DLD-302                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2078
                                       ___________

                                  DAVID DISTEFANO,
                                              Appellant

                                             v.

                         MACY’S RETAIL HOLDINGS, INC.
                       ____________________________________

                     On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                              (D.C. Civil No. 12-cv-06745)
                      District Judge: Honorable Norma L. Shapiro
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   August 20, 2015

            Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges

                             (Opinion filed: August 27, 2015)
                                        _________

                                        OPINION*
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Appellant David DiStefano appeals from the District Court’s order granting the

summary judgment motion of Appellee Macy’s Retail Holdings, Inc. (“Macy’s”). For

the reasons below, we will affirm the District Court’s judgment.

       This action arose out of a series of fraudulent reimbursements made by a former

Macy’s sales associate, Lisa McCabe, at Macy’s Neshaminy Mall store in Bensalem

Township, Pennsylvania. In short, McCabe would process a return and apply full credit

for a previously purchased item to her own or a customer’s credit card, Macy’s gift card,

or Macy’s “EZ exchange” card, without actually returning any merchandise. After

discovering that McCabe had processed an unusually large number of returns, Macy’s

security personnel began an internal investigation into her activities in or around

September 2010. On November 3, 2010, Frank DeCicco, Macy’s Director of Loss

Prevention, confronted McCabe with the information he had gathered, including

surveillance video footage that showed her processing reimbursements at her register

without any customer or merchandise present. DeCicco also described to McCabe video

footage that he believed showed her processing a fraudulent reimbursement for an

unidentified man on October 24, 2010. McCabe declined to view the video footage, but

identified the man as Appellant David DiStefano, her sometime boyfriend.

       Macy’s security personnel drafted a “Loss Prevention Statement” summarizing

McCabe’s interview and describing the fraud. In that statement, McCabe admitted to

processing fifty-eight fraudulent reimbursements between April and October 2010,

usually without the knowledge of the friend or family member who originally purchased

                                             2
the unreturned merchandise. McCabe also stated, however, that some fraudulent returns

were made with DiStefano’s cooperation. She recounted the incident depicted in the

surveillance video as follows: “On 10/24/10 David D[i]Stefano purchased a microwave

from [the] Oxford Valley Macy[’]s. David then came to [the] Neshaminy Macy[’]s

approximately 30 minutes later and asked me to return the microwave. I did the return

and gave David the EZ exchange card back with $149.99 on it. David never brought the

microwave in and I never took back any merchandise for that return. I caused a loss to

the company of $149.99.” McCabe signed the Loss Prevention Statement in two

locations, initialed all three pages, and added a handwritten paragraph in which she

confirmed that the preceding statement was voluntary and true, apologized, and promised

to pay back the money.

       The receipts corresponding to the October 24, 2010 transaction show that at 5:33

p.m., a microwave oven was purchased at Macy’s Oxford Valley Mall store with a gift

card and an EZ exchange card. The same microwave oven was returned to Macy’s

Neshaminy Mall store at 6:00 p.m., and the purchase price was credited to the same gift

card number used to buy the microwave. The reimbursement was processed at McCabe’s

register, using her sales associate number. The receipts do not identify the buyer of the

microwave by name, and there is no other way to identify the owner of the gift card or

EZ exchange card used to make the purchase or return. The surveillance video footage

from that day does not show anyone returning a microwave oven at McCabe’s register

around 6:00 p.m. Instead, the video shows McCabe speaking to the man she later

identified as DiStefano during a period time-stamped as approximately 5:50 p.m. to 5:51

                                             3
p.m.1 The video also shows McCabe using her register, printing out a slip of paper, and

handing the paper to DiStefano. DeCicco testified that other video footage showed

customers making legitimate purchases directly before and after this interaction, and that

no other returns were processed at McCabe’s register in the hour before or the hour after

her interaction with DiStefano. He confirmed that McCabe herself could not have

purchased the microwave oven at 5:33 p.m. at the Oxford Valley Macy’s.

       After interviewing McCabe, DeCicco contacted Bensalem Police to report the

thefts. When police officers arrived at the store, DeCicco described McCabe’s statement,

the receipts reflecting the fraudulent October 24 return, and the surveillance video.

Police officers arrested McCabe and filed an affidavit of probable cause to arrest

DiStefano. McCabe’s employment was terminated and she later made restitution

payments to Macy’s totaling $4,000.

       During McCabe’s arrest, on the evening of November 3, 2010, DiStefano was in

the Neshaminy Mall parking lot. Although a warrant had not yet issued, police officers

arrested DiStefano in the parking lot and filed a Police Criminal Complaint accusing him

of three Pennsylvania crimes: theft by deception, receiving stolen property, and

conspiracy to commit theft by deception. DiStefano was held in custody overnight. The

following day he posted bail and was released pending trial. In August 2011, after

several preliminary hearings, the prosecution withdrew all charges against DiStefano.


1
 DeCicco accounted for the time discrepancy between the receipts and the video by
explaining that the receipts are time-stamped according a national clock, uniform to all
Macy’s stores and registers, while the surveillance video is time-stamped according to a
separate clock unique to the Neshaminy Mall store.
                                             4
       In October 2012, DiStefano filed a counselled complaint against Macy’s in the

Philadelphia Court of Common Pleas, bringing state law claims for false arrest, false

imprisonment, and malicious prosecution. Macy’s removed the action to the United

States District Court for the Eastern District of Pennsylvania on the basis of diversity

jurisdiction and the case proceeded to arbitration. After an arbitration award was entered

in Macy’s favor, DiStefano requested a trial de novo before the District Court. On April

1, 2014, the District Court granted Macy’s motion for summary judgment, finding that, at

the time he reported his suspicions to the police, DeCicco had probable cause to believe

DiStefano had committed a crime. DiStefano filed a timely pro se notice of appeal.

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

order granting summary judgment de novo and review the facts in the light most

favorable to the nonmoving party. Burns v. Pa. Dep’t of Corr., 

, 170 (3d

Cir. 2011).

       The absence of probable cause is an element common to all three of DiStefano’s

claims. An arrest based on probable cause cannot support a claim for false arrest or false

imprisonment under Pennsylvania law. See Renk v. City of Pittsburgh 

,

293 (Pa. 1994). See also Gwynn v. City of Philadelphia, 

, 304 n.4 (3d Cir.

2013) (citing 

). A Pennsylvania common law malicious

prosecution claim also requires a showing that the defendant initiated a criminal

proceeding without probable cause. See Merkle v. Upper Dublin Sch. Dist., 

782, 791 (3d Cir. 2000).2 “Probable cause exists when ‘the facts and circumstances

which are within the knowledge of the police officer at the time of the arrest, and of

which he has reasonably trustworthy information, are sufficient to warrant a man of

reasonable caution in the belief that the suspect has committed or is committing a

crime.’” 

(quoting Commonwealth v. Rodriguez, 

,

990 (Pa. 1991)). See also Miller v. Pennsylvania R. Co., 

, 811-12 (Pa. 1952)

(defining probable cause more broadly 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”). Generally, the existence of probable

cause is a question of fact for the jury to determine. 

. “However,

a district court may conclude that probable cause exists as a matter of law if the evidence,

viewed most favorably to [the] Plaintiff, reasonably would not support a contrary factual




2
  A private person or entity cannot be held liable for the initiation of criminal proceedings
by a public official unless that person “instigates” the arrest or imprisonment.
“Instigation consists of words or acts which direct, request, invite or encourage the false
imprisonment itself. . . . It is not enough for instigation that the actor has given
information to the police about the commission of a crime, or has accused the other of
committing it, so long as he leaves to the police the decision as to what shall be done
about any arrest, without persuading or influencing them.” RESTATEMENT (SECOND) OF
TORTS § 45A(b). Moreover, “it is not an instigation of a false arrest where the actor has
requested the authorities to make a proper and lawful arrest, and has in no way invited or
encouraged an improper one, or where he has requested an arrest at a time when it would
be proper and lawful, and it is subsequently made at a time when it has become
improper.” 

that DiStefano has pointed to nothing in the record suggesting
that DeCicco did anything more than provide police officers with the information he had,
or suggesting that Macy’s personnel had any further role in the officers’ decision to arrest
DiStefano, or in the District Attorney’s decision to prosecute him.


                                              6
finding, and may enter summary judgment accordingly.” 

(quotation and

citation omitted).

       In opposition to Macy’s motion for summary judgment, DiStefano admitted that

he was the man shown in the October 24, 2010 surveillance video, but argued that there

was insufficient probable cause for his arrest or prosecution for a variety of reasons.

First, he argued that the Loss Prevention Statement was false, because McCabe refused to

confirm that statement at her 2013 deposition in this civil suit.3 He also argued that the

video footage, which does not include any audio recording, shows nothing more than a

conversation between him and McCabe, and the October 24 receipts do not positively

identify him as the person who purchased or returned the microwave oven. Further, he

argued that Macy’s personnel had a duty to question him and conduct some further

investigation before they contacted the police. And finally, he argued that, under a theory

of agency or respondeat superior, Macy’s itself is responsible for the “false” statement of


3
  McCabe repeatedly failed to appear for depositions in this civil action. Eventually, the
District Court issued a bench warrant for her arrest, found her in contempt, and held her
deposition in court. During that deposition, McCabe testified that “d[id] not recall” any
details of the events in question. She could not recall ever making fraudulent returns, and
could not recall the substance of her interview with DeCicco, or signing the Loss
Prevention Statement; nor could she recall why she had been arrested, the name of her
criminal defense attorney, whether she had made any restitution payments to Macy’s, or
whether she had agreed to cooperate with the Commonwealth in its prosecution of
DiStefano. When asked whether the portion of her statement implicating DiStefano was
true, she testified that she “ha[d] no idea,” and “c[ould]n’t recall the statement at all.”
Then, when asked if DiStefano had ever made a false return at Macy’s, she replied, “Not
that I recall, no. I would never do something like that, no.” However, she confirmed that
the handwriting and signatures on the Loss Prevention Statement were her own, and she
refused to testify that she had been coerced into making the 2010 statement, or that the
statement was actually false.


                                              7
its employee McCabe, and therefore responsible for providing false information to the

police. DiStefano repeats essentially the same arguments in support of his appeal.

       We agree with the District Court that the undisputed factual record establishes

ample probable cause for DiStefano’s arrest. Certainly, the parties dispute DiStefano’s

actual role in the fraud, but his guilt or innocence is immaterial to whether, as of

November 3, 2010, DeCicco had probable cause to report his suspicions to the police. It

is equally irrelevant that criminal charges were later withdrawn or that McCabe partially

repudiated her statement three years later. DeCicco, not McCabe, provided information

to the police. At that time, DeCicco possessed not only McCabe’s signed statement

implicating DiStefano, but also receipts corroborating her confession, and video footage

placing DiStefano at her register within minutes of at least one fraudulent transaction that

required an accomplice. Even accounting for the time-stamp discrepancy and the lack of

personal identifiers on the receipts, the evidence as a whole suggested that DiStefano had

helped McCabe defraud Macy’s. See Kelly v. Gen. Teamsters, Chauffeurs & Helpers,

Local Union 249, 

, 942–43 (Pa. 1988) (holding that a co-worker’s

confession accusing fellow employee of theft, in conjunction with other evidence and

despite employee’s eventual acquittal, was sufficient to establish probable cause as a

matter of law).4


4
  Although the District Court did not address DiStefano’s agency argument, we note that
a corporation is liable for the acts of its employees only when those acts are committed
during the course of and within the scope of employment. Butler v. Flo–Ron Vending
Co., 

, 736 (Pa. Super. Ct. 1989). Under Pennsylvania law, conduct is within
the scope of employment “‘if, but only if: (a) it is of the kind [the employee] is employed
to perform; (b) it occurs substantially within the authorized time and space limits[; and]
                                              8
       Accordingly, because this appeal does not raise a substantial question, we will

summarily affirm the judgment of the District Court. Appellant’s request for oral

argument is denied.




(c) it is actuated, at least in part, by a purpose to serve the master[, . .] .’” 

(SECOND) OF AGENCY § 228). In Butler, for example, the Pennsylvania
Superior Court found that a corporation was liable for evidence planted by and false
statements made to the police by supervisory employees, where it was within the nature
of their employment that they would be responsible for working with authorities to solve
a crime against the corporation. 

Here, by contrast, McCabe’s allegedly false
statement was made during an interview which took place only as a result of Macy’s
investigation into her criminal activities, in which she confessed to defrauding her
employer, and which led to her arrest and termination. That interview was not part of
McCabe’s duties as a sales associate, nor was it conduct of the type McCabe was
employed to perform.
                                               9