# Griffiths v. Cigna Corp.

> Court of Appeals for the Third Circuit · March 17, 1993 · 988 F.2d 457

URL: https://www.frixlaw.com/law-library/cases/9007243

## Case

- **Full name:** Jackey B. GRIFFITHS v. CIGNA CORPORATION, Marlene Graham, Individually and in her own official capacity as head of Security with Cigna Corp. Cigna Corporation and Marlene Graham
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** March 17, 1993
- **Citations:** 988 F.2d 457; 61 Empl. Prac. Dec. (CCH) 42,108; 63 Fair Empl. Prac. Cas. (BNA) 1205; 1993 U.S. App. LEXIS 4870; 1993 WL 72325
- **Precedential status:** Published
- **Opinion:** Concurring in part by Seitz
- **Judges:** Alito, Becker, Cowen, Greenberg, Hutchinson, Lewis, Mansmann, Nygaard, Roth, Scirica, Seitz, Sloviter, Stapleton
- **Cited by:** 134 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by William J. Miller v. Cigna Corporation the Insurance Company of North America, 47 F.3d 586 (1995).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9007243

## How later opinions describe it (automated extraction)

- noting that though a motion for a new trial is ordinarily reviewed for an abuse of discretion, where the outcome of that motion relies on "legal precepts," the court would engage in plenary review
- finding only that evidence of stray remarks are insufficient to demonstrate a prima facie mixed motive case
- holding that failure of district court to charge jury correctly on allocation of proof requires reversal
- recognizing distinction between “pretext” and “mixed-motive” cases in Title VII retaliatory discharge action

## Opinion text

SEITZ, Circuit Judge,
concurring and dissenting.
I join in the opinion of the court granting a new trial on plaintiffs retaliatory discharge claim.
I dissent from the disposition of the malicious prosecution claim by the majority because I disagree with its prophecy as to the controlling principle of Pennsylvania law. In Kelley v. General Teamsters, Chauffeurs, and Helpers, Local Union 249, 518 Pa. 517 , 544 A.2d 940 (1988), the court stated the requirements of such an action:
A cause of action for malicious prosecution has three elements. 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.
Id. at 941 (citing Miller v. Pennsylvania R.R. Co., 371 Pa. 308 , 89 A.2d 809 , 811 (1952)).
The initial requirement is that plaintiff show that the defendant instituted the proceedings against the plaintiff. The majority concludes that plaintiff failed to make this showing. I do not agree.
The Pennsylvania courts have adopted the Restatement (Second) of Torts § 653 in formulating their law of malicious prosecution. Neczypor v. Jacobs, 403 Pa. 303 , 169 A.2d 528 (1961). Under that section a defendant who did not formally commence the proceedings may, nevertheless, be held to have initiated the proceedings under certain circumstances. I turn to that issue.
One of the ways a plaintiff may be held to have initiated such proceedings is to show “that the information furnished by him upon which the official acted was known to be false.” Restatement (Second) of Torts § 653 cmt. g (1977). This limitation on the general non-liability rule flows from the reasonable premise that a public official who is provided false information is unable intelligently to exercise his or her discretion to decide whether to prosecute. It follows, in my view, that if it can reasonably be found that material information is deliberately withheld by a private individual when he or she provides information about possible criminal activity of an identified individual, such action amounts to knowingly supplying false information. In such a case that individual is responsible for having initiated the proceedings and thus fulfills that required element of a malicious prosecution action.
While the Pennsylvania courts have apparently not yet addressed the position I take here, I predict that the Supreme Court of Pennsylvania would adopt it. I reach this conclusion first because of the inherent logic of such a reading of the general rule. Truth can be distorted as readily by omission as by commission. Second, several other state courts have recognized such an interpretation of Section 653. Thus, in Hirth v. Hall, 96 N.M. 58, 60 , 627 P.2d 1257, 1259 (Ct.App.1981), the court relied on the Restatement in vacating an order granting summary judgment on a malicious prosecution claim where there was a genuine issue of material fact as to whether “defendant furnished false information by not disclosing ... several relevant aspects of the dispute....”
Similar support for the same legal proposition is found in Rose v. Whitbeck, 277 Or. 791 , 562 P.2d 188, 191 , reh’g denied and opinion modified, 278 Or. 463 , 564 P.2d 671 (1977), where in discussing the Restatement, the court stated that “[tjhis rule contains the limitation that the defendant ... did not withhold information_” Additionally, in Gustafson v. Payless Drug Stores Northwest, Inc., 269 Or. 354 , 525 P.2d 118, 123-24 (1974), in discussing the Restatement, the court stated that “[t]he same rule applies if the private person knowingly fails to furnish information which the jury could find the private person knew was material to action by the official.” This interpretation of the general rule was also recognized in Thomas v. Cisneros, 596 S.W.2d 313, 316-17 (Tex.Civ.App.1980) (affirming a judgment for defendant after finding that full and fair disclosure was made, relying on the Restatement as stating the reasoning behind this requirement).
In reaching its conclusion, the majority states that “when a person supplies accurate information to the police, that person, *474 regardless of her motives and her actions in withholding other information, cannot be regarded as being responsible for the institution of criminal proceedings ... so long as that person does not conceal additional information requested by the police.” Majority Opinion at 467 (emphasis added). I cannot agree that this is a correct prediction of Pennsylvania law in the present circumstances. I reiterate my belief that the Supreme Court of Pennsylvania would conclude that knowingly withholding material information when communicating to a public official another’s supposed criminal misconduct, of which the official is ignorant, amounts to knowingly providing false information within the intent of the language of the Restatement.
From my prospective the limitation on Pennsylvania law imposed by the majority — concealment of additional information requested by police — suffers from at least two important infirmities in the present context. First, it severely dilutes the importance of a person’s obligation not to deliberately cause his or her allegation to be viewed by the police in a false light. After all, triggering an official criminal inquiry toward a particular individual has important traumatic consequences for that person. Second, the limitation imposed by the majority is dependent on the happenstance that the individual initiating the communication is asked the “right” questions by the police. I fully appreciate the importance of the law enforcement considerations noted by the majority, as well as the jaundiced judicial view of this type of action. Nevertheless, I believe Pennsylvania law provides a legal remedy for citizens victimized by the type of calumny alleged here.
I turn now to the evidence to determine whether it was sufficient to create a jury issue as to whether material information was deliberately withheld by defendant’s agent in her report to the police.
As noted in the majority opinion, the record shows that many computers were stolen from the offices of the defendant during 1989 and 1990. On March 21, 1990, after the thefts which had occurred in the preceding week, Graham, defendant’s director of security, gave a three page letter to the Philadelphia Police Department. She stated that “[ijnformation gathered concerning the latest thefts suggests that Assistant Supervisor Jackey Griffiths [plaintiff] working in connection with a former CIGNA security officer Tony Bolton may be responsible for some if not all of the computer thefts.”
Graham’s report to the police did not mention that, to her knowledge, other employees had unsupervised access to the locked areas where the stolen computers were located; that other employees had access to master keys that unlocked secured areas where computers were kept; and that she had suspected another identified supervisor of having been involved in computer thefts over the previous several months.
I believe the evidence clearly was sufficient to create a jury issue as to whether defendant, through its agent, can be held responsible for initiating the proceedings. The same is true of Graham’s motivation in sending the report.
It is not amiss to note that the police detective who received the report testified that he would have conducted additional investigations before seeking an arrest warrant had he known of the foregoing undisclosed information.
I next consider the other elements of a malicious prosecution action. Plaintiff must show that the proceedings were initiated without probable cause. 1 The withheld information that I have identified was evidence of the absence of probable cause. Furthermore, and of crucial significance is the following concession in defendant’s reply brief:
*475 CIGNA does not argue on this appeal that the evidence did not support the jury’s findings and CIGNA’s argument concerning probable cause relates only to how the court utilized the jury in deciding the issue.
I am satisfied that there was sufficient evidence for a lack of probable cause finding to be made here.
Despite my conclusion that plaintiff’s evidence was sufficient to entitle plaintiff to go to trial on the malicious prosecution claim, I believe that the pertinent instructions and interrogatories at the trial contained legal errors. First, the instruction that defendant had a duty of reasonable investigation before sending the report to the police is contrary to Pennsylvania law and the Restatement. Consequently, the district court placed an unwarranted burden on defendant that could well have improperly influenced the jury.
Second, regardless of the district court’s post-trial ruling finding that there was a lack of probable cause, I believe the interrogatories and instructions directed to this issue by the district court erroneously permitted the jury to decide the lack of probable cause issue.
Both parties rely on our decision in Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 475-76 (3d Cir.1973), as establishing that under Pennsylvania law, where the jury might confuse the issue of guilt and innocence with lack of probable cause, the court must determine the issue of probable cause based on factual findings made by the jury. 2 Thus, it was for the jury to make the relevant factual findings and then for the district court, based thereon, to decide whether the requisite absence of probable cause was shown. In consequence, the district court’s submission of that determination to the jury was error under Thomas. The next requirement of plaintiff’s claim is to show malice. If probable cause is absent, malice may be inferred, presumably by the jury. 3 See Kelley, 544 A.2d at 941 . Other evidence relevant to this issue would also be considered in a retrial. Thus, for me, resolution of the malice issue would be for the fact finder. The final element of plaintiff’s claim is satisfied here because it is undisputed that the proceedings terminated in plaintiff’s favor.
The majority reverses the judgment for plaintiff on the malicious prosecution claim and directs the entry of judgment for the defendant. I believe the trial errors only entitle defendant to a new trial rather than the entry of judgment in its favor. I say this because the plaintiff fulfilled the evi-dentiary requirements to be entitled to go to trial on his claim. Thus, I dissent.
SUR PETITION FOR REHEARING
April 14, 1993.
Before: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and SEITZ, Circuit Judges.
The petition for rehearing filed by the appellee in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the court in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
. "Probable cause has been defined as a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.” Miller v. Pennsylvania R. Co., 371 Pa. 308 , 89 A.2d 809 , 811-12 (1952) (quoting Altman v. Standard Refrigerator Co., 315 Pa. 465 , 173 A. 411, 417 (1934)).
. Given that the parties agree that Thomas states the controlling principle, I do not address the question of whether or not Thomas is still a correct expression of Pennsylvania law. See Kelley, 544 A.2d at 941 (“Usually the existence of probable cause is a questior of law for the court rather than a jury question, but may be submitted to the jury when facts material to the issue of probable cause are in controversy.”).
. It is not clear to me how such an instruction would operate as to this issue if the probable cause determination is made by the court after the fact finder determines the underlying facts.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9007243. Public record. Not legal advice.