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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2012) (unpublished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



                                      -2-
J-A07033-14


          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,




                                       -3-
J-A07033-14


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.


                                     -4-
J-A07033-14


       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.

____________________________________________


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.




                                           -5-
J-A07033-14


      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-


                                       -6-
J-A07033-14


                                                                     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


                                      -7-
J-A07033-14


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


                                         -8-
J-A07033-14


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

                                     -9-
J-A07033-14


     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



                                   - 10 -
J-A07033-14


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.




                                          - 11 -
J-A07033-14


            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

                                   - 12 -
