2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-12-2002

Bresko v. John

Precedential or Non-Precedential:

Docket 0-4116

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Recommended Citation

"Bresko v. John" (2002). 2002 Decisions. Paper 166.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/166
 

NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 00-4116 

 

 ROBERT BRESKO, 

 Appellant 

 v. 

 ROBERT JOHN, Detective, Shamokin Police Department; 

 ANTHONY J. ROSINI, District Attorney, Northumberland County 

 

 No. 00-4251 

 

 ROBERT BRESKO, 

 Appellant 

 v. 

 ROBERT JOHN, Detective, Shamokin Police Department; 

 DISTRICT ATTORNEY OF NORTHUMBERLAND COUNTY 

 

 On Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 (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 Pennsylvania 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 Department, Detective John 

filed a 

probable cause affidavit and a criminal complaint in the District Justice 

Court of 

Northumberland County, which the District Justice reviewed and approved, 

issuing a 

warrant for Bresko's arrest. On March 28, 1999, John 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 Bresko's arrest. John, who 

was aware 

of the police investigation into the murder of Matthew 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 next 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 information 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, 1999, John and Pensyl 

met with Bresko 

and his attorney and they orally agreed to a Cooperation Agreement whereby 

Bresko 
would cooperate with the murder investigation in exchange for the 

withdrawal of the 

charges against him arising from the alleged rape of Burns. In accordance 

with this 

Cooperation Agreement, Bresko made a several-hour statement 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 District 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 certain unrelated charges and 

he would 

waive the preliminary hearings for both these unrelated 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. Pennsylvania'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." Commonwealth v. McElroy, 

665 A.2d 813, 

816 (Pa. Super. 1995); see also Commonwealth v. Spence, 627 A.2d 1176, 

1184 (Pa. 

1993). The agreement between Bresko and the District Attorney's office 

was not 

reduced to writing nor was it presented to the court. 

 Later that month, in the presence of John, Pensyl, and Bresko's 

attorney, Cole 

asked the Court of Common Pleas of Northumberland County to release Bresko 

based on 

the Cooperation Agreement between John and Bresko and Bresko's cooperation 

in the 

murder investigation. Thereafter, the court released 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 not 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 then 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 

Amendment 
right 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 complaint, 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 deprived Bresko of due 

process under 

the Fourth and Fourteenth Amendments by initiating and continuing a 

prosecution of 

Bresko despite the existence of the Cooperation Agreement and without a 

reasonable 

expectation of obtaining a valid conviction. Bresko sought, inter alia, 

an order 

compelling Rosini to honor the Cooperation Agreement 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 against 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 enjoining pending state 

criminal proceedings. 

The District Court dismissed the action against John on the ground that it 

was not ripe for 

adjudication. The court held that under Heck v. Humphrey, 512 U.S. 477 

(1994), a 

1983 plaintiff who alleges a "harm caused by actions whose unlawfulness 

would render a 

conviction or sentence invalid," id. at 486, can recover 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, Bresko filed an Omnibus 

Pretrial Motion 

in the Northumberland County Court of Common Pleas, where the criminal 

charges were 

pending, claiming that his arrest was unconstitutional and that his 

prosecution violated 

his constitutional right to fundamental fairness because it was contrary 

to the 

Cooperation Agreement. The state court rejected those contentions, based 

in part upon 

the requirements of Pennsylvania law that plea agreements be in writing. 

The court 

subsequently refused to certify the issue for appeal, and the Pennsylvania 

Superior Court 
dismissed 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 Michael Toomey, with 

Rosini's authority, 

entered into a letter agreement with Bresko dated November 15, 2001 in 

which the 

District Attorney agreed to nol pros all of the original charges against 

Bresko in 

exchange for Bresko's pleading nolo contendere to two 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 Bresko 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 to 28 U.S.C.  1331 and 

1343(a)(3) 

and (a)(4) over Bresko's claim against John and pursuant to 28 U.S.C. 

1343(a)(4) and 

42 U.S.C.  1983 over Bresko's claim against Rosini. This court has 

appellate 

jurisdiction pursuant to 28 U.S.C.  1291. 

 This court conducts a plenary review of a district court's decision 

to grant a 

motion to dismiss. City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 

262 n.12 (3d 

Cir. 1998). For purposes of a motion to dismiss, this court accepts as 

true the allegations 

of the non-moving party and gives that party the benefit 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 requirements for Younger 

abstention were 

established: 

 (1) there must be an ongoing state judicial proceeding 

to 

 which the federal plaintiff is a party and with which the 

 federal proceeding will interfere, (2) the state proceedings 

 must implicate important state interests, and (3) the state 

 proceedings must afford an adequate opportunity 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 three 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 all three exceptions to 

Younger 

abstention are applicable here. 

 It appears that the District Court's holding that Younger abstention 

required 

dismissal of Bresko's complaint against Rosini was not unreasonable in 

light of the thenongoing state criminal proceedings against Bresko, proceedings in which 

Bresko could 

have raised his constitutional claims. Now that those criminal 

proceedings have 

terminated, abstention is no longer appropriate. We therefore will remand 

Bresko's 

complaint against Rossini to the District Court. 

B. Complaint against John 

 The District Court dismissed Bresko's claim against 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 against him had not 

terminated in his 

favor. On appeal, Bresko argues that his claim against John is for false 

arrest and Heck 

is therefore inapplicable because, as we have stated, "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, 126 n.5 (3d Cir. 1998) 

(quotation and 

citation omitted). In other words, Bresko argues that 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. On remand, the District 

Court shall 

consider this argument if Bresko continues to press it. 

 John argues in his supplemental brief that Bresko's nolo contendere 

pleas to the 

amended informations, which charged facts underlying 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 his 
arrest, finding that John had probable cause to arrest Bresko. This 

decision was based on 

testimony from John and Cole, the Assistant District Attorney involved in 

the negotiation 

of the Plea Agreement and the arguments of both parties. Bresko responds 

that under 

Pennsylvania law a plea of nolo contendere cannot be 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 the termination of the 

criminal 

proceedings. That court did not have the opportunity to consider the 

parties' arguments 

in light of the changed circumstances, and it is unclear whether there are 

material factual 

issues to be resolved. Now that the criminal proceedings against Bresko 

have 

terminated, among the relevant questions to be considered are whether Heck 

applies and, 

if so, whether the proceedings have terminated in Bresko's favor. We will 

therefore 

remand Bresko's complaint against John to the District Court. 

 CONCLUSION 

 In light of the conclusion of the state court criminal proceedings 

against Bresko, 

the circumstances of this case have changed. Therefore, 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