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Home My WebLink About2011-8208 EARL LLOYD NICHOLAS, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : AYERS, LCC d.b.a. SERVPRO, NCC, : SCOTT AYERS, DAN AYERS, : DEFENDANTS : 11-8208 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, P.J., AND MASLAND, J. OPINION AND ORDER OF THE COURT Masland, J., September 9, 2013:-- Before the court is the Preliminary Objection filed by Ayers, LLC d.b.a. ServPro, NCC, Scott Ayers, and Dan Ayers (“Defendants”) to the Amended Complaint filed by Plaintiff, Earl Lloyd Nicholas (“Plaintiff”). After briefing by the parties, we now overrule the preliminary objection in accordance with the following opinion. I. Introduction On December 9, 2011, Earl Lloyd Nicholas filed an Amended Complaint against Defendants. This action arises from a Criminal Complaint filed against Plaintiff for theft by deception. Plaintiff alleges Defendants are liable for the tort of malicious prosecution. Defendants object that Plaintiff’s claim is legally insufficient and request the claim be dismissed. II. Facts Plaintiff was an employee of Defendants from approximately June 2007 to November 2009. In 2009, Defendants purchased numerous items from Kirby’s Remodeling and Flooring Center, Inc. (“Kirby’s”), including two pieces of carpet that were 11-8208 CIVIL TERM to be installed in a client’s home. However, those items were never installed in the client’s home, were not found in Defendants’ warehouse, nor were they ever recovered. Defendants accused Plaintiff of theft by deception for creating a false impression to Kirby’s by ordering carpet on Defendants’ behalf and never delivering the carpet to the client. Plaintiff alleges he was unavailable during the time in question in order to be held responsible for the missing items and that Defendants knew of his unavailability. On January 12, 2010, Defendants e-mailed Plaintiff and warned that if the location of the carpet was not explained within twenty-four hours, they would have to report him to the authorities. Plaintiff was subsequently fired and granted unemployment compensation, but no mention of the alleged theft was made during this process. Plaintiff then filed a complaint with the Pennsylvania Department of Labor. Shortly thereafter, Defendants did in fact contact the police and accused Plaintiff of theft. Plaintiff alleges that Defendants knew full well that Plaintiff did not steal the items when the phone call was made and that these accusations were made with malice, with the intent to intimidate, embarrass, and harass Plaintiff. After the Hampden Township Police conducted an investigation, a Criminal Complaint was filed against Plaintiff for theft by deception on February 2, 2010. Ultimately, according to the Complaint, Plaintiff was found not guilty. III. Discussion A. Standard of Review Defendants’ objection to Plaintiff’s claim is in the nature of a demurrer, which challenges the legal sufficiency of a complaint. Lutz v. Springettsbury Twp., 667 A.2d 251, 253 (Pa. Cmwlth. 1995). In ruling on preliminary objections in the nature of a -2 - 11-8208 CIVIL TERM demurrer, all well-pleaded facts and all reasonable inferences that may be drawn from them are accepted as true. Id. However, legal conclusions and unjustified inferences are not deemed admitted. Id. A demurrer will be sustained only when the court is certain that no recovery may be had on the pleaded facts. Id. With this generous standard in mind, we review the preliminary objection of Defendants. B. Defendants’ Preliminary Objection to Plaintiff’s Malicious Prosecution Claim Defendants contend that Plaintiff’s malicious prosecution claim should fail for two reasons: (1) Plaintiff failed to allege that Defendants themselves instituted the criminal action; and (2) Plaintiff failed to allege there was a lack of probable cause. We disagree. In order to establish a cause of action for the tort of malicious prosecution, “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. General Teamsters, Chauffers, and Helpers, Local Union 249, 544 A.2d 940, 941 (Pa. 1988). “Malice may be inferred from the absence of probable cause.” Amicone v. Shoaf, 620 A.2d 1222, 1224 (Pa. Super. 1993). In his Amended Complaint, Plaintiff alleges that Defendants procured the institution of criminal proceedings against him and that he was criminally charged as a result of Defendants’ actions. Plaintiff also alleged that Defendants knew “full well that ¶ Plaintiff did not steal the items.” Compl. 19. Defendants assert they cannot be charged with responsibility for the institution of the proceedings because an officer of the Hampden Township Police Department filed the Criminal Complaint after conducting his own investigation. -3 - 11-8208 CIVIL TERM To the contrary, when “a private individual…provides knowingly false statements to an official…the officer's intelligent use of discretion [is] impossible.” Bradley v. Gen. Accident Ins. Co., 778 A.2d 707 (Pa. Super. 2001) citing R(S) ESTATEMENT ECOND OF T §653. If the officer’s intelligent use of discretion is impossible, the private person ORTS who provided the false information to the officer can be charged with responsibility of procuring the institution of proceedings. Id. Accordingly, based on Plaintiff’s allegations that Defendants called the police knowing that Plaintiff did not steal the items and was unavailable at the time in question, Plaintiff sufficiently pleaded facts to establish that Defendants procured the institution of the proceedings. Defendants also assert that because the Criminal Complaint was filed after the Hampden Township Police conducted an independent investigation, probable cause for the criminal proceedings was established. However, we must make reasonable inferences from Plaintiff’s allegation that Defendants are responsible for the institution of criminal proceedings, rather than the officer. As such, Plaintiff would need to allege Defendants themselves lacked probable cause to procure the proceedings. In his Complaint, Plaintiff averred Defendants procured the institution of criminal proceedings against Plaintiffs without probable cause, did not double check the records or look for clerical errors and knew “full well that Plaintiff did not steal the items.” Compl. ¶ 19. Additionally, Plaintiff stated that he was unavailable at the time in question and ¶ that Defendants knew Plaintiff would be unavailable that day. Compl. 8. Taking these facts as true at this early stage, Plaintiff has alleged Defendants lacked probable cause to institute criminal proceedings for theft against Plaintiff. -4 - 11-8208 CIVIL TERM Accordingly, we conclude that Plaintiff has pleaded sufficient facts to establish a cause of action for malicious prosecution, and therefore, Defendants’ preliminary objection is overruled. IV. Conclusion For the above stated reasons, the preliminary objection filed by Defendants is overruled. Defendants are directed to file an Answer to Plaintiff’s Amended Complaint within twenty (20) days of the entry of this opinion and order. ORDER OF THE COURT AND NOW, this ____ day of September, 2013, the preliminary objection filed by OVERRULED Defendants is . Defendants are directed to file an Answer to Plaintiff’s Amended Complaint within twenty (20) days of this opinion and order. By the Court, ____________________ Albert H. Masland, J. Karl E. Rominger, Esquire For Plaintiff Jason L. Reimer, Esquire For Defendants -5 - EARL LLOYD NICHOLAS, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : AYERS, LCC d.b.a. SERVPRO, NCC, : SCOTT AYERS, DAN AYERS, : DEFENDANTS : 11-8208 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO PLAINTIFF’S AMENDED COMPLAINT BEFORE HESS, P.J., AND MASLAND, J. ORDER OF THE COURT AND NOW, this ____ day of September, 2013, the preliminary objection filed by OVERRULED Defendants is . Defendants are directed to file an Answer to Plaintiff’s Amended Complaint within twenty (20) days of this opinion and order. By the Court, ____________________ Albert H. Masland, J. Karl E. Rominger, Esquire For Plaintiff Jason L. Reimer, Esquire For Defendants