                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-10-2005

Holston v. Subers
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4275




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Recommended Citation
"Holston v. Subers" (2005). 2005 Decisions. Paper 1224.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1224


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CPS-169                                UNREPORTED - NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 04-4275
                                ________________

                               ANDREW HOLSTON,

                                          Appellant

                                           v.


                       ALBERT SUBERS, Judge; THEODORE
                             Q. THOMPSON, Esquire
                    ____________________________________

                  On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                             (D.C. Civ. No. 04-cv-00694)
                  District Judge: Honorable Ronald L. Buckwalter
                  _______________________________________

Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                March 10, 2005

           BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES

                                (Filed May 10, 2005)

                            _______________________

                                    OPINION
                            _______________________

PER CURIAM

     Andrew Holston appeals from the District Court’s order dismissing his “Petition to
Review.” We will affirm the order pursuant to I.O.P. 10.6, as the appeal presents no

substantial question.

       Holston filed a complaint in February 2004, which he later amended, seeking

declaratory relief and damages. The complaint alleged that Theodore Thompson,

Holston’s former attorney in a condemnation proceeding, committed perjury in state court

pursuant to 18 U.S.C. § 1621 when he denied receiving a malpractice petition. Holston

also asserted that Senior Judge Albert R. Subers, of the Montgomery County Court of

Common Pleas, had obstructed justice by dismissing Holston’s malpractice action. The

District Court granted the defendants’ motions to dismiss. Holston then filed documents,

relating to each defendant, entitled “Application for Expediated [sic] Consideration,”

which the District Court construed as motions for reconsideration and denied as untimely

and lacking merit.1 Shortly thereafter, Holston filed a document entitled “Petition Said

Court to Review the Case.” The District Court dismissed his “Petition to Review,” and

Holston filed this appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s dismissal of the “Petition to Review” is plenary. See Universal Minerals, Inc. v.

C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir. 1981). The District Court dismissed the

“Petition to Review” after concluding that there was no such cause of action recognized



   1
     Because the “Application” was filed more than ten days after entry of the orders
granting defendants’ motions to dismiss, it did not toll the time to appeal those orders.
See Fed. R. App. P. 4(a)(4).

                                             2
in law or equity. We agree. Holston does not cite any law that would support his

“Petition to Review.” He merely repeats the allegations provided in his “Application for

Expediated [sic] Consideration,” which the District Court had previously denied. Even if

the District Court had construed the “Petition to Review” as a motion to reconsider the

denial of the “Application,” the motion would have been properly denied as untimely.

The “Petition to Review” does not include any language to suggest it is a motion for

reconsideration pursuant to Fed. R. Civ. P. 59(e) or a motion for relief from judgment

pursuant to Fed. R. Civ. P. 60(b), or provide any argument to support such a motion.

       Finally, we note that, in his “Petition to Review,” Holston also seeks Judge

Buckwalter’s recusal and takes issue with a decision issued by a panel of this Court. As

there were no proceedings before Judge Buckwalter at the time the “Petition to Review”

was filed, there was no basis for his recusal. Review of decisions issued by this Court is

not obtained by filing a petition in the District Court.

       Having concluded the appeal presents no substantial question, we will summarily

affirm the District Court’s order.
