J-A17007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MANUEL J. BURGOS,                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

MORGAN, LEWIS & BOCKIUS, LLP,
PHILABUNDANCE, CHAUNDRA LOESCH,
WILLIAM J. CLARK AND MELANIE S.
JUMONVILLE

APPEAL OF: PHILABUNDANCE,
CHAUNDRA LOESCH, WILLIAM J. CLARK                     No. 735 EDA 2015
AND MELANIE S. JUMONVILLE


                Appeal from the Judgment Entered March 2, 2015
              in the Court of Common Pleas of Philadelphia County
             Civil Division at No.: Consolidated with No. 110600726
                         December Term, 2012, No. 02978

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 05, 2017

        Appellants, Philabundance, Chaundra Loesch, William J. Clark, and

Melanie S. Jumonville, appeal from the judgment entered March 2, 2015,

following a jury verdict in favor of Appellee, Manuel J. Burgos, and against

Appellants in this malicious prosecution case.1 We affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellants purport to appeal from the order denying their motion for post-
trial relief. “However, appeals are not properly taken from orders denying
post-trial motions or exceptions.” Growall v. Maietta, 931 A.2d 667, 669
n.1 (Pa. Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008) (citations
omitted). Thus, we consider Appellants’ appeal to be from the judgment
entered March 2, 2015.
J-A17007-16



       We take the factual and procedural history of this case from the trial

court’s opinion and our independent review of the certified record.2 Appellee

was hired as a truck driver for Philabundance in 2010. When he arrived at

work each day, he received a delivery manifest that assigned him to a

particular truck for deliveries. (See N.T. Trial, 11/05/14 (morning), at 42-

43).   He was never assigned to one particular truck because he was new

there and “[t]hat’s just for the senior guys[.]” (Id. at 43).

       Yadira Rosa, a transportation clerk working at Philabundance, was

responsible for reviewing statements for Philabundance fuel purchases.

When she reviewed the statements for July 2010, she discovered that

Sunoco Gas Card 003 (Card 3) had nearly $3,000.00 of unauthorized non-

diesel purchases on it.        (See N.T. Trial, 11/03/14 (afternoon), at 22-23).

She reported the discrepancies to Leonardo Bustos, the director of logistics

at   Philabundance,      and    Appellant      Chaundra   Loesch,   the   director   of

transportation.




____________________________________________


2
  The certified record that was originally transmitted to this Court did not
contain official transcripts from the trial in this matter. At our request, the
Prothonotary was able to obtain copies of most, but not all, of the trial
transcripts. Because the court reporter is no longer employed by the trial
court, we have been unable to obtain official certified copies of the notes and
testimony of the afternoon session of trial on November 5, 2014, and the
entire day of trial on November 7, 2014, and do not anticipate their
availability in the future. Accordingly, we have relied on the transcripts
included in the reproduced record. (See R.R. at 767a-908a, 1145a-1303a).



                                           -2-
J-A17007-16



       Appellant Loesch and Mr. Bustos conducted an investigation into the

thefts; however, their investigation contained several notable lapses. They

did not review their own surveillance or alarm code data to determine who

had access to trucks. (See Trial Court Opinion, 9/14/15, at 22; N.T. Trial,

11/03/14 (afternoon), at 97, 100-01).       Additionally, they did not cross-

reference the gas purchases with the mileage on the trucks in its fleet or

contact the gas stations where the unauthorized purchases were made to

attempt to obtain surveillance footage.    (See Trial Ct. Op., at 22).    Their

investigation consisted of calling several gas stations to ask about the thefts.

They did not repeat their calls to stations that did not answer, or ask to

review any surveillance data from the stations. (See id.).

       When Appellee arrived at work on August 20, 2010, Mr. Bustos and

Appellant Loesch accused him of the theft. He denied stealing the fuel and

was fired from Philabundance. (See N.T. Trial, 11/05/14 (morning), at 30-

33).   Immediately after Appellee left the building, Mr. Bustos called the

police to report the theft. He told the police that Appellee “is an employee of

[Philabundance] and was assigned [its] credit card which was used for

unauthorized purchases.” (Complaint or Incident Report, 8/20/10).

       Detective James Powell of the Philadelphia Police Department was

assigned to the case. He interviewed Appellant Loesch, who told him that

she did an audit for the July fuel statement and noticed there were

“unauthorized charges on the card, I think that says 03, that is assigned to

[Appellee’s] truck.” (N.T. Trial, 11/03/14 (afternoon), at 96; see id. at 95).

                                     -3-
J-A17007-16



She told him about $3,000.00 worth of charges on the card, including

charges from July 19-20, 2010; however, she failed to tell him that Appellee

was not assigned to the truck on those days. (See id. at 127-28). Finally,

Appellant Loesch indicated that other drivers had access to the truck, but

never provided the names of those drivers to Detective Powell.           She only

identified Appellee as a thief. (See Trial Ct. Op., at 10).

        Detective Powell did not interview Mr. Bustos; however, he did review

the complaint or incident report prepared by another Philadelphia Police

Officer following Mr. Bustos’s telephone call reporting the theft. (See id.).

Detective Powell prepared the affidavit of probable cause and the arrest

warrant relying exclusively on the information provided by Appellant Loesch

and Mr. Bustos. (See id. at 9).

        Appellee was arrested on December 1, 2010, and charged with theft.

He was unable to post bail, and thus spent over three months in jail before

all charges against him were dismissed in March, 2011.            (See N.T. Trial,

11/05/14 (morning), at 62, 66).

        On December 20, 2012, Appellee filed an amended 3 complaint against

Appellants alleging that they were liable for malicious prosecution. On June

2, 2014, Appellants filed a motion for summary judgment, which the trial

court granted in part and denied in part on August 7, 2014. (See Order,


____________________________________________


3
    Appellee filed his initial complaint on September 19, 2011.



                                           -4-
J-A17007-16



8/07/14). Specifically, the court denied the motion for summary judgment

with respect to Appellee’s malicious prosecution claim. (See id.).

      This case proceeded to a jury trial on November 3, 2014.                     At trial,

Appellee presented evidence in support of his claim that Appellants

knowingly      omitted   facts    in   their   reports   to   the   Philadelphia     Police

Department and wrongfully accused him of making unauthorized purchases

of gasoline on Card 3.           Contrary to what Appellants told police, Appellee

testified that he had never been assigned to a particular truck or a specific

credit card.       He demonstrated that: unauthorized purchases were made

when the truck and Card 3 were assigned to other drivers; the credit cards

were kept unsecured in trucks that a large number of employees had access

to; and unauthorized purchases had occurred both on Card 3 and other

cards prior to Appellee’s date of hire.          (See Trial Ct. Op., at 10-11, 20).

Appellee    also    introduced     evidence    of   Appellants’     failure   to   disclose

information to the police about Mr. Bustos’s multiple theft related criminal

convictions for stealing from previous employers. (See id. at 11, 19).

      The trial court precluded Appellants from introducing evidence of

Appellee’s prior arrests.        Specifically, his 1996 conviction of unauthorized

use of a motor vehicle, for which he was sentenced to a period of probation

of two years and two days; his 1997 conviction of possession with intent to

deliver (PWID) a controlled substance, for which he was sentenced to a

maximum period of incarceration of eight years; and his 1998 conviction of

PWID, for which he was sentenced to seven years of probation.

                                           -5-
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      On the last day of trial, the court conferred with counsel about the jury

instructions. The court stated its intention to read the malicious prosecution

instruction that the parties had agreed on rather than the one it drafted.

The proposed instruction was “[eighty] percent agreed upon,” with the only

objection from Appellee that it did not incorporate his theory of the case.

(N.T. Trial, 11/07/14 (afternoon), at 5, R.R. at 1149a; see id. at 12-13,

R.R. at 1156a-57a). Appellants did not object to the instruction. (See id.).

      Following closing arguments, the court instructed the jury with regard

to the law concerning malicious prosecution and damages. (See id. at 130-

37, R.R. at 1274a-81a). Thereafter,

      . . . a dispute arose between counsel as to the language of the
      jury instructions and the special jury interrogatories that would
      be submitted to the jury on the verdict sheet. [Appellee’s]
      [c]ounsel submitted a proposed verdict sheet that read, “Based
      on the evidence presented in this case, do you find that the
      employees of Philabundance, without probable cause and acting
      with malice, were a determining factor in causing a criminal
      proceeding to be initiated against [Appellee]?” Counsel for
      [Appellants] took issue with the portion of the special
      interrogatory that read “were a determining factor,” and argued
      that the appropriate language should be “were the determining
      factor”. . . .

      . . . The verdict sheet drafted by [the trial c]ourt was shown to
      [c]ounsel in the morning prior to closing argument. Counsel for
      [Appellants] initially agreed to the content of the verdict sheet,
      then at the last minute, [after it had been read to the jury and]
      while it was about to be handed to the jury, raised an objection
      to the terminology. . . .

(Trial Ct. Op., at 16) (record citation omitted); (see N.T. Trial, 11/07/14

(afternoon), at 5, 144, 146-47, R.R. at 1149a, 1288a, 1290a-91a,).         The



                                     -6-
J-A17007-16



trial court found that Appellants’ objection to the wording was waived. (See

id. at 147, R.R. at 1281a).

       That afternoon, the jury rendered a verdict in favor of Appellee and

against    Appellants,     awarding     Appellee   damages   in   the   amount     of

$500,000.00—$125,000.00 for malicious prosecution and $375,000.00 in

punitive damages. (See id. at 155-56, R.R. at 1299a-1300a).

       Appellants filed a post-trial motion on November 17, 2014, which the

trial court denied on February 4, 2015. On March 2, 2015, the court entered

judgment on the verdict in favor of Appellee and against Appellants.             This

timely appeal followed.4

       Appellants raise nine issues on appeal:

       1. Whether the [trial] court erred in refusing to grant judgment
       as a matter of law to [Appellants], either through nonsuit,
       directed verdict or JNOV [(judgment non obstante verdicto)],
       where there was no evidence that [Appellants] knowingly made
       false statements to law enforcement authorities, or that pressure
       by [Appellants] was the determining factor in the decision to
       arrest [Appellee], and where the lower court applied an incorrect
       legal standard in holding that [Appellants] could be liable simply
       for “omission or failure to disclose” information even though the
       police had not requested the information[?]

       2. Whether the [trial] court erred in refusing to grant judgment
       as a matter of law to [Appellants], where the evidence showed
       without doubt that [Appellants] had probable cause to identify
       [Appellee] as the perpetrator of the thefts[?]
____________________________________________


4
  Appellants filed a notice of appeal on March 4, 2015. Pursuant to the trial
court’s order, they filed a timely statement of errors complained of on appeal
on April 23, 2015. See Pa.R.A.P. 1925(b). The trial court entered its
opinion on September 14, 2015. See Pa.R.A.P. 1925(a).



                                           -7-
J-A17007-16


     3. Whether the trial court erred in refusing to grant judgment as
     a matter of law to [Appellants], where there was no evidence
     that [Appellants] acted with malice toward [Appellee] in
     reporting the crimes to law enforcement[?]

     4. Whether [Appellants were] entitled to a new trial where Jury
     Interrogatory No. 1 misstated the law of Pennsylvania regarding
     malicious prosecution because:

       (a) it stated that [Appellants] could be held liable if [their]
       conduct was “a” determining factor in the law enforcement
       officer’s decision to commence prosecution, while
       Pennsylvania law requires that [Appellants’] conduct must
       have been “the” determining factor in the decision to
       prosecute; and

       (b) it omitted a critical part of the standard for holding a
       private citizen liable for reporting a crime to law
       enforcement authorities, by failing to state that
       [Appellants] could only be found liable if the jury
       concluded that [Appellants] knowingly made false
       statements[?]

     5. Whether the trial court erred by admitting extensive,
     irrelevant and prejudicial evidence relating to [Appellants’]
     alleged failure to disclose information to the police and
     [Appellants’] alleged negligent investigation, when Pennsylvania
     law is clear that the reasonableness of [Appellants’] belief in
     [Appellee’s] guilt, and the sufficiency of [Appellants’]
     investigation, are irrelevant in a malicious prosecution case;
     such evidence included:

       (a) evidence of other crimes committed or alleged to have
       been committed by a non-party, Leonardo Bustos, when
       such information was not requested by law enforcement
       nor known to or considered by [Appellants] when [they]
       reported the crime in question to the police;

       (b) evidence lacking foundation regarding allegedly
       improper purchases made on credit cards other than the
       specific card involved in the thefts for which [Appellee]
       was arrested, when such information was not requested by
       law enforcement nor known to or considered by
       [Appellants] when [they] reported the crime in question to
       the police, and;


                                    -8-
J-A17007-16


          (c) evidence regarding [Appellants’] alleged negligent
          investigation[?]

       6. Whether the trial court’s jury instruction regarding malicious
       prosecution misstated the law of Pennsylvania because it failed
       to state that [Appellants] could only be held liable for making
       false statements to the police and not for failing to disclose
       information that had not been requested by the police, thereby
       prejudicing [Appellants] because [Appellee’s] case was based
       solely on [Appellants’] alleged failure to disclose information[?]

       7. Whether the trial court erred by precluding evidence of
       [Appellee’s] numerous prior arrests, when those arrests formed
       part of law enforcement’s determination of probable cause,
       where [Appellee] opened the door to introduction of this
       evidence, and where that evidence was relevant to the issue of
       damages[?]

       8. Whether the jury’s verdict, both as to liability and damages,
       was against the law and the weight of the evidence[?]

       9. Whether the jury’s award of damages, both compensatory and
       punitive, was so excessive as to shock the conscience[?]

(Appellants’ Brief, at 6-9).5

       Appellants’ first three issues concern the trial court’s denial of their

motion for judgment as a matter of law.

       There are two bases on which the court can grant judgment
       n.o.v.:

          [O]ne, the movant is entitled to judgment as a matter of
          law and/or two, the evidence is such that no two
          reasonable minds could disagree that the outcome should
          have been rendered in favor of the movant. With the first,
____________________________________________


5
  Appellants’ questions, which include twelve issues and sub-issues, call to
mind a prior case in this Court wherein we noted that “the effectiveness of
appellate advocacy may suffer when counsel raises numerous issues, to the
point where a presumption arises that there is no merit to any of them.”
J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 410 (Pa.
Super. 2012) (citations omitted).



                                           -9-
J-A17007-16


        the court reviews the record and concludes that even with
        all factual inferences decided adverse to the movant the
        law nonetheless requires a verdict in his favor, whereas
        with the second, the court reviews the evidentiary record
        and concludes that the evidence was such that a verdict
        for the movant was beyond peradventure.

     In an appeal from the trial court’s decision to deny judgment
     n.o.v.,

        we must consider the evidence, together with all favorable
        inferences drawn therefrom, in a light most favorable to
        the verdict winner.        Our standard of review when
        considering motions for a directed verdict and judgment
        notwithstanding the verdict are identical. We will reverse
        a trial court’s grant or denial of a judgment
        notwithstanding the verdict only when we find an abuse of
        discretion or an error of law that controlled the outcome of
        the case. Further, the standard of review for an appellate
        court is the same as that for a trial court.

Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 258–59 (Pa. Super.

2015) (citations omitted).

     In their first issue, Appellants claim that the court erred in denying the

motion for post-trial relief because there was no evidence at trial that they

knowingly made false statements.        (See Appellants’ Brief, at 26-38).

Specifically, they contend that under Pennsylvania law, a person who reports

a crime can only be held liable for malicious prosecution for providing false

information to law enforcement, not for knowingly omitting information.

(See id. at 26-32).    They argue that there was no evidence that they

provided false information to the police.   (See id. at 33-34).     Therefore,

they claim that the court applied an incorrect legal standard when it held

that they could be liable for an omission. (See id. at 35-38). We disagree.



                                   - 10 -
J-A17007-16



       “A cause of action for malicious prosecution has three elements. The

defendant must have instituted proceedings against the plaintiff 1) without

probable cause, 2) with malice, and 3) the proceedings must have

terminated in favor of the plaintiff.”         Kelley v. Gen. Teamsters,

Chauffeurs & Helpers, Local Union 249, 544 A.2d 940, 941 (Pa. 1988)

(citation omitted).

       A private individual may liable 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.

Bradley v. Gen. Acc. Ins. Co., 778 A.2d 707, 710 (Pa. Super. 2001)

(citation omitted).

       Under Pennsylvania law, a private citizen who reports a suspected

crime to law enforcement may be found to have instituted criminal

proceedings if he or she (1) knowingly provides false statements to an

official; or (2) directs or pressures an official to initiate charges. See id. at

711.

       Here, evidence at trial revealed that Appellant Loesch told the

investigating officer that the unauthorized charges were on the card

assigned to “[Appellee’s] truck.”   (N.T. Trial, 11/03/14 (afternoon), at 96;

see id.).    Additionally, Mr. Bustos told the police that Appellee “is [an]


                                     - 11 -
J-A17007-16



employee of [Philabundance] and was assigned [its] credit card which was

used for unauthorized purchases.” (Complaint or Incident Report, 8/20/10).

Detective Powell did not conduct a separate investigation and relied

exclusively on information provided by Appellant Loesch and Mr. Bustos in

his decision to commence the prosecution. (See Trial Ct. Op., at 9).

      Therefore, when considering the evidence in the light most favorable

to Appellee as verdict winner, as required by our standard of review, we

conclude that the trial court’s finding, that Appellee produced sufficient

evidence that Appellants affirmatively presented false information, is

supported by the record. See Drake Mfg. Co., Inc., supra at 258–59. We

agree that the evidence at trial showed that Appellant Loesch and Mr. Bustos

provided false information, which was the basis for Detective Powell’s

decision to prosecute Appellee for the theft. Therefore, we conclude that the

court properly found that Appellants initiated criminal proceedings and could

be liable for malicious prosecution.

      Moreover, to the extent that Appellants argue that the court applied an

incorrect standard and held them liable for omitting facts rather than

providing false statements, their claim would still not merit relief.      Our

standard of review of questions of law is de novo. See Bowling v. Office

of Open Records, 75 A.3d 453, 476 (Pa. 2013).

      Appellants rely on Bradley, supra and Griffiths v. CIGNA Corp.,

988 F.2d 457 (3d Cir. 1993), overruled by Miller v. CIGNA Corp., 47 F.3d

586 (3d Cir. 1995), in support of their proposition. (See Appellants’ Brief, at

                                       - 12 -
J-A17007-16



26-32).    In Bradley, this Court held that where an insurance company

provided information about a fraud that they believed to be true, and

appellants did not assert that the insurance company provided false

information, the insurance company was not liable for malicious prosecution.

See Bradley, supra at 712. In Griffiths, the Third Circuit Court of Appeals

applied Pennsylvania law and determined that the trial court erred by

charging   the   jury   on   the   assumption   that   appellants   initiated   the

proceedings because appellants did not demand appellee’s prosecution and

did not even accuse appellee of the thefts. See Griffiths, supra at 464-65.

      Preliminarily, we note that “this Court is not bound by the decisions of

federal courts, other than the United States Supreme Court . . . .

[H]owever, we may use them for guidance to the degree we find them

useful and not incompatible with Pennsylvania law.” Eckman v. Erie Ins.

Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011). Here, however, Appellants’

relied on an overruled case, Griffiths, upon which we do not rely.

      Appellants have not cited to, nor has our research revealed any case

of this Court, or the Pennsylvania Supreme Court, holding that knowingly

omitting a material fact cannot provide the basis for liability of a private

citizen for instituting a criminal proceeding. However, several federal district

court cases have interpreted Pennsylvania state law in this area.         See id.

Thus, we will look to the Restatement (Second) of Torts, section 653, and

consider the federal court’s interpretation of Pennsylvania law for guidance

in determining whether a knowing omission of material fact is sufficient to

                                      - 13 -
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constitute the initiation of criminal proceedings. See Gallucci v. Phillips &

Jacobs, 614 A.2d 284, 290 (Pa. Super. 1992), appeal denied, 625 A.2d

1193 (Pa. 1993) (considering Restatement to determine what is sufficient to

constitute initiation of criminal proceedings when review of case law

determined there are no cases that directly answer question).

     “Malicious prosecution in Pennsylvania has developed to a large extent

based upon the Restatement of Torts (Second) Sections 653 and 654.” Id.

Comment g, of section 653, concerns liability for private persons who

institute criminal proceedings by giving information to a public official. See

Restatement (Second) of Torts § 653, Comment g. It explains:

     A private person who gives to a public official information of
     another’s 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
     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 under the rule stated in
     this Section even though the information proves to be false and
     his belief was one that a reasonable man would not entertain.
     The exercise of the officer’s discretion makes the initiation of the
     prosecution his 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
     false, an intelligent exercise of the officer’s discretion becomes
     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


                                    - 14 -
J-A17007-16


       public official, it must therefore appear that his desire to have
       the proceedings initiated, expressed by direction, request or
       pressure of any kind, was the determining factor in the official’s
       decision to commence the prosecution, or that the information
       furnished by him upon which the official acted was known to be
       false.

Id.

       In Bristow v. Clevenger, 80 F.Supp.2d 421 (M.D. Pa. 2000), the

federal district court held that “omitted material information . . . would

supply a basis for malicious prosecution.” Bristow, supra at 433 (citation

omitted).   Likewise, in Gilbert v. Feld, 842 F.Supp. 803 (E.D. Pa. 1993),

the court applied Pennsylvania law and reasoned that, “inaccuracies and

omissions may be relevant to . . . the question of who initiated the criminal

proceedings.” Gilbert, supra at 819 n.33.

       Upon review, we conclude that under Pennsylvania law, knowingly

omitting material facts from information provided to a prosecuting officer

may constitute instituting criminal proceedings, which would form the basis

of liability for malicious prosecution. See Bowling, supra at 476; Bristow,

supra at 433; Gilbert, supra at 819 n.33; Restatement (Second) of Torts §

653.

       Thus, even if Appellee had not introduced evidence of Appellants’ false

statements to police, the evidence that he presented regarding Appellants

knowing omission of material facts would have been sufficient to establish

malicious prosecution.    (See Trial Ct. Op., at 10-11).      Such omissions

consisted of the fact that Appellee was assigned to drive trucks on a rotating

basis, all drivers for Philabundance had access to trucks and their respective

                                     - 15 -
J-A17007-16



fuel cards, and unauthorized purchases were made when the truck and fuel

card in question were assigned to other drivers. (See id.)

      Therefore, we conclude that the evidence sufficiently established the

first step of malicious prosecution, that Appellants instituted criminal

proceedings against Appellee. See Kelley, supra at 941; Bradley, supra

at 710. Appellants’ first claim does not merit relief.

      In their second issue, Appellants claim that the trial court erred in

denying their motion for judgment as a matter of law because the evidence

showed that they had probable cause to identify Appellee to the police.

(See Appellants’ Brief, at 38-41). Specifically, they argue they had probable

cause because the evidence pointed to a Philabundance employee as the

perpetrator of the theft using Card 3, and Appellee had been driving the

truck to which Card 3 was assigned on four of the nine days that

unauthorized purchases were made. (See id. at 38-39). We disagree.

            In an action for malicious prosecution, the plaintiff must
      prove that the defendant instituted proceedings without probable
      cause, with malice, and that the proceedings were terminated in
      favor of the plaintiff.    Absence of probable cause is an
      indispens[a]ble element of the action, and it is not conclusively
      established by an adjudication of innocence in the prior
      proceeding.

             . . . [T]he presence or absence of probable cause is a
      question exclusively for the court where there are no material
      conflicts in the testimony. However, where, as here, material
      facts are in controversy, the question is a mixed one [of law and
      fact] and it becomes the duty of the jury, under proper
      instructions from the court as to what will justify a criminal
      prosecution, to say whether the plaintiff in the civil action has
      shown want of probable cause upon the part of the defendant.


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            Probable cause is defined as . . . a reasonable ground of
      suspicion supported by circumstances sufficient to warrant an
      ordinary prudent man in the same situation in believing that the
      party is guilty of the offense.     The reasonable ground of
      suspicion, however, must not be based upon an inadequate and
      unreasonable investigation of the circumstances concerning the
      alleged criminal conduct.

Wainauskis v. Howard Johnson Co., 488 A.2d 1117, 1122-23 (Pa. Super.

1985).

      Here, Appellant Loesch testified that, during the internal investigation

into the theft, she failed to look at any other fuel card purchases to see if

improper purchases were made, and failed to look at surveillance cameras

from the truck lot to see if anybody else had accessed Card 3. (See N.T.

Trial, 11/03/14 (afternoon), at 97, 100-01).    Appellants admitted that the

cards were kept unsecured in the vehicles and all Philabundance drivers had

access to them. Therefore, viewing the evidence in the light most favorable

to Appellee as verdict winner, the evidence supports the jury’s conclusion

that Appellants did not have probable cause to accuse him of the theft where

their alleged reasonable ground for suspicion was based upon an inadequate

investigation. See Drake Mfg. Co., Inc., supra at 258–59; Wainauskis,

supra at 1122-23.     Thus, the evidence sufficiently establishes the second

element of malicious prosecution, lack of probable cause.        See Kelley,

supra at 941; Bradley, supra at 710.         Accordingly, Appellants’ second

issue does not merit relief.

      In their third issue, Appellants claim that the trial court erred in

denying their motion for judgment n.o.v. because the evidence did not show


                                    - 17 -
J-A17007-16



that they acted with malice toward Appellee. (See Appellants’ Brief, at 42-

43). We disagree.

             In order for plaintiff to recover he is required to prove not
      only lack of probable cause, but the existence of malice. The
      question of the existence of malice is always a question of fact
      exclusively for the jury. Malice may be inferred from want of
      probable cause. Legal malice is not limited to motives of hatred
      or ill will, but may consist of defendant’s reckless and oppressive
      disregard of plaintiff’s rights.

Hugee v. Pa. R.R. Co., 101 A.2d 740, 743 (Pa. 1954) (citations and

emphasis omitted). Thus, where defendants did not have probable cause to

initiate criminal proceedings, we may infer that they acted with malice. See

id.

      Here, Appellants did not overcome this inference. As discussed above,

the evidence was sufficient to support the jury’s finding that Appellants

acted without probable cause when they initiated proceedings against

Appellee.   Additionally, the evidence supports that Appellants affirmatively

presented false information when Mr. Bustos told the officer that the charges

came from the card assigned to Appellee, and Appellant Loesch told

Detective Powell that the card was assigned to Appellee’s truck. (See N.T.

Trial, 11/03/14 (afternoon), at 95-96; Complaint or Incident Report,

8/20/10).

      Accordingly,   we   conclude   that     the   trial   court   properly   denied

Appellants’ motion for judgment n.o.v. where they failed to show that

Appellee did not establish malice. See Hugee, supra at 743; Drake Mfg.

Co., Inc., supra at 258–59.     Thus, the evidence sufficiently establishes the

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third element of malicious prosecution.           See Kelley, supra at 941;

Bradley, supra at 710. Appellants’ third issue does not merit relief.

      In their fourth issue, Appellants claim that the trial court erred in

denying their request for a new trial because of misstatements of law in Jury

Interrogatory No. 1.   (See Appellants’ Brief, at 53-56).    Specifically they

argue that the interrogatory misstated the law because it contained the

phrase “a determining factor” rather than “the determining factor” in its

question as to whether Appellants’ conduct brought about Appellee’s

prosecution.   (See id. at 53-55).         Furthermore, they argue that the

interrogatory misstated the law because it did not ask the jury whether

Appellants knowingly provided false statements to law enforcement officials.

(See id. at 55-56). We disagree.

              The primary question before us is whether the verdict slip
      was defective so as to require a new trial. The award of a new
      trial is proper only where a trial court has committed an error of
      law or abuse of discretion which may have affected the verdict.

                                 *     *      *

            It is well established that in order for a party to be
      awarded a new trial, the moving party must demonstrate that it
      was prejudiced by the alleged error of the trial court. . . .
      [A]llegations of error are harmless where the jury is not required
      to deliberate over the issue out of which the alleged error arises
      in order to reach its verdict.

Boyle v. Indep. Lift Truck, Inc., 6 A.3d 492, 494, 496 (Pa. 2010)

(citations omitted).

      Here, the trial court explained that it “drafted the verdict sheet and

inadvertently inserted the words ‘a determining factor’ in the proposed jury


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interrogatory. It had intended to mirror the language of the first element of

the test for malicious prosecution in the special jury interrogatory, but

inadvertently inserted the letter ‘a’ for the word ‘the’.” (Trial Ct. Op., at 16)

(record citation omitted).

      However, as the trial court noted, any such error was harmless where:

      the disputed language was largely irrelevant to the [j]ury’s
      ability to resolve this matter. [Appellee’s] case focused primarily
      on the theory that [Appellants] lied by omission when reporting
      the theft of gas to law enforcement officials. The first element
      for the test to establish malicious prosecution, reads that the
      [d]efendant must have, “knowingly provided false statements to
      a law enforcement official or the defendant’s desire to have
      proceedings initiated was the determining factor in the law
      enforcement official’s decision to commence prosecution.” A
      plain reading of this rule illustrates that the test may[ ]be
      satisfied by an either or analysis, and this matter was based
      primarily on the theory that [Appellants] knowingly provided
      false information to law enforcement officials—that [Appellants]
      omitted key facts and lied by omission in reporting the theft of
      donated gasoline to law enforcement officials. Therefore, the
      issue of whether [Appellants] w[ere] “a” or “the” determining
      factor in the criminal prosecution of [Appellee] was not seriously
      at issue in the case sub justice.

(Id. at 17).

      We agree with the trial court’s conclusion that any error stemming

from using the phrase “a determining factor” rather than “the determining

factor” was harmless. See Boyle, supra at 496. We further conclude that,

based on Appellee’s presented theory of the case, the jury did not deliberate

on the issue of whether Appellants’ desire to have proceedings initiated was

“the” or “a” determining factor; thus any allegation of error is harmless.

See Boyle, supra at 494, 496.        Finally, as discussed above, there is no


                                     - 20 -
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merit to Appellants’ contention that the trial court erred by including

language in the interrogatory permitting a finding of liability for knowingly

omitting material facts. Appellants’ fourth issue does not merit relief.

       In their three-part fifth issue, Appellants claim that the trial court

erred by admitting evidence, which they claim was irrelevant. 6             (See

Appellants’ Brief, at 43-44). Specifically, they claim that the court erred in

admitting evidence of Mr. Bustos’s criminal background, (see id. at 44-48),

unauthorized purchases on other credit cards, (see id. at 48-51), and

Appellants’ negligent investigation, (see id. at 51-53).    We disagree.

       “[W]hen reviewing the denial of a motion for new trial, we must
       determine if the trial court committed an abuse of discretion or
       error of law that controlled the outcome of the case. . . .
       Questions concerning the admission and exclusion of evidence
       are within the sound discretion of the trial court and will not be
       reversed on appeal absent an abuse of discretion.”

Brady v. Urbas, 80 A.3d 480, 483 (Pa. Super. 2013), affirmed, 111 A.3d

1155 (Pa. 2015) (citations omitted).

       “Evidence is relevant if it logically tends to establish a material fact in

the case, tends to make a fact at issue more or less probable or supports a
____________________________________________


6
 Although Appellants’ brief asserts that this evidence lacked foundation, was
unduly prejudicial, and was hearsay, they failed to develop any legal
argument in support of those contentions. (See Appellants’ Brief, at 43-53).
“When deficiencies in a brief hinder our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or find certain issues to
be waived.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 584 (Pa. Super.
2014) (“This Court will not act as counsel and will not develop arguments on
behalf of an appellant.”) (citations omitted). Therefore, we will only discuss
Appellants’ relevancy claims.



                                          - 21 -
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reasonable inference or presumption regarding a material fact.”       Smith v.

Morrison, 47 A.3d 131, 137 (Pa. Super. 2012), appeal denied, 57 A.3d 71

(Pa. 2012) (citation omitted).

      Here, the trial court permitted Appellee to introduce evidence of Mr.

Bustos’s prior convictions for stealing from previous employers.       It found

such evidence relevant to Appellee’s claim that Appellants knowingly omitted

material facts when they accused him of theft. (See Trial Ct. Op., at 19).

      Upon review, we agree with the trial court’s finding that such evidence

is directly relevant to whether Appellants’ probable cause was based on “an

inadequate and unreasonable investigation[.]”         Wainauskis, supra at

1122-23.        Therefore, we conclude that the trial court did not abuse its

discretion in admitting evidence of Mr. Bustos’s prior convictions for stealing.

See Brady, supra at 483. The first part of Appellants’ fifth issue does not

merit relief.

        With regard to the second part of Appellants’ fifth issue, evidence of

unauthorized purchases on other credit cards, the trial court found that:

      All of the unauthorized purchases of fuel on the Sunoco account
      that occurred during the time period in question were relevant
      and probative to issues of material fact such as: the
      determination of whether [Appellants] acted with probable cause
      when identifying [Appellee] as a [thief]; whether [Appellants’]
      agents lied by omission; and whether they acted with malice
      when identifying [Appellee] to law enforcement officials.

(Trial Ct. Op., at 21).

      Upon review, we agree with the trial court’s finding, and conclude that

it did not abuse its discretion in permitting evidence of unauthorized

                                      - 22 -
J-A17007-16



purchases of fuel that occurred on other cards. See Brady, supra at 483.

The second part of Appellants’ fifth issue does not merit relief.

         Finally, in regard to the third part of Appellants’ fifth issue, evidence of

their negligent investigation, the trial court found that:

         [e]vidence surrounding [Appellants’] investigation, or lack
         thereof, and its failure to convey key facts to law enforcement
         officials was relevant and probative of the question of whether
         [Appellants] had probable cause to suspect [Appellee] made
         unauthorized purchases, whether [Appellants’] agents omitted
         key facts from their statements to law enforcement officials, and
         whether [Appellants] acted with malice.

(Trial Ct. Op., at 21-22). Furthermore, it found that the investigatory lapses

“constituted circumstantial evidence that the [j]ury was permitted to assess

when considering whether [Appellants], . . . intentionally lied by way of

omission when reporting the unauthorized purchases on the Sunoco

account.” (Id. at 22).

         We agree with the trial court’s finding and conclude that it did not

abuse      its   discretion    in   permitting   evidence   surrounding   Appellants’

investigatory lapses where that evidence was relevant to the question of

probable cause, malice, and whether Appellants knowingly omitted material

facts.     See Hugee, supra at 743; Brady, supra at 483; Wainauskis,

supra at 1122-23.             Appellants’ argument with respect to admission of

evidence of their investigation fails, and their fifth issue does not merit relief.

         In their sixth issue, Appellants claim that they are entitled to a new

trial because the court’s jury instruction concerning malicious prosecution

misstated the law where it did not state that Appellants could only be liable

                                          - 23 -
J-A17007-16



for making false statements. (See Appellants’ Brief, at 56-58). Appellants’

argument, which is premised on their claim that Pennsylvania law does not

impose liability for malicious prosecution for omitting material facts, does

not merit relief.

      “It is well settled that [a]n inadequate jury instruction may amount to

reversible error if it has a tendency to mislead the jury or if it omits material,

which is basic and fundamental.”       Machado v. Kunkel, 804 A.2d 1238,

1244 (Pa. Super. 2002), appeal denied, 819 A.2d 547 (Pa. 2003) (citations

and quotation marks omitted).

      As discussed above, knowingly omitting material facts when reporting

a suspected theft to law enforcement may constitute initiating criminal

proceedings and form the basis for liability for malicious prosecution. Thus,

the trial court’s jury instruction to that effect is not inadequate, nor does it

have a tendency to mislead the jury.          See Machado, supra at 1244.

Therefore, Appellants’ sixth issue is meritless.

      In their seventh issue, Appellants claim that the trial court erred by

precluding evidence of Appellee’s prior arrests.      (See Appellants’ Brief, at

59-62). Specifically, they claim that the arrests should have been admitted

because they formed the basis of law enforcement’s decision to arrest

Appellee as a suspect in the theft, and the evidence was relevant to the

issue of damages. (See id.). We disagree.

       “The admission of evidence of prior bad acts is solely within the

discretion of the trial court, and the court’s decision will not be disturbed

                                     - 24 -
J-A17007-16



absent an abuse of discretion.” Commonwealth v. Patterson, 91 A.3d 55,

68 (Pa. 2014), cert. denied, 135 S.Ct. 1400 (2015) (citation omitted).

      Preliminarily, we note that Appellants’ brief does not specifically

differentiate which arrests they claim should have been admitted, or why

each of those arrests was admissible.         (See Appellants’ Brief, at 59-62).

They do not argue that Appellee’s convictions should have been admitted as

impeachment evidence pursuant to Pennsylvania Rule of Evidence 609.

Rather, they argue that his arrest record generally should have been

admissible to show that they had probable cause to suspect that Appellee

had stolen gasoline, that Detective Powell’s investigation, and decision to

arrest Appellee, was guided by his arrest record, and that evidence of his

arrests were relevant to damages. (See Appellants’ Brief, at 59-61). We

disagree.

      In its opinion, the trial court explained that, in precluding evidence of

Appellee’s arrest record, it “attempted to balance the competing interests of

the parties . . . in conjunction with well-established law to reach an equitable

resolution on how to handle [Appellee’s] arrest record.”       (Trial Ct. Op., at

30). It held that because the arrests occurred more than ten years ago and

did not involve crimen falsi convictions, they were not admissible for

impeaching Appellee’s credibility.   (See id.).    Additionally, it held that the

arrests were not admissible to show that Appellants had probable cause to

suspect that Appellee had stolen gasoline because “[n]o similarity could be

drawn between the allegations in the prior arrests and the theft of gasoline

                                     - 25 -
J-A17007-16



as alleged in the underlying criminal matter.” (Id.). Furthermore, the court

recognized that the arrests could be relevant to damages in the matter, if

Appellee testified that he was humiliated by being arrested; however,

Appellee did not seek damages for injury to reputation.         (See id. at 31).

Finally, the court did permit admission of evidence that Appellee was on

parole for a felony drug conviction at the time of his arrest. (See id. at 31-

32).

          Upon review, we conclude that the trial court did not abuse its

discretion in precluding Appellants from introducing evidence of Appellee’s

prior arrests where Appellants sought to introduce evidence of arrests rather

than just convictions, and where the relevance of such arrests was minimal.

See Patterson, supra at 68.           Appellants’ seventh issue does not merit

relief.

          In their eighth issue, Appellants claim that the jury’s verdict was

against the law and the weight of the evidence. (See Appellants’ Brief, at 9,

58). Appellants’ issue lacks merit.

                It is well settled that the grant of a new trial is a matter
          within the discretion of the trial court. A new trial will be
          granted on the grounds that the verdict is against the weight of
          the evidence where the verdict is so contrary to the evidence it
          shocks one’s sense of justice. An appellant is not entitled to a
          new trial where the evidence is conflicting and the finder of fact
          could have decided either way. Our standard of review of the
          denial of a motion for a new trial is not different from the grant
          of a new trial. Our standard of review of an order denying a
          motion for a new trial is to decide whether the trial court
          committed an error of law that controlled the outcome of the
          case or committed an abuse of discretion.


                                        - 26 -
J-A17007-16


                An abuse of discretion is not merely an error of
          judgment, but if in reaching a conclusion the law is
          overridden or misapplied, or the judgment exercised is
          manifestly unreasonable, or [the judgment is] the result of
          partiality, prejudice, bias or ill-will, as shown by the
          evidence of record, discretion is abused. We emphasize
          that an abuse of discretion may not be found merely
          because the appellate court might have reached a different
          conclusion, but requires a showing of manifest
          unreasonableness, or partiality, prejudice, bias, or ill-will,
          or such lack of support as to be clearly erroneous.

       . . . This Court has recognized that a weight of the evidence
       challenge concedes that there was evidence sufficient to sustain
       the verdict, but the verdict was against the weight of the
       evidence. We may not substitute our judgment for that of the
       trial court, we must only decide whether the trial court abused
       its discretion. Credibility issues are determined by the jury, and
       this Court rarely overturns the factual findings of a jury that are
       based on determinations of credibility, because we are confined
       to review a cold record.

Fanning v. Davne, 795 A.2d 388, 393–94 (Pa. Super. 2002), appeal

denied, 825 A.2d 1261 (Pa. 2003) (citations and quotation marks omitted).

       Here, Appellants have not argued or demonstrated that the trial court

abused its discretion when it denied their motion for a new trial on the basis

of the weight of the evidence.7                They merely claim, “the elements of

malicious prosecution were not established by a preponderance of the

evidence.”     (Appellants’ Brief, at 58).          Appellants failed to advance an
____________________________________________


7
  Appellants have invoked the standard for a sufficiency of the evidence
claim rather than a weight of the evidence claim where they have argued
that “[Appellee] did not present any evidence to show that several of the
elements of malicious prosecution were met[,]” and “even viewing all the
evidence and reasonable inferences therefrom in the light most favorable to
[Appellee], the elements of malicious prosecution were not established by a
preponderance of the evidence.” (Appellants’ Brief, at 58).



                                          - 27 -
J-A17007-16



argument that invokes the appropriate standard of review. See Fanning,

supra at 393-94.

      Moreover, our independent review of the record reveals that the trial

court properly viewed the issue as one of credibility, which the jury was free

to resolve in Appellee’s favor.   (See Trial Ct. Op., at 34-36); Fanning,

supra at 393-94. The court determined that “[i]t cannot be said that the

verdict was so contrary to the evidence that it shocks th[e trial c]ourt’s

sense of justice.”   (Trial Ct. Op., at 36). Therefore, we conclude that the

trial court did not abuse its discretion in denying Appellants’ motion for a

new trial based on the weight of the evidence. See Fanning, supra at 393-

94. Appellants’ eighth claim does not merit relief.

      Finally, because Appellants did not provide any argument, legal or

otherwise, in support of their ninth issue, that the jury’s award of damages

was so excessive as to shock the conscience, they have waived that issue.

(See Appellants’ Brief, at 9); Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.

Super. 2006) (holding failure to offer analysis or case citation in support of

relief results in waiver).

      Judgment affirmed.




                                    - 28 -
J-A17007-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




                          - 29 -
