PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3384
_____________
JOHN R. ZIMMERMAN
v.
THOMAS W. CORBETT; LINDA L. KELLY;
FRANK G. FINA; K. KENNETH BROWN, II; MICHAEL
A. SPROW; ANTHONY J. FIORE; GARY E. SPEAKS,
Appellants
_____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(No. 1-13-cv-02788)
District Judge: Honorable Yvette Kane
_____________
Argued
February 7, 2017
____________
Before: McKEE, COWEN, and FUENTES, Circuit Judges
(Opinion Filed: October 16, 2017)
______________
Joshua M. Autry, Esq. [ARGUED]
Frank J. Lavery, Jr., Esq.
Lavery Faherty Patterson
225 Market Street
Suite 304, P.O. Box 1245
Harrisburg, PA 17108
Amy Zapp, Esq.
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Attorneys for Appellants Thomas W. Corbett, Jr.,
Frank G. Fina, K. Kenneth Brown, II, Michael A. Sprow,
Anthony J. Fiore, Gary E. Speaks
Frank J. Lavery, Jr., Esq.
Amy Zapp, Esq.
Attorneys for Appellant Linda L. Kelly
Devon M. Jacob, Esq. [ARGUED]
P.O. Box 837
Mechanicsburg, PA 17055
Attorney for Appellee
______________
OPINION OF THE COURT
______________
McKEE, Circuit Judge.
I. INTRODUCTION
Appellants are current and former high ranking
officials of the Commonwealth of Pennsylvania, including a
former Attorney General who subsequently became
Governor.1 They appeal the District Court’s partial denial of
1
Specifically, they are: Thomas W. Corbett, former Attorney
General and Governor of Pennsylvania, Frank G. Fina, Chief
Deputy Attorney General in the Office of Attorney General
for the Commonwealth of Pennsylvania, K. Kenneth Brown,
II, a Senior Deputy Attorney General in the Office of
Attorney General for the Commonwealth of Pennsylvania,
Michael A. Sprow, a Senior Deputy Attorney General in the
2
their motion for judgment on the pleadings in an action that
John Zimmerman, a former employee of the state legislature,
filed against them under 42 U.S.C. § 1983. Zimmerman
alleged that Appellants were all involved in bringing criminal
charges against him and that those charges amounted to
malicious prosecution in violation of both the Fourth and
Fourteenth Amendments of the United States Constitution
and Pennsylvania law.2
For the reasons that follow, we conclude that there was
probable cause to initiate those criminal proceedings and that
Zimmerman can therefore not establish a prima facie case of
malicious prosecution. We will therefore reverse the District
Court’s order insofar as it denied Appellants’ motion for
judgment on the pleadings.3
II. FACTS AND PROCEDURAL HISTORY
This case stems from criminal charges filed against
Zimmerman, who was a member of the staff of John M.
Perzel. Perzel was a member of the Pennsylvania General
Assembly representing the 172nd Legislative District in the
Office of Attorney General for the Commonwealth of
Pennsylvania, Anthony J. Fiore, a Special Agent in the Office
of Attorney General for the Commonwealth of Pennsylvania
and Director of the Bureau of Investigations for the Office of
Inspector General for the Commonwealth of Pennsylvania,
and Gary E. Speaks, a Special Agent in the Office of Attorney
General of the Commonwealth of Pennsylvania. Each of
them was a defendant in the suit Zimmerman filed. For the
sake of clarity, we will collectively refer to them as the
“Appellants.”
2
The District Court dismissed all claims against Defendant
Linda L. Kelly, former Attorney General of Pennsylvania.
3
The District Court’s order denying Appellants’ motion for
judgment on the pleadings is immediately appealable because
it denied Appellants’ assertion of qualified immunity.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Because we
conclude that the uncontested facts do not establish the
elements of malicious prosecution, we do not need to reach
the issue of qualified immunity.
3
Pennsylvania House of Representatives. Corbett, then
Attorney General of Pennsylvania, conducted an investigation
after receiving information “that members of the Democratic
caucus received bonuses for campaign related work
performed on state time.”4 Zimmerman, Perzel, and Corbett
were all Republicans. In September 2007, Perzel asked
Zimmerman to arrange a meeting with Corbett.5 “Corbett
wanted Perzel to back him for Governor. . . .[,]”6 but Perzel
refused.7 At the time, both Corbett and Perzel intended to run
for Governor in 2010.8
In November 2009, Corbett announced grand jury
presentments resulting in criminal charges against ten ranking
Republicans including “Perzel and his staff (one legislator
and nine staff members), in what is now commonly referred
to as [the] ‘Computergate’ [scandal].”9 Pursuant to that
investigation, the grand jury subpoenaed on the House
Republican Campaign Committee (the “HRCC”) seeking
production of campaign material.10
Zimmerman was one of the nine staff members
arrested pursuant to this investigation.11 Zimmerman was
charged with intentionally hindering an investigation “by
concealing or destroying evidence of a crime.”12 Those
charges arose from allegations that he caused boxes
containing campaign material that was the subject of a grand
jury subpoena to be moved from their original location to a
location controlled by the HRCC to prevent the grand jury
from finding them. Appellants claimed that a male
conspirator telephoned the HRCC from Zimmerman’s desk
phone and warned that boxes of campaign material would be
delivered to the HRCC. Appellants also alleged that
4
55a ¶¶ 15–16.
5
55a ¶¶ 17.
6
56a ¶ 22.
7
56a ¶ 24.
8
55a ¶ 22.
9
57a ¶ 32.
10
Appellant Br. at 11; see also 222a.
11
57a ¶ 33.
12
77a ¶ 122.
4
Zimmerman was typically at his desk, and that campaign
material was actually moved to the HRCC after the call.13
Based on evidence of that phone call from
Zimmerman’s line, Zimmerman was charged with (1)
Hindering Apprehension or Prosecution; (2) Obstructing
Administration of Law or Other Governmental Function; (3)
Criminal Conspiracy for Hindering Apprehension or
Prosecution; and (4) Criminal Conspiracy for Obstructing
Administration of Law or Other Governmental Function.14
Appellants subsequently dismissed the charges against
Zimmerman.
Subsequently, Zimmerman filed the instant complaint.
He alleged that Appellants maliciously prosecuted him in
violation of the Fourth and Fourteenth Amendments as well
as Pennsylvania law.
Appellants moved to dismiss Zimmerman’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). The
District Court concluded inter alia that Appellants were not
entitled to qualified immunity on claims arising from
allegations that (1) they manufactured witness testimony and
intimidated witnesses prior to the grand jury proceedings; (2)
they destroyed exculpatory evidence; and (3) Fiore signed a
criminal complaint and affidavit of probable cause that
contained false and misleading statements. This appeal
followed.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §
1331. Our jurisdiction is based upon 28 U.S.C. § 1291. We
review a denial of a motion for judgment on the pleadings de
novo.15 “A motion for judgment on the pleadings based on
the defense that the plaintiff has failed to state a claim is
analyzed under the same standards that apply to a Rule
13
Appellant Br. at 11; 81a ¶ 146; 62a ¶ 69.
14
76a ¶ 120.
15
Allah v. Al–Hafeez, 226 F.3d 247, 249 (3d Cir. 2000).
5
12(b)(6) motion.”16 A motion for judgment on the pleadings
should be granted if the movant establishes that “there are no
material issues of fact, and he is entitled to judgment as a
matter of law.”17 In considering a motion for judgment on the
pleadings, a court must accept all of the allegations in the
pleadings of the party against whom the motion is addressed
as true and draw all reasonable inferences in favor of the non-
moving party.18
IV. DISCUSSION
Appellants advance several arguments, including
arguments that the District Court erred in denying their claim
of qualified immunity. However, our resolution of this appeal
begins and ends with Zimmerman’s failure to establish a
prima facie case of malicious prosecution.
To prevail on his malicious prosecution claim under §
1983, Zimmerman must establish that “(1) the defendant[s]
initiated a criminal proceeding; (2) the criminal proceeding
ended in [his] favor; (3) the defendant[s] initiated the
proceeding without probable cause; (4) the defendant[s] acted
maliciously or for a purpose other than bringing the plaintiff
to justice; and (5) [he] suffered deprivation of liberty
consistent with the concept of seizure as a consequence of a
legal proceeding.”19 Similarly, to prove a malicious
prosecution claim under Pennsylvania law, a plaintiff must
show that the defendant “instituted proceedings against the
plaintiff 1) without probable cause, 2) with malice, and 3) the
proceedings must have terminated in favor of the plaintiff.”20
16
Revell v. Port Auth. of NY, NJ, 598 F.3d 128, 134 (3d Cir.
2010).
17
Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir.
2005) (citing Soc’y Hill Civic Ass’n v. Harris, 632 F.2d 1045,
1054 (3d Cir. 1980)).
18
See Allah, 226 F.3d at 249.
19
34a (citing Halsey v. Pfeiffer, 750 F.3d 273, 296–97 (3d
Cir. 2014) (quoting Johnson v. Knorr, 477 F.3d 75, 82 (3d
Cir. 2007))).
20
Kelley v. Gen. Teamsters, Chauffeurs & Helpers, Local
Union 249, 544 A.2d 940, 941 (Pa. 1988).
6
Probable cause exists if “the facts and circumstances
within [the Officer’s] knowledge and of which [he] had
reasonably trustworthy information were sufficient to warrant
a prudent man in believing” that a crime had been
committed.21 “Probable cause . . . requires more than mere
suspicion; however, it does not require that the officer have
evidence sufficient to prove guilt beyond a reasonable
doubt.”22
The criminal proceeding against Zimmerman did end
in his favor, and Zimmerman contends (as he must) that
Appellants initiated the prosecution without probable cause.
However, Zimmerman does not dispute any of the following:
(1) a man called the HRCC from Zimmerman’s phone line
and told the HRCC to expect a delivery of boxes of campaign
material; (2) Zimmerman was usually at his desk; or (3)
boxes containing campaign material were moved to the
HRCC as promised in the call from Zimmerman’s phone line.
Instead, he claims that many others had access to his phone,
he “was not present when the boxes were moved, and had no
knowledge of the same.”23 He also argues that Room 414,
where the boxes were taken, was commonly referred to as
“Perzel’s Office” and that this room “actually consisted of a
cluster of eight rooms and the woman’s restroom. Both
Perzel’s and Representative Sandra J. Major’s offices were
located [there].”24 The door to this space was left open during
business hours, and “anyone in the Capital could walk into
[that room].”25 When seated at his desk, Zimmerman “could
21
Beck v. State of Ohio, 379 U.S. 89, 91 (1964).
22
Orsatti v. New Jersey State Police, 71 F.3d 480, 482–83
(3d Cir. 1995).
23
63a ¶ 72.
24
Appellee Br. at 14; see also 59a ¶ 43-45; 75a ¶ 115(f)(vi)
(“The Defendants withheld from the grand jury the fact that
Lochetto’s and Zimmerman’s presence or absence from the
Capital could have been tracked, at least in part, through the
access card system for the parking garage.”).
25
Appellee Br. at 14–15; see also 59a ¶ 47; 75a ¶ 115(f)(ii)
(“The Defendants withheld from the grand jury the fact that
literally anyone in the Capital building (including but not
limited to, capital police, the cleaning crew, Sandra Majors’
7
not see the front door to Room 414 or the conference room.”26
Zimmerman further argues that Appellants “knew that [his]
phone line was on numerous phones within [that room], not
just on [his] phone, and could have been utilized by almost
anyone.”27 In sum, Zimmerman argues that because anyone
could have moved the subpoenaed materials to Room 414 and
anyone could have used “[his] phone line” to call the HRCC,
Appellants did not have probable cause to arrest him.
However, given the uncontested facts, while
Zimmerman’s arguments may well have been sufficient to
raise a reasonable doubt that would have resulted in an
acquittal at trial, they do not negate the fact that Appellants
had probable cause to prosecute him.28 There is no dispute
that Zimmerman was normally at his desk, that a male
conspirator called from Zimmerman’s office desk phone line
to tell the HRCC to expect a delivery of boxes of campaign
material, or that boxes of campaign material were then moved
to a location controlled by the HRCC. Moreover, the fact that
Perzel’s office consisted of several rooms, and there was
“unfettered access to Room 414,”29 does not negate the
staff of three, and a receptionist), had unfettered access to
Room 414 and could have placed the call to the HRCC
from multiple phones using Zimmerman’s telephone line,
and could have moved the boxes in question.”).
26
60a ¶ 51; see also 75a ¶ 115(f)(v).
27
Appellee Br. at 15; 74a–75a ¶ 115(f)(i), (iii) (“The
Defendants withheld from the grand jury the fact that
Zimmerman’s telephone line could be accessed on
the receptionist’s a n d [others’] telephones, and likely on
other telephones in Room 414. . . . The Defendants withheld
from the grand jury the fact that the call was likely placed by
[Mark] Miller[, the Director of Messenger Services,] during
his special trip to Room 414 as noted in the messenger log.”).
28
See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) (“[T]he
Constitution permits an officer to arrest a suspect without a
warrant if there is probable cause to believe that the suspect
has committed or is committing an offense. . . . [T]he mere
fact that the suspect is later acquitted of the offense for which
he is arrested is irrelevant to the validity of the arrest.”).
29
75a ¶ 115(f)(ii).
8
possibility that Zimmerman was the person who called the
HRCC in an effort to conceal evidence. Accordingly, even
assuming that Zimmerman’s allegations are true, Appellants
still had probable cause to prosecute Zimmerman for
concealing or destroying the evidence that was the subject of
the grand jury subpoena. Thus, Appellants are entitled to a
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c).30
V. CONCLUSION
For the foregoing reasons, we reverse the District
Court’s decision denying Appellants’ motion for judgment on
the pleadings. 31
30
Zimmerman asks this Court to issue appropriate sanctions
against Appellants. We find no need to discuss or impose
sanctions.
31
Because we conclude that Appellants had probable cause to
initiate this prosecution, we need not address Zimmerman’s
remaining arguments since he cannot establish the underlying
claim of malicious prosecution.
9