J. S25034/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JUSTIN M. CREDICO,                          :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                          Appellant         :
                                            :
                     v.                     :
                                            :        No. 3006 EDA 2016
UNKNOWN COURT STAFF AND                     :
UNKNOWN CLERK                               :


                      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.:                      FILED MAY 15, 2017

        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.1

        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

1
    No appellee brief was filed in this matter.
J. S25034/17


          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          short description of a non-precedential United States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.


                                   -2-
J. S25034/17



                See Exhibit B to [Appellant’s] Complaint.

                       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.

Trial   court    opinion,   12/7/16   at   1-3   (citations   and   some   bracketed

information in original; footnote omitted).2

        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.




2
  The trial court opinion does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.


                                           -3-
J. S25034/17


(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



                                      -4-
J. S25034/17


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?

               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]?

Appellant’s brief at 4.

      “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



                                         -5-
J. S25034/17


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.)


                                        -6-
J. S25034/17


       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.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2017




                                          -7-
            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              CIVIL TRIAL DIVISION

    JUSTIN CREDICO                                   JULY TERM, 2016
                                                     NO. 3361
                  v.
                                                       SUPERIOR COURT NO •
                                                     . 3006 EDA 2016
    UNKNOWN COURT STAFF and
    UNKNOWN CLERK                                                                    c ··.
                                                                                    ,.:;
                                                                                    r:.:
                                          OPINION                                   L'1


                                                                                   f.
           Plaintiff Justin Credico, a prose inmate, appeals this court's Order of7:~ugl&t 8,
                                                 .                                ·...       ·,.'.)
    2016, which dismissed Plaintiffs Complaint because Plaintiff did not set forth a cause of

    action upon which relief could be granted, making the matter frivolous pursuant to

    Pa.R.C.P. 240(j)(1).



    FACTUAL and PROCEDURAL HISTORY

         . In July 2016, Plaintiff commenced this action by Complaint. The named

    Defendants a re the "Un known· Court Staff" and "Un known Clerk" of the Federal .

    Courthouse located at 601 Market Street in Philadelphia. Plaintiff 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)(l), 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 Plaintiff's First and Fifth Amendment rights based on

    a case summary Defendants allegedly issued on the online legal database Lexis Nexis

                                 Credico Vs Doe Etal-OPFLO


                                  1111116070336100012
                                          111111111      m           A. l

··------------------------------
r·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 entitled In Re: Credico,. No. 15-2659, 611 F. App'x 754 (3d Cir. Aug. 7, 2015)

(per curlam). C'Federal Mandamus Matter").

         The full decision of the Federal Mandamus Matter1 explains that Plaintiff was

indicted by a grand jury for violating two federal statutes relating to "threats    tnet he
allegedly left in the voicemail mailbox of an FBI special agent in Philadelphia." In re

Credico at 754. Plaintiff sought to dismiss several counts but the request was denied by

the United States District Court for the Eastern District of Pennsylvania. Plaintiff

appealed. Plaintiff subsequently filed a petition for writ of mandamus with the Third

Orcuit 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 a/ia, the pending

appeal provided Plaintiff 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 Plaintiff's Complaint.
         Accordingly, Plaintiff's Complaint here alleges that by stating in the Case

Summary that "[Credico] left threats on the FBI's voicemail", Defendants have


I   The court is able to view the decision on Westlaw.com. This court does not have access to
Lexis Nexis.



                                            A.2
         suggested Plaintiff is in fact guilty of the crimes he is currently awaiting trial for.

         Plaintiff claims he pied not-guilty in the criminal matter and has always maintained his .

         innocence. Therefore, Plaintiff alleges Defendants violated Plaintiff's rights by "issu[ing]

         their own thoughts ideas and suggestions into the case Summary."See Complaint at

         ~7.

                Specifically, the Abuse of Process claim asserts Defendants used the case

         Summary, "as a tactical weapon to find Plaintiff guilty" and to "coerce     a desired     result

         contrary to Plaintiff's [not-guilty] plea ... " See Complaint at pg. 6. The substantive due

         process claim alleges Defendants' actions in issuing the Case Summary violated

         Plaintiff's First Amendment Right to petition and free speech, and hinders Plaintiff's

         effective defense strategies in violation of the Sixth Amendment. Finally, the last count

         alleges a First Amendment retaliation/chilling effect claim. Plaintiff seeks $250,000.00

         in compensatory damages, plus costs and fees.

                After a review of the Complaint, this court dismissed Plaintiff's action pursuant to

         Rule 240(j)(1). This appeal followed.



         DISCUSSION

                In relevant part, Rule 240(j)(1) states:

                   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 it is satisfied that
                   the action, proceeding or appeal is frivolous.

         Pa~R.C.P. No. 240(j)(1).




.   _,                                              A.3                                                     _
      A frivolous action is one that "lacks an arguable basis either in law or in fact."

Pa.R.C.P. No. 240(j)(l), Note (citation omitted). An action is frivolous under Pa.R.C.P.

No. 240(j){1) If "on its face it does not set forth a valid cause of action." Ocasio v.

Prison Health Servs., 979 A.2d 352, 354 (Pa.Super. 2009) (citation omitted).

      Here, the complaint was properly dismissed. First, as to the claim for Abuse of

Process, "[t]he tort of 'abuse of process' is defined as the use of legal process against

another 'primarily to accomplish a purpose for which it is not designed.'"    Rosen v.

American Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 192 (l 993)(quoting

Restatement (Second) of Torts§ 682). To establish an abuse of process, plaintiff must

show that the defendant (1) used a legal process against the plaintiff, (2) primarily to

accomplish a purpose for which the process was not designed; and (3) harm has been

caused to the plaintiff. Id. ''Legal process", also termed "process", is defined as "[t]he
            .
proceedings in any action or_ pro~ecutio~" or "[a] summons or writ, esp. to appear or

respond in court."   Black's Law Dictionary (10th ed. 2014).

       Defendants alleged issuing· of _the   case ·summary   on Lexis Nexis does not

constitute the use of a legal process as defined above. The Case Summary is not part
                                  .      .
of any action, prosecution, summons or writ against Plaintiff. Therefore, as Plaintiff did

not state a necessary element of the cause of action for abuse of process, the

Complaint failed to state a claim upon which relief could be granted.

       Next, Plaintiff failed to state a cause of action under 42 U.S.C. §1983. 42 U.S.C.

§1983, civil action for deprivation of rights, provides the following:

         Every person who, under color of any statute, ordinance, regulation,
         custom, or usage, of any State .•. subjects, or causes to be



                                             A.4
            subjected, any citizen of the United States or other person within the
            jurisdiction thereof to the deprivation of any rights, privileges, or
             immunities secured by the Constitution and laws, shall be liable to
            the party injured in an action at law, suit in equity, or other proper
            proceeding for redress.

42 u.s.c. §1983.

          To successfully plead a §1983 claim, Plaintiff must establish two elements: (1) a

person deprived him of a federal right; and (2) the person was acting under color of

state law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also Uniontown

Newspapers, Inc. v. Roberts, 576 Pa. 231, 248-49, 839 A.2d 185, 196 (2003).

First, there are insufficient factual allegations to support the conclusion that Plaintiff

was deprived a federal right. The facts alleged in Plaintiff's Complaint do not support a

constitutional violation as Plaintiff offers no facts as to how any constitutional rights

have been implicated. Second, there are insufficient facts to suggest Defendants were

acting under color of state law. To be under color of state law, the actor must have
                                     .      '


exercised "power possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law." Frazier v. City of Philadelphia, 756

A.2d 80, 83 (Pa. Cornmw. Ct. 2000) (citation omitted). A review of the Complaint

reveals there are no facts to establish that the acts of Defendants are colored with the

authority of the state. There are also no facts to implicate any action at all by the state

itself.

          For the reasons set forth above, the factual matters alleged in Plaintiff's

Complaint do not give rise to a plausible claim against Defendants. Plaintiff's action has

no arguable basis in law or fact and the trial court properly dismissed the Complaint as




                                          A.5
      . .   -   -·-I


                       frivolous pursuant to Pa.R.C.P. 240(j)(1). The appeal of this court's August 8, 2016

                       Order should therefore be dismissed.



                                                                      BY THE COURT:




                       Date:   /7,,[ ~ / 1}                           IDEE- C. FOX, J.




                                                               A.6

i .
