Third Circuit disposition — 082408np-pdf

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NOT PRECEDENTIAL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)
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OPINION
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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.

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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.

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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.

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