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


6-10-2003

Walker v. Flitton
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3864




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Recommended Citation
"Walker v. Flitton" (2003). 2003 Decisions. Paper 467.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/467


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                                                  NOT PRECEDENTIAL
                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 02-3864




                     MICHAEL WALKER; ERNIE HEFFNER;
                   JEFFERSON MEMORIAL FUNERAL HOME;
                              BETTY FREY,
                                           Appellants

                                          v.

        JODI FLITTON; JOSEPH A. FLUEHR, III; ANDREW MAMARY;
      JANICE MANNAL; GARY L. MORRISON; MICHAEL D. MORRISON;
               DONALD J. MURPHY; JAMES O. PINKERTON




                     Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 01-cv-02252)
                     District Judge: Honorable John E. Jones, III


                     Submitted Under Third Circuit LAR 34.1(a)
                                 April 24, 2003

        Before: SCIRICA*, Chief Judge, AM BRO and GARTH, Circuit Judges

                            (Opinion filed: June 10, 2003)


                                     OPINION

________________________

*Judge Scirica commenced his term as Chief Judge on May 4, 2003.
AM BRO, Circuit Judge

       This case involves a dispute about the extent to which the Pennsylvania State

Board of Funeral Directors can regulate the sale of future funeral services to the living

(known as pre-need funeral services). Appellants filed a civil rights action in federal

court accusing the Board of violating their First Amendm ent rights because of its

resolution (and decisions interpreting that resolution) holding in effect that only licensed

funeral directors may provide those services. The District Court dismissed the action

under the Rooker-Feldman1 doctrine, reasoning that reaching the merits of appellants’

claims would require it to revisit a final order of the Pennsylvania state court. Because

appellants were not a party to the state court decision to which the District Court referred,

we conclude that the Rooker-Feldman doctrine does not apply, and we reverse.

       1.     Facts and Procedural History

       The Board issued a resolution stating, in essence, that giving information about

prices or describing the funeral services or tangible item s available from any specific

funeral home for the funeral services of a person then-living constitutes the practice of



   1
    According to the Rooker-Feldman doctrine, only the United States Supreme Court has
jurisdiction to review a state-court decision. In Rooker v. Fidelity Trust Co., 263 U.S.
413, 416 (1923), the Supreme Court, in reviewing an attempt to seek relief from a state-
court judgm ent, stated that “no court of the United States other than this court could
entertain a proceeding to reverse or modify the [state-court] judgment.” In District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983), the Supreme Court
reaffirmed that “the United States District Court is without authority to review final
determinations of the District of Columbia Court of Appeals in judicial proceedings.”

                                              2
funeral directing. Subsequently, the Board found two individuals, Faye Morey and

Andrew D. Ferguson, guilty of the unauthorized practice of funeral directing as a result of

their involvement in the types of activities described in this resolution. The

Commonwealth Court affirmed those adjudications in Ferguson v. Pennsylvania State Bd.

of Funeral Directors, 768 A.2d 393 (Pa. Commw. Ct. 2001). None of the appellants in

this action was a party to those proceedings.

       Appellants Walker (a licensed insurance agent who sells funeral insurance), Frey

(an em ployee of Preneed, a company that sells funeral item s and financial packages to

finance funeral services to living persons), Heffner (a licensed funeral director who sells

pre-need funeral services financed by Preneed), and Jefferson Memorial Funeral Home (a

licensed funeral home that sells pre-need funeral services that are funded by policies sold

by Walker) filed suit against the members of the Pennsylvania Board in District Court

alleging violations of their rights to commercial speech under the First Amendment. The

District Court granted the defendants’ motion to dismiss for lack of subject matter

jurisdiction, concluding that, because the Commonwealth Court had adjudicated the

constitutional claims asserted by appellants in Ferguson, 768 A.2d 393, this suit was

barred by the Rooker-Feldman doctrine. Because “Pennsylvania courts have already

adjudicated the identical issue presented in this case,” the District Court concluded that

“[p]laintiffs are seeking to have us serve as a de facto appellate court to review the

reasoned judgment of the Commonwealth Court on an issue designed for that Court’s


                                                3
interpretation.” This appeal followed. 2

       It is well-settled in our Circuit that “Rooker-Feldman does not bar individual

constitutional claims by persons not parties to earlier state court litigation.” FOCUS v.

Allegheny County Ct. of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996) (quoting

Valenti v. Mitchell, 962 F.2d 288, 298 (3d Cir. 1992)); see also 18B Charles Alan Wright

et al., Federal Practice and Procedure § 4469.1 (2d ed. 2002) (“An important parallel to

preclusion doctrine is found in the rule that [the] Rooker-Feldman doctrine does not

defeat federal jurisdiction when a nonparty brings the action, even though [the] decision

may involve matters inextricably intertwined with a state judgm ent.”) (emphasis added).

Indeed, defendants “recognize that this Circuit has applied a blanket rule that Rooker-

Feldman does not apply to third parties.” (Appellee’s Br. at 9.) As appellants in this case

were not parties to Ferguson, it was error for the District Court to grant defendants’

motion to dismiss under the Rooker-Feldman doctrine.

       Defendants urge that “because many courts have held differently and applied

Rooker-Feldman to nonparties,” we should “reconsider [our] position.” (Appellee’s Br.

at 9.) (citing Lemonds v. St. Louis Cty., 222 F.3d 488, 494-96 (8th Cir. 2000)). Our

internal operating procedures provide that a panel must follow our Court's precedent,

which may only be overturned by the Court sitting en banc. Internal Operating


   2
    We have jurisdiction to review the District Court’s order dismissing the action
pursuant to 28 U.S.C. § 1291. Our review of a dismissal for lack of subject matter
jurisdiction is plenary. Gulla v. North Strabane Twp., 146 F.3d 168, 171 (3d Cir. 1998).

                                             4
Procedures § 9.1. To the extent that defendants wish to persuade us to reconsider our

judgments in FOCUS and Valenti, those arguments are more appropriately addressed to

the Court via a petition for rehearing en banc.

       Accordingly, we reverse the decision of the District Court dismissing the case for

lack of subject matter jurisdiction, and remand for further proceedings consistent with this

opinion.




TO THE CLERK:

       Please file the foregoing Opinion.




                                            By the Court,




                                            /s/Thomas L. Ambro
                                            Circuit Judge




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