text:
    Joseph CURRY, Appellant v. Brianne YACHERA, Individually as Trooper for the Pennsylvania State Police a/k/a Brianne Glad; Richard McClure, Individually and in His Official Capacity as Detective for the Exeter Township Police Department; Exeter Township, d/b/a Exeter Township Police Department; Kerrie Fichter, Individually and in Her Official Capacity as Asset Protection for Wal-Mart Stores, Inc. a/k/a Walmart; Walmart Stores Inc, aka WalMart; John Does 1-10; Walmart Stores East LP, aka WalMart
    No. 15-1692
    United States Court of Appeals, Third Circuit.
    Submitted Pursuant to Third Circuit LAR 34.1(a), December 10, 2015
    (Filed: September 1, 2016)

      Matthew B. Weisberg, Esq., 7 South Morton Avenue, Morton, PA 19070, Counsel for Appellant.
    Sheryl L. Brown, Esq., Michael P. Laf-fey, Esq., Siana Bellwoar & McAndrew, LLP, 941 Pottstown Pike, Suite 200, Ches-ter Springs, PA 19524, Counsel for Appel-lees Richard McClure and Exeter Township.
    Claudia M. Tesoro, Senior Deputy Attorney General, Office of Attorney General, 21 South 12th Street, Philadelphia, PA 19107, Counsel for Appellee Brianne Yach-era.
    Patrick J. McDonnell, Esq,, Karen L. Green, Esq., McDonnell ■ & Associates, P.C., 860 First Avenue, Suite 5B, King of Prussia, PA 19406, Counsel for Appellees Wal-Mart Stores, Inc., Kerrie Fichter, Wal-Mart Stores East.

      Before: FUENTES, CHAGARES, and GREENBERG, Circuit Judges.
   OPINION

CHAGARES, Circuit Judge.

Joseph Curry appeals the District Court’s order dismissing his complaint under Federal Rule of Civil Procedure 12(b)(6). Although we will affirm the District Court’s order with a modification, we do so with some reluctance. As we will discuss, the circumstances of this case appear to exemplify what can be described as a flaw in our system of justice — in particular, the inequity bail can create in criminal proceedings.

I.

In the fall of 2012, Curry read a newspaper article that stated there was an outstanding warrant for his arrest, related to a theft at a Wal-Mart store’ in Lower Macungie Township, Pennsylvania. Appendix (“App.”) 29. Wal-Mart security employee Kerrie Fitcher identified Curry. App. 30. Curry insists that he had never been in that Wal-Mart store. App. 30. Curry called the Wal-Mart store and spoke to a security employee, John Doe, who refused to review the store surveillance video. App. 30. Curry then called the Pennsylvania State Police and spoke to Trooper Brianne Yachera. App. 30. Yachera informed Curry that he was going to jail and that the courts would “figure it out.” App. 30.

On October 29, 2012, Curry was arrested and charged with (1) theft by deception and (2) conspiracy.- App. 30. Unable to afford bail, Curry was jailed. On November 14, 2012, while Curry was still in jail, he was charged with “theft by deception— false imprisonment” by Exeter Township Police Detective Richard McClure. App. 30. This charge was separate and apparently unrelated to the charges brought by Yachera. Two months later, McClure met Curry in prison, admitted Curry was innocent of the November 14 charges, apologized, and said he would do whatever he could to help. App. 31. In or about February 2013, McClure’s charges against Curry were dropped, but he remained in jail on the charges brought by Yachera. App. 31. Curry was told he would need to wait until September 2013 for the case to proceed. App. 31. During his imprisonment, Curry missed the birth of his child and lost his job. App. 31. Curry feared losing his home and motor vehicle. App. 31. He decided to plead nolo contendere to the remaining charges, theft by deception and conspiracy. App. 31. Following his plea, he was released and returned home. App. 31.

On September 12, 2014, Curry filed a lawsuit asserting claims of malicious prosecution, false arrest, and false imprisonment and seeking damages against Trooper Yachera, Detective McClure, Exeter Township, Kerrie Fitcher, John Does, and Wal-Mart. The claims were made pursuant to 42 U.S.C. § 1983, the Fourth Amendment, the Fourteenth Amendment, and state law. The defendants moved pursuant to Rule 12(b)(6) to dismiss the claims and the District Court granted the motion. App. 1-14.

The District Court determined that the constitutional claims against Yachera, Wal-Mart, John Does, and Fitcher must be dismissed because they were barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Next, the District Court held that the constitutional claims against McClure failed to state a cause of action primarily because McClure never “seized” Curry. After dismissing the federal claims, the District Court declined to exercise supplemental jurisdiction over the remaining state law claims. Curry timely appealed.

II.

The broader context of this matter is disturbing, as it shines a light on what has become a threat to equal justice under the law. That is, the problem of individuals posing little flight or public safety risk, who are detained in jail because they cannot afford the bail set for criminal charges that are often minor in nature. One recent report concluded that “[mjoney, or the lack thereof, is now the most important factor in determining whether someone is held in jail pretrial” and that “the majority of defendants cannot raise the money quickly or, in some cases, at all.” By way of example, in New York City in 2013, fifty-four percent of those jailed until their cases were resolved “remained in jail because they could not afford bail of $2,500 or less.” It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail. Further, those unable to pay who remain in jail may not have the “luxury” of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.

Consider plaintiff-appellant Joseph Curry’s alleged circumstances. The underlying Criminal Complaint charges that Curry collected items worth a total of $130.27 at a Wal-Mart and used a receipt found in the parking lot to return the items for cash. The maximum sentence he faced for each of the two misdemeanor charges against him was two years. His bail was set at $20,000.

Unable to post his bail, Curry was sent to jail and waited there for months for his case to proceed. While imprisoned, he missed the birth of his only child, lost his job, and feared losing his home and vehicle. Ultimately, he pled nolo contendere in order to return home. Curry has maintained his innocence throughout the criminal proceedings and the present matter. Nevertheless, as part of his nolo contende-re plea, Curry must pay restitution of $130.27 to Wal-Mart and the costs of prosecution. He was sentenced to probation for two years. Moreover, as discussed in Subsection IV(A) below, Curry’s nolo conten-dere plea operates as a procedural bar requiring dismissal of his malicious prosecution claim against all defendants except McClure. Thus, Curry’s inability to post bail deprived him not only of his freedom, but also of his ability to seek redress for the potentially unconstitutional prosecution that landed him in jail in the first place.

Regrettably, our system of justice is not perfect and Curry’s case appears to expose an unsettling imperfection. On this appeal, we can only consider whether Curry’s section 1983 claim was properly dismissed by the District Court. We do not criticize Pennsylvania authorities — particularly on the limited record before us. Further, while we highlight a problem in our system of justice, we cannot offer a complete solution — though we are aware of bail reform efforts under way. We hope those efforts will ensure equal justice under the law, regardless of an individual's ability to pay.

III.

The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a District Court’s decision to grant a Rule 12(b)(6) motion to dismiss. Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). We accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Id.

IV.

A.

Turning to the merits, we consider first whether the District Court erred in dismissing Curry’s section 1983 malicious prosecution claim against Yachera, and by extension, Wal-Mart, John Does, and Fitcher. We hold that the court did not err.

In Heck v. Humphrey, the Supreme Court determined that an action seeking damages for an unconstitutional malicious prosecution, conviction, or imprisonment under section 1983 is not cognizable if “a judgment in favor of the plaintiff would necessarily imply the invalidity of [a] conviction or sentence.” 512 U.S. at 487, 114 S.Ct. 2364. The Court’s opinion in Heck was animated by “concerns for finality and consistency,” id. at 485, 114 S.Ct. 2364, as well as “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions,” id. at 486, 114 S.Ct. 2364. Accordingly, under what we have termed Heck’s “favorable termination rule,” Bronowicz v. Allegheny Cty., 804 F.3d 338, 344-45 (3d Cir. 2015), a section 1983 action for damages must be dismissed unless there was no conviction or sentence or “the plaintiff can demonstrate that [a] conviction or sentence has already been invalidated,” Heck, 512 U.S. at 487, 114 S.Ct. 2364. If an action will not demonstrate the invalidity of the criminal judgment, it should proceed. Id.

Curry entered a nolo contendere plea for the charges brought by Yachera, and under Pennsylvania law, that plea must be treated the same as a conviction under Heck. See United States v. Poellnitz, 372 F.3d 562, 566 (3d Cir. 2004) (“[A] nolo plea is indisputably tantamount to a conviction.... ”). Even though Pennsylvania law does not treat a nolo contendere as an admission of guilt, it is “equivalent to a plea of guilty” and the defendant “consents to being punished as if he were guilty.” Id. at 568 (citing Commonwealth v. Gunter, 565 Pa. 79, 771 A.2d 767, 773 (2001) (quotation marks omitted)). A nolo contendere plea “ ‘cannot be used against the defendant' as an admission in any civil suit for the same act,’ ” but the judgment of conviction still follows from it, just like a plea of guilty. Id. (quoting Eisenberg v. Commonwealth, 512 Pa. 181, 516 A.2d 333, 335 (1986)). We have noted that even where the prosecution moves to dismiss criminal charges, there is no favorable termination if the dismissal was the result of a compromise, because this would not indicate “that the accused is actually innocent of the crimes charged.” Hilfirty v. Shipman, 91 F.3d 573, 580 (3d Cir. 1996); see generally Havens v. Johnson, 783 F.3d 776, 784 (10th Cir. 2015) (“[T]he Heck doctrine derives from the existence of a valid conviction, not the mechanism by which the conviction was obtained (such as admissions by the defendant), so it is irrelevant that Havens entered an Alford plea [maintaining his innocence].”); Ballard v. Burton, 444 F.3d 391, 397 (5th Cir. 2006) (“[W]e hold that a conviction based on an Alford plea can be used to impose Heck’s favorable termination rule.”). For purposes of Heck, Curry was convicted of the charges brought by Yachera.

The constitutional claims against Yach-era, and by extension Wal-Mart, John Does, and Fitcher, are precluded by Heck because their success would imply that his conviction was invalid. See 512 U.S. at 486-87, 114 S.Ct. 2364. Curry does not allege that his conviction was invalidated to satisfy the favorable termination rule. As a result, we hold that the District Court properly dismissed Curry’s constitutional claim of malicious prosecution against Yachera, and by extension, Wal-Mart, John Does, and Fitcher.

B.

We will correct one error by the District Court that the parties did not raise or address. The District Court dismissed Curry’s malicious prosecution claims against Yachera, WalMart, John Does, and Fitcher with prejudice because Curry could not prove a favorable termination of the criminal proceedings against him. In such circumstances, the statute of limitations begins to accrue when the termination of criminal proceedings becomes favorable; that is, when “the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.” Heck, 512 U.S. at 489, 114 S.Ct. 2364. Dismissal of these claims with prejudice, therefore, was in error. See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) (“Disposition of the case on Heck grounds ... warrants only dismissal without prejudice.”); White v. Gittens, 121 F.3d 803, 807 (1st Cir. 1997); Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996) (“When a § 1983 claim is dismissed under Heck, the dismissal should be without prejudice.”); Perez v. Sifel, 57 F.3d 503, 505 (7th Cir. 1995) (“[Bjecause appellant could renew these claims [barred by Heck] if he ever succeeds in overturning his conviction, dismissal without prejudice is appropriate.”); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“Although we affirm the district court’s order, we modify the order of dismissal to be without prejudice so that Schafer can refile his complaint should he succeed in challenging the legality of his continued confinement through appropriate state or federal remedies.”).

Accordingly, we will modify the order of dismissal regarding Curry’s malicious prosecution claims against Yachera, Wal-Mart, John Does, and Fitcher to reflect that these claims are dismissed without prejudice.

Y.

We next consider whether the District Court erred in dismissing Curry’s malicious prosecution claim against McClure. McClure’s charges related to involvement in a larger theft ring, while Yachera’s charges appear to relate to the specific theft at the Wal-Mart. App. 30-31. Heck does not apply to the claims against McClure because the nolo contendere plea only related to Yachera’s charges, not McClure’s.

To prove a Fourth Amendment malicious prosecution claim, a plaintiff must show: “(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007). The District Court dismissed the malicious prosecution claim against McClure because Curry could not meet the fifth element. We agree with that ruling.

Curry was already incarcerated on Yachera’s charges when McClure brought his charges against Curry. When McClure’s charges were dropped, Curry was still in jail. As a result, McClure never deprived Curry of his liberty “as a consequence of’ the charges McClure brought against Curry. Curry’s liberty had already been deprived. See United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013) (“Johnson is already incarcerated. His liberty is already deprived.... No new deprivation of liberty can be visited upon him....” (citation omitted)); Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir. 1998) (“[A] plaintiff asserting a malicious prosecution claim must show some deprivation of liberty consistent with the concept of seizure.” (quotation marks omitted)); Gravely v. Madden, 142 F.3d 345, 348 (6th Cir. 1998) (“The Fourth Amendment is not triggered anew [when a person] has already been ‘seized’.... ”); United States v. Sutton, 607 F.2d 220, 222 (8th Cir. 1979) (“[A]ppellant was already confined; he had been legally deprived of his liberty and was in the custody of the State of Missouri. Therefore, no interruption of his ‘liberty’ occurred.”); Turner v. Schultz, 130 F.Supp.2d 1216, 1225 (D. Colo. 2001) (noting the lack of any support for the proposition “that an already lawfully incarcerated prisoner is seized for Fourth Amendment purposes when he is charged with an additional crime.”).

McClure simply never deprived Curry of his liberty as a consequence of his (McClure’s) charges. Therefore, the District Court properly dismissed the Fourth Amendment malicious prosecution claim against McClure.

VI.

For the foregoing reasons, we will affirm the District Court’s order of dismissal in all respects except that we will modify the order regarding Curry’s malicious prosecution claims against Yachera, Wal-Mart, John Does, and Fitcher to reflect that these claims are dismissed without prejudice.

      . The following facts come from Curry's First Amended Complaint and are assumed to be true for purposes of this appeal.

      . Even though Curry pursues an action against "John Does 1-10,” only a single John Doe appears in the "Operative Facts” section of his complaint. App 29-30.

      .As the District Court noted, Curry named both "Walmart Stores, a.k.a. WalMart” and "WalMart Stores East, L.P. a.k.a. WalMart.” App. 3. We will collectively refer to these entities as "Wal-Mart.”

      . Ram Subramanian, et al., Vera Institute of Justice, Incarceration’s Front Door: The Misuse of Jails in America, 32 (Feb. 2015).

      . Id. (citing New York Criminal Justice Agency, New York Criminal Justice Agency Annual Report 30 (2013)).

      . In the popular media, there has been much recent attention to the plight of poor defendants who are imprisoned because they cannot pay their bail, despite posing little flight or public safety risk. See, e.g., Nick Pinto, The Bail Trap, N.Y. Times Magazine, Aug. 13, 2015, http://www.nytimes.com/2015/08/16/ magazine/the-bail-trap.html; Shaila Dewan, When Bail Is Out of Defendant's Reach, Other Costs Mount, N.Y. Times, June 10, 2015, http://www.nytimes.eom/2015/06/l 1/us/when-bail-is-out-of-defendants-reach-other-costs-mount.html; Sadhbh Walshe, America's Bail System: One Law for the Rich, Another for the Poor, The Guardian, Feb. 14, 2013, http:// www.theguardian.com/commentisfree/2013/ feb/14/america-bail-system-law-rich-poor; Aly-sia Santo, The Marshall Project, When Freedom Isn’t Free, Feb. 23, 2015, https://www. themarshallproject.org/2015/02/23/buying-time; Robert Lewis, No Bail Money Keeps Poor People Behind Bars, WNYC News, Sept. 19, 2013, http://www.wnyc.org/story/bail-keeps-poor-people-behind-bars/.

      . Curry was charged with theft by deception, pursuant to 18 Pa. Cons. Stat. § 3922(a)(1), a misdemeanor of the second degree. He was also charged with criminal conspiracy to promote the theft by deception with a co-conspirator, pursuant to 18 Pa. Cons. Stat. § 903(a)(1), also a misdemeanor of the second degree. The theft was a misdemeanor of the second degree because the amount involved was $50 or more but less than $200. 18 Pa. Cons. Stat. § 3903(a)-(c). The sentence for misdemeanors of the second degree cannot be more than two years. 18 Pa. Cons. Stat. § 1104(2).

      . This Court requested records from the Court of Common Pleas of Lehigh County. But those records did not include any transcript or specific materials from the bail hearing. As a result of this lack of information, we will not question why bail was set at $20,000.

      . See Jessica Masulli Reyes, Will Delaware End Cash Bail?, The News Journal, Nov. 8, 2015; Tricia L. Nadolny, With City's Jails Jammed, Kenney is Latest to Mull Bail Reform, Phila. Inquirer, July 15, 2015, http:// articles.philly.com/2015-07-15/news/6445 4460_l_prison-population-bail-reform-over crowded-prisons; Robert Lewis and Cindy Rodriguez, New Bail Alternative Means Freedom for Thousands, WNYC News, July 8, 2015, http://www.wnyc.org/story/no-more-bail-non-violent-offenders/?utm_people-behind-bars/; Brent Johnson, State Supreme Court Chief Touts N.J.'s ''Significant” Bail Reform, N.J. Advance Media, May 15, 2015, http://www.nj.com/politics/index.ssf/2015/05/ nj_supreme_court_chielLjustice.html.

      .Curry does not separately challenge the District Court's dismissal of his false imprisonment and false arrest claims or his state law claims against the defendants. Therefore, we will only focus on his malicious prosecution claims brought under section 1983.

      . Curry appears to argue that because he was not in custody at the time of this action, his section 1983 claim should be allowed to proceed. This appeal appears to be the first time Curry has raised this argument. This argument is therefore forfeited. Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006) ("Absent exceptional circumstances, this Court will not consider issues raised for the first time on appeal.”). Even if we were to consider this argument, we have previously rejected it. See Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006).

      . There is no legal basis for Curry's argument that Heck cannot be raised at the motion to dismiss stage. Indeed, in Heck itself the Supreme Court affirmed the Court of Appeals for the Seventh Circuit’s affirmance of a dismissal at the motion to dismiss stage. See Heck v. Humphrey, 997 F.2d 355, 359 (7th Cir. 1993), aff'd, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Similarly, we have affirmed a dismissal at the motion to dismiss stage under Heck before. See, e.g., Williams, 453 F.3d at 177.

      . The deprivation of liberty element of a malicious prosecution claim is required when raising a claim under the Fourth Amendment, as appears to be the case with Curry's complaint. Johnson, 477 F.3d at 82 n.8; App. 33.

      . Curry argues that the District Court went beyond the allegations of the complaint when it found that McClure did not seize Curry because he was already incarcerated. But the complaint clearly indicates that Curry was already incarcerated when McClure charged him. App. 30. This argument, therefore, is meritless.

      . Our holding does not necessarily mean that a plaintiff can never suffer a "deprivation of liberty consistent with the concept of a seizure” when already incarcerated. See Johnson, 477 F.3d at 82. Curry has not alleged any facts that he was seized by McClure. We leave open the possibility that a set of facts could exist where an already imprisoned plaintiff can demonstrate a seizure sufficient for a malicious prosecution claim. See Gallo, 161 F.3d at 222 (holding that a plaintiff was seized for purposes of a Fourth Amendment malicious prosecution claim because he had to post a $10,000 bond, attend all court hearings, was required to contact Pretrial Services on a weekly basis, and was prohibited from travelling outside the states of New Jersey and Pennsylvania).


source: Caselaw Access Project

author: McKEE, Chief Judge

license: Public Domain

text:
    Jeffrey DEPOLO, Appellant v. BOARD OF SUPERVISORS TREDYFFRIN TOWNSHIP; Michael C. Heaberg; Kristen K. Mayock; Paul Olson; Evelyn Richter; John P. Dibuonaventuro; Mark Freed; Murph Wysocki, In their capacities as members of the Board of Supervisors of Tredyffrin Township; Tredyffrin Township Zoning Hearing Board Of Appeals; Arnold Borish; Daniel McLaughlin; NEILL KLING, in their capacities as members of the Zoning Heard Board of Appeals of Tredyffrin Township Schuylkill Township; Paul Adack; Patricia Adack; Mark Samuels; Kimberly Samuels; George Randolph; Suzanne Randolph (Intervenors in D.C.)
    No. 15-2495
    United States Court of Appeals, Third Circuit.
    Argued January 12, 2016
    (Opinion filed: August 30, 2016)

      Robert B. Famiglio, Esq., Famiglio & Associates, P.O. Box 1999, Media, PA 19063, Fred Hopengarten, Esq. (ARGUED), 6 Willarch Road, Lincoln, MA 01773, Counsel for Appellant
    Maureen M. McBride, Esq. (ARGUED), Lamb McErlane, 24 East Market Street, P.O. Box 565, West Chester, PA 19381, Counsel for Appellee Tredyffrin Township Board of Supervisors, et al
    Stacey L. Fuller, Esq., John Larkin, Esq. (ARGUED), Gawthrop Greenwood, 17 East Gay Street, Suite 100, West Ches-ter, PA 19381, Counsel for Appellee Tre-dyffrin Township Zoning Hearing Board of Appeals, et al
    Patricia Adack [Pro Se], Paul Adack [Pro Se], 1235 Horseshoe Trail, Phoenix-ville, PA 19460
    Suzanne Randolph [Pro Se], 1245 Horseshoe Trail, Valley Forge, PA 19481
    Kimberly Samuels [Pro Se], Mark Sam-uels [Pro Se], 1255 Horseshoe Trail, Phoe-nixville, PA 19460
    George B. Randolph, III, Esq. [Pro Se], Riley Riper Hollín & Colagreco, 717 Constitution Drive, Eagleview Corporate Center, P.O. Box 1265, Exton, PA 19341
    William J. Brennan, Esq., Butera Beau-sang Cohen & Brennan, 630 Freedom Business Center, Suite 212, King of Prussia, PA 19406, Counsel for Intervenor Township of Schuylkill
    Christopher D. Imlay, Esq., Booth Frer-et & Imlay, 14356 Cape May Road, Silver Spring, MD 20904, Counsel Amicus Appellant, American Radio Relay League, Inc.
    Before: McKEE, Chief Judge, AMBRO, and SCIRICA, Circuit Judges
   OPINION OF THE COURT

McKEE, Chief Judge

This appeal arises from a land use dispute between Jeffrey DePolo, a federally licensed amateur or “ham” radio enthusiast, and the Township of Tredyffrin (“Township”). DePolo attempted to have the Township’s Zoning Hearing Board of Appeals (“ZHBA”) approve a 180-foot radio antenna tower on his property so that he could communicate with other ham radio operators around the world. The property is surrounded by mountains or hills, and he claimed a shorter tower would not allow him to reliably communicate with other ham radio operators. The ZHBA denied permission for a 180-foot tower, but agreed to a tower that was 65-feet tall. The ZHBA viewed that intermediate height as a reasonable accommodation under the applicable zoning ordinance.

DePolo did not appeal that decision to the Chester Court of Common Pleas as is allowed under state law. Instead, he filed this suit in the U.S. District Court for the Eastern District of Pennsylvania. He claims that the Township’s zoning ordinance, which prohibited any building taller than 35-feet, is preempted as enacted and as applied under the applicable federal regulation, 47 C.F.R. § 97.15(b), and the closely related FCC declaratory ruling, known as PRB-1. The District Court granted motions to dismiss by the Township’s Board of Supervisors (“BOS”) and the ZHBA based upon its conclusion that the 65-foot variance offered by the ZHBA was a reasonable accommodation. The District Court also concluded that the Township’s zoning ordinance was not preempted by PRB-1.

For the reasons that follow, we conclude that DePolo’s failure to appeal the ZHBA’s determination to state court rendered the decision final and that, given the unique procedural history of this case, we must afford the ZHBA’s final judgment the same preclusive effect that it would have had in state court. It is therefore not reviewable in this suit.

I.

This dispute results from the frequent tension arising from local land use regulations. Local municipalities enact zoning ordinances to ensure the health, safety and general welfare of those residing within the municipality by regulating activities within the municipality. This typically involves creating various districts within the municipality and then regulating the use of the land and building type within those districts. The land use regulations also usually provide that one or more administrative agencies of the local municipality are the appropriate forum for resolving disputes arising from these regulations. Accordingly, local governments are usually responsible for establishing mechanisms and processes to reconcile the competing interests of landowners and their neighbors. This is typically done through zoning ordinances, which are administered by a zoning officer and enforced by a quasi-judicial state administrative agency known as a zoning hearing board.

Amateur radio operators, or “hams,” often find that zoning ordinances inhibit the use of their own land by limiting the size of permitted radio towers to an extent that precludes all (or nearly all) amateur communications. Hams have an interest in maintaining successful amateur communications and in sustaining a strong network of radio amateurs. Concomitantly, the towers that are necessary for reliable radio communication may impede the scenic view of neighbors, pedestrians or drivers. Moreover, concerns that such towers could fall onto nearby residences could theoretically decrease property values.

However, disputes such as the one at the center of this appeal affect more than local interests because the federal government also has an interest in preserving amateur radio communications. Hams who broadcast using these towers afford the federal government reliable emergency preparedness, national security, and disaster relief communications. Therefore, federal interests are furthered when local land use regulations do not unduly restrict the construction of these towers. The result is a “perfect storm” for conflict because there is a direct correlation between a ham’s antenna height and an ability to properly transmit signals. The Federal Communications Commission (“FCC”) regulation 47 C.F.R. § 97.15(b) concerns amateur radio service. The applicable portion of the FCC’s regulation explains that:

Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state .or local authority’s legitimate purpose. See PRB-1, 101 FCC 2d 952 (1985) for details.)

As indicated by the language of this regulation, the FCC ruling, PRB-1, must be examined to obtain a more complete understanding of the regulation’s application.

The FCC issued PRB-1 in 1985 in an attempt “to strike a balance between the federal interest in promoting amateur operations and the legitimate interests of local governments in regulating local zoning matters.” Indeed, this ruling weighs local government, federal government, and amateur radio operator interests, and has a limited, rather than complete, federal preemptive effect on local zoning ordinances. Thus, a zoning ordinance is preempted when a local municipality fails to apply the land use regulation in a manner that reasonably accommodates amateur communications. The federal courts that have interpreted PRB-1 have upheld this preemptive effect.

In publishing PRB-1, the FCC did not specify a minimum height below which local governments must allow for radio towers. Rather, as the FCC has explained, PRB-1 provides that “local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority’s legitimate purpose.”

Notwithstanding PRB-l’s somewhat vague language, several principles emerge. First, local municipalities must reasonably accommodate amateur communications. Second, zoning ordinances should be the minimum practicable restrictions which accomplish the local municipalities’ legitimate purposes. Third, local municipalities may not ban all amateur communications towers. Finally, the FCC has explicitly declined to regulate the specific permissible heights for antenna towers.

II.

DePolo’s property is an R1/2 residential zoning district. On November 25, 2013, DePolo submitted an application to the Township zoning officer requesting a building permit to construct a 180-foot tower on his property. His application was denied by the zoning officer who concluded that Section 208-18(G) of the zoning ordinance limited structures in the R& Residence Zoning District to 35-feet. Notwithstanding that restriction, however, the zoning officer offered DePolo a permit to construct a 65-foot tower. DePolo rejected this proposal and appealed the denial of his application to the ZHBA.

His appeal was accompanied by a variance application in which he asked the ZHBA to allow him to engage in an activity that was otherwise prohibited by the zoning ordinance. DePolo’s variance application, if granted, would have allowed him to erect a tower that exceeded the height restriction in the ordinance. The ZHBA held hearings over a total of five days between March and June 2014. During those hearings, DePolo offered expert reports and testimony to support his contention that the zoning officer erred in refusing to issue the requested permit. He offered the testimony to support his claim that, because of the surrounding topography, he needed an antenna tower of 180-feet to be able to ensure reliable radio communications.

At the conclusion of the hearings, on October 23, 2014, the ZHBA granted De-Polo a variance for a 65-foot tower, even though he withdrew his application for a variance prior to the conclusion of the ZHBA hearing. The ZHBA concluded that DePolo’s proposed 180-foot tower was “not compatible” with the surrounding residential neighborhood and would create an adverse visual impact on the neighborhood. The ZHBA also concluded that the tower’s “height, mass, and latticework design” was “of a type universally associated with ... a factory area or industrialized complex” and posed a safety hazard to neighboring properties because its fall radius extended well into those properties. While acknowledging that the PRB-1 still gave local municipalities authority to regulate the height of structures, the ZHBA noted that the municipality may forbid the construction and installation of antennas that are associated with those found in a factory area or an industrialized complex. The ZHBA also noted that a 180-foot tower greatly exceeds the height of the residences in the area. The ZHBA explained its rejection of DePolo’s preemption claim as follows:

Regardless, where the height limitations of the Zoning Ordinance are not absolute and can, by the very language of the Zoning Ordinance and the Pennsylvania Municipalities Planning Code, be varied or modified, they cannot be considered absolute or unvarying. Therefore, § 208-18.G of the Zoning Ordinance is not invalid.

Rather than appeal that decision to the Chester County Court of Common Pleas as provided under the state regulatory scheme, DePolo filed this suit in federal court. He now claims that the ZHBA’s 65-foot variance and the zoning ordinance’s fixed and firm height restriction of 35-feet, as enacted and as applied, was preempted by PRB-1.

The BOS and the ZHBA moved to dismiss DePolo’s suit for failure to state a claim. The District Court agreed and granted the motions. It held that the Township’s proposed 65-foot variance was a valid and reasonable accommodation for DePolo’s 180-foot tower request and held that the Township’s local zoning ordinance was not preempted by PRB-1. The Dis-Met Court was also troubled by DePolo’s insistence that a 180-foot tower was necessary to satisfy the FCC’s reasonable accommodation requirements, and exhorted the “parties to work together to arrive at a satisfactory solution.” No such solution was achieved. This appeal followed.

III.

We have jurisdiction pursuant to 28 U.S.C. § 1291. A District Court’s dismissal of a complaint under Rule 12(b)(6) is reviewed de novo. Accordingly, we assume the truth of the factual allegations and draw every reasonable inference in favor of DePolo. We have yet to consider the effect of PRB-1 on local land use disputes. Moreover, this is the first time in the 30-year history of PRB-1 that a District Court has dismissed a preemption claim under § 97.15(b) pursuant to Fed. R. Civ. P. 12(b)(6).

Although we have not decided a PRB-1 preemption claim, we touched upon it in Izzo v. Borough of River Edge, 843 F.2d 765 (3d Cir. 1988). There, an amateur radio operator brought action against the Borough of River Edge, its zoning officer, and members of the planning board, challenging the legality of the prohibition of a 40-foot transmission tower. The United States District Court for the District of New Jersey abstained under Burfod v. Sun Oil Co., and we held that abstention was improper. We explained that abstention was unnecessary because land use regulation was not so technical that it required the District Court to enmesh itself in a highly specialized local regulatory scheme. Although DePolo suggests that we should decide this case on the merits and hold that a 12(b)(6) dismissal is simply not appropriate here, the procedural posture of this case precludes our review of the merits of his claims.

We have explained that “in determining whether a litigant has been given a ‘full and fair’ opportunity to litigate a claim, we must take into account the possibility of appellate review” because a full and fair opportunity to litigate “includes the possibility of a chain of appellate review.” The ZHBA is a state administrative agency acting in a quasi-judicial capacity. It resolved this dispute by issuing a written determination containing final findings of fact and conclusions of law. While DePolo was aggrieved by the ZHBA’s decision limiting the variance to 65-feet, he had adequate opportunity to litigate the matter beyond the ZHBA by appealing to the appropriate Court of Common Pleas within thirty days of the ZHBA’s decision. Rather than do that, DePolo filed this suit in the District Court, and allowed the thirty-day appeal period under state law to expire. This was fatal to his ability to obtain federal review of his claim. De-Polo actually withdrew his request for a variance before the ZHBA and then failed to challenge its factual findings or legal conclusions in the forum provided under state law. He is therefore now bound by the final judgment of the ZHBA. Its ruling is a final judgment on the merits that is entitled to preclusive effect in federal court. Accordingly, we will dismiss this appeal.

      . For a comprehensive background and explanation of local land use law and zoning, see Gerald S. Dickinson, Inclusionary Eminent Domain, 45 Loy. U. Chi. L.J. 854-55 (2014) (explaining that ‘'[a]s land was acquired and redeveloped in the suburbs, local officials and zoning boards made decisions to regulate and control the land density in accordance with desired local health, safety and welfare standards ... The land could be zoned for purposes of single-family or multifamily residential housing, commercial property or light industrial.”).

      . Robert S. Ryan, Pennsylvania Zoning Law and Practice, § 1.2.2. (noting that the zoning hearing board reviews appeals from the municipal zoning officer’s denial of permits, hears requests for special exceptions and variances, and may declare a zoning provision invalid).

      . Pentel v. City of Mendota Heights, 13 F.3d 1261, 1263 (8th Cir. 1994).

      . 47 CFR§ 97.15(e).

      . PRB-1 ¶ 22.

      . See, e.g., Evans v. Bd. of Cnty. Comm’rs of Cnty. of Boulder, 994 F.2d 755, 760-61 (10th Cir. 1993); Thernes v. City of Lakeside Park, 779 F.2d 1187, 1188-89 (6th Cir.1986) (per curiam); Williams v. City of Columbia, 906 F.2d 994, 998 (4th Cir. 1990); Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th Cir. 1991); Pentel, 13 F.3d 1261.

      . PRB-1, 101 FCC 2d 952, 960 Fed.Reg. (1985).

      . Tredyffrin Zoning Ordinance, § 208-18, 19(G). § 208-113. “Area, bulk and height regulations relating to dwellings: The height of any building shall not exceed 35 feet.”

      . While landowners are ordinarily not permitted to violate perfectly valid land use regulations, the variance is a necessary legal mechanism to respond to imperfect topographical conditions that the ordinance does not adequately address. A variance in Pennsylvania, where DePolo’s claim arises, is usually granted if the landowner establishes by evidence that (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) that the property can be conformed for a permitted use only at a prohibitive expense; or (3) that the property has no value for any purpose permitted by the zoning ordinance. Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998).

      .Robert S. Ryan, Pennsylvania Zoning Law and Practice, § 1.2.1.

      . In the Matter of Modification and Clarification of Policies and Procedures Governing Siting and Maintenance of Amateur Radio Antennas and Support Structures, and Amendment of Section 97.15 of the Commission's Rules Governing the Amateur Radio Service, 15 F.C.C.R 22151, 22154 (F.C.C. 2000).

      . The ZHBA stated that "to the extent that the Zoning Officer did not have the authority to grant a permit for a tower 65 feet in height, the Zoning Hearing Board does have such authority and hereby grants said permit for a 65 ft. tower.”

      . Pentel, 13 F.3d at 1266.

      . Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).

      . 319 U.S. 315, 334, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (rather than a federal court becoming enmeshed in an intricate state regulatory scheme, "equitable discretion of the federal courts should be exercised to give [the state] courts the first opportunity to consider it[ ]” because "sound respect for the independence of state action requires the federal equity court to stay its hand.”).

      . Crossroads Cogeneration Corp. v. Orange & Rockland Utils., Inc., 159 F.3d 129, 137 (3rd Cir. 1998).

      . 53 Pa.C.S. § 11002-A ("All appeals from all land use decisions ... shall be taken to the court of common pleas of the judicial district wherein the land is located.”); See also Dickinson, Inclusionary Eminent Domain 873 (discussing the appeal process, noting that a developer or landowner whose permit or variance request is denied may appeal the local zoning board’s decision in state court.).

      . We acknowledge that this decision leaves amateur radio enthusiasts with limited avenues into federal court. DePolo could have appealed the ZHBA's decision and stayed the matter in state court, while his federal claims were resolved. That would have allowed the District Court to narrowly address the question of preemption. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 285 (3d Cir. 2004); See, e.g., MacMillan v. City of Rocky River, 748 F.Supp. 1241, 1244 (N.D.Ohio 1990) (radio-operator plaintiff appealed zoning board decision, secured slay, and filed federal complaint to resolve preemption-claim); Chedester v. Town of Whately, 279 F.Supp.2d 53 (2003)(amateur radio enthusiast brought suit in both state and federal court simultaneously and District Court decided to wait until the state court had ruled). Alternatively, the FCC has enforcement powers, conferring jurisdiction on the District Courts of the United States "upon application of the Attorney General of the United States at the request of the Commission, alleging a failure to comply with or a violation of any of the provisions.” 47 U.S.C. § 401.

      . Ridley Sch. Dist. v. M.R., 680 F.3d 260, 283 (3d Cir. 2012).

      . Id. See Crossroads Cogeneration Corp., 159 F.3d at 135 (noting that "factual findings of state agencies should be given the same pre-elusive effect they would be accorded in the courts of that state. ”)(citing University of Tennessee v. Elliott, 478 U.S. 788, 797, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986)); Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3rd Cir.1993) ("Decisions of state administrative agencies that have been reviewed by state courts are ... given preclusive effect in federal courts."); Caver v. City of Trenton, 420 F.3d 243, 259 (3d Cir.2005).