Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.
Many years ago George and James Psinakis came to this country from Greece. They settled in Johnstown, Pennsylvania, and engaged in the business of making and selling candy. George ordinarily handled the administrative end of the business and James usually supervised the candy making. James was married and members of his family also helped conduct the business. After years of work the brothers were successfully operating two confectionary shops, the "Oasis" and the "State Sweet Shop" in Johnstown.
In 1947, George went to Europe and there married Alexandra, a Greek national. George and his wife returned to this country. In February 1949 George and Alexandra's daughter, Calliope, was born. In September 1949 George became ill and entered a hospital. In December he died leaving no will. Alexandra and Calliope were the sole heirs of his estate.
In December 1949, Alexandra was appointed administratrix of the estate. Alexandra asserted that George had been the sole owner of the stores and called on James to surrender possession but James claimed that he and his brother had been partners and that therefore he was properly in possession as a liquidating partner. James continued to operate the "Sweet Shop." He ordered new supplies, carried merchandise from the "Oasis" to the "Sweet Shop" to replenish stocks, and retained the cash taken in daily.
Alexandra then consulted her attorney who advised her on January 6th, 1950 to "make an information" against James. The lawyer then took Alexandra to a city alderman where an information was sworn out by her under the Pennsylvania Surety of Peace Act of 1860, 19 Purdon's Pa.Stats.Anno. § 23. The Act provides:
"If any person shall threaten the person of another to wound, kill or destroy him, or do him any harm in person or estate, and the person threatened shall appear before a justice of the peace, and attest, on oath or affirmation, that he believes that by such threatening he is in danger of being hurt in body or estate, such person so threatening as aforesaid shall be bound over, with one sufficient surety, to appear at the next sessions, according to law, and in the meantime to be of his good behavior, and keep the peace towards all citizens of this commonwealth."
The information, sworn out by Alexandra against James under this Act, alleged that:
"[James] did * * * unlawfully threaten to destroy and damage the property and estate of your affiant and unlawfully did your affiant harm in property and estate; that from the manner and conduct of the defendant the affiant believes and fears that the defendant will carry his threats aforesaid into execution and do further harm to affiant's property and estate; that affiant is actually in danger of being hurt in property and estate; that the defendant's acts were done maliciously and with intent to do harm to the property and estate of the affiant; and affiant being then and there the administratrix of the said estate, to wit: estate of George Psinakis, deceased."
After obtaining this information, the lawyer and Alexandra went to the "Sweet Shop." When James refused to surrender possession on demand, the lawyer called in plainclothes police officers who arrested James and conducted him to the alderman's office. There, James was released pending hearing after posting $1,000 bail. James then returned to the store. Later that same day, he was again arrested under the Surety of Peace Act on the basis of another substantially similar information and again was released on $1,000 bail. On returning to the store after this second arrest, James ordered a locksmith, who had been hired by Alexandra's counsel, to stop changing the lock on the shop door and again entered the store. He was again arrested. After posting $1,000 bail for the third time, James returned to his home.
For many years prior to January 6, 1950, Stella Cakouros, a daughter of James, had worked in the stores, but on January 6 she was no longer working there. On that day, however, she had called at the "Sweet Shop" and was present when her father suffered his first arrest. Stella remained in the store in the absence of her father until she also was arrested under the Surety of Peace Act on an information sworn out by Alexandra on the advice of counsel, alleging the same facts which were contained in the information lodged against her father, James. After appearing before the alderman, Stella posted $1,000 bail and returned to the store. She then left the store and went to her home, where she was again arrested on the basis of another information sworn out by Alexandra on the advice of counsel alleging the same grounds as the original information. Stella again posted $1,000 bail pending a hearing on the informations.
On January 13, 1950, hearings were held before the city alderman on all of the informations filed against James and Stella. All the Psinakises and Mrs. Cakouras were represented by counsel and evidence was received. The alderman found as to the informations, with the exception of the last filed against Stella, that "the threats made [by James and Stella] were made maliciously and that the prosecutrix' danger of being hurt in estate is actual", and that "a prima facie case has been made out." As to the last information filed against Stella, decision was reserved by the alderman and later on the same day that information was withdrawn with costs paid by the prosecution. On the basis of his findings the alderman then bound James and Stella over to the next term of the Court of Quarter Sessions. On May 8, 1950 the case against Stella was dismissed and on May 29, 1950 the cases against James likewise were dismissed by the Court of Quarter Sessions with costs taxed against the prosecutrix.
On January 10, 1950, after the arrests had been made but before the hearing before the alderman, Alexandra petitioned the Orphans' Court for an injunction restraining James from interfering in the business. On that day, the Orphans' Court entered a temporary injunction granting such relief. On April 27, 1951, the temporary injunction was made final, the Orphans' Court determining that Alexandra and not James was the owner of the stores.
James, on May 29, 1951, and Stella, on June 1, 1951, instituted separate suits against Alexandra alleging that the arrests constituted malicious prosecutions. But on August 30, 1951, both complaints were amended so as to omit the paragraphs setting up the ...