                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 16-2117
                                     ______________

                                    GRACE LAPHAN,
                                            Appellant



                                             v.

              WILLIAM HAINES SGT.; MICHAEL LANGDALE SGT.;
             DAVID MONTELLA CHIEF; GEORGE MOORE, OFFICER;
                JOHN BURGY; UPPER PROVIDENCE TOWNSHIP
                             ______________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civ. No. 2-14-cv-04063)
                        Honorable Anita B. Brody, District Judge
                                    ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                   February 7, 2017

              BEFORE: MCKEE, COWEN, and FUENTES, Circuit Judges

                               (Opinion Filed: June 8, 2017)
                                    ______________

                                       OPINION*
                                     ______________

COWEN, Circuit Judge.

____________________

*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
      Plaintiff Grace Laphan appeals from the order of the United States District Court

for the Eastern District of Pennsylvania granting the motion for summary judgment filed

by Defendants Sergeant William Haines, Sergeant Michael Langdale, Chief David

Montella, and Upper Providence Township (“Township Defendants”). We will affirm. 1

                                             I.

       Laphan brought suit against Upper Providence Township and a number of police

officers (as well as John Burgy) for alleged violations of her civil rights under federal and

Pennsylvania law. Laphan’s claims arose out of her arrest, pursuant to an arrest warrant

issued by Pennsylvania Magisterial District Judge Lippincott, and prosecution on state

charges of theft by unlawful taking or disposition, receiving stolen property, and

unauthorized use of an automobile. See Pa. Cons. Stat. Ann. §§ 3921(a), 3925(a),

3928(a). Specifically, Laphan was arrested and prosecuted for removing—and

retaining—a 1966 Ford Mustang owned by her estranged boyfriend, Burgy, as well as a

       1
         Judge Fuentes reads Laphan’s deposition testimony, RR124-25, as presenting an
issue of fact as to whether Laphan in fact refused to return the vehicle to Defendant
Burgy as a form of collateral, or if she instead was merely preparing the house for sale by
removing the vehicles and did not intend to withhold the vehicles from Defendant Burgy
as a form of collateral in violation of the June Order. Compare RR124 (“Q. Just in terms
of that one sentence there, it says, ‘Sergeant Haines informed Grace Laphan that she had
no right to hold Burgy’s vehicle as collateral and she was again warned of those legal
ramifications.’ Did that discussion occur? A. I don’t recall in those words. Q. Well,
what’s your recollection of the words he used? A. That he didn’t know what was going
on. He wasn’t sure. Q. Did he suggest to you at the time that you could be arrested? A.
To me,…he told me to safeguard the vehicles, and you know, that’s what I was doing. I
was following the court order and I was safeguarding the vehicle . . . .”) with RR124-25
(“Q. It says ‘Grace Laphan again refused to return the vehicle upon request.’ Do you
remember telling him at that point that you were not going to return the vehicles? A.
Yes.”). Given this material issue of fact before the District Court on summary judgment,
Judge Fuentes would reverse the District Court’s dismissal of this action.
                                             2
Ford F-350 truck (owned by a friend’s company and used for parts) from a house jointly

owned by Laphan and Burgy.

       Township Defendants moved for summary judgment, and the District Court

granted their motion. 2 See Laphan v. Haines, CIVIL ACTION No. 14-4063, 2016 WL

627246 (E.D. Pa. Feb. 17, 2016).

                                             II.

       To prevail on claims for false arrest and malicious prosecution, a plaintiff must

show an absence of probable cause. 3 See, e.g., McKenna v. City of Philadelphia, 582

F.3d 447, 461 (3d Cir. 2009); Dowling v. City of Philadelphia, 855 F.2d 136, 142 (3d Cir.

1988); Kelley v. General Teamsters, Chauffeurs & Helpers, Local Union 249, 544 A.2d

940, 941 (Pa. 1988). In a suit for damages, the existence of probable cause is generally a

question for the jury to resolve, but a district court may conclude that probable cause

exists as a matter of law if the evidence, viewed in the light most favorable to the

plaintiff, would not reasonably support a contrary finding. See, e.g., Merkle v. Upper

Dublin Sch. Dist., 211 F.3d 782, 788-89 (3d Cir. 2000). The District Court observed that

“[t]he crux of the parties’ dispute over the existence of probable cause, or the lack


       2
         Laphan named another police officer (George Moore) as a defendant, but she
agreed to dismiss her claims against this individual. After the District Court disposed of
the Township Defendants’ summary judgment motion, a stipulation of dismissal was
entered as to Burgy.
       3
         The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,
1343, and 1367. This Court has appellate jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review with respect to a grant of summary judgment. See, e.g., Kelly v.
Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
                                              3
thereof, is the [June 20, 2012 order entered by the Pennsylvania Court of Common Pleas

of Delaware County in connection with litigation between Laphan and Burgy regarding

the ownership and disposition of the house].” Laphan, 2016 WL 627246, at *4. In this

case, Laphan claims that the District Court erred by resolving a genuine issue of material

fact arising out of her deposition testimony and by finding that the omission of this June

Order from the affidavit of probable cause was not material to the probable cause

determination. See, e.g., Reedy v. Evanson, 615 F.3d 197, 213 (3d Cir. 2010) (stating

that court must insert recklessly omitted facts and then decide if corrected affidavit would

establish probable cause).

       Viewing the facts in the light most favorable to Laphan, we determine that there

clearly was probable cause to arrest and prosecute Laphan. We agree with the District

Court that the June Order, at most, allowed Laphan to have the vehicles removed from

the premises:

       There is nothing in the June Order that permitted Laphan to do what she
       told Sergeant Haines she intended—i.e., to withhold the vehicles from
       Burgy until he turned over certain property and the insurance proceeds
       check. See [RR123-RR125, RR212-RR213]. While the June Order did
       instruct Burgy to endorse and turn over the insurance proceeds check to
       Laphan within ten days, it did not give her any right to use his property as
       collateral to ensure compliance.

Laphan, 2016 WL 627246, at *4 (footnote omitted). At her deposition, Laphan was

asked the following question about Sergeant Haines’s report:

       [Q.] It says, “Complainant John Burgy contacted 7701 and requested
       police department contact Grace and have his property returned. Contacted
       Grace who stated she is safeguarding his property and would like her
       property returned along with the $35,000 check that was issued by the


                                             4
       insurance company.” Now do you remember having that discussion with
       Sergeant Haines?

       A. Yeah.

(RR123.) While Laphan contends that she did not expressly state that she was holding

the vehicles until she received the check, the following exchange dispels any reasonable

doubt that she told the police officer that she retained the vehicles as a form of collateral:

       Q. It says, “Grace Laphan informed Sergeant Haines that she was
       safeguarding the vehicle – vehicles,” excuse me, “until John Burgy returned
       her property and an insurance company check in the amount of $35,000.”
       Do you remember having that discussion with Sergeant Haines?

       A. Yes.

(RR124.) According to Laphan, “[w]hile Appellant states, ‘yes’ at one point on page 63

[of the deposition] acknowledging the statement from [the] affidavit of probable cause

that ‘she was safeguarding the vehicles. . . . until John Burgy returned her property and an

insurance company check,’ she does not adopt the statement as her own and merely

acknowledges a conversation between herself and Sergeant Haines occurred about the

topic.” (Appellant’s Brief at 22 (quoting RR124).) However, it is obvious that, when she

said yes, she thereby agreed that the following “discussion” took place with the

sergeant—she “informed” the police officer that she was safeguarding the vehicles until

Burgy returned her property and gave her the check. 4



       4
         According to Laphan, the District Court improperly determined that the omission
from the affidavit of probable cause of a conversation with an assistant district attorney
was not material to a probable cause finding. However, she does not argue that the
prosecutor, even if he was confused by the June Order, believed that it allowed Laphan
herself to treat the vehicles as collateral.
                                              5
       In addition, an unimpeached hold-over proceeding, although not conclusive,

constitutes evidence of probable cause. See, e.g., Pardue v. Gray, 136 F. App’x 529, 532-

33 (3d Cir. 2005); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 87 (Pa. Super. Ct.

1995). As the District Court noted, Judge Lippincott (the judge who issued the arrest

warrant) conducted a preliminary hearing on the charges against Laphan. Although the

June Order was addressed at this hearing, Judge Lippincott still bound Laphan over for

trial. Laphan was subsequently found not guilty after a bench trial before Delaware

County Common Pleas Judge Capuzzi (who stated, inter alia, that “[i]t is beyond the

understanding of this Court as to why, on or about July 17, 2012 an arrest warrant, which

was approved by an ADA, was issued for the Defendant” when Laphan was actually

acting within the scope of the June Order (RR28 n.1)). However, Laphan’s acquittal was

not relevant to the probable cause determination because the standard for probable cause

is significantly lower than the standard for a conviction. 5 See, e.g., Halsey v. Pfeiffer,

750 F.3d 273, 299 (3d Cir. 2014).

                                             III.

       For the foregoing reasons, we will affirm the order of the District Court.




       5
        In addition to upholding the District Court’s disposition of this matter, we also
agree with its apt conclusion (shared by the two state judges) that, as a matter of
prosecutorial discretion, the charges should never have been pursued in the first place.
“Although their actions were legal, it is nevertheless regrettable that the DA’s Office
chose to file criminal charges against Laphan rather than seeking resolution of this
domestic dispute through more amicable means.” Laphan, 2016 WL 627246, at *7 n.11.
                                              6
