Robert E. Lynn, Alicia J. Lynn v. William F. Smith, John E. Young, Charles Benedict, Henry J. Danielson, J. Regis Thompson, Charles Anthony

KALODNER, Circuit Judge.

At the conclusion of pre-trial conferences, in an action for malicious prosecution, the court below, sua sponte, entered an Order of dismissal and directed judgment against the plaintiff and in favor of the defendants “with prejudice and costs.” 1

In a “Memorandum on Order of Dismissal” the court below found “not only that there was a lack of malice but that there was probable cause.” D.C.W.D.Pa. 1959, 178 F.Supp. 866, 869.

On this appeal plaintiff contends that the trial judge erred in resolving factual issues which required resolution by a jury. 2

Jurisdiction is based…