# Appendix — Allen v. Pittenger

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 858

## Text

rome Overt, ¥. &
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

an
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 -

an
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

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
oe ee eee peccceces paseo
PO CPOE de dackeviovevecderctddweseese
ee Ee 0 b45.50500 000 46246800005 40006

Page

la

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21a

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31a
33a
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47a

48a
48a
48a
49a
52a
52a
53a
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
| owtwormce va. mamen |mo.cavveani? ® [9 ® Iasi oTmen| mumeen | com | vR ow
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

-_—

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 ~ 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
6/

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
7/

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
0
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
Li

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
H

ling Statc "

ne

\)

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.

(c) Collectors of delinquent school 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.

ee aay

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2237%3A2. Public record. Not legal advice.