In Bobereski v. Insurance Co. of Pa., 105 Pa. Super 585, 161 A. 412, 415 (1932), after the state nol prossed charges of arson and insurance fraud lodged against the insured, the insured sought to use the nol pros in a breach of contract suit against the insurer.
Concluding that the nol pros "was not competent evidence for any purpose," 105 Pa. Super. at 592, and recognizing that the admission of evidence of the nol pros gave the insurer little chance to convince the jury of the plaintiff's role in the arson, the appellate court ordered a new trial to ensure a jury verdict "free from any impressions, convictions or beliefs raised by incompetent evidence." Id. at 595.
The court recognized that a public prosecution serves a very different purpose from a private civil action. Id. at 593.
Among other things, the parties are different and the "'person wronged civilly is not chargeable with the conduct of the prosecution and therefore not affected by an acquittal.'" Id.
Further, the court explained:
Laymen are not apt to make much distinction between a discharge by acquittal of a jury and a discharge by nol. pros. entered by the district attorney with leave of court, because the evidence was insufficient to convict. The average juryman is not apt to consider that the parties to the civil prosecution and the criminal action were not the same; that the plaintiff or defendant, as the case may be, in a civil action had no control over the criminal case; that the degree of proof in the two issues was not the same; that in the criminal case the evidence of guilt of the defendant must be proved beyond a reasonable doubt, while in the civil suit it need only be established by a preponderance of the evidence. (Id. at 415.)
The court added, id.:
It is doubtful, whether after it was in evidence that the plaintiff had been discharged from criminal prosecution by the court, on motion of the district attorney for lack of evidence to convict, that the defendant had a chance of convincing the jury that the insured was involved in the burning of her property. The insurer was entitled to the verdict of the jury ... free from any impressions, convictions or beliefs raised by incompetent evidence.