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. e du/thir dc ir c uit_2002/166NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 00-4116

ROBERT BRESKO, Appellant

v.

ROBERT JOHN, Detective, Shamokin Police Depa rtment; ANTHONY J. ROSINI, District Attorney, Northumber land County

No. 00-4251

ROBERT BRESKO, Appellant

v.

ROBERT JOHN, Detective, Shamokin Police Depa rtment; DISTRICT ATTORNEY OF NORTHUMBERLAND COU NTY

On Appeal from the United States District Court for the Middle District of Pennsylvani a (D.C. Civil No. 00-cv-01472) District Judge: Hon. James F. McClure, Jr.Submitted Under Third Circuit LAR 34.1( a)

February 4, 2002

Before: SLOVITER, AMBRO, Circuit Judges, POLLAK, District Judge

(Filed March 12, 2002)

OPINION OF COURT

SLOVITER, Circuit Judge.

FACTS AND PROCEDURAL BACKGROUND Appellant Robert Bresko was charged in a Penns ylvania state court with ten violations of the Pennsylvania Crimes Code arising from the alleged rape of Desiree Burns, the woman with whom he cohabited. Based on information provided by Burns to Detective Robert John of the Shamokin Police Depart ment, Detective John filed a probable cause affidavit and a criminal complaint i n the District Justice Court of Northumberland County, which the District Justice r eviewed and approved, issuing a warrant for Bresko's arrest. On March 28, 1999, Jo hn arrested Bresko pursuant to the warrant. Shortly after Bresko's arrest, John contacted Officer Charles Pensyl of the Coal Township Police Department and informed him of Bres ko's arrest. John, who

was aware of the police investigation into the murder of Matt hew Hoy and apparently believed that Bresko might have relevant information, told Pensyl that the charges that gave rise to Bresko's arrest were going to "go away" and a deal could be made for Bresko's cooperation in the Hoy murder investigation. The n ext day, John told Bresko that if he contacted Pensyl, John would do something about the charges pending against him. Pensyl contacted Bresko's attorney and advised him that the charges against Bresko would "go away" if Bresko provided informati on to the police about the pending Hoy murder investigation. Bresko agreed to assist Pensyl in exchange for the withdrawal of charges against him. Thereafter, on April 15, 1 999, John and Pensyl met with Bresko and his attorney and they orally agreed to a Cooper ation Agreement whereby Breskowould cooperate with the murder investigation in ex change for the

withdrawal of the charges against him arising from the alleged rape o f Burns. In accordance with this Cooperation Agreement, Bresko made a several-hour s tatement that provided the Coal Township police with information needed to pursue a specific suspect in the murder investigation. On May 11, 1999, William Cole, an Assistant Di strict Attorney for Northumberland County, negotiated an agreement with Bresko and his attorney based on the Cooperation Agreement and Bresko's satisfaction of its terms. Under the terms of that agreement, Bresko would plead guilty to certai n unrelated charges and he would waive the preliminary hearings for both these unrel ated charges and those arising from the alleged rape. In return, the District Attorney would, inter alia, recommend to the sentencing judge that Bresko be given no additional prison time and that no parole violation would be issued against Bresko. Pennsylv ania's courts have interpreted Pennsylvania Rule of Criminal Procedure 590 to mean that "no plea agreement exists unless and until it is presented to the court." Co mmonwealth v. McElroy, 665 A.2d 813, 816 (Pa. Super. 1995); see also Commonwealth v. Spe nce, 627 A.2d 1176, 1184 (Pa. 1993). The agreement between Bresko and the Distri ct Attorney's office was not reduced to writing nor was it presented to the cour t. Later that month, in the presence of John, Pen syl, and Bresko's attorney, Cole asked the Court of Common Pleas of Northumberland C ounty to release Bresko based on the Cooperation Agreement between John and Bresko a nd Bresko's cooperation in the murder investigation. Thereafter, the court releas ed Bresko from custody and placed him under house arrest. In January 2000, Anthony Rosini, the District Attorney of Northumberland County, informed Bresko's attorney that he would no t honor the terms of the Cooperation Agreement and that he would continue to prosecute Bresko for the charges arising from the alleged rape of Burns. Bresko the n filed a complaint against John and Rosini in the federal court under 42 U.S.C.  1983. Bresko's complaint alleged that John deprived him of his Fourth Amendmentright to be free from unlawful arrest and seizure ( 1) by arresting Bresko

without a reasonable good faith belief that he committed the crimes at issue and (2) by providing false and misleading information in the criminal co mplaint, in the Affidavit of Probable Cause, and to the District Attorney. Bresko sought , inter alia, an undetermined amount of damages, costs, and attorney fees. Bresko's complaint also alleged that Rosini de prived Bresko of due process under the Fourth and Fourteenth Amendments by initiating and continuing a prosecution of Bresko despite the existence of the Cooperation Agr eement and without a reasonable expectation of obtaining a valid conviction. Bresk o sought, inter alia, an order compelling Rosini to honor the Cooperation Agreemen t and an injunction prohibiting him from prosecuting Bresko for crimes arising from the alleged rape. Both John and Rosini filed motions to dismiss, which the District Court granted on November 7, 2000. The District Court dismissed the action agains t Rosini under the abstention doctrine enunciated in Younger v. Harris, 401 U.S. 37 (1971), which requires that a federal court should generally abstain from enjoini ng pending state criminal proceedings. The District Court dismissed the action against Joh n on the ground that it was not ripe for adjudication. The court held that under Heck v. Hu mphrey, 512 U.S. 477 (1994), a  1983 plaintiff who alleges a "harm caused by action s whose unlawfulness would render a conviction or sentence invalid," id. at 486, can re cover damages only if the conviction or sentence has been reversed or called into question in some way. Bresko appeals the District Court's order dismissing his complaint. Shortly after the District Court's order, Bres ko filed an Omnibus Pretrial Motion in the Northumberland County Court of Common Pleas, where the criminal charges were pending, claiming that his arrest was unconstitutio nal and that his prosecution violated his constitutional right to fundamental fairness be cause it was contrary to the Cooperation Agreement. The state court rejected th ose contentions, based in part upon the requirements of Pennsylvania law that plea agre ements be in writing. The court subsequently refused to certify the issue for appea l, and the Pennsylvania Superior Courtdismissed Bresko's attempt at appellate review.

After all the parties before us in this appeal submitted briefs on the issues raised by the dismissal, Assistant District Attorney Micha el Toomey, with Rosini's authority, entered into a letter agreement with Bresko dated N ovember 15, 2001 in which the District Attorney agreed to nol pros all of the ori ginal charges against Bresko in exchange for Bresko's pleading nolo contendere to t wo amended informations, one charging a simple assault and the other charging a simple assault by physical menance. Both charges are misdemeanors of the second degree. Pursuant to the written plea agreement, on November 19, 2001, Rosini filed both the nol pros motion of the original charges and the amended informations, to which Bres ko pled nolo contendere. In light of this change in the underlying circumstances, we allowed the parties to submit supplemental briefs. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction pursuant t o 28 U.S.C.  1331 and 1343(a)(3) and (a)(4) over Bresko's claim against John and pur suant to 28 U.S.C.  1343(a)(4) and 42 U.S.C.  1983 over Bresko's claim against Rosini. This cou rt has appellate jurisdiction pursuant to 28 U.S.C.  1291. This court conducts a plenary review of a dist rict court's decision to grant a motion to dismiss. City of Pittsburgh v. W. Penn P ower Co., 147 F.3d 256, 262 n.12 (3d Cir. 1998). For purposes of a motion to dismiss, t his court accepts as true the allegations of the non-moving party and gives that party the be nefit of all reasonable inferences drawn from allegations contained in the record. Id

. DISCUSSION A. Complaint against Rosini In reviewing the District Court's dismissal of the complaint against Rosini, we must determine whether the following three requirem ents for Younger abstention were established: (1) there must be an ongoing st ate judicial proceeding to which the federal plaintiff is a party an d with which the federal proceeding will interfere, (2) th e state proceedings must implicate important state interests, and (3) the state proceedings must afford an adequate oppor tunity to raise the constitutional claims.FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir.

1996). In addition, we have stated that "[e]ven if these t hree elements are satisfied, abstention is not appropriate where the federal claimant makes a showing of bad faith, harassment, or some other extraordinary circumstance." O'Neill v. City of Philadelphia, 32 F.3d 785, 789 n.11 (3d Cir. 1994). Bresko has argued that al l three exceptions to Younger abstention are applicable here. It appears that the District Court's holding t hat Younger abstention required dismissal of Bresko's complaint against Rosini was not unreasonable inlight of the thenongoing state criminal proceedings against Bresko, proceedings in which Bresko could have raised his constitutional claims. Now that th ose criminal proceedings have terminated, abstention is no longer appropriate. W e therefore will remand Bresko's complaint against Rossini to the District Court. B. Complaint against John The District Court dismissed Bresko's claim ag ainst Detective John on the ground that, under Heck v. Humphrey, 512 U.S. 477 (1994), Bresko's  1983 claim against John was not ripe because the criminal proceedings again st him had not terminated in his favor. On appeal, Bresko argues that his claim aga inst John is for false arrest and Heck is therefore inapplicable because, as we have state d, "a claim of unlawful arrest, standing alone, does not necessarily implicate the validity of a criminal prosecution following the arrest." Montgomery v. De Simone, 159 F.3d 120, 12 6 n.5 (3d Cir. 1998) (quotation and citation omitted). In other words, Bresko argues t hat he can seek to recover damages for false arrest regardless of the outcome of the state criminal proceedings against him. We do not here address the merits of this argument. O n remand, the District Court shall consider this argument if Bresko continues to press it. John argues in his supplemental brief that Bre sko's nolo contendere pleas to the amended informations, which charged facts underlyin g the arrest on the original criminal charges, collaterally estop Bresko from challenging the lawfulness of his arrest. He also argues that the state court's decision on Bresko's Omnibus Pretrial Motion acts to collaterally estop Bresko's claim. The state court denied Bresko's motion to vacate hisarrest, finding that John had probable cause to arr est Bresko. This

decision was based on testimony from John and Cole, the Assistant Distric t Attorney involved in the negotiation of the Plea Agreement and the arguments of both par ties. Bresko responds that under Pennsylvania law a plea of nolo contendere cannot b e used as an admission in any civil suit, including the pending  1983 action, and that application of collateral estoppel would not be appropriate in these circumstances. The District Court did not reach these issues arising from Bresko's complaint against John because it dismissed the case before t he termination of the criminal proceedings. That court did not have the opportuni ty to consider the parties' arguments in light of the changed circumstances, and it is un clear whether there are material factual issues to be resolved. Now that the criminal proce edings against Bresko have terminated, among the relevant questions to be cons idered are whether Heck applies and, if so, whether the proceedings have terminated in B resko's favor. We will therefore remand Bresko's complaint against John to the Distr ict Court. CONCLUSION In light of the conclusion of the state court criminal proceedings against Bresko, the circumstances of this case have changed. There fore, we will vacate the District Court's dismissal of Bresko's claims against Rosini and John, and will remand this case to the District Court for further proceedings.

___________________

TO THE CLERK:

Please file the foregoing opinion.

_/S/ Dolores K. Sloviter_______

__________________ Circuit Judge