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Rubin v. Nowak

Decided: May 8, 1991.

MILTON RUBIN, PLAINTIFF-APPELLANT,
v.
ALLAN NOWAK, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Camden County.

Antell, O'Brien and Keefe. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

In this action for malicious prosecution plaintiff appeals from a jury verdict in favor of defendant. The suit was based upon nine criminal complaints filed by defendant against plaintiff because of disagreements arising out of the dissolution of their business partnership. The complaints were later administratively dismissed by the Camden County Prosecutor without presentation to the grand jury. At trial, the court ruled that the administrative dismissals did not constitute a favorable termination of the criminal proceedings and would not allow the jury to consider them. The court also dismissed the eight counts of the complaint that were based upon those dismissed criminal charges. The sole count submitted to the jury, resulting in a verdict for defendant, was grounded in the criminal complaint on which plaintiff was tried and acquitted. Plaintiff contends that the court erred in refusing to treat the administrative dismissals as a favorable termination.

An action for malicious prosecution may be maintained only where it is shown that the criminal action was brought without probable cause, that it was actuated by malice, that plaintiff suffered a special grievance, and that the criminal proceedings terminated favorably to the plaintiff. Penwag Property Co., Inc. v. Landau, 76 N.J. 595, 598, 388 A.2d 1265 (1978). Favorable termination of the criminal proceeding is elemental to the cause of action. Piper v. Scher, 221 N.J. Super. 54, 58, 533 A.2d 974 (App.Div.1987); Mondrow v. Selwyn, 172 N.J. Super. 379, 384, 412 A.2d 447 (App.Div.), certif. denied, 84 N.J. 449, 420 A.2d 347 (1980). The question as to whether an administrative dismissal is a favorable termination has not yet been decided in this state.

In Weisner v. Hansen, 81 N.J.L. 601, 603, 80 A. 455 (E. & A.1911), the Court decided that the failure of a grand jury to return an indictment was a termination sufficient to support a suit for malicious prosecution. See also Mondrow v. Selwyn, 172 N.J. Super. at 385, 412 A.2d 447; Apgar v. Woolston, 43 N.J.L. 57, 65

(Sup.Ct.1881). In MacLaughlin v. Lehigh Valley R.R. Co., 93 N.J.L. 263, 108 A. 309 (Sup.Ct.1919), a nolle prosequi by the prosecutor was held to constitute a favorable termination. In Piper v. Scher, supra, it was held that an unconditional withdrawal of the charge by the defendant is also a favorable termination. 221 N.J. Super. at 59, 533 A.2d 974.

But there is no favorable termination where the complaint was withdrawn pursuant to an agreement of compromise with the accused, Mondrow v. Selwyn, 172 N.J. Super. at 387, 412 A.2d 447, or where the criminal proceeding was dismissed because of the accused's insanity, Williams v. Page, 160 N.J. Super. 354, 363-64, 389 A.2d 1012 (App.Div.), certif. denied, 78 N.J. 395, 396 A.2d 582 (1978), or because the accused was accepted in a pretrial intervention program, Lindes v. Sutter, 621 F. Supp. 1197, 1201 (D.N.J.1985); Thomas v. New Jersey Institute of Technology, 178 N.J. Super. 60, 62, 427 A.2d 1142 (Law Div.1981). The inquiry thus focuses on whether the termination was or was not dispositive as to the accused's innocence of the crime for which he was charged. In the latter cases termination of the prosecution did not dispose of that cardinal issue.

Restatement, Second, Torts, § 659 states that "[c]riminal proceedings are terminated in favor of the accused by . . . the formal abandonment of the proceedings by the public prosecutor . . . ." This is subject, however, to the conditions stated in § 660 that the prosecution not be abandoned "pursuant to an agreement of compromise with the accused; or . . . because of misconduct on the part of the accused or in his behalf for the purpose of preventing proper trial," that it not be "abandoned out of mercy requested or accepted by the accused," and that new proceedings for the same offense are not pending. These standards are compatible with the principles underlying New Jersey precedents as to what constitutes a favorable termination.

The power of the prosecutor to enter an administrative dismissal of a complaint derives from R. 3:25-1, which states:

A complaint may also be administratively dismissed by the prosecuting attorney, without presentation to the grand jury, in which event said prosecuting attorney shall report the dismissal and the basis therefor to the Assignment Judge and shall notify the defendant.

We conclude that an administrative dismissal is a favorable termination of a criminal proceeding for purposes of a malicious prosecution action. Disagreements as to the actual circumstances of the withdrawal or abandonment of the prosecution must be resolved by the trier of facts. Piper v. Scher, 221 N.J. Super. at 60, 533 A.2d 974; Williams v. Page, 160 N.J. ...


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