DLD-088 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1435

___________

TONY R. HARPER,

Appellant

v.

DOMENIC DINELLA, Individually and in his Official Capacity;

LPH R. DONATUCCI, Individually and in his Official Capacity;

REGISTER OF WILLS; PLUMMER J. HARPER, Individually and in 

his Official Capacity; MARCEL HARPER, Individually and in his 

Official Capacity; COMMONWEALTH OF PENNSYLVANIA CLERK’S OFFICE

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-13-cv-03438)

District Judge: Honorable Stewart Dalzell

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 15, 2015

Before: FISHER, SHWARTZ and SLOVITER, Circuit Judges

(Filed: January 21, 2015)

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OPINION*

_________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Tony Harper, a Pennsylvania inmate proceeding pro se and in forma pauperis, 

appeals from the District Court’s order dismissing his 42 U.S.C. § 1983 complaint. For 

the reasons set forth below, we will summarily affirm.

I.

Harper’s claims stem from his efforts to challenge the distribution of his father’s 

assets. He claims that his brothers took money and property that he was entitled to, and 

that officials failed to file his objections to his father’s will in 2007. Harper tried to sue 

his brothers and the Wills officials in state court for the same conduct in 2013. His state 

court action was never filed, however. As such, the present case action includes his 

claims against his brothers and the Wills officials, as well a claim against the 

Prothonotary for the Philadelphia County Court of Common Pleas for denying him access 

to the courts.

Pursuant to its screening obligations under 28 U.S.C. § 1915A and a motion to 

dismiss filed by defendants Dinella and Donatucci, the District Court dismissed Harper’s 

complaint in full. Harper timely appealed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District 

Court’s dismissal order is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 

2000). “To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

 
3

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007)). We will summarily affirm the District Court’s judgment because this appeal 

does not present a substantial question. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

The district court correctly concluded that it lacked jurisdiction over Harper’s 

claims against his brothers. Harper and his brothers are citizens of Pennsylvania, and 

federal courts “do not ordinarily have jurisdiction to set aside a will or the probate 

thereof.” Moore v. Graybeal, 843 F.2d 706, 709 (3d Cir. 1988). Without diversity or 

federal question jursidiction, the District Court had no authority to hear Harper’s claims 

against his brothers, and dismissal was proper. See 28 U.S.C. §§ 1331-1332.

We also agree with the District Court’s conclusion that Harper’s claims against the 

officials that allegedly failed to file his objections to his father’s will were untimely.1 For 

§ 1983 actions based on conduct in Pennsylvania, the statute of limitations is two years 

from the date the claim accrued. See 42 Pa. Cons. Stat. § 5524(2); Kach v. Hose, 589 

F.3d 626, 634 (3d Cir. 2009). A claim accrues “when the plaintiff knew or should have 

known of the injury upon which [his] action is based.” Kach, 589 F.3d at 634 (internal 

quotation marks omitted). The defendants allegedly failed to file Harper’s objections in 

March 2007, making his June 2013 complaint more than four years delinquent.

 

1 Although the statute of limitations is an affirmative defense, see Fed. R. Civ. P. 8(c), if 

it is obvious from the face of the complaint that a claim is barred by the applicable statute 

of limitations and no development of the record is necessary, a court may dismiss the 

claim sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii). See Jones v. Bock, 549 U.S. 199, 

215 (2007); Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); see also Bethel v. 

Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978).
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Finally, we agree, albeit for slightly different reasons, with the District Court’s 

decision to dismiss Harper’s access to courts claim against the Prothonotary. An access 

to courts claim “is ancillary to the underlying claim,” and, as such, Harper “must identify 

a ‘nonfrivolous,’ ‘arguable’ underlying claim.” Christopher v. Harbury, 536 U.S. 403, 

415 (2002) (quoting Lewis v. Casey, 518 U.S. 343, 353 & n.3 (1996)). Harper’s 

underlying action was against his brothers and the Wills officials for their conduct 

summarized above. The underlying complaint is not completely clear, but Harper seems 

to allege that the defendants committed fraud and generally engaged in intentional and 

negligent tortious conduct. Such conduct, which Harper alleges occurred in 2007, is 

subject to a two-year statute of limitations. See 42 Pa. Cons. Stat. § 5524(7). Harper 

attempted to file the underlying action in February 2013, several years too late. Given 

that the only discernible claims in Harper’s underlying action were time-barred, Harper 

fails to identify a nonfrivolous or arguable claim on which to base his access to courts 

claim against the Prothonotary. As such, dismissal was proper. See Harbury, 536 U.S. at 

415-16.

“[I]n civil rights cases district courts must offer amendment—irrespective of 

whether it is requested—when dismissing a case for failure to state a claim unless doing 

so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, 

Inc., 482 F.3d 247, 251 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 

108 (3d Cir. 2002). Because Harper’s claims fail as a matter of law, however, 
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amendment would be futile. As such, the District Court properly dismissed the complaint 

without granting leave to amend.

III.

There being no substantial question presented on appeal, we will summarily affirm 

the judgment of the District Court.