506 F.2d 355 (3rd Cir. 1974), 74-1624, Samuel v. University of Pittsburgh

Docket Nº:74-1624.
Citation:506 F.2d 355
Party Name:Cynthia Jo SAMUEL and Dena Meyers, Individually, and on behalf of all other persons similarly situated, Plaintiffs, Appellants, Patricia Farley and Cynthia Lambert, Intervening Plaintiffs, v. UNIVERSITY OF PITTSBURGH, the Pennsylvania State University, Indiana University of Pennsylvania, Temple University, and all other state and state-related univ
Case Date:December 26, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 355

506 F.2d 355 (3rd Cir. 1974)

Cynthia Jo SAMUEL and Dena Meyers, Individually, and on

behalf of all other persons similarly situated,

Plaintiffs, Appellants, Patricia Farley

and Cynthia Lambert,

Intervening Plaintiffs,

v.

UNIVERSITY OF PITTSBURGH, the Pennsylvania State University,

Indiana University of Pennsylvania, Temple University, and

all other state and state-related universities and colleges

in the Commonwealth of Pennsylvania similarly situated,

Wesley Posvar, Chancellor of the University of Pittsburgh,

John W. Oswald, President of the Pennsylvania State

University, William W. Hassoer, President of Indiana

University of Pennsylvania, Paul R. Anderson, President of

Temple University, and all other chancellors and presidents

of all other state and state-related universities and

colleges in the Commonwealth of Pennsylvania similarly

situated, the Boards of Trustees of the University of

Pittsburgh, the Pennsylvania State University, Indiana

University of Pennsylvania, Temple University, and the

Boards of Trustees of all other state and state-related

universities and colleges in the Commonwealth of

Pennsylvania similarly situated, William H. Rea, Chairman of

the Board of Trustees of the University of Pittsburgh and

all other persons on the Board of Trustees of the University

of Pittsburgh, Albert Shoemaker, Chairman of the Board of

Trustees of the Pennsylvania State University and all other

persons on the Board of Trustees of the Pennsylvania State

University, and all other persons on the Board of Trustees

of the Pennsylvania State University, Joseph W. Serene,

Chairman of the Board of Trustees of Indiana University of

Pennsylvania and all other persons on the Board of Trustees

of Indiana University of Pennsylvania, William R. Spofford,

Chairman of the Board of Trustees of Temple University and

all other persons on the Board of Trustees of Temple

University and all other Chairmen and all other persons on

the Boards of Trustees of all other state and state-related

universities and colleges in the Commonwealth of

Pennsylvania similarly situated, R. V. Allshouse, Registrar

of the University of Pittsburgh, and all other registrars or

persons holding similar positions in all other state and

state-related universities and colleges in the Commonwealth

of Pennsylvania similarly situated, Frederick Sehring,

Assistant Registrar of the University of Pittsburgh, and all

other assistant registrars or persons holding similar

positions in all other state and state-related universities

and colleges in the Commonwealth of Pennsylvania similarly

situated, Milton J. Shapp, Governor of the Commonwealth of

Pennsylvania, J. Shane Creamer, Attorney General of the

Commonwealth of Pennsylvania, Robert P. Casey, Auditor

General of the Commonwealth of Pennsylvania, and each and

every named Defendant and each and every Defendant subject

to jurisdiction by representation, Individually and in their

official capacity.

No. 74-1624.

United States Court of Appeals, Third Circuit

December 26, 1974

Argued Nov. 12, 1974.

Page 356

Michael P. Malakoff, Berger & Kapetan, Pittsburgh, Pa., for appellants.

James M. Arensberg, Tucker, Arensberg & Ferguson, Pittsburgh, Pa., for University of Pittsburgh, Wesley W. Posvar, R. V. Allshouse and Frederick Sehring, appellees.

Peter Platten and Richard Z. Freemann, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for Temple University, appellee.

Delbert J. McQuaide and John C. Gilliland II, McQuaide, Blasko & Brown, State College, Pa., for The Pennsylvania State University, appellee.

Israel Packel and Thomas F. Halloran, Pittsburgh, Pa., for the Governor and the Atty. Gen. of the Commonwealth of Pennsylvania, appellees.

Robert P. Meehan and Frank P. Lawley, Jr., Harrisburg, Pa., for Auditor Gen. Robert P. Casey, appellee.

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 71-1202).

Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.

OPINION

VAN DUSEN, Circuit Judge.

This is an appeal by the plaintiffs, two married, female graduate students at the University of Pittsburgh, 1

Page 357

who also represent all married female students who since 1967 have attended any of the three defendant universities and who were classified as out-of-state students for tuition purposes on the basis of Rule B(2) of the Auditor General of Pennsylvania. See Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa. 1972) (certification of plaintiff class). Plaintiffs appeal from an order entered by the District Court for the Western District of Pennsylvania, on June 7, 1974. The order directed the defendant universities to bear the expense of identifying members of plaintiff class and notifying them that, although the defendants had been found liable to the plaintiffs as a class, their damage claims would not be adjudicated on a class-wide basis. For the reasons discussed herein, we find that the appeal must be dismissed for want of a final, appealable order. 2 See 28 U.S.C. 1291.

The plaintiffs brought this action on December 28, 1971, to challenge the constitutionality of the Auditor General's Rule B(2), which classified 3 women students as resident or nonresident for tuition purposes. It provided:

'The domicile of a wife (adult or minor) is that of her husband. Where, however, an unmarried woman enrolled as a student having a Pennsylvania resident status marries a non-Pennsylvania resident, she shall continue to be classified as a Pennsylvania resident within the meaning of these Rules.' Samuel v. University of

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Pittsburgh, 56 F.R.D. 435, 437 n. 1 (W.D.Pa.1972).

The plaintiffs assert that the rule denied female students equal protection of the laws. They sought both to have the operation of the Rule enjoined 4 and to have restitution made of such tuition amounts as were unconstitutionally collected. The district court certified the above-mentioned class in an opinion and order dated August 21, 1972. Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa. 1972). On October 5, 1972, the district court ordered the members of the plaintiff class to be individually notified at their representatives' expense. On April 10, 1974, the district court by opinion and order found for the plaintiffs on the ground of the rule's unconstitutionality, but at the same time 'decertified' the class with respect to the class members' damage claims. Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa. 1974). Motions of the plaintiffs to enter final judgment on the April 10, 1974, order pursuant to F.R.Civ.P. 54(b), and to certify the decertification of the class for interlocutory appeal pursuant to 28 U.S.C. 1292(b), were denied on May 1 and May 29, 1974, respectively. On June 7, 1974, the court ordered the defendant universities to send, at their own expense, an approved form of notice of decertification to the class members. The plaintiffs filed timely notice of appeal from this last order, which order was stayed by this court, pending appeal, on July 10, 1974. 5

I.

The plaintiffs-appellants assert this court's jurisdiction on the basis of criteria for application of the 'collateral order doctrine' set forth in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). 6 In Eisen the Court held that an order allowing a suit to proceed as a class action and allocating to the defendants a substantial portion of the cost of notifying the plaintiff class was a 'final' decision within the meaning of 28 U.S.C. 1291. Rejecting any 'verbal formula,' the Court found a touchstone for the interpretation of 1291 in the "practical" inquiry whether "the inconvenience and costs of piecemeal review" outweigh "the danger of denying justice by delay," 417 U.S. at 171, 94 S.Ct. at 2149, quoting Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299 (1950). The Court reaffirmed two criteria in the Cohen decision:

'First, the District Court's finding was not 'tentative, informal or incomplete,' 337 U.S. at 546, 69 S.Ct. at 1225, 93 L.Ed. 1528, but settled conclusively the corporation's claim that it was entitled

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by state law to require the shareholder to post security for costs. Second, the decision did not constitute merely a 'step toward final disposition of the merits of the case . . ..' Ibid. Rather, it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment.'

417 U.S. at 171, 94 S.Ct. at 2149.

We find that the second Cohen criterion is not met by the district court's June 7, 1974, order. 7 The plaintiffs believe that the second criterion is satisfied because the June 7 order 'involves a matter unrelated to any issue remaining before the District Court' and the class plaintiffs 'can proceed no further in the District Court,' thus making the order 'a final disposition of class Plaintiffs' rights.' 8 Plaintiffs'-Appellants' Reply to Defendants'-Appellees' Motions to Dismiss at 5-6. Such an approach to the question of finality fails to confront the basic issue identified by the Court in Eisen, namely, whether the burdens of piecemeal review are justified by the injustice potentially resulting from delay.

The orders appealed from in Eisen and Cohen exemplify the sorts of matters which 'could not be reviewed effectively on appeal from the final judgment.' 417 U.S. at 171, 94 S.Ct. at 2149. In Cohen the...

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