56 F.R.D. 435 (W.D.Pa. 1972), C. A. 71-1202, Samuel v. University of Pittsburgh

Docket Nº:Civ. A. 71-1202.
Citation:56 F.R.D. 435
Opinion Judge:TEITELBAUM, District Judge.
Party Name:Cynthia Jo SAMUEL and Dena Meyers, individually, and on behalf of all others similarly situated, Plaintiffs, v. UNIVERSITY OF PITTSBURGH et al., Defendants.
Attorney:Michael P. Malakoff, Daniel M. Berger, Berger & Kapetan, Harry F. Swanger, Richard R. Isaacson, Pittsburgh, Pa., for plaintiffs. Charles C. Arensberg, Tucker, Arensberg & Ferguson, J. Shane Creamer, Atty. Gen., Barry A. Roth, Deputy Atty. Gen., Thomas F. Halloran, Asst. Atty. Gen., Pittsburgh, Pa...
Case Date:August 21, 1972
Court:United States District Courts, 3th Circuit
 
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Page 435

56 F.R.D. 435 (W.D.Pa. 1972)

Cynthia Jo SAMUEL and Dena Meyers, individually, and on behalf of all others similarly situated, Plaintiffs,

v.

UNIVERSITY OF PITTSBURGH et al., Defendants.

Civ. A. No. 71-1202.

United States District Court, W. D. Pennsylvania.

August 21, 1972

Page 436

Action was brought by female students individually and on behalf of others similarly situated, to have declared unconstitutional a rule governing determination of student Pennsylvania resident status, and for injunctive relief and, in effect, for restitution. The District Court, Teitelbaum, J., on motions to dismiss and on the students' motion to maintain the action as a class action as to both students and defendant universities and officials and on the students' application for preliminary injunction, held that the action could be maintained as a class action except as to the defendant Indiana University of Pennsylvania and its officials and similarly situated unnamed defendants, and that immunity was not a defense.

Maintenance of class action allowed except as indicated; motions to dismiss denied; hearing set on application for preliminary injunction.

Page 437

Michael P. Malakoff, Daniel M. Berger, Berger & Kapetan, Harry F. Swanger, Richard R. Isaacson, Pittsburgh, Pa., for plaintiffs.

Charles C. Arensberg, Tucker, Arensberg & Ferguson, J. Shane Creamer, Atty. Gen., Barry A. Roth, Deputy Atty. Gen., Thomas F. Halloran, Asst. Atty. Gen., Pittsburgh, Pa., Charles A. Glackin, Sp. Counsel, William H. Smith, Chief Counsel, Harrisburg, Pa., Richard Freemann, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., Delbert McQuaide, McQuaide, Blasko, Brown & Geiser, State College, Pa., for defendants.

OPINION

TEITELBAUM, District Judge.

This is an action under 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983. The named plaintiffs are two married, female, graduate students at the University of Pittsburgh. Procedurally they purport to represent, pursuant to Rule 23 of the Federal Rules of Civil Procedure, all other persons similarly situated. Substantively they seek (1) to have declared unconstitutional and enjoined Rule B(2)1 of the ‘ Rules Governing The Determination Of . . . Student Pennsylvania Resident Status', a rule promulgated by the Auditor General of Pennsylvania, and (2) to have all the excess tuition exacted by the defendants under the rule since 1967 refunded.2

Page 438

The plaintiffs contend that under the rule they are classified as out-of-state residents solely and simply because their husbands are classified as out-of-state residents. They contend that in their own rights they are properly classifiable, for tuition paying purposes at least, as in-state residents.3 The conclusion of the plaintiffs is that they have been unconstitutionally discriminated against on the basis of their female sex.

The named defendants are groupable into four categories: (1) three general officials of the Commonwealth of Pennsylvania, (2) the three state-related universities of Pennsylvania, (3) ten general officials of the three state-related universities and (4) Indiana University of Pennsylvania and two of its general officials. In addition, the plaintiffs seek to include as defendants, pursuant to Rule 23, ‘ all other state and state-related universities and colleges in the Commonwealth of Pennsylvania similarly situated’ and their corresponding general officials.

Pending at this juncture are (1) the defendants' motions to dismiss and (2) the plaintiffs' (a) motion to maintain the action as a class action pursuant to Rule 23 as to both plaintiffs and defendants and (b) application for a preliminary injunction. Since ‘ whether there is a proper class does not depend on the existence of a cause of action’, Kahan v. Rosenstiel, 424 F.2d 161 (3rd Cir. 1970), and since the chief contention of the defendants' motions to dismiss is that the plaintiffs have failed to state a claim upon which relief may be granted, it would seem that the plaintiffs' motion to maintain the action as a class action should be considered initially.

CLASS ACTION MOTIONS

Defendant Class

The primary substantive issue in this action is whether or not Rule B(2) and ‘ all other similar rules' are unconstitutional under the Fourteenth Amendment of the United States Constitution. Since Rule B(2) is applied per se only by the University of Pittsburgh, the Pennsylvania State University and Temple University, all the defendants as to the issue of its constitutionality have been named. It is as to the ‘ other similar rules' which are allegedly applied by Indiana University of Pennsylvania and the ‘ all other state . . . universities and colleges in the Commonwealth of Pennsylvania similarly situated’, then, that the plaintiffs seek to maintain a defendant class action. The plaintiffs contention is that all

‘ . . . the [defendants have] acted . . . on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole’ . (Rule 23(b)(2))

There are twenty-one named defendants. The plaintiffs define the class which the named defendants proposedly represent to be the thirteen ‘ other state and state-related universities and colleges in the Commonwealth of Pennsylvania

Page 439

similarly situated’ and their corresponding chancellors and presidents, boards of trustees and chairmen of boards of trustees, registrars and assistant registrars. The plaintiffs conclude that the entire class consists of seventy-one members. The plaintiffs assert that Indiana University of Pennsylvania and the unnamed defendants do not apply Rule B(2) per se, but apply the ‘ similar’ ‘ common law rule’ . Thus Indiana University and its general officials are the named defendant representatives of the proposed class, and it is that class which must be measured against Rule 23.

The first prerequisite to the maintenance of a class action is that prescribed by Rule 23(a)(1) that ‘ the class is so numerous that joinder of all members in impracticable’ . The number of members of the class alone is not dispositive. A class consisting of as few members as eighteen was allowed to be maintained in Cypress v. Newport News General & Nonsectarian Hospital Association, 375 F.2d 648 (4th Cir. 1967). It is more the practicalities of the circumstance which govern. Arkansas Education Association v. Board of Education of Portland, Arkansas School District, 446 F.2d 763 (8th Cir. 1971); Cypress v. Newport News General & Nonsectarian Hospital Association, supra . Further, ‘ impracticability’ does not mean ‘ impossibility’ . Union Pacific Railroad Company v. Woodahl, 308 F.Supp. 1002 (D.C.D.Mont.1970). In Woodahl a class of fifty-seven was permitted for the reason that,

‘ [T]o demand the joinder of all county attorneys in the state [57] would be a hardship and an inconvenience to all concerned.’

In this action, while the forty-eight proposed defendants are not particularly widely scattered and are readily identifiable, I think the inconvenience involved in joining them serves to satisfy the numerosity requirement.

Clearly there are questions of law or fact common to the class. And equally as clearly the defenses available to Indiana University and its officials are typical of and coextensive with those available for advancement by the members of the proposed class. To be sure, the defenses as between the colleges and universities and their officials may vary, but since the colleges and universities, and their officials are represented, the whole gamut of the available defenses are represented.

Too, the requirement of Rule 23(a)(4) that ‘ the representative parties will fairly and adequately protect the interest of the class' is satisfied. This prerequisite demands that the representing attorney be qualified, experienced and able, and that the action will be vigorously and uncompromisingly prosecuted. Katz v. Carte Blanche Corporation, 52 F.R.D. 510 (D.C.W.D.Pa.1971). The attorneys representing Indiana University and its officials are undoubtedly in satisfaction of the adequate representation requirement. I conclude, therefore, that as to the defendants this action is maintainable as a class action, the...

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