Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2009

Kossler v. Crisanti
Precedential or Non-Precedential: Precedential

Docket No. 06-3241




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                                       PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 06-3241


               MICHAEL KOSSLER,

                           Appellant

                           v.

               STEVEN CRISANTI;
                 DONZI’S BAR


   On Appeal from the United States District Court
       for the Western District of Pennsylvania
               (D.C. No. 03-cv-00679)
   District Judge: Honorable Terrence F. McVerry


       Submitted on Initial Rehearing En Banc
                 January 28, 2009

BEFORE: SCIRICA, Chief Judge, SLOVITER, McKEE,
    RENDELL, BARRY, AMBRO, FUENTES,
    SMITH, FISHER, CHAGARES, JORDAN,
   HARDIMAN and ALDISERT, Circuit Judges.
                   (Filed: April 21, 2009)

Timothy P. O'Brien
Suite 1705, Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
       Attorney for Appellant

Bryan Campbell
220 Grant Street, 6th Floor
Pittsburgh, PA 15219
       Attorney for Appellee, Steven Crisanti

Michael Fitzpatrick
850 Washington Avenue
Carnegie, PA 15106
      Attorney for Appellee, Donzi’s Bar

Nancy Winkelman
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
      Attorney for Amicus Appellant, ACLU PA




                          OPINION




                              2
FISHER, Circuit Judge, with whom SCIRICA, Chief Judge,
BARRY, FUENTES, SMITH, CHAGARES, JORDAN and
HARDIMAN, Circuit Judges, join.

       This appeal raises a discrete issue involving a malicious
prosecution claim brought under 42 U.S.C. § 1983 and
Pennsylvania state law: Whether a conviction for disorderly
conduct and a contemporaneous acquittal for aggravated assault
and public intoxication under the relevant Pennsylvania statutes
constitute a favorable termination of the state criminal
proceeding against the plaintiff whose intentional physical
contact against a municipal police officer underlies all three
offenses. For the reasons that follow, under this particular
factual scenario, the plaintiff’s criminal proceeding did not end
in his favor. Accordingly, we will affirm the order of the
District Court granting summary judgment, as well as its order
denying reconsideration.

                                I.

       A.     The Events of the Night of the Fight

        At approximately 11:00 p.m. on November 11, 2001,
thirty-nine-year-old X-ray technician Michael Kossler, his friend
John Trelecki, and one other friend arrived at Donzi’s Bar in
Pittsburgh’s Strip District and socialized, talked, walked around,
and danced. While there, Kossler had a couple of beers but
claims not to have consumed any alcohol prior to arriving at
Donzi’s.



                                3
        Steven Crisanti, a City of Pittsburgh police officer, was
working an off-duty detail, or secondary employment position,1
that night at Donzi’s, where he had worked for about two years.
With the exception of not wearing his official police baseball
cap, Crisanti was dressed in his full police uniform. These
secondary employment officers were paid in cash each night by
Donzi’s parent corporation.

       Kossler and Trelecki left Donzi’s at approximately 2:00
a.m. Upon exiting the bar, the two men walked up a ramp
toward a parking lot located next to Donzi’s entrance. They had
not yet arrived in the parking lot when a fight broke out on the
sidewalk at the top of the ramp. When the fight started, Crisanti
was standing in the parking lot.




       1
        The Pittsburgh Bureau of Police, in Order Number 29-1,
defines secondary employment as “[a]ny employment that is
conditioned on the actual or potential use of law enforcement
powers by the police officer employee.” Order Number 29-1
also states that City of Pittsburgh police officers, “while
engaged in secondary employment, will conduct themselves as
though they were on-duty, and will be subject to all department
rules, regulations, policies and procedures set forth by the
Pittsburgh Bureau of Police.” Additionally, individual officers
must obtain approval for secondary employment from the
Pittsburgh Bureau of Police, and approval is contingent upon the
officer’s “good standing” with the Bureau, as well as other
qualifications.

                               4
        Crisanti and Kossler provide different accounts of what
occurred next. According to Crisanti, when he tried to go to
break up the fight, Kossler grabbed him from behind and twisted
him around. Crisanti responded by pushing Kossler away and
ran toward the fight, but Donzi’s security had already broken it
up before Crisanti reached it. According to Trelecki, he and
Crisanti were friends, and he had tapped Crisanti on the back to
let him know that he was going to help him in breaking up the
fight. Kossler confirms Trelecki’s version of the events by
stating that he was not the one who touched or grabbed Crisanti
because he was standing near the valet stand several feet away
waiting for his car.

       With respect to what happened after the fight ended,
Crisanti states that he approached Kossler to ask why Kossler
had grabbed him and to warn Kossler not to touch a police
officer again. At that point, Kossler became irate, “came at”
Crisanti, and bent his middle finger and forefinger completely
back on Crisanti’s left hand. While Crisanti tried to pull his
fingers free, he grabbed his pepper spray with his other hand and
sprayed Kossler, at which point Kossler released Crisanti’s left
hand.

       Kossler, in turn, states that Crisanti was yelling “in a
loud, screaming, irate voice” that Kossler should not have
touched him. Crisanti also pointed his finger in Kossler’s face
and forced Kossler to back up. Afraid that he would be slapped
or punched, Kossler told Crisanti that he had recently undergone
surgery on his nose and asked Crisanti: “[P]lease, get your hand
out of my face.” When Crisanti touched Kossler’s nose, Kossler
“moved” or “pushed” Crisanti’s hand away in a non-violent

                               5
manner. Then Crisanti sprayed Kossler, and handcuffed and
arrested him.

       B.     Crisanti’s Police Report

       Following the incident, Crisanti completed and filed a
City of Pittsburgh Bureau of Police Offense / Incident Report,
which identified Kossler as the aggressor and recounted:

       “As I tried to break up the fight another w/m
       (later identified as Kossler, Michael) grabbed me
       and pulled me away from the two actors. As the
       security men broke up the fight, I approached
       Kossler, he became very loud yelling ‘fuck you’
       he then started charging at me, I put my arm out
       ordering h[im] to ‘stop,’ but he kept coming and
       grab[bed] a hold of my left hand bending them
       backwards. I tried to pull my hand away, but he
       would not let go. . . . P.O. is going to [hospital]
       for treatment of my left hand. Nature of injury
       was swelling to my knuckles, middle, and ring
       fingers. Actor (Kossler) was inside the bar and
       smelled of alcohol.”

       Kossler was charged with the first-degree felony of
aggravated assault and the summary offenses of disorderly
conduct and public intoxication. Crisanti’s police report listed
“A.A. 2702(a)(2), 5503 Disorderly, Public Intox 5505” to denote
the Pennsylvania statutory provisions covering each of the
offenses charged. On November 21, 2001, Kossler appeared for
a preliminary hearing before a state court magistrate. Although

                               6
only portions of the hearing transcript are contained in the
record, counsel at oral argument stated that it was during this
hearing that Kossler’s aggravated assault charge was reduced
from the first-degree felony under section 2702(a)(2) to the
second-degree felony under section 2702(a)(3).

       C.     Bench Trial Before Pennsylvania Common
              Pleas Judge

       In a non-jury trial before Pennsylvania Court of Common
Pleas Judge Robert E. Colville on July 18, 2002, Kossler was
found not guilty of aggravated assault and public intoxication,
but was found guilty of disorderly conduct and fined one
hundred dollars. Judge Colville explained:

       “There were an awful lot of misperceptions going
       on that evening in the parking lot. Basically,
       there were a lot of people moving around and
       there was a lot of involvement and anger and
       people were drinking, and the consensus of that is
       nobody knows precisely exactly what happened.

       My own personal belief in this, I don’t see any
       misdemeanors or any felonies, it’s not an
       aggravated assault, it isn’t, simply isn’t.

       I’m going to find him guilty of a summary offense
       of DC.

       Basically, you were in the wrong place, wrong
       time and the officer addressed you, when he came

                               7
       over, whether he was mistaken or not, when he’s
       putting his hand up he’s obviously putting himself
       at risk trying to break up what he feels – it may
       well have been your friend who touched him but
       he doesn’t have time seeing which one of you did
       it, he’s going to respond, he just is, and he’s going
       to be upset, whether appropriate or not, having
       been in his uniform, and having done this I
       understand why he did what he did, he was upset,
       that’s why he came to you, he doesn’t recognize
       you, that’s another fact, but at this point you have
       to respond, not by taking – hitting his hand away,
       but it’s obvious he’s put out, he’s the only one
       there that hasn’t been drinking all night, and he’s
       the only one that has to be responsible.

       I think he acted reasonable; I think it got out of
       hand, but the charges don’t fit the crime. I mean,
       you put yourself in a situation whereby striking
       the officer’s hand away from him, that alone I’m
       going to find you summary [sic] of disorderly
       conduct. I’m going to charge you a hundred
       bucks.”

       D.     Procedural History in Federal District Court

       On May 13, 2003, Kossler filed this lawsuit against
Crisanti and Donzi’s for excessive force, false arrest, and
malicious prosecution pursuant to 42 U.S.C. § 1983. The
complaint also stated Pennsylvania common law claims against
the defendants for assault and battery, false arrest, and malicious

                                8
prosecution. There was also a § 1983 failure to train claim
against Donzi’s.

        Upon completion of discovery, on August 1, 2005, the
District Court granted partial summary judgment in favor of
Donzi’s on the malicious prosecution and false arrest claims
brought under both federal and state law, as well as on the
failure to train claim. It denied summary judgment on the other
claims, namely the excessive force and assault and battery
claims.

       On August 23, 2005, the District Court denied Kossler’s
motion for reconsideration in a separate memorandum opinion.
We then denied Kossler’s motion for allowance of an immediate
interlocutory appeal. Before the remaining counts went to trial,
on June 2, 2006, the parties stipulated to the dismissal of those
counts with prejudice, and the District Court entered an order on
June 5, 2006, reflecting this stipulation. Kossler timely appealed
what he believed to be the District Court’s final judgment, and
raised arguments in his merits briefs related only to his
malicious prosecution claims.

        Following oral argument before a panel of this Court, we
determined there was a defect in jurisdiction because of the lack
of a final judgment. We informed the parties that the District
Court’s June 2006 order granted the parties’ stipulation only as
to the excessive force and assault and battery claims; Kossler’s
false arrest claim against Crisanti remained open because it was
not disposed of by any of the District Court’s orders; and the
actual “separate final judgment” pursuant to a November 2005
order of the District Court had not been entered. Because these

                                9
jurisdictional defects were capable of quick resolution, we
instructed the parties to return to the District Court to remedy
them. The parties stipulated to an entry of judgment on the
claims that remained open and, on August 13, 2008, the District
Court entered final judgment as to those claims. In light of the
District Court’s orders, Kossler’s notice of appeal ripened, and
thus a subsequent notice of appeal was not required.

                                II.

        The District Court had jurisdiction over Kossler’s federal
law claims pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and
over his state law claims pursuant to 28 U.S.C. § 1367(a). As a
result of the steps taken by the parties to cure the jurisdictional
defects, we now have jurisdiction pursuant to 28 U.S.C. § 1291.
“Our standard of review applicable to an order granting
summary judgment is plenary.” Nasir v. Morgan, 

,
368 (3d Cir. 2003). We may affirm the order when the moving
party is entitled to judgment as a matter of law, with the facts
viewed in the light most favorable to the non-moving party.
Nicini v. Morra, 

, 805-06 (3d Cir. 2000) (en banc).
Further, “[w]e may affirm the District Court on any grounds
supported by the record.” 

                               III.

       A.     No Favorable Termination Under the Factual
              Circumstances of This Case

        “To prove malicious prosecution under [§] 1983, a
plaintiff must show that:

                                10
       (1)    the defendants        initiated   a     criminal
              proceeding;

       (2)    the criminal proceeding               ended   in
              plaintiff’s favor;

       (3)    the proceeding was initiated without
              probable cause;

       (4)    the defendants acted maliciously or for a
              purpose other than bringing the plaintiff to
              justice; and

       (5)    the plaintiff suffered deprivation of liberty
              consistent with the concept of seizure as a
              consequence of a legal proceeding.”

Estate of Smith v. Marasco, 

, 521 (3d Cir. 2003).2
For Kossler to prevail, he needed to satisfy each of the elements
of malicious prosecution, and thus the District Court’s ruling
that Kossler failed to establish the second element – the
favorable termination of his underlying criminal proceeding –
was fatal to his claims. Our agreement with the District Court’s




       2
        The first four elements are the same under Pennsylvania
law. See Merkle v. Upper Dublin Sch. Dist., 

, 791
(3d Cir. 2000).

                               11
ruling on this element suffices to affirm the District Court’s
order in toto.3

       The purpose of the favorable termination requirement is
to avoid “the possibility of the claimant [sic] succeeding in the
tort action after having been convicted in the underlying
criminal prosecution, in contravention of a strong judicial policy
against the creation of two conflicting resolutions arising out of
the same or identical transaction.” Heck v. Humphrey, 

, 484 (1994) (alteration in original) (internal quotation marks
omitted). Consistent with this purpose, we have held that a prior
criminal case must have been disposed of in a way that indicates
the innocence of the accused in order to satisfy the favorable
termination element.4 Donahue v. Gavin, 

, 383 (3d


       3
         Judge Aldisert discusses a difference in the
interpretation of the first element – whether the defendants
initiated a criminal proceeding – in the context of state
malicious prosecution claims versus federal malicious
prosecution claims. Because we conclude that Kossler failed to
satisfy the favorable termination element, we need not reach the
issue discussed by Judge Aldisert as to whether, in a state
malicious prosecution claim under Pennsylvania law, the first
element can be established on the basis of respondeat superior
liability.
       4
        This suffices to respond to Judge Aldisert’s view that a
summary offense conviction does not “carr[y] a presumption
that the underlying events leading to the conviction actually
occurred,” Phoenixville Area Sch. Dist. v. Unemployment Comp.

                               12
Cir. 2002); see also Gilles v. Davis, 

, 211 (3d Cir.
2005) (holding that expungement under the Accelerated
Rehabilitative Disposition program was not a favorable
termination because the program “imposes several burdens upon
the criminal defendant not consistent with innocence”).
Accordingly, a malicious prosecution claim cannot be predicated
on an underlying criminal proceeding which terminated in a
manner not indicative of the innocence of the accused. A
plaintiff may attempt to indicate his innocence by demonstrating




Bd., 

, 892 (Pa. Commw. Ct. 1991), and therefore
a malicious prosecution claim based on the acquittal of a felony
can proceed. Our reading of Pennsylvania caselaw suggests that
the “no presumption” proposition is limited to situations in
which a private party attempts to use a defendant’s summary
offense conviction to establish subsequent civil liability against
him. See Hurtt v. Stirone, 

, 627 (Pa. 1965)
(reasoning that “in cases involving the record of conviction of
relatively minor matters . . . it is not obvious that the defendant
has taken advantage of his day in court, and it would be
unreasonable and unrealistic to say he waived that right as to a
matter (civil liability), which was probably not within
contemplation at the time of conviction”) (cited in 

). Regardless, whatever the conviction of a
summary offense shows or does not show, it indubitably does
not indicate “the innocence of the accused.” This is especially
true in light of Judge Colville’s detailed factual findings, which
concluded, inter alia, that Kossler was guilty of “striking the
officer’s hand away from him.” See 

Part I.C.

                                13
that his prior criminal proceeding terminated in one of the
following ways:

      “(a)    a discharge by a magistrate              at   a
              preliminary hearing, or

        (b)   the refusal of a grand jury to indict, or

        (c)   the   formal      abandonment of the
              proceedings by the public prosecutor, or

        (d)   the quash ing           of   an indictm ent or
              information, or

        (e)   an acquittal, or

        (f)   a final order in favor of the accused by a
              trial or appellate court.”

(internal quotation marks and
emphasis omitted); accord Haefner v. Burkey, 

,
521 (Pa. 1993). In the present case, Kossler relies upon his
acquittal as the only basis for arguing that he obtained a
favorable termination.

       Kossler’s argument is problematic because his acquittal
is accompanied by a contemporaneous conviction at the same
proceeding. We are thus faced with a question of first
impression in this Circuit: Whether acquittal on at least one
criminal charge constitutes “favorable termination” for the
purpose of a subsequent malicious prosecution claim, when the

                                 14
charge arose out of the same act for which the plaintiff was
convicted on a different charge during the same criminal
prosecution. On these facts, we conclude that this question
should be answered in the negative. As an initial observation,
we note that various authorities refer to the favorable
termination of a “proceeding,” not merely a “charge” or
“offense.” See 

; 

; W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 119 (5th ed. 1984); 52 Am. Jur. 2d Malicious
Prosecution § 32 (Supp. 2007) (“In the context of a malicious
prosecution action, to determine whether a party has received a
favorable termination in the underlying case, the court considers
the judgment as a whole in the prior action; . . . the termination
must reflect the merits of the action and the plaintiff’s innocence
of the misconduct alleged in the lawsuit.” (emphasis added)).
Therefore, the favorable termination of some but not all
individual charges does not necessarily establish the favorable
termination of the criminal proceeding as a whole.

       Rather we conclude that, upon examination of the entire
criminal proceeding, the judgment must indicate the plaintiff’s
innocence of the alleged misconduct underlying the offenses
charged. In urging us not to hold that “the favorable termination
element . . . categorically requires the plaintiff to show that all
of the criminal charges were decided in his favor,” Kossler
himself argues (correctly) that the result “depend[s] on the
particular circumstances.” The argument goes both ways: The
favorable termination element is not categorically satisfied
whenever the plaintiff is acquitted of just one of several charges
in the same proceeding. When the circumstances – both the
offenses as stated in the statute and the underlying facts of the

                                15
case – indicate that the judgment as a whole does not reflect the
plaintiff’s innocence, then the plaintiff fails to establish the
favorable termination element.

        Beginning with the first part of this inquiry, an analysis
of the offenses charged reveals that under Pennsylvania law, a
person is guilty of the first-degree felony of aggravated assault
if he “attempts to cause or intentionally, knowingly or recklessly
causes serious bodily injury to [a police officer] while in the
performance of duty.” 18 Pa. Cons. Stat. Ann. § 2702(a)(2). A
person is guilty of the second-degree felony of aggravated
assault if he “attempts to cause or intentionally or knowingly
causes bodily injury to [a police officer] in the performance of
duty.” 

A person is guilty of the summary
offense of disorderly conduct if, “with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he:

       (1)    engages in fighting or threatening, or in
              violent or tumultuous behavior;

       (2)    makes unreasonable noise;

       (3)    uses obscene language, or makes an
              obscene gesture; or

       (4)    creates a hazardous or physically offensive
              condition by any act which serves no
              legitimate purpose of the actor.”



                               16


Finally, a person is guilty of the summary offense
of public intoxication “if he appears in any public place
manifestly under the influence of alcohol or a controlled
substance . . . to the degree that he may endanger himself or
other persons or property, or annoy persons in his vicinity.” 

Although the summary offenses are not lesser-included
offenses of the felonies, nor do they share common elements
with them, the analysis does not end by merely examining the
relevant criminal statutes on their face, but rather requires an
inquiry into the underlying conduct that the charges sought to
punish.5

       Proceeding to the second part of the inquiry, we conclude
the District Court correctly found that “the charge of aggravated
assault was predicated on the same factual basis as the charge of
disorderly conduct, i.e., the altercation between Kossler and
Crisanti. . . . Kossler was clearly guilty of some wrongdoing in
the altercation notwithstanding the fact that Judge Colville
found that his wrongdoing did not amount to aggravated


       5
        While we are not faced with lesser-included offenses
here, overcharging in that context does not usually result in a
subsequent malicious prosecution action. See Tracey L. Meares,
Rewards for Good Behavior: Influencing Prosecutorial
Discretion and Conduct with Financial Incentives, 64 Fordham
L. Rev. 851, 868-69 (1995). As we will explain, the offenses
here, while not overlapping, do aim at punishing the same
underlying misconduct. Therefore, unlike amicus, we do not
foresee the rather benign overcharging in this case leading to a
slippery slope of more abusive overcharging in future cases.

                               17
assault.” Indeed, the misconduct giving rise to the three
offenses with which Kossler was charged occurred in the
moment after Donzi’s security had broken up the preceding
fight, when Kossler intentionally made physical contact with
Crisanti’s left hand with enough force that Crisanti sought
medical treatment afterward. As already noted, Judge Colville
found Kossler guilty of striking Crisanti’s hand away during that
moment, and Kossler himself admitted to having consumed
alcohol at Donzi’s, so these are not disputed issues of fact.
Further, Kossler does not point to any separate conduct (such as
making unreasonable noise or using obscene language, see 18
Pa. Cons. Stat. Ann. § 5503(a)) for which he was charged.

        On this indivisible factual basis, Judge Colville found
Kossler guilty of disorderly conduct and imposed a fine upon
him. These particular circumstances indicate that the judgment
as a whole that resulted from the bench trial, which resolved all
the charges aimed at punishing Kossler’s role in the altercation,
did not reflect Kossler’s innocence on the night of the fight. As
a result, Kossler’s acquittal on the aggravated assault and public
intoxication charges cannot be divorced from his simultaneous
conviction for disorderly conduct when all three charges arose
from the same course of conduct. Therefore, we must conclude
that the state criminal proceeding – the entirety of which
resolved Kossler’s guilt and punishment for intentionally
making physical contact with a city police officer after
consuming alcohol – did not end in Kossler’s favor, even when
we view the facts in the light most favorable to him.

      Amicus argues that there is no conflict between Kossler’s
conviction for disorderly conduct and a civil judgment in his

                               18
favor for malicious prosecution on the charges of which he was
acquitted. We disagree. As already explained, Kossler’s
conviction demonstrates his guilt for striking Crisanti, so a
finding in federal court that the defendants maliciously
prosecuted Kossler for the same conduct underlying the
aggravated assault and public intoxication charges does indeed
conflict with Kossler’s state court conviction. Finality, comity,
and federalism all counsel a collateral federal court to stay its
hand before undoing the original state court’s proceeding. See,
e.g., 

; Osborne v. Dist. Attorney’s
Office, 

, 1054-55 (9th Cir. 2005); Olsen v.
Correiro, 

, 69-70 (1st Cir. 1999). Here, if we were
to slap down Judge Colville’s “mixed” verdict, we would risk
placing Pennsylvania citizens in the worse position of having
state court judges reach guilty verdicts on the more serious
charges as well, when the facts support conviction, rather than
exercise leniency, in part to avoid a federal court’s later finding
of favorable termination. Hence, the result in this case conforms
with the precedent and the purpose of the favorable termination
element of malicious prosecution.6


       6
        In Heck, the Supreme Court held that in any action under
§ 1983 in which “a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence . . .
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been

. However, if “the plaintiff’s
action, even if successful, will not demonstrate the invalidity of
any outstanding criminal judgment against the plaintiff,” the
action may proceed. 

not need to apply Heck’s test in

                                19
        We acknowledge that caselaw in two other United States
Courts of Appeals appears to favor Kossler’s position as a
general matter because those courts allowed malicious
prosecution claims to proceed despite the plaintiffs’ convictions
on some but not all of the charges; however, closer examination
reveals the same two-part analysis that we employ here being
utilized by these other courts as well. For example, in Janetka
v. Dabe, 

(2d Cir. 1989), the Court of Appeals for
the Second Circuit held that a plaintiff whom a jury found not
guilty of resisting arrest, but guilty of disorderly conduct,
nonetheless could bring a common law malicious prosecution
claim. The court reasoned:

       “Allowing police officers to add unwarranted
       misdemeanor charges to valid violation charges
       may force an accused to go to trial on the
       misdemeanor when he otherwise would plead to
       the violation. If the dispositive factor is whether,
       as the district court held, the charge resulting in
       acquittal ‘arose out of events that occurred on the
       same occasion’ as a charge resulting in
       conviction, then police officers could add
       unsupported serious charges to legitimate minor
       charges with impunity.”




the present case because when a malicious prosecution claim is
brought under § 1983, it is barred simply for lack of favorable
termination.

                               20


We are not bound by Janetka and disagree with it
insofar as it rejects an analysis that considers whether the charge
resulting in acquittal arises out of the same conduct as the
charge resulting in conviction.

        In any event, we do not read Janetka that broadly because
“Janetka was charged with two distinct offenses involving
distinct allegations. The disorderly conduct charge involved
Janetka’s actions directed at [an] unidentified hispanic man; the
resisting arrest charge involved his actions directed at the
officers’ attempts to arrest him.” 

though the
charges in Janetka arose out of events that occurred on the same
occasion, they did not arise out of the same criminal conduct,
and therefore, as more narrowly interpreted, Janetka does not
conflict with our analysis here. The distinction between charges
arising from the same occasion and charges arising from the
same conduct is also legally relevant because, to use concrete
examples, the fact that Janetka yelled and pointed at a Hispanic
man has no bearing on whether he struggled against the officers
to resist arrest. By contrast, here, the fact that Kossler
intentionally struck Crisanti has a direct bearing on whether he
assaulted the same Crisanti. Without explicitly stating it did so,
the Janetka court engaged in the same two-part inquiry that
guides our analysis in the present case when it noted that the
offenses not only contained distinct statutory requirements but
also aimed to punish two different sets of conduct (even if the
charges can be traced to events that occurred on one occasion).
Janetka is therefore distinguishable.

       Similarly, in Uboh v. Reno, 

(11th Cir.
1998), the Court of Appeals for the Eleventh Circuit held in a

                                21
Bivens action for malicious prosecution that the government’s
dismissal of charges for drug importation constituted favorable
termination despite the plaintiff’s earlier conviction for credit
card fraud on charges that originated in the same indictment.
The court determined:

       “The fact that the allegations concerning drug
       trafficking were included alongside other charges
       for which [the plaintiff] ultimately was convicted
       does not alter our conclusion that the prosecutor’s
       decision to dismiss the drug counts constituted
       favorable termination, particularly under the facts
       of this case. . . . In sum, we conclude that the
       dismissal of some charges of the indictment by
       the prosecutor – notwithstanding [the plaintiff’s]
       earlier conviction on other charges set forth in the
       indictment – constituted termination in favor of
       the accused . . . .”

(citing 

).

       In Uboh, the charges which were dismissed by the
prosecutor and which formed the basis of the plaintiff’s
malicious prosecution action (drug trafficking) aimed to punish
separate conduct from those charges for which the plaintiff was
convicted (credit card fraud). The significance of the fact that
the offenses were distinct was not lost on the court, which stated
as much and also noted:

       “Each of these offenses contains entirely different
       elements, neither charge is a lesser-included

                               22
       offense of the other, and the charges were not
       tried as part of the same proceeding; in this
       context, it is reasonable to interpret the
       prosecutor’s decision to not pursue the drug-
       related charges as consistent with . . . a finding of
       innocence on these specific counts of the
       indictment.”

Thus the court in Uboh engaged in an analysis that
parallels our approach by considering the conduct which the
charged offenses aimed to punish. Only after the Uboh court
determined that the charges for which the plaintiff was
convicted and the charges which were dismissed aimed to
punish separate conduct did it allow the malicious prosecution
action premised on the latter charges to proceed.

        We read both the Janetka and Uboh courts’ focus on the
differences between the offenses charged and the conduct
leading to the charges as implying that, under different facts,
when the offenses charged aim to punish the same misconduct,
a simultaneous acquittal and conviction on related charges may
not amount to favorable termination. The court in Uboh hinted
at its agreement with that inference:

       “Our consideration of these factors is not intended
       to convey any determination as to whether, given
       a different set of circumstances, dismissal of
       charges that do arise out of the same set of
       circumstances as the charges for which a
       defendant was convicted might constitute
       termination in favor of the accused. We only note

                                23
       that the unique combination of factors present in
       this particular case further bolsters our conclusion
       that voluntary dismissal of charges by the
       prosecutor is a favorable termination for purposes
       of malicious 

n.8. Here we face a case in which the unique
combination of factors is virtually the exact opposite of Uboh’s
and therefore points to the opposite conclusion. As the Uboh
court did, we leave for another day the establishment of
universal contours of when a criminal proceeding which
includes both an acquittal (or dismissal) and a conviction
constitutes a termination in the plaintiff’s favor. The facts in the
case at hand, however, fall on the no-favorable-termination end
of the spectrum. To reiterate, we do not hold that there is never
favorable termination unless a plaintiff is acquitted of all
charges. It is precisely on the facts of this case, in which the
charges aim to punish one course of conduct, that we cannot
conclude there was favorable termination.

       B.      The Inapplicability of Cases in Which All
               Charges Were Dismissed and Courts Analyzed
               Whether a Malicious Prosecution Claim Could
               Proceed Under the Probable Cause Element

        In response to the reasoning set forth above, Kossler cites
a case that on its face has no applicability to the one at hand:
Johnson v. Knorr, 

(3d Cir. 2007). In Johnson, the
plaintiff, then a parolee, was involved in an altercation with an
agent of the Pennsylvania Board of Probation and Parole. 

As a result of the altercation, the plaintiff was charged with

                                24
simple assault, aggravated assault, making terroristic threats,
and reckless endangerment. Subsequently and importantly, a
state court dismissed all of the charges, so – unlike the present
case – there was no question that the plaintiff had satisfied the
favorable termination requirement. 

then initiated a § 1983 and state law action
against several state actors on theories of false arrest, false
imprisonment, and assault and battery. The district court
granted summary judgment to the defendants, holding, inter alia,
that there was probable cause to arrest the plaintiff for making
terroristic threats, though it did not make a probable cause
determination on the other bases for the plaintiff’s arrest. 

plaintiff’s first appeal, we upheld the dismissal of his
original claims and expressly upheld the district court’s finding
with respect to probable cause to arrest for making terroristic
threats. We nevertheless remanded to allow the plaintiff to
assert claims for malicious prosecution, which the district court
had not allowed him to do. 

80.

        On remand, the plaintiff amended his complaint to add a
claim of malicious prosecution under § 1983 and state law. 

The defendants again moved for summary judgment,
which the district court again granted, this time on the basis that,
because we had upheld the finding of probable cause for the
terroristic threats charge, the plaintiff was barred from asserting
a malicious prosecution claim on any of the criminal charges.

The plaintiff appealed a second time.

       In the second appeal we framed the issue as “whether the
finding that the agents had probable cause to arrest [the

                                25
plaintiff] on a charge of making terroristic threats without
findings that they also had probable cause for his arrest on the
other charges made against him defeats [the plaintiff’s] cause of
action for malicious prosecution on the remaining charges.” 

question we answered in that case was whether the
finding of probable cause on one charge prevented the claim for
malicious prosecution with respect to the other charges, not
whether the plaintiff’s criminal proceeding terminated in his
favor. Because all of the charges had been dismissed, there was
no dispute that the proceeding ended favorably and thus Johnson
involved an entirely different analysis than the one at issue
here.7

       Yet Kossler argues that we should analyze the favorable
termination element exactly as we analyzed the probable cause
element in Johnson. We do not agree with that approach. The
favorable termination element and the probable cause element
are distinct requirements that a malicious prosecution plaintiff
must satisfy to prevail and therefore should not be conflated.
Although Johnson employed a charge-by-charge analysis in the
context of the probable cause element, it does not undermine our
conclusion that the favorable termination element properly
focuses on the proceeding as a whole. Because the favorable
termination element was satisfied in Johnson, we were not faced
with the concern that a ruling for the malicious prosecution


       7
        Similarly, Posr v. Doherty, 

(2d Cir. 1991),
discussed favorably by Judge Aldisert, is not on point because
“all charges against [the plaintiff] were dismissed on the motion
of the District Attorney.” 

                               26
plaintiff would conflict with the results of a state court decision.
Thus, in Johnson, we permitted a charge-by-charge analysis on
its facts in order to assuage the fear that police officers tacked
on unwarranted charges. In this specific context, we allowed the
plaintiff as many opportunities to show an absence of probable
cause as there were charges.

       By contrast, watering down the favorable termination
element to protect against tacking on additional charges is
particularly inappropriate because it ignores the fact that a court,
not simply prosecutors and their agents, has essentially endorsed
the criminal proceeding. This would interfere with the “strong
judicial policy against the creation of two conflicting resolutions
arising out of the same or identical transaction.” 

. Unlike the favorable termination element, the probable
cause element does not have the effect of undoing another
court’s judgment, and therefore loosening the plaintiff’s burden
on that element does not carry with it the same undesirable
ramifications. In short, these are two different elements, our
caselaw has so held, and thus we are cautious not to
categorically apply decisions covering one element to an
analysis covering another.

       Although we have already explained why our analysis of
the favorable termination element need not mirror our approach
to the probable cause element, we nonetheless note the
considerable tension that exists between our treatment of the
probable cause element in Johnson and our treatment of that
element in the earlier case of Wright v. City of Philadelphia, 

(3d Cir. 2005). In Wright, the plaintiff faced charges
of burglary, theft, criminal trespass, and criminal mischief for

                                27
breaking into a house in which she alleged that she was sexually
assaulted. 

City police officers conducted two
separate investigations concerning the break-in and the sexual
assault. 

the charges brought against the plaintiff were
eventually dismissed, so the favorable termination element was
not at issue in this case. After concluding that there was
probable cause to arrest and prosecute the plaintiff for criminal
trespass based on the information available to the officers at the
time of the arrest, we held: “Even though our discussion of
probable cause was limited to the criminal trespass claim, it
disposes of her malicious prosecution claims with respect to all
of the charges brought against her, including the burglary.” 

Thus we determined that the existence of probable cause
for the arrest – stemming from the existence of probable cause
for at least one charge – precluded the plaintiff from proceeding
with her malicious prosecution claim with respect to any of the
charges brought against her.

       Despite our clear statement in Johnson that the
precedential status of Wright is not 

n.9, we recognize that the holdings of these two cases are
difficult to reconcile. Notwithstanding this difficulty, Wright
and Johnson both illustrate that the analysis of malicious
prosecution claims involving multiple charges is a fact-intensive
one.    Requiring a fact-based inquiry for the favorable
termination element therefore conforms with the use of a fact-
based inquiry revealed by those two precedents, even though
Johnson and Wright are not directly applicable to the instant
case. Beyond observing that the underlying facts drive the
analysis of each malicious prosecution case – regardless of the
element at issue – we do not rely on the approach taken in either

                               28
Johnson or Wright, as those cases were analyzed under the
probable cause element of malicious prosecution whereas this
case was analyzed under the favorable termination element.8

        We reiterate that district courts need not reach the
probable cause element unless they first make a finding of
favorable termination after examining whether the proceeding
as a whole indicates the innocence of the accused with respect
to the conduct underlying all of the charges. Only if the
favorable termination element is satisfied under this test must a
district court engage in an analysis of the probable cause
element and wrestle with the approaches set forth in Johnson
and Wright to determine which provides the more appropriate
framework to apply to a given set of facts. Addressing the
malicious prosecution elements in this order may alleviate some
of the difficulty district courts would otherwise encounter if they
began their analysis with the probable cause element; however,
we do not intend to suggest that the favorable termination
element should always be addressed prior to the probable cause
element. Because the probable cause element goes to the
foundation of whether there were reasonable grounds for the


       8
         Even assuming arguendo that Wright and Johnson are
in unavoidable conflict, “[t]his Circuit has long held that if its
cases conflict, the earlier is the controlling authority and the
latter is ineffective as precedents.” Pardini v. Allegheny
Intermediate Unit, 

, 426 (3d Cir. 2008).
Accordingly, if one of those two cases must control for purposes
of analyzing the probable cause element, it would be Wright, not
Johnson, that controls.

                                29
initiation of the criminal proceeding, district courts may find it
preferable to begin their analysis of a malicious prosecution
claim with this element.

        In the present case, the District Court chose to focus on
Kossler’s inability to demonstrate that his state criminal
proceeding terminated favorably, but had the District Court
instead focused its analysis on whether probable cause existed,
it would have reached the same ultimate conclusion that
Kossler’s malicious prosecution claim could not proceed. The
record reflects that Crisanti had probable cause to believe
Kossler committed the offenses charged based on Crisanti’s
reasonable perception of the facts and circumstances
surrounding Kossler’s conduct in the parking lot outside of
Donzi’s on the night of the altercation. See Beck v. Ohio, 

, 91 (1964) (stating that probable cause exists for an
arrest if “at the moment the arrest was made . . . the facts and
circumstances within [the officers’] knowledge . . . were
sufficient to warrant a prudent man in believing that [the
suspect] had committed or was committing an offense”
(citations omitted)); Wilson v. Russo, 

, 789 (3d Cir.
2000) (explaining that probable cause to arrest “exists if there is
a ‘fair probability’ that the person committed the crime at
issue”). In particular, the fact that Kossler intentionally made
physical contact with Crisanti after exiting a bar provided
probable cause for Cristanti to believe that the charged offenses
had been committed.9 Therefore, had the District Court


       9
       In addition, Judge Colville’s findings suggest that
probable cause existed. Specifically, Judge Colville found that

                                30
analyzed Kossler’s claims under the third element of malicious
prosecution, it would have found that the existence of probable
cause precluded his action from proceeding. In sum, starting
with either the favorable termination element or the probable
cause element would have produced the same result that we
affirm here today.

                               IV.

       Because Kossler’s conviction for disorderly conduct is
not indicative of his innocence of the misconduct which all three
charges aimed to punish, we hold that his prior criminal
proceeding did not terminate favorably to him and,
consequently, his malicious prosecution action necessarily fails.
Therefore, we will affirm the two orders of the District Court.

ALDISERT, Circuit Judge, with whom Circuit Judges
SLOVITER, MCKEE and AMBRO join, dissenting in part and
concurring in part.

      Michael Kossler appeals from an order of summary
judgment, entered by the District Court for the Western District
of Pennsylvania, dismissing his state and federal malicious


Crisanti’s actions were reasonable because “there were a lot of
people moving around and there was a lot of involvement and
anger and people were drinking”; Crisanti was the only one who
“ha[d]n’t been drinking all night” and he “obviously put himself
at risk” trying to control a volatile situation; and Kossler did in
fact intentionally “strik[e] the officer’s hand away from him.”

                                31
prosecution claims against Donzi’s Bar and Police Officer
Steven Crisanti. For the reasons that follow, I would affirm in
part and reverse in part.

                                I.

        To prove an action for malicious prosecution brought
under 42 U.S.C. § 1983 or under Pennsylvania law, a plaintiff
must establish, inter alia, that the “criminal proceeding ended in
plaintiff’s favor.” Estate of Smith v. Marasco, 

,
521 (3d Cir. 2003); Merkle v. Upper Dublin Sch. Dist., 

, 791 (3d Cir. 2000). Within this Court is a good faith
disagreement as to whether Kossler has satisfied this element.
The majority concludes that because Kossler was found guilty
of disorderly conduct, it cannot be said that he met the
“favorable termination” requirement of Donahue v. Gavin, 

, 383 (3d Cir. 2002). I disagree. My conclusion is
premised on an understanding of the jurisprudential anatomy of
Pennsylvania’s criminal offenses in general, and the summary
offense of disorderly conduct in particular. In light of the
substantial differences between a felony and a summary
offense, I would not allow conviction of a summary offense to
impede a malicious prosecution claim premised on acquittal of
a felony, even where the two charges arose from the same
incident.10



       10
        We note that under Pennsylvania law the summary
offense of disorderly conduct is not a “lesser included” offense
of aggravated assault.

                               32
        In our current struggle to determine the proper rule of
law, we must remain true to our polestar that a rule of law is a
“detailed legal consequence [attached] to a definite, detailed
state of facts.” Roscoe Pound, Hierarchy of Sources and Forms
in Different Systems of Law, 7 Tul. L. Rev. 475, 482 (1933). In
short-sleeves language this means that this case is fact-specific,
limiting the issue to situations where a defendant is acquitted of
a felony but convicted of the summary offense of disorderly
conduct.

        It is beyond cavil that the criminal charges of disorderly
conduct and aggravated assault emanated from the same event
– an altercation that took place in a parking lot near a Pittsburgh
bar. On appeal, Kossler challenges only the dismissal of his
malicious prosecution claims premised on aggravated assault.
Reduced to its essence, then, the issue we must decide
pertaining to the favorable termination element is very limited:
May we conclude that the criminal proceeding against Kossler
ended in his favor where he was acquitted of aggravated assault
under 18 Pa. Cons. Stat. Ann. § 2702, a felony, but was
convicted of disorderly conduct for “engag[ing] in fighting,”




                                33
under 18 Pa. Cons. Stat Ann. § 5503, a summary offense? 11 My
answer is yes. My reasons follow.

                               A.

       Conviction of a summary offense does not “carr[y] a
presumption that the underlying events leading to the conviction
actually occurred,” Phoenixville Area Sch. Dist. v.
Unemployment Comp. Bd., 

, 892 (Pa. Commw. Ct.
1991); does not entitle a defendant to a jury trial, Rule 454(B),
Pennsylvania Rules of Criminal Procedure; is inadmissible in a
subsequent civil proceeding, Folino v. Young, 

,
173-174 (Pa. 1990); and, in the case of disorderly conduct or
disturbing the peace, does not count toward a criminal history
calculation under the United States Sentencing Guidelines,
U.S.S.G. § 4A1.2(c).12 Summary offenses are usually punished


       11
          Under § 5503, the offense of disorderly conduct may
also be a misdemeanor of the third degree “if the intent of the
actor is to cause substantial harm or serious inconvenience, or
if he persists in disorderly conduct after reasonable warning or
request to desist.” 18 Pa. Cons. Stat. Ann. § 5503(b). Here,
however, Kossler was convicted only of the summary offense of
disorderly conduct.
       12
         The majority notes in response to my examination of the
characteristics of summary offenses that the element of
favorable termination requires disposition “‘in a way that
indicates the innocence of the accused.’” See Majority Op.
Section III-A (quoting 

). I do not mean

                               34
“only by fine” and “justifiably should be summarily handled.”
Commonwealth v. Koch, 

, 1054 (Pa. Super. Ct.
1981). By contrast, aggravated assault is a felony for which a
term of imprisonment of more than ten years may be authorized.
18 Pa. Cons. Stat. Ann. §§ 2702(b), 106(b).

                              B.

       I add that my views on the consequences of acquittal of
a felony and conviction of a summary offense are admittedly at
odds with the majority’s thoughtful analysis of the relationship
between these two offenses. See Majority Op. Section III-A
(“[A] finding in federal court that the defendants maliciously
prosecuted Kossler for the same conduct underlying the
aggravated assault . . . charge[] does indeed conflict with
Kossler’s state court conviction [of the summary offense of
disorderly conduct].”). Unlike my colleagues of the majority, I
am impressed by and accept the reasoning of cases from the
United States Court of Appeals for the Second Circuit.

       In Janetka v. Dabe, 

(2d Cir. 1989), the
court was faced with a scenario similar to ours – an appeal of a


to suggest that conviction of a summary offense “indicates the
innocence of the accused.” My suggestion is more modest:
acquittal of a felony offense – which standing alone would be
considered favorable termination – should not be rendered
unfavorable merely because of a conviction of a summary
offense, which does not carry the presumption that the
underlying events leading to the conviction actually occurred.

                              35
denial of a malicious prosecution claim premised upon an
acquittal of resisting arrest and a conviction of disorderly
conduct. As a prelude to its discussion of the merits, the general
comments of the court deserve our attention:

       Favorable termination is not so much an element
       of a malicious prosecution claim as it is a
       prerequisite to commencement of the action. See
       Munoz v. City of New York, 

, 10,
       

, 529, 

, 649
       (1966) (“It is a kind of pre-condition to the later
       action, the sine qua non . . . .”); see also W.
       Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser
       and Keeton On Torts § 119, at 874 (5th ed. 1984).
       The requirement of favorable termination ensures
       against inconsistent judgments. It also permits a
       finding that probable cause was lacking.

(internal citations omitted).     I associate myself
completely with Janetka’s reasoning:

       To hold that an acquittal does not constitute a
       favorable termination would be particularly
       inappropriate in this case, where the charge for
       which [the appellant] was acquitted was more
       serious than the one for which he was convicted.
       Resisting arrest is a “misdemeanor,” see
       N.Y.Penal Law § 205.30 (McKinney 1988),
       punishable by a maximum prison sentence of one
       year, see N.Y.Penal Law § 10.00(4) (McKinney
       1987). Disorderly conduct is a “violation,” see

                               36
       N.Y.Penal Law § 240.20 (McKinney 1989),
       punishable by a maximum prison sentence of 15
       days, see N.Y.Penal Law § 10.00(3). Allowing
       police officers to add unwarranted misdemeanor
       charges to valid violation charges may force an
       accused to go to trial on the misdemeanor when
       he otherwise would plead to the violation. If the
       dispositive factor is whether, as the district court
       held, the charge resulting in acquittal “arose out
       of events that occurred on the same occasion” as
       a charge resulting in conviction, then police
       officers could add unsupported serious charges to
       legitimate minor charges with impunity.

       Similarly, in Posr v. Doherty, 

(2d Cir. 1991),
the Court of Appeals for the Second Circuit held that “we
should not allow a finding of probable cause on [the charge of
disorderly conduct] to foreclose a malicious prosecution cause
of action on charges requiring different, and more culpable,
behavior.” 

Although Posr addressed the probable
cause element of malicious prosecution rather than the favorable
termination element at issue here, the stated rationale is
significant:

       If the rule were [otherwise], an officer with
       probable cause as to a lesser offense could tack on
       more serious, unfounded charges which would
       support a high bail or lengthy detention, knowing
       that the probable cause on the lesser offense

                               37
        would insulate him from liability for malicious
        prosecution on the other offenses.

Id.13

       Where there has been acquittal of a felony and conviction
of a summary offense of disorderly conduct arising out of the
same event, this constitutes the necessary favorable termination
element of a subsequent malicious prosecution claim.

                               II.

       My analysis of the favorable termination element,
however, does not end my analysis of this case. To prove
malicious prosecution, Kossler must also show that “(1) the
defendants initiated a criminal proceeding; . . . (3) the
proceeding was initiated without probable cause; (4) the
defendants acted maliciously or for a purpose other than
bringing the plaintiff to justice; and (5) the plaintiff suffered
deprivation of liberty consistent with the concept of seizure as
a consequence of a legal proceeding.” Estate of 

.14




        13
        Of course, there is an obvious distinction between the
terms “lesser offense” and “lesser included offense.”
        14
        The fifth requirement is unique to malicious prosecution
claims made under 42 U.S.C. § 1983.

                               38
       Donzi’s contends that it did not initiate the proceeding,
and the District Court dismissed the malicious prosecution
claims against Donzi’s on this alternate ground. Kossler
predicates his malicious prosecution claims against Donzi’s on
vicarious liability. This Court has held:

       A defendant in a [federal] civil rights action must
       have personal involvement in the alleged wrongs;
       liability cannot be predicated solely on the
       operation of respondeat superior.          Personal
       involvement can be shown through allegations of
       personal direction or of actual knowledge and
       acquiescence. Allegations of participation or
       actual knowledge and acquiescence, however,
       must be made with appropriate particularity.

Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988)
(internal citations omitted). Because Kossler does not allege
participation or actual knowledge and acquiescence on the part
of Donzi’s, I would affirm the District Court’s dismissal of
Kossler’s federal malicious prosecution claim against Donzi’s
and, in this respect, express my agreement with the majority.
But I cannot go further.

                               A.

       Unlike the federal malicious prosecution claims, it
appears that liability for malicious prosecution under
Pennsylvania law may be imposed on the basis of respondeat
superior. See, e.g., Butler v. Flo-Ron Vending Co., 

, 737 (Pa. Super. 1989); Randall v. Fenton Storage Co., 182

                               

, 768 (Pa. Super. 1936); Riddell v. Phila. Rapid Transit
Co., 

(1922). Donzi’s contends that Crisanti
did not initiate the criminal proceeding against Kossler, and
relies on Gatter v. Zappile, 

(E.D. Pa. 1999),
where the district court dismissed a malicious prosecution claim
against two police officers, observing, “Generally, it is the
prosecutor, not the police officer, who is responsible for
initiating a proceeding against a defendant.” 

The
court in Gatter, however, proceeded to explain that “[a]n officer
may . . . be considered to have initiated the criminal proceeding
if he or she knowingly provided false information to the
prosecutor or otherwise interfered with the prosecutor’s
informed discretion.” 

marks and citation
omitted). The facts of this case can be distinguished from those
of Gatter, where the two police officer defendants “had no input
into the decision to prosecute Gatter . . . .” 

argument is that Crisanti, the police officer, did
in fact file criminal charges. Kossler alleges that “Crisanti,
although he did not have probable cause or any reasonable
suspicion to believe that Michael Kossler had committed the
criminal offenses of aggravated assault and public intoxication,
nevertheless filed criminal charges against Kossler for such
criminal offenses.” App. 37a.

       The District Court entered summary judgment against
Kossler. Drawing all inferences in favor of Kossler, however,
I am unable to agree that no genuine issue of fact exists (a) as to
whether Crisanti initiated the proceedings against Kossler and
(b) whether Crisanti was no longer acting in the scope of his
employment with Donzi’s when he initiated the proceedings

                                40
against Kossler. These are issues for a fact-finder proceeding
and are not appropriate for resolution at summary judgment.

                            *****

       For the foregoing reasons, together with the majority, I
would affirm the grant of summary judgment that dismissed
Kossler’s federal malicious prosecution claim against Donzi’s.
I would reverse, however, the grant of summary judgment
dismissing Kossler’s state malicious prosecution claim against
Donzi’s, as well as his federal and state malicious prosecution
claims against Crisanti.

RENDELL, Circuit Judge, dissenting.

       I agree more with Judge Aldisert’s view as to the proper
application of the malicious prosecution ‘test’ in the multi-crime
setting than with the majority’s, but must part company
somewhat even with his view. Examining the five-prong test for
malicious prosecution, I am struck by the language of the third,
namely that the ‘proceeding was initiated without probable
cause’. Because probable cause is different for each offense, the
word ‘proceeding’ must mean a prosecution for one offense, not
the prosecution of multiple offenses.

        And, ‘proceeding’ as used in the third prong must inform
what ‘proceeding’ in the second prong means. The fact that the
issue before us does not involve the probable cause prong, as
such, is of no moment. The third prong nonetheless dictates that
‘proceeding’ in the second prong requires a crime-by-crime
analysis. Accordingly, a defendant successful as to one of

                               41
several charged offenses should be permitted to challenge the
charge for that one offense as malicious. If he can sustain all
five prongs (which will perhaps be easier if the acquitted
offense is the more egregious of the group, as is Judge Aldisert’s
construct) he should succeed. I am mystified as to why we
conclude that a defendant acquitted of a crime should be
categorically foreclosed from challenging the prosecution of that
crime as malicious merely because it was grouped with others,
or arose from a common set of facts. That intent does not spring
from the language of the ‘test’, nor does it square with common
sense. Again, if the defendant can prove the five factors
necessary to prove malicious prosecution as to one offense
among many, should he not be able to maintain, and be
victorious as to, that claim? I suggest the answer is ‘yes’.15


       15
        I see no reason to abandon our precedent in Johnson v.
Knorr, 

(3d Cir. 2007). There we fully appreciated
the need to analyze the charges separately when a malicious
prosecution claim is brought, as distinct from a false arrest
claim. In Johnson we stated:

       Our result is not inconsistent with the principle
       that, in analyzing false arrest claims, a court to
       insulate a defendant from liability need find only
       that “[p]robable cause ... exist[ed] as to any
       offense that could be charged under the
       circumstances.” Barna v. City of Perth 

. Thus, we do not question the rule
       that there need not have been probable cause
       supporting charges for every offense for which an

                               42
      officer arrested a plaintiff for the arresting officer
      to defeat a claim of false arrest. See 

. The rationale of this rule is that
      “[t]he existence of probable cause [for one
      offense] ... justifie[s] the arrest - and defeats [the
      plaintiff’s] claim of false arrest - even if there was
      insufficient cause to arrest on the [second offense]
      alone.” Edwards v. City of Philadelphia, 

, 576 (3d Cir. 1988). However, a cause
      of action for malicious prosecution may be based
      on the prosecution of more than one charge, and
      the validity of the prosecution for each charge
      comes into question inasmuch as the plaintiff was
      subject to prosecution on each individual charge
      which, as we have noted, is likely to have placed
      an additional burden on the plaintiff.

      Overall, we are satisfied that notwithstanding the
      rule when a plaintiff is pursuing false arrest
      charges, a defendant initiating criminal
      proceedings on multiple charges is not necessarily
      insulated in a malicious prosecution case merely
      because the prosecution of one of the charges was
      

.

       The majority here seems to be proceeding under a “false
arrest” theory, and ignoring persuasive precedent regarding

                               43
      Therefore, I would reverse and remand for further
proceedings.




claims for malicious prosecution.

                             44