2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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.

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1

NOT PRECEDENTIAL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.
2

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., 158 F.3d 711, 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. 
3

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.