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; ANTHO NY J. FIORE; GARY E. SPEAKS

, Appellants

_____________

APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(N o

. 1

- 13

- cv

- 02788 ) District Judge: Honorable Yvette Kane

_____________

Argued February 7, 2017

____________

Before: Mc KEE, 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 171082 Amy Zapp, E sq. Office of Attorney General of Pennsylvania Strawberry Square Harrisburg, PA 17120

Attorney s for Appellant s 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.

Am y Zapp, Esq.

Attorney s 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 D istrict 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 Penn sylvania, 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 the3 their motion for judgment on the pleadings in a n actio n 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 prosecu tion 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 cri minal charges filed against

Zimmerman

, who was a member of the staff of John M.

Perzel . Perzel was a member of the Pennsylvania G eneral Assembly represent ing the 172nd Legislative District in the

Office of Attorney General for the Commonwealth of Pennsylvan ia, 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 Specia l 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 c laims 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 imm ediately 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.4 Pennsylvania House of Representatives

. Corbett, then

Attor ney 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 Septe mber 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, Corbet t 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 subpoena ed on the House Republic an 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 hinder ing 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 o riginal location to a location controlled by the HRCC to prevent the grand jury from finding them

. Appellants claim ed that a male conspirator telephoned the H RCC 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 ¶ 122.5 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 Fu nction. 14 Appellants subsequently dismissed the charges against

Zimmerman.

Subsequently

, Zimmerman filed the instant complain t. He alleged that Appellants maliciously prosecuted him in

violation of the Fourth and Fourteenth Amendments as well as Pennsy lvania law

.

Appellants moved to dismiss Zimmerman’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6 ). T he

District C ourt 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 j ury proceedings; (2) they destroyed exculpato ry evidence; and (3) Fiore signed a criminal complaint and affidavit of probable cause that contained false and misleading st atements. 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

nov o. 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)

.6 12(b)(6) motion.” 16 A motion for judgment on the pleadings should be granted if the m ovant 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]

initi ated 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 proceedi ngs 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, 2 96

– 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).7 Probable cause exists if “ the facts and ci rcumstances within [the Officer’ s] knowledge and of which [he] had

reas onably trustworthy information were sufficient to war rant 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 prov e 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 foll owing : (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 ca ll from Zimmer m an’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 referre d 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 Stat e 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 be en 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 (incl uding but not
limited to, capital police, the cleaning crew, Sandra Majors’8 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 use d “[ his ] phone line ” to call t he 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 nega te 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 campaig n 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 h ave 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 recep tionist’s and [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 R oom 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 committi ng 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).9 possibility that Z immerman 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 t he 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 Appe llants’ motion for judgment on the pleadings. 31

30 Zimmerman asks this Court to issue appropriate sanctions against Appellan ts. 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

remainin g arguments since he can not establish the underlying claim of malicious pro secution.