Opinion
J-S27003-17 No. 3306 EDA 2016
04-21-2017
JUSTIN CREDICO Appellant v. JOSHUA HUBIAK, JOSEPH CARPENTER, JAMES MILLIGAN, JAMES FITZGERALD Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 12, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 374 Sept. Term, 2016, Control No. 16095053 BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Justin Credico, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his complaint as frivolous under Pa.R.C.P. 240(j)(1). We affirm.
The relevant facts and procedural history of this case are as follows. Appellant filed a pro se complaint on September 8, 2016, against four alleged Federal Bureau of Investigation agents: Appellees Joshua Hubiak, Joseph Carpenter, James Fitzgerald, and James Milligan. Appellant contemporaneously filed a Petition to Proceed in forma pauperis ("IFP"). Appellant's complaint states that the named government agents produced a series of complaints, warrants, and indictments against Appellant, which were "riddled with serious false facts, perversions of truth, misrepresentations, false depositions, malice, fabrications, and disregard for truth and veracity." Appellant's complaint initially states he is seeking damages under state tort law for due process violations, third party due process violations, and malicious prosecution. The body of the complaint, however, lists only an abuse of process claim. Appellant seeks $1,000,000.00 for each of three claims: abuse of process, third party abuse of process, and malicious prosecution. On September 12, 2016, the trial court dismissed Appellant's complaint as frivolous under Pa.R.C.P. 240(j)(1). Appellant timely filed a pro se notice of appeal on October 3, 2016. The court did not order a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises the following issues for our review:
WHETHER [APPELLANT'S] CLAIMS FOR ABUSE OF PROCESS, MALICIOUS PROSECUTION, AND [THIRD] PARTY DUE PROCESS VIOLATIONS, AS FILED, [ARE] FRIVOLOUS WITHIN THE MEANING OF LACKING AN ARGUABLE BASIS OF LAW OR OF FACT?(Appellant's Brief at 4).
WHETHER THE [TRIAL] COURT IS PERMITTED TO REVIEW [APPELLANT'S] [42 U.S.C.A.] § 1983 CLAIMS AS "FEDERAL EQUIVALENTS" OF AND [TREAT] THEM NOT AS [ONE] OF SECTION 1983, BUT AS BIVENS [CLAIMS]?
Orders which deny IFP status and dismiss companion complaints as frivolous are final and appealable. Grant v. Blaine , 582 Pa. 1, 868 A.2d 400 (2005); Crosby Square Apartments v. Henson , 666 A.2d 737 (Pa.Super. 1995). Rule 240 of the Pennsylvania Rules of Civil Procedure, in relevant part, provides:
Rule 240. In Forma PauperisPa.R.C.P. 240(j) (emphasis added) and Note. "Appellate review of a decision dismissing an action pursuant to Pa.R.C.P. 240(j) is limited to a determination of whether an appellant's constitutional rights have been violated and whether the trial court abused its discretion or committed an error of law." Bell v. Mayview State Hosp., 853 A.2d 1058, 1060 (Pa.Super. 2004).
* * *
(j) 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.
Note: A frivolous action or proceeding has been defined as one that "lacks an arguable basis either in law or in fact." Neitzke v. Williams , 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Additionally, we observe:
Pennsylvania is a fact-pleading state; a complaint must not only give the defendant notice of what the plaintiff's claim is and the grounds upon which it rests, but the complaint must also formulate the issues by summarizing those facts essential to support the claim. Pennsylvania Rule of Civil Procedure 1019 governs the content of pleadings as follows:
Rule 1019. Contents of Pleadings. General and Specific Averments
(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.
(b) Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.
(c) In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of such performance or occurrence shall be made specifically and with particularity.
(d) In pleading an official document or official act, it is sufficient to identify it by reference and aver that the document was issued or the act done in compliance with law.
(e) In pleading a judgment, order or decision of a domestic or foreign court, judicial or administrative tribunal, or board, commission or officer, it is sufficient to aver the judgment, order or decision without setting forth matter showing jurisdiction to render it.
(f) Averments of time, place and items of special damage shall be specifically stated.
(g) Any part of a pleading may be incorporated by reference in another part of the same pleading or in another pleading in the same action. A party may incorporate by reference any matter of record in any State or Federal court of record whose records are within the county in which the action is pending, or any matter which is recorded or transcribed verbatim in the office of the prothonotary, clerk of any court of record, recorder of deeds or register of wills of such county.
(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.
Note: If the agreement is in writing, it must be attached to the pleading. See subdivision (i) of this rule.
(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.
Pa.R.C.P. 1019. The rule specifically
Lerner v. Lerner , 954 A.2d 1229, 1235-36 (Pa.Super. 2008) (some internal citations omitted).require[s] the pleader to disclose the material facts sufficient to enable the adverse party to prepare his case. A complaint therefore must do more than give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. It should formulate the issues by fully summarizing the material facts. Material facts are ultimate facts, i.e. those facts essential to support the claim. Evidence from which such facts may be inferred not only need not but should not be alleged.... Allegations will withstand challenge under [Rule] 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, and (2) they are sufficiently specific so as to enable defendant to prepare his defense.
After a thorough review of the record, Appellant's brief, the applicable law, and the reasoned opinion of the Honorable Idee C. Fox, we conclude Appellant's issues merit no relief. The trial court opinion systematically discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed December 7, 2016, at 3-6) (finding: Appellant failed to allege in his complaint sufficient facts to establish cause of action for abuse of process, where he failed to assert relevant facts to support conclusion that Appellees used federal indictment for unlawful or unintended purpose or to accomplish purpose for which indictment process was not designed; likewise, Appellant did not allege sufficient facts to support compensable harm; Appellant's assertions that indictment affected his reputation and association with foreign countries are vague and unavailing; Pennsylvania does not recognize cause of action for third-party abuse of process, so to extent Appellant attempted to make claim for abuse of process on behalf of third parties, Appellant failed to establish his standing to do so; Appellant failed to allege facts to establish cause of action for malicious prosecution because he failed to explain in complaint what falsities Appellees allegedly produced in indictments; significantly, Appellant also failed to assert that Appellees did not have probable cause at time of indictment; further, Appellant's bald allegations of malice are conclusory; to extent Appellant attempted to make due process claim, Appellant offered no facts in complaint concerning how indictment implicated Appellant's constitutional rights; additionally, Appellant failed to allege in complaint any claim under 42 U.S.C.A. § 1983; Appellant's complaint has no arguable basis in law or fact, and is frivolous per Pa.R.C.P. 240(j)(1)). The record supports the trial court's decision. Accordingly, we affirm on the basis of the trial court opinion.
At the end of his brief, Appellant quickly asserts we should also consider his complaint under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971) (holding victims of constitutional violations by federal agents acting under color of federal authority have right to recover in federal court for damages; Bivens cause of action is federal analog to suit brought against state officials under 42 Pa.C.S.A. § 1983). Appellant, however, did not establish a Bivens action in his complaint, where he failed to allege a fact-based claim for constitutional rights' violations or the lack of probable cause. Thus, we decline this invitation. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/21/2017
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