NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 09-2036

______________

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. 2-08-cv-01405)

Honorable Gary L. Lancaster, District Judge

______________

Argued December 16, 2009

BEFORE: SLOVITER, JORDAN, and GREENBERG, Circuit Judges

(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 & Gefsky
2

Suite 2200, Four Gateway Center

444 Liberty Avenue 

Pittsburgh, PA 15222

 Attorneys for Appellees

George M. Janocsko

Assistant County Solicitor

Caroline P. Libenguth

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. INTRODUCTION
3

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. 39-07-OR, entitled AResidence Requirements, Registered Sex 

Offenders,@ on various federal grounds and the state law ground that Pennsylvania 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 offenders 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, appellees sought and obtained an order on April 2, 

2009, from the District Court permitting it to file an application for counsel fees and costs
4

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 concluded that the appeal 

raised important and unresolved questions of the enforceability of county and local 

ordinances restricting the places at which sex offenders may reside within jurisdictions 

adopting such ordinances. We also concluded that the case, though dealing with an 

ordinance effective in only one county, was of state-wide importance inasmuch as other 

counties and municipalities might adopt similar ordinances, particularly if the County 

prevailed on this appeal. Furthermore, we concluded that even though we had 

jurisdiction to decide the appeal, we could not issue an opinion that would be binding on 

courts 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 the 

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, 1343, 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 effect of the opinion of the Supreme Court of Pennsylvania that we 

describe below. 

 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 

of Pennsylvania=s Internal Operating Procedure Rule 10 and requested that the Supreme 

Court of Pennsylvania grant the petition for certification. In particular, we certified the 

question to the Supreme Court in the following form:

Is Allegheny County Ordinance No. 39-07-01 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 jurisdiction of the appeal 

pending resolution of our petition. 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 of Pennsylvania answered the certified 

question in an opinion which, after a comprehensive review of Pennsylvania law, 

concluded as follows:

The County’s legislative effort in this instance undermines the General 

Assembly’s policies of rehabilitation, reintegration, 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] objectives of the General 

Assembly and is, therefore, preempted.

Fross v. County of Allegheny, 20 A.3d 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 

letter briefs commenting on the effect of the Supreme Court’s decision. The parties have 

filed those 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, the parties agree that we can remand the issue of 

appellees’ request for attorneys’ fees and costs for the proceedings in the District Court to 

that Court for resolution, though appellees contend that alternatively we could retain 

jurisdiction over the attorneys’ fees and costs issue and decide it ourselves. We reject 

appellees’ alternative 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 issues 

for the proceedings in that Court. We, however, will tax costs against the County in this 

Court.