Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2003

Timoney v. Upper Merion Twp
Precedential or Non-Precedential: Non-Precedential

Docket 02-2096




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Recommended Citation
"Timoney v. Upper Merion Twp" (2003). 2003 Decisions. Paper 529.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/529


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                                                         NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        ____________

                       No: 02-2096/2228
                        ____________

     THOMAS J. TIMONEY, ESQUIRE, As Receiver for the
           HANKIN FAMILY PARTNERSHIP;
     REALEN VALLEY FORGE GREENES ASSOCIATES,
                         Appellants (No. 02-2096)

                                  v.

              UPPER MERION TOW NSHIP;
THE BOARD OF SUPERVISORS OF UPPER MERION TOW NSHIP;
 THE UPPER MERION TOWNSHIP ZONING HEARING BOARD


     THOMAS J. TIMONEY, ESQUIRE, As Receiver for the
           HANKIN FAMILY PARTNERSHIP;
     REALEN VALLEY FORGE GREENES ASSOCIATES


                                  v.

              UPPER MERION TOW NSHIP;
THE BOARD OF SUPERVISORS OF UPPER MERION TOW NSHIP;
 THE UPPER MERION TOWNSHIP ZONING HEARING BOARD,

                                Appellants ( No: 02-2228)




          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
             (D.C. Civil Action No. 01-cv-01622)
           District Judge: Honorable James T. Giles
                    ____________________
                       Submitted Under Third Circuit LAR 34.1(a)
                                  on March 7, 2003

                Before:ROTH, BARRY AND FUENTES, Circuit Judges

                              (Opinion filed: May 27, 2003)



                                      OPINION




ROTH, Circuit Judge:

       This action arises from a dispute over zoning of undeveloped land in Upper

Merion Township, Pennsylvania. Appellant landowners, the Hankin Family Partnership

and Realen Valley Forge Greenes Associates, seek damages and injunctive relief pursuant

to 42 U.S.C. § 1983 from Upper Merion Township, its Board of Supervisors, and its

Zoning Hearing Board, for frustrating appellants’ repeated attempts to rezone their

agricultural property for commercial development. 1 The property has been operated as a

golf course since the 1920s, and the Hankin Family Partnership began its requests for

rezoning in 1967.

       Realen formally challenged the agricultural zoning of the property in 1997. The

Zoning Board rejected the challenge in 1999, and a state court appeal followed. The

Zoning Board’s decision was affirmed by the Court of Common Pleas on December 1,

2000. Realen subsequently appealed to the Commonwealth Court of Pennsylvania.



   1
    Thomas J. Timoney, Esquire, is the appointed receiver for the Hankin Family
Partnership.
Hankin then petitioned for the appointment of a Board of View with the Court of

Common Pleas, seeking compensation for inverse condemnation.

       While these state actions were pending, both appellant landowners filed a

complaint in the District Court of the Eastern District of Pennsylvania, alleging equal

protection and substantive and procedural due process violations as well as unjust takings

claims.2 On June 8, 2001, appellees moved to dismiss the case under Fed. R. Civil P.

12(b)(6) on grounds including res judicata and collateral estoppel. In the alternative,

Appellees requested, under Younger v. Harris, 

(1971) and Railroad Comm’n

of Texas v. Pullman Co., 

(1941), that the District Court abstain from

judicial action in the case pending the disposition of related state court actions, so as not

to interfere with the state court litigation or decide uncertain issues of state law. On

March 22, 2002, the District Court denied the 12(b)(6) motion and sua sponte granted a

stay of the case pursuant to the abstention doctrine of Colorado River Water Conservation

Dist. v. United States, 

(1976), pending the disposition of the state court

proceedings.

       On April 25, 2002, the landowners timely appealed, requesting review of the

District Court’s abstention under Colorado River. Appellants allege that the District

Court erred in determining that the federal and state court actions are parallel proceedings

warranting abstention and that the court abused its discretion in abstaining from judicial


   2
    On June 4, 2002, the Commonwealth Court affirmed the Court of Common Pleas
with regard to Realen’s claims. On July 3, 2002, Realen filed a Petition for Allowance of
Appeal with the Supreme Court of Pennsylvania.
decision-making because the case did not rise to the level of exceptional circumstances

required by Colorado River. On May 3, 2002, the Township timely cross-appealed the

District Court’s denial of its motion to dismiss. Appellants subsequently filed a motion to

dismiss the cross-appeal for lack of appellate jurisdiction, on the ground that review of

the ruling on interlocutory issues would be an improper exercise of pendent party

jurisdiction.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3),

since this civil action alleges a violation of due process under the Civil Rights Act, 42

U.S.C. § 1983. We have jurisdiction to review the District Court’s March 22, 2002 order

under both 28 U.S.C. § 1291, as the order is final and appealable, and the collateral order

doctrine, which allows appellate review of an order staying a federal action under

Colorado River. Quackenbush v. Allstate Ins. Co., 

, 712-13 (1996)

(“[U]nlike other stay orders, which might readily be reconsidered by the district court,

abstention-based stay orders of this [Colorado River] ilk are ‘conclusive’ because they are

the practical equivalent of an order dismissing the case.”).

       In addressing the merits of this case, we must conduct a de novo review of the

District Court’s finding that the concurrent federal and state court proceedings are

“parallel.” Ryan v. Johnson, 

, 196 (3d Cir. 1997). If the proceedings are not

parallel, abstention is inappropriate. If the proceedings are parallel, we must determine

whether the District Court abused its discretion in concluding that the present case

involved “exceptional circumstances” under Colorado River, allowing abstention. 

and state proceedings in this case are parallel. Cases are parallel if

they involve the same parties and “substantially identical” claims, raising “nearly

identical allegations and issues”. Trent v. Dial Med. of Fla., Inc., 

, 223 (3d

Cir. 1994) (overruled in part on other grounds). Appellants allege that the District Court

erred by finding that the §1983 claims before it and the Land Use Appeal and State

Takings Action were “duplicative,” rather than “parallel.” Appellants’ Br. at 15.

Regardless of the language used by the District Court, we agree that the same parties and

underlying claims about land use and just compensation are involved.

       It is not clear, however, whether the present case involved “exceptional

circumstances” under Colorado River, warranting abstention. The relevant factors that

the District Court must consider with regard to the exceptional circumstance inquiry are:

              (1) which court first assumed jurisdiction over property; (2) the
              inconvenience of the federal forum; (3) the desirability of avoiding
              piecemeal litigation; (4) the order in which jurisdiction was obtained; (5)
              whether federal or state law controls; and (6) whether the state court will
              adequately protect the interests of the parties.

Spring City Corp. v. American Bldgs. Co., 

, 171 (3d Cir. 1999). The District

Court addressed summarily at best only three of the six factors, and thus improvidently

granted Colorado River abstention. Hankin Family Partnership v. Upper Merion

Township, No. 01-1622, 

, at *1, 29-31 (E.D. Pa. Mar. 22,

2002) (discussing piecemeal litigation; the order in which jurisdiction was obtained; and

confusion over the effect of federal factual determinations on issues unresolved in state

court, vaguely implicating the question of whether federal or state law controls).
       We will vacate the District Court’s March 22, 2002 order staying the action and

remand this matter to the District Court for adequate consideration under the elements of

Colorado River. Appellees’ cross-appeal is dismissed for lack of appellate jurisdiction, as

it is not necessary to ensure meaningful review of an appealable order, nor does it

otherwise compel exercise of pendent jurisdiction. See E.I. Dupont de Nemours and Co.

v. Rhone Poulenc Fiber and Resins Assocs., 

, 203 (3d Cir. 2001).




TO THE CLERK:

       Please file the foregoing Opinion.




                                            By the Court,




                                              /s/ Jane R. Roth
                                                       Circuit Judge