NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N O . 06-2477

R IC H A R D A. SCOCCA, JR.

A p p e lla n t

v. C E N D A N T MORTGAGE CORPORATION

f/k/a PHH US MORTGAGE CORPORATION

O n Appeal From the United States District Court

F o r the Eastern District of Pennsylvania

(D .C . Civ. No. 04-cv-0704)

D istric t Judge: Honorable Stewart Dalzell

S u b m itte d Under Third Circuit LAR 34.1(a)

S e p te m b e r 21, 2006

B E F O R E : SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES

(F ile d : September 25, 2006)

O P IN IO N

P E R CURIAM

R ic h a rd A. Scocca, Jr. appeals pro se from an order of the United States District

C o u rt for the Eastern District of Pennsylvania denying as frivolous his motion filed

p u rs u a n t to Fed. R. Civ. P. 60(b) and his motion for recusal. For the reasons that follow, w e will affirm.

I.

T h e parties are familiar with the facts, so we will only briefly revisit them here. In J u n e 2001, rental property owned by Scocca, on which Cendant Mortgage Corporation (" C e n d a n t" ) held a mortgage, was sold at a judicial tax sale after the local tax collector f a ile d to record Cendant's timely payment of school taxes. Cendant later advised Scocca th a t it had negotiated with the purchaser to restore ownership of the property to Scocca, a n d the tax sale was set aside by a "Stipulation and Agreement" entered in the Court of C o m m o n Pleas of Delaware County, Pennsylvania.

In February 2004, Scocca filed a complaint in the District Court alleging, inter alia, th a t Cendant breached its contractual and fiduciary duties, committed fraud, and violated th e Real Estate Settlement Procedures Act ("RESPA"). The District Court (Judge D a lz e ll) granted Cendant's motion to dismiss on November 8, 2004. Scocca did not a p p e al. Instead, he filed a motion for reconsideration, which the District Court denied on D e c em b e r 23, 2004. Scocca filed a second motion for reconsideration on March 16, 2 0 0 5 , again challenging the order granting Cendant's motion to dismiss. On April 20, 2 0 0 5 , the District Court denied this motion because it was untimely and because Scocca d id not satisfy any of the requirements for reconsideration. See Messina v. Krakower, 4 3 9 F.3d 755, 758-59 (3d Cir. 2006).

Almost one year later, on April 12, 2006, Scocca filed a motion pursuant to Fed. R.

C iv . P. 60(b), claiming that he "was unable to move to file a timely appeal" of the District C o u rt's two orders denying reconsideration because he "just realized" that he did not re c eiv e any notice of those orders. He simultaneously moved for recusal of Judge D a lz e ll, alleging bias. On April 13, 2006, the District Court denied both motions as f ri v o lo u s .

Scocca appealed. We have appellate jurisdiction under 28U.S.C. § 1291.

II.

A n appeal from an order denying a motion for relief from a judgment under Rule 6 0 (b ) brings up only the correctness of the order denying that motion, not the underlying o rd e r. See Torres v. Chater, 125 F.3d 166, 168 (3d Cir. 1997). We review the District C o u rt's denial of a Rule 60(b) motion for an abuse of discretion. See Coltec Indus. v. H o b g o o d , 280 F.3d 262, 269 (3d Cir. 2002). We can affirm on any basis appearing in the rec o rd. See Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980).

In his Rule 60(b) motion, Scocca sought to extend the time for appealing from the d e n ial of his two motions for reconsideration, arguing that he did not receive timely n o tic e of those orders. However, "[l]ack of notice of the entry by the clerk does not affect th e time to appeal or relieve or authorize the court to relieve a party for failure to appeal w ith in the time allowed, except as permitted in Rule 4(a) of the Federal Rules of A p p e lla te Procedure." Fed. R. Civ. P. 77(d). Relying on that rule, we have held that w h ere the sole basis for a Rule 60(b) motion is the lack of notice of the entry of an order, th e motion must meet the time limitations of Rule 4(a). See Hall v. Community Mental H e a lth Center, 772 F.2d 42, 44 (3d Cir. 1985) (stating that because the provisions of Rule 4 (a ) are "more specific to the appellate process than Rule 60(b)," they control the timing o f the filing of appeals); West v. Keve, 721 F.2d 91, 96 (3d Cir. 1983) (holding that "to a llo w a party to rely on Rule 60(b) as an alternative to the time constraints of Rule 4(a) w o u ld have the substantive effect of nullifying the provisions of Rule 4(a)(5)."). Pursuant to Rule 4(a)(5), a district court may extend the time for filing a notice of appeal for e x c u sa b le neglect or good cause, upon a motion filed no later than 30 days after the e x p ira tio n of the time prescribed by Rule 4(a). See Fed. R. App. P. 4(a)(5). Rule 4(a)(6) p e rm its a district court to reopen the time for filing where the moving party did not re c eiv e notice of the entry of the judgment sought to be appealed, if the motion is filed w ith in 180 days after the judgment or order is entered or within 7 days after the moving p a rty receives notice of the entry, whichever is earlier. See Fed. R. App. P. 4(a)(6).

The orders denying Scocca's motions for reconsideration were entered on D e c em b e r 23, 2004, and April 20, 2005. Scocca had until January 24, 2005, and May 20, 2 0 0 5 , respectively, to file timely notices of appeal. See Fed. R. App. P. 4(a)(1)(A) (p ro v id in g 30-day period within which to appeal final orders in civil actions to which the U n ited States is not party). Scocca filed his Rule 60(b) motion on April 12, 2006, well o u ts id e the periods for filing a timely Rule 4(a)(5) or Rule 4(a)(6) motion. Accordingly, w e conclude that the District Court did not abuse its discretion in denying Scocca's Rule 6 0 (b ) motion.

III.

S c o c c a also appeals the District Court's order denying his motion for recusal, w h ich was based upon an allegation that Judge Dalzell was biased against Scocca in this c a se and against pro se litigants in general. Adverse legal rulings are not proof of p re ju d ic e or bias and almost never a basis for recusal. See Liteky v. United States, 510 U .S . 540, 555 (1994). We find nothing in the record that suggests "a deep-seated f a v o ritis m or antagonism" by Judge Dalzell that would preclude fair judgment. Id. Nor d o we perceive any facts from which a reasonable person would conclude that Judge D a lze ll's impartiality might reasonably be questioned. See 28U.S.C. 455(a); Edelstein v . Wilentz, 812 F.2d 128 (3d Cir. 1987). We thus have little difficulty concluding that the D is tric t Court did not abuse its discretion in denying Scocca's recusal motion.

IV.

F o r the foregoing reasons, we will affirm the judgment of the District Court.