Michael Hillman v. Borough of Collingdale

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2260
___________
MICHAEL HILLMAN,
Appellant
v.
BOROUGH OF COLLINGDALE; AQUA PENNSYLVANIA, INC.; PECO ENERGY
EXELON; ERIC KEMP; PENNSYLVANIA PUBLIC UTILITIES COMMISSION;
SHERLOW & ASSOCIATES INC.; SARGENTS COURT REPORTING SERVICES
INC
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2:21-cv-04462)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
On March 7, 2023
Before: SHWARTZ, BIBAS, and PHIPPS, Circuit Judges
(Opinion filed: March 8, 2023)
____________________________________
___________
OPINION*
___________
PER CURIAM
Pro se appellant Michael Hillman appeals the District Court’s dismissal of the ma-
jority of the claims in his complaint in favor of defendants. For the reasons that follow, we
will affirm the District Court’s decision.
Hillman’s claims stem from the way the utilities were metered in an apartment that
he leased in Collingdale, Pennsylvania. Hillman has alleged that other units and common
spaces in his rental unit were connected to his utility service, forcing him to pay for utility
costs that were not his responsibility. In 2019, Hillman notified his electricity provider,
PECO Energy Company (“PECO”), about this issue. Hillman was unsatisfied with the
resolution and stopped paying his PECO bills.
In 2020, Hillman sought relief before the Pennsylvania Public Utility Commission
(“PUC”) — a regulatory body that supervises public utilities and adjudicates disputes over
utility service. After multiple hearings, his complaint was dismissed; Hillman did not ap-
peal. Rather, Hillman initiated a lawsuit in the Philadelphia Court of Common Pleas
against Collingdale Borough, Aqua Pennsylvania, Inc., PECO, Eric Kemp, the PUC,
Strehlow & Associates, Inc., and Sargent’s Court Reporting Services, Inc. The Court of
Common Pleas dismissed the case with prejudice and entered a filing injunction prohibiting
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
Hillman from refiling his claims against these defendants.
Hillman responded by filing a federal complaint against the same defendants from
his Court of Common Pleas case, repeating his claims in that prior action. Hillman also
included references to 42 U.S.C. § 1983 and § 1985, contending that his federal constitu-
tional rights were violated during the course of this utility dispute because the defendants
conspired against him. After the District Court dismissed the majority of his claims and
entered another filing injunction against him, Hillman appealed. The District Court subse-
quently entered a final order adjudicating his remaining claims against the PUC. Hillman
did not appeal from that final decision. 1
The District Court appropriately concluded that Hillman’s vague, conclusory
1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, as Hillman’s notice
of appeal ripened after the District Court entered its final order. See Fed. R. Civ. P. 54(b);
Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir. 1983). However, the
scope of this appeal is limited to any decisions made by the District Court before Hillman
filed his notice of appeal; he has not appealed from the final decision in this case. See
Marshall v. Comm’r Pa. Dep’t of Corr., 840 F.3d 92, 98 (3d Cir. 2016) (explaining that the
Cape May Greene doctrine “does not permit review of subsequent rulings that were not
(and could not have been) designated in the notice of appeal”). We exercise plenary review
over the District Court’s dismissal of Hillman’s claims. See Fowler v. UPMC Shadyside,
578 F.3d 203, 206 (3d Cir. 2009). In our review, we consider Hillman’s complaint, any
“document integral to or explicitly relied upon” in framing the complaint, see Schmidt v.
Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (internal citation and emphasis omitted), and any
“undisputedly authentic document that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiff’s claims are based on the document,” see Pension Benefit Guar.
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). We note that
Hillman has forfeited a challenge to the District Court’s entry of a filing injunction against
him, as he did not raise that issue in his appellate brief. See In re Wettach, 811 F.3d 99,
115 (3d Cir. 2016). Additionally, we do not consider new theories of liability or arguments
raised for the first time on appeal, see Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 88 n.12 (3d Cir. 2013), or “arguments raised for the first time in a reply brief,” see
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 146 (3d Cir. 2017).
3
allegations failed to present a basis for subject matter jurisdiction over his claims. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are
courts of limited jurisdiction.”). It is apparent that Hillman’s allegations do not form any
basis for federal question jurisdiction. Hillman’s passing references to § 1983 do not aid
him, as he makes no factual allegations that could conceivably suggest that his federal
constitutional rights were violated in a conspiracy by these defendants.2 See 28 U.S.C.
§ 1331. Further, there is no basis for diversity jurisdiction, as Hillman’s filings indicate
that all parties are citizens of Pennsylvania. See 28 U.S.C. § 1332(a)(1); Mennen Co. v.
Atl. Mut. Ins. Co., 147 F.3d 287, 290 (3d Cir. 1998) (“[J]urisdiction [under § 1332] is
lacking if any plaintiff and any defendant are citizens of the same state.”). As the District
Court explained, Hillman may not repackage his allegations as federal claims in an attempt
to relitigate issues that have already been addressed by the PUC or the Court of Common
Pleas.3
Hillman was given an opportunity to amend his complaint prior to the District
Court’s dismissal. Under these circumstances, particularly where Hillman has not clarified
his allegations in his appellate filings, granting further leave to amend would have been
futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
2
Hillman’s citations to 42 U.S.C. § 1985(3) are even more tenuous, as he has not explained
why he relies on this provision; his complaint included no allegations of race- or class-
based discriminatory animus underlying any of the incidents he has described. See Lake
v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).
3
Hillman also argues in his brief that the District Court never ruled on motions for injunc-
tive relief that he filed. However, the District Court denied these motions on June 1, 2022.
4
For these reasons, we will affirm the District Court’s decision. 4
4
Hillman’s motion for leave to file multiple reply briefs is granted and his remaining
motions are denied.
5