Marcus v. Township of Abington

• Decision Date: 27 October 1994
• Docket Number: No. 94-1139,94-1139
• Parties: Norman S. MARCUS; Susan S. Marcus, h/w Appellants, v. TOWNSHIP OF ABINGTON; P. Daniel Vollrath, Individually and in his capacity as Senior Code Enforcement Officer for Abington Township; Lawrence T. Matteo, Jr., Individually and as Superintendent of Code Enforcement for Abington Township; Barbara C. Ferrara, Individually and in her capacity as Commissioner of Abington Township.
• Court: U.S. Court of Appeals — Third Circuit

Page 1367

38 F.3d 1367

Norman S. MARCUS; Susan S. Marcus, h/w Appellants, v. TOWNSHIP OF ABINGTON; P. Daniel Vollrath, Individually and in his capacity as Senior Code Enforcement Officer for Abington Township; Lawrence T. Matteo, Jr., Individually and as Superintendent of Code Enforcement for Abington Township; Barbara C. Ferrara, Individually and in her capacity as Commissioner of Abington Township.

No. 94-1139.

United States Court of Appeals Third Circuit.

Argued June 21, 1994.

Decided Oct. 27, 1994.

Michael J. McCaney, Jr. (Argued), Heller, Kapustin, Gershman & Vogel, Plymouth Meeting, PA, for appellants.

George H. Knoell, III (Argued), Kane, Pugh, Knoell & Driscoll, Norristown, PA, for appellees.

Before: STAPLETON, GARTH, and PRATT, Circuit Judges. ^*

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Appellants, Norman S. Marcus and Susan S. Marcus (the "Marcuses"), appeal an order entered by the United States District Court for the Eastern District of Pennsylvania staying their 42 U.S.C. Sec. 1983 action for damages pending resolution of a state criminal action against them. The Marcuses argue that the stay of their federal court case is inappropriate because the state criminal action and the federal civil rights action are not parallel proceedings under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We conclude that the stay order issued by the district court did not effectively terminate the federal court litigation and accordingly dismiss the Marcuses' appeal for want of jurisdiction.

I.

In July 1987, the Marcuses purchased an undeveloped lot in the Township of Abington, Pennsylvania. The lot, Lot # 37, was part of an area called "Pennock Woods," which was created pursuant to the "Subdivision Plan of Pennock Woods," dated June 16, 1986, and last revised on July 9, 1986. The Subdivision Plan states the "[t]he majority of the tract is heavily wooded with mature trees," and that "[i]t is the intent of the developer to maintain and/or save the majority of the existing wooded area except along streets or where underground utility construction is required." App. 8-9. The Marcuses purchased Lot # 37 "because it was undeveloped, in its natural wooded state, and because they desire[d] to live in the woods, in substantial compliance with the intent of the developers as set forth in the Subdivision Plan of Pennock Woods." App. 9.

On July 31, 1987, the Marcuses obtained a building permit from the Township to construct a home on Lot # 37. Their permit application included a site plan which specified various grading and erosion control measures, including a provision to pave the driveway and to landscape all exposed areas. The Township approved the site plan.

In October 1990, the Township issued the Marcuses a temporary certificate of occupancy which required the Marcuses to satisfy the following conditions: (1) complete the driveway paving, (2) remove dead trees and dead wood from the lot, (3) patch cement in both fireplaces, and (4) complete grading and landscaping. The Marcuses, believing that the site plan grading and erosion control measures were intended only as temporary measures during construction of their home, opted to maintain their property in its natural wooded state.

The neighbors complained. Thereafter, Township Commissioner Barbara C. Ferrara cautioned the Marcuses that they were required to remove dead trees and logs from their property. After ignoring several extensions, the Marcuses received a letter, dated October 3, 1991, from P. Daniel Vollrath, the Township's senior code enforcement official, which advised the Marcuses that October 31, 1991 was the new deadline for complying with the conditional certificate of occupancy and the terms of their original site plan. In particular, the October 3 letter reminded the Marcuses that their site plan "shows that the driveway was intended to be paved and the entire site was either to be seeded or sodded," and warned them that if they remained in noncompliance they would be issued a criminal citation. App. 19.

The Marcuses did nothing. On May 19, 1992, the Township filed a criminal citation charging the Marcuses with failure to comply with Township ordinances requiring landscaping and compliance with approved site plans. The Marcuses then met with Township officials once again and were granted yet another extension, until June 30, 1992. Lawrence T. Matteo, Jr., the Township's superintendent of code enforcement, memorialized that meeting in a June 1, 1992 letter. Because Matteo's letter did not specifically require "seeding or sodding," the Marcuses did not perform that work. Nor did they complete agreed upon plantings.

A hearing was held on the criminal citation before a Pennsylvania district justice. The court ruled in favor of the Township on the charge that the Marcuses had failed to comply with the Township ordinances. The Marcuses appealed the district justice's decision to the Pennsylvania Court of Common Pleas. That appeal currently is pending.

On August 26, 1993, the Marcuses filed an action for damages in federal district court, pursuant to 42 U.S.C. Sec. 1983, alleging that the Township, Vollrath, Matteo, and Ferrara, while acting under color of state law, violated their right to due process of law in that they "deliberately and arbitrarily abused government power" when they attempted to enforce the grading and erosion control provision because the "attempted enforcement [was] not supported in law or fact." App. 6. Further, the Marcuses charged the defendants with conspiring "to harass, intimidate, embarrass, annoy, abuse, and otherwise interfere with the [Marcuses'] liberty, privacy and due process protections." App. 13. With respect to Ferrara, the Marcuses alleged that she "interfered with the process by which the municipality enforced the provisions of building permits for her own political or personal reasons unrelated to the merits of the building permit, and the law." App. 12. Finally, the Marcuses alleged that as a "direct and proximate result of the acts of Defendants, Plaintiffs were deprived of due process of law, and were caused to suffer anxiety, mental suffering and humiliation, fright, and incurred attorney's fees to defend themselves against the illegal actions of Defendants." App. 12a.

The Township immediately filed a motion to stay or dismiss the federal action pending resolution of the Marcuses' state criminal court appeal. On December 23, 1993, the district court granted the Township's motion, and entered an order staying the Marcuses' Sec. 1983 action pursuant to the "exceptional circumstances" doctrine announced by the Supreme Court in Colorado River. The Marcuses appeal the district court's order staying its federal court case.

II.

Although the parties themselves have not raised the issue, we have an independent obligation to determine whether we have appellate jurisdiction under 28 U.S.C. Sec. 1291 before we can review the merits of the Marcuses' appeal. Resolution Trust Corp. v. Pasquariello (In re Pasquariello), 16 F.3d 525, 528 (3d Cir.1994). We conclude that the district court's order staying the Marcuses' federal court action was not a "final order" as contemplated by Sec. 1291. Accordingly, we will dismiss the Marcuses' appeal for want of jurisdiction.

A.

With exceptions not here relevant, courts of appeals have authority to review a district court's order only if that order is "final" within the meaning of 28 U.S.C. Sec. 1291. Whether an order is "final" depends on its effect. Stay orders normally are not appealable final orders because they merely delay proceedings in the suit. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n. 11, 103 S.Ct. 927, 934 n. 11, 74 L.Ed.2d 765 (1983); Schall v. Joyce, 885 F.2d 101, 104 (3d Cir.1989); Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 735 (3d Cir.1983); see also Hoots v. Pennsylvania, 587 F.2d 1340, 1346-47 (3d Cir.1978) (noting that mere delay does not render an order final for purposes of appeal). Not all orders staying proceedings in a district court are unappealable, however.

The Supreme Court explored the difference between a stay from which an appeal will lie and normal stays in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). It held that an order staying proceedings in the district court in deference to an on-going state proceeding dealing with the same subject matter was a final order within the meaning of 28 U.S.C. Sec. 1291. The Court so held because the stay permitted the state court to decide the sole issue in the federal case before the federal court reached it. Since the state court's determination would have to be given collateral effect in the federal case, the effect of "the stay [was] to require all or an essential part of the federal suit to be litigated in a state forum," 460 U.S. at 10 n. 11, 103 S.Ct. at 934 n. 11, and the stay thus put the plaintiff "effectively out of federal court," id. at 9 n. 8, 103 S.Ct. at 933 n. 8 (emphasis omitted). The Court held "that a stay order is final when the sole purpose and effect of the stay are precisely to surrender jurisdiction of a federal suit to a state court." Id. at 10 n. 11, 103 S.Ct. at 934 n. 11. The Court stressed, by way of contrast, that a stay is not final "merely because it may have the practical effect of allowing a state court to be the first to rule on a common issue." Id. ¹

B.

Appellate review is inappropriate here because the stay entered by the district court merely delays the federal litigation and does not effectively terminate it. Unlike the situation in Moses H. Cone, the district court's stay will be lifted when the state criminal proceedings are concluded and the Marcuses will then receive the federal adjudication of their Sec. 1983 claim to which they are entitled.

The action pending in the state court is a...