1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-27-1994

Marcus v. Township of Abington, et al.

Precedential or Non-Precedential:

Docket 94-1139

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Recommended Citation

"Marcus v. Township of Abington, et al." (1994). 1994 Decisions. Paper 171.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/171
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-1139 

 

 NORMAN S. MARCUS; 

 SUSAN S. MARCUS, h/w 

 Appellants 

v. 

 TOWNSHIP OF ABINGTON; P. DANIEL VOLLRATH, 

 Individually and in his capacity as Senior Code 

 Enforcement Officer for Abington Township; 

 LAWRENCE T. MATTEO, JR., Individually and as 

 Superintendent of Code Enforcement for Abington 

 Township; BARBARA C. FERRARA, Individually and in her 

 capacity as Commissioner of Abington Township 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civil No. 93-cv-04620) 

 

 Argued June 21, 1994 

 BEFORE: STAPLETON, GARTH, and PRATT, Circuit Judges* 

 (Opinion filed October 27, l994) 

 

 Michael J. McCaney, Jr. (Argued) 

 Heller, Kapustin, Gershman & 

Vogel 

 600 West Germantown Pike 

_________________________________________ 
* Honorable George C. Pratt, United States Circuit Judge for the 

Second Circuit, sitting by designation. 

 Plymouth Meeting Executive 

Campus, Suite 380 

 Plymouth Meeting, PA 19462 

 Attorney for Appellants 

 George H. Knoell, III (Argued) 

 Kane, Pugh, Knoell & Driscoll 

 510 Swede Street 

 Norristown, PA 19401 

 Attorney for Appellees 

 

 OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 Appellants, Norman S. Marcus and Susan S. Marcus (the 

"Marcuses"), appeal an order entered by the United States 

District Court for the Eastern District of Pennsylvania staying 

their 42 U.S.C. § 1983 action for damages pending resolution of a 

state criminal action against them. The Marcuses argue that the 

stay of their federal court case is inappropriate because the 

state criminal action and the federal civil rights action are not 

parallel proceedings under Colorado River Water Conservation 

Dist. v. United States, 424 U.S. 800 (1976). We conclude that 

the stay order issued by the district court did not effectively 

terminate the federal court litigation and accordingly dismiss 

the Marcuses' appeal for want of jurisdiction. 
I. 

 In July 1987, the Marcuses purchased an undeveloped lot 

in the Township of Abington, Pennsylvania. The lot, Lot #37, was 

part of an area called "Pennock Woods," which was created 

pursuant to the "Subdivision Plan of Pennock Woods," dated June 

16, 1986, and last revised on July 9, 1986. The Subdivision Plan 

states the "[t]he majority of the tract is heavily wooded with 

mature trees," and that "[i]t is the intent of the developer to 

maintain and/or save the majority of the existing wooded area 

except along streets or where underground utility construction is 

required." App. 8-9. The Marcuses purchased Lot #37 "because it 

was undeveloped, in its natural wooded state, and because they 

desire[d] to live in the woods, in substantial compliance with 

the intent of the developers as set forth in the Subdivision Plan 

of Pennock Woods." App. 9. 

 On July 31, 1987, the Marcuses obtained a building 

permit from the Township to construct a home on Lot #37. Their 

permit application included a site plan which specified various 

grading and erosion control measures, including a provision to 

pave the driveway and to landscape all exposed areas. The 

Township approved the site plan. 

 In October 1990, the Township issued the Marcuses a 

temporary certificate of occupancy which required the Marcuses to 

satisfy the following conditions: (1) complete the driveway 

paving, (2) remove dead trees and dead wood from the lot, (3) 

patch cement in both fireplaces, and (4) complete grading and 

landscaping. The Marcuses, believing that the site plan grading 
and erosion control measures were intended only as temporary 

measures during construction of their home, opted to maintain 

their property in its natural wooded state. 

 The neighbors complained. Thereafter, Township 

Commissioner Barbara C. Ferrara cautioned the Marcuses that they 

were required to remove dead trees and logs from their property. 

After ignoring several extensions, the Marcuses received a 

letter, dated October 3, 1991, from P. Daniel Vollrath, the 

Township's senior code enforcement official, which advised the 

Marcuses that October 31, 1991 was the new deadline for complying 

with the conditional certificate of occupancy and the terms of 

their original site plan. In particular, the October 3 letter 

reminded the Marcuses that their site plan "shows that the 

driveway was intended to be paved and the entire site was either 

to be seeded or sodded," and warned them that if they remained in 

noncompliance they would be issued a criminal citation. App. 19. 

 The Marcuses did nothing. On May 19, 1992, the 

Township filed a criminal citation charging the Marcuses with 

failure to comply with Township ordinances requiring landscaping 

and compliance with approved site plans. The Marcuses then met 

with Township officials once again and were granted yet another 

extension, until June 30, 1992. Lawrence T. Matteo, Jr., the 

Township's superintendent of code enforcement, memorialized that 

meeting in a June 1, 1992 letter. Because Matteo's letter did 

not specifically require "seeding or sodding," the Marcuses did 

not perform that work. Nor did they complete agreed upon 

plantings. 
 A hearing was held on the criminal citation before a 

Pennsylvania district justice. The court ruled in favor of the 

Township on the charge that the Marcuses had failed to comply 

with the Township ordinances. The Marcuses appealed the district 

justice's decision to the Pennsylvania Court of Common Pleas. 

That appeal currently is pending. 

 On August 26, 1993, the Marcuses filed an action for 

damages in federal district court, pursuant to 42 U.S.C. § 1983, 

alleging that the Township, Vollrath, Matteo, and Ferrara, while 

acting under color of state law, violated their right to due 

process of law in that they "deliberately and arbitrarily abused 

government power" when they attempted to enforce the grading and 

erosion control provision because the "attempted enforcement 

[was] not supported in law or fact." App. 6. Further, the 

Marcuses charged the defendants with conspiring "to harass, 

intimidate, embarrass, annoy, abuse, and otherwise interfere with 

the [Marcuses'] liberty, privacy and due process protections." 

App. 13. With respect to Ferrara, the Marcuses alleged that she 

"interfered with the process by which the municipality enforced 

the provisions of building permits for her own political or 

personal reasons unrelated to the merits of the building permit, 

and the law." App. 12. Finally, the Marcuses alleged that as a 

"direct and proximate result of the acts of Defendants, 

Plaintiffs were deprived of due process of law, and were caused 

to suffer anxiety, mental suffering and humiliation, fright, and 

incurred attorney's fees to defend themselves against the illegal 

actions of Defendants." App. 12a. 
 The Township immediately filed a motion to stay or 

dismiss the federal action pending resolution of the Marcuses' 

state criminal court appeal. On December 23, 1993, the district 

court granted the Township's motion, and entered an order staying 

the Marcuses' § 1983 action pursuant to the "exceptional 

circumstances" doctrine announced by the Supreme Court in 

Colorado River. The Marcuses appeal the district court's order 

staying its federal court case. 

II. 

 Although the parties themselves have not raised the 

issue, we have an independent obligation to determine whether we 

have appellate jurisdiction under 28 U.S.C. § 1291 before we can 

review the merits of the Marcuses' appeal. Resolution Trust 

Corp. v. Pasquariello (In re Pasquariello), 16 F.3d 525, 528 (3d 

Cir. 1994). We conclude that the district court's order staying 

the Marcuses' federal court action was not a "final order" as 

contemplated by § 1291. Accordingly, we will dismiss the 

Marcuses' appeal for want of jurisdiction. 

A. 

 With exceptions not here relevant, courts of appeals 

have authority to review a district court's order only if that 

order is "final" within the meaning of 28 U.S.C. § 1291. Whether 

an order is "final" depends on its effect. Stay orders normally 

are not appealable final orders because they merely delay 

proceedings in the suit. Moses H. Cone Memorial Hosp. v. Mercury 
Constr. Corp., 460 U.S. 1, 10 n.11 (1983); Schall v. Joyce, 885 

F.2d 101, 104 (3d Cir. 1989); Cheyney State College Faculty v. 

Hufstedler, 703 F.2d 732, 735 (3d Cir. 1983); see also Hoots v. 

Pennsylvania, 587 F.2d 1340, 1346-47 (3d Cir. 1978) (noting that 

mere delay does not render an order final for purposes of 

appeal). Not all orders staying proceedings in a district court 

are unappealable, however. 

 The Supreme Court explored the difference between a 

stay from which an appeal will lie and normal stays in Moses H. 

Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983). 

It held that an order staying proceedings in the district court 

in deference to an on-going state proceeding dealing with the 

same subject matter was a final order within the meaning of 28 

U.S.C. § 1291. The Court so held because the stay permitted the 

state court to decide the sole issue in the federal case before 

the federal court reached it. Since the state court's 

determination would have to be given collateral effect in the 

federal case, the effect of "the stay [was] to require all or an 

essential part of the federal suit to be litigated in a state 

forum," 460 U.S. at 10 n.11, and the stay thus put the plaintiff 

"effectively out of federal court," id. at 9 n.8 (emphasis 

omitted). The Court held "that a stay order is final when the 

sole purpose and effect of the stay are precisely to surrender 

jurisdiction of a federal suit to a state court." Id. at 10 

n.11. The Court stressed, by way of contrast, that a stay is not 

final "merely because it may have the practical effect of 
allowing a state court to be the first to rule on a common 

issue." Id.1 

B. 

 Appellate review is inappropriate here because the stay 

entered by the district court merely delays the federal 

litigation and does not effectively terminate it. Unlike the 

situation in Moses H. Cone, the district court's stay will be 

lifted when the state criminal proceedings are concluded and the 

Marcuses will then receive the federal adjudication of their 

§ 1983 claim to which they are entitled. 

 The action pending in the state court is a criminal 

action; the parties are the Commonwealth of Pennsylvania and the 

Marcuses. The sole issues involved there are whether the 

Marcuses violated the ordinance and if so, what sanction should 

be imposed. The Marcuses could not, or at least did not, place 

their § 1983 claim before the court in that criminal proceeding 

by way of counterclaim. Moreover, the Marcuses did not ask the 

state court to adjudicate as a defense in the criminal case any 

 

1. We most recently recognized and applied this Moses H. Cone

distinction between appealable and nonappealable stay orders in 

Trent v. Dial Medical of Florida, Inc., ____ F.3d ____ (3d Cir. 

Aug. 12, 1994). We there held that an order having the effect of 

staying a federal proceeding was appealable because a "decision 

in [a parallel state proceeding would] constitute res judicata as 

to at least two major issues (duty and breach) in" the federal 

case, Trent, ____ F.3d ____, and the order would thus have 

required "all or an essential part of the federal suit to be 

litigated in a state forum." Moses H. Cone, 460 U.S. at 10 n.11. 
claim that the ordinance or the conduct of federal defendants was 

unconstitutional.2 

 The federal suit is a civil rights action for damages 

in which the Marcuses are the plaintiffs and the Township and 

various Township officials are the defendants. While the issue 

of whether the Marcuses violated the ordinance may become 

relevant in that case, the focus of the litigation is the conduct 

and the motivations of the Township officials. The issues will 

be whether these officials acted under color of state law, 

whether they were guilty of arbitrary and capricious conduct that 

deprived the Marcuses of a liberty or property interest, and if 

such a deprivation occurred, what amount of compensatory and/or 

punitive damages are appropriate under the circumstances. 

 Once the stay is lifted, the state court's disposition 

of the criminal proceeding will have a negligible impact on the 

subsequent federal adjudication.3 Because the causes of action 

 

2. The Marcuses advised the state court of their constitutional 

claims but solely for the purpose of attempting to reserve their 

right to subsequently litigate those claims in a federal forum. 

See England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 

411 (1964); Government & Civic Employees Org. Comm. v. Windsor, 

353 U.S. 364 (1957). 

3. It is possible that a recent Supreme Court decision, Heck v. 

Humphrey, ___ U.S. ___, 114 S. Ct. 2364, 129 L. Ed. 2d 383 

(1994), precludes the Marcuses from successfully prosecuting all 

or a part of their § 1983 claim unless they can show that their 

conviction has been overturned. If so, the stay issued in this 

case can only benefit the Marcuses' § 1983 case because it gives 

them the chance to seek a reversal of their state court criminal 

convictions before proceeding with their § 1983 claims. Thus, 

the possible impact of the state proceedings on the federal ones 

under Heck will not deprive the Marcuses of their right to a 

federal adjudication of their § 1983 claim. We emphasize, 
in the two proceedings are different, the criminal judgment will 

have no res judicata effect in the federal proceeding. Safeguard 

Mut. Ins. Co. v. Williams, 345 A.2d 664, 668 (Pa. 1975). Because 

the issues in the federal suit are different from those in the 

state case, neither side will be foreclosed by collateral 

estoppel with respect to the federal issues. The order from 

which the Marcuses appeal thus does not "surrender jurisdiction 

of a federal suit to a state court," Moses H. Cone, 460 U.S. at 

10 n.11; it does not require that "all or an essential part of 

the federal suit . . . be litigated in a state forum," id. 

Rather, the effect of that order on the Marcuses' federal case is 

delay, and delay alone. 

 The "'mere prospect of delay'" does not create 

appellate jurisdiction where it would not otherwise exist. Hoots 

v. Pennsylvania, 587 F.2d 1340, 1347 (3d Cir. 1978) (quoting 

Brace v. O'Neill, 587 F.2d 237, 243 n.27a (3d Cir. 1977)). For 

that reason, we have consistently held in circumstances similar 

to this that a stay order having only the effect of delay is not 

a final, appealable order. Rolo v. General Dev. Corp., 949 F.2d 

695, 700-02 (3d Cir. 1991);4 Gold v. Johns-Manville Sales Corp., 

(..continued) 

however, that we express no view on the applicability of Heck to 

this case. 

4. In Rolo, we held that an order staying a federal securities 

law case in light of on-going criminal and bankruptcy proceedings 

did not constitute a final order under the collateral-order 

doctrine announced in Cohen v. Beneficial Indus. Loan Corp., 337 

U.S. 541 (1949). Our analysis there supports a similar 

conclusion here. The courts of appeals which have addressed the 

issue agree that a stay order, in the absence of extraordinary 

circumstances, does not meet the requirements of the collateral-
723 F.2d 1068, 1072 (3d Cir. 1983) (absent extraordinary 

circumstances an order granting a stay is not appealable); Brace 

v. O'Neill, 567 F.2d 237, 244 n.29a (3d Cir. 1977) (same); Cotler 

v. Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537, 541 (3d 

Cir. 1975) (order staying proceedings in district court pending 

resolution of a state court suit with an overlapping factual 

background was not appealable); Arny v. Philadelphia Transp. Co., 

266 F.2d 869, 870 (3d Cir. 1959). 

C. 

 We realize, of course, that most stay orders entered 

upon the authority of Colorado River Water Conservation Dist. v. 

United States, 424 U.S. 800 (1976), are subject to immediate 

appellate review. As the Supreme Court pointed out in Moses H. 

Cone, the Colorado River doctrine applies only if there is 

parallel state court litigation involving the same parties and 

issues that will completely and finally resolve the issues 

between the parties and, accordingly, a "decision to invoke 

Colorado River necessarily contemplates that the federal court 

will have nothing further to do in resolving any substantive part 

of the [federal] case, whether it stays or dismisses." 460 U.S. 

at 28. In other words, because of the requirement of a parallel 

state court proceeding, stays entered under the authority of 

Colorado River will normally have the effect of putting the 

(..continued) 

order doctrine. See cases collected at 15A Charles A. Wright et 

al., Federal Practice and Procedure § 3914.13, at 731-33 

nn.3, 5 (1992). 
plaintiff "effectively out of federal court" and surrendering 

jurisdiction to the state tribunal. Moses H. Cone, 460 U.S. at 9 

n.8. 

 In this case, the district court cited Colorado River

in support of its decision to stay the proceedings before it. 

But our jurisdiction does not turn on the authority cited by the 

district court. It turns, rather, on the effect of the order 

that the district court has entered. If that order has deprived 

the federal plaintiff of a federal adjudication to which he or 

she may be entitled, it is a final order under Moses H. Cone and 

subject to immediate appellate review. If, as here, the order 

only serves to delay the federal adjudication, it is not final 

and not appealable.5

III. 

 We will dismiss this appeal for want of jurisdiction. 

 

5. Nor is the district court's order in this case reviewable 

under our mandamus jurisdiction. No one has suggested, and there 

is no reason to believe, that the federal adjudication will be 

unreasonably delayed by that order. See Cheyney, 703 F.2d at 

735, 737-38. 
Marcus v. Township of Abington, No. 94-1139 

GARTH, Circuit Judge, dissenting: 

 "It is the tradition of this court that the holding of 

a panel in a reported opinion is binding on subsequent panels. 

Thus, no subsequent panel overrules the holding in a published 

opinion of a previous panel. Court in banc consideration is 

required to do so." Third Circuit IOP 9.1. Unfortunately, in 

permitting a federal district court to decline the proper 

exercise of its jurisdiction by its holding that we lack 

appellate jurisdiction to consider the Marcuses' appeal, the 

majority has ignored this tradition, and overruled two of our 

established precedents. 

 In a recently filed opinion dealing with appellate 

jurisdiction and Colorado River abstention, we have held that 

appellate jurisdiction attaches even when the district court 

retains substantial and continuing supervision over a federal 

action. Trent v. Dial Medical of Florida, Inc., No. 92-2047, 

slip op. (3d Cir. August 12, 1994). Moreover, we have held, 

albeit in a somewhat different context, that "where . . . a 

dismissal of an appeal will have the practical effect of denying 

later appellate review of a district court's underlying order, 

the underlying order must be final, within the meaning of 28 

U.S.C. § 1291." Carr v. American Red Cross, 17 F.3d 671, 678 (3d 

Cir. 1994). We also held that "where a separable and final 
determination has been made by the district court, whether 

substantive or jurisdictional, which determination triggers a 

remand [to state court], we will review both the underlying final 

order and the remand order itself." Id. at 682-83. 

 Here, of course, we do not have a remand but, rather, a 

Colorado River abstention order that remits the proceedings to 

the state court. The principle, however, is the same. The 

district court cannot, by its order, deprive us of our review 

function. 

 Both of these decisions control the present case and 

lead to the inescapable conclusion that we have appellate 

jurisdiction over the Marcuses' appeal. By holding otherwise, 

the majority condones a conflict with Trent, ignores the conflict 

with Carr, and permits an erroneous Colorado River order to go 

uncorrected. The majority also discounts the fact that unless we 

review the district court's erroneous order at this time -- an 

order that even the majority must agree is erroneous (see Maj. 

Op. typescript at 8-10) -- it can never be reviewed or corrected 

by any appellate court whether state or federal. 

 I submit that a disposition leading to such an result 

should not be allowed. For that reason, I dissent. 

I 

 Although a stay order is not normally a final decision 

for purposes of § 1291, the Supreme Court held in Moses H. Cone 
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983), that 

a district court order granting a Colorado River stay order is 

immediately appealable where the district court judge intended to 

surrender federal jurisdiction to the state court so that "all or 

an essential part of the federal suit [will] be litigated in a 

state forum." Id. at 10 n.11. The Court noted in Moses H. Cone

that a district court's "grant[] of a Colorado River motion 

necessarily contemplates that the federal court will have nothing 

further to do in resolving any substantive part of the case 

. . . ." Id. at 28.6

A. 

 

6. Moses H. Cone involved a contractor's appeal from an 

order staying a federal suit to compel arbitration. When the 

order was entered, a suit was pending in state court that would 

by necessity resolve the issue of arbitration. Accordingly, the 

district court stayed the federal suit pending the resolution of 

the state court proceeding pursuant to Colorado River Water 

Conservation Dist. v. United States, 424 U.S. 800, 818 (1976). 

 The Supreme Court found the stay order was appealable 

either as a final order or as a collateral order. The stay was 

final because all or substantially all issues would be resolved 

in the state court. In so holding, the Court relied upon 

Idlewild Liquor Corp. v. Epstein, 370 U.S. 713 (1962), where the 

Court concluded that a stay entered pursuant to Railroad Comm'n 

v. Pullman Co., 312 U.S. 496 (1941), was final, even though that 

stay was "entered with the expectation that the federal 

litigation will resume in the event that the plaintiff does not 

obtain relief in the state court on state law grounds." Moses H. 

Cone, 460 U.S. at 10. The Court also found that the stay was an 

appealable collateral order because it satisfied all the factors 

of Cohen v. Beneficial Loan Corp., 377 U.S. 541 (1949). I 

discuss the collateral order doctrine and its application to the 

instant proceeding in section I.C. infra where I conclude, 

contrary to the majority, that the district court order here is 

reviewable as a collateral order. 
 The majority argues that, unlike the Colorado River

stay order in Moses H. Cone, the district court's Colorado River

stay order in the instant case "merely delays the federal 

litigation and does not effectively terminate it." Maj. Op. 

typescript at 8. In particular, the majority contends that the 

district court's action "does not require 'that all or an 

essential part of the federal suit . . . be litigated in a state 

forum,'" but "[r]ather the effect of that order on the Marcuses' 

federal case is delay and delay alone." Id. at 10. 

 How the majority can draw this conclusion from the 

district court's disposition is indeed as startling and misguided 

as it is wrong. The district court, in ordering a Colorado River

abstention, held (albeit erroneously) that the federal and state 

proceedings were sufficiently parallel so that the state court 

would resolve substantially all issues. As the Supreme Court 

explained in Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 

U.S. 271 (1988), once the district court has determined that the 

federal and state proceedings are parallel, the conclusion is 

inevitable that substantially all issues will be resolved in the 

state court. Id. at 278. Indeed, the district court recognized 

this when it stated that plaintiffs "may be required to expose 

their federal claims in state court." App. 45a. 

 Why else would the district court have abstained? Its 

"stay order" was little more than a procedural formality and in 

reality stayed nothing. The entire action was sent to the state 
court for resolution. Why then a stay order? The district court 

explained that "because the two proceedings are not strictly 

parallel, it is possible that the civil rights claim could remain 

for resolution at the conclusion of the state proceedings. See

Ingersoll-Rand Corp. v. Callison, 844 F.2d 133, 138 (3d Cir. 

1982)." App. at 50a. Callison however did not hold that we are 

precluded from reviewing an erroneous Colorado River abstention 

order where it is coupled with a stay.7 We can only surmise that 

the stay ordered in this case was no more than a "safety net" if, 

by chance, some aspect of the proceeding might return to the 

district court for adjudication. 

 As I have noted, and as my discussion of Colorado River

abstention in section II infra bears out, the district court 

erred by abstaining. On this point, I am satisfied that, had the 

majority reached the merits of the abstention issue, it would 

have agreed with me that abstention should not have been decreed. 

See Maj. Op. typescript at 8-9. 

 

7. Callison involved a Colorado River abstention order 

issued by the district court which was upheld by this Court. The 

district court in Callison however had dismissed the federal 

proceeding and we suggested that it should have stayed the 

federal proceeding. We did not address any issues of appellate 

jurisdiction. It is significant however that the district court 

may have relied upon Callison in entering its stay without 

appreciating the fact that it was at the same time incorrectly 

surrendering adjudication of all issues to the state court. In 

any event, Callison did not hold that, where an erroneous grant 

of Colorado River abstention occurred, a stay entered in 

conjunction with the erroneous abstention order should be denied 

review. 
 Contrary to the position espoused by the majority, I 

cannot conclude -- and our precedents do not support the 

conclusion -- that we are divested of jurisdiction to consider 

the Marcuses' appeal at this time. I suggest the majority's 

reasoning is seriously flawed. 

 The majority, without explicitly holding that the 

proceedings are not parallel, calls attention to the fact that 

the parties and the issues in the state and federal proceedings 

are different and hence implicitly not parallel. Maj. Op. 

typescript at 8-9. It concludes that issues will remain to be 

decided in the federal case after the state court proceeding has 

terminated. Therefore, it reasons that the stay order only 

delays the resolution of those issues and accordingly the order 

is not appealable. 

 However, this reasoning deprives us of jurisdiction 

over an appeal of a Colorado River abstention order when review 

is most needed. I cannot believe that Congress vested us with 

appellate jurisdiction to review Colorado River abstention/stay 

orders only in those cases where we conclude that the state and 

federal proceedings at issue are, in fact, parallel and, 

therefore, qualify for Colorado River abstention. It is a 

perverse result indeed if we are prohibited from reviewing only 

those Colorado River abstention rulings involving state and 

federal proceedings that are neither parallel, nor identical, and 
which are thus erroneous. Moses H. Cone obviously did not intend 

such a bizarre result. 

 My reading of Moses H. Cone draws support from our 

recent decision in Trent v. Dial Medical of Florida, Inc., No. 

92-2047, slip op. (3d Cir. August 12, 1994), a case in which we 

held that appellate jurisdiction vested despite an order 

retaining continuing supervision over the proceeding by the 

federal district court. 

 In Trent, the district court's order, though styled as 

a "dismissal," in fact retained control over the federal action: 

 The order provides that "the case is to 

remain in the status quo," "discovery and 

settlement discussion will continue in 

coordination with the action currently 

pending in [state court]." It also instructs 

the parties that the judge will be amenable 

to intervening if the parties ask him to do 

so, and that they should keep him "advised of 

the status of this case and the state court 

action." In the same vein, it provides that 

"[w]hen [the parties] are ready for trial or 

wish a settlement conference all that is 

necessary is to write directly to the court 

or set a telephone conference." Moreover, 

since entering the order, the district court 

judge has denied a motion to stay discovery 

pending this appeal, thus perhaps implying 

that he expects discovery to continue because 

the case is still pending. 

Trent, slip op at 7-8.8 Despite the retentive nature of the 

district court's stay order, we held that it was a final 

 

8. The order entered by the district court in Trent v. 

Dial Medical of Florida, No. 92-2047, slip op. (3d Cir. August 

12, 1994), reads as follows: 
appealable order because "the district court's order effectively 

prevents litigation of Trent's claims in federal court and 

requires him to abide by the state court decision . . . ." Id.

at 9. 

 In contrast to Trent, here the district court has 

severed all ties with the Marcuses' litigation. It has not 

maintained contact with, and it is not available to, the parties 

involved. The district court will not have an opportunity to 

revisit its Colorado River determination and its stay order. As 

(..continued) 

 The motion of Edwin Snead . . . to 

intervene as a party plaintiff is GRANTED. 

 The motion of plaintiff Earl Trent for 

class certification is DENIED without 

prejudice. 

 This suit is DISMISSED WITHOUT 

PREJUDICE. This case is to remain in status 

quo and the Statute of Limitations is tolled. 

 It is further understood that all 

discovery and settlement discussions will 

continue in coordination with the action 

currently pending in Delaware County Court of 

Common Pleas styled Snead v. Community 

Dialysis Center, Inc. . . . . If intervention 

by the court is needed or desired, the 

parties may ask for assistance by either 

filing the appropriate motions, writing to 

the court or setting a telephone conference. 

 The parties shall keep the court advised 

of the status of this case and the state 

court action. When they are ready for trial 

or wish a settlement conference all that is 

necessary is to write directly to the court 

or set a telephone conference. 
in Trent, "[i]t is clear that the district court judge expected 

that [the state proceedings] would resolve this case, at least in 

large part." Id. at 8. 

 In all respects, Trent presented a much more borderline 

set of circumstances than is presented in the instant case. Yet, 

in Trent, we held that finality attached. Id. at 9-10. A 

fortiori, we must reach the same the result here, if Trent is to 

be accorded due precedential effect. 

 The majority surprisingly does no more than give a 

passing nod to Trent in footnote 1 of its opinion. It seeks to 

explain away Trent by the following quotation: "We there held 

that an order having the effect of staying a federal proceeding 

was appealable because a 'decision in [a parallel state 

proceeding would] constitute res judicata as to at least two 

major issues (duty and breach) in' the federal case." Maj. Op. 

typescript at 8 n.1. This characterization ignores the fact that 

Trent rejected the same "delay" argument that the majority now 

employs in order to preclude review of the Marcuses' appeal. The 

appellee in Trent (like the majority) argued that the district 

court's order was merely intended "to afford the state court an 

opportunity to rule first on a common issue" as a matter of 

"docket control." Trent, slip op. at 7. Trent rejected this 

argument. Despite the fact that the district court in Trent

"recognize[d] that there may be some issues remaining after [the 

state proceeding] is disposed of" and despite its suggestion that 
"it might try the case whenever the parties (apparently jointly) 

seek a trial date," we found the order in Trent to be final and 

thus appealable. Id. at 9. We did so, because the stay in 

Trent, as the stay in the present case, "has the practical effect 

of a dismissal rather than merely delaying adjudication until 

completion of . . . state court proceedings." Id. 

 I cannot understand how Trent, our most recent 

expression of finality in a Colorado River context, can be so 

summarily dismissed unless, as I believe it to be, any further 

discussion would lead to the same finality determination reached 

in Trent. However, even if Trent had not been filed, thereby 

making it incumbent upon subsequent panels to follow its holding, 

Moses H. Cone, Carr and sheer logic dictate that our jurisdiction 

must attach. 

B. 

 If we do not review the district court's erroneous 

Colorado River ruling at this time, that ruling never will be 

subject to review by any court. Certainly the state court can 

not review the district court's abstention ruling. Nor will we 

be able to review the district court's stay order. The majority 

says that we cannot review it now and the issue as to whether or 

not the district court should have abstained, as well as the stay 

order, will be moot if the Marcuses' § 1983 action ever returns 
to federal court. Thus, the district court's order effectively 

will be unreviewable. 

 We have recently cautioned against just such a result, 

in a somewhat different context. In Carr v. American Red Cross, 

17 F.3d 671, 678-79 (3d Cir. 1994), we expressly held that a 

district court could not defeat appellate review of its own order 

dismissing the plaintiff's federal action by immediately 

remanding the parties to state court. Rather, we held that 

"where . . . a dismissal of an appeal will have the practical 

effect of denying later appellate review of a district court's 

underlying order, the underlying order must be final, within the 

meaning of 28 U.S.C. § 1291." Id. at 678. 

 Carr had brought an action in the Pennsylvania Court of 

Common Pleas against the American Red Cross and Osteopathic 

Medical Center, claiming that Osteopathic administered HIV 

infected blood that had been supplied by the American Red Cross. 

Osteopathic filed a cross claim against the Red Cross. Red Cross 

invoked its federal charter and removed the action to the United 

States District Court for the Eastern District of Pennsylvania. 

Carr, having settled his claim with the Red Cross, then sought to 

remand the proceeding to the Court of Common Pleas, contending 

that the district court no longer had jurisdiction as a result of 

the release from Red Cross. The district court granted Carr's 

motions to dismiss and to remand, reasoning that federal 

jurisdiction no longer existed. 
 We held that the district court's dismissal order would 

be effectively unreviewable on appeal from a final judgment and 

as a result its order being conclusive and collateral satisfied 

the collateral order doctrine. We also held that the dismissal 

of Osteopathic's appeal would have the effect of denying 

appellate review of the district court's underlying order and as 

a result appeal under § 1291 was appropriate. We pointed out 

that when the district court dismissed Red Cross from the action 

without reaching the merits of Osteopathic's cross claim, the 

dismissal order had in effect dismissed the cross claim. Hence, 

when the district court remanded the cause of action to the 

Common Pleas court without Red Cross as a party, all litigation 

concerning the cross claim had been terminated. We wrote: 

If we do not seize the opportunity to review the 

district court's dismissal order, that order will never 

be subject to review by any court, either state or 

federal. Given the unique circumstances before us, we 

conclude that such an order, even if it were not to be 

considered final as a collateral final order (which we 

hold that it is), would nonetheless, be final under 

§ 1291, and that our hearing an appeal from such an 

order is consistent with federal policy against 

piecemeal appeals. 

 Thus we hold that the district court could not 

defeat appellate review of its February 22 order of 

dismissal -- a final order within the meaning of § 1291 

-- by immediate remand of the present case to state 

court. 

Id. at 678-79. 

 In the present case, where the district court's stay 

order will defeat any and all appellate review of its Colorado 

River determination, we are compelled by precedent and reason to 
conclude that the stay order is final under § 1291 and, hence, 

immediately reviewable by us. In holding otherwise, the majority 

deliberately ignored our precedents. Indeed, it did not even 

acknowledge Carr's existence when it refused to review the 

district court's order. 

C. 

 Traditional "finality" analysis notwithstanding, the 

district court's order also is appealable as a collateral final 

order under Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949). 

For an order to come under Cohen's collateral order exception to 

§ 1291's finality requirement, the order "must conclusively 

determine the disputed question, resolve an important issue 

completely separate from the merits of the action, and be 

effectively unreviewable on appeal from a final judgment." 

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). 

 I conclude that this three-part test is satisfied for 

much the same reasons proffered by the Supreme Court in Moses H. 

Cone. 460 U.S. at 11-13. Here, the "conclusiveness" prong of 

the test is satisfied inasmuch as the district court will never 

again have an opportunity to revisit its Colorado River

determination, and its stay order. Cf. Gulfstream Aerospace 

Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988) (holding 

denial of Colorado River motion is not final because "a district 

court usually will expect to revisit and reassess an order 
denying a stay," whereas granting a Colorado River motion 

"necessarily implies an expectation that the state court will 

resolve the dispute"). Indeed, not only will the district court, 

in the present case, be unable to reconsider its stay order in 

the future, but, in addition, if that order is deemed "non-final" 

for purposes of review, the district court will have effectively 

precluded our review of the stay order, and its underlying 

abstention determination. 

 The second prong is satisfied because "[a]n order that 

amounts to a refusal to adjudicate the merits plainly presents an 

important issue separate from the merits." Moses H. Cone, 460 

U.S. at 12. Here, of course, the district court stay order 

precludes any adjudication of the merits of the Marcuses § 1983 

action in federal court. Finally, the third prong is satisfied 

because "this [stay] order would be entirely unreviewable if not 

appealed now," id., inasmuch as the abstention issue will be moot 

when and if ever the Marcuses' § 1983 action returns to federal 

court. 

 The majority seeks to bolster its conclusion that we 

cannot review the district court's order by referring to the 

appealability of a general stay order. (Maj. Op. typescript at 

10-11.) The majority cites five cases9 for the principle that a 

 

9.Rolo v. General Dev. Corp., 949 F.2d 695 (3d Cir. 1991); Gold 

v. Johns-Manville Sales Corp., 723 F.2d 1068 (3d Cir. 1983); 

Brace v. O'Neill, 567 F.2d 237 (3d Cir. 1977); and Cotler v. 

Inter-County Orthopaedic Ass'n, P.A., 526 F.2d 537 (3d Cir. 

1975); Arny v. Philadelphia Trans. Co., 266 F.2d 869, 870 (3d 

Cir. 1959). 
stay order, having only the effect of delay, is not a final, 

appealable order. I have no problem with that principle, except 

that it does not apply to the present appeal. First, none of the 

five cases which the majority cites involved Colorado River

abstention, whether correctly granted or not. Second, none of 

the cases involved the extraordinary circumstance of a district 

court insulating its own Colorado River abstention order (in this 

case erroneous) from review by combining its abstention 

determination with a stay order. Third, none of the five cases 

discusses the collateral order doctrine in the context presented 

here. Thus, the majority's reliance on those cases is misplaced 

as the analysis and reasoning of those authorities are 

inapplicable to the issue here. 

 Accordingly, even if the district court's stay order 

was not "final" within the meaning of 28 U.S.C. § 1291 -- which I 

would hold that it is -- the stay order is reviewable as a 

collateral final order. See Carr v. American Red Cross, 17 F.3d 

at 674-78. 

D. 

 In sum, I conclude that the district court's December 

23, 1993 order staying the Marcuses' § 1983 action for damages is 

a final order under Moses H. Cone Memorial Hosp. v. Mercury 

Constr. Corp., 460 U.S. 1 (1983), and Trent v. Dial Medical of 

Florida, Inc., No. 92-2047, slip op. (3d Cir. August 12, 1994). 
It is also an order that Carr v. American Red Cross, 17 F.3d 671 

(3d Cir. 1994), requires us to review at this time. 

Alternatively, it is a collateral final order under Cohen v. 

Beneficial Loan Corp., 337 U.S. 541 (1949). It follows then that 

we have jurisdiction to review the district court's 

abstention/stay order. As noted, two valid precedents of this 

Court -- Trent and Carr -- compel this result. 

 Because the district court's stay order, and its 

erroneous Colorado River determination upon which the stay was 

predicated, are so inextricably intertwined, the jurisdictional 

holding that I espouse requires additional discussion of the 

district court abstention ruling, even though the majority has 

declined to address that issue directly. The majority's 

reasoning suggests, as I have concluded, that because the 

elements of the Colorado River abstention doctrine are not 

present in this case, Colorado River abstention was not available 

for the district court to order. 

II 

 In Heritage Farms, Inc. v. Solebury Township, 671 F.2d 

743, 746 (3d Cir. 1982), we explained that "[a]bstention is a 

judicially created doctrine under which a federal court will 

decline to exercise its jurisdiction so that a state court or 

state agency will have the opportunity to decide the matters at 

issue." Nevertheless, the circumstances under which a federal 
court may abstain from granting certain types of relief, and to 

decline to exercise its jurisdiction, are severely limited. See

New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 359 

(1989).10

 As a general matter, "federal courts lack the authority 

to abstain from the exercise of jurisdiction that has been 

conferred," inasmuch as they have an "unflagging obligation" to 

decide cases within their jurisdiction. Id. at 358; see Deakins 

v. Monaghan, 484 U.S. 193, 203 (1988). "When a Federal court is 

properly appealed to in a case over which it has by law 

jurisdiction, it is its duty to take such jurisdiction . . . . 

The right of a party plaintiff to choose a Federal court where 

there is a choice cannot properly be denied." Willcox v. 

Consolidated Gas Co., 212 U.S. 19, 40 (1909) (citations omitted). 

Thus, it is well settled that "the pendency of an action in the 

state court is no bar to proceedings concerning the same matter 

in the Federal court having jurisdiction." McClellan v. Carland, 

217 U.S. 268, 282 (1910). Absent "exceptional circumstances," 

even the existence of a parallel state proceeding provides 

insufficient reason for a federal court to refuse to exercise 

jurisdiction with which it properly is vested. 

 

10. Judge Rosenn's recent opinion in Grode v. Mutual Fire, 

Marine & Inland Ins. Co., 8 F.3d 953 (3d Cir. 1993), briefly 

summarizes the history and elements of the available abstention 

doctrines, including Colorado River abstention. 
 On the other hand, in Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 818 (1976), and again in 

Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 

(1983), the Supreme Court held that a federal court may abstain 

from exercising jurisdiction in deference to a pending parallel 

state proceeding, based on considerations of "wise judicial 

administration, giving regard to conservation of judicial 

resources and comprehensive disposition of litigation." Colorado 

River, 424 U.S. at 817. 

 Colorado River abstention only applies, however, "in 

situations involving the contemporaneous exercise of concurrent 

jurisdiction . . . by state and federal courts." Id. That is, 

the federal and state court proceedings must be concurrent and 

duplicative for a federal court to consider abstaining pursuant 

to Colorado River. General Glass Indus. Corp. v. Monsour Medical 

Foundation, 973 F.2d 197, 199 (3d Cir. 1992). Those "[c]ases 

that are not truly duplicative do not invite Colorado River

deference." Trent v. Dial Medical of Florida, Inc., No. 92-2047, 

slip op. at 11 (3d Cir. August 12, 1994). 

 Even when the state and federal proceedings are 

parallel, the federal court may abstain only under "exceptional 

circumstances." Colorado River, 424 U.S at 818. In Colorado 

River, and then in Moses H. Cone, the Supreme Court weighed six 

factors in analyzing whether the requisite "exceptional 

circumstances" existed. Before an "exceptional circumstances" 
analysis is undertaken, however, the district court first must be 

satisfied that the state and federal proceedings are, in fact, 

parallel. 

 In the present case, the district court concluded that 

the state and federal proceedings, though not identical, were 

parallel. After analyzing the six Colorado River/Moses H. Cone

factors, the district court chose to abstain from exercising its 

jurisdiction. 

 The Marcuses argue on appeal, as they did before the 

district court, that the Colorado River doctrine is inapplicable 

to the present case because the federal and state proceedings are 

not parallel for purposes of Colorado River abstention. That is, 

they argue that: (1) the issues before the state and federal 

courts are different, as are the parties and the facts; (2) the 

state court action cannot afford them the relief they seek in 

federal court; and (3) the resolution of the state court action 

will not dispose of the issues pending before the federal court. 

I agree. 

A. 

 As in all cases in which we are asked to review a 

district court's decision to abstain, we must determine, as a 

threshold matter, "[w]hether this case falls in the range [of 

cases] within which a district court may exercise discretion [to 

abstain]," a question over which we exercise plenary review. 
Grode v. Mutual Fire, Marine & Inland Ins. Co., 8 F.3d 953, 957 

(3d Cir. 1993). That is, we must determine whether the state and 

federal proceedings at issue here are indeed parallel, inasmuch 

as Colorado River abstention is otherwise inapplicable. Trent, 

slip op. at 11-12 (recognizing that court must first determine 

whether state and federal proceedings are parallel). 

 Although federal and state actions need not be wholly 

identical in order for a district court to deem them "parallel," 

the two actions will not be deemed parallel unless they are 

substantially similar. Compare Caminiti and Iatarola v. Behnke 

Warehousing Inc., 962 F.2d 698, 701 (7th Cir. 1992) (holding 

slight difference in parties and issues is insufficient to 

destroy parallel nature of two proceedings where granting of 

relief requested in state court would dispose of all claims 

raised in federal action); Nakash v. Marciano, 882 F.2d 1411, 

1416-17 (9th Cir. 1989) (holding suits to be parallel where 

federal action is but a "spin-off" of more comprehensive state 

litigation) with University of Md. v. Peat Marwick Main & Co., 

923 F.2d 265, 276 n.16 (3d Cir. 1991) (noting that where federal 

claimant's claims are not subject to review in a state forum, 

there can be no "parallel" state court litigation on the basis of 

which a federal court could exercise Colorado River abstention). 
B. 

 The federal and state proceedings at issue here clearly 

are not "parallel" under Colorado River. As a general matter, a 

§ 1983 action may be brought in either a state or federal forum. 

Thus, conceivably, concurrent state and federal jurisdiction 

could exist over the Marcuses' damages claim. In the present 

case, however, the state action is criminal in nature and was 

initiated by the State of Pennsylvania in its criminal court. 

Pennsylvania law makes no provision by which the Marcuses could 

raise their § 1983 claim in a state criminal forum. See Hutchins 

v. Commonwealth, Pa. State Police Harrisburg, 604 A.2d 1130, 1131 

(Pa. Commw. 1992) (holding civil action cannot be joined to a 

criminal appeal). 

 As a consequence, the Pennsylvania criminal court is 

precluded from addressing any of the civil claims, or providing 

any of the remedies, that the Marcuses presently seek to have 

adjudicated in their federal proceeding.11 These deficiencies 

 

11. A difference in remedies is a factor counseling in 

favor of the denial of a motion to abstain even where the parties 

to both actions are virtually identical. New Beckley Mining 

Corp. v. International Union, UMWA, 946 F.2d 1072, 1074 (4th Cir. 

1991). 

 "The difference in remedies becomes more pronounced 

when one suit requires a jury and the other does not . . . ." 

Id. Here, the Marcuses have demanded that a jury decide the 

issues raised in their federal § 1983 action, and ask for an 

award of compensatory and punitive damages. In contrast, the 

state criminal action that the Marcuses presently are appealing 

was a non-jury proceeding before a district justice. The only 

relief they can hope to obtain in the state proceedings now is a 

reversal of their criminal conviction. 
are critical. Absent the state criminal court's exercise of 

concurrent jurisdiction over the Marcuses' § 1983 claim, the 

state proceedings -- the parties involved, the issues implicated, 

and the relief sought therein -- are wholly different from and, 

therefore, not substantially similar to, the federal proceedings 

initiated by the Marcuses. 

 First, the federal civil and state criminal actions 

clearly involve different parties. See, e.g., Baskin v. Bath Tp. 

Bd. of Zoning Appeals, 15 F.3d 569 (6th Cir. 1994).12 In the 

federal civil lawsuit, the Marcuses have sued the Township, 

Vollrath, Matteo, and Ferrara as defendants-appellees. In the 

state criminal action, the State of Pennsylvania is the moving 

party against the Marcuses. 

 

12. Like the present case, Baskin involved state and 

federal proceedings arising out of disputes related to township 

zoning variances. The Sixth Circuit reversed the district 

court's Colorado River abstention order, holding that the state 

and federal proceedings were not parallel: 

 The two actions arise out of the same basic 

facts, but they each contest a different 

aspect of the variance granted by the 

Township zoning board and they seek different 

relief. The state court action, in which 

Baskin intervened as a defendant, was brought 

by disgruntled homeowners against both the 

Township and the Board. The homeowners 

argued that the variance granted by the Board 

was excessive. The federal court action, 

however, was brought by Baskin against the 

Township and the Board. In this suit, Baskin 

argued that the variance was too restrictive. 

The homeowners were not parties to the 

federal case. 

15 F.3d at 572. 
 Second, while the state and federal actions may 

implicate some common factual issues insofar as the Marcuses' 

compliance or noncompliance with land use requirements is 

concerned, the Marcuses' federal claims raise additional factual 

questions concerning, among other things, the alleged acts and 

conspiracy by Township officials to "harass, intimidate, 

embarrass, annoy, [and] abuse" the Marcuses. 

 Quite simply, I cannot discern how the state criminal 

action, brought by the State of Pennsylvania against the 

Marcuses, will resolve the federal civil action, brought by the 

Marcuses against the Township and Township officials. 

Conversely, I do not see how the resolution of the Marcuses' 

federal § 1983 action will affect the state criminal proceeding. 

In contrast to Colorado River, where the issues to be decided by 

the state and federal forums were essentially the same,13 the two 

actions here differ in almost all respects. 

C. 

 Inasmuch as the state and federal proceedings are not 

sufficiently similar as to constitute parallel proceedings under 

Colorado River, in my opinion, the Marcuses' § 1983 claim does 

not even fall in the range of cases within which the district 

 

13. For example, in Colorado River, the Supreme Court held 

that the district court should abstain from entertaining an 

action brought by the United States government to settle water 

rights respecting the Colorado River when state proceedings to 

settle such rights were already underway in a state forum. 
court would be permitted to exercise its discretion to abstain. 

Consequently, I would not even address the district court's 

analysis of the Colorado River/Moses H. Cone factors to determine 

whether the district court abused its discretion in finding that 

"exceptional circumstances" existed which warranted its 

abstaining from exercising jurisdiction over the Marcuses' § 1983 

claim. See, e.g., Sheerbonnet, Ltd. v. American Express Bank, 

Ltd., 17 F.3d 46, 49 (2d Cir. 1994) (Pratt, J.), petition for 

cert. filed, 62 U.S.L.W. 3827 (May 27, 1994) (No. 93-1889); Fox 

v. Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994). In my view, 

the district court erred as a matter of law when it stayed the 

Marcuses' § 1983 action, relying on Colorado River abstention, 

and that error should be corrected on the Marcuses' appeal. 

III 

 In sum, I would hold that the district court's stay 

order was final for purposes of appellate review. Consequently, 

I would reach the merits of the Marcuses' appeal. Having 

considered the parties' arguments, I conclude that the district 

court's December 23, 1993 Colorado River stay order must be 

reversed on the basis that the state criminal proceeding against 

the Marcuses, and the Marcuses' § 1983 action against the 

Township, are not concurrent and parallel proceedings in which 

"substantially the same parties litigate substantially the same 

issues in different forums." New Beckley Mining Corp. v. 
International Union, UMWA, 946 F.2d at 1073 (4th Cir. 1991). 

 Because the majority dismisses the Marcuses' appeal by 

erroneously holding, in conflict with this court's precedents, 

that we have no jurisdiction to review an admittedly erroneous 

district court abstention ruling, I respectfully dissent.