NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 0 9

- 2036

______________ CHARLES FROSS; M. DOE; D. DOE; SHAWN CZERWIEN; CHARLES METER; CHRISTOPHER HAIGH v. COUNTY OF ALLEGHENY, Appellant

______________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 2

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- cv
- 01405) Honorable Gary L. Lancaster, District Judge

______________ Argued December 16, 2009
BEFORE: SLOVITER , JORDAN , and GREENBERG, Circuit J udges (Filed: July 19, 2011 )

______________ Donald Driscoll (argued) PA Institutional Law Project 1705 Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219
Witold J. Walczak American Civil Liberties Union of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213 Edwin J. Strassburger Strassburger, McKenna, Gulnick & Gefsky2 Suite 2200, Four Gateway Center 444 Liberty Avenue Pittsburgh, PA 15222 Attorneys for Appellees George M. Janocsko Assistant County Solicitor Caroline P. Libengut h Assistant County Solicitor Craig E. Maravich (argued) Assistant County Solicitor Michael H. Wojcik County Solicitor Office of Allegheny County Law Department 445 Fort Pitt Boulevard 300 Fort Pitt Commons Building Pittsburgh, PA 15219 Attorneys for Appellant
Andrew A. Chirls Matthew A. Fry Haines & Associates 1835 Market Street Suite 2420 Philadelphia, PA 19103 Attorneys for Amicus Curiae Association for The Treatment of Sexual Abusers

______________ OPINION OF THE COURT

______________ GREENBERG, Circuit Judge

. I. INTRODUCTION3 This matter comes on before this Court on an appeal brought by Allegheny County , Pennsylvania , from an order entered in the District Court on March 20, 2009, granting summary judgment to the six appellees, each of whom had been convicted of committing a sex offense requiring registration as a sex offender under Pennsylvania = s Megan = s Law, in this action in which appellees challenged the validity of Allegheny County Ordinance, No. 39

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- OR, entitled A Residen ce Requirements, Registered Sex Offenders, @ on various federal grounds and the state law ground that Pennsylvan ia law preempts the ordinance. The ordinance limits the places where sex offenders can reside within the County by precluding them from residing within 2,500 feet of child care facilities, community centers, public parks, recreation facilities, or schools. The District Court held that the ordinance conflicts with Pennsylvania statutory law establishing a statewide system for supervising sex offen ders following their release from prison. Thus, the Court held that state law preempted the ordinance and it did not decide the federal questions

. Fross v. County of Allegheny , 612 F. Supp. 2d 651 (W.D. Pa. 2009). Consequently, under the District Court = s opinion and order, the ordinance is not
enforceable. Following the entry of the summary judgment , the County advised appellees that it intended to appeal. Consequently, a ppellees sought and obtained an order on April 2, 2009, from the District Court pe rmitting it to file an application for counsel fees and costs4 within 30 days of the exhaustion of all appeals

. 1

After having read the briefs and submissions of the parties, considering their oral arguments, and reviewing applicable Pennsylvania law, we conclud e d that the appeal
raised important and unresolved questions of the enforceability of county and loc al ordinances restricting the places at which sex offenders m a y reside within jurisdictions adopting such ordinances. We also concluded t hat the case, though dealing with an ordinance effective in only one county, wa s of state

- wide importance inasmuch as other counties and municipalities m ight adopt similar ordinances, particularly if the County prevail ed o n this appeal

. Furthermore , we con cluded that even though we had jurisdiction to decide the appeal, we could not issue an opinion that would be binding on

cou r ts throughout Pennsylvania but that it was important that such an opinion be
rendered . We recognized, however, that the Supreme Court of Pennsylvania could issue an opinion that would be binding on a state

- wide basis . Accordingly, we certified th e question of whether Pennsylvania law preempts the ordinance to the Supreme Court of The County then appealed. The District Court had jurisdiction under 28 U.S.C. §§ 1331, 13 4 3, and 1367 and we have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order , see Santos ex rel. Beato v. United States , 559 F.3d 189, 193 (3d Cir. 2009), subject, however, to the binding eff ec t of the opinion of the Supreme Court of Pennsylvania that we
describe be low.

1 That order did not affect the finality of the order of March 20, 2009, for appeal purposes.5 Pennsylvania pursuant to the certification procedure outlined in this Court = s Local Appellate Rule Misc. 110 and Internal Operating Procedure 10.9 and the Supreme Court

o f Pennsylvania = s Internal Operating Procedure Rule 10 and requested that the Supreme Court of Pennsylvania grant th e petition for certification. In particular , we certified the question t o the Supreme Court in the following form : Is Allegheny County Ordin ance No. 39

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- 01 entitled ‘ Residence Requirements; Registered Sex Offenders ’ preempted by Pennsylvania statutory law and the procedures of the Pennsylvania Board of Probation and Parole?
At that time , notwithstanding the certification , we retained jurisd iction of the appeal pending resolu tion of our p etition . On June 3, 2010, the Supreme Court granted the petition for certification and thus we have continued to retain jurisdiction over the appeal without deciding it

. On May 25, 2011, the Supreme Court o f Pennsylvania answered the certified question in an opinion which, after a comprehensive review of Pennsylv ania law,
concluded as follows:
The Co unty’s legislative effort in this instance undermines the General Assembly’s policies of rehabilitation, reint egration, and diversion from prison of appropriate offenders, and significantly interferes with the operation of the Sentencing and Parole Codes. For these reasons, we agree with the federal district court that the County’s Ordinance stands as an obstacle to accomplishing the full purposes [and] objecti ve s of the General Assembly and is, therefore, preempted. Fross v. County of Allegheny , 20 A.3 d 1193, ____ (Pa. 2011).

See Budinich v. Becton Dickinson & Co. , 486 U.S. 196, 108 S.Ct. 1717 (1988).6 When we received the Supreme Court opinion our Clerk directed the parties to file
lett er briefs commenting on the effect of the Supreme Court’s decis ion. The parties have
filed tho se briefs and are in agreement that the Supreme Court’s decision should lead us
to affirm the District Court’s decision and order of March 20, 2009, and we agree with them on this point. Furthermore, t he parties agree that we can remand the issue of appellees’ request for attorney s ’ fees and costs for the proceedings in the District Court to that Court for resolution, though appellees contend that alternatively w e could retain jurisdiction over the attorneys’ fees and costs issue and decide it ourselves. We reject appellees’ a l te r n a tive suggestion because the District Court is more familiar than are we with the proceedings in that Court and thus it should pass on the attorneys’ fees and cost issues in the proceedings before it

. For the foregoing reasons we will affirm the order of March 20, 2009, and will remand the case to the District Court for resolution of the attorneys ’ fees and costs issue s for the proceedi ngs in that Court. We, however, will tax costs against the County in this
Court.