Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2008

Ellsworth Pendleton v. NEPA Community Feder
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2408




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Recommended Citation
"Ellsworth Pendleton v. NEPA Community Feder" (2008). 2008 Decisions. Paper 80.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/80


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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                        No. 08-2408
                                        ___________

                              ELLSWORTH PENDLETON,
                                                 Appellant
                                      vs.

    NEPA COMMUNITY FEDERAL CREDIT UNION & BD OF DIRECTORS;
  OAKVIEW TERRACE CONDO ASSOCIATION & BD OF DIRECTORS, ET AL;
      SECRETARY OF STATE COMMONWEALTH OF PENNSYLVANIA
               ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (M.D. Pa. Civil Action No. 06-cv-02170)
                      District Judge: Honorable A. Richard Caputo
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                              NOVEMBER 24, 2008
       Before: SCIRICA, Chief Judge, CHAGARES AND WEIS, Circuit Judges
                          (Filed: December 17, 2008)
                                   ____________

                                         OPINION
                                        ___________

PER CURIAM.

              Ellsworth Pendleton, proceeding pro se, appeals an order of the United

States District Court for the Middle District of Pennsylvania related to his civil rights

action. We will affirm the District Court’s order.

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              Pendleton filed a complaint in District Court against defendants asserting

various violations of equal protection of the law, the Pennsylvania Constitution, and state

and federal statutes based on an alleged commercial lien that he had against the

defendants. The District Court dismissed Pendleton’s complaint for lack of subject

matter jurisdiction, concluding that he had not cited statutes that would provide a basis for

a civil cause of action, and that his claims were frivolous and so devoid of merit as not to

involve a federal controversy.

              Pendleton’s appeal of the District Court’s order was dismissed as untimely.

Pendleton filed a motion in District Court seeking to change the date that his notice of

appeal was docketed, asserting, as he had in his initial appeal and in his petition for

rehearing, that his notice of appeal was post-marked on August 22, 2007, within the 30-

day time to appeal. The District Court denied the motion, and this appeal followed.

              The law of the case doctrine acts to preclude review of those legal issues

that the court in a prior appeal actually decided, either expressly or by implication. In re

City of Philadelphia Litig., 

, 718 (3d Cir. 1998). Although we did not

expressly discuss Pendleton’s argument that his original appeal was timely, when we

denied his petition for rehearing, we rejected the argument by implication. The law of the

case doctrine precludes review of the argument that Pendleton’s earlier appeal was timely,

or that the District Court erred in denying Pendleton’s post-judgment motion, in light of

the date that he mailed his notice of appeal to the District Court.



                                              2
             Accordingly, we shall affirm the District Court’s order. Although not

required to do so, and concededly in dictum, we conclude that Pendleton’s original

complaint had no merit.




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