Neczypor v. Jacobs

• Decision Date: 28 March 1961
• Citation: 169 A.2d 528,403 Pa. 303
• Parties: Stephen S. NECZYPOR v. Joseph JACOBS, Appellant.
• Court: Pennsylvania Supreme Court

Page 528

169 A.2d 528

403 Pa. 303

Stephen S. NECZYPOR v. Joseph JACOBS, Appellant.

Supreme Court of Pennsylvania.

March 28, 1961.

Rehearing Denied April 24, 1961.

Irving R. Shull, Alfred I. Ginsburg, Bernard L. Lemisch, Philadelphia, for appellant.

Miles Warner, Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

MUSMANNO, Justice.

Stephen S. Neczypor, the plaintiff in this case, obtained a verdict of $4,000 against Joseph Jacobs, the defendant, in an action of malicious prosecution. The defendant appealed to the Superior Court which affirmed the verdict. We granted allocatur.

Reading the record with all conflicts in testimony, and all inferences rising therefrom, as resolved in favor of the plaintiff, the following narrative is warranted. On June 4, 1955, Stephen Neczypor engaged himself to chauffeur for his friend John Lew, who was being married in Philadelphia. After the religious ceremony at church and the taking of the bridal pictures, Neczypor started home to get his wife to take her to the wedding reception scheduled for that evening. It was then after 4 p. m.

As he proceeded northwardly on Fifth Street, his car was bumped in the rear by another car being driven by the defendant in this case, Joseph Jacobs. It does not appear that the bump was a severe one, but it would seem that the lesser the damages in collisions of this kind the more apt the drivers are to enter into wordy warfare, each accusing the other of stupidity, gross carelessness and unflattering antecedents. Jacobs, who was a city detective dressed in street clothes, informed Neczypor that he had better be careful since he could give him a ticket. Neczypor retorted: 'That don't give you no license to run into my automobile.'

Operators' licenses and automobile registration cards were exchanged and the episode apparently ended. Both drivers got into their respective cars and continued on their respective journeys.

A few minutes later Jacobs passed Neczypor on the road and the latter noted that Jacobs' car was carrying a dealer's license plate. He pursued and caught up with Jacobs and said to him: 'You know you showed me the wrong owner's card,' and Jacobs said to Neczypor: 'What are you going to do about it?'

As events were to turn out Neczypor would have fared better if he had said he was going to do nothing about it, and had gone on to participate in the wedding destivities. Instead, he replied to Jacobs: 'What do you think I am going to do about it? I am going to get a cop.'

And he set out in search of a 'cop.' At Fifth and Lehigh he found two uniformed policemen and he complained to them:

'Look can you help me? A guy just ran into my car. He says he is a cop. He had dealer's tags on it and it looked kind of fishy to me.'

Jacobs soon appeared on the scene and spoke to one of the policemen who now asked Neczypor if he wanted to go to the police station. Neczypor replied: 'Certainly. I have nothing to lose.' In this he was a poor prophet. When he arrived at the station a policeman 'frisked' him. The police sergeant on duty ordered him 'frisked' the second time. When Neczypor explained that he had already been searched, the sergeant, according to Neczypor, 'smashed' him in the face, breaking his glasses and cutting his face.

Neczypor asked: 'What did you do that for?'

Jacobs spoke up: 'I am going to railroad this * * * S. B.'

Neczypor was taken to a police cell and locked up. Later he was examined by a police surgeon who asked him about consumption of intoxicating beverages. Neczypor explained that that morning, in toasting the wedding of his friend, he had had two glasses of whiskey and a couple glasses of beer. It was now about 7 p. m.

He was returned to the cell. Still later he was handcuffed, placed aboard a police van and driven to City Hall where he was fingerprinted and photographed, the resulting picture showing the cut under his eye. He was then returned to the police cell. That evening his brother and a lawyer arrived and his release was effected.

The next day, at a hearing before a committing magistrate he was formally charged with operating an automobile under the influence of intoxicating liquor. In due time he was indicted and on that indictment he stood trial February 9, 1956 in the Court of Quarter Sessions before a judge and jury. He was acquitted.

Now he brought a civil action in trespass against Joseph Jacobs, charging him with malicious prosecution. The defendant joined issue and the case went to trial on January 8, 1958 before Judge Carroll. Neczypor's attorney, in opening his case to the jury, made some improper remarks, a juror was withdrawn and the case continued.

In April, 1958, the case was tried again, this time before Judge Levinthal and a jury. The jury returned a verdict in favor of Neczypor in the sum of $1,500. Jacobs appealed to the Superior Court which ordered a new trial because of trial errors.

In April, 1959, Neczypor and Jacobs, who were now apparently making a career of this case, appeared in Court to oppose each other for the fourth time before a jury. This time the jury seemed to see more injury in Neczypor than the previous jury had seen and awarded him a verdict of $4,000. The defendant again appealed to the Superior Court which, on a divided court of 4 to 3, affirmed the verdict. As already stated, we granted allocatur.

In this Court, Jacobs argues that he is entitled to judgment n. o. v. on the basis that the facts in the case demonstrate that he had probable cause to arrest and criminally prosecute Neczypor.

If, indeed, Jacobs had probable cause to take Neczypor into legal custody, he may not be held liable in damages, even though Neczypor was acquitted of the criminal charge. By probable cause is not meant an actual state of guilt. One is justified in launching a criminal prosecution if the facts convince him, as a reasonable, honest and intelligent human being, that the suspected person is guilty of a criminal offense. The arresting person may be in error, but if his error is an honest one, not motivated by personal malice, bias, or revenge, the law will hold him harmless, regardless of the eventual result of the criminal prosecution.

It would be a deplorable state of affairs if every police officer had to worry about the possibility of a civil action against him every time he arrested a seeming malefactor. Such a situation could conceivably lead to slackening of effort against crime because officers might feel that every time they chased and assumed lawbreaker they had to follow a thin chalk line, the slightest deviation from which would take them into civil court as a defendant. For the reason, the law is quite specific that a police officer, or anyone for that matter, may arrest on probable cause of criminal activity or participation.

'In an action of malicious prosecution, plaintiff does not make out a prima facie case by proving only his arrest on a criminal charge and its termination in his favor. He must also show that 'the defendant did not have probable cause for initiating the proceedings'. Sec. 672c Restatement, Torts. The issue on this phase of the case is: Did the defendant 'honestly believe' that the accused committed the crime for which he was prosecuted and was that belief based on 'a reasonable ground of suspicion of guilt'. Taylor v. Shipbuilding Corp. [275 Pa. 229, 119 A. 130], supra. Plaintiff must further show that the prosecution was motivated by malice, or, to put as the Restatement of Torts, Sec. 672, expresses it, that the 'primary purpose for which the proceedings were initiated was not to bring an offender to justice.'' Simpson v. Montgomery Ward & Co., 354 Pa. 87, 96, 46 A.2d 674, 678.

On the other hand, the general public is entitled to be protected from abuse of police authority, which, history reveals, cannot be ruled out as impossible. One of democracy's principal functions is to prevent, to the extent that it is possible, the abuse of governmental power. The authority of a police officer to cause the arrest of anyone is almost absolute. It is conceded that that kind of authority is needed for, if, in the rapidly moving action of a potential crime, the police officer had to weigh theories and possibilities, consult history and code before he could halt a person fleeing from an ostensible crime, many a criminal would escape his just deserts and society would suffer. However, when no immediate action is called for and time may be devoted to adequate preliminary investigation, the protection of the individual demands such an investigation because the hardships, humiliation, suspense and expense to which an innocent person is subjected in an improper prosecution cannot be compensated for by a mere acquittal.

In the case at bar the police officer Jacobs should have moved with considerable circumspection, because he himself, it seems, had a personal ax to grind with Neczypor. A police officer should be as direct as a bullet when the occasion demands, but as impartial as the sunlight at all times. Jacobs' impartiality came into question since he was involved in a personal altercation with the person he forced into the macerating jaws of a criminal prosecution.

Jacobs testified that when he first saw Neczypor he was driving his car in a zig zag fashion. He stopped him, talked with him and smelled alcohol on his breath. He, however, did not arrest him, explaining that Neczypor told him he had been taking medicine. Neczypor proceeded on his way, but later, when Jacobs became offended at Neczypor's attitude and language he arrested him. If Jacobs did not believe Neczypor was under the influence of alcohol when he first watched him zig zagging and after he had talked with him, why did he regard him intoxicated later (Neczypor not having taken any liquor in the meanwhile) because offensive language had been added to the reputed zig zagging?

In arresting and...