                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 09-2036
                                     ______________

                         CHARLES FROSS; M. DOE; D. DOE;
                       SHAWN CZERWIEN; CHARLES METER;
                             CHRISTOPHER HAIGH
                                      v.

                               COUNTY OF ALLEGHENY,

                                                               Appellant
                                     ______________

                      On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civ. No. 2-08-cv-01405)
                      Honorable Gary L. Lancaster, District Judge
                                     ______________

                                Argued December 16, 2009

            BEFORE: SLOVITER, JORDAN, and GREENBERG, Circuit Judges

                                 (Filed: July 19, 2011)
                                   ______________
Donald Driscoll (argued)
PA Institutional Law Project
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219

Witold J. Walczak
American Civil Liberties Union of Pennsylvania
313 Atwood Street
Pittsburgh, PA 15213

Edwin J. Strassburger
Strassburger, McKenna, Gulnick & Gefsky
Suite 2200, Four Gateway Center
444 Liberty Avenue
Pittsburgh, PA 15222

  Attorneys for Appellees

George M. Janocsko
Assistant County Solicitor
Caroline P. Libenguth
Assistant County Solicitor
Craig E. Maravich (argued)
Assistant County Solicitor
Michael H. Wojcik
County Solicitor
Office of Allegheny County
Law Department
445 Fort Pitt Boulevard
300 Fort Pitt Commons Building
Pittsburgh, PA 15219

  Attorneys for Appellant

Andrew A. Chirls
Matthew A. Fry
Haines & Associates
1835 Market Street
Suite 2420
Philadelphia, PA 19103

  Attorneys for Amicus
  Curiae Association for The
  Treatment of Sexual Abusers
                                   ______________

                            OPINION OF THE COURT
                                ______________

GREENBERG, Circuit Judge.
                                  I. INTRODUCTION


                                         2
       This matter comes on before this Court on an appeal brought by Allegheny

County, Pennsylvania, from an order entered in the District Court on March 20, 2009,

granting summary judgment to the six appellees, each of whom had been convicted of

committing a sex offense requiring registration as a sex offender under Pennsylvania=s

Megan=s Law, in this action in which appellees challenged the validity of Allegheny

County Ordinance, No. 39-07-OR, entitled AResidence Requirements, Registered Sex

Offenders,@ on various federal grounds and the state law ground that Pennsylvania law

preempts the ordinance. The ordinance limits the places where sex offenders can reside

within the County by precluding them from residing within 2,500 feet of child care

facilities, community centers, public parks, recreation facilities, or schools. The District

Court held that the ordinance conflicts with Pennsylvania statutory law establishing a

statewide system for supervising sex offenders following their release from prison. Thus,

the Court held that state law preempted the ordinance and it did not decide the federal

questions. Fross v. County of Allegheny, 612 F. Supp. 2d 651 (W.D. Pa. 2009).

Consequently, under the District Court=s opinion and order, the ordinance is not

enforceable.

       Following the entry of the summary judgment, the County advised appellees that it

intended to appeal. Consequently, appellees sought and obtained an order on April 2,

2009, from the District Court permitting it to file an application for counsel fees and costs




                                              3
within 30 days of the exhaustion of all appeals. 1 The County then appealed. The District

Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367 and we have jurisdiction

under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s order, see

Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009), subject, however,

to the binding effect of the opinion of the Supreme Court of Pennsylvania that we

describe below.

          After having read the briefs and submissions of the parties, considering their oral

arguments, and reviewing applicable Pennsylvania law, we concluded that the appeal

raised important and unresolved questions of the enforceability of county and local

ordinances restricting the places at which sex offenders may reside within jurisdictions

adopting such ordinances. We also concluded that the case, though dealing with an

ordinance effective in only one county, was of state-wide importance inasmuch as other

counties and municipalities might adopt similar ordinances, particularly if the County

prevailed on this appeal. Furthermore, we concluded that even though we had

jurisdiction to decide the appeal, we could not issue an opinion that would be binding on

courts throughout Pennsylvania but that it was important that such an opinion be

rendered. We recognized, however, that the Supreme Court of Pennsylvania could issue

an opinion that would be binding on a state-wide basis. Accordingly, we certified the

question of whether Pennsylvania law preempts the ordinance to the Supreme Court of


1
    That order did not affect the finality of the order of March 20, 2009, for appeal purposes.

                                                4
Pennsylvania pursuant to the certification procedure outlined in this Court=s Local

Appellate Rule Misc. 110 and Internal Operating Procedure 10.9 and the Supreme Court

of Pennsylvania=s Internal Operating Procedure Rule 10 and requested that the Supreme

Court of Pennsylvania grant the petition for certification. In particular, we certified the

question to the Supreme Court in the following form:

       Is Allegheny County Ordinance No. 39-07-01 entitled ‘Residence
       Requirements; Registered Sex Offenders’ preempted by Pennsylvania
       statutory law and the procedures of the Pennsylvania Board of Probation
       and Parole?

At that time, notwithstanding the certification, we retained jurisdiction of the appeal

pending resolution of our petition. On June 3, 2010, the Supreme Court granted the

petition for certification and thus we have continued to retain jurisdiction over the appeal

without deciding it.

       On May 25, 2011, the Supreme Court of Pennsylvania answered the certified

question in an opinion which, after a comprehensive review of Pennsylvania law,

concluded as follows:

       The County’s legislative effort in this instance undermines the General
       Assembly’s policies of rehabilitation, reintegration, and diversion from
       prison of appropriate offenders, and significantly interferes with the
       operation of the Sentencing and Parole Codes. For these reasons, we agree
       with the federal district court that the County’s Ordinance stands as an
       obstacle to accomplishing the full purposes [and] objectives of the General
       Assembly and is, therefore, preempted.

Fross v. County of Allegheny, 20 A.3d 1193, ____ (Pa. 2011).


See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717 (1988).
                                              5
         When we received the Supreme Court opinion our Clerk directed the parties to file

letter briefs commenting on the effect of the Supreme Court’s decision. The parties have

filed those briefs and are in agreement that the Supreme Court’s decision should lead us

to affirm the District Court’s decision and order of March 20, 2009, and we agree with

them on this point. Furthermore, the parties agree that we can remand the issue of

appellees’ request for attorneys’ fees and costs for the proceedings in the District Court to

that Court for resolution, though appellees contend that alternatively we could retain

jurisdiction over the attorneys’ fees and costs issue and decide it ourselves. We reject

appellees’ alternative suggestion because the District Court is more familiar than are we

with the proceedings in that Court and thus it should pass on the attorneys’ fees and cost

issues in the proceedings before it.

         For the foregoing reasons we will affirm the order of March 20, 2009, and will

remand the case to the District Court for resolution of the attorneys’ fees and costs issues

for the proceedings in that Court. We, however, will tax costs against the County in this

Court.




                                              6
