                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 19-1495
                                   ________________

                                 ALLEN L. FEINGOLD,
                                               Appellant

                                             v.

         BRADLEY & KENNY BROOKS; BRADLEY & DOYLE BROOKS;
            DANIEL DOYLE; ALLSTATE INSURANCE COMPANY,
                   AKA ALLSTATE; MICHAEL RAITH

                                   ________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civil No. 2-19-cv-00291)
                      District Judge: Honorable Petrese B. Tucker
                                   ________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                on November 13, 2019

              Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

                                 (Filed: January 24, 2020)

                                   ________________

                                       OPINION*
                                   ________________



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

       Allen L. Feingold appeals the trial court’s decision to sua sponte dismiss his

complaint as time-barred. In 2019, Feingold, a disbarred attorney, filed a bad faith claim

against an insurance company, its lawyer, and an arbitrator (collectively, the “underlying

defendants”), which was assigned to him by a former client, Kristina Edwards. J.A. A-2.

The factual underpinning of this claim stems from conduct by the underlying defendants

in failing to “fully or properly comply with the law, case law[,] or the Allstate Insurance

Policy” during litigation of Edwards’s claim sometime between 2000 and 2011, when it

was dismissed for failure to prosecute. Joint Appendix B-5 ¶ 28; J.A. A-2–4. Upon

receiving Feingold’s complaint, the trial court granted Feingold’s petition to proceed in

forma pauperis under 28 U.S.C. § 1915 and sua sponte dismissed the matter as time-

barred.

       Feingold appealed and raises two issues for our consideration: (1) whether a trial

court, acting under the mandates of 28 U.S.C. § 1915, may sua sponte dismiss a claim as

time-barred and (2) whether the trial court correctly dismissed Feingold’s claim. We find

the trial court had the authority to sua sponte dismiss the matter and was correct in doing

so. We will affirm.1



1
 The trial court possessed jurisdiction over the matter under 28 U.S.C. § 1332, as there
was complete diversity between the parties and the amount in controversy exceeded
$75,000. We possess jurisdiction to hear this appeal under 28 U.S.C. § 1291, as the trial
court dismissed Mr. Feingold’s case with prejudice. We review the trial court’s decision
de novo. Lazaridis v. Wehmer, 591 F.3d 666, 670 (3d Cir. 2010) (stating that the standard
of review for a 28 U.S.C. § 1915(e)(2) dismissal is plenary) (citing Allah v. Seiverling,
229 F.3d 220, 223 (3d Cir. 2000)).

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       We must first determine whether a trial court may sue sponte dismiss a time-

barred claim under the screening process mandated by 28 U.S.C. § 1915 for litigants

proceeding in forma pauperis. In Jones v. Bock, the Supreme Court considered whether

amendments to 28 U.S.C. § 1915 by the Prisoner Litigation Reform Act (“PLRA”)

altered the pleading standards of the Federal Rules of Civil Procedure. 549 U.S. 199, 211

(2007). In deciding the PLRA did not alter the pleading rules—and did not require a

plaintiff to show exhaustion in his or her complaint—the Court stated screening for

failure to state a claim could include considering the merits of an affirmative defense—

even if waivable—as long as it was apparent on the face of the complaint:

       A complaint is subject to dismissal for failure to state a claim if the
       allegations, taken as true, show the plaintiff is not entitled to relief. If the
       allegations, for example, show that relief is barred by the applicable statute
       of limitations, the complaint is subject to dismissal for failure to state a
       claim; that does not make the statute of limitations any less an affirmative
       defense, see Fed. Rule Civ. Proc. 8(c).

Id. at 214–15 (emphasis added). Notably, this was not premised upon the right of an

individual proceeding in forma pauperis to comment upon the issue, as Feingold here

argues.2 Accordingly, the trial court did not err when it sua sponte considered whether

Feingold’s case was time-barred.

       Because it is permissible for a trial court to dismiss a claim as time-barred upon a

sua sponte screening under § 1915, we need now only consider whether the trial court


2
  Feingold’s citations to Lassiter v. City of Philadelphia, 716 F.3d 53 (3d Cir. 2013) and
Travelers Indemnity Co. v. Dammann & Co., Inc., 594 F.3d 238 (3d Cir. 2010) are
inapposite. These cases do not involve § 1915, which requires a trial court to conduct a
sua sponte screening of a complaint before it is served upon the defendants and thus do
not address the issue currently before us.

                                              3
correctly dismissed the claim. The Pennsylvania statute of limitations for a bad faith

claim is two years. 42 Pa. Cons. Stat. § 8371; Ash v. Cont’l Ins. Co., 932 A.2d 877, 885

(Pa. 2007). The actionable conduct alleged to have caused the injuries here occurred, at

the latest, in 2011 when the original matter was dismissed for failure to prosecute. J.A.

B-5 ¶¶ 22-29; Edwards v. Guinta, No. 3084, 2011 Phila. Ct. Com. Pl. LEXIS 302 (Pa.

Ct. Com. Pl. Oct. 17, 2011) (denying Edwards’s petition to open case after failed

arbitration). See Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 224–25 (3d Cir. 2005)

(“In general, the statute of limitations begins to run when a right to institute . . . suit

arises.”). Because Feingold did not file this action until 2019, it was not filed within the

limitations period.

       Feingold presents two arguments as to why the trial court was incorrect: (1) the

actionable conduct was not discovered until a period sometime within the limitations

period, or (2) there exists a continuing breach of the underlying defendants’ obligations

placing this action within the statute of limitations. But Feingold’s complaint centers on

litigation conduct that he or his former client witnessed. J.A. B-5 ¶¶ 22-29. He knew, or

should have known, of this conduct at the time it occurred. The trial court correctly

determined the discovery rule would not toll the statute of limitations here. See Fine v.

Checcio, 870 A.2d 850, 858–59 (Pa. 2005) (“Where, however, reasonable minds would

not differ in finding that a party knew or should have known on the exercise of

reasonable diligence of his injury and its cause, the court determines that the discovery

rule does not apply as a matter of law.”). As to a continuing breach, in Pennsylvania, the

statute of limitations runs when the first denial occurs, but continuing or subsequent


                                                4
denials do not newly trigger the statute of limitations. See Sikirica, 416 F.3d at 225

(citing Adamski v. Allstate Ins. Co., 738 A.2d 1033, 1037–38, 1042 (Pa. Super. Ct.

1999)). Feingold’s complaint of a continued denial therefore does not allow him to sue

now for conduct that originally occurred in 2011.

       We will affirm the trial court’s dismissal of Feingold’s bad faith claim.




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