Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-22-2005
Johnstown v. Vora
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4700
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Recommended Citation
"Johnstown v. Vora" (2005). 2005 Decisions. Paper 1322.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1322
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APS-193 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4700
________________
CITY OF JOHNSTOWN
v.
CHANDAN S. VORA,
Appellant
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-00207J)
District Judge: Honorable Gustave Diamond
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 31, 2005
BEFORE: SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES
(Filed April 22, 2005 )
_______________________
OPINION
_______________________
PER CURIAM
Chandan S. Vora appeals the September 9, 2004 order of the United States District
Court for the Western District of Pennsylvania dismissing pursuant to 28 U.S.C. §
1915(e)(2)(B) her “Notice of Removal” for lack of jurisdiction. Vora also appeals the
October 27, 2004, and November 17, 2004 orders denying her motions to vacate.
In August 2004, Vora filed a notice of removal seeking to transfer an order of a
District Judge of the Court of Common Pleas in Cambria County, Pennsylvania,
authorizing the City of Johnstown to enter Dr. Vora’s property and to remove any rubbish
or garbage or other material that was in violation of the city’s property maintenance
ordinance.
In the September 9, 2004 order dismissing the removal petition, the District Court
concluded that the “Notice of Removal” sought to attack a state court proceeding over
which the District Court had no jurisdiction and that the pleadings failed to state a claim
upon which relief could be granted. On September 13, 2004, Vora moved to vacate the
dismissal of her removal action, claiming that the City wrongly adjudicated her guilty of
the city ordinance and that city officials violated her civil rights. By order entered
October 27, 2004, the District Court treated the motion as a reconsideration motion and
denied it for the same reasons set forth in its original dismissal 2004 order. Dr. Vora then
filed a motion to vacate the October 2004 order on November 8, 2004, which the District
Court denied on November 17, 2004 on the same grounds it had denied her
reconsideration motion. Vora filed a notice of appeal on December 16, 2004.
First, Vora’s notice of appeal from the order dismissing the petition for removal is
clearly untimely under Fed. R. App. P. 4(a)(1), as it was filed over 1 month too late. The
time-period prescribed for filing a notice of appeal is “mandatory and jurisdictional.”
2
Browder v. Director of Dep’t of Corr., 434 U.S. 257, 264 (1978). In a civil case in which
the United States is not a party, a notice of appeal must be filed within thirty (30) days of
the date of entry of the final judgment or order appealed. Fed. R. App. P. 4(a)(1)(A). On
September 9, 2004, the District Court granted in forma pauperis and dismissed the Vora’s
removal petition pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for lack of jurisdiction.
Appellant’s timely motion to vacate, construed as a reconsideration motion, tolled the
appeals period because it was filed less than ten days after entry of the dismissal order.
See Fed. R. App. P. 4(a)(4). The District Court denied the reconsideration motion on
October 27, 2004. Appellant had until November 26, 2004, to file a timely notice of
appeal. Appellant did not file a notice of appeal until December 16, 2004, more than
thirty days after entry of judgment. Accordingly, given the absence of a timely filed
notice of appeal, the appeal of the District Court’s September 9, 2004 order is dismissed
for lack of appellate jurisdiction.1 Vora’s appeal of the orders denying the motion for
reconsideration and the motion to vacate is timely, however, and thus, we have
jurisdiction to consider the appeal of these orders.
Vora was granted leave to proceed in forma pauperis, and the appeal is now before
the Court for determination pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §
1915(e)(2)(B), the Court must dismiss an appeal if it (i) is frivolous or malicious, (ii) fails
1
We have considered Vora’s arguments contained in her jurisdictional response
filed on April 7, 2005, and find them to be meritless.
3
to state a claim upon which relief may be granted, or (iii) seeks monetary damages from a
defendant with immunity. An action or appeal can be frivolous for either legal or factual
reasons. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
After reviewing Vora’s District Court pleadings and notice of appeal, we conclude
that the District Court correctly denied the both motions to vacate. Having found no legal
merit to this cause, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
4