# Petition for Writ of Certiorari — Berks County v. Murtagh

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1609%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1104

## Text

| Supremes Court, U.8,
| '
No. P l ” a7 D

GH11 87 wan 25
tas QEBICE OF THE CLERK

Supreme Court of the United States

o~—
October Term, 1995

COUNTY OF BERKS AND THE BERKS COUNTY BOARD
OF ASSESSMENT APPEALS,

Petitioners,
VS.
MERRY J. MURTAGH, et ai.,

Respondents.

Petition for Writ of Certiorari to the Commonwealth
Court of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

JOSEPH C. MOSSOP DANIEL B. HUYETT

CERULLO DATTE Counsel of Record
& WALLBILLICH, P.C. E. THOMAS HENEFER

Special Counsel to Petitioner STEVENS & LEE
the Berks County Board of Special Counsel to Petitioner
Assessment Appeals the County of Berks
Second Street and 111 North Sixth Street
Laurel Boulevard P.O. Box 67°
Pottsville, Pennsylvania 17901 Reading, Pennsylvania 19603
(717) 622-0767 (610) 478-2000

(800) 3 APPEAL « (800) 5 APPEAL » (800) BRIEF 21

I. QUESTIONS PRESENTED

Whether, by ignoring this Court’s decision in
National Private Truck Council, Inc. v. Oklahoma
Tax Commission, 115 S. Ct. 2351 (1995), and its
specific admonition that a prior decision by the
Pennsylvania Supreme Court in this case requiring
State courts to hear challenges to local taxes under
42 U.S.C. §1983 was incorrect, the Pennsylvania
Supreme Court’s decision to permit a taxpayer
class action to proceed under §1983 for money
damages so eviscerates the long-standing federal
policy against interference with local taxation that
review and reversal by this Court are necessary.

Whether the Court should grant the writ to
establish a uniform national policy for
determining municipal liability under 42 U.S.C.
§1983 pursuant to Monell v. New York City
Department of Social Services, 436 U.S. 658
(1978), and its progeny in light of the
Pennsylvania courts’ decision that state legislative
delegation of “final policymaking authority” for
municipalities to county boards of assessment
shields the municipalities from §1983 liability for
their improper collection of local taxes.

(i)

Il. PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE

The Petitioners are the County of Berks,
Pennsylvania and the Berks County Board of Assessment
Appeals, defendants in the proceedings before the trial
court, appellees in the proceedings before the
Pennsylvania Commonwealth Court and petitioners in the
proceedings before the Pennsylvania Supreme Court.
Petitioners have no parent companies or non-wholly
owned subsidiaries requiring disclosure under Rule 29.6.

The following respondents were Plaintiffs
in the proceedings before the trial court, appellees in the
proceedings before the Pennsylvania Commonwealth
Court and petitioners in the proceedings before the
Pennsylvania Supreme Court: Merry J. Murtagh;
Spencer Lee Cherashore, Frederick Murtagh; Mary S.
Murtagh; Anthony Gigliotti; George Chovanes; Margaret
Chovanes; Michael Chovanes;-LRM Ziegenfuss, a
Pennsylvania partnership; and Concetta C. Good.

The following respondents were additional
defendants in the proceedings before the trial court,
appellants in the proceedings before the Pennsylvania
Commonwealth Court and respondents in the proceedings
before the Pennsylvania Supreme Court: Boyertown
Area School District; Daniel Boone Schoo! District;
Exeter Township School District; Fleetwood School
District; Governor Mifflin School District; Kutztown
School District; Muhlenberg School District; City of

(ii)

Reading School District; Schuylkill Valley School
District; Wilson School District; Wyomissing Area
School District; Hamburg School District; Twin Valley
School District; Greenwich Township; Marion Township;
Brecknock Township; Centre Township; Maxatawny
Township; Caernarvon Township; Borough of Kutztown;
Borough of St. Lawrence; Borough of West Lawn;
Borough of Hamburg; Borough of Laureldale; Oley
Valley School District; Borough of Centerport, Upper
Bern Township; Borough of Bechtelsville; Borough of
Kenhorst; Leesport Borough; Colebrookdale Township;
Cumru Township; Muhlenberg Township; Upper Bern
Township; Conrad Weiser School District; Borough of
Wyomissing Hills; Borough of Birdsboro; Borough of
West Reading, Township of Heidelberg, Township of
Lower Heidelberg, Township of Oley, Township of
Tilden, Township of Upper Tulpehocken; and Township
of Douglass.

(ili)

lil. TABLE OF CONTENTS

Page
l, QUESTIONS PRESENTED ..... cs cvcsce (i)
Il. PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE ........... (ii)
il. TABLE OF CONTENTS ......cccc000. (iv)
IV. TABLE OF CITED AUTHORITIES ....... (vi)
V. JURISDICTIONAL STATEMENT ........ l
VI. CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED ............. l
Vil. STATEMENT OF THE CASE.......... 2
VIII. REASONS FOR ISSUANCE OF
pis es 7
A. The Avalanche of Litigation
Following Webster and Murtagh |
and the Erosion of the Federal
Policy of Non-interference With
i ee eo a ee ee eo es 7

B. The Court Should Resolve The
Conflict Over the Viability of

(iv)

§1983 Claims Challenging Local

EG or a lh ee ee + 6 88 Oe 12
G. The Municipal Defendants May Be
Liable Under §1983 Because Of
The Board’s Final Policymaking
ee na ne eee ee 17
D. The Court Has Jurisdiction to Hear
This Appeal. .....--2-+-e2e08: 23
ee: + fi tl rere re eee 29

VII. APPENDICES

A.

Opinion of the Pennsylvania
Commonwealth Court, Pellegrini, J., dated
January 9, 1992

Opinion of the Pennsylvania Supreme
Court, Flaherty, J., dated November a
1993

Opinion of the Commonwealth Court,
Kelley, J., dated May 26, 1995

Order of the Pennsylvania Supreme Court,
dated November 22, 1995 denying
petitions for allowance of appeal

Constitutional Provisions and Statutes

(v)

IV. TABLE OF CITED AUTHORITIES

Cases Page
Alderman v. County of Cumberland, No. 857-1994,
Court of Common Pleas of Cumberland County .... 8

Alexander v. Mastercraft, 455 Pa. 579,
ciy@ ® &> 5: (Pere oer eree 24

Allegheny Pittsburgh Coal Co. v. County
Commission of Webster County, 488 U.S. 336
GRPED 8 ects tcdsabheseeevesee eee 3, 7-9, 27

Averback v. Board of Assessors, 176 A.D.2d
1151, 375 N.Y¥.5.28 964 (1991) 2... 00 0c. ... 9

Balazik v. County of Dauphin, 44 F.3d 209
oo o> SP. ee ee ee g 9

Behe v. Chester County Board of Assessment
Appeals, 952 F.2d 66 (3d. Cir. 1991) ..... 8 10, 16

Brennan v. County of Wayne, No. 323-1994,
Court of Common Pleas of Wayne County ....... 8

Calcagni v. Board of Assessments Appeals

of Lehigh County, 55 Pa. Commw. Ct. 39,
3 B&F tee = ee 27

(vi)

iforni rethren Church,
457 U.S. 393 (1982) ....--- eee eee renee

hasalow Vv rd of rs. 202 A.D.2d
499. 609 N.Y.S.2d 27 (1994)... 2. ee eee eee

itizen hern Nat’! Bank v.
Bougas, 434 U.S. 35 Se

City of St. Louis v. Praprotnik, 485

U.S. 112 (1988) .. wee eee cece: 18, 19, 22,

Cohen v. California, 403 U.S. 15 en ou~eee «s

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1975)25,

Crane v. Texas, 766 F.2d 193 (Sth Cir. 1985),
cert. denied, 474 U.S. 1020 DS iwwes «a Local
Governments argue that similarly, a state court should
not entertain a Section 1983 action, enabling Taxpayers
to circumvent the statutory scheme set forth in the
General County Assessment Law (GCAL)* and the
Third Class County Assessment Law (TCCAL).'

Taxpayers do not disagree that federal
courts have routinely refrained from interfering with the
administration of state taxes, including the district court

in Sunderland Properties, under the principles set forth in

’ The Tax Injunction Act of 1937 provides that:

The district courts shall not enjoin,

Suspend or restrain the assessment,
levy or collection of any tax under
state law where a plain, speedy and

efficient remedy may be had in the
courts of such state.

28 U.S.C. §1341. (Emphasis added.)

: Act of May 22, 1933, P.L. 853, as amended, 72
P.S. §§5020-101-5020-602.

: Act of June 26, 1931, P.L. 1379, as amended, 72
P.S. §§5342-5350j.2. This act does not have an
official name but is commonly referred to as the
Third Class County Assessment Law.

5-A

Fair Assessment In Real Estate v. McNardy, 454 U.S.
100 (1981). In Fair Assessment, the Supreme Court

found that while the Tax Injunction Act only bars
injunctive action, the principle of comity* bars actions

: The Supreme Court in Fair Assessment cited their
decision in Younger v. Harris, 401 U.S. 37, 44-45

(1985), where they explained:
[That] the notion of ‘comity,’. . .is,
a proper respect for state functions,
a recognition of the fact that the
entire country is made up of a Union
of separate state governments, and a
continuance of the belief that the
National Government will fare best if
the States and their institutions are
left free to perform their separate
functions in separate ways. . .[T]he
concept [represents] a system in
which there is Sensitivity to the
legitimate interests of both State and
National Governments, and in which
the National Government, anxious
though it mzy be to vindicate and
protect federal rights and federal
interests, always endeavors to do so
in ways that will not unduly interfere
with the legitimate activities of the
States. It should never be forgotten
that this slogan, "Our Federalism.’

6-A

for monetary damages as well. Id. at 180. By enacting
the Tax Injunction Act, the Supreme Court stated that
Congress recognized that the autonomy and fiscal
stability of states survive best when their tax systems are
not subject to scrutiny in federal courts. Id. at 102-103.
The court reasoned that allowing actions for monetary
damages would be just as intrusive and disruptive to the
States’ revenue collection system as the actions for
injunctive relief specifically barred under the Tax
Injunction Act. Id. at 114-115. It then went on to state
that “[s]uch taxpayers must seek protection of their
federal rights by state remedies, provided, of course, that

those remedies are plain mplete

[footnote omitted]’ and may ultimately seek review of

born in the early struggling days of
our Union of States, occupies a
highly important place in our
Nation’s history and its future.

Fair Assessment, 454 U.S. at 112.

The omitted footnote stated that the court discerned
no significant difference between remedies which
are “plain, adequate, and complete,” as the phrase
is used to articulate the doctrine of equitable
constraint under comity, and those that are “plain,
speedy and efficient,” within the meaning of the

Tax Injunction Act. Fair Assessment, 454 U.S. at
116 n.8.

the state decisions in this court." Id. at 116.*
(Emphasis added.)

Taxpayers counter, however, that the
defense of comity and the prohibitions contained in the
Tax Injunction Act are not defenses that are applicable in
State courts. Because comity is a doctrine based upon
“the need for federal court restraint", "the fundamental
principle of comity between federal courts and state
courts” and the “respect that should be accorded state tax
laws", as well as the “question of state law. . . like
other state regulatory issues are heard in state court,” Id.
at 103, 108, 109, none of those concerns expressed in
Fair Assessment and its progeny are applicable when a
cause of action is brought in the state forum. They
contend that state courts present no danger of federal
court interference or misunderstanding, and the
abstention based upon comity simply then is inapplicable.
Moreover, Taxpayers contend inat the Tax Injunction Act
only applies by its very terms to preclude federal courts,
not state courts, from enjoining state tax schemes.

Justice Brennan, speaking for three other concurring
justices, would have found that the taxpayer must
exhaust the available administrative remedies prior
to bringing a Section 1983 suit, Stating that “the
requirement of exhaustion of state administrative
remedies was certainly a mandatory precondition to
suit and, in a sense, a "jurisdictional pre-requisite.’"

Fair Assessment, 454 U.S. at 137.

Since Maine v. Thiboutot, 448 U.S. 1
(1980), it has been settled that state courts have
concurrent jurisdiction with federal courts to hear Section
1983 claims. Uncertainty, however, existed as to
whether state courts were required to hear such claims or
whether they could decline to do so when they perceived
~ that to allow such a suit would be contrary to state law
or interest. Overturning a Florida Court of Appeal’s
decision declining to exercise section 1983 jurisdiction,
the Supreme Court in Howlett v. Rose, 110 S.Ct. 2430
(1990), in holding that there was no discretion by a state
court to entertain such claims, the reverse of comity,
discussed the method and enforcement of federal law in
State courts.

The Court in Howlett explained that the
“federal law is enforceable in state courts.....because the
Constitution and laws passed pursuant to it are as much
laws in the states as laws passed by the state legislature."
Id, at 2438. Expressing that state courts may not, except
in rare circumstances, deny a federal right when the
parties and controversy are properly before the state
court, the Supreme Court found that the overriding
federal interest requires that, "A state may not, by statute
or common law, create a cause of action under Section
1983 . . . ", nor may a state lessen the availability of a
Section 1983 action. Id, at 2439, 2442. The Supreme
Court held that in actions brought in state courts seeking
to enforce federal law, "the rights of, and the defenses
to, a federal cause of action are defined by federal law."
Id. at 2442.

The Supreme Court foreclosed the State
courts from expanding or limiting the availability of a
federal cause of action because Section 1983 advances
federal, and not state rights and interests. By doing so,
the Supreme Court, in effect, enunciated a principle that
while state courts are required to entertain federal causes
of actions, they should be guided by federal law to
determine how federal rights are to be enforced,°
thereby attempting to assure that the outcome of federal
Causes of actions would be the Same, regardless if
decided in a state or federal forum.

Other states have used this principle to
determine whether a Section 1983 challenge to state
administration of taxes can be maintained in state courts.
In Backus v. Chilivis, 236 Ga. 500, 224 S.E.2d 370
(1976), the Georgia Supreme Court held that a Section
1983 claim is not available under the principles set forth

. Quoting from Wilson v. Garcia, 471 U.S. 261, 269
(1985), the Supreme Court in Howlett Stated:

Congress surely did not intend to
assign to state courts and legislatures
a conclusive role in the formative
function of defining and
characterizing the essential elements
of a federal cause of action.

Howlett, 110 S.Ct. at 2444.

under the Tax Injunction Act, stating that "[t]he
overriding interests of the state in an efficient,
expeditious and non-disruptive resolution of ad valorem
[property] tax disputes would be severely impaired, if not
destroyed, by allowance of such suits." Id. at Soe
S.E.2d at 374. Echoing this reasoning, and applying Fair
Assessment, the Supreme Court of Missouri, in
Stufflebaum v. Pantethiere, 691 S.W.2d 271, 272 (Mo.
en banc 1985), stated that "if Section 1983 could be
invoked [in real estate tax cases], ’the obstruction to the
collection of taxes would be so frequent as to be
intolerable.’" (Citation omitted. )

Noting the absence of any language in Fair
Assessment, indicating that state courts are required to
entertain Section 1983 challenges to state taxation, the
Supreme Court of North Dakota in Linderkamp v.
Bismark School District No. 1, 397 N.W.2d 76, 79-80
(N.D. 1986), found that the Tax Injunction Act
recognizes "that state taxation embraces uniquely local
concerns, and that the greatest possible deference
(should) be paid to state remedial schemes." Id. at 79.
It then went on to state that "deference to state remedial
schemes leads to the conclusion that a state court §1983
action . . . is no less of a burden upon the state remedial
scheme than would be a Section 1983 action in federal
court." Id. See also Spencer v. South Carolina Tax
Commission, 281 S.C. 492, 316 S.E.2d 386 (1984),
aff'd mem., 471 U.S. 82 (1985); Johnson v. Gaston
County, 71 N.C. App. 707, 323 S.E.2d 381, appeal
denied, 313 N.C. 508, 329 S.E.2d 392 (1985); Zizka v.

Water Pollution Control Authority, 195 Conn. 682, 490
A.2d 509 (1985); Davis v. City of Eckhorn, 132 Wisc.

2d 394, 393 N.W.2d 95 (1986); Nutbrown v. Munn, 311
Or. 328, 811 P.2d 131 (1990); Hogan v. Musolf, 471

N.W.2d 216 (Wisc. 1991); L.L. Bean, Inc. v, Bracey,
S.W.2d __, 1991 WL 195305 (Tenn. No. 01501-
9010-CH -00087, ‘filed September 9, 1991)."°

10

Only two state courts have decided that a Section
1983 action can be maintained without requiring an
exhaustion of state remedies. The Supreme Court
of Mississippi in Burrell v. Mississippi State Tax
Commission, 536 So.2d 848, 864 (Miss. 1988),
held that their state courts must hear taxpayers’
actions brought pursuant to Section 1983, because
they have concurrent jurisdiction with the federal
courts, and the Supremacy Clause of the United
States Constitution requires that state courts enforce
the valid enactments of Congress, of which Section
1983 is one. Howeyer, the court never considered
the exhaustion of remedies argument advanced by
the concurrence in Fair Assessment, but simply
looked at the principle of comity espoused by the
majority, finding that it did not apply to state
courts. Id.

The Superior Court of New Jersey in Bung’s Bar &
Grille, Inc. v, Florence Township, 206 N.J. Super.

432, , 902 A.2d 1198, 1215-1216 (1985), held
that their courts must entertain these actions, since
New Jersey law demands that all issues of a

12-A

We join the consensus of other state courts
that a Section 1983 challenge to state tax administration
is not maintainable if state remedies afford the taxpayer
an opportunity for full and adequate relief. Both
Congress, by enacting the Anti-Tax Injunction Act, and
the Supreme Court, by its holding in Fair Assessment,
prohibiting or declining to exercise jurisdiction, have
decided that federal interests are not advanced by
allowing federal causes of action to intrude upon a
carefully formulated state system designed to rectify state
tax disputes. Since federal courts decline to exercise
jurisdiction because federal intrusion in state tax schemes
is unwarranted, state courts should also not interfere,
because its enforcement of Section 1983 is no less
intrusive or disruptive than if enforced by a federal
court."

controversy be included at the same time in a
lawsuit and the available administrative remedy did
not allow for civil rights claims. However, this
decision is not at odds with those of the majority of
other states, since the decision actually turned on
the fact that this joinder requirement deprived
plaintiffs of a “plain, speedy and efficient remedy.”
Id. at, 502. A.2d at 1215.

Taxpayers also rely on the recent U.S. Supreme

Court opinion in Dennis v. Higgins, 59 U.S.L.W.
4117 (1991). Dennis held that a taxpayer’s claim

brought in a Nebraska state court that a state tax
discriminates against non-residents in violation of

13-A

Because a Pennsylvania court has not
addressed this issue, we must now determine whether the
established administrative remedy provides Taxpayers
with a "plain, adequate, and complete" remedy. The
existing administrative procedures applicable to a
taxpayer’s appeal of a property assessment in Berks
County can be found in the General County Assessment
Law and the Third Class County Assessment Law.

the Commerce Clause is actionable under Section
1983. Taxpayers point to the language in the
dissenting opinion which states: "[t]oday’s decision
raises far more questions about the proper conduct
of challenges to the validity of state taxation than it
answers.” Id. at 4124. (Kennedy, J. dissenting.)
The dissenting opinion, alluding to the Tax
Injunction Act, and the court’s opinion in Fair
Assessment and the state supreme court cases of
Backus and Spencer, stated that the questions
regarding jurisdiction of the state courts over tax
actions "now become of paramount importance, as
we risk the destruction of state fiscal integrity in a
manner which may _ require congressional
correction.” Id. Because the majority in Dennis
never discusses whether the state court had subject
matter jurisdiction or whether there was a full and
complete remedy at state law, apparently because
those issues were not raised and because of the
unique procedural history of that case, it has no
impact on our decision.

14-A

The Third Class County Assessment Law
creates a three member Board of Assessment Appeals
(Board) in each county which must cause annual
assessment of property within its jurisdiction. Sections 1
and 3 of the TCCAL; 72 P.S. §§5342, 5344. Property
owners subject to these assessments must be duly
notified. Section 8(b) of the TCCAL; 72 P.S. §5349(b).
A property owner who is aggrieved by any assessment,
whether or not the assessment has been changed from the
previous year, has a right to appeal to the Board for
relief. Section 8(c) of the TCCAL; 72 P.S. §5349(c).
When such an appeal has been filed, the Board must
notify each person and each taxing district which has an
interest and has the power to compel the attendance of
witnesses and the furnishing of documents. Section 8(d)
of the TCCAL; 72 P.S. §5349(d).

Section 9 of the Third Class County
Assessment Law further provides that the aggrieved
property owner may appeal the final decision of the
Board to the county court of common pleas. 72 P.S.
§5350. The court of common pleas will proceed de

novo. Appeal of U.S Steel Corporation, 436 Pa. 435,
260 A.2d 779 (1970); Valley Forge Golf Club, Inc. v.
Board of Assessment and Revision of Taxes of

Montgomery County, 3 Pa. Commonwealth Ct. 644, 285
A.2d 213 (1971).

The General County Assessment Law also

applies to Berks County, where it is not inconsistent with
the Third Class County Assessment Act. Art. I, §105 of

15-A

the GCAL; 72 P.S. §5020-105: Truck Terminal Motels

f
Appeals, 127 Pa. Commonwealth Ct. 408, 561 A.2d
1305 (1989) petition allowance of appeal denied, 525 Pa.
625, 581 A.2d 576 (1990). The General County
Assessment Law provides that the Board in each county
shall hear property owners’ appeals of tax assessments.
Art. V, §511 of the GCAL; 72 P.S. §5020-511. The
decision of the Board can then be appealed to a court of
common pleas for a de novo proceeding, with further
appeals to the Superior and Supreme Courts. Art. V,
§§518.1, 518.2, and 519 of the GCAL; 72 P.S. §§5020-
518.1-2, 5020-519.

The federal courts in Pennsylvania have
already addressed the issue ui whether the General and
Third Class County Assessment Laws provide a taxpayer
a plain, adequate, and complete remedy."* In Garrett v.
Bamford, 582 F.2d 810 (3rd Cir. 1978), the United
States Court of Appeals for the Third Circuit held that
the district court properly abstained from entertaining a
Section 1983 class action challenging alleged

The Pennsylvania courts are not bound by the
decisions of the federal courts, except those of the

United States Supreme Court. See Department of

Envir Vv :
133 Pa. Commonwealth Ct. 577, 578 A.2d 563
(1990); Ci iv - Vi , 334 Pa.

Superior Ct. 1, 482 A.2d 1049 (1984).

16-A

discriminatory property tax assessments brought by
property owners in Berks County. The Third Circuit
held that the class action was precluded in federal court
under the Tax Injunction Act, since the Third Class
County Assessment Law, affording administrative appeal
with judicial review to a class, provided them with a
plain, speedy and efficient remedy. Id. at 819.

The Third Circuit in Garrett went on to
state that the property owner’s allegation that the
assessments were not uniform and violated the Equal
Protection Clause of the Fourteenth Amendment to the
United States Constitution could be asserted under
Article VIII, §1 of the Pennsylvania Constitution” and
addressed by the Board and by the court of common
pleas at the de novo proceeding. The court, citing Buhl
Foundation v. Board of Property Assessment, 407 Pa.
567, 570, 180 A.2d 900, 902 (1962), stated that it is the
Board’s and the Court of Common Pleas’ duty to

” This Article of the Pennsylvania Constitution

provides that:

All taxes shall be uniform, upon the
same class of subjects, within the
territorial limits of the authority
levying the tax, and shall be levied
and collected under general laws.

Pa. Const. art. VII, §1.

17-A

determine the value of the property, and between the
standard of actual value and the standard of uniformity,
uniformity must prevail. Garrett, 582 F.2d at 816.
Therefore, the court reasoned, an action pursuant to
Section 1983 would not afford the taxpayer any more

relief than he would receive under Pennsylvania law. Id.

at 817.

Moreover, as previously mentioned in a
recent case involving the exact same allegations
concerning the so-called "Welcome Stranger” policy in
Berks County, the United States District Court for the
Eastern District of Pennsylvania ruled that the principle
of comity relied on by the majority in Fair Assessment

barred the taxpayer’s action in federal court. Sunderland

Properties, Inc. v. County of Berks, 750 F.Supp. 704,
710. The court in Sunderland further stated that the
principle of comity would bar the action only if the
plaintiff was provided a "plain, adequate and complete”
remedy under state law. Id. at 707.

In determining whether the plaintiff’s
remedy was plain, adequate and complete, the
Sunderland court stated that:

A plaintiff's state remedy is plain,
speedy and efficient if it provides the
taxpayer with a full hearing and
Judicial determination at which the
taxpayer may raise federal

nstitutional objections. Rosewell

18-A

ee eg eee

v. LaSalle National Bank, 450 U.S.

503, 514 (1981)... .The state
remedy that will suffice need only be
adequate, and need not be
coextensive with the remedies in
federal court. In other words, the
State remedy that will meet the
requirement of plain, speedy and
efficient need not be the best or most
convenient one.

Id. at 707. (Citations omitted.) (Emphasis added.)

The District Court found the remedy to be
plain, adequate and complete, since the General County
Assessment Law, specifically 42 P.S. §5020-5 18.1, gave
the court of common pleas broad powers to grant
appropriate relief, which would include the consideration
of constitutional issues. Id. at 708-710. The court found
nothing in the procedures provided under the General and
Third Class County Assessment Laws which would
prevent plaintiffs from raising their constitutional issues.
Id. at 708.

The consideration of constitutional issues
by the Board and the Court of Common Pleas in tax
assessment Cases is also well recognized by the
Pennsylvania courts. See Borough of Greentree v. Board
of Property Assessments, 459 Pa. 262, 328 A.2d 819

(1974); McKnight Shopping Center, Inc. v. Board of
Property Assessment, 417 Pa. 234, 209 A.2d 389

19-A

(1965); ion Vv

of Clinton, 80 Pa. Commonwealth Ct. 10, 470 A.2d

1113 (1984); Concerned Taxpayers of Beaver County v.
Vv , 75 Pa.

Commonwealth Ct. 443, 462 A.2d 347 (1983).

Since Taxpayers may raise their
constitutional contentions through an exhaustion of the
existing administrative procedures, we also hold that the
General and Third Class County Assessment Laws
provide Taxpayers with a plain, adequate and complete
remedy. The statutory procedures provide a full hearing
before the Board, followed by a de novo judicial
determination of the Board’s decision by the court of
common pleas. Taxpayers may properly raise their
constitutional issues before the Board and before the trial
court on appeal. Taxpayers present action circumvents
the established administrative procedures for reviewing a
tax assessment and should be dismissed."

Accordingly, we will reverse the order of
the trial court and remand with instructions to dismiss the
entire action for lack of subject matter jurisdiction.

DAN PELLEGRINI, JUDGE

" Due to our resolution of this case on this issue, we

need not address Local Governments’ contentions
contained in their appeal at 625 C.D. 1991.

20-A

IN THE COMMONWEALTH COURT OF
PENNSYLVANIA

GREENWICH TOWNSHIP.
et al.,
Appellants

v. : No. 625 C.D. 1991

MERRY J. MURTAGH, et al.,
Appellees

BOROUGH OF WYOMISSING
HILLS, BOROUGH OF
BIRDSBORO, BOROUGH OF
WEST READING, et al.,
Appellants

Vv. : No. 771 C.D. 199]

MERRY J. MURTAGH,
SPENCER LEE
CHERASHORE, FREDERICK
MURTAGH, et al.,

Appellees

ORDER

AND NOW, this 9th day of January,
1992, the order of the Berks County Court of Common

Pleas dated January 23, 1991, is reversed and remanded
with instructions to dismiss the entire action for lack of
subject matter jurisdiction.

Jurisdiction relinquished.

DAN PELLEGRINI, JUDGE

22-A

- eats

IN THE COMMONWEALTH COURT OF
PENNSYLVANIA

GREENWICH TOWNSHIP,
et al.,
Appellants

v. : No. 625 C.D. 1991

MERRY J. MURTAGH, et al.,
Appellees

BOROUGH OF WYOMISSING
HILLS, BOROUGH OF
BIRDSBORO, BOROUGH OF
WEST READING, et al.,

Appellants
v. : No. 771 C.D. 1991
: Argued:

MERRY J. MURTAGH, : September 11, 1991
SPENCER LEE
CHERASHORE, FREDERICK
MURTAGH, et al.,
Appellees

BEFORE: HONORABLE DAVID W. CRAIG, President

Judge
HONORABLE JOSEPH T. DOYLE, Judge

23-A

HONORABLE JAMES GARDNER COLINS,
Judge 7

HONORABLE MADALINE PALLADINO,
Judge

HONORABLE BERNARD L. McGINLEY,
Judge

HONORABLE DORIS A. SMITH, Judge

HONORABLE DAN PELLEGRINI, Judge

OPINION BY JUDGE PELLEGRINI
Filed January 9, 1992

I disagree that the taxpayers present action
should be dismissed for failure to exhaust administrative
procedures. Since taxpayers claim Section 1983
violations as a result of the County and Board’s practice,
they need not exhaust administrative remedies to pursue
their claims. See Felder v. Casey, 487 U.S. 131 (1988)
(exhaustion of administrative remedy not required where
Section 1983 claim brought in state, as well as federal,
forum). Also, see Patsy vy. Florida Board of Regents,
457 U.S. 496 (1982), and this Court’s holding in City of
Lancaster v. f Lancaster, _ Pa.
Commonwealth Ct. = A.2d_____—s (No. 2171 C.D.
1990, filed November 15, 1991). Thus, the Court of
Common Pleas of Berks County properly determined that
it had subject matter jurisdiction in this case.

DORIS A. SMITH, JUDGE

ee tee ee

ii ai

OR TERME ENTRAR, ANNIE. RE ert

mo
-
=
oo
ma
i

25-A

Se REIN om SINTRA TURES EN PORN

[J-55-93]

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

MERRY J. MURTAGH, : No. 34 M.D. Appeal

SPENCER LEE : Docket 1992
CHERASHORE, ;

FREDERICK : Appeal from the Order of
MURTAGH, et al., : the Commonwealth Court

Appellants : dated January 9, 1992,
: Nos. 625 C.D. 1991 and

v. : 771 C.D. 1991, reversing
: the Amended Order of the
COUNTY OF BERKS, : Court of Common Pleas
et al., : of Berks County dated

Appellees : March 7, 1991, at
: No. 5182-89 AD

: 144 Pa. Cmwith. 624, 601
: A.2d 1352 (1992)

: ARGUED: March 8, 1993
PIN T RT

MR. JUSTICE FLAHERTY
DECIDED: NOVEMBER 10, 1993

Merry J. Murtagh and other taxpayers
appeal an order of Commonwealth Court reversing an

» te

26-A

Pn oS dein eile “tee ea |

order of the Court of Common Pleas of Berks County
and remanding with instructions to dismiss the action for
lack of subject matter jurisdiction. The trial court had
concluded that it had subject matter jurisdiction over a
class action brought by the taxpayers against the County
of Berks and other local government units under 42
U.S.C. § 1983' challenging the constitutionality of the
manner in which property is assessed for real estate tax

purposes.

The taxpayers, representing a class of
recent purchasers of real estate in Berks County, filed an
amended complaint, after exhausting state administrative

; 42 U.S.C. §1983 (1988) creates a remedy for
violations of federal rights committed by persons
acting under color of siate law. Section 1983
provides as follows:

Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State. . .,
subjects, or causes to be subjected,
any citizen of the United States or
other person within the jurisdiction
thereof to the deprivation of any
rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured in
an action at law, suit in equity, or
other proper proceeding for redress.

27-A

remedies, against the local governments.* They asserted
that the local governments had adopted a discriminatory
“Welcome Stranger” policy. This policy results in the
reassessment of recently purchased realty based on the
purchase price while making no modifications in the
assessment of comparable property not recently sold.’

a

The taxpayers originally sued the County of Berks,
the Berks County Board for the Assessment and
Revision of Taxes and the Berks County Board of
Assessment Appeals. The county and the board
filed a number of preliminary objections to
taxpayers’ complaint. The trial court sustained only
one of the objections finding that taxpayers had
failed to sue the taxing authorities which were
indispensable parties. As a result, taxpayers filed
an amended complaint joining all taxing authorities
in the county, nearly 100 cities, boroughs,
townships, and school districts, herein referred to as
the local governments.

The Constitution and statutes of the Commonwealth
embody a system of taxation that requires property
to be taxed at a uniform rate according to its
estimated actual market value. See Pa. Const. art.
VIII, §1; 72 Pa.C.S. §5020-101 et seg. and §5342

et seq.

The Commonwealth Court recently invalidated a
county tax assessment scheme where it found that
the county violated the uniformity requirement of

28-A

The taxpayers alleged that this practice violated their
equal protection rights under the Fourteenth Amendment
and, because the reassessments were done under color of
state law, constituted a violation of 42 U.S.C. § 1983.‘

the state Constitution and equalization requirement
of the statute governing assessments by third-class
counties. See City of Lancaster v. County of
Lancaster, 143 Pa. Cmwlth. 476, 599 A.2¢ 289
(1991).

The substance of the taxpayers’ complaint is that
the "Welcome Stranger” policy of Berks County
causes de facto discrimination and violates the
Equal Protection Clause of the Fourteenth
: Amendment to the United States Constitution.
Taxpayers cite, as authority for their claim,
Allegheny Pittsburgh Coal Co. v. County
Cominissioner of Webster County, 488 U.S. 336,
109 S.Ct. 633, 102 L.Ed.2d 688 (1989). There,
the Supreme Court held that the de facto
discrimination engendered by a "Welcome Stranger"
policy in a “current value” taxation system violated
said Equal Protection Clause. See also Nordlinger
¥ ee US... 992 S.Ct. 2306, 100
L.Ed.2d 1 (1992).

Given the procedural posture of this case, it is
| inappropriate to comment on the merits of the
7 taxpayers’ case.

29-A

The local government defendants filed
preliminary objections to the amended complaint based
on, among other things, a lack of subiect matter
jurisdiction. The trial court dismissed both sets of
preliminary objections, and certified the issue for appeal
pursuant to Pa. R.A.P. 1311(b). Commonwealth Court
granted separate petitions for permission to appeal the
order, consolidated the appeals, and reversed.

The question presented is whether state
courts must entertain section 1983 class actions
challenging the constitutionality of a county’s tax
assessment procedure where plaintiffs have not exhausted
state administrative and judicial remedies. The local
governments contend that the trial court does not have
subject matter jurisdiction over such a section 1983
action, arguing that state courts should follow the
direction of the federal courts and refrain from
entertaining such suits where there are plain, adequate
and complete state administrative and judicial remedies.°

The local governments further argue that some state
courts have refrained from entertaining such suits.
See, ¢.g., Backus v. Chilivis, 236 Ga. 500, 224
S.E.2d 370 (1976). Since these cases pre-date
important Supreme Court cases discussed infra, we
do not find them probative of the issue presented.

Courts that do require their courts to hear section
1983 actions before exhaustion of state statutory

30-A

Federal courts have routinely refrained

from interfering with the administration of state taxes due
to the Tax Injunction Act, 28 U.S.C. § 1341, and

NN a re

remedies include Mississippi and New Jersey.

Burrell v, Mississippi State Tax Commission, 536
So.2d 848 (Miss. 1988) and Bung’s Bar & Grille.

Inc, v. Florence Township, 206 N.J. Super. 432,
502 A.2d 1198 (1985). In Burrell, the court held

that state courts must hear taxpayers’ actions
brought pursuant to Section 1983, because they
have concurrent jurisdiction with the federal courts,
because the Supremacy Clause of the United States
Constitution requires that state courts enforce the
valid enactments of Congress, of which section
1983 is one, and because the principle of comity did
not apply to state courts. In Bung’s Bar, the
Superior Court held that the state courts must
entertain section 1983 actions, since New Jersey
law demands that all issues of a controversy be
included at the same time in a lawsuit and the
available administrative remedy did not allow for
civil rights claims. Neither court addressed the
exhaustion of remedies argument.

See also Nutbrown v. Munn, 311 Ore. 328, 811
P.2d 131 (1990); Hogan v. Musolf, 471 N.W.2d
216 (Wisc. 1991),1 and L.LO. Bean, Inc. v.
Bracey, 817 S.W.2d 292 (Tenn. 1991). In these
cases, section 1983 actions were entertained by state
courts.

31-A

principles of comity. In Fair Assessment In Real Estate
v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d
271 (1981), the Supreme Court of the United States ruled
that actions for injunctive relief and monetary damages
from a state property assessment procedure are barred in
the federal courts by the principle of comity. That court
said that comity concerns motivated congress to pass the
Tax Injunction Act which prohibits a district court from
enjoining, suspending or restraining the assessment, levy
or collection of any tax under state law where a plain,
speedy and efficient remedy may be had in the courts of
such state.° 454 U.S. at 103, 102 S.Ct. at 179, 70
L.Ed.2d at 275. By enacting that statute, congress
recognized that the autonomy and fiscal stability of states
survive best when their tax systems are not subject to
scrutiny in federal courts. 454 U.S. at 102-03, 102 S.Ct.
at 179, 70 L.Ed.2d at 275. The Supreme Court of the
United States also ruled that a similar action for
monetary damages is likewise barred as long as the state
provides for plain, adequate and complete remedies,

° The Tax Injunction Act of 1937, 28 U.S.C. §1341,
provides that:

The district courts shail not enjoin,
suspend or restrain the assessment,
levy or collection of any tax under
state law where a plain, speedy and
efficient remedy may be had in the
courts of such state.

32-A

, ¥ \ os welts” g Js a
si ali sR SRR A Ping ec chnlBeSen dN tSNO Lil BANE EEC C PRIS ILS BALIN EIR

Pa aS nell lS shaded ida Paw

eS ast Ren

because such actions are just as intrusive to the states’
revenue collection systems as the actions for injunctive
relief specifically barred under the Tax Injunction Act.
454 U.S. at 114-15, 102 S.Ct. at 185, 70 L.Ed.2d at
282. The court then stated that such taxpayers are to
seek protection of their federal rights by state remedies
provided that those remedies are plain, adequate, and
complete and may ultimately seek review of the state
decisions in the Supreme Court of the United States.
454 U.S. at 116, 102 S.Ct. at 186, 70 L.Ed.2d at 283.’

State courts are not bound by Fair
Assessment and its progeny. The Tax-Injunction Act
applies by its very terms to preclude federal courts, not
State courts, from enjoining state tax schemes.
Therefore, there is no danger of federal court
interference or misunderstanding. Likewise, abstention
based on comity has no application when a section 1983

The Court discerned no significant difference
between remedies which are "plain, adequate, and
complete" as the phrase is used to articulate the
doctrine of equitable constraint under comity, and
those that are "plain, speedy and efficient," within
the meaning of the Tax Injunction Act. Fair
Assessment, 454 U.S. at 116 n.8, 102 S.Ct. at 186
n.8, 70 L.Ed.2d at 283 n.8.

33-A

cause of action is brought in state courts because there is
no risk of federal court interference.*

The local governments nonetheless argue
that the state courts should abstain from hearing section
1983 claims until the taxpayers have exhausted state
administrative and judicial remedies. They appear to
argue that section 1983 plaintiffs in state court should be
no better off than section 1983 plaintiffs in federal court.
Therefore, they should be required to exhaust the
administrative and judicial remedies set forth in the Third
Class County Assessment Law (TCCAL)’ and in the

On the other hand, the federal courts have followed
Fair Assessment in cases similar to the Taxpayers’

case. ¢.g., Sunderland Properties, Inc. v. County
of Berks, 750 F. Supp. 704 (E.D. Pa.

There, a challenge to the county’s "Welcome
Strangers” policy was dismissed by the court based
upon comity and the Tax Injunction Act of 1937, 28
U.S.C. §1341.

Act of June 26, 1931, P.L. 1379, as amended, 72
P.S. §§5342-5350. This act does not have an
official name but is commonly referred to as the
Third Class County Assessment Law.

The Third Class County Assessment Law creates a
three-member board of assessment appeals (board)
in each county. Aggrieved taxpayers appeal to the
board and then to the county common pleas court.

General County Assessment Law (GCAL)."” Under

The board must cause annual assessment of
property within its jurisdiction. Section | and 3 of
the TCCAL; 72 P.S. §§5342, 5344. Property
owners subject to these assessments must be duly
notified. Section 8(b) of the TCCAL:; 72 P.C.
§5349(b). A property owner who is aggrieved by
any assessment, whether or not the assessment has
been changed from the previous year, has a right to
appeal to the board for relief. Section 8(c) of the
TCCAL; 72 P.S. §5349(c). When such an appeal
has been filed, the board must notify each person
and each taxing district which has an interest and
has the power to compel the attendance of witnesses
and the furnishing of documents. Section 8(d) of
the TCCAL; 72 P.S. §5349(d).

Section 9 of the Third Class County Assessment
Law further provides that the aggrieved property
owner may appeal the final decision of the board to
the county court of common pleas. 72 P.S. §5350.
The court of common pleas will proceed de novo.

Appeal of U.S. Steel Corp., 436 Pa. 435, 260 A.2d
779 (1970).

Act of May 22, 1933, P.L. 853 as amended, 72
P.S. §§5020-601, 5020-602.

The General County Assessment Law applies to
Berks County, where it is not inconsistent with the

35-A

both schemes, a property owner who is aggrieved by any
property tax assessment has a right to appeal to a board
of assessment appeals, and then to the court of common
pleas which is to proceed de novo. In light of the
resolution of this case, we need not and do not decide
here whether the state statutory remedies are plain,
adequate and complete in the context of a section 1983
class action."

11

Third Class County Assessment Act. Art. I, §105
of the GCAL; 72 P.S. §5020-105. Truck Terminal
Motels of America, Inc. v. Berks County Board of
Assessment Appeals, 127 Pa. Cmwith. 408, 561
A.2d 1305 (1989), petition for allowance of appeal
denied, 525 Pa. 652, 581 A.2d 576 (1990). It has
a procedural remedy similar to that of the Third
Class County Assessment Act. The General County
Assessment Law provides that the board in each
county shall hear property owners’ appeals of tax
assessments. Art. V, §511 of the GCAL; 72 P.S.
§5020-511. The decision of the board can then be
appealed to a court of common pleas for a de novo
proceeding, with further appeals to the Superior and
Supreme Courts. Art. V, 518.1, 518.2, and 519 of
the GCAL; 72 P.S. §§5020-518.1-2, 5020-519.

Taxpayers contend that the state remedies are not
plain, adequate and complete because they are
precluded from seeking an award of attorneys’ fees
via the fee shifting policy embodied in §§1983 and
1988. We need not address this issue in light of the

36-A

The Supreme Court of the United States
has consistently affirmed the duty of state courts to
entertain section 1983 actions, except where a valid
excuse exists, regardless of whether plaintiffs have
exhausted state administrative and judicial remedies.
Municipalities may be sued under section 1983 when a

he fates hangin’ ve oe Yee aa Bohai Py .

resolution of this case.

id Aen d Hee TONG

It is noted that the federal courts in Pennsylvania
have consistently ruled that both of these laws
provide a taxpayer a plain, adequate, and complete
remedy. See ¢.g., Garrett v. Bamford, 582 F.2d
810 (3d Cir. 1978). The Garrett court held that the
district court properly abstained from entertaining a
section 1983 class action challenging alleged
discriminatory property tax assessments brought by
property owners in Berks County. The court held
that the class action was precluded in federal court
under the Tax Injunction Act, since the Third Class
County Assessment Law, affording administrative
appeal with judicial review to a class, provided
them with a plain, speedy and efficient remedy. Id.
at 819.

Garrett predated significant Supreme Court rulings
in section 1983 litigation and did not address the
attorneys’ fees issue. Therefore, it would have
little probative value to this case were we to address
the issue of whether the state remedies are plain,
adequate and complete.

municipal policy, ordinance, regulation or custom inflicts

constitutional injury. Monell v. New York City

Department of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). Since 1980, the Supreme

Court of the United States has made clear that state
courts have concurrent jurisdiction with federal courts to
hear section 1983 claims. Maine v. Thibout, 448 U.S.
1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). When state
courts entertain federal causes of action, the rights of,
and the defenses to, a federal cause of action are defined
by federal law so that the outcome of federal causes of
action would be the same, regardless if decided in a state
or federal forum. Howlett v. Rose, 496 U.S. 356, 375,
110 S.Ct. 2430, 2442, 110 L.Ed.2d 332, 353 (1990)."
Also, in the absence of a valid excuse, state courts have
no discretion to decline to accept jurisdiction when the
parties and controversy are properly before the state

a The Court in Howlett reaffirmed that federal law is
enforceable in state courts because the Constitution
and laws passed pursuant to it are as much laws in
the states as laws passed by the state legislature.
496 U.S. at 367, 110 S.Ct. at 2438, 110 L.Ed.2d
at 347. The Court held that a state-law sovereign
immunity defense is not available to a school board
in a section 1983 action brought in a state court that
otherwise has jurisdiction when such a defense
would not be available if the action were brought in
a federal forum. 496 U.S. at 361-83, 110 S.Ct. at
2434-47, 110 L.Ed.2d at 343-58.

38-A

court. 496 U.S. at 369, 110 S.Ct. at 2439, 110 L.Ed.2d
at 348.

A valid excuse may exist when a state
court refuses jurisdiction because it has no competent
court to hear the case or because of a neutral state rule
of judiciat administration, unless that rule is preempted
by federal law. Felder v. Casey, 487 U.S. 131, 108
S.Ct. 2302, 101 L.Ed.2d 123 (1988). The requirement
that a state court of competent jurisdiction treat federal
law as the law of the land does not necessarily include
within it a requirement that the state create a court
competent to hear the case in which the federal claim is
presented. Howlett, 496 U.S., 372, 110 S.Ct. at 2441,
110 L.Ed.2d at 350-351. Neutral rules of judicial
administration have included those authorizing dismissal
of both federal and state claims where neither the
plaintiff nor the defendant was a resident of the forum
state, Douglas v. New York, N.H. & H.R. Co., 279
U.S. 377, 49 S.Ct. 355, 73 L.Ed.2d 747 (1929), where
the cause of action arose outside of the court’s territorial
jurisdiction, Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct.
459, 89 L.Ed. 789 (1945), or where the doctrine of
forum non conveniens appropriately applied. Missouri
ex rel, Southern R. Co. v. Mayfield, 340 U.S. 1, 71
S.Ct. 1, 95 L.Ed.2d 3 (1950).

Neutral state rules of judicial
administration appear to be preempted in section 1983
cases, however, in situations where the plaintiff and
defendant are residents of the forum state and the cause

39-A

of action arises in the forum state. The Supreme Court
of the United States has ruled that section 1983 plaintiffs
are not required to exhaust state administrative remedies
before instituting section 1983 suits in federal courts or
state courts. See Patsy v. Board of Regents of Florida,
457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982)
and Felder v, Casey, supra, respectively. In Felder,
nine months after being allegedly beaten by Milwaukee
police officers who arrested Felder on a disorderly
conduct charge that was later dropped, Felder filed a
State court action against the city and certain of the
officers under section 1983. He alleged that the beating
and arrest were racially motivated and violated his rights
under the Fourth and Fourteenth Amendments to the
United States Constitution. The officers moved to
dismiss the suit because of Felder’s failure to comply
with Wisconsin’s notice-of-claim statute. The statute
provided, in part, that: before suit may be brought in
state court against a state or local governmental entity or
officer, the plaintiff, within 120 days of the alleged
injury, must notify the defendant of the circumstances
and amount of the claim and the plaintiff's intent to hold
the named defendant liable; the defendant then had 120
days to grant or disallow the requested relief; and the ~
plaintiff must bring suit within six months of receiving
notice of disallowance. 487 U.S. at 134-37, 108 S.Ct. at
2305-06, 101 L.Ed.2d at 135-37.

The Felder Court held that when a section
1983 action is brought in the state court, Wisconsin’s
notice-of-claim statute conflicted in both its purpose and

effect with section 1983’s remedial objectives and was
preempted pursuant to the Supremacy Clause. The court
explained that while states retain the authority to
prescribe the rules and procedures governing suits in
their courts, that authority does not permit states to place
conditions on the vindication of a federal right. Rather,
congress meant to provide individuals immediate access
to the federal courts and did not contemplate that those
who sought to vindicate their federal rights in state courts
could be required to seek redress in the first instance
from the state officials whose hostility to those rights
precipitated their injuries. 487 U.S. at 147-53, 108 S.Ct.
at 2311-14, 101 L.Ed.2d at 143-47.

The Felder court found no merit to the
claim that the exhaustion requirement imposed by the
State statute is essentially de minimis because the
statutory settlement period entailed none of the additional
expense or undue delay typically associated with
administrative remedies, the statutory scheme did not
eliminate a claimant’s right to seek full compensation
through suit or the statutory scheme was designed to sift
Out specious claims. That court emphasized that section
1983 actions “belong in court” and exist independent of
any other legal or administrative relief that may be
available as a matter of federal or state law except where
congress has expressly imposed an exhaustion

41-A

requirement.'? The court said that any scheme designed
ts sift out "specious claims" from the stream of
complaints that can inundate local governments in the
absence of sovereign immunity is "manifestly
inconsistent" with the central objective of the civil rights
statutes. 487 U.S. at 148-50, 108 S.Ct. at 2312-13, 101
L.Ed.2d at 144-45.

We now address the critical question of
whether the common pleas courts of this Commonwealth
must entertain section 1983 cases without requiring the
exhaustion of state administrative and judicial remedies.
We do not have direction from the United States
Supreme Court on this issue; rather, we have competing
lines of cases and are asked to resolve the apparent
conflict.

One may argue that, according to U.S.
Supreme Court precedent, the taxpayers should be no

- Congress did establish an exhaustion requirement

for a specific class of section 1983 actions, those
brought by adult prisoners challenging the
conditions of their confinement, in the Civil Rights
of Institutionalized Persons Act of 1980, 94 Stat.
353, 42 U.S.C. §1997e. In Felder, the Court stated
that congress, in enacting this statute, expressly
recognized that it was working a change in the law.
487 U.S. at 149, 108 S.Ct. at 2312, 101 L.Ed.2d
at 144.

42-A

better off in state court than they are in federal court
with regard to a section 1983 case challenging the
constitutionality of a property tax assessment procedure.
According to Fair Assessment and its progeny, plaintiffs
must exhaust state administrative and judicial remedies in
a property tax assessment case before bringing a section
1983 action in federal court. Therefore, the argument
continues, the taxpayers must also exhaust state
administrative and judicial remedies before bringing a
section 1983 action challenging the constitutionality of a
property tax assessment procedure in state court.

One may also argue that, according to
U.S. Supreme Court precedent, this court cannot require
exhaustion of state statutory remedics. If an exhaustion
requirement were imposed on the taxpayers, then, like
Felder, the state has a procedure that places conditions
on the vindication of a federal right in state court. This
is so even though the state’s statutory scheme does not
eliminate a claimant’s right to seek full compensation
through suit. Further, we are mindful that the taxpayers’
case has another aspect that was not present in Felder,
which is that exhaustion of state administrative and
judicial remedies in the taxpayers’ case may entail the
additional expense and delay typically associated with
State statutory remedies without according the taxpayers

the relief sought. See, Borough of Greentree v. Board of

43-A

Property Assessment, Appeals and Review of Allegheny
County, 459 Pa. 268, 328 A.2d 819 (1974).

Here, the record reflects that the taxpayers
have exhausted state administrative procedures and,
without pursuing their state judicial remedies, seek to
maintain a section 1983 class action. In this case, Felder
and Howlett command the Court of Common Pleas of
Berks County to exercise jurisdiction over a section 1983
action without requiring the complete exhaustion of state
Statutory remedies. While exhaustion of state statutory
remedies is required in federal courts, exhaustion is not
required in the courts of this state insofar as the action is
a Class action challenging the constitutionality of a
system of property tax assessment. This is so because
the principle of comity that causes a federal court to

” In Greentree, this Court ruled that courts of
common pleas have equitable jurisdiction to hear
cases charging that the Assessment Act provision
permitting triennial assessments violated the
uniformity clause of the State Constitution and the
equal protection clause of the Federal Constitution,
where the statutory appeal procedure appearing in
the Assessment act would be of little, if any, utility
in determining constitutionality of the provision and
where any benefit derived from filing individual
appeals with the county board of property
assessment would be far outweighed by the
inconvenience, delay and expense involved.

refrain from exercising jurisdiction over section 1983 tax
assessment cases has no relevence to a class action
challenging, in state court, the constitutionality of a
system of property tax assessment.

This creates the anomalous situation that
plaintiffs have quicker access to state courts with respect
to these types of section 1983 class actions than to the
federal courts. This result does not appear to conflict
with any U.S. Supreme Court decision because the
vindication of a federal right is not shackled by state
rules of judicial administration. This resolution also does
not appear to conflict with precedent of this Court. See
Borough of Greentree, supra. Further, this resolution
will not, as local governments contend, disrupt state and
local tax administration because, as the taxpayers argue,
constitutional challenges such as the taxpayers’ class-
action challenge probably will, in the long run,
significantly reduce the inconvenience, inefficiency,
delay and expense involved in countless individual
lawsuits over the same issue in many different
administrative and judicial forums."

15

The local governments, on page 27 of their brief,
State that because taxpayers do not press the issue
on appeal, it is “undisputed that they can secure
consideration of the constitutional objections before
the board of assessment appeals and through de
novo review in the court of common pleas.” The
local governments, however, argue the point no

\

45-A

On the other hand, if we were to refuse
access to the courts before exhaustion of statutory
remedies with respect to this type of class action, such
refusal would conflict directly with U.S. Supreme Court
directives. Therefore, we hold that where plaintiffs are a
Class of the taxpayers challenging the constitutionality of
the system by which property tax assessments are made,
they can maintain their section 1983 suit in common
pleas court without first exhausting their statutory
remedies.’

The Court of Common Pleas of Berks
County properly determined that it had subject matter
jurisdiction in this case and this matter is remanded to
Commonwealth Court with direction to address the local
governments’ contentions contained in their appeal at 625
C.D. 1991.

further, perhaps in recognition that the likelihood
that the issue would be fully addressed, on the
administrative side, by the very people who depend
on the continued existence of the present scheme of
things is quite small indeed.
2 We wait for another day to address the issue of
whether an individual plaintiff, as opposed to a
class of plaintiffs, can maintain a section 1983
action in common pleas court without exhausting
State statutory remedies where the challenge is to an
individual assessment and not a challenge to the
entire system of property tax assessment.

Order of the Commonwealth Court
reversed, and case remanded.

Mr. Justice Larsen did not participate in
the decision of this case.

Mr. Justice Montemuro files a concurring
opinion.

Mr. Justice Cappy files a dissenting
opinion.

JUDGMENT ENTERED:

CHIEF CLERK

47-A

[J-55-93]

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

MERRY J. MURTAGH, : No. 34 M.D. Appeal

SPENCER LEE : Docket 1992
CHERASHORE,

FREDERICK : Appeal from the Order of
MURTAGH, et al., : the Commonwealth Court

Appellants : dated January 9, 1992,
: Nos. 625 C.D. 1991 and

v. : 771 C.D. 1991, reversing
: the Amended Order of the
COUNTY OF BERKS, : Court of Common Pleas
et al., : of Berks County dated

Appellees : March 7, 1991, at
: No. 5182-89 AD

: 144 Pa. Cmwith. 624, 601
: A.2d 1352 (1992)

- ARGUED: March 8, 1993

CONCURRING OPINION

MR. JUSTICE MONTEMURO
DECIDED: NOVEMBER 10, 1993

By implication, the majority acknowledges
that our courts have an obligation to entertain a 1983

48-A

challenge to a state tax despite the existence of a
statutory remedy. Because I believe that our courts have

always had such an obligation, I join the Opinion of the
Court.

[J-55-93}

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

MERRY J. MURTAGH, : No. 34 M.D. Appeal

SPENCER LEE : Docket 1992
CHERASHORE,

FREDERICK : Appeal from the Order of
MURTAGH, et al., : the Commonwealth Court

Appellants : dated January 9, 1992,
: Nos. 625 C.D. 1991 and

v. : 771 C.D. 1991, reversing
: the Amended Order of the
COUNTY OF BERKS, : Court of Common Pleas
et al., : of Berks County dated

Appellees : March 7, 1991, at
: No. 5182-89 AD

: 144 Pa. Cmwith. 624, 601
: A.2d 1352 (1992)

: ARGUED: March 8, 1993
DI NG OPINION

MR. JUSTICE CAPPY
DECIDED: NOVEMBER 10, 1993

I respectfully dissent from the majority’s
holding that the Appellant class of taxpayers, who seek

50-A

to challenge the constitutionality of the property tax
assessment system, may maintain their action under 42
U.S.C. §1983 in common pleas court without first
exhausting their state statutory remedies. Although I do
not disagree with the majority’s background summary of
the relevant law, I differ with the majority’s resolution of
the “apparent conflict” in the United States Supreme
Court’s "competing lines of cases.” (Majority opinion at
12.)

First, it must be remembered that section
1983 creates a federal cause of action. The Supreme
Court in Fair Assessment In Real Estate Association v.
McNary, 454 U.S. 100, 102 S. Ct. 177, 70 L.Ed. 2d
271 (1981), specifically held that this federal action
requires exhaustion of state administrative and judicial
remedies due to the sensitive nature of state tax issues.
It makes no sense to undercut the Court’s interpretation
of federal law. Further, I believe that interests of
comity’ dictate that state courts defer to the federal
framework carefully established by the United States
Supreme Court, just as the federal court in Fair

It is important to remember that comity works both
ways. Judicial comity is "[tJhe principle in
accordance with which the courts of one state or
jurisdiction will give effect to the laws and judicial
decisions of another, not as a matter of obligation,
but out of deference and respect.” BLACK’S LAW
DICTIONARY 267 (6th ed. 1990).

Assessment deferred to the state courts in fashioning a
rule that would not disrupt a carefully fashioned state tax
scheme. The majority’s approach creates the anomalous
result of encouraging federal claimants to flock to state
courts to pursue section 1983 actions, when the precise
purpose of the federal rule is to ensure that state courts
may deal with the matter under state law first.

Moreover, the majority’s approach
virtually eliminates any opportunity for the state courts to
examine the state tax scheme under the laws or
Constitution of the Commonwealth. The precise concern
for the sensitive nature of state tax schemes, which
motivated the United States Supreme Court in Fair
Assessment, should a fortiori motivate state courts to
examine those schemes under state law first. The
majority’s approach obliterates this opportunity and,
again, produces the incongruous result of creating a
stronger, virtually exclusive federal forum for section
1983 claims in state court rather-than in federal court
where the action should take priority.

The Supreme Court’s decision in Felder
V. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed.
2d 123 (1988), in no way compels the majority’s result.
It must be remembered that for the state courts to require
exhaustion of state remedies as a prerequisite to a section
1983 action would only be to impose upon plaintiffs in
state court the same requirement that would be imposed
upon them in federal court. Felder simply prohibits the
application of a state rule where the rule conflicts with

52-A

the remedial objectives of section 1983 and its
enforcement will "frequently and predictably produce
different outcomes in § 1983 litigation based solely on
whether the claim is asserted in state or federal court."
487 U.S. at 138. Ironically, the majority’s refusal to
impose an exhaustion requirement creates just such a
situation where different outcomes will be reached in
section 1983 litigation "based solely on whether the claim
is asserted in state or federal court."

I believe that, in the circumstances of this
case, the Court should defer to the framework established
by the federal courts. Therefore, I must respectfully
dissent.

53-A

EXHIBIT C

54-A

IN THE COMMONWEALTH COURT OF
PENNSYLVANIA

GREENWICH TOWNSHIP,
MARION TOWNSHIP,
BRECKNOCK TOWNSHIP, and
CENTRE TOWNSHIP, joined by
CAERNARVON TOWNSHIP,
BOROUGH OF KUTZTOWN,
BOROUGH OF ST. LAW-
RENCE, BOROUGH OF HAM-
BURG, BOROUGH OF
LAURELDALE, BOROUGH OF
WEST LAWN, SPRING TOWN-
SHIP, ROBESON TOWNSHIP,
OLEY VALLEY SCHOOL DIS-
TRICT, UPPER BERN TOWN-
SHIP, BOROUGH OF BECH-
TELSVILLE, BOROUGH OF
KENHORST, LEESPORT BOR-

‘ OUGH, COLEBROOKDALE
TOWNSHIP, CUMRU TOWN-
SHIP, MUHLENBERG TOWN-
SHIP, CONRAD WEISER :
SCHOOL DISTRICT, BOROUGH :
OF CENTERPORT, BOYER-
TOWN AREA SCHOOL DIS-__:
TRICT, DANIEL BOONE AREA :
SCHOOL DISTRICT, EXETER
TOWNSHIP SCHOOL DIS-
TRICT, FLEETWOOD AREA

55-A

SCHOOL DISTRICT, GOVER-
NOR MIFFLIN SCHOOL DIS-
TRICT, KUTZTOWN AREA

SCHOOL DISTRICT, MUHLEN- :

BERG SCHOOL DISTRICT,
CITY OF READING SCHOOL
DISTRICT, SCHUYLKILL
VALLEY SCHOOL DISTRICT,
WILSON SCHOOL DISTRICT,
WYOMISSING AREA SCHOOL
DISTRICT, HAMBURG
SCHOOL DISTRICT and TWIN
VALLEY SCHOOL DISTRICT,
Appellants

Vv.

MERRY J. MURTAGH,
SPENCER LEE CHERASHORE,
FREDERICK MURTAGH,
MARY S. MURTAGH and
ANTHONY GIGLIOTTI and
GEORGE CHOVANES,
MARGARET CHOVANES,
MICHAEL CHOVANES and
LRM ZIEGENFUSS, a
Pennsylvania Partnership, and

: No. 625 C.D. 1991

CONCETTA C. GOOD, on behalf :

of themselves and all owners of
real property situated in BERKS
COUNTY who purchased their

56-A

property since January 1, 1980,
and COUNTY OF BERKS,
COMMONWEALTH OF
PENNSYLVANIA, BERKS
COUNTY BOARD OF ASSESS-
MENT APPEALS, BOROUGH _— :
OF TOPTON, LOWER ALSACE :
TOWNSHIP, CITY OF
READING, BOROUGH OF ;
BALLY, BOROUGH OF BOYER- :
TOWN, BOROUGH OF FLEET- :
WOOD, BOROUGH OF LEN-
HARTSVILLE, BOROUGH OF _ :
LYONS, BOROUGH OF MOHD.- :
TON, BOROUGH OF MT.
PENN, BOROUGH OF ROBE-
SONIA, BOROUGH OF SHIL-
LINGTON, BOROUGH OF
SHOEMAKERSVILLE, BOR-
OUGH OF SINKING SPRING, — :
BOROUGH OF STRAUSSTOWN, :
BOROUGH OF TEMPLE, BOR- :
OUGH OF TOPTON, BOROUGH :
OF WERNERSVILLE, BOR-
OUGH OF WOMELSDORF,
BOROUGH OF WYOMISSING, _:
ALBANY TOWNSHIP, ALSACE :
TOWN SHIP, AMITY TOWN- ~ :
SHIP, BERN TOWNSHIP,
BETHEL TOWNSHIP, DIS-
TRICT TOWNSHIP, EARL

57-A

TOWNSHIP, EXETER TOWN-
SHIP, HEREFORD TOWNSHIP,
JEFFERSON TOWNSHIP,
LONGSWAMP TOWNSHIP,
LOWER ALSACE TOWNSHIP,
MAIDENCREEK TOWNSHIP,
MAXATAWNY TOWNSHIP,
NORTH HEIDELBERG TOWN-
SHIP, ONTELAUNEE TOWN-
SHIP, PENN TOWNSHIP,
PERRY TOWNSHIP, PIKE
TOWNSHIP, RICHMOND
TOWNSHIP, ROCKLAND :
TOWNSHIP, RUSCOMBMANOR :
TOWNSHIP, SOUTH HEIDEL-
BERG TOWNSHIP, UNION
TOWNSHIP, UPPER TULPE-
HOCKEN TOWNSHIP, WASH-
INGTON TOWNSHIP, WIND-
SOR TOWNSHIP, ANTIETAM
SCHOOL DISTRICT, BRANDY-
WINE HEIGHTS AREA
SCHOOL DISTRICT, TULPE-
HOCKEN AREA SCHOOL DIS-
TRICT, UPPER PERKIOMEN
VALLEY SCHOOL DISTRICT,
BOROUGH OF WYOMISSING
HILLS, BOROUGH OF BIRDS-
BORO, BOROUGH OF WEST
READING, TOWNSHIP OF
HEIDELBERG, TOWNSHIP OF

58-A

LOWER HEIDELBERG, TOWN.- :
SHIP OF OLEY, TOWNSHIP OF :

TILDEN, TOWNSHIP OF

UPPER TULPEHOCKEN,

TOWNSHIP OF DOUGLASS,
Appellants

Vv.

MERRY J. MURTAGH,
SPENCER LEE CHERASHORE,
FREDERICK MURTAGH,
MARY S. MURTAGH and
ANTHONY GIGLIOTTI and
GEORGE CHOVANES,
MARGARET CHOVANES,
MICHAEL CHOVANES and
LRM ZIEGENFUSS, a
Pennsylvania Partnership, and
CONCETTA C. GOOD, on
behalf of themselves and all

: No. 771 C.D. 1991

owners of real property situated in :
BERKS COUNTY who purchased :

their property since January 1,
1980, and COUNTY OF BERKS,
COMMONWEALTH OF
PENNSYLVANIA, BERKS
COUNTY BOARD OF
APPEALS, GREENWICH
TOWNSHIP, MARION TOWN-
SHIP, BRECKNOCK TOWN-

59-A

SHIP and CENTRE TOWNSHIP,
joined by CAERNARVON
TOWNSHIP, BOROUGH OF
KUTZTOWN, BOROUGH OF
ST. LAWRENCE, BOROUGH
OF HAMBURG, BOROUGH OF
LAURELDALE, BOROUGH OF
WEST LAWN, SPRING TOWN-
SHIP, ROBESON TOWNSHIP,
OLEY VALLEY SCHOOL DIS-
TRICT, UPPER BERN TOWN-
SHIP, BOROUGH OF
BECHTELSVILLE, BOROUGH
OF KENHORST, LEESPORT
BOROUGH,
COLEBROOKDALE TOWN-
SHIP, CUMRU TOWNSHIP,
MUHLENBERG TOWNSHIP,
CONRAD WEISER SCHOOL
DISTRICT, BOROUGH OF
CENTERPORT, BOYERTOWN
AREA SCHOOL DISTRICT,
DANIEL BOONE AREA
SCHOOL DISTRICT, EXETER
TOWNSHIP SCHOOL DIS-
TRICT, FLEETWOOD AREA
SCHOOL DISTRICT,
GOVERNOR MIFFLIN
SCHOOL DISTRICT,
KUTZTOWN AREA SCHOOL
DISTRICT, MUHLENBERG

SCHOOL DISTRICT, CITY OF
READING SCHOOL DISTRICT,
SCHUYLKILL VALLEY
SCHOOL DISTRICT, WILSON
SCHOOL DISTRICT,
WYOMISSING AREA SCHOOL
DISTRICT, HAMBURG
SCHOOL DISTRICT and TWIN
VALLEY SCHOOL DISTRICT,
BOROUGH OF TOPTON,
LOWER ALSACE TOWNSHIP,
CITY OF READING, BOR-
OUGH OF BALLY, BOROUGH
OF BOYERTOWN, BOROUGH
OF FLEETWOOD, BOROUGH
OF LENHARTSVILLE, BOR-
OUGH OF LYONS, BOROUGH
OF MOHNTON, BOROUGH OF
MT. PENN, BOROUGH OF
ROBESONIA, BOROUGH OF
SHILLINGTON, BOROUGH OF
SHOEMAKERSVILLE, BOR-
OUGH OF SINKING SPRING,
BOROUGH OF
STRAUSSTOWN, BOROUGH
OF TEMPLE, BOROUGH OF
TOPTON, BOROUGH OF
WERNERSVILLE, BOROUGH - :
OF WOMELSDORF, BOROUGH :
OF WYOMISSING, ALBANY :
TOWNSHIP, ALSACE TOWN-

SHIP, AMITY TOWNSHIP,
BERN TOWNSHIP, BETHEL
TOWNSHIP, DISTRICT TOWN-
SHIP, EARL TOWNSHIP,
EXETER TOWNSHIP,
HEREFORD TOWNSHIP,
JEFFERSON TOWNSHIP,
LONGSWAMP TOWNSHIP,
LOWER ALSACE TOWNSHIP,
MAIDENCREEK TOWNSHIP,
MAXATAWNY TOWNSHIP,
NORTH HEIDELBERG TOWN-
SHIP, ONTELAUNEE TOWN-
SHIP, PENN TOWNSHIP,
PERRY TOWNSHIP, PIKE
TOWNSHIP, RICHMOND
TOWNSHIP, ROCKLAND
TOWNSHIP,
RUSCOMBMANOR TOWN-
SHIP, SOUTH HEIDELBERG

' TOWNSHIP, UNION TOWN-

SHIP UPPER TULPEHOCKEN

TOWNSHIP, WASHINGTON

TOWNSHIP, WINDSOR TOWN- :

SHIP, ANTIETAM SCHOOL

DISTRICT, BRANDYWINE

HEIGHTS AREA SCHOOL DIS-

TRICT, TULPEHOCKEN AREA

SCHOOL DISTRICT, UPPER

PERKIOMEN VALLEY : ARGUED
SCHOOL DISTRICT : December 7, 1994

BEFORE: HONORABLE JAMES GARDNER COLINS,

President Judge

HONORABLE BERNARD L. McGINLEY,
Judge

HONORABLE DORIS A. SMITH, Judge

HONORABLE DAN PELLEGRINI, Judge

HONORABLE ROCHELLE S. FRIEDMAN,
Judge

HONORABLE JAMES R. KELLEY, Judge

H( NORABLE SANDRA SCHULTZ
NEWMAN, Judge

OPINION BY JUDGE KELLEY FILED: May 26, 1995

Greenwich Township et al. and Borough
of Wyomissing Hills et al. (Local Governments) appeal
an order of the Court of Common Pleas of Berks County
(trial court) finding that Merry J. Murtagh et al.
(Taxpayers) have stated a cause of action against the
Local Governments for their taxing policies which
allegedly violate the Taxpayers’ civil rights under
42 U.S.C. §1983.'

' This appeal is before this court on remand from our
Supreme Court. This court initially entered a
decision in this case on January 9, 1992, wherein
we determined that the trial court lacked subject
matter jurisdiction over Taxpayers’ section 1983
claims because the General and Third Class County

I. FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history as
substantially set forth in our decision in wi is
as follows. Taxpayers, representing a class of recent
purchasers of real property in Berks County, a third
Class County, filed a complaint against the County of

Assessment Laws provided Taxpayers with a plain,
adequate and complete remedy. Accordingly, we
reversed the trial court’s order and remanded with
instructions to dismiss the entire action for lack of
subject matter jurisdiction. See Greenwich
Township v. Murtagh, 144 Pa. Commonwealth Ct.
624, 601 A.2d 1352 (1992) (hereinafter referred to

as Greenwich ]).

Taxpayers appealed our decision to the
Supreme Court which reversed our holding
that Taxpayers could maintain a section
1983 suit without first exhausting statutory
remedies. Accordingly, our Supreme Court
reversed and remanded this matter to this
court with directions to address the Local
Governments’ contentions contained in the
present appeal regarding the issue of
whether the Local Governments are proper
parties to the section 1983 action. See
Murtagh v. County of Berks, 535 Pa. 50,
634 A.2d 179 (1993), cert. denied,
U.S. __, 114. S.Ct. 1397 (1994).

Berks (County) and the Berks County Board of
Assessment Appeals (Board), alleging that they had
adopted a so-called "Welcome Stranger" policy.
Taxpayers alleged that under that policy, recently
purchased properties were re-assessed at fair market
value, resulting in significantly higher tax assessments
than those on other comparable longer-held neighboring
properties which were not re-assessed under the practice.
Taxpayers alleged that the County and the Board’s
practice violated their equal protection rights under the
Fourteenth Amendment’ and, because the re-assessments
were done under color of state law, there was a violation
of 42 U.S.C. § 1983.

The County and the Board filed a number
of preliminary objections to Taxpayers’ complaint, only
one of which the trial court sustained finding that
Taxpayers had failed to sue the local governments who
levied taxes which were indispensable parties. As a
result, Taxpayers filed an amended complaint joining all
taxing authorities in the County, nearly 100 boroughs,

Taxpayers rely principally on Allegheny Pittsbur
Coal_ Co, v. County Commission _of Webster
County, 488 U.S. 336 (1989), where the Supreme
Court overturned a West Virginia supreme court
decision, and held that this type of "Welcome
Stranger” policy violated the Equal Protection
Clause of the Fourteenth Amendment to the United
States Constitution.

65-A

townships and school districts.* Many of the newly
joined local government defendants again filed
preliminary objections to the amended complaint. The
only preliminary objections at issue herein are demurrers
to the amended complaint averring that the amended
complaint failed to state a cause of action against the
Local Governments for their taxing policies which
allegedly violated section 1983.

The trial court dismissed the Local
Governments’ preliminary objections in the nature of a
demurrer and held that the amended complaint stated a
cause of action against the Local Governments under
section 1983. The trial court rejected the Local
Governments’ contention that they are not proper parties
to the section 1983 action because they were not involved
in determining the assessments, which were done solely
by the Board. The trial court determined that Local
Governments should be party defendants because they
were the recipients of the alleged improper taxes, and did
in fact levy the taxes. Thereafter, the trial court certified

. The amended complaint also joined the City of
Reading as a party defendant; however, counsel
stated during oral argument before this court
regarding this appeal that the City of Reading has
been dismissed as a defendant to this action.

the issue for appeal pursuant to Pa.R.A.P. 1311(b).*
Subsequently, this court granted separate petitions for
permission to appeal an interlocutory order filed by the
Local Governments and consolidated the appeals.

Ii. DISCUSSION

Now that our Supreme Court has decided
that Taxpayers may maintain a section 1983 suit without
first exhausting statutory remedies, the issue presented
for review to this court, on remand, is whether the trial
court erred in dismissing the Local Governments’
preliminary objections in the nature of a demurrer where
the Local Governments do not have the power or
authority to set property assessments.*

7 Under Pa.R.A.P. 1311(b), a party may file a
petition for permission to appeal to this Court when
the trial court’s interlocutory order contains the
statement prescribed in 42 Pa. C.S. § 702(b). The
trial court’s order satisfied this requirement by
Stating that "[t]his order is deemed to involve a
controlling question of law as to which there is a
substantial ground for difference of opinion. An
immediate appeal from the order may materially
advance the ultimate determination of this matter."

: We note that when reviewing preliminary objections
in the nature of a demurrer, we accept as true all
well-pleaded material facts in the complaint as well
as all reasonable inferences that may be drawn from

67-A

that:

Section 1983 provides, in pertinent part,

Every person who,
under color of any statute,
ordinance, regulation,
custom, or usage, of any
State or Territory or the
District of Columbia,
subjects, or causes to be
subjected, any citizen of the
United States or other person
within the jurisdiction thereof
to the deprivation of any
rights, privileges, or
immunities secured by the
Constitution and laws, shall
be liable to the party injured
in an action at law, suit in
equity, or other proper
proceeding for redress.

those facts. ;
161 Pa. Commonwealth Ct. 69, 636 A.2d 240
(1993). Preliminary objections should be sustained
and a complaint dismissed only in cases that are
clear and free from doubt that the law will not
permit recovery by the plaintiff. Id. The test is
whether, from all the facts pled, the pleader will be
able to prove facts legally sufficient to establish his
or her right to relief. Id.

68-A

42 U.S.C. § 1983.

Under section 1983, local governments are
considered “persons” who may be directly liable when a
policy statement, ordinance, regulation, or decision
officially adopted and promulgated by a local government
or municipality causes an employee, acting under the
color of law, to violate another’s constitutional rights.
Monell v. D F Social Servi F City of New
York, 436 U.S. 658 (1978). A local government may
also be held liable when a “custom” of the governing
body causes a constitutional deprivation even though such
a custom has not received formal approval through the
body’s official decision making channels. Id.

A local government cannot be held liable
under section 1983 on a respondeat superior theory. Id.
Instead, it is when the execution of a local government's
policy, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent
’ official policy, inflicts the injury that the local
government as an entity is responsible under section
1983. Id.

Since Monell was decided, the United
States Supreme Court has developed further the contours
of municipal liability under section 1983. In Pembaur v.
City of Cincinnati, 475 U.S. 469, 482 (1986), the
Supreme Court in addressing when a municipality is
responsible for its actions, opined that not every decision
by an officer of a local government automatically

69-A

(iia i

subjects the municipality to section 1983 liability. The
Pembaur court stated that:

Municipal liability attaches
only where the
decision-maker possesses
final authority to establish
municipal policy with respect
to the action ordered. The
fact that a_ particular
official -- even a
policymaking official -- has
discretion in the exercise of
particular functions does not,
without more, give rise to
municipal liability based on
an exercise of that
discretion . . . . The official
must also be responsible for
establishing final government
policy respecting such
activity before the
municipality can be held
liable. Authority to make
municipal policy may be
granted directly by a
legislative enactment or may
be delegated by an official
who possesses such authority,
and of course, whether an
official had _ final

70-A

policymaking authority is a
question of state law.. ..
We hold that municipal
liability under § 1983
attaches where -- and only
where -- a deliberate choice
to follow a course of action is
made from among various
alternatives by the official or
officials responsible for
establishing final policy with
respect to the subject matter
in question.

Id. at 481-83 (citations and footnotes omitted).

The Supreme Court in City of St. Louis v.
Praprotnik, 485 U.S. 112 (1988), reiterated that the

identification of policymaking officials is a question of
state law. The Praprotnik court pointed out that:

The States have extremely
wide latitude in determining
the form that local
government takes, and local
preferences have led to a
profusion of distinct forms.
Among the many kinds of
municipal corporations,
political subdivisions, and
special districts of all sorts,

one may expect to find a rich
variety of ways in which the
power of government is
distributed among a host of
different officials and official
bodies.... [W]e can be
confident that state law
(which may include valid
local ordinances and
regulations) will always
direct a court to some official
or body that has the
responsibility for making law
or setting policy in any given
area of a local government’s
business.

Id. at 124-25 (citations and footnotes omitted).

In the present case, the Local
Governments contend that since they cannot be liable
under a theory of respondeat superior, to maintain their
cause of action, Taxpayers must aver and prove culpable
conduct on the part of the Local Governments.
Specifically, that the Local Governments had some
power and authority over the property tax assessment
process which allegedly injured Taxpayers. Local
Governments argue that they have no power or authority
to adopt, implement or execute ordinances, regulations,
customs or policies pertaining to the assessment of real
property as this power and authority is exclusively

72-A

statutorily vested in the Board. Further, the Local
Governments contend that they could not delegate an
authority which they do not possess.°

In response, the Board and the County
argue that the trial court properly denied the Local
Governments’ demurrers for three reasons. First, if the
Local Governments are dismissed from this case, the
Board and the County might be required to pay money to
Taxpayers representing taxes the Local Governments
collected. According to the Board and the County, this
result would be unfair and contrary to Pennsylvania law,
which requires the Local Governments to refund excess
taxes they collect even if the overpayment was caused
solely by an improper assessment.

Second, the Local Governments are liable
under section 1983 for constitutional violations by

¥ The Pennsylvania School Boards Association,
Pennsylvania State Association of Boroughs, and the
Pennsylvania State Association of Township
Supervisors have filed an amici curiae brief in
support of Local Governments’ position in this

appeal.

The County Commissioners
Association of Pennsylvania has filed a brief
of amicus curiae supporting the position of
the County and the Board.

officials who have final policymaking authority to act on
their behalf. The Board and the County contend that the
General Assembly has the power to delegate authority for
section 1983 purposes, without any action or consent by
the Local Governments. Third, the amended complaint
states a section 1983 claim based on the Local
Government’s own conduct, as well as the Board’s
conduct.

—-Pursuant to the General County
Assessment Law (GCAL)’ and the Third Class County
Assessment Law (TCCAL),® a board of assessment
appeals, appointed by the county commissioners of third
class counties, is vested with the statutory authority to
make and have supervision of the making of annual
assessments of property made subject to assessment for
taxation for county, borough, town, townships, school,
poor and institution district purposes. Section 3 of
TCCAL, 72 P.S. § 5344. In addition, the board of
assessment appeals is vested with the statutory authority
to make and have supervision of the listing and valuation
of property excluded or exempted from taxation. Id.

’ Act of May 22, 1933, P.L. 853, as amended,
72 P.S. §§ 5020-101 - 5020-602.

. Act of June 26, 1931, P.L. 1379, as amended,
72 P.S. §§ 5342-5350j.2. This act does not have
an official name but is commonly referred to as the
Third Class County Assessment Law.

74-A

Under this scheme, the board of assessment appeals
appoints assessors to make the annual valuation of all
property subject to assessment for taxation. See
section 4 through 6 of TCCAL, 72 P.S. §§ 5345-5347.

The assessment of properties by the board
of assessment appeals must be equal and uniform. See
section 7 of TCCAL, 72 P.S. § 5348(d); see City of

Lancaster v. Lancaster County, 143 Pa. Commonwealth

Ct. 476, 599 A.2d 289 (1991), petition for allowance of
appeal denied, 530 Pa. 634, 606 A.2d 903 (1992). The

board of assessment appeals is required to maintain an
assessment roll and must annually notify the property
owners of the value of the assessment pertaining to their
property and any person or taxing district aggrieved by,
any assessment may appeal to the board for relief. See
section 8 of TCCAL, 72 P.S. § 5349.

After any appeals have been completed, a
copy of the final annual assessment roll must be provided
to the chief clerk of the county commissioners and to
each taxing district. Id. If a mathematical or clerical
error is made with regard to an assessment, the board of
assessment appeals must inform the appropriate taxing
district. See section 8.4 of TCCAL, added by Act of
October 9, 1986, P.L. 1418, 72 P.S. § 5349.4.
Thereafter, the taxing district must refund to the taxpayer
any overpayment made as a result of the error. Id.
Reassessment, with or without application by the owner,
as a decision of judgment based on the method of

75-A

assessment by the board of assessment appeals, shall not
constitute an error under section 8.4.°

Recognizing the guiding principles set
forth by the United States Supreme Court and the
statutory scheme adopted by the Pennsylvania General
Assembly, this court believes that the Local Governments
are not proper parties to Taxpayers’ section 1983 action.
It is clear from the statutory scheme that the Board and
the County are the governmental bodies with final
policymaking authority with regard to the supervision
and method of assessments of real property in the
County.

The County and the Board argue that the
Local Governments possess the final policymaking
authority with regard to property assessments based on
the notion that the General Assembly has delegated that
authority to the Board and the County on behalf of the
Local Governments. We disagree. Clearly, the
' provisions of the GCAL and TCCAL reveal that the
General Assembly, by legislative enactment, has granted
directly to the Board and the County the authority to
make municipal policy with respect to the supervision
and method of real property assessments levied by the
Local Governments.

This section applies to all errors on assessments
discovered on or after January 1, 1981. 72 P.S.
§ 5349.4.

76-A

While the Local Governments do have a
choice as to whether to levy their taxes based on county
assessments, they elect to do so without also being the
official governmental body responsible for establishing
the supervision or method of assessment. Under the
TCCAL, each local government entity, as a taxing
district, is provided with the value of the assessments by
the board. Although the value of that assessment may be
challenged and appealed to the board by the Local
Governments as taxing districts, it is the Board and not
the Local Governments, which has the final
determination, subject to further court appeal, as to the
value of any assessment of real property. Therefore,
the trial court’s determination that the Local
Governments can be held liable under section 1983
because they accepted the Board’s actions without
question and made no effort to require the Board to
change its policy is incorrect.

By virtue of the fact that the Board and the
County are responsible for making and setting the policy
as to the manner and method of assessments to be
utilized, only the Board’s and the County’s decisions in
this area of governmental business can provide a basis
for municipal liability. Plainly stated, the decisions of
the Board and the County to act unlawfully are not the
decisions of the Locai Governments when it comes to the
supervision or method of assessing real property in the
County.

Further, we reject the Board’s and the
County’s argument that the trial court’s order should be
affirmed because they may have to pay money to
Taxpayers representing taxes the Local Governments
collected which the Local Governments are obligated to
repay under the TCCAL. The TCCAL provides that a
taxing district must repay taxes incurred as a result of a
mathematical or clerical error with regard to an
assessment. Section 8.4 of TCCAL. Therefore, we do
not read this provision of the TCCAL as requiring that
the Local Governments remain parties to this federal
section 1983 action for this reason.

This provision of the TCCAL aptly
provides an avenue of relief to a taxpayer that has been
overcharged due to a clerical or mathematical error.
This provision does not provide that a taxing authority
must pay damages arising out of litigation based on an
overpayment of taxes resulting from illegal assessments
made by the Board. Moreover, this provision of the
TCCAL provides that reassessment "as a decision of
judgment based on the method of assessment by the
board, shall not constitute an error under this section."
Id. This language indicates to this court that any
grievance a person or taxing district may have with
regard to the assessment of property in the County based
on grounds other than a mathematical or clerical error
must be resolved through other means.

A review of the amended complaint filed
by Taxpayers reveals that the averments are insufficient

78-A

to hold the Local Governments liable in this section 1983
action. Taxpayers allege that the Local Governments are
liable due to the fact that the Local Governments receive
and levy the tax assessments. Since we have determined
that the Local Governments are not the final
policymakers with respect to the supervision, manner or
method of the assessments upon which the Local
Governments levy their taxes, the allegations of
Taxpayers’ amended complaint are insufficient to state a
Cause of action against the Local Governments under
section 1983.

Accordingly, the order of the trial court is
reversed and this matter is remanded to the trial court
with instructions to dismiss, with prejudice, Taxpayers
amended complaint with respect to the Local
Governments.

JAMES R. KELLEY, Judge

Judge Friedman dissents.

79-A

ORDER

NOW, this 26th day of May, 1995, the
order of the Court of Common Pleas of Berks County,
dated January 23, 1991, as amended by order dated
March 6, 1991, is reversed and this matter is remanded
with instructions to dismiss, with prejudice, appellees’
amended complaint with respect to Greenwich Township
et al. and Borough of Wyomissing Hills et al., appeliants
herein.

Jurisdiction relinquished.

80-A

DISSENTING OPINION BY JUDGE NEWMAN
FILED: May 26, 1995

Because I agree with the trial court that
the General Assembly has delegated to the Berks County
Board of Assessment (Board) the final policymaking
authority to make assessments for Greenwich Township
et al. and Borough of Wyomissing Hills et al. (Local
Governments), I respectfully dissent.

In Monell v. Department of Social
Services of City of New York 436 U.S. 658, 694 (1978)
the Supreme Court stated, "[I]t is when execution of a

government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent the official policy, inflicts the injury
that the government as an entity is responsible under
§1983."

As the majority correctly notes, the
Supreme Court in Pembaur V. City of Cincinnati,
475 U.S. 469, 481 (1986) refined the definition of
"policy or custom" by holding that "[mJunicipal liability
attaches only where the decisionmaker possesses final
authority with respect to the action ordered." The court
further stated that "[aJuthority to make municipal policy
may be granted directly by legislative enactment or may
be delegated by an official who possesses such authority,
and of course, whether an official had final policymaking
authority is a question of state law." Id. at 483.

81-A

Turning to the statute involved in this
case, Section 5344(a) of the Third Class County
Assessment Law (Law), 72 P.S. §5344(a) states:

It shall be the duty of [the
board of assessment appeals],
in each county to which this
act applies, to make and have
supervision of the making of
annual assessments. of
persons, property § and
occupations now or hereafter
made subject to assessment
for taxation of county,
school, poor and institution
district purposes, and to
make and have supervision of
listing and valuation of
property excluded or
exempted from taxation. The
making of triennial
assessments as provided by
existing law is _ hereby
abolished.

72 P.S. §5344(a) (emphasis added).

The trial court correctly determined that

the legislature, through Section 5344(a) of the Law, has
given the Board final policymaking authority to make

82-A

assessments on behalf of local governments. This is a
logical conclusion, because the statute has the effect of
preventing local governments from performing their own
assessments. If local governments wish to impose a tax,
they must do so based upon the Board’s assessment. As
the Supreme Court noted in Pembaur, final policymaking
authority can be granted to a governmental body through
legislative enactment.

The majority recognizes that in St. Louis
v. Praprotnik, 485 U.S. 112, 124 (1988) the Supreme
Court noted that states have great latitude in determining
the forms that local government take. Consequently,
"one may expect to find a rich variety of ways in which
the power of government is distributed among a host of
different officials and official bodies." Id. at 124 - 125.
In the instant matter, the state, acting through the
legislature, has created a system whereby the authority to
make tax assessments for local governments rests with
the Board. This is consistent with Praprotnik, which
’ stands for the proposition that the states have wide
latitude in delegating policymaking authority for local
governments.

Because final policymaking authority for
making tax assessments on behalf of Local Governments
is vested in the Board by statute, the conduct of the
Board is identical to the conduct of local governments for
purposes of a lawsuit brought under 42 U.S.C. $1983.
Such an interpretation is consistent with Pembaur, where
the Supreme Court held that municipal liability attaches

83-A

where the decisionmaker has final authority to establish
policy. Therefore, the Local Governments are properly
named as defendants in the instant civil rights action.

For these reasons, I respectfully dissent.

SANDRA SCHULTZ NEWMAN,
JUDGE

Judge Smith joins this dissent.

Judge Friedman joins in the conclusion of this dissenting
opinion.

84-A

IN THE COMMONWEALTH COURT OF

PENNSYLVANIA
GREENWICH TOWNSHIP et al., :
Appellants
v. : No. 625 C.D. 1991

MERRY J. MURTAGH et al.

BOROUGH OF WYOMISSING
HILLS et al.
Appellants
v. : No. 771 C.D. 1991

MERRY J. MURTAGH et al.

AMENDED ORDER

NOW, this 27th day of June 1995, upon
consideration of appellees’ application for clarification
and/or correction of the court’s opinion dated May 26,
1995, and responses thereto, it is ORDERED that
footnote 3 on page 3 is deleted.

JAMES R. KELLEY, Judge

EXHIBIT D

86-A

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

MERRY J. MURTAGH, ET AL.
v.
COUNTY OF BERKS, ET AL.

PETITION OF: COUNTY OF
BERKS AND THE BERKS
COUNTY BOARD OF ASSESS-
MENT APPEALS AND MERRY
MURTAGH

ORDER

PER CURIAM:

: No. 319 Middle
: District

: Allocatur Docket
: 1995

: Petition for

: Allowance of

: Appeal from

: Commonwealth
: Court

AND NOW, this 22nd day of November,
1995, the Petition for Allowance of Appeal is hereby

dismissed.

Mr. Justice Montemuro participates by
designation as a senior judge as provided by Rule of

Judicial Administration 701(f).

87-A

EXHIBIT E

88-A

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED

Section 1257(a) of Title 28, United States
Code, provides:

Final judgments or decrees rendered
by the highest court of a State in
which a decision could be had, may
be reviewed by the Supreme Court
by writ of certiorari where the
validity of a treaty or statute of the
United States is drawn in question or
where the validity of a statute of any
State is drawn in question on the
ground of its being repugnant to the
Constitution, treaties, or laws of the
United States, or where any title,
right, privilege, or immunity is
specially set up or claimed under the
Constitution or the treaties or statues
of, or any commission held or
authority exercised under, the United
States.

28 U.S.C. §1257(a).

Section 1 of the Fourteenth Amendment to
the United States Constitution provides:

All persons born or naturalized in
the United States, and subject to the
jurisdiction thereof, are citizens of
the United States and of the State
wherein they reside. No State shall
make or enforce any law which shall
abridge the privileges or immunities
of citizens of the United States; nor
shall any State deprive any person of
life, liberty, or property, without due
process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws.

U.S. Const. Amend. XIV, § 1.

Section 1983 of Title 42, United States
Code, provides:

Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United
States or other person within the
jurisdiction thereof to the deprivation
of any rights, privileges, or
immunities secured by the
Constitution and laws, shall be liable
to the party injured in an action at

law, suit in equity, or other proper
proceedings for redress. For the
purposes of this section, any Act of
Congress applicable exclusively to
the District of Columbia shall be
considered to be a statute of the
District of Columbia.

42 U.S.C. § 1983.

Section 1341 of Title 28, United States
Code (the Tax Injunction Act), provides:

The district courts shall not enjoin,
suspend or restrain the assessment,
levy or collection of any tax under
State law where a plain, speedy and
efficient remedy may be had in the
courts of such State.

28 U.S.C. § 1341.

Article VII, Section 1 of the Pennsylvania
Constitution provides:

All taxes shall be uniform, upon the
same class of subjects, within the
territorial limits of the authority
levying the tax, and shall be levied
and collected under general laws.

Pennsylvania Cons. Article VIII, § 1.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1609%3A1. Public record. Not legal advice.