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Piper v. Scher

Decided: October 29, 1987.

BARBARA PIPER, PLAINTIFF-APPELLANT,
v.
GERALD J. SCHER, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Furman, Brody and Scalera. The opinion of the court was delivered by Scalera, J.A.D.

Scalera

The narrow issue presented here is whether, in a malicious prosecution action, defendant's voluntary termination or abandonment of the underlying criminal action, without any agreement with or other prejudicial misconduct by the plaintiff, may constitute a favorable termination of the criminal proceedings, one of the elements of such a cause of action. We determine the answer to that question affirmatively.

The filing of the instant complaint by plaintiff against defendant for malicious prosecution and defamation arose out of an incident which occurred on May 20, 1985. Plaintiff, Barbara Piper, had previously leased a furnished house to defendant, Gerald J. Scher. On that date, she went to the house to show it to prospective purchasers and gained admittance in the presence of defendant's fiancee. Defendant eventually arrived on the premises.

Later that day defendant filed criminal complaints against plaintiff charging her with criminal trespass onto the premises and theft of cash, a coin collection, jewelry, camera equipment and clocks. Apparently plaintiff was consequently arrested, fingerprinted and photographed and the arrest was reported in

a local newspaper. A hearing at the municipal court was scheduled for May 22, 1985 at which time defendant withdrew the complaints against her, allegedly based on the advice of his attorney.

Two months later plaintiff instituted the present action to recover damages. The first count sounded in malicious prosecution and is based on her contention that she was "exonerated" of the criminal charges. The second count was based on the alleged defamatory statements made by defendant during the course of the criminal charges lodged against her. Other counts to recover rent arrearages and for damage done to the property are not implicated here.

After depositions of both parties were taken the defendant moved for summary judgment on the first two counts. With respect to the malicious prosecution defendant asserted that the criminal charges had been withdrawn by him pursuant to an agreement with plaintiff and that, in any event, even absent such an agreement, his unilateral and voluntary termination or withdrawal of the charges deprives plaintiff of the ability to show a favorable termination of the underlying criminal proceedings. Regarding the defamation, defendant asserted that since the claim was based solely upon the criminal complaints filed, which were absolutely privileged, he was entitled to dismissal as a matter of law.

After hearing oral argument, the trial judge dismissed both the malicious prosecution and defamation actions. She reasoned with respect to the malicious prosecution that,

"The complaint . . . was withdrawn and therefore Mondrow v. Selwyn, [172 N.J. Super. 379 (App.Div.1980)] applies, and one of the basic elements of the tort of malicious prosecution is missing."

Thus she held that even if the criminal complaints had been unilaterally voluntarily withdrawn by defendant, without any agreement with plaintiff, as a matter of law, plaintiff could not establish that there had been a favorable termination. With respect to the defamation action she concluded that ...


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