J-S27003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JUSTIN CREDICO                         :    IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
                  Appellant            :
                                       :
            v.                         :
                                       :
JOSHUA HUBIAK, JOSEPH                  :
CARPENTER, JAMES MILLIGAN,             :
JAMES FITZGERALD                       :
                                       :
                  Appellees            :         No. 3306 EDA 2016
                                       :
                                       :

            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.:                         FILED APRIL 21, 2017

     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

_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S27003-17


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?

          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]?

(Appellant’s Brief at 4).

       Orders which deny IFP status and dismiss companion complaints as

frivolous are final and appealable.       Grant v. Blaine, 582 Pa. 1, 868 A.2d

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J-S27003-17


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 Pauperis

                                  *        *     *

         (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).

Pa.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).

      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:

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J-S27003-17



        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.

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J-S27003-17



             (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

            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.

Lerner v. Lerner, 954 A.2d 1229, 1235-36 (Pa.Super. 2008) (some internal

citations omitted).

      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


                                      -5-
J-S27003-17


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


                                     -6-
J-S27003-17


court’s decision.1     Accordingly, we affirm on the basis of the trial court

opinion.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




____________________________________________


1
  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.



                                           -7-
                                                                                    Circulated 04/13/2017 11:41 AM




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

JUSTIN CREDICO                                   .                SEPTEMBER TERM, 2016
                                                                  NO. 374
                   v.
                                                 :                SUPERIOR COURT Ng.
                                                 .                3306 EDA 2016   L.7-7                       NJ
JOSHUA HUBIAK et al.                             :.                                               ,
                                                                                                          -...
                                                                                                          ,-,
                                                                                                          r--,
                                                                                                      )       .




                                            OPINION                                          i-
                                                                                                      c-,
                                                                                                          1




          Plaintiff Justin Credico, a pro se inmate, appeals this court's Order ofSeptember

12, 2016 which his Complaint on the basis             that he failed to set forth   a   cat.de of anion

upon which relief could be granted, making the matter frivolous pursuant to Pa.R.C.P.

240(j)(1).

FACTUAL and PROCEDURAL HISTORY

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

Defendants are Joshua Hubiak, Joseph Carpenter, James Fitzgerald, and James Milligan.

It   is alleged   that the Defendants work for the Federal Bureau of Investigation and the

National Security Division. 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)(1), this court reviewed the IFP Petition and the Complaint. The

"Facts on Complaint" section of the Complaint alleges the following:

         1. On or       about February 12th, 2014 the defendant agents for the United States
             produced      a series of complaints warrants and indictments.


         2. For purposes of this complaint it must be noted  that these presentments to
             Magistrates, District Courts and Grand Jury are partially barred by the Heck v.
             Humphrey doctrine and partially not barred. To wit, the government agents,
             produced an initial complaint and probable cause riddled with serious false

                                       Credico Vs Hubiak Etal-OPFLD



                                        IIIIIIII1J10111111111)111111
          facts, perversions of truth, misrepresentations, false depositions, malice,
          fabrications, and disregard for truth and veracity.

     3. Moreover, the government produced a 20+ page probable cause report and
        attempted to bring the same allegations as will be seen herein, before the
          grand jury. Additionally, the agent defendants for the United States procured
          the AUSA into proceeding forthwith upon the complaints, probable cause
          reports and grand jury indictments.

     4.   ...   [T]he plaintiff will produce   a   portion of the absurdities discussed in #2
          above:

                    In more than 40 emails Justin has sent to the Philadelphia
                    Division's Complaint emails address since January 2012, he has
                    demanded money ranging from twenty-five thousand dollars up
                    to one million dollars. He has stated that if he does not receive
                    this money, various different consequences will result. For
                    example, Justin has threatened to send computer viruses to
                    foreign countries, specifically Russia, China, and Iran, so that
                    they may use them against the United States; he has threatened
                    to ruin the United States' reputation; he has threatened to enroll
                    in an Iranian University and to send information to the group
                    Anonymous to use against the United States; he has threatened
                    to leave the United States to go to a terrorist country utilizing a
                    fake passport; and he has threatened to attack Idaho National
                    Laboratories and Siemens.

      5. The remainder       of the indictment must be challenged after outcome of the
          plaintiff's criminal proceedings.

      6. ...For,    everything that was referenced in #4 of this section WAS NOT
          SUSTAINED FOR PROBABLE CAUSE, AND WAS DENIED INDICTMENT BY
          GRAND JURY, thus, these defendants lost these allegations and the petitioner
          was victorious against those charges at the GRAND JURY stage of the
          criminal federal proceedings.


See Complaint.

      The Complaint is unclear as to which causes of action are being pled. Initially,

under a heading labeled "Complaint for Damages", the Complaint states "[t]his

complaint seeks damages under STATE TORT LAW for violations of: a. due process
violations; b.      3rd   party due process violations; c. malicious prosecution." The body of

the Complaint contains only one count, "Claim I               - ABUSE OF PROCESS".        Plaintiff seeks

a   total of $3,000,000.00 in monetary damages and $1,000,000.00 for each of the three

abuse of process, third party abuse of process, and malicious prosecution claims.

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

Pa.R.C.P. No. 240(j)(1), 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 (1993)(quoting

Restatement (Second) of Torts            §   682). To establish an abuse of process claim, one

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. The tort of abuse of process occurs "when

the legal process is utilized for some unlawful purpose, not one for which it was

intended. In other words, it is      a   perversion of legal process.... A cause of action...

requires Is]ome definite act or threat not authorized by the process, or aimed at an

objective not legitimate in the use of the process ...[;] there is no liability where the

defendant has done nothing more than carry out the process to its authorized

conclusion, even though with bad intentions.' ". Shaffer             v.   Stewart, 326 Pa. Super. 135,

138-39, 473 A.2d 1017, 1019 (1984) (citations omitted).

         Here, Plaintiff failed to allege sufficient facts to establish       a   cause of action for

abuse of process. The Complaint does not allege facts to support the conclusion that

the indictment was utilized for      a   purpose that was unlawful and for which it was not

intended. Plaintiff therefore did not establish the second element, that the process was

used to accomplish     a   purpose to which the process was not designed. Similarly, the

Complaint fails to allege sufficient facts to support the third element of abuse of

process, a compensable harm. Plaintiff only claims that his reputation and association

with foreign nations have been affected by the allegations of the indictment set forth in

114   of the Complaint. However, these assertions of harm are vague and unavailing.

         Further, Pennsylvania does not recognize a cause of action for

"third -party abuse of process." To the extent Plaintiff        is   attempting to make       a   claim for

abuse of process on behalf of any third party or parties, Plaintiff has not established

standing to do so.
         Plaintiff failed to state   a cause   of action for malicious prosecution. The elements

of malicious prosecution are: (1) institution of proceedings against the plaintiff without

probable cause and with malice, and (2) the proceedings were terminated in favor of

the plaintiff. Manley    v.   Fitzgerald, 997 A.2d 1235 (Pa.Cmwlth. 2010). See also, Kelley

v.   General Teamsters, Chauffeurs and Helpers, Local Union 249, 518 Pa. 517 (1988);

Miller v. Pennsylvania R.R. Ca, 371       Pa. 308, 313, 89 A.2d 809, 811         (1952). Absence of

probable cause to bring proceedings against plaintiff is indispensable element of action

for malicious prosecution, and is not conclusively established by adjudication of

innocence in underlying proceedings. Turano            v.   Hunt, 631 A.2d 822, 825 (Pa.Cmwlth.

1993).    Probable cause is "a reasonable ground of suspicion supported by

circumstances sufficient to warrant an ordinary prudent man in the same situation in

believing that the party is guilty of the offense." Miller, supra at 811-12.

         Here, Plaintiff has failed to allege facts to establish the elements of malicious

prosecution. The core of Plaintiff's factual allegation is the notion that "the government

agents produced an initial complaint and probable cause riddled with serious false facts,

perversions of truth, misrepresentations, false depositions, malice, fabrications, and

disregard for truth and veracity." See Complaint,            112.   However, at no point in the

Complaint does the Plaintiff explain what these falsities might consist of. While the

Complaint attempts to explain away the facts alleged in the indictment, Plaintiff failed to

allege that Defendants did not have probable cause at the time the indictment was

filed. Further, Plaintiff's allegations of malice are conclusory in nature and no facts are

alleged to support this assertion. As Plaintiff failed to set forth sufficient facts to
support necessary elements of the cause of action for malicious prosecution, the

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

        Finally, to the extent Plaintiff made any due process claim, Plaintiff offered no

facts as to how any constitutional rights have been implicated. The Complaint also fails

to allege any claim pursuant to 42 U.S.C. §1983.

        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

frivolous pursuant to Pa.R.C.P. 240(j)(1). The appeal of this court's September 12,

2016 Order should therefore, be dismissed.


                                                      BY THE COU




Date:   12/7/17                                              I'   E C.   FOX, 3.
