Richard Charles Haefner versus the City of Lancaster, Pennsylvania, June 22, 1983.

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Haefner v. City of Lancaster, PA, 566 F. Supp. 708, Docket Number: 83-604, June 22, 1983.

U.S. District Court for the Eastern District of Pennsylvania – 566 F. Supp. 708 (E.D. Pa. 1983).

566 F. Supp. 708 (1983)Richard HAEFNER versus the CITY OF LANCASTER, PA.; the City of Lancaster, Pa. Police Department, John Wertz, individually and as a Police Officer of the City of Lancaster, Pa. Police Department; Richard Shertzer, individually and as a Police Officer of the City of Lancaster, Pa. Police Department, and John Does 1-10.Civ. A. No. 83-604.

United States District Court, E.D. Pennsylvania.June 22, 1983.

George C. Werner, Lancaster, Pa., for defendants.
MEMORANDUM

District Judge Troutman: Plaintiff, in Haefner I, instituted suit against a host of Lancaster City and County public officials and private citizens and generally charged them with conspiring to illegally secure his conviction. We dismissed the suit because it was time-barred. Haefner v. City of Lancaster, 520 F. Supp. 131 (E.D.Pa.1981), aff’d, 681 F.2d 806 (3d Cir.), cert. denied _ U.S. _, 103 S. Ct. 165, 74 L. Ed. 2d 136 (1983). Subsequently, in Haefner II, plaintiff alleged that he was subjected to a series of illegal conspiracies and that the complaint then at bar inveighed against conduct not litigated in Haefner I. We disagreed and held that our disposition of Haefner I erected a res judicata bar to the allegations of Haefner II. Haefner v. County of Lancaster, 543 F. Supp. 264 (E.D.Pa.1982), aff’d, 703 F.2d 550 (3d Cir. 1983). Defendants, moving to dismiss, argue that res judicata also bars this action. We agree and grant the motion.

The complaint at bar alleges that [o]n or about February 6, 1981, plaintiff entered the lobby of the Lancaster Newspapers, Inc. building at 3 West King Street in the City of Lancaster, Pa., with the intent of conducting his lawful business, particularly of investigating some of the aforesaid policies, customs, or decisions of the defendant City and Police Department, and of arranging for publication of a news story concerning the same.

Complaint ¶ 13. Continuing, the complaint at bar also alleges that defendant police officer Wertz stopped plaintiff and requested that he produce proper identification even though he, Wertz, knew the plaintiff. Thereafter, Wertz began interrogating plaintiff and, when plaintiff sought to obtain a pen with which to record Wertz’s name, defendant Wertz arrested plaintiff for disorderly conduct. While in the illegal custody of Wertz and other defendants, plaintiff was purportedly subjected to abuse and torture from which he still suffers anguish, trauma and depression. Finally, plaintiff alleges that his trial for disorderly conduct was aborted on March 5, 1981, when the charges were dropped. See, Complaint ¶¶ 14-27.

Similar allegations of official misconduct were made in Haefner II. There plaintiff alleged that [o]n February 6, 1981, while plaintiff was engaged in an investigation related to his expungement petitions and appeals, members of defendant Police Department, in furtherance of a conspiracy to deprive plaintiff of his right to a fair and impartial criminal trial and other related proceedings, arrested plaintiff on a charge of disorderly conduct, took plaintiff to the defendant Police Department’s station house, where they verbally abused and physically beat plaintiff. As a result of this unlawful conduct, plaintiff abandoned his investigation.

Haefner II amended complaint, both Haefner II and the case at bar complain that on February 6, 1981, plaintiff, while investigating official misconduct, was subjected to a false arrest. Continuing, the two complaints allege that plaintiff was subjected to physical beatings, verbal and emotional abuse while suffering the illegal detention. Simply stated, the two actions complain of substantially similar conduct. The only distinction between Haefner II and the case at bar is that the current complaint highlights a portion of the allegations contained in Haefner II. The allegations contained in Haefner II closely tracked those of Haefner I; both suits alleged that numerous defendants subjected plaintiff to false and unwarranted criminal prosecutions for various sex offenses. Haefner II also charged that following *710 plaintiff’s acquittal on the criminal charges, defendants violated an order of the Lancaster County Court of Common Pleas and failed to expunge his arrest record. Most critically, Haefner II lodged allegations not made in Haefner I: it contended that on February 6, 1981, while investigating defendants’ failure to expunge his arrest record, plaintiff was verbally and physically abused. This same incident forms the basis of the current action.

Plaintiff, opposing defendants’ motion for summary judgment, argues primarily that Haefner II cannot support a res judicata bar to this action because our disposition of that case did not amount to a final judgment “on the merits”.[1] Specifically, plaintiff asserts that because our order of dismissal in Haefner II did not state that it was “with prejudice” it thereby was entered “without prejudice” pursuant to Fed. R.Civ.P. 41(b). Hence, plaintiff claims, we neither considered nor addressed the merits of Haefner II and the res judicata requirement of a judgment “on the merits” has not been met.

Resolution of whether our dismissal of Haefner II was “on the merits” is assertedly governed by Costello v. United States, 365 U.S. 265, 81 S. Ct. 534, 5 L. Ed. 2d 551 (1961). It held that a dismissal based upon plaintiff’s failure to comply with a “precondition requisite” does not create a res judicata bar to a subsequent suit. Id. at 285, 81 S. Ct. at 544. Therefore, when a complaint fails to meet a “condition for filing suit” its dismissal does not operate as an adjudication on the merits. Truvillion v. King’s Daughters Hospital, 614 F.2d 520, 524 (5th Cir.1980). Hence, such a dismissal cannot support a res judicata bar. Accord, McCarney v. Ford Motor Co., 657 F.2d 230, 233-34 (8th Cir.1981) (Prior dismissal for lack of standing does not erect a res judicata bar); Johnson v. Boyd Richardson Co., 650 F.2d 147, 148-49 (8th Cir.1981) (Failure to name a proper party does not erect a res judicata bar).

Haefner II was not dismissed, however, for any failure to comply with a jurisdictional “precondition requisite”. Rather, that case was dismissed on the strength of the res judicata bar created by Haefner I’s dismissal as being untimely. Such a dismissal in Haefner I created a res judicata bar to the second suit by this plaintiff. Chang v. Northwestern Memorial Hospital, 549 F. Supp. 90, 95 (N.D.Ill.1982); Waschovia Bank & Trust Co. v. Randell, 485 F. Supp. 39, 42 (S.D.N.Y.1979). Accord, Comer v. Marathon Oil Co., 583 F.2d 830 (6th Cir.1978).

Although the “outer periphery” of Haefner II was not “exactly co-extensive” with Haefner I, res judicata nevertheless barred the second suit because the “core complaint” of the two suits was the “same”. Haefner II, 543 F. Supp. at 267. See, Poe v. John Deere Co., 695 F.2d 1103, 1106 (8th Cir.1982) (Res judicata arises even though the parameters of the second suit do not track those in the first suit with “mathematical precision”.) We also held in Haefner II that plaintiff could not litigate the events of February 6, 1981, in that suit because he was aware of them prior to March 9, 1981, the date upon which he filed Haefner I. Moreover, plaintiff was also aware of the now plead February 6, 1981 events prior to the date of Haefner I’s dismissal. See, Haefner II, 543 F. Supp. at 268, citing, Blair v. City of Greenville, 649 F.2d 365, 368 (5th Cir.1981) and Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir.1977). Plaintiff may not now attempt to relitigate a claim which could have been litigated in Haefner I and which was specifically plead in Haefner II.

Simply stated, Haefner I’s dismissal as being time-barred operated as an adjudication on the merits and foreclosed plaintiff’s complaint in Haefner II. The current action merely rehashes allegations which we *711 previously held are barred by the doctrine of res judicata. Even if we accepted plaintiff’s current assertion that Haefner II’s dismissal was not “on the merits” and that it cannot support a res judicata bar, litigation of this action is precluded by the res judicata bar created by Haefner I. We do not, however, accept plaintiff’s assertion that our dismissal of Haefner II was “without prejudice”. We believe that our dismissal of Haefner II must be accorded the same preclusive effect as the judgment upon which it was predicated. Accordingly, we will grant defendants’ motion for summary judgment.

NOTES: [1] The other elements of establishing a res judicata bar are, as we observed in Haefner II, that the parties to the instant suit must be the same or in privity with those in the prior litigation. 543 F. Supp. at 265. See also, Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308 (1980). Plaintiff does not appear to contest the fact that defendants at bar are in privity with defendants in Haefner II.

Richard Charles Haefner versus James Burkey (et al), Submitted April 6, 1993, Decided May 28, 1993.

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Full Name: Haefner v. Burkey
Citations: 534 Pa. 62, 626 A.2d 519
Date: May 28, 1993
534 Pa. 62 (1993).

Richard Haefner, Appellant, v. James BURKEY; Kevin Burkey; Randy Klivansky; Jerry P. Crump; Edward H. Snyder; Kathleen V. Mumma; and Barbara A. Dommel, Administratrix of the Estate of Thomas G. Dommel, Appellees.

Supreme Court of Pennsylvania, submitted April 6, 1993. decided May 28, 1993.

Robert D. Beyer, Lancaster, for J. and K. Burkey. George C. Werner, Kristina M. Kurjiaka, Lancaster, for J.P. Crump & Edw. H. Snyder. Christopher S. Underhill, Lancaster, for (Disinterested). Stephen W. Cody, Lancaster, for R. Klivansky.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT. Justice Larson: Appellant Richard Haefner appeals from the order of the Superior Court affirming the grant by the Court of Common Pleas of Lancaster County of preliminary objections in the nature of a demurrer 415 Pa.Super. 662, 601 A.2d 376 (1991). This appeal stems from a malicious prosecution action commenced by appellant in which he contends that appellees James Burkey, Kevin Burkey and Randy Klivansky, who were minors at the time, conspired with appellees Jerry P. Crump and Edward H. Snyder, local law enforcement officials, to charge appellant falsely with morals offenses. Appellant also contends that the appellees harassed him, interfered with his defense, intimidated witnesses and jurors, bribed witnesses and jurors, and committed perjury.

Appellant was arrested and charged with corruption of minors and involuntary deviate sexual intercourse based on *64 allegations made by appellees Kevin Burkey and Randy Klivansky. Appellant’s first trial, which involved the alleged criminal conduct against appellee Kevin Burkey, resulted in a mistrial declared prematurely by the trial judge following the jury’s announcement that it could not reach a unanimous verdict after several hours of deliberation. Although the Commonwealth attempted to try appellant again, the Superior Court quashed the indictment because a retrial would have violated appellant’s double jeopardy rights. Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). Subsequently, the Commonwealth nolle prossed the remaining charges against appellant, which involved the alleged criminal conduct against appellee Randy Klivansky, based on insufficient evidence.

Appellant then commenced the first of two federal civil rights actions alleging unlawful arrest, physical and mental abuse during police custody and prosecution of criminal charges against him without probable cause. Appellant also included pendent state claims for intentional infliction of emotional distress and malicious prosecution. The federal court dismissed the complaint and held that the federal claims were either time barred or failed to state a claim upon which federal relief could be granted. Haefner v. County of Lancaster, 520 F. Supp. 131 (E.D.Pa.1981), aff’d, 681 F.2d 806 (3d Cir.1982), cert. denied, 459 U.S. 874, 103 S. Ct. 165, 74 L. Ed. 2d 136 (1982) (Haefner I).

Subsequently, appellant brought a second federal action based on essentially the same facts. The court dismissed the federal civil rights claims because Haefner I acted as res judicata to bar reconsideration. The court then granted appellant’s request to transfer the pendent state claims of intentional infliction of emotional distress and malicious prosecution to the Court of Common Pleas of Lancaster County. Haefner v. Lancaster County, 543 F. Supp. 264 (E.D.Pa.1982), aff’d, 707 F.2d 1401 (3d Cir.1983) (Haefner II).

In the Court of Common Pleas, appellees filed inter alia preliminary objections in the nature of a demurrer. The trial court granted the preliminary objections because it found that *65 the intentional infliction of emotional distress claim was barred by the statute of limitations and because Haefner I and Haefner II acted as res judicata to bar consideration of the malicious prosecution claim. As a result, the trial court dismissed appellant’s complaint.

On appeal, the Superior Court concluded that the intentional infliction of emotional distress claim was indeed time barred. The court also concluded that the federal court did not exercise jurisdiction over appellant’s malicious prosecution claim, and therefore, the trial court erred in dismissing appellant’s malicious prosecution claim because of res judicata.

The Superior Court, however, affirmed the dismissal of appellant’s malicious prosecution claim because it held, sua sponte, that appellant failed to establish a right to recovery as a matter of law. The court based its decision on the fact that neither of the initial criminal actions against appellant terminated in a manner consistent with his innocence. This appeal followed.[1]

In order to subject a person to liability for malicious prosecution, the criminal proceedings must have terminated in favor of the accused. Restatement (Second) of Torts § 658 (1977). Appellant argues that the declaration of a mistrial in the first criminal proceeding against him and the subsequent quashing of the indictment by the Superior Court represents a termination in favor of appellant. We agree.

The Restatement (Second) of Torts specifically delineates what constitutes termination in favor of the accused:

§ 659. Manner of Termination Criminal proceedings are terminated in favor of the accused by (a) a discharge by a magistrate at a preliminary hearing, or (b) the refusal of a grand jury to indict, or *66 (c) the formal abandonment of the proceedings by the public prosecutor, or (d) the quashing of an indictment or information, or (e) an acquittal, or (f) a final order in favor of the accused by a trial or appellate court.
Restatement (Second) of Torts § 659 (emphasis added).

In the case herein, appellant’s criminal trial ended in the declaration of a mistrial. When the Commonwealth later attempted to retry appellant, he filed a pretrial motion to quash the indictment. The trial court denied the motion, and appellant appealed to the Superior Court, which granted appellant’s motion to quash because a second trial would be violative of his right not to be placed in double jeopardy. See Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). Because appellant’s indictment was quashed, the criminal action terminated in favor of appellant pursuant to Restatement (Second) of Torts § 659(d). Therefore, the Superior Court erred in finding that appellant did not establish any right to recovery as a matter of law as to the first criminal action against appellant.

We likewise find that the Superior Court erred in finding that the second criminal action against appellant, which ended in the entry of a nolle pros by the Commonwealth, did not terminate in favor of appellant. The prosecution formally abandoned the criminal proceedings against appellant when it nolle prossed the remaining charges because of insufficient evidence.[2] As such, the proceedings terminated in favor of the appellant pursuant to Restatement (Second) of Torts § 659(c). “[I]f the defendant is discharged after abandonment of the charges by the prosecutor, or the charges are withdrawn by the prosecutor, this is sufficient to satisfy the requisite element of prior favorable termination of the criminal action.” Woodyatt v. Bank of Old York Road, 408 Pa. 257, 259, 182 A.2d 500, 501 (1962).

*67 Accordingly, we reverse the decision of the Superior Court and remand to the Court of Common Pleas for proceedings consistent with this opinion.

MONTEMURO, J., did not participate in the consideration or decision of this case.

CAPPY, J., files a concurring opinion.

CAPPY, Justice, concurring.

I concur only in the result reached by the majority.

I agree with the learned court below that termination of the criminal proceedings in favor of the plaintiff means more than mere termination. “Proceedings are `terminated in favor of the accused,’ [for purposes of a malicious prosecution action], only when their final disposition is such as to indicate the innocence of the accused.” Restatement (Second) of Torts § 660 Comment a (1977). See also Junod v. Bader, 312 Pa.Super. 92, 458 A.2d 251 (1983). However, contrary to the Superior Court, and consistent with the majority’s holding herein, I conclude that where the criminal charges lodged by a private complainant are “nolle prossed” for lack of sufficient evidence or are withdrawn by the private complainants particularly where the statute of limitations has expired without the charges being reinstated the termination is consistent with innocence. Compare Woodyatt v. Bank of Old York Road, 408 Pa. 257, 182 A.2d 500 (1962) (discharge after abandonment of charges by the prosecutor or charges being withdrawn by the prosecutor, although not a determination of merits, is sufficient to satisfy element of favorable termination of the criminal action).

I disagree, however, with the majority’s holding that the proceedings on the other charges against Appellant terminated in his favor. I agree with the Superior Court that discharge of a criminal prosecution as a result of a mistrial is not a termination that is consistent with innocence. See Singleton v. City of New York, 632 F.2d 185, 193-194 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S. Ct. 1368, 67 L. Ed. 2d 347 (1981). I believe that the majority opinion improperly focuses its inquiry *68 upon the subsequent quashing of the indictment upon the Commonwealth’s attempt to retry Appellant. I also point out that the indictment was quashed on double jeopardy grounds, and not for a reason consistent with Appellant’s innocence. Thus, I am constrained to concur only in the result.

NOTES
[1] On appeal to this Court, appellant does not challenge the Superior Court’s determination that his intentional infliction of emotional distress claim was time barred.

[2] We note that the charges were never reinstated, and the statute of limitations has since expired.

The Commonwealth of Pennsylvania versus Richard Charles Haefner: Argued December 6, 1977, Decided March 9, 1979.

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COMMONWEALTH of Pennsylvania v. Richard Charles Haefner, Appellant. 264 Pa. Superior Ct. 144 (1979), 399 A.2d 707.

Argued December 6, 1977, decided March 9, 1979.

*145 Richard A. Sprague, and with him, Pamela W. Higgins and Michael K. Simon, Philadelphia, for appellant.

D. Richard Eckman, District Attorney, and with him, John A. Kenneff, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge: The appellant, Richard Charles Haefner, was charged with involuntary deviate sexual intercourse and corruption of the *146 morals of a minor. A jury trial commenced on January 27, 1976, in Lancaster County and on February 3, 1976, the presentation of evidence having concluded, the case was submitted to the jury. As more fully detailed below, the trial judge, on the latter date, sua sponte declared a mistrial, based upon the jury’s failure to arrive at a verdict.

Thereafter, the appellant was scheduled to be tried again on the same charges. Inter alia, he filed a pretrial motion to quash indictments, based upon the argument that the trial court erred in its declaration of a mistrial, and that a second trial on the same charges would therefore be violative of his right to not be placed in double jeopardy. The lower court denied this motion and the appellant, on June 29, 1976, appealed that denial to our Court. The Commonwealth filed a motion to quash the appeal, contending that the order denying the appellant’s motion to quash the indictments was interlocutory. This Court granted the Commonwealth’s motion.

Appellant thereafter filed an appeal to the Pennsylvania Supreme Court. That Court, by a Per Curiam Opinion, on June 3, 1977, held that a denial of a pre-trial motion to quash an indictment, where the motion alleges that a second trial will violate a defendant’s right not to be placed twice in jeopardy, is a final order, immediately subject to appellate review upon an appeal. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977) (Former Chief Justice Jones not participating; Dissenting Opinion filed by Justice O’Brien, in which Justice Nix joined). Thus, the case was remanded to our Court for a determination of the appeal on the merits.

The record shows that appellant was tried before a Lancaster County jury from January 27, 1976 through February 3, 1976 on charges that he had engaged in indecent sexual contacts with a minor. Twenty-nine (29) witnesses testified during the course of the five days of trial. We need only highlight some of the most salient evidence and events of the trial for purposes of this Opinion.

The alleged victim was a twelve year old boy who claimed that the appellant, who employed him and other youths in a *147 small family business, had engaged in sexual contacts in a garage which was part of the business premises. The incident was not reported to anyone by the boy until a month and a half after it allegedly took place. The appellant, who completely denied the charge, was an educator of some standing who had no prior criminal record.

After the trial court charged the jury on the morning of February 3, 1976, it retired at 11:50 A.M., to begin deliberations. A luncheon recess in these deliberations was observed. At 5:10 P.M., the jury returned to the courtroom, whereupon the following colloquy evolved:

THE COURT: Mr. Foreman, has the jury reached a verdict? BY THE FOREMAN: No, sir. THE COURT: Well, members of the jury, as I stated and as you fully realize, this trial started last Tuesday, and I know you’ve been deliberating all afternoon, I know that the charge to the jury was completed about ten minutes of eleven. I understand that you returned from your lunch about 1:00, and have been deliberating since then. And under these circumstances, I’m going to direct that you return to the room for further deliberation, and I want to say to you that in order to return a verdict, each juror must agree thereto, that jurors have a duty to talk with another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgments. Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors. In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced he should do this. No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors or for the mere purpose of returning a verdict. And, having stated that to you, members of the jury, I’m going to direct that you now return for further deliberation.
*148 The jurors retired again at 5:10 P.M., to resume their deliberations. However, at 5:35 P.M., the jury returned to the courtroom, whereupon the record shows the following:

THE COURT: Mr. Foreman, the Court has been informed that the jury has a question, and the question is written out, is that correct? BY THE FOREMAN: Yes, Your Honor. THE COURT: Will you hand it to the Clerk, so he can hand it to me, please, Sir? (Whereupon, the Court examines the question, at this point.) THE COURT: Will counsel approach the bench? (Whereupon, a discussion ensued off the record, at this point.) THE COURT: A question which has been addressed to The Court is: Your Honor, we the jury would like to hear the testimony of Sergeant Crump and Sergeant Snyder pertaining to the events which took place in the police station when questioning the Defendant. Also, the cross examination of the prosecuting officers. Members of the jury, the conduct of a trial requires that it is your recollection of the testimony which will be used in your deliberations. You have heard the testimony from the witness stand, you have heard the arguments of counsel, and you have heard The Court’s instructions as to the law and the responsibility of the jury and so, it will be necessary for you in your continuing deliberations, to rely solely on your recollection of the testimony which was given. Now, it’s The Court’s understanding, you are ready to go for dinner and it is twenty of six, so you will be taken by the Tipstaff for your dinner and then, you can deliberate further after dinner.
The jury then left the courtroom for supper and at 6:38 P.M., resumed deliberations. When they next returned to the courtroom it was 9:15 P.M., and the following colloquy took place:

*149 THE COURT: Mr. Foreman, the jury has been deliberating since I imagine about 1:00, the charge was completed about a quarter of twelve, and I understand that you went to lunch and your returned about 1:00, and were here until about 6:30, and then I understand you came back between 7:30 and a quarter of eight. It’s now after 9:15, which means that you have been deliberating about seven hours, and viewing your best recollection to the deliberations, the conversations, discussions, the vote that you had, and the discussion you’re presently having, I want to ask you, Mr. Foreman, whether in your opinion, if there is further deliberation, it is your belief that this jury will be able to arrive at a verdict in these cases. BY THE FOREMAN: Your Honor, I believe we may. THE COURT: You believe you may? BY THE FOREMAN: I believe we may. THE COURT: You may reach a verdict and therefore, I direct that you return to your jury room to further deliberate. I wanted to inquire in view of the time that has transpired, so you go back to your room and deliberate further. Thank you.
The jury retired again at 9:20 P.M., to deliberate, but less than one hour later, at 10:15 P.M., the jurors again returned to the courtroom. The record sets forth further discussion:

THE COURT: Mr. Foreman, I have received a message which causes me to ask you whether it is your belief at this time, the jury will reach a verdict? BY THE FOREMAN: No, Your Honor, I don’t think we will ever reach a verdict. THE COURT: You feel you’ve explored every possibility? BY THE FOREMAN: Yes, Sir. THE COURT: And you feel you’ve had sufficient time? BY THE FOREMAN: Yes, Sir. THE COURT: And you feel the jury will not be able to reach a verdict? BY THE FOREMAN: I have been informed of that, yes, sir. *150 THE COURT: The Court then declares a mistrial of these two cases.
The sole issue for this Court’s determination is whether the lower court erred in its declaration of a mistrial in all of the circumstances of this case. The basic constitutional precept which must guide us is the prohibition against double jeopardy set forth in the Fifth Amendment of the United States Constitution, which has been held applicable to state trials under the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). There are no standardized guidelines nor any predetermined periods for juror deliberations prior to the time when a mistrial may be declared, so as to permit the retrial of a criminal defendant. Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Commonwealth v. Coleman, 235 Pa.Super. 379, 341 A.2d 528 (1975). The length of jury deliberations is left to the sound discretion of the trial judge (Commonwealth v. Campbell, 445 Pa. 488, 284 A.2d 798 (1971)), but any doubts concerning the existence of cause to support the declaration of a mistrial are to be resolved in favor of an accused defendant. Commonwealth v. Howard and Banks, 233 Pa.Super. 496, 335 A.2d 489 (1975). As to cause, really the crucial determination in any case such as this, it has long been established, that the jury should not be discharged in the absence of “manifest necessity” for the trial judge to do so. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 2d 165 (1824); Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). If such manifest necessity does not exist, double jeopardy attaches and a retrial of the defendant is not permitted.

We have examined the record as a whole in the instant case and have some doubt as to the existence of a manifest necessity for the dismissal of the jury. In these circumstances, we must resolve this doubt in favor of the accused, and hold that a retrial of appellant is barred. Several factors coalesce in producing this conclusion.

The jury in this case was discharged, sua sponte, by the trial judge, at 10:15 P.M. The jurors had begun their *151 considerations just before noon the same day, after five days of trial, and after hearing the testimony of twenty-nine witnesses, arguments by counsel, and extensive instructions by the court. Their deliberations were abbreviated by luncheon and supper breaks, as well as by four separate return visits to the courtroom. On the first such visit, apparently at the request of the trial judge, the foreman, in response to the court’s questioning, stated that no verdict had been reached. The judge gave the jurors a short additional instruction.[1] Only a few minutes later, the jury returned with a request that they be permitted to review the testimony on direct and cross-examination of two witnesses. The trial judge declined to permit such a review and released the jurors for supper. The judge recalled the jurors again at 9:15 P.M., to ask if it was believed that a verdict would be possible. The foreman immediately replied in the affirmative, and the judge released them for further deliberations. The fourth visit by the jury to the courtroom, since beginning deliberations at midday, was fifty-five minutes after it had been announced by the foreman that a verdict could be achieved. However, on this last occasion, the foreman for the first time stated a belief that no verdict could be reached. After asking the foreman a few short questions, the court declared the mistrial. In these circumstances, especially including the complex and conflicting testimony and other evidence to be considered, and the length of the often interrupted jury deliberations, we cannot find that a manifest or absolute[2] necessity existed, at the time for the discharge of the jury. In reaching this conclusion, we find the facts of this case closely analogous to those established in Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964), where the Supreme Court reached a similar conclusion. See also United States ex rel. Webb v. Court of *152 Common Pleas of Philadelphia County, 516 F.2d 1034 (3rd Cir. 1975).

The dismissal of the jury in this case came less than one hour after the jury foreman expressed the feeling that a verdict could be reached. It also occurred at the first instance at which the court had any indication that the jurors were having difficulty in reaching an agreement. While it was not absolutely necessary to do so, the trial judge made no searching inquiry of each juror.[3] See Commonwealth v. Bartolomocci, 468 Pa. 338, 362 A.2d 234 (1976); Commonwealth v. Coleman, supra; Commonwealth v. Howard and Banks, supra, at footnote 5. Such a practice is preferred. Also, the trial court failed to solicit the views or consent of either the prosecution or the defense prior to the declaration of a mistrial, a procedure which is not mandated, but might have been helpful in resolving doubts about a discharge of the jury. See Commonwealth v. Baker, supra. Under all of these circumstances, and considering the record as a whole, we find an absence of the required absolute or manifest necessity for the discharge of the jury. A retrial, in these events, would violate the appellant’s double jeopardy rights under the Fifth Amendment.

Appellant’s motion to quash indictment is granted, and he is ordered discharged.

PRICE, J., files a dissenting opinion.

JACOBS and WATKINS, former President Judges, and HOFFMAN, J., did not participate in the consideration or decision of this case.

*153 PRICE, Judge, dissenting:

The pivotal question is whether the trial court properly exercised its discretion in finding manifest necessity to warrant declaring this mistrial. Since I believe that that discretion was properly exercised, I would affirm the denial of the motion to quash in the lower court.

I agree that doubt must be resolved in favor of appellant, however, I would not find a doubt under the circumstances here presented.

The trial judge did not assume a deadlock on the jury. The jury, through the foreman, stated the belief that the jury would never be able to reach a verdict. This was done in open court with all of the jurors present. The trial court had the benefit of the reactions of the jury. None of the jurors offered any contrary view when the foreman informed the court of the deadlock. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976).

I find no requirement that each juror be questioned. Indeed, the court in Bartolomucci, supra, declined to express a view on such a procedure. And, in keeping with the discretion involved, I note the following excerpt from the trial judge’s remarks at the time the mistrial was declared:

“This has been a difficult case from many angles and in many respects and obviously, you have served very conscientiously, you have given to it your best, and I thank you very much for what you have done. Not every case is resolved by the jury, and you’ve not been able to resolve this one. But it’s written all over your faces that you’ve given it your real consideration, you’ve given it real effort, and I thank you and I congratulate you.” (NT 616) (Emphasis added).
Such a clear indication that the trial judge read the reaction of the jury as agreement with the foreman’s answers, as set forth in the majority opinion, leaves no doubt in my mind that the mistrial was properly declared.

Further, the record reveals no request by appellant to poll the jury, nor does it reveal an objection to the declaration of *154 a mistrial. Under Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), errors not objected to at trial will not be reviewed on appeal. I believe appellant has waived his right to the relief the majority grants.

I would affirm the court below.

NOTES
[1] No issue is raised concerning the propriety of the additional instruction. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971).

[2] Our Supreme Court has declared that a “manifest necessity” in these circumstances is the equivalent of an “absolute necessity.” Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964).

[3] Such an inquiry would have been valuable here, where the jury foreman told the trial judge, when asked if he felt the jury would not be able to reach a verdict: “I have been informed of that, yes, sir.” (Emphasis supplied). Such a response raises questions of whether the foreman’s assessment of irreconcilable conflicts in juror’s attitudes was shared by all of the jurors. See United States ex rel. Webb v. Court of Common Pleas of Philadelphia County, supra, at 1043-1044, on this issue.

Information Related to Richard Charles Haefner versus Sprague, June 14, 1985.

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Haefner v. Sprague
Full Name: Haefner v. Sprague
Citations: 343 Pa. Super. 342, 494 A.2d 1115
Date: June 14, 1985
343 Pa. Superior Ct. 342 (1985).

Richard HAEFNER, Appellant, v. Richard A. SPRAGUE, Edward H. Rubenstone, Sprague and Rubenstone, A Partnership, Jack L. Gruenstein, Michael Minkin, Julie T. Barsel, Supreme Court of Pennsylvania.

Argued April 4, 1985, filed June 14, 1985. Gene E.K. Pratter, Philadelphia, for appellees.

Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.

CAVANAUGH, Judge: At issue in this pro se appeal by Richard Haefner is whether the trial court properly granted preliminary objections thereby striking appellant’s complaint on the basis that the previous entry of a judgment of non pros for failure to file a complaint on the same cause of action barred the filing of a new complaint.

PREVIOUS HISTORY
Appellant, Richard Haefner, acting pro se, commenced a legal malpractice action by summons against appellee, attorneys, in August of 1983. He was thereafter served with a rule to file a complaint within twenty days. Haefner failed to file a complaint within that period of time, but did file an “Answer” to the rule, stating his desire to conduct discovery in aid of his preparation of a complaint, and seeking time to find an attorney to represent him. Appellees filed a praecipe to enter a judgment of non pros. Thereafter, appellant filed his complaint but, upon preliminary objections, the complaint was stricken. Haefner’s petition to open the judgment of non pros was subsequently denied on May 24, 1984. On appeal to this court, a panel majority affirmed the order of the trial court. Haefner v. Sprague, No. 1873 Philadelphia, 1984 (Pa.Super.Ct. filed April 4, 1985). Meanwhile, Haefner had instituted the *345 present action by summons in April of 1984, followed by a Complaint filed June 5, 1984 an “Amended Complaint” on July 6, 1984, and a “Reinstated Amended Complaint” on July 25, 1984. The present appeal is from the court’s order on preliminary objections dated September 17, 1984 which struck the complaints.

DISCUSSION
The decision of the trial court and appellees’ brief on appeal rely upon a single decision of this court for authority that the new complaint could not be filed. Bon Homme Richard, Etc. v. Three Rivers Bank, 298 Pa.Super. 454, 444 A.2d 1272 (1982). In that case, a panel majority affirmed an order which dismissed a complaint under Allegheny County Local Rule 229(e). The court held that under authority of International Telephone and Telegraph Corp. v. Philadelphia Electric Co., 250 Pa.Super. 378, 378 A.2d 986 (1977) the claimant failed to either seek permission to bring a second action or to properly reactivate the complaint which had been dismissed under the local rule. Indeed, in International Telephone, supra, the court adopted an “open judgment” standard for reactivation of complaints which were dismissed for unreasonable inactivity. Thus, in such situations it must be shown that: (1) the petition [for reactivation] is timely filed; (2) the reason for default [inactivity] is reasonably explained; and, (3) facts constituting a meritorious cause of action be alleged. The Bon Homme court found that the appellant there had failed to seek permission to file a second complaint or reactivate the previous complaint and, hence, dismissed the complaint. Indeed, therefore, if Bon Homme, supra, applies to the present action, the dismissal by the court below was proper since Haefner did not successfully seek to reactivate under the International Telephone and Telegraph standard nor did he seek permission to file a second complaint. We find the International Telephone and Telegraph and Bon *346 Homme line of cases,[1] however, to be inapposite. These cases are matters which were dismissed pursuant to local rules of court adopted pursuant to Pennsylvania Rule of Judicial Administration 1901. That rule, with its stated policy of promoting the prompt conclusion of matters pending in the judicial system, mandated the termination of matters which have “been inactive for an unreasonable period of time. . . .” 1901(a). Each court of common pleas is thus directed to make local rules for the implementation of the policy. As a “minimum standard” Rule 1901 provides that each party be given at least thirty days notice of opportunity for hearing on the proposed termination and if notice is given by publication matters may be reinstated for good cause shown. Accordingly, local rules enacted pursuant to Rule 1901 are intended to reach cases inactive for an unreasonable length of time, and may only be dismissed after reasonable notice. It would follow that reinstatement may be permitted only after meeting an open judgment standard of promptness and merit, otherwise the policy of terminating stale claims as enunciated by Rule 1901 and implemented by local rules would be but an empty fulmination against stale matters pending in the judicial system. Haefner’s first suit was not dismissed under any local rule applicable to inactive cases, however. Granted, it was dismissed for failure to timely file a complaint, but the delay by Haefner is measured in terms of months, not the kind of prolonged inactivity contemplated by Rule 1900;[2] and, true enough, decided cases recognize this distinction.

In very similar circumstances, Gordon-Stuart, Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770 (1976) a *347 judgment of non pros was entered when plaintiff failed to comply with an order to file a more specific Complaint. More than two months thereafter plaintiff commenced a new action identical to the non prossed suit. This court reversed the trial court order stricking the second complaint. The court noted that plaintiff had tendered the costs incurred in the first action to the defendant and that the statute of limitations had not expired. Following the reasoning of Bucci v. Detroit Fire & Marine Ins. Co., 109 Pa.Super. 167, 167 A. 425 (1933), our court reversed the trial court and held:

In either instance, that is, where the plaintiff is non-prossed for neglecting to file a seasonable complaint, or failing to file an amended pleading, the judgment for the defendant is not on the merits and does not preclude the plaintiff from commencing another suit on the same cause of action, provided that the statute of limitations has not expired and the plaintiff has made payment for the costs of the former suit
Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770, 772 (1976).

The legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations. Doner v. Jowitt and Rodgers Co., 299 Pa.Super. 492, 445 A.2d 1237 (1982). Accord: Commonwealth v. Bailey, 278 Pa.Super. 51, 419 A.2d 1351 (1980); Kulp v. Lehigh Valley Transit Co., 81 Pa.Super. 296 (1923); Murphy v. Taylor, 63 Pa.Super. 85 (1916); Derrickson v. The Colonial Trust Co., 17 Pa.D. 80 (1907); 7 Standard Pa. Practice 2nd § 39:97.

We find the latter line of cases to control the present situation and further note that there is no contention that Haefner has not offered to pay the costs of the non prossed *348 complaint[3] or that the statute of limitations has expired. Accordingly, the complaint[4] is reinstated and the matter is remanded for further proceedings.

Reversed and remanded. Jurisdiction relinquished.

NOTES
[1] See, e.g., Thompson v. Cortese, 41 Pa. Commonwealth Ct. 174, 398 A.2d 1079 (1979), Commonwealth Department of Public Welfare v. Flowers, 46 Pa. Commonwealth Ct. 326, 407 A.2d 896 (1979); Chaplynsky v. Broad St. Hospital, 305 Pa.Super. 497, 451 A.2d 757 (1982); Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 421 A.2d 810 (1980).

[2] See, e.q., Philadelphia Court of Common Pleas Rule 130 which requires that a case be inactive for two years before being subjected to dismissal. Since most Rule 1901 dismissals for inactivity are ipso facto for cases where the statute of limitations has expired for purposes of a new action, the plaintiff is relegated to seeking reinstatement.

[3] We note that Mr. Haefner was granted in forma pauperis status by order of Judge White on April 26, 1984.

[4] In an apparent effort to cover all contingencies appellant has, in fact, filed a new Complaint, an “Amended Complaint” and a “Reinstated Amended Complaint.” Of course, the trial court may properly cause appellant to justify the multiplicity of actions or face appropriate dismissal.

Information Related to the Appeal and Expungement Petition of Richard Charles Haefner, October 30, 1981.

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Full Name: Richard Charles Haefner; Citations: 291 Pa. Super. 604, 436 A.2d 665
Date: October 30, 1981, 291 Pa. Superior Ct. 604 (1981); 436 A.2d 665.

In re Expungement Petition of Richard Charles HAEFNER. Appeal of Richard Charles Haefner.

Superior Court of Pennsylvania, argued December 5, 1980 and filed on October 30, 1981.

John Kenneff, Assistant District Attorney, Lancaster, for Commonwealth, participating party, before HESTER, CAVANAUGH and VAN der VOORT, JJ.

HESTER, Judge: This is an appeal from an order of the Court of Common Pleas of Lancaster County refusing to grant expungement of an arrest record. The procedural history and facts relevant to the issues on appeal are as follows:

Appellant was charged with corruption of minors at Information No. 3218 of 1975, involuntary deviate sexual intercourse at No. 3219 of 1975, and corruption of minors at No. 3220 of 1975. The charge at No. 3218 of corruption of minors was nolle prossed by the Commonwealth on March 7, 1980 after five years of inactivity for lack of evidence.

*606 Appellant was tried before a jury on the other two criminal Informations in a trial which began on January 27, 1976 and ended on February 3, 1976 when the trial judge sua sponte declared a mistrial. The trial judge ordered a mistrial when the jury foreman indicated that the jury would not be able to reach a verdict. Our Court granted a motion to quash the Information because appellant’s retrial was barred by his Fifth Amendment right not to be placed in double jeopardy. Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979).

A hearing was held on the petition to expunge on January 25, 1980 at which time the Commonwealth presented no evidence. The trial court granted expungement as to criminal Information No. 3218, and denied expungement as to the two Informations on which appellant was tried. This timely appeal followed.

Appellant contends the trial court erred in imposing upon him the burden of affirmatively demonstrating his non-culpability under the facts herein.

We have held that the right of an accused to seek expungement of an arrest record is an adjunct to due process. Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). We have further held that where the Commonwealth has made out a prima facie case but the prosecution was terminated because of a procedural irregularity or legal technicality unrelated to questions of guilt or innocence, the accused has the burden of affirmatively demonstrating nonculpability. Upon such a showing, the trial court then had to weigh the Commonwealth’s interest in retaining the arrest record against the accused’s interest in freedom from harm ancillary to the arrest record. Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978); Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979). Mueller dealt with a dismissal pursuant to Rule 1100, a procedural rule, and not an inability to produce sufficient evidence to convict on the part of the Commonwealth at a trial on the merits.

*607 One of the basic tenets of our system of criminal justice is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. Here, unlike Mueller, supra, although a prima facie case was made out, following a lengthy trial on the merits the jury was unable to agree on a verdict demonstrating the Commonwealth’s inability to prove appellant’s guilt beyond a reasonable doubt. Then, not because of any procedural irregularity, but rather because of appellant’s Fifth Amendment right not to be placed in double jeopardy, the Information against him was quashed and appellant was not retried. Thus, the prosecution of appellant was terminated because the Commonwealth was unable to produce sufficient evidence to convince a jury of his peers of his guilt beyond a reasonable doubt and a second trial was constitutionally prohibited. We therefore distinguish Mueller, supra, and refuse to impose the burden of showing non-culpability upon the appellant. We will not, nor will we permit the trial court to engage in an independent evaluation of the evidence presented at trial which already proved to be insufficient to prove appellant’s guilt beyond a reasonable doubt. Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980).

We next must balance the competing interests in determining whether appellant is entitled to expungement. The Commonwealth presented no evidence whatsoever justifying the retention of appellant’s arrest record.

On the other hand, appellant testified that he holds a Ph.D. in geology from Penn State University and had been an assistant professor at two colleges. He testified that he lost his position after the charges were instituted and has been unable to obtain new employment. He has applied at approximately 100 institutions seeking a teaching position. He stated that he had never been arrested before, nor after these charges were filed. He further stated that his arrest record has interfered with his ability to obtain employment and has affected his reputation. Finally, he testified he was not guilty of any of the offenses with which he was charged.

*608 Our review of the record indicates the appellant has shown substantial reasons why he should be free of an arrest record, while the Commonwealth has failed to submit a compelling reason, to maintain the record.

Accordingly, the Order of the trial court is reversed and the case remanded with directions to enter an order granting expungement.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge, dissenting:

I respectfully dissent. In Commonwealth v. Mueller, 258 Pa.Super. 219, 223, 392 A.2d 763, 765 (1978), a majority of our Court sitting en banc vacated the lower court’s expungement order, holding that “where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied.” In the case before us, as in Mueller, the Commonwealth made out a prima facie case against the accused at the preliminary hearing, and the prosecution was terminated for reasons not related to guilt or innocence. In Mueller the prosecution was terminated because of the Commonwealth’s failure to proceed with the case within 180 days of filing of the complaint; in the case before us it was terminated because the trial judge impetuously and improperly declared a mistrial. Unlike the accused persons in Commonwealth v. Rose, 263 Pa.Super. 349, 397 A.2d 1243 (1979), and Commonwealth v. Capone, 282 Pa.Super. 458, 422 A.2d 1383 (1980), cited in the majority opinion, appellant in the case before us was not found to be innocent. The majority equates a mistrial caused by the court with a finding of innocence. This appears to me to be clearly a non sequitur.

I believe that Mueller is controlling in this situation, and I would therefore affirm the lower court’s order refusing to expunge appellant’s arrest record.\

Probable Cause Affidavit Associated with the Arrest of Terrence Miller in Relation to the Murder of Jody Gwen Loomis.

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Page one of the affidavit associated with the arrest of Terrence Miller.
Page two of the affidavit associated with the arrest of Terrence Miller.
Page three of the affidavit associated with the arrest of Terrence Miller.
Page four of the affidavit associated with the arrest of Terrence Miller.
Page five of the affidavit associated with the arrest of Terrence Miller.
Page six of the affidavit associated with the arrest of Terrence Miller.
Page seven of the affidavit associated with the arrest of Terrence Miller.
Page eight of the affidavit associated with the arrest of Terrence Miller.
Page nine of the affidavit associated with the arrest of Terrence Miller.
Page ten of the affidavit associated with the arrest of Terrence Miller.
Page eleven of the affidavit associated with the arrest of Terrence Miller.
Page twelve of the affidavit associated with the arrest of Terrence Miller.