Opinion
J. S25034/17 No. 3006 EDA 2016
05-15-2017
JUSTIN M. CREDICO, Appellant v. UNKNOWN COURT STAFF AND UNKNOWN CLERK
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order, August 9, 2016, in the Court of Common Pleas of Philadelphia County
Civil Division at No. Case No. 16075783
July Term, 2016, No. 3361 BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Justin M. Credico, who is incarcerated in the Federal Detention Center in Philadelphia, Pennsylvania, appeals pro se from the August 9, 2016 order dismissing his complaint as frivolous, pursuant to Pa.R.C.P. 240(j)(1), for failure to set forth a cause of action upon which relief could be granted. After careful review, we affirm.
No appellee brief was filed in this matter.
The trial court summarized the relevant facts and procedural history of this case as follows:
In July 2016, [appellant] commenced this action by Complaint. The named Defendants are the "Unknown Court Staff" and "Unknown Clerk" of the Federal Courthouse located at 601 Market Street in Philadelphia. [Appellant] contemporaneously filed a
Petition to Proceed In Forma Pauperis ("IFP"). The IFP Petition was assigned to this court. As is allowed under Pa.R.C.P. 240(j)(1), this court reviewed the IFP Petition and the Complaint.
The Complaint was filed pursuant to 42 U.S.C. § 1983 and included counts for Abuse of Process and violations of [appellant's] First and Fifth Amendment rights based on a case summary Defendants allegedly issued on the online legal database Lexis Nexis ("Case Summary"). The Case Summary is a short description of a non-precedential United States Court of Appeals for the Third Circuit decision filed in a writ of mandamus matter In re: Credico , No. 15-2659, 611 F. App'x 754 (3d. Cir. Aug. 7, 2015) ( per curiam )[] ("Federal Mandamus Matter").
The full decision of the Federal Mandamus Matter explains that [appellant] was indicted by a grand jury for violating two federal statutes relating to "threats that he allegedly left in the voicemail mailbox of an FBI special agent in Philadelphia." In re: Credico at 754. [Appellant] sought to dismiss several counts but the request was denied by the United States District Court for the Eastern District of Pennsylvania. [Appellant] appealed. [Appellant] subsequently filed a petition for writ of mandamus with the Third Circuit requesting that it direct the District Court to stay "any and all proceedings" pending the appeal. The petition was denied on the basis that, inter alia , the pending appeal provided [appellant] a means to obtain the relief he desired. See In re: Credico , supra.
Thereafter, the Case Summary of the Federal Mandamus Matter was published on Lexis Nexis. The Case Summary reads as follows:
As defendant [Credico] left threats on an FBI's voicemail in violation of [federal statutes], as he had a pending appeal that might obtain the relief he desired..., he was not entitled to mandamus relief.
See Exhibit B to [Appellant's] Complaint.Trial court opinion, 12/7/16 at 1-3 (citations and some bracketed information in original; footnote omitted).
Accordingly, [appellant's] Complaint here alleges that by stating in the Case Summary that "[Credico] left threats on the FBI's voicemail[,]"[] Defendants have suggested [appellant] is in fact guilty of the crimes he is currently awaiting trial for. [Appellant] claims that he pled not-guilty in the criminal matter and has always maintained his innocence. Therefore, [appellant] alleges Defendants violated [Appellant's] rights by "issu[ing] their own thoughts[,] ideas[,] and suggestion into the Case Summary." See Complaint at ¶ 7.
The trial court opinion does not contain pagination; for the ease of our discussion, we have assigned each page a corresponding number. --------
In an order docketed August 9, 2016, the trial court dismissed appellant's complaint as frivolous, pursuant to Rule 240(j)(1), for failure to set forth a cause of action upon which relief could be granted. ( See trial court order, 8/9/16.) Appellant filed a pro se notice of appeal on September 9, 2016. On October 21, 2016, this court directed appellant to show cause as to why his appeal should not be quashed as untimely, pursuant to Pa.R.A.P. 903(a) and 108(b). ( Per curiam order, 10/21/16.) Appellant filed a pro se response on November 1, 2016. Thereafter, on November 3, 2016, we entered an order discharging the October 21, 2016 rule to show cause and referring the timeliness issue to the instant panel. ( Per curiam order, 11/3/16.) On December 7, 2016, the trial court filed an opinion addressing appellant's claims.
Preliminarily, we must address whether appellant's pro se appeal is timely. It is well settled that a "notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). "The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b)." Pa.R.A.P. 108(b). In the instant matter, appellant's notice of appeal was filed on September 9, 2016, 31 days after the order at issue was entered on the docket, August 9, 2016, and the date Rule 236 notice was given. Although appellant's notice of appeal appears to be untimely on its face, we conclude that the prisoner mailbox rule applies to this case.
Where a pro se appellant is incarcerated, as is the case here, an appeal is deemed filed on the date the prisoner deposits the appeal with prison authorities or places it in a prison mailbox. See Commonwealth v. Chambers , 35 A.3d 34, 38 (Pa.Super. 2011), appeal denied , 46 A.3d 715 (Pa. 2012). In determining the filing date of such appeals, we are "inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities[,]" including a certificate of mailing, cash slip from prison authorities, affidavit from the prisoner, or evidence of internal operating procedures of the prison or court regarding mail delivery. Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997). Here, appellant's notice of appeal was time-stamped as having been received by the clerk of courts on September 9, 2016, yet neither the record nor appellant's November 1, 2016 response to the rule to show cause contains a certificate of mailing indicating when it was deposited with prison authorities. ( See "Reply to Order to Show Cause Issued by Clerk," 11/1/16.) Nonetheless, we agree with appellant that a document received on September 9th would have presumably been mailed at least one day earlier, making it timely filed. ( Id. at 1, ¶3.) Accordingly, we deem the instant appeal to be timely.
Appellant raises the following issues for our review:
1. Whether the claims for abuse of process, and first amendment retaliation, as filed, is [sic] frivolous within the meaning of lacking an arguable basis of law or of fact?Appellant's brief at 4.
2. Whether the [trial] court is permitted to review the § 1983 claims as "federal equivalents" of and treating them not as of [] § 1983, but as bivens [sic]?
"Our review of a decision dismissing an action pursuant to Pa.R.C.P. 240(j) is limited to a determination of whether the plaintiff's constitutional rights have been violated and whether the trial court abused its discretion or committed an error of law." Ocasio v. Prison Health Servs., 979 A.2d 352, 354 (Pa.Super. 2009) (citation omitted). Rule 240(j) provides, in relevant part, as follows:
If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis , the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous.Pa.R.C.P. 240(j)(1) (emphasis added). "Under Rule 240(j), an action is frivolous if, on its face, it does not set forth a valid cause of action." Ocasio , 979 A.2d at 354 (citation and internal quotation marks omitted).
Instantly, appellant contends that defendants committed an abuse of process by utilizing the case summary "as a tactical weapon to find [appellant] guilty" and "coerce a desired result contrary to [his] plea[.]" (Complaint, 7/29/16 at 6, ¶ A6; see also appellant's brief at 5, 8.) Appellant further argues this case summary violated his First Amendment right to free speech and hindered his ability to develop effective defense strategies, in violation of the Sixth Amendment. (Complaint, 7/29/16 at 5-6, ¶¶ B2-B4; see also appellant's brief at 5, 8.) Appellant also maintains that defendants' actions gave rise to a First Amendment retaliation/chilling effect claim. (Complaint, 7/29/16 at 7, ¶¶ B2-B4; see also appellant's brief at 9). Additionally, appellant argues that he possessed a viable cause of action for deprivation of his rights, pursuant to 42 U.S.C. § 1983. (Appellant's brief at 9-10.)
Following our careful review of the record, including appellant's brief and the applicable law, and in light of this court's scope and standard of review, it is our determination that there is no merit to the issues raised on appeal. The trial court's December 7, 2016 opinion comprehensively discusses and disposes of each of appellant's claims. ( See trial court opinion, 12/7/16 at 4-5.) We agree with the trial court that, "the factual matters alleged in [appellant's] Complaint do not give rise to a plausible claim against [d]efendants" and that "[appellant's] action has no arguable basis in law or fact[.]" ( Id. at 5.) Accordingly, we discern no error on the part of the trial court in dismissing appellant's complaint under Rule 240(j)(1), and adopt the trial court's opinion as our own for purposes of this appellate review.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/15/2017
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