District Judge, concurring:
In Georgiana v. UMW, 392 Pa.Super. 58, 572 A.2d 232 (1990), the Pennsylvania Superi- or Court rejected the proposition “that the unilateral action of one party in negotiating a settlement necessarily binds another party who did not participate in that settlement_” Id. 572 A.2d at 235. Today, this court, in an opinion which I join, holds “that, in instances where a party authorizes her co-defendant to enter into a compromise agreement providing for the dismissal of her criminal charges and she offers no consideration in exchange for such dismissal, she will not have been found to have relinquished her right to file a malicious prosecution claim unless it is plain from the record of a hearing in open court or a written release-dismissal agreement that such relinquishment was knowing, intentional and voluntary.” Supra, p. 584. This holding — which comports with the test generally applicable to waivers of civil rights claims, see W.B. v. Matula, 67 F.3d 484, 497 (3d Cir.1995), Cain v. Darby Borough, 7 F.3d 377, 380 (3d Cir.1993) (in banc) — is characterized as an “outgrowth” of Georgiana. Supra, p. 584.
While I accept this court’s hospitable reading of Georgiana, and agree that the Pennsylvania Supreme Court, when it has occasion to address the issue, is likely to adopt Georgiana’s “fundamental holding,” supra, p. 582,I add these concurring words to make the point that, in the case at bar, even under a narrower reading of Georgiana, a grant of summary judgment against Miller was not warranted.
The narrower reading of Georgiana would place particular weight on the Superior Court’s statement “that the question whether one defendant’s settlement of an action should bind another defendant must depend on the particular circumstances surrounding that settlement_” 572 A.2d at 235. That statement follows the Georgiana court’s discussion of section 660 of the Restatement (Second) of Torts, the section which is Geor-giana ’s analytic bedrock. That section, captioned “Indecisive Termination of Proceedings,” provides as follows:
A termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for malicious prosecution if
(a) the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused; or
(b) the charge is withdrawn or the prosecution abandoned because of misconduct on the part of the accused or in his behalf for the purpose of preventing proper trial; or
(c) the charge is withdrawn or the proceeding abandoned out of mercy requested or accepted by the accused; or
(d) new proceedings for the same offense have been properly instituted and have not been terminated in favor of the accused.
Restatement (Second) of Torts § 660 (1977).
Plainly, the “termination of criminal proceedings in favor of’ Miller is not covered by clause (b): i.e., there is no hint that the charges against Miller were withdrawn “because of misconduct ... for the purpose of preventing proper trial.” Nor is there any suggestion that either clause (c), relating to “abandon[ment] out of mercy,” or clause (d), relating to the institution of new proceedings, had application to Miller.
The only aspect of section 660 that might be inquired into is clause (a), relating to withdrawal of charges “pursuant to an agreement of compromise with the accused.” On the record made below, evidence that Miller *586entered into an “agreement of compromise” is extremely tenuous. To be sure, it has been averred that Miller’s attorney was present at discussions with the assistant district attorney and with Hilfirty’s attorney. The assistant district attorney characterized the result of these discussions as a “joint agreement,” under which “the Commonwealth agreed to recommend the ARD program for Mr. Hilfirty and to nolle pros the charges against Ms. Miller.” Ciampoli Affidavit, ¶ 6, Appellees’ Appendix at 2. But there is no suggestion that Miller, via her attorney or otherwise, took any sort of active role in these discussions. To the contrary, it would appear that it was Hilfirty’s attorney who, on his client’s behalf, entered into a bargain with the Commonwealth — namely, that Hil-firty would enter the ARD program and the Commonwealth would drop the charges against Miller. Moreover, according to the assistant district attorney, “the Commonwealth would not have agreed to dismiss the charges against Miller if Hilfirty had not agreed to the ARD program.” Id. In other words, it appears that the Commonwealth included Miller in the “joint agreement” as an inducement to Hilfirty to accept ARD.
One who acquiesces in an arrangement under which she surrenders nothing does not thereby accept a “compromise,” at least not in the sense in which the Restatement means that word. Comment c to section 660 of the Restatement provides an illuminating explanation of the rationale for section 660(a)’s rule that a prosecution that terminates with an agreement of compromise does not terminate favorably. It states: “Although the accused by his acceptance of a compromise does not admit his guilt, the fact of compromise indicates that the question of his guilt or innocence is left open. Having bought peace the accused may not thereafter assert that the proceedings have terminated in his favor.” Restatement (Second) of Torts § 660 cmt. c (1977). In this case, the most that can be said is that Miller acquiesced in a compromise structured by the Commonwealth and Hilfirty. Since there is no evidence that Miller made any affirmative effort whatsoever to seek out a compromise, she can hardly be thought to have “bought peace.” In short, the circumstances of the dismissal of the case against Miller in no way call into question the favorable nature of the termination of Miller’s prosecution.
Thus, even if the Pennsylvania Supreme Court were to build on Georgiana more narrowly than we do — even if, for example, the Pennsylvania Supreme Court were to conclude that a dismissal of criminal charges which was negotiated by a co-defendant might in certain “particular circumstances” bar a suit for malicious prosecution notwithstanding that the would-be plaintiff had not executed a written release-dismissal agreement or stated in open court her intention to relinquish her potential claim — the particular “particular circumstances” presented on this appeal are not of a sort that could properly operate to bar Miller’s suit.