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HomeMy WebLinkAbout2007-4438 Civil ALI SHABAZZ, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : RADIO SHACK, INC. AND : SUMMER MCGUIRE, : DEFENDANTS : NO. 07-4438 CIVIL IN RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND TO DISMISS FOR FRAUD UPON THE COURT ORDER OF COURT th AND NOW , this 5 day of March, 2010, upon consideration of the Defendants’ Motion for Summary Judgment and the briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Motion for Summary GRANTED. Judgment is hereby By the Court, ________________________________ M. L. Ebert, Jr., J. James H. Rowland, Jr., Esquire th 812 N. 17 Street Harrisburg, PA 17103 717-233-6787 Attorney for Plaintiff Cathleen Kelly Rebar, Esquire McCumber, Daniels, Buntz, Hartig & Puig, P.A. 2701 Renaissance Blvd., Suite 150 King of Prussia, PA 19406 610-275-5456 Attorney for Defendants ALI SHABAZZ, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : RADIO SHACK, INC. AND : SUMMER MCGUIRE, : DEFENDANTS : NO. 07-4438 CIVIL IN RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND TO DISMISS FOR FRAUD UPON THE COURT OPINION AND ORDER OF COURT Ebert, J., March 5, 2010- Statement of Facts and Procedural History Plaintiff is Ali Shabazz. Defendants are Radio Shack Corporation and Summer McGuire, a Radio Shack employee. On September 28, 2005, Defendant McGuire, the manager of the West 1 Shore Plaza Radio Shack called to alert the police that a man, later identified as Plaintiff, who had used a reportedly stolen MasterCard on September 2 was supposed to return to the store that 2 day. Officer Hair and Officer Capers of the West Shore Regional Police Department went to the store and McGuire told them that a man purchased a scanner from the store on September 2, 2005. He wanted to have it programmed and McGuire sent him to the Capital City Mall store for 3 that service because they were better equipped to program it. While at the Capital City Mall store, Plaintiff tried to purchase more items with the MasterCard, but the clerk there would not 4 accept the card because it was not in Plaintiff’s name. Instead it was in a female’s name. When Plaintiff returned to the West Shore store McGuire called MasterCard and a representative there 1 Deposition of Daniel Hair, Defendant’s exhibit C, p. 10. 2 Hair Deposition at 13. 3 Hair Dep. at 13. 4 Hair Dep.at 14. 2 told her that the card was reported stolen on September 12 and that the first name on the card 5 was Linda. The man described by McGuire did not come into the store that day, but Officers Hair and Capers had created an incident report for Access Device Fraud on September 28, 2005, 6 based on the call from McGuire. There was an open investigation on the case. Officer Hair took the receipt given to him from McGuire for the scanner purchased by Plaintiff to aid in 7 further investigation of Access Device Fraud. On October 10, 2005, Plaintiff entered the store and Defendant again called police to let them know that Plaintiff was in the store and that she believed Plaintiff may be in possession of a stolen credit card. Officer Hutcheson responded to the call and was told it was in reference to 8 incident 2005-3696, which is the incident report filed on September 28, 2005, by Officer Hair. 9 Officer Hutcheson did not go to the Radio Shack with the intention of arresting Plaintiff. He 10 planned to identify the individual and continue the investigation. When Officer Hutcheson arrived at the Radio Shack, McGuire was on the phone and “used her eyes to point to the 11 male.” Officer Hutcheson walked over to Plaintiff and told him he was there to investigate the 12 use of a stolen credit card. Plaintiff asked if the name on the card was Linda Wicks, and he 13 said she was out in the car and started to walk away. Officer Hutcheson told Plaintiff he 14 needed to talk to him, but Plaintiff did not stop and continued to walk toward the door. After Plaintiff’s second attempt to leave the store, Officer Hutcheson placed Plaintiff under arrest for 5 Hair Dep. at 14. 6 Hair Dep. 21-22. 7 Hair Dep. 20. 8 Hair Dep. 21. 9 Hutcheson Dep. 16. 10 Hutcheson Dep. 16. 11 Hutcheson Dep. 14. 12 Hutcheson Dep. 15. 13 Hutcheson Dep. 16. 14 Hutcheson Dep. 17, 19. 3 Receiving Stolen Property. Officer Hutcheson took Plaintiff out of the store. As Plaintiff was 15 being handcuffed, a woman walked up to the car and said she was Linda Wicks. Officer Hutcheson placed Plaintiff in the car while he talked to Wicks. Wicks handed over the credit card in question to Officer Hutcheson and told him that she had received a letter that payment 16 was past due. Wicks also told Officer Hutcheson that she had never reported her credit card 17 stolen. Based on this information, Officer Hutcheson released Plaintiff within approximately 18 five or ten minutes after putting him in the police car. Plaintiff has filed charges of False Arrest/False Imprisonment, Intentional Infliction of Emotional Distress, and Malicious Prosecution against Defendants as a result of the incident. Defendant has filed a Motion for Summary Judgment and additionally a Motion to Dismiss for Fraud on the Court. For the reasons that follow, Defendants’ Motion for Summary Judgment is granted. DISCUSSION A. False Arrest and False Imprisonment False arrest charges frequently arise in Section 1983 Civil Rights violations. This case obviously does not involve such a charge, but even in those cases the central issue in determining liability based on a claim of false arrest is “whether the arresting officers had probable cause to believe the person arrested had committed the offense.” Wagner v. Waitlevertch, 774 A.2d 1247, 1253 (Pa.Super.,2001) (citing Dowling v. Philadelphia, 855 F.2d 136, 141 (3d Cir.1988). This Court questions why Plaintiff has even brought a charge for false arrest against Defendant, when the police, not Defendant, were responsible for arresting Plaintiff. Additionally, in Pennsylvania, false arrest is not itself a tort in the sense of being an independent source of liability but instead 15 Hutcheson Dep. 22. 16 Hutcheson Dep. 22. 17 Hutcheson Dep. 24. 18 Hutcheson Dep. 24. 4 is considered synonymous with false imprisonment. Gagliardi v. Lynn, 285 A.2d 109, 111 (Pa. 1971). The distinction is usually only discussed by courts in the context of statutes of limitations. See e.g. Smith v. Wendell, 390 F. Supp.360 (E. D. Pa.1975); Osgood v. Borough of Shamokin Dam, 420 A.2d 613 (Pa. Super.1980). An action for false arrest requires that the process used for the arrest was void on its face or that the issuing tribunal was without jurisdiction; it is not sufficient that the charges were unjustified. Strickland v. University of Scranton, 700 A.2d 979, 984 (Pa.Super.1997). There is nothing to suggest that the arrest was unjustified. More importantly, Defendant simply provided information to police and did nothing at all to participate in Plaintiff’s arrest. She was on the phone when police arrived and had no part in Plaintiff’s arrest. Because false arrest is considered synonymous with false imprisonment, we will consider the facts relative to that charge. The elements of false imprisonment are (1) the detention of another person, and (2) the unlawfulness of such detention. An arrest based upon probable cause would be justified, regardless of whether the individual arrested was guilty or not. Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). It is clear from the record that Defendant did nothing to detain Plaintiff. Since there was no detention, it could not be unlawful. Just because Plaintiff’s arrest did not result in charges does not make it unlawful. More importantly, the arrest and detention was done by West Shore Police, not Defendant. Police used their discretion based on information available to them about an open investigation, and they are permitted to act on such information. Because Defendant was in no way involved with Plaintiff’s detention, summary judgment is proper for the charge of false arrest and false imprisonment. 5 B. Intentional Infliction of Emotional Distress Our Supreme Court has indicated that in order for a plaintiff to prevail on a claim of intentional infliction of emotional distress, he or she must, at the least, demonstrate intentional, outrageous or extreme conduct by the defendant which causes severe emotional distress to the plaintiff. Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). In addition, some courts have held that a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct. Fewell v. Besner, 664 A.2d 577, 582 (Pa.Super.1995). There is some suggestion that the Pennsylvania Supreme Court, if presented with such a case, may not require physical injury to be present. Ricker v. Weston, 2000 WL 1728506, 5, n. 17 (E.D.Pa.) (E.D.Pa.,2000) (stating that “However, as neither Kazatsky nor the pertinent section of the Restatement (Second) of Torts requires physical injury, we predict that the Pennsylvania Supreme Court, if presented with this question, would hold that no physical injury showing is required.”). However, most authority has supported a requirement of physical injury. 19 Plaintiff in this case has alleged no physical harm caused by Defendants’ conduct. When asked in his deposition what evidence he could give of any damages as a result of what 20 happened at Radio Shack, he said he could not give any. When asked why he sought an attorney after the incident, Plaintiff replied: I felt that I was damaged as a result of this incident. Certainly, my reputation in the area was severely damaged. I was insulted and that caused me, I felt it caused me psychiatric problems. I never had paranoia problems prior to the incident. It caused extreme difficulties at home, and as a result of these things, I decided I 21 should seek compensation. It is clear that Plaintiff has in no way alleged any physical damages whatsoever as a result of the incident. Notwithstanding any physical harm, this Court finds that Defendants’ behavior 19 Shabazz Dep. 64. 20 Shabazz Dep. 64. 21 Shabazz Dep. 64. 6 could in no way be considered by any standards to be outrageous or extreme. Outrageous or extreme conduct has been defined by Pennsylvania appellate courts as conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.” Hoy v. Angelone, 720 A.2d 745, 754 (Pa.1998)(citing Buczek v. First National Bank of Mifflintown, 531 A.2d 1122, 1125 (1987). Defendant, a retail manager, believed Plaintiff to be in possession of a stolen credit card because the MasterCard representative told her the card had been reported stolen on September 12, 2005. She believed that Plaintiff was using this credit card at the chain of stores where she was employed. She called police to investigate, which, under any standards, could be considered reasonable and prudent behavior. Therefore, summary judgment on the charge of Intentional Infliction of Emotional Distress is granted. C. Malicious Prosecution In order to establish a claim for malicious prosecution, a party must establish that the defendant instituted proceedings against the plaintiff: 1) without probable cause, 2) with malice, and 3) the proceedings must have terminated in favor of the plaintiff. Bradley v. General Acc. Ins. Co. 778 A.2d 707, 710 (Pa.Super.2001) (citing McKibben v. Schmotzer, 700 A.2d 484, 492 (Pa.Super.1997). A private person who gives to a public official information of another's supposed criminal misconduct or even makes an accusation of criminal misconduct does not “initiate proceedings” if the decision whether to initiate proceedings is left entirely to the discretion of the official. Id. at 711 (citing RESTATEMENT (SECOND) of TORTS § 653, comment g). Clearly, in the present case, police had complete discretion of whether to initiate any proceedings 7 against Defendant and whether to arrest him or continue the investigation. Officer Hair found it necessary to complete an incident report and open an investigation after Defendant’s September 28, 2005, call. Malicious prosecution in Pennsylvania has developed to a large extent based upon the Restatement of Torts (Second) Sections 653 and 654. Gallucci v. Phillips & Jacobs, Inc., 614 A.2d 284, 290 (Pa.Super.1992). Therefore, it is appropriate to use those sections to support this Court’s decision. The following section is instructive in our decision: Even without the issuance of any process, or indictment or information, criminal proceedings may be instituted by lawful and valid arrest of the accused on a criminal charge. If the arrest is not a valid one, an action for malicious prosecution will not lie unless some further step is taken, such as bringing the accused before a magistrate for determination whether he is to be held. If there is nothing more than the false arrest and the accused is released without any further proceeding, his remedy is an action for false imprisonment. If the arrest is valid and lawful, false imprisonment will not lie. But the arrest is then an initial step in a criminal proceeding; and if it is made or instigated without probable cause, the remedy is by an action for malicious prosecution. Restatement 2d of Torts § 653 comment e. Alleged use of a stolen credit card at Radio Shack was an open investigation. When Defendant again called police on October 10, 2005, Officer Hutcheson responded and dealt with Plaintiff as he deemed necessary. Police had complete control over the investigation from the beginning and never brought any charges against Plaintiff. While police did arrest Plaintiff at the Radio Shack as part of their investigation, they did not keep him in custody, nor, at their discretion, did they bring any charges against Plaintiff. It is clear that the decision to bring charges was entirely up to the police and never resulted in any further proceedings; therefore, there is no valid claim for malicious prosecution, and summary judgment on this charge is granted. 8 This Court believes that the present case fits exactly into the above section of the Restatement. The arrest was a valid one because police were responding to a call related to an ongoing investigation for Access Device Fraud. Police, using entirely their own discretion, arrested Plaintiff when he was uncooperative at the scene and then later decided to release him when his girlfriend, Linda Wicks, who owned the credit card in question, showed up. Since there was no further proceeding, there is no proper action for malicious prosecution. Because the arrest was valid and lawful, there cannot be an action for false imprisonment or false arrest. There is no action for intentional infliction of emotional distress because Defendant’s actions were in no way outrageous, and Plaintiff did not suffer any physical injury. Summary judgment for the Defendant is proper on all counts. Furthermore, while it is unnecessary to rule on the Motion to Dismiss for Fraud upon the Court, the Court does acknowledge and recognize that Plaintiff provided numerous untruths to Defendant during depositions and interrogatories. These untruths, coupled with the Plaintiff’s personal relationship with Ms. Wicks, the owner of the credit card in question, raises serious implications regarding fraudulent use of the credit card. In any regard, after careful examination of the record in this case, Defendants’ request for summary judgment is clearly warranted. Therefore, it is hereby directed that the following order be entered: 9 ORDER OF COURT th AND NOW , this 5day of March, 2010, upon consideration of the Defendants’ Motion for Summary Judgment and the briefs filed by the parties, IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Motion for Summary GRANTED. Judgment is hereby By the Court, ________________________________ M. L. Ebert, Jr., J. James H. Rowland, Jr., Esquire th 812 N. 17 Street Harrisburg, PA 17103 717-233-6787 Attorney for Plaintiff Cathleen Kelly Rebar, Esquire McCumber, Daniels, Buntz, Hartig & Puig, P.A. 2701 Renaissance Blvd., Suite 150 King of Prussia, PA 19406 610-275-5456 Attorney for Defendants 10