2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-30-2012

Patrick Daniel Tillio, Jr. v. Lower Merion Township

Police

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2381

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Recommended Citation

"Patrick Daniel Tillio, Jr. v. Lower Merion Township Police" (2012). 2012 Decisions. Paper 514.

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GLD-246 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2381

___________

PATRICK DANIEL TILLIO, JR.,

 Appellant 

v.

LOWER MERION POLICE; 

LOWER MERION POLICE DEPARTMENT 

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-12-cv-02419)

District Judge: Honorable Mary A. McLaughlin 

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect

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

August 2, 2012

Before: FUENTES, GREENAWAY, JR. and BARRY, Circuit Judges

(Opinion filed: August 30, 2012)

_________

OPINION

_________

PER CURIAM

Patrick Daniel Tillio, Jr. (“Tillio”), proceeding pro se and in forma pauperis, 

appeals from the District Court‟s order dismissing his complaint. We will summarily 

affirm.
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I.

In April 2012, Tillio filed an application to proceed in forma pauperis and a 

complaint alleging that the Lower Merion Police were violating his civil rights and 

working with people to take his father‟s home. (Dkt. No. 3.) By order entered May 8, 

2012, the District Court granted Tillio leave to proceed in forma pauperis but dismissed 

his complaint without prejudice. (Dkt. No. 2.) Tillio was granted leave to amend his 

complaint within thirty days.

Rather than filing an amended complaint, Tillio filed a notice of appeal on May 

11, 2012. The Clerk notified Tillio of a potential jurisdictional defect pursuant to Borelli 

v. City of Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam), and that his appeal would 

be submitted for possible summary action. Tillio did not respond.

II.

Normally, an order that “dismisses a complaint without prejudice is neither final 

nor appealable” under 28 U.S.C. § 1291. Borelli, 532 F.2d at 951. Such an order 

becomes final and appealable, though, if the plaintiff “declares his intention to stand on 

his complaint” instead of amending it. Id. at 952.

There is no “clear rule for determining when a party has elected to stand on his or 

her complaint.” Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir. 2009). However, when the 

District Court has provided a set amount of time within which to amend, and the plaintiff 

fails to do so, the Court may conclude that the plaintiff elected to stand on his complaint. 

Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir 1992); see also Hagan, 570 

F.3d at 151 (concluding that plaintiffs stood on their complaints because they filed 
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notices of appeal rather than amending within specified time period); Frederico v. Home 

Depot, 507 F.3d 188, 193 (3d Cir. 2007) (same). 

Tillio filed a notice of appeal, instead of amending his complaint, within the thirtyday window provided by the District Court. Therefore, Tillio elected to stand on his 

complaint, and the order of the District Court is final and appealable. We have 

jurisdiction over his appeal.

Having determined that jurisdiction is proper, we may summarily affirm the 

decision of the District Court if no substantial question is presented on appeal. 3d Cir. 

LAR 27.4 and I.O.P. 10.6. We agree with the District Court that Tillio‟s complaint does 

not meet the pleading requirements of Federal Rule of Civil Procedure 8(a). He claimed 

that the Lower Merion Police were “going against [his] civil rights” and “work with 

people take home from dad.” (Dkt. No. 3, p. 3.) Tillio did not state any particularized

basis for the Lower Merion Police Department‟s liability, nor did he identify individual 

police officers who may have violated his rights. He named two individuals as additional 

defendants but did not describe any factual basis for their liability. Tillio also claimed 

that the police and others were trying to take his father‟s home. The District Court 

correctly determined that “he does not have standing to raise claims based on injury 

sustained by his father.” (Dkt. No. 2, p. 2.) 

In sum, Tillio‟s complaint did not contain the requisite “short and plain statement 

of the claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal 

was therefore appropriate. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (complaint 
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does not suffice “if it tenders „naked assertion[s]‟ devoid of „further factual 

enhancement‟”) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). 

III.

The District Court properly dismissed Tillio‟s complaint and allowed him leave to 

amend. We will summarily affirm the order of the District Court because no substantial 

question is presented by this appeal. 3d Cir. LAR 27.4 and I.O.P. 10.6.