we honestly smith and borough and all mr brown analogies of a pre conviction taking a personal property in which that personal property is the subject of a pending an ongoing criminal case however before reaching that issue and similar constitutional issues on the merits the district court decided to dismiss the boy out of his action for lack of subject matter jurisdiction under the just the question of the set up in connection with what you're bringing the suit on why does the public nuisance statute matter here if if the borough was acting under authority that was orderly given to them by an ordinance a local ordinance and honor the statute at issue the criminal public misdemeanor public nuisance misdemeanor statute is important as a gauge of procedural due process dictates in pennsylvania for criminal purposes but it also provides us with guidelines for what the minimal due process requirements for a taking a property would be or deprivation of items would be what types of process would be necessary for a determination to be made that is an important guide post for the federal courts and obviously the federal federal constitution provides with minimal due process guidelines that can be supplemented by the state constitution but the provisions within the public nuisance statute provide that baseline of due process that federal law would reflect less of that it was it was under the public nuisance statute property was taken or wasn't under some other provision of it but it's very difficult to figure that out from the briefings he got yes your honor and is a very difficult issue to discern because of the way in which the items were taken the items were not taken at the and of the criminal proceeding against him void on it she was the only that was it was it part of the criminal proceeding or was it some other justification or statute or ordinance that committed to taking it was within the taking occurred within the confines of the criminal case but not at the point in which the criminal case reached the trial stage or judgment stage where they happen where under the statute they could then be taken only if there is a conviction and a judgment that was reached and that wasn't reached until may of two thousand and twenty whereas the all the time he wanted and neglected to remove his things in time the objection is that my client did not realize that there was going to be a permanent deprivation of his personal items so he did not realize that those items were going to be destroyed appropriate it scraps by private property by per private contractors i should say and so that was not within the ambit of what the state court discussed and what was discussed at the status conference this was not something that my client consented to that there would be a permit taking of those items now were here not on that the substantive merits yours is a challenge to the ripper filmon grounds on which your client lost a law and most likely if we were if we were not to agree with that you'd still have to go back for some further determination on that you know you say someone loses an client in state court only if this claims raised in the federal court were presented to interdict by the state court but were do you get that formulation from i don't see that the supreme court having really spell this out very clearly yes your honor that's correct the supreme court d has not yet very in very much before the federal court were not adjudicated against my clients within state court my clients would not be considered state court losers and not just for tennessee but his mother carol who was not even charged with a crime in this matter was not even a party to any matters in state court that are relevant to these claims that i'm bringing before the federal  dentists there is no application of rules or feldman to a party just on the basis that party was purportedly in privity with a so called state court loser  for both of those reasons and consulting with the rd circuit's rule in genesis be cautious my clients are not state court losers so beyond the state court loser requirement there is also an issue of whether the june th team status conference order constitutes a state court judgment as defined by this or its precedents and the  decided last year and it is not a state court judgment because an interim auditory criminal court order that is entered long before a criminal court case consummates with a trial and a judgment in this particular situation there were ongoing criminal court proceedings and as a result of that under the mohan case which hell would that a state court judgement does not occur unless or d i should say that state court judgment occurs at the end of the state court proceedings when they've either voluntarily terminated or if they have mature into a decision of the highest state court of the particular jurisdiction and in this situation that didn't occur there was still plenty of proceedings let's say you're right on that doesn't that just run you right into heck versus humphrey  maybe this was not done in quite the right order but then once there was a conviction you know you're i don't know if you dispute the timothy was convicted in state court of creating a public nuisance  if he's convicted of that does he have any legal entitlement to the items that created the the public nuisance you know that it looks to us like it's all part and parcel of the noose so your hon at that time ok maybe it was done in the wrong order but maybe it right didn't ok but is there any harm or foul given a basis for saying that even if the conviction had come before or that we couldn't properly bartlett's i mean i don't know whether we should reach that ourselves or save three men but light why wouldn't that be right on the merits that if the conviction in fact had come in time before that it would then are a damages suit under heck for says humphrey the reason your honor is that there was never a chance for the specific items at issue to be delineated between whether they were worthless garbage whether they were nuisance items or whether in fact they were items that weren't nuisances at all just personal items lying around in an individual's yard and when we're dealing when we're dealing with robber feldman at what point in the state proceeding  river feldman look at the time that the the the federal proceedings file at the time that the state proceeded terminated it's later than that which point in time are we looking at  point of time of emphasis has to be when the federal lawsuit was filed in conjunction with whether the state court proceedings have and so those are the two general guide posts for determining what are the rocker feldmann timing requirement which i believe you're referring to judge would apply to state court proceedings terminate after the federal lawsuit this or filled in does not apply cannot apply correct your honor yes yes i'd like to proceed at this point unless there are other questions on the elements we've discussed to the issue of whether my clients through their federal lawsuit invited the district court to review and reject in the judgment i'm sorry the state court order that was issued in this it's let me make let me make a suggestion why don't we save that for rebuttal and you will give you plenty of time on rebuttal to to deal with that but the the questions that we may have for your opposing counsel it up pretty well very good your honor i think the i'd like to discuss whether there are any other issues that should be decided by the rd circuit right now besides the record feltman issue and there dealt with in connection with judge be busses question and then issue preclusion and i think we can also i think you may not even need to deal with that necessarily because primarily this case does come down to the feldman yes  like to cover three issues one he is that the ripper feldman is not precluded because of the scope of the defendant's or i'm sorry the the up leads actions and i want to argue or or discuss that because in the reply brief before the rd circuit that the appellant has placed great weight on making that argument nd i'd like to discuss the common pleas oral and written  st place is obviously is repellent and problem one that the federal plaintiff lost in federal court now that might be satisfied as to him but certainly not his mother care well i think it does include carol in this case because of the relationship their joint owners of the land and and i would liken this to a single coin your daughter's it's a nickel there are two sides to that coin but it can only be held and buried by one person and spent one time they own that all of this property jointly they own the real estate and they own the personalty that is the junk that was removed that is their allegation there is no allegation that any of the property is separately owned by the mrs will and which it only allegations are that it's jointly owned and that was the position taken in the district court and the district court dealt with that issue by saying you can't possibly separate the interest you know both on and entire interest in all of them removed property or personalty as well as the real estate so all of the claims that have been brought have been brought  that there may be circumstances in the court is not setting a bar or any definite statement on women or nonparty may be bound by the record feldman doctrine and one of the examples they cite is when parties are in privity now they only give one example but it's the truth as an i e d for example not as the definitive singular though i think the supreme court specifically held that they're not telling us  very local problem that these folks had and that is the point of his live in a residential area there have been complaints about danger and junk build up for according to the complaint for four or five years and the judge was trying to help get this clean still i don't understand how it can be a bar and just anytime someone doesn't like the what goes on in state court if we're not turned it into an extension doctrine would where in the supreme court's cases our own cases you see support for this is case in our case it's different the judge made an order to clean up and the clean up i know many now here on point to my st question is what makes him a loser in the st place well because he lost his property and because it was all taken and that's the essence of the claim things he did he specifically opposed it sounds like he didn't even know these things are going to be taken until after the cleanup included not just the cars and junk but the the toll so i'm not sure how that makes him a loser on that precise point well if if if in fact his counsel says his client didn't realize that the property was going to be taken then he surely is a loser because then as counsel says he's not he didn't go into that decision on the spot and that decision resulted in an order i don't we're not getting any clarity on point while it's good point to what makes a judgment and what makes a final judgment when it's in the middle of the judy keating nuisance case before there's a conviction or anything else i don't even see a judgement on see a document that's labeled a judgment and it's one of the proceedings have terminated so no one makes a judgement what makes final are what makes it a judgment in this case is that while it was an interlock tory order it was fully executed and concluded so the order was clean up the property don't start for twenty days and then the cleanup began and over a period of the next thirty dollars to sixty d  ripened from that from the time of that status conference in june of eighteen until the clean up was finished and that's their allegation so they clearly put that warder and that determination by the they call it invalid order repeatedly and as a result of the embattled order according to their allegations the clean up occurred if we look at the complaint we're looking at those allegations in order that was executed that was never appealed that was never challenged and i just think and as we ask one question because yes it looks as if maybe the the question is were the injuries to tim boy and it caused by a state court judgement because it looks yes when you look at the transcript that the person's appearing on behalf of the borough relying on the local  or the public nuisance that you are not necessarily a court order well that's why i think when they came in that day i supported held a series of like five different status conferences in this case before it ever went to trial this was the rd of them and the reading of the transcript would suggest that there had been discussions before about how they're going to get the property cleaned up and how they're going to determine what the cost of that cleanup but they say something should leave they had the preexisting authority to seize the property under the ordinance that they're not i don't know the answer to that and i don't i truly don't at this point judge and i haven't made that determination i think the point is the judge gave them the authority and so the judge's decision here not necessarily an ordinance not necessarily the borough vote this judge's directive in this hearing and then the written order that he entered what was the order or judgment of the court as to clean up the property now what the judge relied on it's a little hard to tell he he makes this decision and then announces it unilaterally this is what we're doing i'm telling you you have twenty days to get your stuff out of there or you're going to lose it so now i think this is not a case about an ordinance as though it is it is not a matter of what the lower what the municipal ordinance was this i'm pleased judge saying i'm ordering that they're going to go clean it up after twenty one days or after twenty days  without jim's consent i gree your honor and that's what he said but the court doesn't say that based on that i'm deciding something but regardless it was the judge that makes the order the representation of the arguments by the decisions and judgments against these folks to clean it up and i think what he's referring to is we've had judgments in the past in front of the j p fining him for not cleaning it up it also fines but then he never cleaned up the property and that ultimately led to them having the district attorney's office of the company well that ends and you prosecute him for public nuisance as you can see from the record nobody wanted to put this man in jail or cause problems they wanted the property cleaned up and  o it's this determination by that i'm pleased judge at this conference and then the written order that he entered i think it was the same day ordering that the property is going to be cleaned up and he should get anything of that he wants to keep out of there within the next twenty days and that could cost him a problem for even if we agree with you that you stay quit loser and even if we treat this is a judgment a final judgment you know we have to understand this is an appeal from that this action is not overturning that one it's seeking damages so how is this case like rocker and feldman which were not seeking damages they were seeking directly to overturn a judgment of a state court well i don't think there was anything in the river feldman decisions themselves that said it can't it can't be anything other than the request overturn a state court as the district court here said is effectively being asked to overturn the state court in order to hold the municipalities liable for doing what they did under the authority and direction of a state court judge's order what the final product of review and rejected cleanup order this court as the lower court decided i have to go through that order all roads deciding this lawsuit that's been filed to go through that order but that order legitimate the plaintiff's complaint can repeatedly says it was not a legitimate order the bona fide is of the order or improper of procedurally incorrect inviolate of of his rights but that he has to do with the lower court and the judge's decision the borough simply cleaned up the property pursuant to that order and according to the complaint there are several let places where it was alleged that they cleaned up  as a result of the order as a directive of the order they connect the order to the cleanup and i think clearly that's what happened so they are asking the court necessarily to go through that order because how can you find th the reply brief he says wow these decisions by the borough were d really outside the scope of the order so therefore the order doesn't bar us well they weren't outside the scope of the order and then argued it was never made in the lower court by the way you could you  can look very closely in the original complaint in that motion to dismiss that was filed and briefing in fact we pointed out to the lower court in our motion to dismiss that there is no argument that the actions were outside the scope  so i would say your honor in d regard to element forty answered directly all roads go through this order you cannot decide the liability and responsibility of the burros of the defendants in this case without  were not right for appeal i do not understate practice in pennsylvania there are certain analogic torrie orders that certainly can be appealed they didn't even challenge the judge himself they never said to the judge we oppose what you're doing because you can't take this and it would seem as though everybody was like well this is a good operation the burros paying for it what we're about how we reimburse them later and i point out to your honor this case did go to trial this past year  it was found guilty by the crowd there was no appeal from the conviction is not paying off the fine periodical and i think this is all a matter of public record so i'm not saying something that would be inappropriate that you can thank you this will notice of this there's never been a challenge to that order except this federal court lawsuit against the minister paladin he's saying well we didn't object in state court we didn't file an appeal in state court we didn't do anything that we went to trial with the same judge and we didn't object to him being the judge and he found us guilty of a public nuisance and he entered a five thousand one hundred dollars fine to be paid off over time and it to your suspended sentence but now we want to go to federal court for what all happened we didn't challenge it in state court we want to file a lawsuit against the you have to supply all of these and claim that this is junk add value to it and we want you to pay us for it and not only that you violated a lot of our constitutional rights really being dealt with well how much the district court really deal with this the court solely addressed the issue of the at work or feldman and its application it did courts disposition of the case and if the application of three is so clear in this case i mean mr mr brown it's was convicted of maintaining a public nuisance he merrick what i find frustrating here is we're not sure of what how exactly to characterize the coroner as requiring authorizing prescribing we're not sure on it whether to characterize it as covering the tools or not we're not sure whether to characterize the nuisance conviction is included in the tools or just about the rusting vehicles in the tolls being separate will those all seem to remands because it might be that heck occludes this if he wasn't fact convicted for having the tools there but it might be that he doesn't if he had every right to have the tools there and wasn't convicted of it and he can challenge independently that they should not a bit the baby should not have been removed with the bathwater well your honor the words clean up order provides that everything on the property has to be cleaned up except that which the the mr by an itch does not remove so whatever is left there what everything that i mean direct me to the language that makes it clear that nothing is to be left well it's sense to clean up the property ok if i think the court order would have to say with the exception not me the court would have to spell out what's to the left we can argue about what clean up meant but gone well i mean the  r the order of conviction the judgment of conviction establishes and that the condition of the property was a nuisance as of the time of the cleanup and that is something are premised upon the property on the personalty on the property having having value and had by bringing in the section nine hundred and eighty three claims he's alleging that he was deprived property which was not a nuisance but as a bit let me ask just a dumb logical question how does an unconstitutional taking a property or an allegation d of it in any way necessarily render kim's conviction invalid you mean the th amendment claim you say you say how does an unconstitutional taking a property render tim's conviction invalid well property which is subject to the protections of the th amendment due process clause has to be a property which is recognized by the state as it's happening as is the fate of having some type of property right in that property and federal law cut the nuisance judgement does not require finding that the property is valueless you can have valuable property credit used right so let's say there are some tools out there if the tools  states and they could be worth something it's only the fact that the tools are out of the law that even if the judgment covers the made them a nuisance so let's assume the judgement covers the tools it doesn't hold that the tools are valueless it doesn't hold that he has no right to them he just says if you didn't get them in time we can remove them but he's saying you didn't mourn me clearly enough in time to get them it wasn't clear from the judgement that i was supposed to get the tools out by them that you were going to take the tools as well so why is there a conflict between it taking so claim and a nuisance claim because if you if ringback if the property was taken maybe if he got unequivocal notice in time but i take it that he is contesting whether in fact he was given enough notice that these items are going to be removed when you still have the property right to remove them before the the nuisance judgment conviction and execution come in i think at at the time back in two thousand and nineteen he had that right but i'm sure heck versus humphrey we're looking as to whether the two thousand and twenty conviction is impugned by virtue of his section nine hundred and eighty three claims and all of that property which was cleaned up and which caused the borough to items from the basis for that establishes the state had a right to remove it at the time it removed it but he is saying he had a property right to take away some things that may not have been trashed may have been valuable before that time and yet he wasn't given proper notice and procedure in time to remove it now maybe he was maybe wasn't it depends on construing the the order and what he was fairly warned of but i'm not sure that's right now if it's right i'm not sure we can do it on appeal with the district court not having addressed the issue so i think let's assume you're right on the ultimate construction why is that something we should take up on appeal as opposed to leaving it to the district court why is it so clear that we need no rem judge it's not i haven't taken the position that it's absolutely mandatory or so clear that you have to address this issue i just believe i submit that in the interest of efficiency and rather than this court may decide you certainly are certainly have the right to remand and ask the district court to address these issues but i just believe in the interests of the fish and sea and judicial economy it makes sense for this court municipalities could enter and clean up the outside of the property that particular order though does not mandate that the municipalities perform that task and that's very similar to a persuasive precedent from the th circuit in bolton the city of topeka kansas where a state court entered an order regarding the demolition of a building permitting a city to demolish  the federal plaintiff's building and the th circuit held that the order that was entered by the state court did not cause the building to be struck to be destroyed because there was an independent action taken by a rd party which is the city to actually go about and destroy that building and us and serve it has gone even further on the causation issue the th circuit has held that any actions that occur after a an order is entered into in state court have to be separate from that state court order so in other words we're not supposed to do a pol graph type analysis where we look to a state court order and then we try to figure out at what point does the proximate cause a sin and and that orders power of causation concludes as to superseding actions of rd parties beyond that the order itself that was issued by the state court never authorized private parties to enter the his property and sell that property or to pro create it to other individuals just ordered that the property items be cleaned up that doesn't necessarily lead to the conclusion that those property items were to be permanently taken away d from my clients particularly before a criminal conviction there is also no request to review and reject by my clients via the federal court  state courts order this court has held in the focus case that roker feldman applies whenever there would be a consideration of a federal case that would be essentially the equivalent of an collateral stop so st of all the issue of if you're pollution shouldn't be considered here because the record that was before the district court at the time that this order dismissing my client's case in the district court was and or there is no indication whether in the public record in any state court or within the record that was attached to my complaint would have been able to cause the parties or the court to even want to raise is reclusion or heckle or because there was no conviction of simply on it at the time that the case was before the district court there is no way no reasonable way that the district judge or any the parties could have brought that issue up not now specifically as the issue preclusion and if this court were to go to the merits and consider the pollution under pennsylvania law it should not apply and there's two primary reasons for that  st of all under pennsylvania's issue proposition elements there has to be a fool and fair opportunity for the parties litigating the case to be able to fool ferret out the issues so in this situation you have a criminal court status conference and a status conference you go before a judge and the judge asks what's the status and you tell the judge about the progress of a criminal case whether there might be some sort of settlement plea entered into there's no indication here that there was any idea or any understanding by my clients that this would be conducted as sort of a criminal court prone area injunction here and they within the criminal court procedures themselves there is simply no opportunity to file counter claims for unconstitutional actions there's no opportunity for carol  to state her claims or to intervene in a criminal court action on the procedures only allow for the commonwealth of pennsylvania and the criminal defendant to be party to that case so  doesn't apply simply because there is no procedural way for all the claims no issues that need to be decided by the federal courts but those things could not have been considered in any fashion by the criminal court particularly