Marcus v. Township of Abington

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

10-27-1994

Marcus v. Township of Abington, et al.
Precedential or Non-Precedential:

Docket 94-1139

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 94-1139

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

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 93-cv-04620)

Argued June 21, 1994

BEFORE: STAPLETON, GARTH, and PRATT, Circuit Judges*

(Opinion filed October 27, l994)

Michael J. McCaney, Jr. (Argued)
Heller, Kapustin, Gershman &
Vogel
600 West Germantown Pike

_________________________________________
* Honorable George C. Pratt, United States Circuit Judge for the
Second Circuit, sitting by designation.

Plymouth Meeting Executive
Campus, Suite 380
Plymouth Meeting, PA 19462

Attorney for Appellants

George H. Knoell, III (Argued)
Kane, Pugh, Knoell & Driscoll
510 Swede Street
Norristown, PA 19401

Attorney for Appellees

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. § 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 (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. § 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' § 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. § 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 § 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. § 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 (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 (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. § 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, and the stay thus put the plaintiff

"effectively out of federal court," id. at 9 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. 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

§ 1983 claim to which they are entitled.

The action pending in the state court is a criminal

action; the parties are the Commonwealth of Pennsylvania and the

Marcuses. The sole issues involved there are whether the

Marcuses violated the ordinance and if so, what sanction should

be imposed. The Marcuses could not, or at least did not, place

their § 1983 claim before the court in that criminal proceeding

by way of counterclaim. Moreover, the Marcuses did not ask the

state court to adjudicate as a defense in the criminal case any

1
. We most recently recognized and applied this Moses H. Cone
distinction between appealable and nonappealable stay orders in
Trent v. Dial Medical of Florida, Inc., ____ F.3d ____ (3d Cir.
Aug. 12, 1994). We there held that an order having the effect of
staying a federal proceeding was appealable because a "decision
in [a parallel state proceeding would] constitute res judicata as
to at least two major issues (duty and breach) in" the federal
case, Trent, ____ F.3d ____, and the order would thus have
required "all or an essential part of the federal suit to be
litigated in a state forum." Moses H. Cone, 460 U.S. at 10 n.11.
claim that the ordinance or the conduct of federal defendants was

unconstitutional.2

The federal suit is a civil rights action for damages

in which the Marcuses are the plaintiffs and the Township and

various Township officials are the defendants. While the issue

of whether the Marcuses violated the ordinance may become

relevant in that case, the focus of the litigation is the conduct

and the motivations of the Township officials. The issues will

be whether these officials acted under color of state law,

whether they were guilty of arbitrary and capricious conduct that

deprived the Marcuses of a liberty or property interest, and if

such a deprivation occurred, what amount of compensatory and/or

punitive damages are appropriate under the circumstances.

Once the stay is lifted, the state court's disposition

of the criminal proceeding will have a negligible impact on the

subsequent federal adjudication.3 Because the causes of action

2
. The Marcuses advised the state court of their constitutional
claims but solely for the purpose of attempting to reserve their
right to subsequently litigate those claims in a federal forum.
See England v. Louisiana State Bd. of Medical Examiners, 375 U.S.
411 (1964); Government & Civic Employees Org. Comm. v. Windsor,
353 U.S. 364 (1957).
3
. It is possible that a recent Supreme Court decision, Heck v.
Humphrey, ___ U.S. ___, 114 S. Ct. 2364, 129 L. Ed. 2d 383
(1994), precludes the Marcuses from successfully prosecuting all
or a part of their § 1983 claim unless they can show that their
conviction has been overturned. If so, the stay issued in this
case can only benefit the Marcuses' § 1983 case because it gives
them the chance to seek a reversal of their state court criminal
convictions before proceeding with their § 1983 claims. Thus,
the possible impact of the state proceedings on the federal ones
under Heck will not deprive the Marcuses of their right to a
federal adjudication of their § 1983 claim. We emphasize,
in the two proceedings are different, the criminal judgment will

have no res judicata effect in the federal proceeding. Safeguard

Mut. Ins. Co. v. Williams, 345 A.2d 664, 668 (Pa. 1975). Because

the issues in the federal suit are different from those in the

state case, neither side will be foreclosed by collateral

estoppel with respect to the federal issues. The order from

which the Marcuses appeal thus does not "surrender jurisdiction

of a federal suit to a state court," Moses H. Cone, 460 U.S. at

10 n.11; it does not require that "all or an essential part of

the federal suit . . . be litigated in a state forum," id.

Rather, the effect of that order on the Marcuses' federal case is

delay, and delay alone.

The "'mere prospect of delay'" does not create

appellate jurisdiction where it would not otherwise exist. Hoots

v. Pennsylvania, 587 F.2d 1340, 1347 (3d Cir. 1978) (quoting

Brace v. O'Neill, 587 F.2d 237, 243 n.27a (3d Cir. 1977)). For

that reason, we have consistently held in circumstances similar

to this that a stay order having only the effect of delay is not

a final, appealable order. Rolo v. General Dev. Corp., 949 F.2d

695, 700-02 (3d Cir. 1991);4 Gold v. Johns-Manville Sales Corp.,

(..continued)
however, that we express no view on the applicability of Heck to
this case.
4
. In Rolo, we held that an order staying a federal securities
law case in light of on-going criminal and bankruptcy proceedings
did not constitute a final order under the collateral-order
doctrine announced in Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949). Our analysis there supports a similar
conclusion here. The courts of appeals which have addressed the
issue agree that a stay order, in the absence of extraordinary
circumstances, does not meet the requirements of the collateral-
723 F.2d 1068, 1072 (3d Cir. 1983) (absent extraordinary

circumstances an order granting a stay is not appealable); Brace

v. O'Neill, 567 F.2d 237, 244 n.29a (3d Cir. 1977) (same); Cotler

v. Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537, 541 (3d

Cir. 1975) (order staying proceedings in district court pending

resolution of a state court suit with an overlapping factual

background was not appealable); Arny v. Philadelphia Transp. Co.,

266 F.2d 869, 870 (3d Cir. 1959).

C.

We realize, of course, that most stay orders entered

upon the authority of Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976), are subject to immediate

appellate review. As the Supreme Court pointed out in Moses H.

Cone, the Colorado River doctrine applies only if there is

parallel state court litigation involving the same parties and

issues that will completely and finally resolve the issues

between the parties and, accordingly, a "decision to invoke

Colorado River necessarily contemplates that the federal court

will have nothing further to do in resolving any substantive part

of the [federal] case, whether it stays or dismisses." 460 U.S.

at 28. In other words, because of the requirement of a parallel

state court proceeding, stays entered under the authority of

Colorado River will normally have the effect of putting the
(..continued)
order doctrine. See cases collected at 15A Charles A. Wright et
al., Federal Practice and Procedure § 3914.13, at 731-33
nn.3, 5 (1992).
plaintiff "effectively out of federal court" and surrendering

jurisdiction to the state tribunal. Moses H. Cone, 460 U.S. at 9

n.8.

In this case, the district court cited Colorado River

in support of its decision to stay the proceedings before it.

But our jurisdiction does not turn on the authority cited by the

district court. It turns, rather, on the effect of the order

that the district court has entered. If that order has deprived

the federal plaintiff of a federal adjudication to which he or

she may be entitled, it is a final order under Moses H. Cone and

subject to immediate appellate review. If, as here, the order

only serves to delay the federal adjudication, it is not final

and not appealable.5

III.

We will dismiss this appeal for want of jurisdiction.

5
. Nor is the district court's order in this case reviewable
under our mandamus jurisdiction. No one has suggested, and there
is no reason to believe, that the federal adjudication will be
unreasonably delayed by that order. See Cheyney, 703 F.2d at
735, 737-38.
Marcus v. Township of Abington, No. 94-1139

GARTH, Circuit Judge, dissenting:

"It is the tradition of this court that the holding of

a panel in a reported opinion is binding on subsequent panels.

Thus, no subsequent panel overrules the holding in a published

opinion of a previous panel. Court in banc consideration is

required to do so." Third Circuit IOP 9.1. Unfortunately, in

permitting a federal district court to decline the proper

exercise of its jurisdiction by its holding that we lack

appellate jurisdiction to consider the Marcuses' appeal, the

majority has ignored this tradition, and overruled two of our

established precedents.

In a recently filed opinion dealing with appellate

jurisdiction and Colorado River abstention, we have held that

appellate jurisdiction attaches even when the district court

retains substantial and continuing supervision over a federal

action. Trent v. Dial Medical of Florida, Inc., No. 92-2047,
slip op. (3d Cir. August 12, 1994). Moreover, we have held,

albeit in a somewhat different context, that "where . . . a

dismissal of an appeal will have the practical effect of denying

later appellate review of a district court's underlying order,

the underlying order must be final, within the meaning of 28

U.S.C. § 1291." Carr v. American Red Cross, 17 F.3d 671, 678 (3d
Cir. 1994). We also held that "where a separable and final
determination has been made by the district court, whether

substantive or jurisdictional, which determination triggers a

remand [to state court], we will review both the underlying final

order and the remand order itself." Id. at 682-83.

Here, of course, we do not have a remand but, rather, a

Colorado River abstention order that remits the proceedings to

the state court. The principle, however, is the same. The

district court cannot, by its order, deprive us of our review

function.

Both of these decisions control the present case and

lead to the inescapable conclusion that we have appellate

jurisdiction over the Marcuses' appeal. By holding otherwise,

the majority condones a conflict with Trent, ignores the conflict

with Carr, and permits an erroneous Colorado River order to go

uncorrected. The majority also discounts the fact that unless we

review the district court's erroneous order at this time -- an

order that even the majority must agree is erroneous (see Maj.

Op. typescript at 8-10) -- it can never be reviewed or corrected

by any appellate court whether state or federal.

I submit that a disposition leading to such an result

should not be allowed. For that reason, I dissent.

I

Although a stay order is not normally a final decision

for purposes of § 1291, the Supreme Court held in Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983), that

a district court order granting a Colorado River stay order is

immediately appealable where the district court judge intended to

surrender federal jurisdiction to the state court so that "all or

an essential part of the federal suit [will] be litigated in a

state forum." Id. at 10 n.11. The Court noted in Moses H. Cone

that a district court's "grant[] of a Colorado River motion

necessarily contemplates that the federal court will have nothing

further to do in resolving any substantive part of the case

. . . ." Id. at 28.6

A.
6
. Moses H. Cone involved a contractor's appeal from an
order staying a federal suit to compel arbitration. When the
order was entered, a suit was pending in state court that would
by necessity resolve the issue of arbitration. Accordingly, the
district court stayed the federal suit pending the resolution of
the state court proceeding pursuant to Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 818 (1976).
The Supreme Court found the stay order was appealable
either as a final order or as a collateral order. The stay was
final because all or substantially all issues would be resolved
in the state court. In so holding, the Court relied upon
Idlewild Liquor Corp. v. Epstein, 370 U.S. 713 (1962), where the
Court concluded that a stay entered pursuant to Railroad Comm'n
v. Pullman Co., 312 U.S. 496 (1941), was final, even though that
stay was "entered with the expectation that the federal
litigation will resume in the event that the plaintiff does not
obtain relief in the state court on state law grounds." Moses H.
Cone, 460 U.S. at 10. The Court also found that the stay was an
appealable collateral order because it satisfied all the factors
of Cohen v. Beneficial Loan Corp., 377 U.S. 541 (1949). I
discuss the collateral order doctrine and its application to the
instant proceeding in section I.C. infra where I conclude,
contrary to the majority, that the district court order here is
reviewable as a collateral order.
 The majority argues that, unlike the Colorado River

stay order in Moses H. Cone, the district court's Colorado River

stay order in the instant case "merely delays the federal

litigation and does not effectively terminate it." Maj. Op.

typescript at 8. In particular, the majority contends that the

district court's action "does not require 'that all or an

essential part of the federal suit . . . be litigated in a state

forum,'" but "[r]ather the effect of that order on the Marcuses'

federal case is delay and delay alone." Id. at 10.

How the majority can draw this conclusion from the

district court's disposition is indeed as startling and misguided

as it is wrong. The district court, in ordering a Colorado River

abstention, held (albeit erroneously) that the federal and state

proceedings were sufficiently parallel so that the state court

would resolve substantially all issues. As the Supreme Court

explained in Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

U.S. 271 (1988), once the district court has determined that the

federal and state proceedings are parallel, the conclusion is

inevitable that substantially all issues will be resolved in the

state court. Id. at 278. Indeed, the district court recognized

this when it stated that plaintiffs "may be required to expose

their federal claims in state court." App. 45a.

Why else would the district court have abstained? Its

"stay order" was little more than a procedural formality and in

reality stayed nothing. The entire action was sent to the state
court for resolution. Why then a stay order? The district court

explained that "because the two proceedings are not strictly

parallel, it is possible that the civil rights claim could remain

for resolution at the conclusion of the state proceedings. See

Ingersoll-Rand Corp. v. Callison, 844 F.2d 133, 138 (3d Cir.

1982)." App. at 50a. Callison however did not hold that we are

precluded from reviewing an erroneous Colorado River abstention

order where it is coupled with a stay.7 We can only surmise that

the stay ordered in this case was no more than a "safety net" if,

by chance, some aspect of the proceeding might return to the

district court for adjudication.

As I have noted, and as my discussion of Colorado River

abstention in section II infra bears out, the district court

erred by abstaining. On this point, I am satisfied that, had the

majority reached the merits of the abstention issue, it would

have agreed with me that abstention should not have been decreed.

See Maj. Op. typescript at 8-9.

7
. Callison involved a Colorado River abstention order
issued by the district court which was upheld by this Court. The
district court in Callison however had dismissed the federal
proceeding and we suggested that it should have stayed the
federal proceeding. We did not address any issues of appellate
jurisdiction. It is significant however that the district court
may have relied upon Callison in entering its stay without
appreciating the fact that it was at the same time incorrectly
surrendering adjudication of all issues to the state court. In
any event, Callison did not hold that, where an erroneous grant
of Colorado River abstention occurred, a stay entered in
conjunction with the erroneous abstention order should be denied
review.
 Contrary to the position espoused by the majority, I

cannot conclude -- and our precedents do not support the

conclusion -- that we are divested of jurisdiction to consider

the Marcuses' appeal at this time. I suggest the majority's

reasoning is seriously flawed.

The majority, without explicitly holding that the

proceedings are not parallel, calls attention to the fact that

the parties and the issues in the state and federal proceedings

are different and hence implicitly not parallel. Maj. Op.

typescript at 8-9. It concludes that issues will remain to be

decided in the federal case after the state court proceeding has

terminated. Therefore, it reasons that the stay order only

delays the resolution of those issues and accordingly the order

is not appealable.

However, this reasoning deprives us of jurisdiction

over an appeal of a Colorado River abstention order when review

is most needed. I cannot believe that Congress vested us with

appellate jurisdiction to review Colorado River abstention/stay

orders only in those cases where we conclude that the state and

federal proceedings at issue are, in fact, parallel and,

therefore, qualify for Colorado River abstention. It is a

perverse result indeed if we are prohibited from reviewing only

those Colorado River abstention rulings involving state and

federal proceedings that are neither parallel, nor identical, and
which are thus erroneous. Moses H. Cone obviously did not intend

such a bizarre result.

My reading of Moses H. Cone draws support from our

recent decision in Trent v. Dial Medical of Florida, Inc., No.

92-2047, slip op. (3d Cir. August 12, 1994), a case in which we

held that appellate jurisdiction vested despite an order

retaining continuing supervision over the proceeding by the

federal district court.

In Trent, the district court's order, though styled as

a "dismissal," in fact retained control over the federal action:
The order provides that "the case is to
remain in the status quo," "discovery and
settlement discussion will continue in
coordination with the action currently
pending in [state court]." It also instructs
the parties that the judge will be amenable
to intervening if the parties ask him to do
so, and that they should keep him "advised of
the status of this case and the state court
action." In the same vein, it provides that
"[w]hen [the parties] are ready for trial or
wish a settlement conference all that is
necessary is to write directly to the court
or set a telephone conference." Moreover,
since entering the order, the district court
judge has denied a motion to stay discovery
pending this appeal, thus perhaps implying
that he expects discovery to continue because
the case is still pending.

Trent, slip op at 7-8.8 Despite the retentive nature of the

district court's stay order, we held that it was a final

8
. The order entered by the district court in Trent v.
Dial Medical of Florida, No. 92-2047, slip op. (3d Cir. August
12, 1994), reads as follows:
appealable order because "the district court's order effectively

prevents litigation of Trent's claims in federal court and

requires him to abide by the state court decision . . . ." Id.

at 9.

In contrast to Trent, here the district court has

severed all ties with the Marcuses' litigation. It has not

maintained contact with, and it is not available to, the parties

involved. The district court will not have an opportunity to

revisit its Colorado River determination and its stay order. As

(..continued)
The motion of Edwin Snead . . . to
intervene as a party plaintiff is GRANTED.

The motion of plaintiff Earl Trent for
class certification is DENIED without
prejudice.

This suit is DISMISSED WITHOUT
PREJUDICE. This case is to remain in status
quo and the Statute of Limitations is tolled.

It is further understood that all
discovery and settlement discussions will
continue in coordination with the action
currently pending in Delaware County Court of
Common Pleas styled Snead v. Community
Dialysis Center, Inc. . . . . If intervention
by the court is needed or desired, the
parties may ask for assistance by either
filing the appropriate motions, writing to
the court or setting a telephone conference.

The parties shall keep the court advised
of the status of this case and the state
court action. When they are ready for trial
or wish a settlement conference all that is
necessary is to write directly to the court
or set a telephone conference.
in Trent, "[i]t is clear that the district court judge expected

that [the state proceedings] would resolve this case, at least in

large part." Id. at 8.

In all respects, Trent presented a much more borderline

set of circumstances than is presented in the instant case. Yet,

in Trent, we held that finality attached. Id. at 9-10. A

fortiori, we must reach the same the result here, if Trent is to

be accorded due precedential effect.

The majority surprisingly does no more than give a

passing nod to Trent in footnote 1 of its opinion. It seeks to

explain away Trent by the following quotation: "We there held

that an order having the effect of staying a federal proceeding

was appealable because a 'decision in [a parallel state

proceeding would] constitute res judicata as to at least two

major issues (duty and breach) in' the federal case." Maj. Op.

typescript at 8 n.1. This characterization ignores the fact that

Trent rejected the same "delay" argument that the majority now

employs in order to preclude review of the Marcuses' appeal. The

appellee in Trent (like the majority) argued that the district

court's order was merely intended "to afford the state court an

opportunity to rule first on a common issue" as a matter of

"docket control." Trent, slip op. at 7. Trent rejected this

argument. Despite the fact that the district court in Trent

"recognize[d] that there may be some issues remaining after [the

state proceeding] is disposed of" and despite its suggestion that
"it might try the case whenever the parties (apparently jointly)

seek a trial date," we found the order in Trent to be final and

thus appealable. Id. at 9. We did so, because the stay in

Trent, as the stay in the present case, "has the practical effect

of a dismissal rather than merely delaying adjudication until

completion of . . . state court proceedings." Id.

I cannot understand how Trent, our most recent

expression of finality in a Colorado River context, can be so

summarily dismissed unless, as I believe it to be, any further

discussion would lead to the same finality determination reached

in Trent. However, even if Trent had not been filed, thereby

making it incumbent upon subsequent panels to follow its holding,

Moses H. Cone, Carr and sheer logic dictate that our jurisdiction

must attach.

B.

If we do not review the district court's erroneous

Colorado River ruling at this time, that ruling never will be

subject to review by any court. Certainly the state court can

not review the district court's abstention ruling. Nor will we

be able to review the district court's stay order. The majority

says that we cannot review it now and the issue as to whether or

not the district court should have abstained, as well as the stay

order, will be moot if the Marcuses' § 1983 action ever returns
to federal court. Thus, the district court's order effectively

will be unreviewable.

We have recently cautioned against just such a result,

in a somewhat different context. In Carr v. American Red Cross,

17 F.3d 671, 678-79 (3d Cir. 1994), we expressly held that a

district court could not defeat appellate review of its own order

dismissing the plaintiff's federal action by immediately

remanding the parties to state court. Rather, we held that

"where . . . a dismissal of an appeal will have the practical

effect of denying later appellate review of a district court's

underlying order, the underlying order must be final, within the

meaning of 28 U.S.C. § 1291." Id. at 678.

Carr had brought an action in the Pennsylvania Court of

Common Pleas against the American Red Cross and Osteopathic

Medical Center, claiming that Osteopathic administered HIV

infected blood that had been supplied by the American Red Cross.

Osteopathic filed a cross claim against the Red Cross. Red Cross

invoked its federal charter and removed the action to the United

States District Court for the Eastern District of Pennsylvania.

Carr, having settled his claim with the Red Cross, then sought to

remand the proceeding to the Court of Common Pleas, contending

that the district court no longer had jurisdiction as a result of

the release from Red Cross. The district court granted Carr's

motions to dismiss and to remand, reasoning that federal

jurisdiction no longer existed.
 We held that the district court's dismissal order would

be effectively unreviewable on appeal from a final judgment and

as a result its order being conclusive and collateral satisfied

the collateral order doctrine. We also held that the dismissal

of Osteopathic's appeal would have the effect of denying

appellate review of the district court's underlying order and as

a result appeal under § 1291 was appropriate. We pointed out

that when the district court dismissed Red Cross from the action

without reaching the merits of Osteopathic's cross claim, the

dismissal order had in effect dismissed the cross claim. Hence,

when the district court remanded the cause of action to the

Common Pleas court without Red Cross as a party, all litigation

concerning the cross claim had been terminated. We wrote:
If we do not seize the opportunity to review the
district court's dismissal order, that order will never
be subject to review by any court, either state or
federal. Given the unique circumstances before us, we
conclude that such an order, even if it were not to be
considered final as a collateral final order (which we
hold that it is), would nonetheless, be final under
§ 1291, and that our hearing an appeal from such an
order is consistent with federal policy against
piecemeal appeals.
Thus we hold that the district court could not
defeat appellate review of its February 22 order of
dismissal -- a final order within the meaning of § 1291
-- by immediate remand of the present case to state
court.

Id. at 678-79.

In the present case, where the district court's stay

order will defeat any and all appellate review of its Colorado

River determination, we are compelled by precedent and reason to
conclude that the stay order is final under § 1291 and, hence,

immediately reviewable by us. In holding otherwise, the majority

deliberately ignored our precedents. Indeed, it did not even

acknowledge Carr's existence when it refused to review the

district court's order.

C.

Traditional "finality" analysis notwithstanding, the

district court's order also is appealable as a collateral final

order under Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949).

For an order to come under Cohen's collateral order exception to

§ 1291's finality requirement, the order "must conclusively

determine the disputed question, resolve an important issue

completely separate from the merits of the action, and be

effectively unreviewable on appeal from a final judgment."

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

I conclude that this three-part test is satisfied for

much the same reasons proffered by the Supreme Court in Moses H.

Cone. 460 U.S. at 11-13. Here, the "conclusiveness" prong of

the test is satisfied inasmuch as the district court will never

again have an opportunity to revisit its Colorado River
determination, and its stay order. Cf. Gulfstream Aerospace

Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988) (holding

denial of Colorado River motion is not final because "a district

court usually will expect to revisit and reassess an order
denying a stay," whereas granting a Colorado River motion

"necessarily implies an expectation that the state court will

resolve the dispute"). Indeed, not only will the district court,

in the present case, be unable to reconsider its stay order in

the future, but, in addition, if that order is deemed "non-final"

for purposes of review, the district court will have effectively

precluded our review of the stay order, and its underlying

abstention determination.

The second prong is satisfied because "[a]n order that

amounts to a refusal to adjudicate the merits plainly presents an

important issue separate from the merits." Moses H. Cone, 460

U.S. at 12. Here, of course, the district court stay order

precludes any adjudication of the merits of the Marcuses § 1983

action in federal court. Finally, the third prong is satisfied

because "this [stay] order would be entirely unreviewable if not

appealed now," id., inasmuch as the abstention issue will be moot

when and if ever the Marcuses' § 1983 action returns to federal

court.

The majority seeks to bolster its conclusion that we

cannot review the district court's order by referring to the

appealability of a general stay order. (Maj. Op. typescript at

10-11.) The majority cites five cases9 for the principle that a
9
.Rolo v. General Dev. Corp., 949 F.2d 695 (3d Cir. 1991); Gold
v. Johns-Manville Sales Corp., 723 F.2d 1068 (3d Cir. 1983);
Brace v. O'Neill, 567 F.2d 237 (3d Cir. 1977); and Cotler v.
Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537 (3d Cir.
1975); Arny v. Philadelphia Trans. Co., 266 F.2d 869, 870 (3d
Cir. 1959).
stay order, having only the effect of delay, is not a final,

appealable order. I have no problem with that principle, except

that it does not apply to the present appeal. First, none of the

five cases which the majority cites involved Colorado River

abstention, whether correctly granted or not. Second, none of

the cases involved the extraordinary circumstance of a district

court insulating its own Colorado River abstention order (in this

case erroneous) from review by combining its abstention

determination with a stay order. Third, none of the five cases

discusses the collateral order doctrine in the context presented

here. Thus, the majority's reliance on those cases is misplaced

as the analysis and reasoning of those authorities are

inapplicable to the issue here.

Accordingly, even if the district court's stay order

was not "final" within the meaning of 28 U.S.C. § 1291 -- which I

would hold that it is -- the stay order is reviewable as a

collateral final order. See Carr v. American Red Cross, 17 F.3d

at 674-78.

D.

In sum, I conclude that the district court's December

23, 1993 order staying the Marcuses' § 1983 action for damages is

a final order under Moses H. Cone Memorial Hosp. v. Mercury
Constr. Corp., 460 U.S. 1 (1983), and Trent v. Dial Medical of

Florida, Inc., No. 92-2047, slip op. (3d Cir. August 12, 1994).
It is also an order that Carr v. American Red Cross, 17 F.3d 671

(3d Cir. 1994), requires us to review at this time.

Alternatively, it is a collateral final order under Cohen v.

Beneficial Loan Corp., 337 U.S. 541 (1949). It follows then that

we have jurisdiction to review the district court's

abstention/stay order. As noted, two valid precedents of this

Court -- Trent and Carr -- compel this result.

Because the district court's stay order, and its

erroneous Colorado River determination upon which the stay was

predicated, are so inextricably intertwined, the jurisdictional

holding that I espouse requires additional discussion of the

district court abstention ruling, even though the majority has

declined to address that issue directly. The majority's

reasoning suggests, as I have concluded, that because the

elements of the Colorado River abstention doctrine are not

present in this case, Colorado River abstention was not available

for the district court to order.

II

In Heritage Farms, Inc. v. Solebury Township, 671 F.2d
743, 746 (3d Cir. 1982), we explained that "[a]bstention is a

judicially created doctrine under which a federal court will

decline to exercise its jurisdiction so that a state court or

state agency will have the opportunity to decide the matters at

issue." Nevertheless, the circumstances under which a federal
court may abstain from granting certain types of relief, and to

decline to exercise its jurisdiction, are severely limited. See

New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 359

(1989).10

As a general matter, "federal courts lack the authority

to abstain from the exercise of jurisdiction that has been

conferred," inasmuch as they have an "unflagging obligation" to

decide cases within their jurisdiction. Id. at 358; see Deakins

v. Monaghan, 484 U.S. 193, 203 (1988). "When a Federal court is

properly appealed to in a case over which it has by law

jurisdiction, it is its duty to take such jurisdiction . . . .

The right of a party plaintiff to choose a Federal court where

there is a choice cannot properly be denied." Willcox v.

Consolidated Gas Co., 212 U.S. 19, 40 (1909) (citations omitted).

Thus, it is well settled that "the pendency of an action in the

state court is no bar to proceedings concerning the same matter

in the Federal court having jurisdiction." McClellan v. Carland,

217 U.S. 268, 282 (1910). Absent "exceptional circumstances,"

even the existence of a parallel state proceeding provides

insufficient reason for a federal court to refuse to exercise

jurisdiction with which it properly is vested.

10
. Judge Rosenn's recent opinion in Grode v. Mutual Fire,
Marine & Inland Ins. Co., 8 F.3d 953 (3d Cir. 1993), briefly
summarizes the history and elements of the available abstention
doctrines, including Colorado River abstention.
 On the other hand, in Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 818 (1976), and again in

Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1

(1983), the Supreme Court held that a federal court may abstain

from exercising jurisdiction in deference to a pending parallel

state proceeding, based on considerations of "wise judicial

administration, giving regard to conservation of judicial

resources and comprehensive disposition of litigation." Colorado

River, 424 U.S. at 817.

Colorado River abstention only applies, however, "in

situations involving the contemporaneous exercise of concurrent

jurisdiction . . . by state and federal courts." Id. That is,

the federal and state court proceedings must be concurrent and

duplicative for a federal court to consider abstaining pursuant

to Colorado River. General Glass Indus. Corp. v. Monsour Medical

Foundation, 973 F.2d 197, 199 (3d Cir. 1992). Those "[c]ases

that are not truly duplicative do not invite Colorado River

deference." Trent v. Dial Medical of Florida, Inc., No. 92-2047,

slip op. at 11 (3d Cir. August 12, 1994).

Even when the state and federal proceedings are

parallel, the federal court may abstain only under "exceptional

circumstances." Colorado River, 424 U.S at 818. In Colorado

River, and then in Moses H. Cone, the Supreme Court weighed six

factors in analyzing whether the requisite "exceptional

circumstances" existed. Before an "exceptional circumstances"
analysis is undertaken, however, the district court first must be

satisfied that the state and federal proceedings are, in fact,

parallel.

In the present case, the district court concluded that

the state and federal proceedings, though not identical, were

parallel. After analyzing the six Colorado River/Moses H. Cone

factors, the district court chose to abstain from exercising its

jurisdiction.

The Marcuses argue on appeal, as they did before the

district court, that the Colorado River doctrine is inapplicable

to the present case because the federal and state proceedings are

not parallel for purposes of Colorado River abstention. That is,

they argue that: (1) the issues before the state and federal

courts are different, as are the parties and the facts; (2) the

state court action cannot afford them the relief they seek in

federal court; and (3) the resolution of the state court action

will not dispose of the issues pending before the federal court.

I agree.

A.

As in all cases in which we are asked to review a

district court's decision to abstain, we must determine, as a

threshold matter, "[w]hether this case falls in the range [of

cases] within which a district court may exercise discretion [to

abstain]," a question over which we exercise plenary review.
Grode v. Mutual Fire, Marine & Inland Ins. Co., 8 F.3d 953, 957

(3d Cir. 1993). That is, we must determine whether the state and

federal proceedings at issue here are indeed parallel, inasmuch

as Colorado River abstention is otherwise inapplicable. Trent,

slip op. at 11-12 (recognizing that court must first determine

whether state and federal proceedings are parallel).

Although federal and state actions need not be wholly

identical in order for a district court to deem them "parallel,"

the two actions will not be deemed parallel unless they are

substantially similar. Compare Caminiti and Iatarola v. Behnke

Warehousing Inc., 962 F.2d 698, 701 (7th Cir. 1992) (holding

slight difference in parties and issues is insufficient to

destroy parallel nature of two proceedings where granting of

relief requested in state court would dispose of all claims

raised in federal action); Nakash v. Marciano, 882 F.2d 1411,

1416-17 (9th Cir. 1989) (holding suits to be parallel where

federal action is but a "spin-off" of more comprehensive state

litigation) with University of Md. v. Peat Marwick Main & Co.,

923 F.2d 265, 276 n.16 (3d Cir. 1991) (noting that where federal

claimant's claims are not subject to review in a state forum,

there can be no "parallel" state court litigation on the basis of

which a federal court could exercise Colorado River abstention).
 B.

The federal and state proceedings at issue here clearly

are not "parallel" under Colorado River. As a general matter, a

§ 1983 action may be brought in either a state or federal forum.

Thus, conceivably, concurrent state and federal jurisdiction

could exist over the Marcuses' damages claim. In the present

case, however, the state action is criminal in nature and was

initiated by the State of Pennsylvania in its criminal court.

Pennsylvania law makes no provision by which the Marcuses could

raise their § 1983 claim in a state criminal forum. See Hutchins

v. Commonwealth, Pa. State Police Harrisburg, 604 A.2d 1130, 1131

(Pa. Commw. 1992) (holding civil action cannot be joined to a

criminal appeal).

As a consequence, the Pennsylvania criminal court is

precluded from addressing any of the civil claims, or providing

any of the remedies, that the Marcuses presently seek to have

adjudicated in their federal proceeding.11 These deficiencies

11
. A difference in remedies is a factor counseling in
favor of the denial of a motion to abstain even where the parties
to both actions are virtually identical. New Beckley Mining
Corp. v. International Union, UMWA, 946 F.2d 1072, 1074 (4th Cir.
1991).
"The difference in remedies becomes more pronounced
when one suit requires a jury and the other does not . . . ."
Id. Here, the Marcuses have demanded that a jury decide the
issues raised in their federal § 1983 action, and ask for an
award of compensatory and punitive damages. In contrast, the
state criminal action that the Marcuses presently are appealing
was a non-jury proceeding before a district justice. The only
relief they can hope to obtain in the state proceedings now is a
reversal of their criminal conviction.
are critical. Absent the state criminal court's exercise of

concurrent jurisdiction over the Marcuses' § 1983 claim, the

state proceedings -- the parties involved, the issues implicated,

and the relief sought therein -- are wholly different from and,

therefore, not substantially similar to, the federal proceedings

initiated by the Marcuses.

First, the federal civil and state criminal actions

clearly involve different parties. See, e.g., Baskin v. Bath Tp.

Bd. of Zoning Appeals, 15 F.3d 569 (6th Cir. 1994).12 In the

federal civil lawsuit, the Marcuses have sued the Township,

Vollrath, Matteo, and Ferrara as defendants-appellees. In the

state criminal action, the State of Pennsylvania is the moving

party against the Marcuses.
12
. Like the present case, Baskin involved state and
federal proceedings arising out of disputes related to township
zoning variances. The Sixth Circuit reversed the district
court's Colorado River abstention order, holding that the state
and federal proceedings were not parallel:

The two actions arise out of the same basic
facts, but they each contest a different
aspect of the variance granted by the
Township zoning board and they seek different
relief. The state court action, in which
Baskin intervened as a defendant, was brought
by disgruntled homeowners against both the
Township and the Board. The homeowners
argued that the variance granted by the Board
was excessive. The federal court action,
however, was brought by Baskin against the
Township and the Board. In this suit, Baskin
argued that the variance was too restrictive.
The homeowners were not parties to the
federal case.

15 F.3d at 572.
 Second, while the state and federal actions may

implicate some common factual issues insofar as the Marcuses'

compliance or noncompliance with land use requirements is

concerned, the Marcuses' federal claims raise additional factual

questions concerning, among other things, the alleged acts and

conspiracy by Township officials to "harass, intimidate,

embarrass, annoy, [and] abuse" the Marcuses.

Quite simply, I cannot discern how the state criminal

action, brought by the State of Pennsylvania against the

Marcuses, will resolve the federal civil action, brought by the

Marcuses against the Township and Township officials.

Conversely, I do not see how the resolution of the Marcuses'

federal § 1983 action will affect the state criminal proceeding.

In contrast to Colorado River, where the issues to be decided by

the state and federal forums were essentially the same,13 the two

actions here differ in almost all respects.

C.

Inasmuch as the state and federal proceedings are not

sufficiently similar as to constitute parallel proceedings under

Colorado River, in my opinion, the Marcuses' § 1983 claim does
not even fall in the range of cases within which the district

13
. For example, in Colorado River, the Supreme Court held
that the district court should abstain from entertaining an
action brought by the United States government to settle water
rights respecting the Colorado River when state proceedings to
settle such rights were already underway in a state forum.
court would be permitted to exercise its discretion to abstain.

Consequently, I would not even address the district court's

analysis of the Colorado River/Moses H. Cone factors to determine

whether the district court abused its discretion in finding that

"exceptional circumstances" existed which warranted its

abstaining from exercising jurisdiction over the Marcuses' § 1983

claim. See, e.g., Sheerbonnet, Ltd. v. American Express Bank,

Ltd., 17 F.3d 46, 49 (2d Cir. 1994) (Pratt, J.), petition for

cert. filed, 62 U.S.L.W. 3827 (May 27, 1994) (No. 93-1889); Fox

v. Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994). In my view,

the district court erred as a matter of law when it stayed the

Marcuses' § 1983 action, relying on Colorado River abstention,

and that error should be corrected on the Marcuses' appeal.

III

In sum, I would hold that the district court's stay

order was final for purposes of appellate review. Consequently,

I would reach the merits of the Marcuses' appeal. Having

considered the parties' arguments, I conclude that the district

court's December 23, 1993 Colorado River stay order must be
reversed on the basis that the state criminal proceeding against

the Marcuses, and the Marcuses' § 1983 action against the

Township, are not concurrent and parallel proceedings in which

"substantially the same parties litigate substantially the same

issues in different forums." New Beckley Mining Corp. v.
International Union, UMWA, 946 F.2d at 1073 (4th Cir. 1991).

Because the majority dismisses the Marcuses' appeal by

erroneously holding, in conflict with this court's precedents,

that we have no jurisdiction to review an admittedly erroneous

district court abstention ruling, I respectfully dissent.