                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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APS-193                                                     NOT PRECEDENTIAL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).




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