NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-3302

__________

THOMAS LAMONT DYNO; 

JULIA DYNO,

Appellants

v.

ALBERT DYNO, JR., in his official and personal capacity

as Executor of the Estate of Rosemarie Sterchak, deceased

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-19-cv-01966)

District Judge: Honorable Malachy E. Mannion

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 5, 2021

Before: AMBRO, PORTER and SCIRICA, Circuit Judges

(Opinion filed: August 10, 2021)

___________

OPINION*

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

constitute binding precedent.
2

PER CURIAM

Pro se appellants Thomas Dyno and Julia Dyno appeal from the District Court’s 

orders granting the defendant’s motion to dismiss and denying their motion for 

reconsideration. For the following reasons, we will affirm the District Court’s judgment 

with a modification.

I.

As we write primarily for the parties, who are familiar with the facts, we will 

discuss the details only as they are relevant to our analysis. This case derives from a 

dispute over the estate of Rosemarie Sterchak. Sterchak died in October 2015, leaving a 

will that named the defendant, Albert Dyno, Jr., as her executor. In the will, Sterchak left

bequests of specific corporate stocks and cash to several individuals, including both 

plaintiffs. The executor, through counsel, represented to the beneficiaries of these 

bequests that the residual estate lacked sufficient liquid assets to pay the inheritance taxes 

and administrative expenses of the estate. He assigned each beneficiary a share of the 

estimated deficit and sought agreement from each beneficiary to either pay this share to 

the estate in cash or permit the executor to liquidate sufficient stocks from the 

beneficiary’s bequest to cover the share.

 The plaintiffs refused the executor’s proposed agreement and filed a petition for 

inventory and accounting with the county Orphans’ Court. The plaintiffs allege that the 

executor’s proposals did not follow applicable Pennsylvania law regarding inheritance 
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taxes and estate expenses. They also allege that the executor and his counsel improperly 

sought payments and fees for their own benefit. The executor filed a first inventory and 

accounting in late 2016, and the plaintiffs objected. Litigation before the Orphans’ Court 

and the Pennsylvania appellate courts continued through the filing of this action in 

November 2019. At that time, the administration of the estate remained pending before 

the Orphans’ Court and the plaintiffs had filed a petition to the Pennsylvania Supreme 

Court concerning certain motions, which was later denied.1

The plaintiffs filed a complaint against the executor in the District Court.2 

Invoking 42 U.S.C. § 1983, they claimed that the executor was violating their rights 

under the Due Process Clause of the Fourteenth Amendment by depriving them of their 

specific legacies. They also asserted state-law claims for fraud and breach of fiduciary 

duty. For relief, the plaintiffs essentially requested a declaration that they were entitled to 

immediate possession of the stocks in their bequests and an order requiring the executor 

to turn over the stocks, along with associated dividends, interests, and costs. Adopting a 

1 The administration of the estate still remains pending before the Orphans’ Court. The 

executor represents that this is because of the plaintiffs’ continued litigation. Appellee’s 

Br. 4, 3d Cir. ECF No. 26. The other beneficiaries appear to have accepted the 

executor’s proposal or otherwise reached agreement and received the remainder of their 

bequests.

2 The plaintiffs relied primarily on federal question jurisdiction and supplemental 

jurisdiction, but argued that diversity jurisdiction applied “if necessary.” Compl. ¶ 5, 

ECF No. 1.
4

Magistrate Judge’s Report and Recommendation over the plaintiffs’ objections, the 

District Court granted the defendant’s motion to dismiss for lack of subject matter 

jurisdiction and later denied the plaintiffs’ motion for reconsideration. The plaintiffs 

appealed both rulings.

II.

We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s 

dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) is de 

novo. In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 

2017). Since the defendant’s motion is a facial, rather than factual, attack on jurisdiction, 

we consider the allegations of the complaint as true. Id. We review “a denial of a motion 

for reconsideration for abuse of discretion, but we review the District Court’s underlying 

legal determinations de novo and factual determinations for clear error.” U.S. ex rel. 

Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 848 (3d Cir. 2014) (quoting 

Howard Hess Dental Labs. Inc. v. Dentsply Int’l Inc., 602 F.3d 237, 246 (3d Cir. 2010)).

III.

The District Court determined that it lacked jurisdiction under the Princess Lida

doctrine. Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466 (1939). We 

agree. The Princess Lida doctrine “prevents a court in which an action is filed from 

exercising jurisdiction when a court in a previously filed action is exercising control over 

the property at issue and the second court must exercise control over the same property in 
5

order to grant the relief sought,” even where the property has not actually been seized. 

Dailey v. Nat’l Hockey League, 987 F.2d 172, 175 (3d Cir. 1993). It is a “mechanical 

rule” that “applies when: (1) the litigation in both the first and second fora are in rem or 

quasi in rem in nature, and (2) the relief sought requires that the second court exercise 

control over the property in dispute and such property is already under the control of the 

first court.” Id. at 176. We apply the rule based on the circumstances at the time the 

action was filed. Id. at 177; Chevalier v. Estate of Barnhart, 803 F.3d 789, 803 (6th Cir. 

2015).

Here, the Orphans’ Court exercised control over the estate property, including the 

bequests at issue. See In re Estate of Craig, 109 A.2d 190, 198 (Pa. 1954) (per curiam) 

(“[T]he accounting and distribution of a decedent’s estate” is “a proceeding in rem.”); 

Three Keys Ltd. v. SR Util. Holding Co., 540 F.3d 220, 227-229 (3d Cir. 2008) 

(concluding that a decedent’s stock shares remained within the jurisdiction of the 

orphans’ court until approval of any transfer).3 The plaintiffs argue that they were 

3 Three Keys applies the “probate exception to federal courts’ diversity jurisdiction.” 540 

F.3d at 222. But the third prong of that exception, applied in Three Keys, is a restatement 

of the Princess Lida doctrine. See id. at 227 (applying the principle that a federal court 

may not “assume in rem jurisdiction over property that is in the custody of the probate 

court”); see Goncalves ex rel. Goncalves v. Rady Child.’s Hosp. San Diego, 865 F.3d 

1237, 1253 (9th Cir. 2017) (noting that this aspect of the probate exception is “an 

application of the prior exclusive jurisdiction [or Princess Lida] doctrine”); Chevalier, 

803 F.3d at 803 (“The prior-exclusive-jurisdiction doctrine is similar—if not identical 

to—the probate exception.”).
6

entitled to their specific legacies immediately upon Sterchak’s death and that, absent 

proof of a deficiency in the residual estate, their legacies are not properly part of the 

estate or subject to the jurisdiction of the Orphans’ Court, relying on Beatty v. 

Hottenstein, 112 A.2d 397, 399-400 (Pa. 1955) (ultimately quoting In re Robinson’s 

Estate, 24 Pa. C. 588, 589, 591 (Huntingdon Cnty. Orphans’ Ct. 1901)). But neither 

Beatty nor Robinson’s Estate addresses the jurisdiction of the Orphans’ Court and here, 

unlike in those cases, the executor represents that the residual estate is insufficient to pay 

debts and expenses. See Beatty, 112 A.2d at 400; Robinson’s Estate, 24 Pa. C. at 589.4

To grant the relief sought by the plaintiffs, the District Court would have had to 

exercise control over the shares of stock at issue. See Three Keys, 540 F.3d at 229 

(determining that a request for declaratory judgment sought “a federal court 

determination of [the plaintiff’s] ownership interest in” stock and “would dispose of 

Estate property under the jurisdiction of the Orphans’ Court”); Lefkowitz v. Bank of New 

York, 528 F.3d 102, 107 (2d Cir. 2007) (concluding that providing requested specific 

performance and declaratory relief would require the federal court “to assert control over 

property that remains under the control of the state courts”). The practical effect of the 

relief, rather than the precise labelling of in rem or quasi in rem, is dispositive. See

4 Furthermore, both cases predate significant statutory revisions, and Beatty, to the extent 

that it relies on the broad language of Robinson’s Estate, does so only within in the 

context of entitlement to interest and proceeds. Beatty, 112 A.2d at 399.
7

Dailey, 987 F.2d at 177. The plaintiffs asked the District Court to order the distribution 

of specific property subject to the jurisdiction of the Orphans’ Court. The District Court 

thus lacked subject matter jurisdiction under the Princess Lida doctrine.

The District Court, adopting the Recommendation and Report of the Magistrate 

Judge, further considered whether the plaintiffs should be given leave to amend their 

complaint in order to seek money damages under § 1983.5 It determined that any such 

amendment would be futile.

While we agree with the District Court’s decision to dismiss this case for lack of 

jurisdiction, and to deny reconsideration of that decision when the plaintiff’s motion 

merely stated their disagreement with the District Court's analysis, see Max’s Seafood 

Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999), the dismissal 

should have been without prejudice. See N.J. Physicians, Inc. v. President of U.S., 653 

F.3d 234, 241 n.8 (3d Cir. 2011) (explaining that dismissals for lack of subject matter 

jurisdiction are “by definition without prejudice”); cf. Thorne v. Pep Boys Manny Moe & 

Jack Inc., 980 F.3d 879, 896 (3d Cir. 2020) (“The specter of serial litigation cannot imbue 

the District Court with jurisdiction it otherwise lacks.”).

5 The District Court did not consider any other potential amendments.
8

IV.

Accordingly, we will affirm except that we will modify the judgment to reflect 

that the dismissal of the plaintiffs’ complaint was without prejudice.6 7

6 As modified, the judgment no longer adopts the portions of the Magistrate Judge’s 

report and recommendation concerning futility. Under the circumstances of this case, it 

was unnecessary to consider whether amendment was futile. See Figueroa v. Buccaneer 

Hotel, Inc., 188 F.3d 172, 182 (3d Cir. 1999) (explaining that a dismissal for lack of 

subject matter jurisdiction is not an adjudication on the merits).

7 The plaintiffs move for permission to file additional copies of their brief on DVDs, in 

order to include hyperlinks. Mot., 3d Cir. ECF No. 22. We grant this motion.