statements from Emond, Matias, and employees in charge
of the vault. Both Emond and Matias indicated that Emond
was "fooling around" at the loading dock around the time
the money bag disappeared.

On June 18, 1993, Carlos Rodriguez, another Wells Fargo
employee, telephoned Cianci and reported that he had

                                3
observed the theft of the bag. On June 21, 1993, Rodriguez
gave two sworn statements to Cianci in which Rodriguez
related what purported to be his eyewitness account of the
events on the morning in question. In those statements,
Rodriguez stated that Emond had dropped his pants on the
loading dock and, in the midst of his fooling around,
Emond's cart broke loose and rolled across the floor. One
First Fidelity Bank money bag dropped from the cart and
Luis Trabal stopped the cart with his foot. Rodriguez said
he then "saw Luis Trabal bend down and pick up a white
FFB bag," "thr[o]w it into truck No. 701," and "kick the cart
back to Emond." App. at 105-108. Truck No. 701 was
assigned to Jerome Q. Ford and Jack D'Elia.

On June 21, 1993, Cianci interviewed Trabal, Ford, and
D'Elia. Each of them denied any involvement with, or
knowledge of, the missing money bag. Ford and D'Elia, did,
however, admit that later during the day in question they
had made an unauthorized and unlogged stop at D'Elia's
home with their armored Truck No. 701.

On June 22, 1993, Cianci summoned Det. Sgt. Mileski of
the Lynhurst police to the Wells Fargo facility and both men
re-interviewed the employees. Trabal, D'Elia, and Ford
again denied any involvement. Trabal and D'Elia gave
written statements, and Ford invoked his Miranda rights
and left the interview. Rodriguez refused to be interviewed,
resigned from Wells Fargo, and left the facility. On his way
out, he reconfirmed his account of the theft. In doing so, he
informed Cianci that he was afraid to speak to the police
because Burt Terrely,1 a union representative monitoring
the investigation, had threatened to "find the rat" who had
implicated union employees. Cianci did not interview
Terrely. Cianci later explained that decision as follows: "[i]t
had no bearing on the case, you know, he's a union man
and I just stayed away from the union." App. at 296. Cianci
also did not interview the two other employees present at
the alleged incident, namely Benny Pareja (Rodriguez's
partner) and Brian Cenicola (Trabal's partner).

On June 24, 1993, Cianci filed a criminal complaint
against Trabal, Ford, and D'Elia based primarily on
_________________________________________________________________

1. The briefs also refer to him as "Turelli" and "Turrelli."

                                4
Rodriguez's statements. Trabal and Ford turned themselves
in and spent two nights in custody before they posted bail
on the third day.

Meanwhile, Cianci unsuccessfully tried to telephone
Rodriguez. Cianci did eventually speak to Rodriguez by
telephone, and Rodriguez agreed to resume cooperation
with the investigation. Rodriguez subsequently gave
statements to the Lynhurst police which described his
reason for previously withdrawing his cooperation. In those
statements, he reconfirmed the earlier statements he had
given Cianci.

On June 29, 1993, Mileski interviewed Luis Matias
(Emond's partner) and Brian Cenicola (Trabal's partner).
Matias confirmed that the cart rolled away from Emond and
that the missing bag was not on the cart when Matias
subsequently loaded the truck. Cenicola confirmed that the
cart rolled over to Trabal who stopped it with his foot.
However, Cenicola maintained that he did not know what
happened afterward.

On March, 16 1994, Cianci testified before the Bergen
County grand jury, which thereafter indicted Trabal, Ford,
and D'Elia for theft. However, three years later, the Bergen
County Superior Court dismissed the charges based upon
the voluntary application of the Assistant Prosecutor,
James Addis. Addis had recently been assigned to the case,
and he concluded that subsequent events seriously
impaired Rodriguez's credibility. In 1996, Rodriguez had
pled guilty to endangering the welfare of a minor. In
addition, in late 1996, he made "odd comments" to Addis in
which he stated that Emond "pulled down his pants" so
that he could "urinat[e] into the air and catch it in his
mouth." App. at 9, 34. His recollection of the events
surrounding the "horse play" on the dock had not
previously captured that little detail.

After the criminal charges were dismissed, Trabal and
Ford brought separate suits against Wells Fargo. Both
complaints alleged malicious prosecution, false arrest,
wrongful termination of employment, negligence, and
slander. With the exception of the tort of malicious
prosecution, all counts of the complaints were dismissed by

                                5
motions and consent. Wells Fargo filed this appeal following
the aforementioned jury verdict in favor of those plaintiffs
for malicious prosecution.

II. Procedural History

Trabal and Ford initiated their tort actions in state court,
but Wells Fargo thereafter removed them to the United
States District Court for the District of New Jersey where
the suits were consolidated. Both complaints alleged
malicious prosecution, false arrest, wrongful termination of
employment, negligence, and slander. All of those counts,
except for the count claiming malicious prosecution, were
dismissed by motion or consent.

Wells Fargo moved for summary judgment based upon its
assertion that plaintiffs could not establish the requisite
malice because Cianci had sufficient evidence to establish
probable cause to institute criminal proceedings against
Trabal and Ford as evidenced by the indictment returned
by the grand jury. Trabal and Ford did not file cross-
motions for summary judgment. Rather, they argued the
existence of genuine issues of material fact. On February
29, 2000, without oral argument, the district court denied
Wells Fargo's motion. It also granted partial summary
judgment to Trabal and Ford sua sponte based upon the
court's conclusion that Wells Fargo lacked probable cause
to prosecute them. The court thereafter denied Wells
Fargo's motion for reconsideration, and the matter
proceeded to trial on the malicious prosecution counts.

At the conclusion of the evidence, the district court
instructed the jury that two of the four elements of
malicious prosecution were not disputed -- namely, that (a)
Wells Fargo had instituted criminal proceedings against
Trabal and Ford and (b) those proceedings had terminated
in Trabal and Ford's favor. The district court further
instructed the jury that the element of lack of probable
cause had already been decided by the court as a matter of
law. The court then charged that the jury could infer the
remaining element of plaintiffs' cause of action, malice,
from the lack of probable cause. The jury returned a verdict
for the plaintiffs and awarded $825,000 compensatory
damages and $1,000 punitive damages to each plaintiff.

                               6
The court denied Wells Fargo's timely motion for
judgment as a matter of law under Fed. R. Civ. P. 50(b),
and entered judgment against Wells Fargo in the amount of
$1,652,000.2 Wells Fargo then filed a motion under Rule 50
and moved in the alternative for a remittitur of damage
awards or for a new trial pursuant to Rule 59. The district
court denied Wells Fargo's motions, and this appeal
followed.

III. Discussion

Under New Jersey law, malicious prosecution has four
elements. Plaintiff must establish that the defendant (1)
instituted proceedings (2) without probable cause and (3)
with legal malice; and (4) the proceedings terminated in
favor of the plaintiff. Lightning Lube v. Witco Corp., 4 F.3d
1153, 1197 (3d Cir. 1993). Failure to prove any one of these
four elements denies the plaintiff a cause of action. Fleming
v. United Parcel Service, 604 A.2d 1029, 1030 (N.J. Super.
Ct. App. Div. 1992), cert. denied, 516 U.S. 847 (1995). The
district court correctly noted that the first and fourth
elements were not contested. The court's pretrial ruling that
defendant lacked probable cause led the court to instruct
that the third element, malice, could be inferred.
Accordingly, our inquiry boils down to determining whether
Wells Fargo had sufficient evidence to constitute probable
cause to initiate a criminal prosecution of the plaintiffs. If
it did, there could be no malice, and the court therefore
improperly denied Wells Fargo's motion for summary
judgment. As noted above, the district court granted Trabal
and Ford partial summary judgment on the issue of
probable cause sua sponte.3 The court apparently
_________________________________________________________________

2. Fed. R. Civ. P. 50(b) allows the trial court to enter judgment as a
matter of law at the conclusion of a jury trial notwithstanding a jury
verdict for the opposing party.

3. We have previously stated that a district court may not enter
summary judgment against a party without affording that party notice
and an opportunity to respond. In Chambers Development Co. v. Passaic
County Utilities Authority, 62 F.3d 582 (3rd Cir. 1995), we stated:

        Although authority has developed to allow a court to grant
       summary judgment to a non-moving party, a judgment cannot be

                               7
concluded that Rodriguez's eyewitness account lacked
corroboration and Wells Fargo's investigation was
incomplete and speculative. The court noted Wells Fargo's
failure to investigate Rodriguez's credibility, check Trabal's
and Ford's credit, and interview everyone who may have
possessed relevant information.

We are now asked to review the district court's denial of
Wells Fargo's Rule 50(b) motion following the jury's verdict
for the plaintiffs.

A. Standard of Review

Our review of the district court's denial of a Rule 50(b)
motion is plenary. "More particularly, a judgment
notwithstanding the verdict may be granted under Fed. R.
Civ. P. 50(b) `only if, as a matter of law, the record is
critically deficient of that minimum quantity of evidence
from which a jury might reasonably afford relief.' " Powell v.
J.T. Posey Co., 766 F.2d 131, 133-4 (3d Cir. 1985). In
reviewing the record, we must apply the same standard as
the trial court in determining the propriety of a judgment
n.o.v. Id. at 134.

Under New Jersey law, where the underlying facts in a
malicious prosecution action are not disputed, the
existence of probable cause is an issue of law. Lind v.
Schmid, 337 A. 2d 365, 370 (N.J. 1975) ("Where the facts
are undisputed, the existence or non-existence of probable
cause is a question of law.") See also, Campione v. Adamar
of New Jersey, 694 A. 2d 1045, 1056 (N.J. Super. 1997)
(" `where the facts are not controverted the question of
probable cause is one of law to be determined by the court,
and its submission to the jury is improper.' ") Accordingly,
we accord the district court's ruling as to probable cause
plenary review.
_________________________________________________________________

       entered without first placing the adversarial party on notice that
the
       court is considering a sua sponte summary judgment motion. The
       court must also provide the party with an opportunity to present
       relevant evidence in opposition to that motion.

62 F.3d at 583, n.5 (citations omitted). However, inasmuch as we hold
that the district court erred in not granting Wells Fargo's motion under
Fed. R. Civ. P. 50, we need not discuss this procedural error.

                               8
B. Substantive Element of Probable Cause

As noted above, lack of probable cause is a sine qua non
of malicious prosecution. Campione, 694 A.2d at 1055 (N.J.
Super. Ct. App. Div. 1997) (citing Lind v. Schmid, 337 A.2d
365, 368 (N.J. 1975)).

       "probable cause" means reasonable grounds for
       suspicion supported by circumstances sufficiently
       strong in themselves to warrant an ordinarily cautious
       [person] in the belief that the accused is guilty of the
       offen[s]e with which he is charged.

Lind, 337 A.2d 365 at 369. The plaintiff in a malicious
prosecution action has the burden of proving that the
defendant lacked probable cause when he/she initiated
charges against the plaintiff. Id. at 368. The defendant does
not have to prove the existence of probable cause.

Here, the uncontested evidence establishes probable
cause for the prosecution Wells Fargo initiated against the
plaintiffs. When Cianci filed the criminal complaint, he
possessed sufficient evidence to reasonably believe that
Trabal and Ford were parties to the theft of the money bag.
Rodriguez gave two sworn statements that he saw Trabal
throw the money bag from Emond's cart onto Ford's truck.
This is consistent with, and confirmed by, the fact that
Ford and D'Elia independently admitted that they made an
unauthorized and unlogged stop with their armored truck
at D'Elia's house later that same day.

Rodriguez's sworn statement contains what he
represented as an eyewitness account of events
surrounding the disappearance of the missing money bag.
The fact that Rodriguez was later considered to be an
unreliable witness does not negate what Cianci knew when
he initiated charges against the plaintiffs on behalf of Wells
Fargo. The Supreme Court of New Jersey has held that
"[p]robable cause to arrest can be based on the statement
from a witness or informant." Wildoner v. Borough of
Ramsey, 744 A.2d 1146, 1154 (N.J. 2000). Rodriguez's
ensuing credibility problems go to his effectiveness as a
witness, and perhaps to his veracity, but not to what Cianci
reasonably believed after taking Rodriguez's statement and
referring the matter for criminal prosecution. Given Cianci's

                               9
information, it was reasonable for him to rely on
Rodriguez's statements in filing the complaint.

Immediately after he refused to speak to the police,
Rodriguez gave a credible explanation of his refusal and
reconfirmed his consistent eyewitness account to Cianci.
The court in Wildoner explained that the reliability of
concerned citizens who report criminal activity is grounded
on the assumption that the witness is being truthful, and
is "heightened still further when the citizen provides the
police with a sworn statement, thus subjecting himself or
herself to potential civil or criminal liability." Id. at 1155
(quoting Sanducci v. City of Hoboken, 719 A.2d 160, 163
(N.J. Super. Ct. App. Div. 1998)). Rodriguez appeared to be
just such a disinterested citizen who did "not expect any
gain or concession in exchange for his information." Id.
(quoting State v. Lakomy, 315 A.2d 46, 50 (N.J. Super. Ct.
App. Div. 1974).

In State of New Jersey In the Interest of J.L.W. , the New
Jersey Superior Court held that probable cause existed for
filing a criminal complaint where one witness stated that
the defendant fired a gun into an occupied home and
another witness recanted his sworn statement regarding
the defendant firing a gun into a different occupied home at
a different occasion. 565 A.2d 1106, 1112 (N.J. Super. Ct.
App. Div. 1989). Although the criminal complaint against
J.L.W. was based solely on an oral statement and a
recanted sworn statement of an unrelated incident, the
court ruled that the similarity of the two uncorroborated
accounts "mutually bolsters" their credibility and was
sufficient to constitute probable cause. Id.

Ford and D'Elia's unauthorized stop with their armored
truck strongly supports Rodriguez's account of the theft.
Ford and D'Elia admitted making that stop and not
entering it on their official log. That could only bolster
Cianci's suspicions, and Rodriguez's statements. In
addition, both Emond and Matias admitted that Emond
was "horsing" around when they were initially interviewed
by Cianci, and that added additional corroboration to
Rodriguez's statement.

Trabal and Ford argue that Cianci was reckless in his
investigation because he failed to investigate Rodriguez's

                                10
credibility, Trabal and Ford's credit records, or interview
everyone who may have possessed relevant information.
However, the law does not require that a prosecutor explore
every potentially exculpatory lead before filing a criminal
complaint or initiating a prosecution. "The reasonable belief
which constitutes probable cause does not require[a
complainant] to evaluate the totality of circumstances both
inculpatory and exculpatory, as a trier of fact guided by a
reasonable doubt standard." Carollo v. Supermarkets
General Corp., 597 A.2d 1105, 1108-09 (N.J. Super. Ct.
App. Div. 1991). "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," Martinez v. E.J.
Korvette, 477 F.2d 1014, 1016 (3d Cir. 1973), and "[n]o
more is demanded than a well-grounded suspicion or
belief," J.L.W., 565 A.2d at 1112.

Moreover, even if such meticulousness was required,
nothing on this record establishes that any of those steps
would have exculpated Trabal and Ford. This is especially
true given Rodriguez's statement and the aforementioned
corroboration. Even assuming that the plaintiffs' credit
history was impeccable, it would not have negated that
evidence of their involvement with the missing money bag.
In fact, the evidence of their guilt was sufficient to support
a grand jury indictment. That indictment establishes
probable cause by definition, and it does not evaporate
simply because the prosecutor later decided that
subsequent events compromised Rodriguez's value as a
witness. As noted above, that was something that happened
after Cianci initiated the prosecution of plaintiffs. Thus,
"the record is critically deficient of that minimum quantity
of evidence from which a jury might reasonably afford
relief[ ]' " for Trabal and Ford.Powell, 766 F.2d at 133-4.4
_________________________________________________________________

4. Of course, we do not mean to suggest that Trabal and Ford were in
any way involved in the disappearance of the money bag. That is not the
issue before us, and we do not intend to imply anything about the guilt
of either of these plaintiffs. Inasmuch as they have not been proven
guilty, they remain innocent in the eyes of the law.

                               11
IV. Conclusion

For the foregoing reasons, we hold that the criminal
complaint that Cianci initiated against Trabal and Ford on
behalf of Wells Fargo was supported by probable cause.
Thus, the plaintiffs here cannot establish the lack of
probable cause and the malice necessary to their claim of
malicious prosecution, and the district court should
therefore have granted Wells Fargo's Rule 50(b) motion on
that claim. Accordingly, we will remand this matter to the
district court with instructions that it vacate the judgment
previously entered for the plaintiffs, and instead enter
judgment for Wells Fargo against Trabal and Ford.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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