DiStefano v. Macy's, PICS Case No. 14-0505 (E.D. Pa. March 31, 2014) Shapiro, J. (8 pages).

U.S. DISTRICT COURT-EASTERN

The Legal Intelligencer

CRIMINAL LAW

Receiving Stolen Property • False Arrest/Imprisonment • Malicious Prosecution • Probable Cause

DiStefano v. Macy's, PICS Case No. 14-0505 (E.D. Pa. March 31, 2014) Shapiro, J. (8 pages).

Where a private entity had reason to believe evidence establishing reasonable suspicion a crime of theft, and that information was communicated to the police who made the determination of probable cause for arrest, the private entity was not liable for false arrest/imprisonment and malicious prosecution. Granted.

Plaintiff David DiStefano was arrested for theft by deception, receiving stolen property, and conspiracy, after he was implicated in a scheme to obtain credit for a return of purchased goods without returning the goods from defendant Macy's by his then-girlfriend, Lisa McCabe, an employee of Macy's. Macy's Director of Loss Prevention, Frank DeCicco, interviewed McCabe and obtained a signed Loss Prevention Statement, confessing of the scheme and DiStefano's participation. DeCicco also obtained surveillance video purporting to show DiStefano and McCabe making a fraudulent return.

DeCicco contacted local police to report the crime, and informed the police officer who arrived, Officer John Catrombon, of the evidence of the crime; McCabe was arrested, and Officer Catrombon filed an affidavit of probable cause seeking DiStefano's arrest. DiStefano was later arrested in the parking lot of the Macy's after he arrived to meet McCabe.

Following several preliminary hearings, all charges against DiStefano were withdrawn. DiStefano filed this complaint against Macy's, alleging false arrest, false imprisonment, and malicious prosecution. In a later deposition, McCabe stated that she could not recall her interview with DeCicco or signing the Loss Prevention Statement, or making a false return with DiStefano.

Macy's filed a motion for summary judgment. The court noted that a private entity could only be responsible for the initiation of proceedings by a public official if that private entity directed or pressured the official to initiate the proceedings, or the private entity knowingly furnished false information. If the information was believed to be true, a law enforcement official would have exercised his or her discretion to determine the existence of probable cause. The court further noted that plaintiff's claims had to be dismissed if probable cause existed at the time of arrest.

The court found that DeCicco had obtained a confession from McCabe, along with corroborating receipts and video surveillance, which DeCicco then shared with law enforcement. The court rejected DiStefano's argument that Macy's did not conduct a "reasonable investigation" or give DiStefano a chance to explain himself, finding that even if DiStefano could have provided exculpatory information, Macy's had no obligation to contact him, and that it was in the public interest for Macy's to contact law enforcement when it had reasonable suspicion that a crime had been committed. The court further found that, despite other discrepancies raised by DiStefano, the totality of the evidence was sufficient to support a finding of probable cause.

The court held that the fact that the charges against DiStefano were dropped or that Macy's could have conducted a more thorough investigation were insufficient to support DiStefano's claims as long as a showing of probable cause could be made.

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