Appendix — Allen v. Pittenger

Supreme Court brief1977

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ILEQD

JUL 18 1977

MICHAEL REDAK, JR. CLERK

in the Supreme Court of the

Ynjted States

ove wz 101

DAVID J. ALLEN and VINETTA MAE ALLEN, his wife,

suing in their own right and as parents and natural

guardians of LEASA MAE MOXLEY, TAMELL ESTELLE

MOXLEY, WANDA GAYLE ALLEN and EDWINA MIRIAM

MOXLEY, minors,

KARL CUNNINGHAM and JOAN CUNNINGHAM, his

wife, suing in their own right and as parents and natural

guardians of DOUGLAS KARL CUNNINGHAM, DIANE

MARIE CUNNINGHAM —_= — KAY CUNNINGHAM,

WILBERT MOORE and PHYLLIS MOORE, his wife, suing

in their own right and as parents and natural guardians

of SUSAN PAULA MOORE, LINDA JANE MOORE, minors,

JOHN H. WHITE and NORMA WHITE, his wife, suing in

their own right and as parents and natural guardians of

NATALIE WHITE and STEPHANIE WHITE, minors,

WILLIAM VISS and CHARLOTTE VISS, his wife, suing in

their own — and as parents and natural guardians of

STANLEY SS, CAROL VISS and JONATHAN VISS,

minors,

Petitioners

vs.

JOHN C. PITTENGER, Secretary of Education; GRACE

SLOAN, Treasurer; ISRAEL PACKELL, Attorney General;

of the Commonwealth of Pennsylvania

HAROLD MARTIN, STEVEN RHODES, ROBERT VEON,

HARRY FRY, RONALD STURM, PETER DeCARO, BOB

HAGEN, JOHN RUKAS and DOM CASEY and their suc-

cessors in office, Directors of Big Beaver Falls Area

School -

LeROY STEWART, ROBERT CAUGHNER, DAVID

GROPP, AMELIA FUSCO, ROBERT AMALIA, ROBERT

BERNHARDY, WILLIAM LIEBERMAN, WILLIAM G.

DANNELS and BILLIE WALLACE and their successors

in office, Directors of Blackhawk Schoo! District

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

REX DOWNIE, JR.,

Attorney for Petitioners

714 14th Street,

Beaver Falls, Pennsylvania 15010

412—846-3870

LAE TL EA SED

Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

A i a eo w*

TPES Grr es mort)

TABLE OF CONTENTS

SE: UTE Ss o'0-0.0-6 0 06.906 6604046660 068660 savceetees

Complaint in Equity for Injunctive and Declaratory

URES ed6hes b.bnebaaed $b00e 6 éuetesucoeauce “e

Petition for Leave To Amend Complaint..............

DE easadesguanes aie Pundeeceesecccctedtecesss

Order of Court, April 23, 1976............. béekdien

Motion To Dismiss of Defendants John C. Pittenger,

Secretary of Education; Grace Sloan, Treasurer;

Israel Packel, Attorney General; of the Common-

wealth of Pennsylvania........eceeeecees Laies

Motion To Dismiss of Defendants Big Beaver Falls -

School Directors and Blackhawk School Directors

Opinion, Court of Appeals ......... . Wetasan ane yee

TE POIs 6 ob ds wees c's 0 b-006606 0% ceili 5

Judgment, Court of Appeals...... Genecceeesennacases

Opinion of District Court in Prior Suit............

e464 ak 650 bb rks 4440 0460008 TTT TE seecewne

Statutes Involved:

24 Purdon's Statutes:

ET PME c6csecnunces cececeedieans jose

SD BOM cecedcnecss jungeegeet jie deen

8 8 PPE P TTT TTTTTTTTeT TT Tr rr Tr Te

Section 6--652........ bo ceesenseavene onaeed

Oey GPs 6.00.0.4550004444656065 04 dS

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PO CPOE de dackeviovevecderctddweseese

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Page

15a

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55a

oe,

| GaVIO J, ARLEM and VINETTA mc ALEW, | | y

his wife, suing in thelr own right and, Ds

e¢ parents sad asture! guardiens of, > -—

LEASA WAE MOMAEY, TAMELL ESTELLE MOxLEY,7

WANBA GAYLE ALLEN & EDWINA HIRIAN pert, ainors

KARL CURMIINGHAM & JOAN CUKWIINGHAH, his wife,

suing In their am right and as.parents end

naturel guardians of DOUGLAS KARL CUNNINGHAM 6

KAREN KAY CUMNINGHAM, minors

WILBERT MOORE gad PHYLLIS MOORE, his wife, suing In

their aun right and as perents and natural

guardians of SUSAN PAULA MOORE, LINDA JANE MOORE,

minors

Deshet. Rntrtes. 4s

345 3 175 [1309 |10}30/ 75/3 | “eo |) Seay 9 i

= - _ ss ee

- PLAINTIFFS c wen y BEFENDANTS

; v

JOKM C. PITTEMGER, Secretary of Ed

tiom; GRACE -GAGAN, Treasurer; ISA

PACKEL, Attorney General; Commome

of Pa; end

WARDLD MARTIN, STEVEN AHODES, aoe

VEOu? WARRY FRY, BOWALD STRUM, PC)

DECARO, BOS~HAGEN, JOHN AUKAS & UL

CASEY and thelr successors in offi

DORECTORS OF BIG BEAVER FALLS AREA

SCHOOL DISTRICT and

LEROY STEWART, ROBERT CAUGHNER, BA

GROPP, AMELIA FUSCO, ROBERT AMALIA

ROBERT BERMMARDY, WILLIAM LIEBERMA

WILLIAM G, GAMMELS & BILLIE WALLA

JOHN H, WHITE & NORMA WHITE, his wife, suing in thelrand thelr sucessors in office, DIR

own right and as parents & nature! gquerdleausef

WATALIE WHITE 6 STEPHANIE WHITE, minors

WILLIAM VISS 6 CHARLOTTE VISS, his wife, suing in

OF PLACKIWUM SCHOOL DISTRICT

their am right eadies parents & naturel quardians of

STAMLEY VISS,-CAROL VISS & JOMATWAN VISS, minors

Related to C.A, 73-92! ATTORSEYS

Civil Rights Compleint- denial of freedom of religion by taxing lews of Pe.

Rex Downie, Jr, Esq,

71% t4th Street

Beaver Falls, Pe. 15010

John M. Ouff Dep Atty

Robert P. Kane

1824 Frick Bldg,

Pgh,Pa. 15219

queen ~~ FUINGFEESPAID

a WERE DATE ap, *" mmeeR ;

if CASE WAS £ ¢

FILED IN — —}—— naka Pj. :

FORMA ose sres

PAUPERIS ‘x AE ENP

‘BEST

Frank C. Lewis, Esq. for Big Beave:

Falls Aree School Board Members

E. ¥.Calvin, Esq. for Blackhawk

Schoo! Board Members

Hudecsek and Lewis, Esqrs.

1126 Sixth Ave., Beaver Falls, Pa.

843-15D

For Defts Pittenger, Sloan & Pack

Ge, Justin Blewitt Dep Atty Gen

Lawrence Silver

Robert Kane

Capitol Annex

Harrisburg, Pa.

st a TSTICAL CAR.

CARD DATE MAI

| ss¢

‘— 2 . , 26

COPY AVAILABLE

2a Decket Entries.

C.A, 75-1389 ta

iopsr | NA PROCES QrenGs

st. 30 | 1 Complaint in Equity for injunctive & Declaratory Relief with demand for Three

Judge Court.

Oct. Summons issued,

Mow. 13) 2 Summons returned executed 11/5/75 on John Pittenger, Grace Sloen, isree!l Pecke!,

‘ on 11/4/75 on Dircctor of Big Beaver Falis School District, & Directors of Black

Schoo! District. i. ~

iow. 17 | 3 | Motion to dismiss and proposed order filed by Big Beavér Falls Area Schoo!

Directors and Blackhawk Schoo! Directors.

Nov. 18| 4% | Entry of Appearnce of J. Justin SlewittJr, Lawrence Silver SRobert Kane es counsel!

Defts Pittenger, Sioan & Packe! :

Nov. 2115 | Stipulation for extension of time for defts Pittenger, Sloan and Packe! to

answer end proposed order filed.

Nov, 21 |«/S Order of Court entered upon Stip filed directingthat Oefts heve to 12/9/75 to

answer to Pitf's Complaint (Miller,J.).

ec. 9 r Motion to dismiss of defts. John C, Pittenger, Secretary of Education, Grace

Sloan, Treasurer, israe! Packel, “ty. Gen. of the Com. of Pa. filed.

Dec,-22 | 7 Entry of Appearance of Osvid Max Seer a9 counse! for Defts Pittenger, Siean, &

Packe! filed,

1976 :

lan, 14 8 Praecipe for Appearance of John ¥, Duff 6 Robert P. Kane as counse! for Defts

Pittenger, Sloan & Packel filed,

lan. 28 Motion to dismiss argument on aotions to dismiss and proposed order filed by pitfs.

Feb. 17 10 Notice to Counse! advising thet time for argument on Mtns to Dismiss is set for

3/1/76 eat 2:00 before Hiller,J.

Feb, 27 Ww Motion to continue arguments set for Merch First filed and Order entered direct

that the matter Is continued pending further order of Court (Niller,J.).

Mer. 8 12 Notice to counse! advising that argument on Mtn to Dismiss is set for 4/6/76 at

2:00 before Hiller,J. filed.

wr. 29 13 | Certificate of notice, petition for leave to amend complaint and proposed

order filed by pits. .

Mer. 30 |u/1} Order of Court entered 3/29/76 upon Petition to Amend filed directing that

complaint is amended as to the allegations steted (Miller,J.).

Apr. 6 \14 Hearing on Mtn to Dismiss held before Hiller,J. Rep... Himless Memo filed.

April 2335 Opinion filed re: Defts' Mtn to Dismiss (Miler,J.).

April 4 16 Order of Court entered directing that Deft s'Mtn to dismissis hereby granted

(mitter,J.).

t to Inton filed and Order entered, case Is hereby dismissed

apn. Se ee 7 . Bernhard Schaef fler,Clerk

April 23 Notices mailed. f~

May 2! |17 Notice of Appeal filed, by Pirf.

May 2! Copty of Notice mailed to U.S. Court of Appeals, Counsel, & Given to Judge

May 24 $250.00 Appeal Bon! filed (Fidelity & Ovposit of Maryland)

June 15 Origina Record mailed to U.S. Court ofAppeals.

BEST COPY AVAILABLE |

‘Complaint in Equity for Injunctive

and Declaratory Relief.

IN THB UNITBD STATBS COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID J. ALLEN and VINETTA MAE ALLEN,

his wife, suing in their own right

and as parents and natural guardians

of LBASA MAB MOXLBY, TAMELL BSTBLLE

MOXLBY, WANDA GAYLE ALLEN and

BOWINA MIRIAM MOXLBY, minors

KARL CUNNINGHAM and JOAN CUNNINGHAM,

his wife, suing in their own right

and as parents and natural guardians

of DOUGLAS KARL CUNNINGHAM, DIANE

MARIB CUNNINGHAM and KAREN KAY

CUNNINGHAM, sinors

WILBBRT MOORE and PHYLLIS MOORE, his

wife, suing in their own right

and as parents and natural guardians

of SUSAN PAULA MOORB, LINDA JANE

MOORE, minors

JOHN H. WHITE and NORMA WHITE,

his wife, suing in their own right

and as parents and natural guardians

of NATALIB WHITE and STEPHANIE WHITE,

minors

WILLIAM VISS and CHARLOTTS VISS,

his wife, suing in their own right

and as parents and natural guardians

of STANLBY VISS, CAROL VISS and

JONATHAN VISS, minors,

Plaintiffs

vs.

JOHN C. PITTBNGBR, Secretary of Education;

GRACB SLOAN, Treasurer;

ISRABL PACKBL, Attorney General;

of the Commonwealth of Pennsylvania

and

HAROLD MARTIN, STEVBN RHODES, ROBSRT

VEON, HARRY FRY, RONALD STURM, PETER

DeCARO, BOB HAGBN, JOHN RUKAS and DOM CASEY

and their successors in office.

DIRECTORS OF BIG BBAVBR FALLS

ARBA SCHOOL DISTRICT

‘(Pilea October 30, 1975.)

CA 75 JZ 79

ACTION IN ITY

ACTION FOR DECLARATORY

JUDGMENT

-_— << «+

Complatet ie Equity fer tajewctive

os and Deciavatesy Rettef.

Lemoy ST@ImaAT, S0GEReT CAUGEER,

DAVID GROPP, A0LIA FPUSCO, SOEBRT

AMALIA, SOGBRT GBRIMARDY, W1iL 1AM LIDS EN,

WILLIAM G. GANMBLS and SILLS WALLACE

and ¢beir suscesuers iu ofsice.

OIAECTeRs OF MaACIONK

SCHOOL BISTR ICT

COMPLAINT IN EQUITY POR I4JUNCTIVE

AND

——_ Lan Toey ELF

TO THE MOMDRASLE THE JUDGES OF SAID COURT:

COMBS NOW the above named plaintiffs by their Attorney

REX DOWNIE, JR.,EXQ., and pray Your Honorable Court to appoint a three

Judge Court pursuant to 28 USCA Section 2281 et seq. for the purpose

of hearing and trial on the ensuing allegat sams end granting of the

injeactive and declaratory relief prayed fer beveafter. For their

cause of action your plaintiffs state as follows:

1. Your plaintiffs QAVID J. ALLEN and VINBTTA MAB ALLEN are

edalt individuals, citizens of the United States and residents of the

Coumsaeenith of Pennsylvania aad aske their residence at Midvale Road, -

Sig Beaver Township, Beaver Palle, Seaver County, Pennsylvania, suing

in theirs ewn right and as parents and nateral guardians of their sinor

chilédsen LSASHA WAZ MOXLSY who is a student in the Sth grade, TAMBLL

SSTBLLS MOXLBY who is a student in the 9th grade, WANDA GAYLE ALLEN

who is a student in the 10th grade, all at Beaver County Christian

School, Mew Brighton, Beaver County, Pennsylvania.

2. Your plaintiffs KARL CUNMINGHAM and JOAN CUNNINGHAM are

adult individuals, citizens of the United States and residents of

the Commonwealth of Pennsylvania and make their residence at 2832-Sth

Avenue, Beaver Falls, Beaver County, Pennsylvania. They sue herein in

their own right and as parents and natural guardians of their minor

children as follows: DIANE MARIE CUNNINGHAM who is in the llth grade

at the Beaver County Christian School and KAREN KAY CUNNINGHAM who is

in the 10th grade at the Beaver County Christian School.

See ee

EE OES

Complaint ia Eqpity fer lajsncti.- Sa

and Dechwatery Belief.

‘. Your pleiwedéés WMAEEU-CHISNS and PUYLL 1S MOORE are adult

iadividmale, citizens of the United States ead residents of the

Commpemveaith of Penneyiwemia, residing at 4519-5th Awenve, Beaver Falls, .

Beaver County, Pennsylvenia, suing ntheir own right and as parents

and wetural gquardians of their minor child LINDA JANE MOORE who attends

the 7th grade at the Seaver Couaty Christian School.

4. Your plaintiffs JOHN H. WHITE and NORMA WHITE are adult

individuals, citizens of the United States and residents of the

Commonwealth of Pennsylvania, saking their residence-in Darlington,

Beaver County, Pennsylvania, and are the parents and natural guardians

of their sinor children NATALIE WHITE and STEPHANIE WHITES. NATALIE

WHITE is enrolled as a first grade student at Beaver County Christian

School.

Ss. Your plaintiffs WILLIAM VISS and CHARLOTTE VISS, his wife,

are adult individuals, citizens of the United States of America and

residentsaf the Commonwealth of Pennsylvenia, waking their residence

at Dogwood Drive, Beaver Falls, Beaver County, Pennsylvania and are

the parents and natural guardians of CAROL VISS who is in the 8th grade

at the Seaver County Christian Scheol and JONATHAN VISS who is in the

Sth orade at the Beaver County Christian School.

6. Defendants HAROLD MARTIN, STEVEN RHODES, ROBERT VBON,

HARRY FRY, RONALD STURM, PETER DeCARO, BOB HAGEN, JOHN RUKAS and DOM

CASBY are elected Directers of BIG BBAVER FALLS AREA SCHOOL DISTRICT

which is a School Dietrict operated under the laws of the Commonwealth

of Pennsylvania and which has its principal office at Carnegie Library

Building, 7th Avenue and 13th Street, Beaver Falls, Beaver County,

Pennsylvania.

7, Defendants LeROY STEWART, ROBERT CAUGHNER, DAVID GROPP,

AMELIA FUSCO, ROBERT AMALIA, ROBERT BERNHARDY, WILLIAM LIBBERMAN,

WILLLAM G. DANNBLS and HILLIB WALLACE are elected Directors of

BLACKHAWK SCHOOL DISTRICT operated under the laws of the Commonwealth

of Pennsylvania and which has its principal office at 791 Darlington

Road, Beaver Falls, Beaver County, Pennsylvania.

6a Complaint in Equity for injunctive

| and Declaratory Relief. Complaint in Equity for Injunctive 7a

That the above named School Districts are those in which and Declaratory Relief

your respective plaintiffs reside, and said Districts own, operate and 13. That subject to said taxing power your defendants have

paid taxes in violation of their religious conscience and con-

victions, subject to the compulsion alleged above, to the re-

spective districts as set forth below:

maintain, under the direction of the named defendants, in part by

—_

| compulsory taxation upon your plaintiffs, the school systems within said:

— PLAINTIFFS SCHOOL 1973 1974-5

9. That BBAVER COUNTY CHRISTIAN SCHOOL is a school open to DISTRICT SCHOOL TAX SCHOOL

Plaintiffs ALLEN BL ACKHAWK $129.04 $142.86

all members of the public who agree with its goals and philosophy. Plaintiffs CIININGHAM GIG BEAVER FALLS $529.73 $221.70

| Sete cated fe goverecd ty 2 Pavemel Aseselation and Guasd Gud te ) Plaintiffs MOORE BIG BEAVER FALLS $321.18 $381.28

legally established as a non profit corporation under the Laws of Plaintiffs VISS BLACKHAWK $465.95 $493.01

the Commonwealth of Pennsylvania. Plaintiffs WHITE BLACKHAWK $397.87 $462.00

14. That under compulsion of the Pennsylvania Sales and

Use Tax 72 Purdons Statutes 3402-801 et seq., your plaintiffs

are compelled to pay six percent (6%) of the purchase price of

ses 28 U.S.C. 2201 et seq. (as to Declaratory Relief) and 26 U.S.C. certain purchased goods and services to the Office of the Treas-

10. That Your Honorable Court has jurisdiction of the foregoing

| Complaint under the following statutory provisions: 28 U.S.C. 1331 et

tet oP OT

ury Commonwealth of Pennsylvania, said tax being applied by said

Office for educational funding to the exclusion of your plaintiffs.

15. That the proceeds of said Sales and Use Tax are ap-

plied exclusively by the Office of the State Treasurer and the

Department of Education to support the operations of the defen-

| Of the Commonwealth of Pennsylvania as set forth in Paragraphs 17 24 | dants School Districts as well as other similar districts within

following. | the Commonwealth, subject to the constitutional strictures al-

leged above in Paragraph eleven.

16. That plaintiffs CUNNINGHAM, MOORE, WHITE, ALLEN and

1343 (3), (4), as amended. Jurisdiction lies under these provisions in

that plaintiffs herein aver abridgement of their rights,privileges and

immunities rising under Amendments I and XIV of the United States

Constitution by the conduct of defendants herein under color of laws

aeeieiie ceed 2 _

11. That the Constitution of the Commonwealth of Pennsylvania

| Article IIT Section B-15 provides: VISS are members of the BEAVER COUNTY CHRISTIAN SCHOOL ASSOC-

PUBLIC SCHOOL MONBY NOT AVAILABLE TO SECTARIAN SCHOOLS TATION through which Association they pay for the Education

Section 15. No money raised for the support of the , ild f their community by

Public Schools of the Commonwealth shall be appropriated of their own children and the children “ .

to or used for the support of any sectarian school. means of payment of contributions and tuition costs. Said pay-

. Th ” ments and contributions are set forth as follows:

| 12 at the named defendant School Directors by the School Code TUITION PAYMENTS CONTRIBUTIONS FOR

of 1949 as amended 24 Purdons Statutes Section 1-10let seq. PLAINTIFFS FOR 1974-1975 1974-1975

‘? Plaintiffs CUNNINGHAM $ 814.00 $ 100.00

through power granted them by Legislation have the power to assess the Plaintiffs MOORE $ 540.00 $ 110.00

real and personal property of your plaintifts, levy a tax based on said Plaintiffs WHITE $ 540.90 $ 350.00

assessment, and compel payment of said tax under compulsion of lien | Plaintiffs VISS $1,045 .00 $1,600.00

Plaintiffs 4LLEN $ 972.12 $ 1090.00

| and public sale. See 24 Purdons Statutes Section 2-213, 6-602, 6-003,

| 6-610, 6-652, 6-674, 6-679, 6-680 and 6-686.

;

8a Complaint in Equity for Injunctive

and Declaratory Relief

17. That all of your plaintiffs are of the Christian

faith and in obedience to their Christian beliefs are com-

manded to “raise their children in the nurture and admonition

of the Lord". Your plaintiffs perceive and believe this com-

mand to encompass the totality of the upbringing of their

children including the formal educational process.

18. That your plaintiffs consider themselves bound by

their Christian faith to support Christian Education as speci-

fied above; provide for the attendance of their children at

said schools and to undertake the obligation to support and

maintain said schools in all respects that are necessary to

the operation and maintenance of said schools.

19. Your plaintiffs aver that their Christian faith pro-

vides for them and impels them to a world and life view resting

upon a Christian philosophy of life, so that no truth, teaching,

fact, or educational philosophy can be neutral or value-free

in their eyes. .

20. Plaintiffs aver that as a matter of fact and as well

in the light of their own religious perspective, the various

educational institutions, course materials, text books, cur-

ricula, educational policies and practices; all procedures and

practices employed by the named defendants in the operation of

their various educational institutions at whatever level, are,

to an extent unacceptable in your plaintiffs dominated by the

religious philosophy of secularism a/k/a secular humanism in

certain subsidiary forms including but not limited to existen-

tialism, pragmatism, empiricism, relativism, positivism and

evolutionism.

21. Your plaintiffs will show at trial by evidence in-

cluding but not limited to the following that the educational

process as maintained by the named defendants is hostile to and

diametrically opposed to the Christian world and life view main-

tained by your plaintiffs through the Christian educational

establishment designated above. The following is set forth to

better aoprise the Court and the parties defendant of the evi-

dentiary basis for the allegations following:

NATURE OF

BEING OR BXIST-

(ONTOLOGY

Complaint in Equity for Injunctive

and Declaratory Relief.

CHRISTIAN PERSPECTIVE

Man is created in God's

imane; A cultural former

responsible to God with

an eternal future under

God.

All that “is” is sustained

and held in being by the

power of Gods Word, i.e.

The Messiah

Knowledge is: Fundament-

ally 1. A relationship

with God; 2. What comes

from God via The Scriptures

and Creation

Ultimate goal is to love

God by loving one's

neighbcr as one's self -

looking forward to the

new heaven and earth

Faithfullness to God

which commands faithful-

ness to others; ethical

relationships pervad@ all

human interactions.

All truth comes from God

through the Messiah and

the Scriptures; is there-

fore sure, certain.

Man's abstraction of

God's ruling noras

from the coherence of

creation.

HWIIMANIST - SECULAR

PERSPECT IVE

Man is a thinking animal;

responsible only to self

or state in society with

no future after deatii.

All that "is" ts the oute

working of random collisiogs

of matter in a chaotic cosé4

mos or of natural laws

innate to man and nature.

process of rational or

empirical inquiry, or is

innate to man's feelings,

Knowledge is only a |

‘

conscience or reason.

Ultimate goal is to glorify

man through the state or

individual self service.

No certain standards;

ethics are dictated by a

changing social context N

or else are totally relat-|

ive.

All “truth” is relative,

or derived by science, hel

in suspension; or is une

knowable in an absurd

cosmos.

Man's application of rules

to a chaotic universe or

discovery of natural laws

inherent in the universe.

Complaini in Equity for injunctive

and Declaratory Relief.

22. The Secular Huganism promulgated under the auspices of the

H the following causes:

] a. By asserting values which conflict with those imparted

through plaintiffs church and home instruction.

b. By teaching as truth views of man, creation and human

|| purpose which conflict with and tend to undermine the Christian values

imparted by plaintiffs Church and home instruction.

c. By alloting to the promotion of items referred to

under (a) and (b) above approximately thirty-five (35) hours per week

as over against weekend and evening hours remaining to your plaintiffs

| for the instruction of their children.

That by reason of the contrastinao and opposing values that

exist between Christianity and the humanistic values of the named de-

fendants educational systems, said “public” schools as operated by

ithe named defendants are religiously, philosophically, morally and

yethically closed to your plaintiffs. Certain of your plaintiffs

have been able to provide for Christian Education for their children,

,and are forced by the strictures of the taxing system as alleged above

\to support the public educational system as well as pay tuition for

‘their own children; such plaintiffs aver that payment d the public

yschool tax by them violates their religious convictions and is re-

lipuonant to their consciences in that they are being taxed tuo support

a" educational system which is destructive of the Christian faith of

jithose memeers Of the Christian ctommunity that are compelled to submit

SP enencetves to it by reason of the absence of an economically equitable

‘alternative.

' named defendants further closes the state schools to your plaintiffs for

—_—— ee

ee = eee eae ea Ct

Complaint in Equity for injunctive

and Declaratory Relief.

That the educational establishments operated by the named

lla

23.

defendants are not neutral or non-sectarian, but to the contrary teach

religious points of view; positions, views of life, purposes for human

existence, which conflict with or are hostile tw in varying degrees the

views held by your plaintiffs in the light of their Christian belief and|

faith. |

24. That none of the taxes levied as alleged in Paragraphs 12 |

through 15 above are distributed to your plaintiffs or to the HKeaver

County Christian School which the plaintiffs children attend. That the

levy of taxes upon your plaintiffs as described ia Pesngneghe l2through

15 above violate the religious consciences of your plaintiffs in that

by the same they are being compelled to support and promote a re} iqious

faith hostile to their own and said violation of their religious faith

and consciences wiil continue so long as no equitable distribution of

the school tax fund is made. :

25. That the conditions alleged above including the provision

of the Pennsylvania Constitution referred to exist in violation of your

plaintiffs rights as citizens of the United States of America under the

lst Amendment to the Unidted States Constitution and under the 14th

Amendment to the United States Constitution in that the laws and

practices alleged constitute an impairment of the free exercise of your

plaintiffs’ religious faith and further constitute an establishment of

the religion of secular humanism by the governmental officials named aad

in the following particulars:

a. That your plaintiffs are deprived of the use of

public welfare school tax funds for the education

of their children by reason of discrimination

based on their Christian faith.

b. That your plaintiffs are thereby forced to choose

between either:

1. Accepting “public” school education in order

to avail themselves of said public welfare

school tax funds, in violation of their

religious convictions on the one-hand, or:

Complaint in Equity for injunctive

lta Complaint in Equity fer tujenctive and Declaratory Relief.

| and Dectaratery Retief.

2. Maintaining their religiows faith by

‘ foregoing their rightful share in said

public tax sonies and purchasing education

at added cost while still paying public

school tax on the other, in violation of the

same religious convictions.

effectuation of relief prayed for above, or, in the

alternative, to direct your plaintiffs to pay t.eir

proper schoo! tax funds into an escrow account to ic

2eld by Hour ilonorable Court pending adjudication

of this matter.

—

c. That your plaintiffs are being taxes to support the e. To arant such other relief as may be equitaivle and

propagation of the faith of secular humanism which Just under the circumstances.

is repugnant and antithetical to them as Christians ’

thus compelling them to support said religion of

secular humanise contrary to their will or consent.

—,

: Respectfully submitted,

" d. That the pattern of taxation of plaintiffs by the

nawed defendants as alleged herein therefore imposes

an unconstitutional handicap, hindrance and economic

i condition upon the exercise of plaintiffs Christian 2

; religious beliefs by impairing the freedom of your .

plaintiffs to exercise their religias freedom in the oe ‘Deum

HF education of their children.

; REX DOWNIE, JR., BSQ.

| 20. ty reason of the matters set forth above plaintiffs aver Attorney for Plaintiffs

| nae the taxina laws and policies enforced by the defendants named

constitute an unconstitutional, continuing and onerous economic burden

on your plaintiffs; an unconstitutional, immediate pressing and irre-

parable impairment of the free exercise of your plaintiffs Christian

faith in education; and an unconstitutional, immediate pressina and

irreparable impairment of the parental rights of your plaintiffs to

freely direct the full upbringing of their children and the children

of their community in the world and life philosophy of their reliyion.

27. That all of the wrongs complained of herein are immediate

and continuin:.. : |

WIIBRBFORE your plaintiffs pray Your lHionorable Court to:

a. Declare the named school tax laws to be unconstitutional

as to your plaintiffs;

b. Declare the Pennsylvania Constitution Article 3 Section

Nh-15 unconstitutional insofar as it may be regarded to

constitute a barrier to the distrilution of educational

tax funds to or on behalf of your plaintiffs for the

education of their children and the children of their

community in the scoool set forth in Paragraph 9.

c. To direct the named defendants to put into effect with

| all deliberate speed an equitable and just plan for dis-

tribution of public school tax monies so that plaintiffs ele

i children will enjoy the use of school tax funds on a per

| capita footing equal with all other students of the

Commonwealth witiout reference to reliaion,

gd. To enjoin all further taxation of your plaintiffs pending

i4a Complaint in Equity for Injunctive

and Declaratory Relief.

AFPPIiIHDAYV iT

COMMONWEALTH OF EENNS YLVAWIA

SS:

COUNTY OF JBAVGH

sefore me, a Notary Vublic, in and for the County of teaver and

Commonwealth of Pennsylvania, personally appeared one known to me

or satisfactorily identified to me as KARL CUNNINGHAM, who being duly

sworn according to law, deposes and says that the facts set forth in

——- + aes aoe ee + ee eee

the foreaning Complaint are true and correct to the best of his |

knowledge, information and belief. i

NGITAM

Sworn to and subscribed before

me this 27th day of October, 1975.

ewe Cope

LORRAINE CAPO, Netery Public

Beaver Falls, Beever Co. Pe.

My Commission Expires Juby 19, 1976

Petition for Leave to Amend Complaint.

IN THB UNITBD STATES COURT FOR TIE WESTERN DISTRICT OF PENNSYLVANIA

DAVID J. ALLEN et ux., et al

Plaintiff. CA 75-1369

Vs. : ACTION IN BQUITY

JOHN C. PITTENGER et al : ACTION FOR DACLARATORY

: JUDGMBNTI

Defendants

(Filed March 29, 1976.)

PRTITION FOR LBAVE TO AMEND COMPLAINT

TO THE HONORABLE THB JUDGES OF SAID COURT:

NOW COMB PLAINTIFFS as captioned and move Your Honorable Court

to grant leave to Plaintiffs to amend their Complaint to include

the following allegations:

28. That John C. Pittenger is named as a party defendant.,

The said John C. Pittencer is Secretary of Bducation of the Common-

wealth of Pewasylvaria and in that capacity develops, promotes

and implements the curricular material: complained of in para-

grapls 2U, 2), 22 and 23 above.

29. That Grace Sloan acting as Secretary of the Treasury

of the Commonwealth of Pennsylvania is named as a defendant herein.

In that capacity she directs and implements disbursement of funds

as is complained of in paragraphs 14 and 15 above,

30. That Robert Kane, actins as Attorney General of the

Commonwealth of Pennsylvania is named as a party défendant herein.

In that capacity he is charued with enforcement of the statutes

set forth in paracraphs 14 and 1s above and the terms of the Con-

stitution ao the Commonwealth of Pennsylvania as alleged «nm fara-

araph 11 above.

This request is made for the reason that said allegations

—— + —— eee &

i Petition for Leave to Amend Complaint.

| were omitted from the original Complaint throuah oversight of

counsel.

Respectfully submitted:

REX , JR., BSQ.

Attorney for Plaintiffs

( ~

ll .

‘i

Petition for Leave to Amend Complaint.

AFFIDAVIT ,

| COMMONWBALTII OF PENNSYLVANIA Ww

‘COUNTY OF BEAVER

: Before me a Notary Public in and for the County of Beaver and

‘Commonwealth of Pennsylvania, personally appeared KARL CUNNINGHAM,

who, being duly sworn according to law. deposes and says that

' the facts contained in the foregoing Petition for Leave to Amend

Complaint are tru@ and correct to the best of his knowledge, infor-

mation and belief.

r sworn to and subscribed before

/ me this Lye ~day of V2 itt che.

TARY PUBLIC

LORE AINE CAPO. PMotary Public

Beaver fo'ls. Braver <o., Pa.

My Commision Exg ros July 19, 1974

eo Oo ee ee: a

DAVID J. ALLEN et ux., et al

Petition for Leave to Amend Complaint.

IN THB UNITED STATES COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

i Plaintiffs CA 75-1389

3 Vs. : ACTION IN BQUITY

|} JOHN C. PITTRNGER et al : ACTION POR DECLARATORY

: JUDGMENT

th Defendants

i ORDER ie

. AND NOW, to wit, this day of , 1976,

- upon consideration of the foregoinn motion it is ordered and dir-

' ected that

BY THE CQOWRT:

ee er ere

Order.

IN THE UNITED STAT&S COURT POH zits KESTERN DISTRICT OF PENNSYLVANIA

DAVID J. ALLEN et ux., et a) : (Piled March 30, 1976.)

Plaintiffs CA 75-1389

Vs. : ACTION IN EQUITY

JOHN C. PITTENGER c+ a} : ACTION FOR DECLARATORY

: JUDGMENT . 4

Defendants i D:

: | a

ORDER

AND NOW, to wit, this 29th day of March » 1976,

upon consideration of the foregoing motion it is ordered and dir-

ected that unon consideration of the foreroing. it is

ORDERED and DIRECTED that the foree

Commlaint be filed.

BY THE COURT:

19a

Order of Court.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTTICT OF PENNSYLVANIA

DAVID J. ALLEN and VINETTA MAE ALLEN,

his wife, suing in their own right

and as parents and natural guardians

of LEASA MAE MOXLEY, TAMELL ESTELi.£

MOXLEY, WANDA GAYLE ALLEN and EDWINA

MIRIAM MOXLEY, minors, ET AL.,

Plaintiffs

Vv.

OHN C. PITTENGER, Secretary of

Education; GRACE SLOAN, Treasurer;

ISRAEL PACKEL, Attorney General; of

the Commonwealth of Pennsylvania,

)

; Civil Action No. 75-1389

)

;

Ai. , Defendants. )

(Filed April 23, 1976.)

ORDER OF COURT

AND NOW, to-wit, this £4.29 day of April, 1976,

it is hereby ORDERED and DIRECTED that the motions to dismiss filed

y the defendants be and the same hereby are granted.

C , } ae . a

United States District Judge

cc: Rex Downie, Jr., Esq.

714 Fourteenth Street

Beaver Falls, Pennsylvania 15010

David Max Baer, Esq.

Deputy Attorney General

Department of Justice

State Capitol Annex Building

Harrisburg, Pennsylvania 17120

Frank C. Lewis, Esq.

Hudacsek & Lewis

1126 Sivch Aven»

Beaver Falls, Pennsylvania 15019

F. vs Cc sivin, ts

717 Twelfth St rect

Beaver Falls, Pennsylvanie 15614

Motion to Dismiss of Defenduats Jobe C. Pittonger, Secretary 21a

of Education; Grace Sloan, Treaserer; terwel Packel, At-

torney General; of the Commeonwesta of Penasytvanis.

IN THE UNITED STATES DISTREST COURT

FOR THE WESTERN DISTRYCT°OPPaMNS YT. VANIA

(Piled December 9, 1975.)

DAVID J. ALLEN and VINETTA MAE ALLEN,

his wife, suing in their own right

aud as parents and natural guardians

of LEASA MAE MOXLEY, TAMELL ESTELLE

MOXLEY, WANDA GAYLE ALLEN and

EDWINA MIRIAM MOXLEY, winors

C.A. 75-1389

KARL CUNNINGHAM and JOAN CUNNINGHAM,

his wife, suing in their own right

and as parents and natural guardians

of DOUCLAS KARI. CUNNINGHAM, DIANE

MARIE CUNNINGHAM and KAREN KAY

CUNNINGHAM, minors

WILBERT MOORE and PHYLLIS MOORE, his

wife, suing in their own right

and as parents and natural guardians

of SUSAN PAULA MDORE, LINDA JANE

MOORE, mirors

JOHN H, WHITE and NORMA WHITE,

his wife, suing in their own right

and as parents and natural guardians

of NATALLE WHIVE and STEPHANIE WHITE

minors

WILLIAM VISS and CHARLOTTE ViSS, :

his wife, suing in their own right

and as parents anc natural guardians :

of STANLEY VISS, CAROL ViSS and ACTION IN EQUITY

JONATHAN VISES, minors, :

Plaintiffs ACTION FOR DECLAR-

v. : ATORY JUDGMENT

JOHN C, PITTENGER, Secretary of Education; :

GRACE SLOAN, Treasurer; |

ISRAEL PACKEL, Attorney General; :

of the Commonweaich of Pennsylvanig

and

HAROLD MARTIN, STEVEN RHODES, ROBERT

VEON, HARRY FRY, RONALD STURM, PETER

DeCARO, BOB !IACEN, JOHN RUKAS and DOM CASEY

and their successors in office,

Directors of Big Beaver Falls Area School District

and :

LEROY STEWART, ROLERT CAUGHNER ,

DAVID GROPP, AMELLA FUSCU, ROBERT :

22a

Motion to Dismiss of Defendants John C. Pittenger, Secretary

of Education; Grace Sloan, Treasurer; Israel Packel, At-

torney General; of the Commonwealth of Pennsylvania.

AMALIA, ROBERT BERNHARDY, WILLIAM LIEBERMAN,

WILLIAM G, DANNELS and BILLIE WALLACE :

and their successors in office.

Directors of Blackhawk School District :

MOTION TO DISMISS OF DEFENDANTS JOHN C. PITTENGER, SECRETARY OF

EDUCATION; GRACE SLOAN, TREASURER; ISRAEL PACKEL, ATTORNEY GEN-

ERAL; O} TIE COMMONWEALTH OF PENNSYLVANTA

AND NOW, this 9th day of December, 1975, defendants,

John C. Pittenger, Secretary of Education; Grace Sloan, Treasurer;

Israel Packel, Attorney General; of the Commonwealth of Pennsyl-

vania, by their Attorneys, J. Justin Blewitt, Jr., Deputy Attorney

General, David Max Baer, Deputy Attorney General, and Lawrence

Silver, Deputy Attorney General, respectfully move this Court

to dismiss the Complaint for the following reasons:

1. The Complaint fails to ecatadn any statement of a claim

for relief against defendants John C. Pittenger, Secretary of

Education, Grace Sloan, Treasurer; and/or Israel Packel, Attorney

General; of the Commonwealth of Pennsylvania, as mandated by

Rule 8(A) of the —— Rules of Civil Procedure.

| 2. This Complaint is barred by the doctrines of res

judicata and collateral estoppel by virtue of this Court's Order

and Opinion in Allen et al. v. Blackhawk School District et al.,

C. A. No. 73-921, Opinion filed: September 24, 1975, which was

affirmed by the Third Circuit Court of Appeals, 515 F.2d 506 (1975).

3. The Complaint fails to state e' eleia upon which

relief can be granted,

4. This Court lacks jurisdiction over the subject matter.

5. The claim is barred by the Eleventh Amendment to the

Constitution of the United States of America. ,

“

Motion to Dismiss of Defendants John C. Pittenger, Secretary

of Education; Grace Sloan, Treasurer: Israel Packel, At-

torney General; of the Commonwealth of Peansylvania.

6. The defendants John C, Pittenger, Secretary of

Education; Grace Sloan, Treesurer; and Israel Packel, Attorney

General; of the Commonwealth of Pennsylvania are immune from

sovereign immunity.

suit under the doctrine of

Respectfully submitted,

nating tS on Ji gy

J//Justin Blewitt, Jr.

I fouty Attornev Seneral

IAS

Baer

David Max

Deputy Attorney General

Lawrence Silver

Deputy Attorney General

Chief Civil Litigation

Attorneys for Defendants,

John C. Pittenger, Secretary of

Education;

Grace Sloan, Treasurer;

Israel packel, Attorney General;

of the Commonwealth of Pennsylvania

Department of Justice

Capitol Annex

Harrisburg, PA 17120

(717) 787-7113

Motion To Dismiss

(Caption Omitted)

MOTION TO DISMISS

24a

The defendants Big Beaver Falls Area School Directors

and Blackhawk School Directors by their solicitors, Frank C.

Lewis, Esquire and E. Y. Calvin, Esquire move the Court as

follows:

1. To dismiss this action because all of the matters

complained of in this case were previously decided in an

action brought by plaintiffs against the defendant school

districts for the same cause of action as that upon which

this action is based, in this same United States District

Court, Civil Action No. 73-921, in which action a judgment

was entered for defendants on September 25, 1974, by Judge

John L. Miller, dismissing said Complaint, which judgment

was subsequently affirmed by the United States Court of Ap-

peals for the Third Circuit at No. 74-2218.

2. To dismiss this action because the Complaint shows

Clearly that the Commonwealth of Pennsylvania is an indis-

pensable party to this proceeding without which no relief

could be granted to plaintiffs and plaintiffs have failed

to name said Commonwealth as a party defendant, evidently

in an attempt to avoid the doctrine of Sovereign Immunity.

3. To dismiss this action because the relief sought

is barred under the provisions of 28 U.S.C.A., Section 1341,

which expressly forbid such relief to plaintiffs.

4. To dismiss the above entitled action because the

complaint fails to state a claim against defendants upon

which relief can be granted.

5. To dismiss the above entitled action because the

matter in controversy does not involve any Federal question

under the Constitution of the United States.

Filed Nov. 17, 1976 |

SA. AGES tts verte ee aon

25a

6. To dismiss the above entitied action because it

Motion To Dismiss

appears in said Complaint that the defendants are school

directors and as such are only agents of the Commonwealth

of Pennsylvania ard that the entire process and operation

of defendants’ educational system is prescribed, promul-

gated, approved and controlled by legislation of the Com-

monwealth and by guide lines issued by the Department of

Education of the Commonwealth. The detendant school dir-

ectors are therefore without power or authority to grant

relief to the plaintiffs as prayed for in their complaint

because any such relief must come, if granted by the Court,

through and from the Commonwealth of Pennsylvania by legis-

lative action.

7. To dismiss the plaintiffs’ action because the

relief sought by plaintiffs is expressly forbidden by the

provisions of Article II], Section 15, of the Constitution

of Pennsylvania as set forth in said Complaint, and no such

relief could be granted to plaintiffs unless said Consti-

tution was amended to authorize such relief to plaintiffs.

Such accomplishment could only be secured by legislative

enactment approved by a majority vote of the people of

this Commonwealth. No such power or authority to order such

an amendment has been vested in this Court.

8. To dismiss this action because the Complaint faiis

to contain “a short and plain statement of the orounds

upon which the Court's jurisdiction depends" as mandated

by Rule & (A) of the Federal Rules of Civil Procedure.

9. To dismiss this complaint because this Court lacks

jurisdcition over the subject matter.

10. To dismiss the plaintiffs’ Complaint because

the claim is barred by the 11th Amendment to the Constitu-

tion of the United States of America.

oo aoe - - — —_—=_ ee ee

26a Motion To Dismiss ie Opinion, Court of Appeals 27a

11. To dismiss the plaintiffs’ complaint because the Rah UNTTEOOR THE THIRD CIRCUIT

defendants are immune from such suit under the doctrine of - =.

No. 76-1839

Sovereign ftmmunity. we &

Respectfully submitted,

DAVID J. ALLEN and VINETTA MAE ALLEN, his wife, suing

Ss) Frank C. |

{s) k - nt Lewis _ 7 in their own right and as parents and natural guardians

an »- Lewis, Esquire of LEASA MAE MOXLEY, TAMELL ESTELLE MOXLEY, WANDA GAYLE

Attorney for Big Beaver ALLEN and EDWINA MIRIAM MOXLEY, minors

Falls Area School Board KARL CUNNINGHAM and JOAN CUNNINGHAM, his wife, suing in

Members their own right and as parents and natural guardians of

DOUGLAS KARL CUNNINGHAM, DIANE MARIE CUNNINGHAM and

(s) cy Calvi C KAREN KAY CUNNINGHAM, minors

S) =. ¥. Calvin °

F Y. Calvin “Fes =. WILBERT MOORE and PHYLLIS MOORE, his wife, suing in their

a Bhd. » ESquire own right and as parents and natural guardians of

Attorney for Blackhawk SUSAN PAULA MOORE, LINDA JANE MOORE, minors

School Board Members JOHN H. WHITE and NORMA WHITE, his wife, suing in their

own right and as parents and natural guardians of

NATALIE WHITE and STEPHANIE WHITE, minors

WILLIAM VISS and CHARLOTTE VISS, his wife, suing in their

own right and as parents and natural guardians of

STANLEY VISS, CAROL VISS and JONATHAN VISS, minors,

Appellants,

JOHN C. PITTENGER, Secretary of Education; GRACE SLOAN,

Treasurer; ISRAEL PACKEL, Attorney General; of the

Commonwealth of Pennsylvania ;

and

HAROLD MARTIN, STEVEN RHODES, ROBERT VEON, HARRY FRY,

RONALD STURM, PETER DeCARO, BOB HAGEN, JOHN RUKAS and

DOM CASEY and their successors in office.

DIRECTORS OF BIG BEAVER FALLS AREA SCHOOL DISTRICT

and

amas eh

' LeROY STEWART, ROBERT CAUGHNER, DAVID GROPP, AMELIA FUSCO,

§ ROBERT AMALIA, ROBERT BERNHARDY, WILLIAM LIEBERMAN,

WILLIAM G. DANNELS and BILLIE WALLACE and their successors

in office.

DIRECTORS OF BLACKHAWK SCHOOL DISTRICT

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 75-1389)

Submitted Under Third Circuit Rule 12(6)

February 18, 1977

Before: ALDISERT and GARTH, Circuit Judges and

STAPLETON, District Judge ¥

Walter K. Stapleton. of the United States District

* Honorable

eittine by designation

Court for the Pistrict of Delaware

28a Opinion, Court of Appeals

Downie, Jr., Esq.

714 146th Street

Beaver Falls, Pennsylvania 15010

COUNSEL FOR APPELLANTS

| E. Y. Calvin, Esq.

~ COUNSEL FOR LeROY STEWART, et al.

F. C. Lewis, Esq.

COUNSEL FOR HAROLD MARTIN, et al.

1126 6th Avenue

Beaver Falls, Pennsylvania 15010

David Max Baer,

Deputy Attorney General

J. Justin Blewitt, Jr.,

Deputy Attorney General

Chief of Civil Litigation

Robert P. Kane,

Attorney General

State Capitol Annex

Harrisburg, Pennsylvania 17120

COUNSEL FOR JOHN C. PITTENGER, et al.

OPINION OF THE COURT

(Filed april 19, ° , 1977)

PER CURIAM

Plaintiffs are Pennsylvania taxpayers seeking declaratory

and injunctive relief against the state's school tax system on the

ground that the system violates the religious clauses of the

First Amendment to the United States Constitution. They seek, inter

alia, an “equitable and just plan for distribution of public

school tax monies so that plaintiffs' children will enjoy the use

of school tax funds on a per capita footing equal with all other

students of the Commonwealth without reference to religion." The

complaint names as defendants several individual officers of the

state, including the Secretary of Education.

ln ll ee —_—=—- - le Ae

Opinion, Court of Appeals 29a

Plaintiffs filed a previous action in 1973 which was

identical to the present action in every respect except that the

1973 action named as defendants the Blackhawk and Big Beaver Falls

Area School Districts, and the Commonwealth of Pennsylvania. Faced

with a threshold defense of sovereign immunity, the trial court

in the previous case ruled that the claim was in essence and effect

@ claim against the state within the purview of the Eleventh

Amendment, that the state had not waived its sovereign immunity, and

that, accordingly, the claim was barred. Allen v. Blackhawk School

District, Civil Action No. 73-921 (W.D. Pa. 1974) (unreported). This

court affirmed without opinion. 515 F.2d 506 (3d Cir. 1975).

The question presented by this second appeal is whether

plaintiffs can avoid the previous disposition of their claims by

changing, as they have, the named parties defendant while seeking

identical relief on identical claims. The district court concluded

that "a mere substitution of titular party defendants does not

operate to shield plaintiffs from the scope of our prior ruling" and,

again, dismissed the complaint. We affirm.

By naming individual officers as defendants, plaintiffs

have tried to fit their second action within the principle of Ex

parte Young, 209 U.S. 123 (1908), which allows certain kinds of

claims to be asserted against individual state officers though the

Eleventh Amendment would bar such claims against the state itself

Although Ex parte Young is firmly embedded in our law, that case «>

its progeny do not abrogate the Eleventh Amendment, nor do they

reduce sensitive Eleventh Amendment issues to mere formalities cf

pleading.

It is well established that the Amendment

bars suits not only against the State when

it is the named party but also when it is

the party in fact. Edelman v. Jordan,

415 U.S. 651 (1974); Poindexter v. Greenhow,

114 U.S. 270, 287 (1585); Cunningham v. Macon

& Brunswick R. Co., 109 U.5. G46 (1883). Tts

applica ty s to be determined not by the

mere names of the titular parties but by

the essential nature and effect of the

proceeding, as it appears from the entire

record." Ex parte New York, 256 U.S. 490,

500 (1921).

—— e - ° et ee ee -

30a Opinion, Court of Appeals

Scheuer v. Rhodes, 416 U.S. 232, 237 (1974). After careful and

thorough analysis, the district court in the prior action determined

that the claim was barred by sovereign immunity, and we affirmed

thet determination. The “essential nature and effect” of the

present proceeding is identical to that of the prior action. The

prior determination, therefore, continues to control. See

Bruszewski v. United States, 181 F.2d 419, 422 (3d Cir.), cert.

denied, 340 U.S. 865 (1950).

The judgment of the district court will be affirmed.

TO THE CLERK:

Please file the foregoing opinion.

=—"

Circuit Judge

Concurring Opinion oy 31a

STAPLETON, District Judge, Concurring:

I am unable to join in the holding of the Court that

appellants are barred from pursuing this action by the doctrine

of collateral estoppel. Nor do I believe that this action,

which seeks injunctive relief sssitdint dimewous individuals who

have allegedly violated appellants’ constitutional rights under

color of state law, is barred by the Eleventh Amendment. Never-

theless, I would affirm the judgment below on the ground that

the complaint fails to state a claim upon which relief can be

granted.

The complaint reflects that appellants have two

objectives in this case: (1) “ee sateen all further taxation"

of themselves for school purposes, and (2) to require the

establishment of a “just plan for distribution of public school

tax monies so that plaintiffs' children [who attend a sectarian

school] will enjoy the use of school tax funds on a per capita

footing equal with all other students of the Commonwealth”.

Appellants’ pursuit of their first objective is barred by

Section 1341 of Title 28 which prohibits a Federal District Court

from enjoining the collection of a state tax where an adequate

remedy is available in a state court. Such a remedy is available

in Pennsylvania to one who claims that a tax law is unconstitu-

tional. E.g., Rochester & Pittsburgh Coal Co. v. Board of

Assessment, 438 Pa. 506, 266 A.2d 78 (Sup. Ct. 1970); County of

Allegheny v. Three Rivers Management Corp., 328 A.2d 567 (Pa.

Cmwlth, 1974); Phipps v. School District of Pittsburgh, 111 F.2d

393 (3rd Cir. 1940).

Appellants’ second objective is barred by the First

Amendment. They claim that the Pennsylvania public school system

teaches a “religion” of "secular humanism"; they do not, however,

seek to enjoin the teaching of that religion in the public schools.

——— _ ———e ee ee

° et i -

32a Concurring Opinion

Rather, the relief which appellants seek is the allocation of

public funds for the support of the Beaver County Christian

School, a sectarian institution, and, under the teachings of

Committee for Public Education & Religious Liberty v. Nyquist,

413 U.S. 756 (1973) and Sloan v. Lemon, 413 U.S. 825 (1973),

such relief would viola:e the Establishment Clause. Accordingly,

the relief sought would be foreclosed as a matter of law whether

or not appellants were able to show that the public schools of

the Commonwealth also teach a religion.

Judgment 33a

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 76-1839

DAVID J. ALLEN and VINETTA MAE ALLEN, his wife, suing in their own

right and as parents and natural guardians of LEASA MAE MOXLEY, TAMELL

ESTELLE MOXLEY, WANDA GAYLE ALLEN and EDWINA MIRIAM MOXLEY, minors

KARL CUNNINGHAM and JOAN CUNNINGHAM, his wife, suing in their own

right and as parents and natural guardians of DOUGLAS KARL CUNNING-

HAM, DIANE MARIE CUNNINGHAM and KAREN KAY CUNNINGHAM, minors

WILBERT MOORE and PHYLLIS MOORE, his wife, suing in their own right

and as parents and natural guardians of SUSAN PAULA MOORE, LINDA JANE

MOORE, minors

JOHN H. WHITE and NORMA WHITE, his wife, suing in their own right and

as parents and natural guardians of NATALIE WHITE and STEPHANIE WHITE,

minors

WILLIAM VISS and CHARLOTTE VISS, his wife, suing in their own right

and as parents and natural guardians of STANLEY VISS, CAROL VISS and

JONATHAN VISS, minors,

Appellants

Vv.

JOHN C. PITTENGER, Secretary of Education; GRACE SLOAN, Treasurer;

ISRAEL PACKEL, Attorney General; of the Commonwealth of Pennsylvania

and

HAROLD MARTIN, STEVEN RHODES, ROBERT VEON, HARRY FRY, RONALD STURM,

PETER DeCARO, BOB HAGEN, JOHN RUKAS and DOM CASEY and their successors

in office, DIRECTORS OF BIG BEAVER FALLS AREA SCHOOL DISTRICT

and

LeROY STEWARD, ROBERT CAUGHNER, DAVID GROPP, AMELIA FUSCO, ROBERT

AMALIA, ROBERT BERNHARDY, WILLIAM LIEBERMAN, WILLIAM G. DANNELS and

BILLIE WALLACE and their successors in office. DIRECTORS OF BLACKHAWK

SCHOOL DISTRICT ies

Appeal from the United States District Court for the Western District

of Pennsylvania

(D.C. Civil No. 75-1389)

Present: ALDISFRT and GARTH, Circuit Judges and. STAPLETON, District

Judae*

JUDGMENT

This cause came on to be heard on the record from the l!nited States

District Court for the Western District of Pennsylvania and was submitted

under Third Circuit Rule 12(6).

*Honorable Walter *. Stapleton. of the !'nited States District Court for

the District of Delaware, sitting by desianation.

34a Judgment

Cn consideration whereof, it is now here ordered and adjudocd by this

Court that the judgnent of the said District Court,filed April 23, 1976, be and the

same is hereby affirmed. Costs taxed against the appellants.

ATTEST:

Clerk

April 19, 1977

ee -

Opinion of District Court in Prior Suit 35a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID J. ALLEN and VINETTA MAE ALLEN,

his wife, suing in their own right

and as parents and natural guardians

of LEASA MAE MOXLEY, TAMELL ESTELLE

MOXLEY, WANDA GAYLE ALLEN and

EDWINA MIRIAM MOXLEY, minors

KARL CUNNINGHAM and JOAN CUNNINGHAM,

his wife, suing in their own right

and as parents and natural guardians

of DOU KARL CUNNINGHAM, DIANE

MARIE CUNNINGHAM and KAREN KAY

CUNNINGHAM, minors

)

WILBERT MOORE and PHYLLIS MOORE, his )

wife, suing in their own right and )

as parents and natural guardians of ) CIVIL ACTION

SUSAN PAULA MOORE, LINDA JANE MOORE, ) NO. 73-921

)

minors

JOHN H. HITE and NORMA WHITE,

his wife, suing in their own right

and as parcnts and natural guardians

of NATALIE WHITE and STEPHANIE WHITE,

minors

WILLIAM VISS and CHARLOTTE VISS,

his wife, suing in their own right

and as parents and natural guardians

of STANLEY VISS, CAROL VISS and

JONATHAN VISS, minors,

Plaintiffs

Vv.

BIACKHAVK SCHOOL DISTRICT

BIG BEAVER FALLS AREA SCHOOL DISTRICT

and COMMONWEALTH OF PENNSYLVANIA,

Defendants.

OPINION

MILLER, J.

The plaintiffs, styiing their complaint in

equity for injunctive and declaratory relief, seek the convok-

ation of a three-judge court to “Declare the present school tax

_—™ Ma ~<a -

- -~_— tl a

_—™~ =

36a Opinion of District Court in Prior Suit

[1)}/

laws [of the Commonwealth] to be unconstitutional as to ...

[the] plaintiffs; . Declare the Pennsylvania Constitution

{2)/

Article 3 Section 5-15" "“eemenneeena insofar as it may be

regarded to constitute a barrier to the distribution of

{the] plaintiffs

for the education of their children and their children of their

educational tax funds to or on behalf of ...

community .... To direct the Commonwealth of Pennsylvania to

put into effect with all deliberate speed an equitable and

just distribution of public school tax monies so that

plaintiffs children will enjoy the use of school tax funds on

a per capita footing equal with all other students of the

Commonwealth without reference to religion.... To enjoin all.

further taxation of ... [the] plaintiffs pending effectuation

of relief prayed for above, or, in the alternative, to direct

{the) plaintiffs and the members of the class to which NSS

belong to pay their proper school funds into an escrow

account to be held by ... [this] Court pending adjudication of

this matter."

17 These laws asserted by the plaintiffs in petegre® 12 of

their complaint are 24 P.S. §101 et seq., P.L. 30, March 14,

1949, known as the "Public School Code of 1949." Reference is

further made to 24 P.S. §82-213, Right to sue and be sued;

§6-602, Tax Levies; §6-603, One Annual Levy of Tax Levy;

§6-610, Use of school funds; illegal use; §6-652, Tax levy;

purposes, limitations; §6-674, Property subject to tax; school

districts second class; §6-679, Per capita taxes; §6-680, List

of residents for per capita tax purposes; §6-686, Delinquent

taxes; appointment of collector, etc.

2/ The text of Article III, §15, is as follows: "No money

raised for the support of the Public Schools of the Commonwealth

shall be appropriated to or used for the support of any

sectarian school.”

3/ Plaintiffs’ prayer for relief in their complaint.

Opinion of District court in Prior Suit _ 37a

Motions to dismiss the plaintiffs’ action

have been filed by the Commonwealth of Pennsylvania, Blackhawk

School District and Big Beaver Falls Area School District. The

defendant school districts allege as grounds for their motion

that the complaint fails to state a claim upon which relief can

be granted; the matter in controversy does not involve any

federal question under the Constitution of the United States;

the defendants are School Districts and as such are an agency

of the Commonwealth and that the entire process and operation

of defendants’ educational system is prescribed, promulgated,

approved and controlled by legislation of the Commonwealth and

guidelines issued by the Department of Education of the Common-

wealth. Therefore, defendant school districts are without

power or authority to grant relief to the plaintiffs as prayed

for in their complaint because any such relief must come, if

ae by the Court, tnrough and from the Commonwealth by

| Aesesetive action; and, the relief sought is expressly

prohibited by the provisions of Article III, Section 15 of the

Constitution o* the Commonwealth and no such relief could be

granted to plaintiffs unless the Constitution was so amended.

The Commonwealth avers as grounds for its

motion that the complaint fails to state a claim upon which

relief may be granted; the complaint fails to contain a short

and plain statement of the grounds upon which the Court's

jurisdiction depends as mandated by Rule 8(a), F.R.C.P.; the

Court lacks jurisdiction over the subject matter: the clain is

arred by the Eleventh Amendment of the Federal Constitution;

and the Commonwealth is immune from suit under the doctrine of

sovercies ismuric

— — am -_

- > er -_-

"38a Opinion of District Court in Prior Suit

{

sence among other matters, that they have paid school taxes

The complaint discloses the plaintiffs are

residents of the Blackhawk and Big Beaver Falls Area School

lDistriets, Beaver County, Commonwealth of Pennsylvania. The

Allens aver they are members of the Portersville Christian

School Association and their children attend its school. The

Cunninghams, Moores, Whites and Visses aver they are members of

the Beaver County Christian School Association and their

children attend its school. All plaintiffs relate they have

paid varying sums, less than $500 in all but the Cunninghams'

case, as school taxes to the defendant districts for 1973, in

addition to the payment of tuition costs or contributions to

their respective Christian School Associations. The plaintiffs

jin violation of their religious conscience and convictions.

hey also complain of paying six per cent of the purchase price

Or goods and services imposed under the Commonwealth's Sales

and Use Tax to the Commonwealth, which revenue is applied by

ithe Commonwealth for educational funding to the exclusion of

the plaintiffs. Their complaint is founded upon the core

allegation that the public schools promote the "religion" of

secular humanism in their classrooms and the Commonwealth and

efendant School Districts are violating the freedom of

eligion clauses, United States Constitution, Amendment I, by

evying school taxes as well as imposing sales and use taxes

pon certain of plaintiffs' purchases which revenue, derived

ifrom these sources, is being used to promote and support a

‘religious faith" hostile to the plaintiffs’ beliefs. In other

ords, their religious freedom is impaired by imposition and

naa

aint Ss complaint, paragraphs 21, 24.

« --~ . — <-- a ca _- -

Opinion of District Court in Prior Suit 398

payment of taxes used to promote a religion hostile to

plaintiffs’ faith and the defendants are violating the establis:

ment clause by their operation of the public school system.

Recognizing the historical establishment of

the public school system as a seule and the impasse confronting

them when faced with Constitutional and decisional authorities

critical of state aid related to religious schools, the

plaintiffs postulate a remedy for judicially compelled

redistribution of school tax funds. As stated by the plaintiffs,

their "... concern is that of justice over against the historical

development of the economic monopoly of the public school as it

presently manifests itself. * * * It is hoped ... the instant

litigation might break a trail; a new way of economic liberty

in education for all parents who in good conscience seek an

alternative to the present educational order."

fnerve are numerous issues vaised. However,

we shall first examine the complaint in light of the objections

thereto and general requirements of Rule 8(a)(2), F.R.Civ.P.

A review thereof reveals the plaintiffs have not set forth a

short plain statement of the grounds upon which the Court's

jurisdiction depends. The only statement relates to this

Court's appointment of a three-judge court under 223 U.S ¢ A

62286.— Plaintiffs do, however, in their brief in opposition |

to the defendants’ motions cite 28 '.S.C.A §§1321. i ya2/%

2201, 2202; 42 U.S.C.A §1983 and the First Amendment ta the

Federal Constitution as the basis for this vour:’ syrredieticn

2/ Plaintiffs" opposition brief at page 1

6/ Plaintiffs’ complaint, paragraph 25.

7/ Plaintiffs' opposition brief at pare 1.

8/ The statutory authority for the designation and composition

of a three-judge court clearly vests with the Chief Judre of

the Circuit Court of Appeals and not with this Court.

40a Opinion of District Court in Prior suit

No reference is made to 28 U.S.C.A. §2281 or the requirements

thereof.

In the present posture of this equity

action, we shall, without considering the merits of the same,

treat that which we consider to be the dispositive issue, viz.,

whether we have jurisdiction to adjudicate the matter. For it

is so fundamental no citation of authority is necessary that

federal district courts are empowered to hear only such cases

as are within the judicial power of the United States as

defined by the United States Constitution and that have been

entrusted to them by a legislative grant from Congress. In

the course of considering this issue, it becomes necessary to

determine the essential nature and effect of the proceedings in

relation to the Eleventh Amendment or sovereign immunity aver-

ments of the defendants.

Katified in 1798, and unchanged since, the

Eleventh Amendment provides:

"The judicial power of the United States shall not

be construed to extend to any suit in law or equity

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens

or Subjects of any Foreign State."

Although the Amendment by its terms does not bar suits againct

a State by its own citizens, the Supreme Court has consistently

held that an unconsenting State is immune from suits brought

in federal courts by her citizens as well as by citizens of

another State. Hans v. Louisiana, 134 U.S. 1 (1890); Duhne v.

New Jersey, 251 U.S. 311 (1920); Great Northern Insurance Co.

. Read, 322 U.S. 47 (1944); Employees v. Missouri Public

Opinion of District Court in Prior suit 4la

Health Dept., 411 U.S. 279 (1973). In Ford Motor Co. v.

Department of Treasury, 323 U.S. 459 (1945), the Court held

that even though a State is not named @ party to the action,

the suit may nonetheless be barred by the amendment. In

determining the essential nature and effect of the suit, the

Court stated: i

"(W]hen the action is in essence one for the

recovery of money from the state, the State is the

real, substantial party in interest and is entitled

to invoke its sovereign immunity from suit even

though individual officials are nominal defendants."

Id. at 464.

And in Scheuer v. Rhodes, U.S. __, 42 U.S.L.W. 4543

(April 16, 1974), the Court reaffirmed these principles when

it stated:

| "It is well-established that the Amendment bars

suits not only against the State when it is the

named party but when it is the party in fact.

[Citations omitted]. Its applicability ‘is to be

determined not by the mere names of the titular

parties but by the essential nature and effect of

the proceeding as it appears from the entire record.’

[Citations omitted. ]"

Responding to the Eleventh Amendment averments, plaintiffs

seek to circumvent these precedents by citing Smyth v. Ames,

169 U.S. 466 (1898) and Ex Parte Young, 209 U.S. 123 (1908).

We believe plaintiffs’ reliance upon these authorities to be

misplaced as those cases are clearly distinguishable from this

42a

proceeding.

Opinion of District Court in Prior Suit

Here the Commonwealth of Pennsylvania is not only |

a named defendant but the subject matter in controversy is the

public school system mandated ap Spenate 3, §14 of the

Se es

Constitution of the Commonwealth and me aeons enactments

concerning their support and maintenance. Indeed, the public

schools of the Commonwealth, as Mr. Chief Justice Kephart |

became an integral part of our governmental system

noted in Wilson v. Philadelphia School District, 328 Pa. 225

[B¥ar), *...

{a]fter Thaddeus Stevens' and

The

as a state institution ...

Governor Wolf's famous crusade for education .

Constitution of 1874 fortified it and directed the legislature

to maintain ‘a thorough and efficient system of public schools'’

. The school system, or the school districts, then, are but

agencies of the state legislature to administer this constitu-

Id. at 230-231. (Emphasis edded).

tional duty.” Moreover,

in levying, collecting and spending taxes a school district

, acts merely as an agent of the Commonwealth in the discharoe of

the latter's constitutional duty of providing a system of

public education. Hartman v. Columbia Malleable Castings Cor;

164 Pa. Super. 1 (1949).

And, unlike municipal corporations

within the Commonwealth, the school districts possess no

legislative powers, but only administrative powers expressly

granted by the legislature or inferred by necessary 7, .icutioy

e |

In Samuel v. University of Pittsburgh, 375 F. Supp. 1} (W.D

Pa. 1974), Judge Teitelbaum of this Court in considering whethet

is to some extent the same questiot

{

defendant universities were "persons" under 42 U.S.C.A. §1983

observed "{t]he question ...

57 The text reads as follows: “The General Assembly shall provi tt

for the maintenance and support of a thorough and efficient

system of public education to serve the needs of the Commonwea!}!

10/ See n. 1 supra.

Il/ 33 P.L.£ Schools §81 et seq.

——— a a — a

Opinion of District Court in Prior suit

as whether that entity is immune from liability under the

principles of sovereign immunity or the Eleventh Amendment."

Id. at 1125. The Court determined both questions turn on the

43a

extent of government control, whether exercised or not, over

the entities. Thus, where the state controls the activities

of the entity, the entity is properly a state instrumentality.

Moreover, our Court of Appeals has recently held in Rochester

v. White, No. 73-2104 (3 Cir., September 5, 1974), "[w]hen a

state is named as a defendant under Section 1983, there are two

impediments to suit. First, a state is not a person as requirec

under Section 1983, and second, the Eleventh Amendment bars suit

against a state." Id. at p. 4.

Testing the plaintiffs’ complaint under the

{ P

Principles above enunciated, we are persuaded the essence and

yelrect of this Proceeding is against the Commonweaith as the

party in fact, the school districts being the "alter ego” of

the Commonwealth to administer the latter's constitutional

duty of providing a system of public education. It is crystal

clear the Commonwealth controls the activities of the defendant

school districts. Therefore, we must determine whether the

Commonwealth has consented or otherwise waived its sovereign

immunity for if not, we are without jurisdiction.

|Sub-Committee on Claims of J.Leg. Com., N.J. Leg., 423 F. 2d 674

(3 Cir. 1970); ef. Litton FCS, Inc. v. Pennsylvania Turnpike

leet ontiis: 376 F.Supp. 579 (E.D. Pa. 1974). Under Article I,

Gambocz v.

(BEST GOPY AVAILABLE

—

“~—*

T 440 Opinion of District Court in Prior Suit

12/

'§1l1 of the Constitution of the Commonwealth, the Commonwealth's

immunity from suit is constitutionally mandated and is not self-

executing thereby requiring the legislature to determine the

circumstances under which sovereign immunity may be waived.

Brown v. Commonwealth, 453 Pa. 566 (1973). The Court in

Sweigard v. Pa. Dept. of Trans., 454 Pa. 32 (1973), citing its

decision in Brown held, in rejecting the contention that the

section waived sovereign immunity, the constitutional provision

operated to establish sovereign immunity. Thus, the general

rules pertaining to sovereign immunity noted by the Court

earlier in Philadelphia Life Insurance Company v. Commonwealth,

410 Pa. ome aprer and the distinctions recognized therein

remain valid. Of particular relevance to this equity action is

the following observation by the Court:

“The distinction is clear between suits against the

Commonwealth which are within the rule of its immunity

and suits to restrain officers of the Commonwealth from

enforcing the provisions of a statute claimed to be

127 The text of the pertinent provision is as follows: ".

Suits may be erevers against the Commonwealth in such manner, |

in such courts and in such cases as the Legislature may by law

13/ Compare with dale and Wilkins v. Kane, ll

a. Cmwlth. 254, court observed, t is of

rime importance to note that the plaintiffs are not seekin

ome affirmative action on the part of State officials feaulred

y statute, but rather that the affirmative action sought is

andated by the constitutional provision." See Biello v. Pa.

iquor Control Bd., 454 Pa. 179 (1973) applying sovcreign

immunity to Liquor Control Board determined to have been acting

in governmental capacity when it sold a bottle of whiskey to a

inor. Koynok_ v. Commonwealth, 12 Pa. Cmwlth 375 (1974)

xtending sovereipn immunity to actions in equity and holding

octrine precludes prosecution against instrumentalities, here

state Board of Private Academic Schools of Commonwealth engaged

n governmental functions. Williams v. Commonwealth, 12 Pa.

cmwith 384 (1974) holding agencies of the Conmonwealth allegedly

acting or failing to act in a governmental capacity are cloaked

vith sovereign immunity granted by the Constitution of

?emnsylvania until the legislature waives such immunity.

Opinion of District Court in Prior Suit 45a

Suits which seck to compel

! unconstitutional.

affirmative action ec. the part of state officials

or to obtain moncy damages or to recover property

from the Commonwealth are within the rule of immunity;

suits which simply seek to restrain state officials

from performing affirmative acts are not within the

rule of immunity.” Id. at 576.

(Our rescarch has not detected legislation applicable to this

action whereby the Commonwealth has consented to being sued or

otherwise waived its sovereign immunity nor have the parties

directed our attention to the same. To the contrary, Rule

2192(a), 5 ca ti deateints Cae the doctrine that a suit

against the Commonwealth is permitted only when a cause of

jaction against it exists and when a right of action has been

15/

'authorized by statute.

| In the absence of a clear and unequivocal

16/

waiver by the General Assembly of the Commonwealth's sovereign

| mmuniey, we believe the functions and responsibilities before

sus to be governmental functions protected by the Commonwealth's

" : . : :

\sovereign immunity or Eleventh Amendment. And as Mr. Justice

Douglas stated in Employees v. Missouri Public tlealth Dept.,

411 U.S. at 284, "The history and tradition of the Eleventh

Amendment indicate that by reason of that barrier a federal

‘court is not competent to render judgment agains*® 2 noncon

ling Statc "

147 12 P.S.App. The text of the Rule is as follows:

by the Commonwealth shall be brought in the name of the Common-

wealth of Pennsylvania."

15/ Collins v. Commonwealth, 262 Pa. 572 (1919) cited in the

note to Rule 2102, R.Civ.P.

16/ Daye v. Commonwealth of Pennsylvania, 483 F. 2d 294 (3 Cir

1973) U.S. App. pendiny, 40 1... 2d 298, 94 S.C. 1956 (1974).

ij -il-

"An action

——— _ =.

sie - ow of Wao ' an Drier Suit “ Order of District Court in Prior Suit 47a

; ORDER OF COURT :

—

In our disposition of this action, we of

course are not unaware of the current financial hardships upon AND NOW. to-wit. this 7s” day of

, i , — +

the nonpublic schools and the burdens experienced by the September, 1974, it is hereby ORDERED and DIRECTED that the

plaintiffs who must pay public school taxes and at the same

| Motions to Dismiss filed by the defendants be and the same

time elect to support nonpublic schools. However, we are hereby are granted

likewise mindful of the Supreme Court's views respecting

traditional limitations of federal courts’ functions when in |

“7? Ths a

Jun Lf 4e? '

San Antonio School District v. Rodriguez, 411 U.S. 1, 58 (1973), United States Disteict Judge

it stated: f J

“The consideration and initiation of fundamental po

reforms with respect to state taxation and education

cc: Rex Downie, Jr., Esq.

714 Fourteenth Street

Beaver Falls, Pennsylvania 15010

Attorney for Plaintiffs

are matters reserved for the legislative processes

of the various States, and we do no violence to the

values of federalism and separation of powers by , gt he

staying our hand." Reaver Falls. Pennsvlvania

Solicitor for biackhawk School Boara

An appropriate order shall be entered. | om 5. ee. Se

Beaver Falls, Pennsylvania 15010

Solicitor for Big Beaver Falls Area School Board

| J. Justin Blewitt, Jr., Esq.

Deputy Attorney General

Commonwealth of Pennsylvania

State Capitol Annex

Harrisburg, Pennsylvania 17120

| Attorney for Commonwealth of Pennsylvania

of 3a

48a Statutes Involved

PUBLIC SCHOOL CODE OF 1949

2 * . es . . * ° .

§ 2--213. Right to sue and be sued

Each school district shall have the right to

sue and be sued in its corporate name. Any legal

process against any school district shall be served

on the president or secretary of its board of

school directors. 1949, March 10, P.Le 30, art.

II, § 213.

§ 6--602. Tax levies

All taxes required by any school district, in

addition to the State appropriation, shall be levied

by the board of school directors therein. 1949,

March 10, P.Le 30, art. VI, g 602.

eo * e e s . = e s

§ 6--610. Use of school funds; illegal use

The board of school directors in every school

district shall have the right to use and pay out,

in the manner herein provided, any funds of the

district for any and all of the purposes therein

provided, subject to all the provisions of this

act. The use or payment of any public school

funds of any school district, in any manner or for

any purpose not provided in this act, shall be

illegal. 1949, March 10, P.L. 30, art. VI, g 610.

Statutes Involved 49a

§ 6--652. Tax levy; purposes; limitations

In all school districts of the first class and

first class A the school taxes for the following

fiscal year shall be levied annually, by the board

of public education thereof, on or after the

second Monday of November and before the first

Monday of December following. The board of public

education thereof shall annually levy a tax on

each dollar of the total assessments of all prop-

erty assessed and certified for taxation in said

district, which tax shall be ascertained, deter-

mined, and fixed by adding together the following:

(1) An amount which, with all moneys received

from the Commonwealth applicable thereto, shall

be sufficient to pay the minimum salaries and in-

crements of the teaching and supervisory staff

thereof as fixed and provided by law and to pay

the contributions of said district to the teachers'*

retirement system. For the purpose of computing

the amount required to pay the mimimum salaries

and increments fixed by law, but without otherwise

limiting the rights of the district to employ

teachers or other employes, (i) The number of

teachers on the salary schedule of the elementary

schools shall not exceed one for every thirty

pupils in average daily membership in such schools,

(ii) The number of teachers on the salary schedule

of the junior high schools shali not exceed one for

every twenty-two pupils in average daily membership

in such schools, (iii) The number of teachers on

the salary schedule of the senior high schools

50a Statutes Involved

shall not exceed one for every twenty-two pupils

in average daily membership in such schools, (iv) y

The number of teachers with salaries and incre-

ments fixed by law, on any salary schedule now ode

established or hereafter established, and not

specially mentioned in this act, shall not exceed

one for every twenty-two pupils in average daily

membership, (v) The number of principals in the

elementary schools, and the principals in charge

of all other character of schools now established

or hereafter established, and not specially men-

tioned in this act, shall not exceed one for every

six hundred pupils in average daily membership

in such schools, (vi) The number of principals in

the junior and senior high schools shall not ex- _— |,

ceed one for every twelve hundred pupils in average

daily membership in such schools, (vii) The number

of supervisors in all schools shall not exceed

one for every fifteen hundred pupils in average

daily membership, (viii) The number of attendance

officers and home and school visitors shall not

exceed one for every two thousand pupils in

average daily membership in all elementary and

secondary schools, (ix) In all adult and extension

school classes, the number of teachers shall not

exceed one for every twenty pupils in average

daily Membership in such schools.

The salary and increments, fixed by law, of

members of the teaching and supervisory staff

whose number is not in some manner limited hereby,

shall not be included within the purposes author-

ized by clause (1) of this section, but shall be

construed and regarded as constituting expenses

within the meaning of clause (3) of this section.

Statutes Involved Sla

Average daily membership, as used herein, shall

be based upon membership during the preceding school

term.

(2) An amount sufficient to pay the interest on,

and retire at maturity the principal of, the indeb-

tedness of said district incurred as authorized by

law.

(2.1) An amount sufficient to pay any rentals

agreed to be paid to the State Public School Build-

ing Authority or any other authority created by the

General Assembly, having State-wide jurisdiction.

(3) An amount sufficient to pay all other ex-

penses and requirements of said school district,

which amount shall be equivalent to not less than

three, nor more than five, mills on the dollar of

the total assessment of all property assessed and

certified for taxation therein.

The total annual school tax levy for all purposes

in any school district of the first class shall not

be more than eleven and three-quarter (11 3/4) mills

on the dollar of the total assessment of all prop-

erty assessed and certified for taxation in the

territory constituting the district. 1949, March

10, P.L. 30, art. VI, § 652; 1949, May 2, P.L. 855,

§ 1; 1949, May 9, P.Le 1017, § 13; 1951, May 29, P.L.

436, § l.

52a Statutes Involved

§ 6--674. Property subject to tax; districts second

class

In school districts of the second class, the

school taxes shall be levied and assessed on the

real estate and personal property therein, as (a) In order that the board of school directors of

contained in the assessment used for tax purposes each school district of the second, third, or fourth

in the city, borough, incorporated town or town-

ship in which the school district is located.

Where the school district of the second class is

not located wholly within the boundary lines of a on each resident or inhabitant over twenty-one years

city, the school taxes shall be levied and assessed of age in the district, it shall be the duty of the pro-

on the real estate and personal property therein

Statutes Involved 53a

* § 6--680. List of residents for per capita tax purposes

class may assess, levy, and collect a per capita tax

of not less than one dollar nor more than five dollars

per assessors in each such school district to prepare

as contained in the assessment made for county tax

purposes. 1949, March 10, P.L. 30, art. VI, § 674;

1949, May 9, P.L. 937, § 1. ‘|* district over twenty-one years of age, and return

a list of residents or inhabitants in such school

° . ) ° ° . * ° . ° the same with the other taxable property in the district,

§ 679. Per capita taxes as provided by law. In each school district all such

Each resident or inhabitant, over twenty-one lists of residents or inhabitants shall be included

years of age, in every school district of the and certified in the list of taxable property to be cer-

second, third, and fourth class, which shall levy

such tax, shall annually pay, for the use of the

school district in which he or she is a resident

or inhabitant, a per capita tax of not less than assessment district includes the whole or parts of

tified to the board of school directors in each such

school district, as herein provided. Assessors whose

one dollar nor more than five dollars, as may be more than one school district shall return separate

assessed by the local school district. Every |

husband against whose wife a per capita tax is

levied shall be liable for the payment of such ae

taxe Collection thereof from such husband may be (b) Every resident or inhabitant in any school dis-

made and enforced in the manner provided by law

for the collection and enforcement of payment of

other taxes owing by such husband, including the

collection thereof from the husband's employer.

1949, March 10, P.Le 30, art. VI, § 679.

ae See TT Ne Ne a 8 eC Ee NT aT Ee Ee

lists of residents and inhabitants of each such school

district.

trict, upon attaining twenty-one years of age, and every

54a Statutes Involved

person twenty-one years of age or over becoming a resi-

dent or inhabitant in any school district, shall, within

twelve months after the happening thereof, notify the

proper assessors of his becoming of age or becoming a

resident or inhabitant. Any person failing, within said

period, to notify the assessors of the school district

within which he resides, shall, in addition to the tax

levied by such school deaeeiae. be liable to such schooi

district in a penal sum equal to such tax.

The board of school directors shall, at the same time

as they give public notice of a proposed budget, include

a notice of the requirements of this subsection, together

with the name and address of the assessor to be nctified.

1949, March 10,P.L.30,art.VI,§680:1951,June 30,P.L.962,

No.193,§1.

“fe

Statutes Involved

55a

§ 6-686. Delinquent taxes; appointment of collector; etc.

(a) In all school districts of the second, third and

fourth class, all unpaid school taxes assessed and levied

upon real property upon which there is no personal pro-

perty out of which the same can be collected, shall be

certified by the tax collector to the secretary of the

board of school directors, together with a proper des-

cription of the property upon which the same is levied,

on or before the first day of June in each year. All

delinquent school taxes so certified to the board of

school directors in any school district of the second,

third or fourth class, by any school tax collector,

shall be collected by said board as provided by law.

(b) The board of school directors in such district may

annually, on or before the first Monday of July in each

year, appoint one or more suitable persons, as delin-

quent tax collectors in said school district, to collect

any and all school taxes froin the collection of which

the original tax collector has been exonerated, in

accordance with the laws of this Commonwealth, and which

taxes still remain unpaid upon any of the school tax

duplicates, other than such unpaid school taxes as shall

56a Statutes Involved

have been filed as liens in the office of the prothono-

tary, or have been returned to the county commissioners

for sale. Such delinquent tax collector or collectors

shall, upon the certification over to him or them of

such taxes so remaining unpaid, proceed to collect the

same from the persons respectively charged therewith,

for which purpose he or they shall have all the authority

and power now vested by law in any collector of school

taxes for the collection of such taxes. The board of

school directors issuing the original warrants shall issue

an additional warrant to the collector or collectors of

such delinquent taxes so appointed.

shall give bond in the sane manner as required of the

original tax collector, and shall be paid such commis-

sions or compensation as is paid the regular collector.

Such commissions or compensation shall be paid by proper

orders drawn on the school treasurer as other accounts

are paid by the school district. Every such collector

of delinquent school taxes shall be responsible and

account to the board of school directors for all such

taxes collected by him in like manner and in accordance

with existing laws pertaining to school tax collections.

1949 ,March 10 »P.L.30 ,art.VI,§686.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.