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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2267

___________

ANDREW J. BULLOCK, IV, INDIVIDUALLY, AND DERIVATIVELY ON BEHALF 

OF: MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION

v.

ARTHUR S. KLEIN, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS 

PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' 

ASSOCIATION; KENNETH O. SPANG, III, ESQUIRE; SCOTT F. WATERMAN, 

ESQUIRE; MARIE RITA GLEASON, ESQUIRE, INDIVIDUALLY AND IN HER 

CAPACITY AS TOWNSHIP MANAGER OF TREDYFFRIN TOWNSHIP; THOMAS 

J. CRANDALL, INDIVIDUALLY AND IN HIS CAPACITY AS PURPORTED 

BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;

GERARD J. BERGER, INDIVIDUALLY AND IN HIS CAPACITY AS PURPORTED

BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;

SHAYNA F. BEST, INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED

BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION;

WILLIAM M. SUNICK, JR., INDIVIDUALLY AND IN HIS CAPACITY AS 

PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' 

ASSOCIATION; JUDITH B. WETZEL, INDIVIDUALLY AND IN HER CAPACITY 

AS PURPORTED BOARD MEMBER OF MAIN STREET VILLAGE 

HOMEOWNERS' ASSOCIATION; DONNA M. HOUGHTON, INDIVIDUALLY AND 

IN HER CAPACITY AS PURPORTED BOARD MEMBER OF MAIN STREET 

VILLAGE HOMEOWNERS' ASSOCIATION; PATRICIA A. EVANS, 

INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED BOARD MEMBER OF 

MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION; KATHRYN 

MARINICK, INDIVIDUALLY AND IN HER CAPACITY AS PURPORTED BOARD 

MEMBER OF MAIN STREET VILLAGE HOMEOWNERS' ASSOCIATION; MAIN 

STREET VILLAGE HOMEOWNERS' ASSOCIATION; PENCO MANAGEMENT, 

INC.; ELIZABETH A. SHINGLE, INDIVIDUALLY AND IN HER CAPACITY AS 

MANAGER AGENT FOR MAIN STREET VILLAGE HOMEOWNERS' 

ASSOCIATION; RONALD WHITE, INDIVIDUALLY AND IN HIS CAPACITY AS 

AGENT FOR THE PURPORTED BOARD OF MAIN STREET VILLAGE 
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HOMEOWNERS' ASSOCIATION; MONIKA GERMONO, INDIVIDUALLY AND IN 

HER CAPACITY AS PURPORTED AGENT FOR PURPORTED MAIN STREET 

VILLAGE HOMEOWNERS' ASSOCIATION; EDMUND S. PENDELTON, 

INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF PENCO 

MANAGEMENT, INC.; DONALD FRANCESCHINI, INDIVIDUALLY AND IN HIS 

CAPACITY AS PRESIDENT OF PENCO MANAGEMENT, INC.; 

BRYN MAWR LANDSCAPING CO INC; THOMAS J. FOGA, JR., INDIVIDUALLY 

AND IN HIS CAPACITY AS TREASURER OF BRYN MAWR LANDSCAPING; 

ATLANTIC ROOFING CORP.; CHRISTOPHER CONN, INDIVIDUALLY AND IN 

HIS CAPACITY AS IT RELATES TO ATLANTIC ROOFING; JIM MILLER 

ROOFING AND SHEET METAL INC.; JAMES MILLER, INDIVIDUALLY AND IN 

HIS CAPACITY AS PRESIDENT OF JIM MILLER ROOFING AND SHEET METAL 

INC.; WISLER, PEARLSTEIN, TALONE, CRAIG, GARRITY & POTASH, LLP; 

BLACK, STRANICK & WATERMAN, LLP.; DAVID J. SCAGGS, ESQUIRE; 

BLAIR H. GRANGER, ESQUIRE; BLAIR H. GRANGER & ASSOCIATES, P.C.; 

TREDYFFRIN TOWNSHIP; MS. EMELINE BALDASSARREE, INDIVIDUALLY 

AND IN HER CAPACITY AS BUILDING INSPECTOR OF TREDYFFRIN 

TOWNSHIP; TREDYFFRIN TOWNSHIP POLICE DEPARTMENT;

ANDREW CHAMBERS, SUPERINTENDENT, INDIVIDUALLY AND IN HIS

CAPACITY AS SUPERINTENDENT OF TREDYFFRIN TOWNSHIP POLICE 

DEPARTMENT; BARRAR, SGT., INDIVIDUALLY AND IN HIS CAPACITY AS

POLICE OFFICER OF TREDYFFRIN TOWNSHIP; OFC. JOHN/JANE DOE, 

INDIVIDUALLY AND IN HIS/HER CAPACITY AS POLICE OFFICER OF 

TREDYFFRIN TOWNSHIP; HUGH A. O'HARE, INDIVIDUALLY AND IN HIS 

CAPACITY AS CHIEF BUILDING CODE OFFICER OF TREDYFFRIN TOWNSHIP;

JUDY L. DIFILLIPO, INDIVIDUALLY AND IN HER CAPACITY AS A

MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;

MARK DEFELICIANTONIO, INDIVIDUALLY AND IN HIS CAPACITY AS A

MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;

BILL DEHAVEN, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER

OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;

PAUL J. DRUCKER, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS A

MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;

WARREN E. KAMPF, ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY AS A

MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN TOWNSHIP;

E. BROOKS KEFFER, JR., ESQUIRE, INDIVIDUALLY AND IN HIS CAPACITY

AS A MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN 

TOWNSHIP; ROBERT Q. W. LAMINA, INDIVIDUALLY AND IN HIS CAPACITY 

AS A MEMBER OF THE BOARD OF SUPERVISORS OF TREDYFFRIN 

TOWNSHIP; SOVEREIGN BANK
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Andrew J. Bullock, IV, Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-11-cv-01123)

District Judge: Honorable Mitchell S. Goldberg

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Submitted Pursuant to Third Circuit LAR 34.1(a)

October 2, 2012

Before: RENDELL, FUENTES and WEIS, Circuit Judges

(Opinion filed: October 26, 2012)

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OPINION

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PER CURIAM.

Andrew J. Bullock IV, proceeding pro se, appeals from the District Court’s 

dismissal of his complaint. For the reasons set forth below, we will affirm.

I.

We will assume the parties’ familiarity with the facts and recite only those 

pertinent to this opinion. From 1997 to 2007, Bullock owned a home that was managed 

by the Main Street Village Homeowners’ Association (the “Association”). Several 

incidents occurred during that time period, ultimately ending with the foreclosure and 

Sheriff’s sale of Bullock’s home. As a result, Bullock filed his first complaint against 

fifty-six defendants, asserting federal and state law claims. The District Court dismissed 

the federal claims for failure to state claim upon which relief could be granted, lack of 
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standing, and because three of them were criminal in nature. The state law claims were 

then dismissed pursuant to 28 U.S.C. § 1367. We affirmed. Bullock v. Klein

Bullock then filed, on February 15, 2001, another action against forty-five of the 

same defendants from his previous case. His complaint alleged substantially the same 

facts and claims as before, along with a derivative claim on behalf of the Association. 

The defendants filed motions to dismiss, arguing that Bullock’s complaint should be 

dismissed under the doctrine of res judicata. The District Court agreed. (Dkt. No. 45.) 

Bullock timely appealed the dismissal of his complaint.

, 341 F. 

App’x 812, 816 (3d Cir. 2009). 

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

over a district court’s “application of res judicata to bar the appellant’s claims.” Huck ex 

rel. Sea Air Shuttle Corp. v. Dawson

Bullock argues that “res judicata does not apply” because “[f]raud upon the court 

allows any court to treat any previous case as a nullity.” (Appellant’s Br. at 3.) All of the 

appellees argue that the District Court properly applied the doctrine of res judicata. We 

agree.

, 106 F.3d 45, 48 (3d Cir. 1997).

Three elements must be established to prevail on a motion seeking to invoke res 

judicata: “(1) a final judgment on the merits in a prior suit involving (2) the same parties 

or their privies and (3) a subsequent suit based on the same cause of action.” Duhaney v. 

Att’y Gen., 621 F.3d 340, 347 (3d Cir. 2010). Res judicata “bars not only claims that 
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were brought in a previous action, but also claims that could have been brought.” In re 

Mullarkey

In the prior case, Bullock alleged that certain parties, who are attorneys, 

committed a fraud upon the state court that prompted the Sheriff’s sale of his home. The 

District Court, while not specifically mentioning “fraud upon the court,” nonetheless 

dismissed the claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We then 

affirmed the District Court’s decision. In this case, Bullock alleged that the same parties 

perpetrated the same fraud, based upon the same set of facts. The District Court, again 

without specifically naming the claim, dismissed Bullock’s complaint.

, 536 F.3d 215, 225 (3d Cir. 2008). 

The District Court properly held that Bullock’s claims are barred by the doctrine 

of res judicata. The dismissal of Bullock’s first complaint for failure to state a claim 

constituted a final judgment on the merits. See Federated Dep’t Stores, Inc. v. Moitie, 

452 U.S. 394, 399 n.3 (1981). Next, the second case indisputably involved the same 

parties as the first. Finally, the subsequent suit that generated this appeal was based on 

the same cause of action, as the claims are virtually identical and arose out of the same 

set of facts. 1

As his claims were already pursued in a prior suit, Bullock is precluded from 

raising them again. 

 

See Allen v. McCurry

 1

 Though Bullock brought a derivative claim on behalf of the Association that was not 

asserted in the first action, it does not undercut the application of res judicata, as it could 

have been raised in the previous case. Mullarkey, 536 F.3d at 225. 

, 449 U.S. 90, 94 (1980) (“Under res judicata, a 
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final judgment on the merits of an action precludes the parties or their privies from 

relitigating issues that were or could have been raised in that action.”). Given the 

“identity of facts, claims and parties” found between the first and second cases, the 

District Court properly dismissed Bullock’s complaint. Huck

Bullock argues that “the claim of Fraud Upon the Court” has never been 

addressed. (Appellant’s Br. at 3.) We disagree. The claim was dismissed pursuant to 

Rule 12(b)(6) in his first case, and was barred by the doctrine of res judicata in his 

second. In any event, Bullock did not make any allegations that “meet the demanding 

standard for fraud upon the court,” which is justified only by “the most egregious 

misconduct directed at the court itself,” and must be “supported by clear, unequivocal 

and convincing evidence.” 

, 106 F.3d at 51. 

Herring v. United States

III.

, 424 F.3d 384, 387 (3d Cir. 2005). 

Appellees Atlantic Roofing Corporation and Christopher Conn request that we 

impose sanctions on Bullock, pursuant to Federal Rule of Appellate Procedure 38. That 

rule permits an award of damages and single or double costs to an appellee if we 

determine that the appeal is “frivolous.” Fed. R. App. P. 38. We employ “an objective 

standard” in determining whether an appeal is frivolous, and only impose damages under 

Rule 38 when an appeal is “wholly without merit.” Mellon Bank Corp. v. First Union 

Real Estate Equity & Mortg. Invs., 951 F.2d 1399, 1414 (3d Cir. 1991). Because the 

issue of fraud upon the court was not specifically mentioned by the District Court, 

Bullock had “at least a colorable argument” in favor of his appeal, and we will not 
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impose Rule 38 damages. Id. Though we will deny the motion for sanctions, we will tax 

costs against Bullock under Federal Rule of Appellate Procedure 39. See

IV.

Fed. R. App. P. 

39(a)(2). 

For the foregoing reasons, we will affirm the decision of the District Court 

dismissing Bullock’s complaint. The motion for sanctions is denied.