Monday, October 2, 2017

"Probable Cause" Prevents Son-in-Law/Agent from Suing for Malicious Prosecution in Elder Fraud Case

The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds.  It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."  

Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners.  A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law.  The mother-in-law later challenged the transaction as contrary to her understanding and intention.

Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts.  They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.  

As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.

Not so fast.  Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process. 

On September 22, 2017, the federal district court granted summary judgment to the defendants, concluding that Fisher was unable to satisfy at least three of the five necessary elements for his claims.   The federal court's ruling explained:

In order to sustain a federal malicious prosecution claim under Section 1983, Plaintiff must show that "(1) the defendants initiated a criminal proceeding; (2) the criminal proceedings ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.

The district court spent most of its time explaining how "it is clear that probable cause existed," but what I found surprising is that the court also concluded "a genuine issue of material fact exists" on the issue of "favorable outcome." Apparently the fact that the wife and sister "returned" the money -- as the only ones with the power to do so -- allowed Fisher to argue his wife's agreement to do so was not a "relinquishment" of his rights to sue for malicious prosecution.

Interesting and, overall, a bit disturbing, yes?

For the full opinion, see Memorandum Opinion, September 22, 2017, in John R. Fisher v. Megan L. King, et al, Civil Action No. 15-6134, United States District Court, Eastern District of Pennsylvania.  

http://lawprofessors.typepad.com/elder_law/2017/10/probable-cause-prevents-son-in-lawagent-from-suing-for-malicious-prosecution-in-elder-fraud-case.html

Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink

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