J-A23033-20

2020 PA Super 279

DONALD BRASWELL 

Appellant

v.

MELODY WOLLARD AND 

DOLGENCORP, LLC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2589 EDA 2019

Appeal from the Order Entered July 30, 2019

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 180303384

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED DECEMBER 09, 2020

Donald Braswell (Braswell) appeals an order of the Court of Common 

Pleas of Philadelphia County (trial court) granting full summary judgment in 

favor of the defendants/appellees, Melody Wollard (Wollard) and her 

employer, Dolgencorp, LLC (Dolgencorp).

The case arose from Braswell’s dispute with a convenience store cashier, 

Wollard, over whether he received correct change on his purchase of some cat 

food. Relying on his receipt showing he received $10 less than what was due, 

Braswell took that sum from the register and reported the incident to police. 

Wollard subsequently reported that Braswell had robbed the store of that 

money.

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* Retired Senior Judge assigned to the Superior Court.
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Police soon arrested and detained Braswell on criminal charges despite 

knowledge of a receipt showing that Braswell was, in fact, owed the money 

he took. When those charges were dismissed months later, Braswell filed civil

claims against Wollard and Dolgencorp, including counts of false arrest, false 

imprisonment and malicious prosecution. The trial court ruled that Braswell

failed to raise genuine issues of material fact as to those claims, but for the 

reasons that follow, we reverse the summary judgment order and remand the 

case for further proceedings.

1

I.

Our recitation of the facts is taken from the certified record. In 2017, 

Braswell entered a Dollar General convenience store in Bensalem, 

Pennsylvania to buy cat food that cost $6.89. Braswell paid for the item, and 

the cashier, Wollard, gave him $3.11 in change, as if he had only paid with a 

$10 bill. However, Braswell received a receipt reflecting that he had paid with 

a $20 bill.

After a verbal altercation over whether Braswell had received the correct 

change, he and Wollard entered a back office within the store to watch a 

surveillance video of the transaction. The video did not resolve the argument,

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1 Braswell does not challenge the portions of the summary judgment order 

dispensing with his other claims, so those rulings are not at issue here.
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but Braswell took a $10 bill from a cash drawer in the office. Wollard was 

holding the cash drawer at the time Braswell took the bill.

Braswell immediately called the police to report what had happened, but

when they arrived, Braswell was already gone. Wollard had remained, and 

she gave a witness statement to Officer Francis Hayden, asserting that 

Braswell had entered the store’s office without permission and stolen $10 from 

the register’s cash drawer or till. Officer Hayden reviewed a surveillance video 

showing that Braswell had indeed entered the office and taken a $10 bill from 

a register. The surveillance video was never entered into evidence and 

witness descriptions of the video’s contents are vague as to how well the 

recording presented the events in question.

The officer acknowledged that since Braswell had himself called the 

police to report the incident and only taken an amount equivalent to the 

disputed sum, it was clear that Braswell believed he was only taking his own 

money. The officer was also aware that Braswell had a receipt showing that 

he was legally entitled to the money he took. Nevertheless, later that evening, 

police located Braswell and arrested him on charges of robbery and theft.

At the preliminary hearing on those charges in Braswell’s criminal case, 

Officer Hayden expressly stated that he relied on both Wollard’s account and 

the surveillance video to justify Braswell’s arrest. Wollard also testified at the 

hearing that Braswell’s receipt had resulted from her intentional act of 

entering a $20 payment on the register: “He was talking about his cat so I 
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just typed in 20 dollars to open the drawer to start counting the change.” 

Hearing Transcript, 3/1/2017, at p. 15. Wollard explained that in the several 

years she had operated the register at the store, she “always put in just any 

amount just so the drawer will open.” Id. at p. 14.

The magisterial district judge found that the arrest was supported by 

probable cause and imposed a bail amount of $75,000. Braswell was unable 

to post bail and as a result, he remained in custody for over four months

until prosecutors, having reviewed the evidence, including the surveillance 

video recording of the incident, finally decided to drop all criminal charges.

Braswell then filed a civil suit against Wollard and Dolgencorp (the owner 

of the Dollar General store) seeking damages for false arrest, false 

imprisonment, malicious prosecution and defamation. Notably and contrary 

to her testimony in the criminal matter, Wollard stated in her deposition in the 

civil case that she keyed a payment of $20 into the register accidentally: “I 

think I just made a mistake.” Wollard Deposition, 10/24/2018, at p. 14.2

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2 Wollard testified that the register’s till balanced out correctly after Braswell’s 

transaction, which purportedly established that she correctly gave him change 

for a $10 payment on an item costing $6.89. However, the till total is 

irrelevant because it does not rebut Braswell’s claim that after he paid $20, 

Wollard kept $10 of his change for herself. For example, had the till contained 

exactly $100 at the time of Braswell’s purchase, both of their competing 

versions of the transaction would lead to the same final sum. If Braswell’s 

story is true, then the total would be $106.89 ($100 + $20 (to till) – $3.11 

(to Braswell) – $10 (to Wollard) = $106.89 in the till). If Wollard’s story is 

true, the total would be identical ($100 + $10 (to till) – $3.11 (to Braswell) = 

$106.89 in the till).
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Wollard and Dolgencorp moved for summary judgment. The trial court 

granted the motion, finding that Braswell had failed to raise an issue of 

genuine material fact as to any of his claims. See Trial Court Opinion, 

9/26/2019, at 4-5. The trial court reasoned that even viewing the evidence 

and all reasonable inferences in a light favorable to Braswell, the evidence 

could not support a finding that Wollard deliberately gave false information to 

the police. Id. The trial judge concluded that, at most, the evidence 

supported a reasonable inference that Wollard was merely “mistaken” when 

reporting to police that a robbery had occurred. Id.

Additionally, while the trial court recognized that Braswell and Wollard 

disagreed on what had happened, it determined that “there is no evidence of 

record from which a jury could infer that [Wollard’s] desire to have criminal 

proceedings initiated against [Braswell] was the determining factor in Officer 

Hayden’s decision to begin criminal proceedings against [Braswell].” Id. at 2. 

The trial court stated that Braswell could not prove his claims as a matter of 

law because, even if Wollard lied, the police could have independently relied 

on surveillance video to establish probable cause for Braswell’s arrest.

Braswell timely appealed, arguing that the trial court erred in finding 

there were no disputed issues of fact as to whether Wollard deliberately gave 

false information to the police, leading to his arrest and incarceration. He 
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contends that his civil claims of malicious prosecution, false arrest and false 

imprisonment should have gone to a jury.3

II.

A.

Braswell first contends that the trial court erred in ruling that he could 

not make out his claim for malicious prosecution. This cause of action has 

three elements: (1) the defendant has initiated criminal proceedings against 

the plaintiff without probable cause; (2) the defendant has acted deliberately 

with malice; and (3) the proceedings have terminated in favor of the plaintiff. 

See Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Cmwlth. 2010).

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3 “In determining whether the lower court erred in granting summary 

judgment, the standard of review is de novo and the scope of review is 

plenary.” Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941, 950 

(Pa. 2019). To survive a defense motion for summary judgment, a plaintiff 

must “adduce sufficient evidence on an issue essential to his case and on 

which he bears the burden of proof such that a jury could return a verdict in 

his favor.” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1207 n.15 (Pa. 

2009). 

“[S]ummary judgment will be granted only in those cases which are free and 

clear from doubt.” See Washington v. Baxter, 719 A.2d 733, 737 (Pa. 

1998). “Where the facts can support conflicting inferences, it cannot be said 

that the case is free from doubt and thus ripe for summary judgment.” Id. at 

740 n.10. “[A]n appellate court may reverse the entry of summary judgment 

only where it finds that the trial court erred in concluding that the matter 

presented no genuine issue as to any material fact and that it is clear that the 

moving party was entitled to judgment as a matter of law.” Phillips v. 

Cricket Lighters, 841 A.2d 1000, 1004 (Pa. 2003).
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Probable cause for an arrest is defined as “facts and circumstances 

within the officer’s knowledge are sufficient to warrant a person of reasonable 

caution in the belief that an offense has been or is being committed.” 

Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa. 2004). Courts must 

evaluate probable cause in light of “all relevant facts under a totality of 

circumstances analysis.” Commonwealth v. Hernandez, 935 A.2d 1275, 

1284 (Pa. 2007).

In this case, the trial court found that there was no evidence from which 

a jury could conclude that Wollard acted with malice by relaying information 

to police she knew to be false. The trial court also ruled that police would 

have had probable cause to arrest Braswell regardless of whether Wollard 

intentionally made false allegations. Taking the evidence in the light most 

favorable to Braswell, we conclude that the trial court erred as to both of those 

elements.

B.

Regarding malice, there was sufficient evidence for a jury to reasonably 

infer that Wollard knowingly made a false report. Braswell attempted to raise 

this inference with the following facts:

 Braswell’s receipt was direct evidence that he paid $20 and 

not $10.

 Wollard gave two conflicting explanations for the receipt, 

stating initially that she had deliberately hit the $20 register key 

even when receiving a different denomination, but then stating 

later that that she hit the $20 key accidentally.
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 Braswell’s behavior indicates that he honestly believed he 

paid with a $20; otherwise he would not have called the police 

and taken only $10 out of a register full of money.

 Braswell’s charges were dismissed by the District Attorney 

after a review of the evidence, including a surveillance recording 

of the incident, allowing a reasonable inference that the video 

supported Braswell’s account.4

By correctly acknowledging that Wollard could have been mistaken when 

she reported a robbery but rejecting Braswell’s circumstantial evidence that 

Wollard knowingly made a false accusation, the trial court erroneously resolved 

an issue of credibility, which is the sole province the jury. See White v. 

Owens-Corning Fiberglas, Corp., 668 A.2d 136, 142 (Pa. Super. 1995)

(credibility of a witness “is a determination for the jury and necessarily creates 

genuine issue of material fact.”).

It is well-settled that summary judgment cannot be granted where the 

evidence supports conflicting inferences, as it does here. See Washington v. 

Baxter, 719 A.2d 733, 740, n.10 (Pa. 1998) (“Where the facts can support 

conflicting inferences, it cannot be said that the case is free from doubt and 

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4 Wollard and Dolgencorp opted not to introduce the surveillance video 

recording into evidence despite it being in their possession. In the light most 

favorable to Braswell, this supports a reasonable inference that it would have 

bolstered Braswell’s account that he had tendered a $20 bill and that Wollard 

gave a false statement to police. See Clark v. Phila. Coll. of Osteopathic 

Med., 693 A.2d 202, 204 (Pa. Super. 1997) (quoting Haas v. Kasnot, 92 

A.2d 171, 173 (Pa. 1952)) (explaining that a jury may infer that evidence 

would disfavor a party “[w]here [it] would properly be part of a case, [it] is 

within the control of the party whose interest it would naturally be to produce 

it, and, without satisfactory explanation he fails to do so[.]”).
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thus ripe for summary judgment.”). Accordingly, since any issue of Wollard’s 

personal knowledge and subjective intent had to be decided as a matter of 

credibility, it was for the jury to weigh her testimony, not the trial court. See 

Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (credibility determinations are 

within the sole province of the jury, which may believe all, part or none of the 

evidence presented).

C.

With respect to the probable cause element of malicious prosecution, 

the trial court misapplied the law in ruling that police would have arrested

Braswell regardless of whether Wollard knowingly made false accusations.

Officer Hayden himself testified that he arrested Braswell based in part 

on what Wollard had told him. The officer’s viewing of the convenience store’s

surveillance video only corroborated what Braswell had himself reported – that 

he took $10 from the store register because he believed it was rightfully his. 

The officer knew Braswell had a receipt that partially bolstered his claim that 

it was Wollard who had attempted to perpetrate a theft against him.

Essentially, Wollard and Braswell had each accused the other of 

committing a crime. The sole basis for the officer to believe Braswell to be 

the perpetrator was Wollard’s statement to that effect. The officer could have 

only arrested Braswell because he believed that Wollard was more credible.

On these facts, it was impossible for Officer Hayden to have grounded 

his probable cause determination on evidence other than Wollard’s version of 
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events. If, for summary judgment purposes, it is presumed that Wollard 

knowingly gave false information to the police, then as a matter of law, it must 

also be presumed that Braswell’s arrest was initiated by those accusations:

A private person who gives to a public official information of 

another’s supposed criminal misconduct, of which the official is 

ignorant, obviously causes the institution of such subsequent 

proceedings as the official may begin on his own initiative, but 

giving the information or even making an accusation of criminal 

misconduct does not constitute a procurement of the proceedings 

initiated by the officer if it is left entirely to his discretion to initiate 

the proceedings or not. When a private person gives to a 

prosecuting officer information that he believes to be true, 

and the officer in the exercise of his uncontrolled discretion 

initiates criminal proceedings based upon that information, 

the informer is not liable . . . even though the information 

proves to be false and his belief was one that a reasonable man 

would not entertain. The exercise of the officer’s discretion makes 

the initiation of the prosecution his own and protects from liability 

the person whose information or accusation has led the officer to 

initiate the proceedings.

If, however, the information is known by the giver to be 

false, an intelligent exercise of the officer’s discretion 

becomes impossible, and a prosecution based upon it is 

procured by the person giving the false information. In 

order to charge a private person with responsibility for the 

initiation of proceedings by a public official, it must therefore 

appear that his desire to have the proceedings initiated, expressed 

by direction, request or pressure of any kind, was the determining 

factor in the official’s decision to commence the prosecution, or 

that the information furnished by him upon which the official acted 

was known to be false.

Bradley v. Gen. Acc. Ins. Co., 778 A.2d 707, 711 (Pa. Super. 2001) (quoting 

RESTATEMENT (SECOND) OF TORTS § 653, comment g) (emphasis added).

The presumption in Braswell’s favor at the summary judgment stage 

was that Wollard gave a knowingly false statement. This being the case, the 
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trial court was foreclosed from concluding that the arresting officer could have 

exercised independent discretion when apprehending Braswell. Again, it was 

for the jury to resolve Wollard and Braswell’s credibility as an issue of genuine 

material fact, and if it were to find Wollard not to be credible, then her 

accusations would necessarily be a determining factor leading to Braswell’s 

arrest.

Because Braswell offered sufficient evidence to raise genuine issues of 

material fact as to all elements of his malicious prosecution claim, the portion 

of the order granting summary judgment as to this count in favor of Wollard 

and Dolgencorp must be reversed.

D.

We next consider whether the trial court erred in granting summary 

judgment in favor of Wollard and Dolgencorp as to Braswell’s claims of false 

arrest and false imprisonment. In Pennsylvania, these two civil causes of 

action are identical theories of liability. See Alleyne v. Pirrone, 180 A.3d 

524, 543 (Pa. Cmwlth. 2018); Gagliardi v. Lynn, 285 A.2d 109, 111-12 (Pa. 

1971). Both require “(1) the detention of another person (2) that is unlawful.” 

Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Cmwlth. 2010); see also 

Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (same).

Typically, these claims are lodged against defendants who have actually 

held the plaintiff in custody, such as police, but not defendants whose 

statements have prompted police to arrest the plaintiff. It was never alleged 
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in this case, much less proven, that Wollard or Dolgencorp detained Braswell. 

We must, therefore, decide as a preliminary matter whether the claims of false 

arrest and false imprisonment are applicable to parties who have not 

themselves taken the plaintiff into custody.

5

Although we have found no controlling Pennsylvania decisions on this 

specific point, Pennsylvania law has been interpreted to allow such claims 

against private parties alleged to have indirectly caused an arrest by making

a false report. See Doby v. Decrescenzo, 1996 WL 510095, at *13 (E.D. 

Pa. Sept. 9, 1996) (finding defendant could be liable for false 

arrest/imprisonment “if he has either knowingly provided false information to 

authorities or knowingly provided incomplete, misleading information to the

authorities which resulted in the detention of another.”); see also Martucci 

v. Borough of Milford, 2018 WL 175572 (E.D. Pa. Apr. 10, 2018); Davila v. 

United States, 247 F.Supp. 650, 658-59 (W.D. Pa. 2017); Reiber v. 

Fillipone, 2016 WL 7034704 (E.D. Pa. Dec. 2, 2016); Gilbert v. Feld, 788 

F.Supp. 854, 862 (E.D. Pa. 1992).6

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5

In its opinion, the trial court alluded to such claims as being limited to 

situations where the defendant has held the plaintiff in custody, and the trial 

court seemed to grant summary judgment on that ground. See Trial Court 

Opinion, 9/26/2019, at 6. The trial court ruled more clearly that Braswell’s 

claims lacked merit since his arrest would have been lawful independent of

Wollard’s statements. See id.

6 We decline to adopt the contrary view of the minority of federal courts 

interpreting Pennsylvania law more narrowly. See e.g., Simmons v. 
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Moreover, and as outlined above, there is sufficient evidence from which 

a jury could reasonably infer that Wollard’s statements to police were

knowingly false and, therefore, a determinative factor in the police’s decision 

to arrest Braswell. Thus, we are compelled to reverse the portions of the trial 

court’s order granting summary judgment as to Braswell’s claims of malicious 

prosecution, false arrest and false imprisonment. The order is affirmed in all 

other respects.

Order affirmed in part and reversed in part. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/20

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Poltrone, 1997 WL 805093, at *8 (E.D. Pa. Dec. 17, 1997); Thomas v. IPC 

Int'l Corp., 2004 WL 292477, at *4 (E.D. Pa. Feb. 12, 2004).