On June 22, 2011 the Appeals court in an unpublished opinion ruled on Robert GRINHAM v. Thomas KOMINSKY & another No.10-P-2031(2011)MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 where they upheld the termination and dismissed civil counts against the town.
Note: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
The Appeals court in deciding the case stated “The plaintiff, Robert Grinham, was a police sergeant in the Easton (town) police department. As a result of a beating he gave a prisoner, which was witnessed by fellow police officers, he was ultimately fired. His appeal concerns his contention that his two superior police officers, the defendants, Thomas Kominsky and Allen Krajcik, maliciously caused him to be criminally prosecuted and intentionally interfered with his contractual or advantageous relationship with the town.
A magistrate held a hearing and determined that the plaintiff had violated several departmental regulations. As a result, the plaintiff was fired, a decision that was upheld by the Civil Service Commission, the Superior Court, and our court. See Grinham v. Easton, 76 Mass.App.Ct. 1136 (2010). The plaintiff also had been indicted by a grand jury for his actions. At his criminal trial, he was found not guilty.
In the present action, the plaintiff generally alleges that the defendants improperly investigated the incident, maliciously conspired to put the plaintiff in the worst possible light, lied to the hearing magistrate, and caused the plaintiff to be criminally prosecuted, all without good cause. A Superior Court judge allowed, properly in our view, the defendants’ summary judgment motion, ruling that the plaintiff
“cannot establish these defendants initiated criminal action against him. It was a Grand Jury that indicted him. Similarly, he cannot prove it was the defendants who induced the Town Administrator to terminate him; she did so after a hearing. That process was affirmed by another judge of this court. Moreover, plaintiff cannot show any evidence of improper motive or malice existing in these defendants.”
Malicious prosecution. To succeed on a claim of malicious prosecution, the plaintiff must prove that the defendants instituted a criminal process against the plaintiff with malice, without probable cause, and the proceedings terminated in the plaintiff’s favor. Correllas v. Viveiros, 410 Mass. 314, 318-319 (1991). Sklar v. Beth Israel Deaconess Med. Center, 59 Mass.App.Ct. 550, 557 (2003). Viewing the evidence in the light most favorable to the nonmoving party, the plaintiff’s argument fails as he cannot adequately demonstrate that the defendants initiated the criminal process without probable cause. The matter was properly referred to the district attorney’s office, which in turn, given a conflict, referred it to the Attorney General’s office. An assistant attorney general conducted an investigation and concluded that charges should be filed. It was thus not the defendants who instituted the criminal process against the plaintiff.
“The mere transmission of information to a police officer, who using his or her independent judgment, then pursues the matter and institutes criminal proceedings, has never been held sufficient to support an action for malicious prosecution.” Correllas, supra at 318. To similar effect is Conway v. Smerling, 37 Mass.App.Ct. 1, 4 (1994), wherein our court wrote that “[i]f a citizen registers with the police an apprehension that a crime has been committed and leaves the matter to the judgment and responsibility of the public officers, that citizen, though having started the chain of events that led to legal process, cannot be charged with malicious prosecution.”
**2 Although this case is not the more typical one of a civilian lodging a criminal complaint to the police which leads to prosecution, the principle remains the same. The officers at issue here alerted the district attorney as to the beating. The district attorney then referred it to the Attorney General’s office, which held an independent investigation and decided to institute criminal proceedings. The decision to pursue criminal prosecution rested on the independent judgment and discretion of the Attorney General. Such a scenario, as in Correllas and Conway, shields those who rightfully reported the incident from a malicious prosecution charge.
Lastly, when the defendants initially referred the case, there was probable cause, given the information received from the two officers who witnessed the altercation. The victim of the assault offered corroboration in the form of bruises and a statement.
Intentional interference. To succeed on his claims of intentional interference with a contractual or advantageous relationship, the plaintiff must prove that “(1) [he] had an advantageous employment relationship with [his] employer; (2) the defendant[s] knowingly induced the employer to break that relationship; (3) the defendant[s’] interference, in addition to being intentional, was improper in motive or means; and (4) the [plaintiff] was harmed by the defendant[s’] actions.” Sklar, supra at 554, quoting from Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001).
Suffice it to simply say that here, the plaintiff has not on this record demonstrated that the defendants acted with improper motive or means. Even viewing, as we must, the evidence in the light most favorable to the plaintiff, a triable question of fact is not created. Indeed, the evidence indicates that the officers acted precisely how they should have. The town administrator held a hearing and decided, from the statements of the officers involved, that the plaintiff should be terminated. The administrator’s decision was appealed and upheld, as noted earlier, by an administrative magistrate after a five-day hearing, the Civil Service Commission, the Superior Court, and this court. Grinham, 76 Mass.App.Ct. 1136.
In conclusion, summary judgment was appropriate in this matter. Judgment affirmed.”
Attorney Ronald A. Sellon