2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-3-2013

John Whiteford v. Commonwealth of Pennsylvania

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4290

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4290

___________

JOHN K. WHITEFORD,

Appellant

v.

COMMONWEALTH OF PENNSYLVANIA; MUNICIPALITY OF PENN HILLS;

ANTHONY DELUCA, Mayor Penn Hills; 

HOWARD DAVIDSON; M. LETTRICH, Esq.;

MEYER, DARRAGH, BEBENEK, ECK, et al; B. BRIMMEIR, Esq.; 

A. SWEENEY, Esq.; A. RACUNAS, Esq.; A. J. ZANGRILLI, JR., Esq.; 

C. C. COLIN, Esq.; YUKEVICH MARCHETTI LIEKAR & ZANGRILLI P.C.;

P. MCGRAIL; ISOBEL STORCH, Esq.

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2:12-cv-00055)

District Judge: Honorable Joy Flowers Conti

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 3, 2013

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: May 3, 2013)

___________

OPINION

___________
2

PER CURIAM

Pro se appellant John K. Whiteford appeals from the District Court‟s dismissal of 

his complaint as well as its denial of his subsequent motion for reconsideration. For the 

following reasons, we will affirm.

I.

Because the parties are familiar with the history and facts of this case, and because 

our previous opinion in Whiteford v. Penn Hills Municipality, 323 F. App‟x 163 (3d Cir. 

Apr. 8, 2009), contains a detailed account, we recite only the facts necessary to our 

discussion. The Pennsylvania Department of Environmental Protection (“DEP”) granted 

Joseph Whiteford, Whiteford‟s son, conditional approval to dig a gas well on property 

leased for the Whitefords‟ oil and gas business. However, the Whitefords failed to obtain 

the appropriate grading permits and approvals before disturbing the soil on the site. The 

Municipality of Penn Hills issued notices of violations of its Existing Structures Code 

(“the Code”) to both Whitefords, but they failed to comply. Civil complaints were then 

filed. A Magisterial District Judge found both Whitefords liable for the violations, and 

the Whitefords unsuccessfully appealed to both the Court of Common Pleas and the 

Commonwealth Court.

In January 2007, the Code was amended to provide for imprisonment as a possible 

penalty for violations of its provisions. Subsequently, Penn Hills issued criminal 

complaints against the Whitefords for violating the Code because of their failure to obtain 

the appropriate grading permits and approvals on various days throughout February 2007. 

In February 2008, the Magisterial District Judge found Whiteford guilty of ten separate
3

violations. On appeal, the Commonwealth Court determined that prosecution of these 

violations did not violate the Double Jeopardy and Ex Post Facto Clauses.

The Whitefords filed suit pursuant to 42 U.S.C. § 1983 in the District Court in 

March 2007, naming many of the same defendants named in the instant suit. See

Whiteford v. Penn Hills Municipality, W.D. Pa. Civ. No. 2:07-cv-0272. The District 

Court granted the defendants‟ motions to dismiss based upon the doctrines of claim and 

issue preclusion, prosecutorial immunity, and judicial immunity. We affirmed. See

Whiteford, 323 F. App‟x at 166-67.

Whiteford filed a second § 1983 suit in January 2012, primarily alleging that the 

prosecution of his 2007 violations, the same violations previously adjudicated, was

barred by the Ex Post Facto Clause because they were based upon the same activity for 

which he was determined civilly liable in 2004.1 A Magistrate Judge recommended that 

the defendants‟ motions to dismiss be granted because Whiteford‟s claims were barred by 

the applicable statute of limitations, collateral estoppel, the doctrine of Heck v. 

Humphrey, 512 U.S. 477, 486-87 (1994), and prosecutorial immunity. The District Court 

adopted this recommendation, granted the defendants‟ motions to dismiss, and 

subsequently denied Whiteford‟s motion for reconsideration. This appeal followed.

II.

 

1 Whiteford‟s complaint also alleged that the Code is preempted by Pennsylvania‟s Oil 

and Gas Act; that the civil and criminal actions against him were based upon perjury; and 

that the defendants‟ attorneys‟ attempts to collect fees and costs are “unconstitutional and 

unfair” because of the alleged Ex Post Facto violation.
4

We have jurisdiction. See 28 U.S.C. § 1291. We exercise plenary review over the 

District Court‟s dismissal order. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 

2002). To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “a 

complaint must contain sufficient factual matter, accepted as true, to „state a claim to 

relief that is plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We review the denial of the 

motion for reconsideration for abuse of discretion. See Lazaridis v. Wehmer, 591 F.3d 

666, 669 (3d Cir. 2010).

III.

On appeal, Whiteford does not contest the District Court‟s conclusion that his 

claims are barred by the statute of limitations and collateral estoppel. We thus deem 

these issues waived, as they are not raised in his brief. See FDIC v. Deglau, 207 F.3d 

153, 169-70 (3d Cir. 2000). Consequently, there is nothing left of Whiteford‟s claims to 

adjudicate after invoking this waiver. In any event, we express our agreement with the 

District Court that his claims are barred by Pennsylvania‟s applicable two-year 

limitations period, as they all accrued, at the latest, by 2008. See 42 Pa. Cons. Stat. § 

5524(2); see also Wallace v. Kato, 549 U.S. 384, 388 (2007) (citations omitted). We also 

agree that collateral estoppel bars his claims, as they have been previously addressed, or 

could have been addressed, by either the District Court in his prior § 1983 action or by 

the state courts.

2

 See Greenleaf v. Garlock, Inc., 174 F.3d 352, 357-58 (3d Cir. 1999).

 

2 Moreover, as we explained in our prior opinion, the amended Code does not violate the 

Ex Post Facto Clause, as “each day that a violation continues after notice of violation has 
5

Furthermore, the District Court did not abuse its discretion in denying Whiteford‟s

motion for reconsideration, as his motion did not identify any of the three grounds 

required for reconsideration. Lazaridis, 591 F.3d at 669.

IV.

For the foregoing reasons, we will affirm the District Court‟s judgment.3

 

been served constitutes a separate offense.” Whiteford, 323 F. App‟x at 164.

3 Under the circumstances presented here, leave to amend need not have been allowed. 

See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).