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
2

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

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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 
3

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. 
4

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. 
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 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).
6

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 nonmoving 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).
7

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’
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 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 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 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).
9

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.