Balazik v. County of Dauphin
| Decision Date | 01 July 1983 |
| Citation | 44 F.3d 209 |
| Parties | 97 Ed. Law Rep. 34 Joseph C. BALAZIK; Edith C. Balazik; David Bedard; Judith L. Bedard; Donald F. Fricchione, M.D.; Maria Claudia Fricchione; Joseph F. Salzinger; Douglas G. Ricker; Christine L. Ricker, on behalf of themselves and all owners of real property that was constructed or rehabilitated in the defendant townships since |
| Court | U.S. Court of Appeals — Third Circuit |
Anthony R. Sherr (argued), Deborah Z. Winfeld, Sherr, Joffe & Zuckerman, West Conshohocken, PA, for Tp. of Swatara, petitioner/appellant.
Robert A. Swift (argued), Dennis F. Sheils, Kohn, Nast & Graf, Philadelphia, PA, Theodore A. Adler, Reager & Adler, Harrisburg, PA, Richard D. Adamson, Adamson & Kennedy, Kutztown, PA, for Joseph C. Balazik, Edith C. Balazik, David Bedard, Judith L Carl G. Wass, Caldwell & Kearns, Harrisburg, PA, for Dauphin County and Dauphin County Bd. of Assessment Appeals, respondents/appellees.
Bedard, Donald F. Fricchione, Maria Claudia Fricchione, Joseph F. Salzinger, Douglas G. Ricker and Christine L. Ricker, respondents/appellees.
Richard H. Wix, Wix, Wenger & Weidner, Harrisburg, PA, for Tp. of Lower Paxton, respondent/appellee.
John A. Roe, John A. Roe Law Office, Harrisburg, PA, for Susquehanna Tp., respondent/appellee.
Stuart L. Knade, Cleckner & Fearen, Harrisburg, PA, for Central Dauphin School, Darry Tp. School Dist., Lower Dauphin School, Middletown School Area, and Susquehanna School Dist., respondents/appellees.
Douglas B. Marcello, Thomas, Thomas & Hafer, Harrisburg, PA, for Steelton-Highspire School Dist., respondent/appellee.
Before: HUTCHINSON, NYGAARD and GARTH, Circuit Judges.
An appeal and a petition for mandamus seek review of an order of the district court judge remanding this proceeding to state court pursuant to Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). The central issues presented are whether this Court's review is barred by the operation of 28 U.S.C. Sec. 1447(d), and, if not, whether the remand was proper. Because review of a district court's remand order is generally available, if at all, only through a mandamus proceeding, we will dismiss the appeal at 94-7338. We conclude that we may review the remand order by way of a mandamus, and because remand should have been ordered, we will also deny the petition.
Nine plaintiffs-respondents-appellees (the "Balaziks"), 1 recent purchasers of real property in Dauphin County, Pennsylvania, commenced this putative class action pursuant to 28 U.S.C. Sec. 1983 in the Court of Common Pleas of Dauphin County on March 1, 1994, against 13 defendants, including defendants-appellants Dauphin County and the Dauphin County Board of Assessment Appeals, and defendant-appellant-petitioner Swatara Township (collectively, "Swatara"). The Balaziks, and the other similarly situated plaintiffs, seek to recover damages allegedly sustained as the result of the defendant taxing authorities' practice of reassessing and taxing at fair market values newly acquired and rehabilitated properties without similarly reassessing longer held, non-rehabilitated properties. The Balaziks allege that this "Welcome Stranger" policy results in a higher tax burden for taxpayers such as themselves, and constitutes a violation of their rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
On March 18, 1994, defendants Dauphin County, Dauphin County Board of Assessment Appeals and Swatara removed the case from the Court of Common Pleas to the U.S. District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. Secs. 1331, 1441 and 1443. Swatara has candidly admitted that it sought removal in order to avoid the effects of Murtagh v. County of Berks, 535 Pa. 50, 634 A.2d 179 (1993), a recent decision of the Pennsylvania Supreme Court which held that taxpayers need not exhaust the administrative remedies available to them under state law in order to file a Sec. 1983 action in state court. The remaining ten defendants did not join in Swatara's removal notice. 2
Having removed the case to federal court, Swatara proceeded to seek dismissal of the Balaziks' complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure of the Balaziks to pursue state procedural remedies. In response, the Balaziks made a timely motion to have the proceedings remanded to state court under 28 U.S.C. Sec. 1447(c), claiming that the district court lacked subject matter jurisdiction.
On May 11, 1994, the district court rejected the Balaziks' contention that it lacked jurisdiction, but ordered the case remanded as a matter of comity pursuant to Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981) ().
The district court also noted that not all plaintiffs had joined in the notice of removal, although it did not rule on this issue in deciding the Balazik's motion to remand. Dist.Ct.Memo. at 3 n. 1.
On June 1, 1994, at Docket 94-7338, Swatara appealed the remand order, and on June 10, 1994, Dauphin County and the Dauphin County Board of Assessment Appeals also filed a notice of appeal from the remand order. On June 20, 1994, at Docket 94-7350, Swatara petitioned this Court pursuant to 28 U.S.C. Sec. 1651 to issue a writ of mandamus compelling the district court judge to vacate his remand order and to adjudicate the case. These actions have been consolidated.
As discussed hereafter, 28 U.S.C. Sec. 1447(d) bars review, by direct appeal or otherwise, of remands ordered on the basis of a defect in removal procedure or for lack of federal subject matter jurisdiction. On appeal, and in support of its petition, Swatara has argued that the remand order is (1) reviewable because it was predicated on McNary comity grounds, and (2) improper because McNary should be read to permit only dismissals of proceedings, not remands.
On the other hand, before us, but not before the district court, the Balaziks have urged that the failure of all the defendants to join in the removal was a defect in the removal procedure warranting remand. They suggest that this defect bars our review by the operation of Sec. 1447(d). In addition, the Balaziks contend that remand is in all events proper because McNary is a permissible basis for remand.
The threshold question, then, is whether we have jurisdiction to entertain Swatara's objections to the remand, and, if so, on what basis.
28 U.S.C. Sec. 1447(d), with one exception not applicable here (see footnote 7, infra ), provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...." This apparently global bar to appellate review of remand orders has been interpreted by the Supreme Court to apply only to remand orders issued pursuant to 28 U.S.C. Sec. 1447(c), 3 Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976) and since Thermtron was decided we have held a variety of remand orders to be reviewable. See Aliota v. Graham, 984 F.2d 1350, 1355 (3d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993) (); see also Carr v. American Red Cross, 17 F.3d 671 (3d Cir.1994); Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984). However, when the bar of Sec. 1447(d) does apply, it is absolute, forbidding not only appeals but also writs of mandamus, the "or otherwise" referred to in the statute. Thermtron, 423 U.S. at 336, 96 S.Ct. at 585.
Thus, whether we may review the May 11th remand order of the district court turns on the basis for the remand. As we noted in PAS v. Travelers Ins. Co., 7 F.3d 349 (3d Cir.1993), "[c]ases may be remanded under Sec. 1447(c) for (1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure." Id. at 352. Our review is therefore barred only if one of these grounds formed the basis of the remand.
The Balaziks contend, first, that no review may be had because not all of the defendants joined in the removal, thus constituting a "defect in removal procedure." We agree that the failure of all defendants to remove creates a defect in removal procedure within the meaning of Sec. 1447(c). We would have been required to resolve the issue of our review on that basis, had the district court so held. However, as earlier noted, and as we discuss infr...
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