Greenwich Tp. v. Murtagh

• Decision Date: 27 June 1995
• Citation: 659 A.2d 1083
• Parties: GREENWICH TOWNSHIP, et al., Appellants, v. Merry J. MURTAGH, et al., BOROUGH OF WYOMISSING HILLS, Borough of Birdsboro, Borough of West Reading, et al., Appellants v. Merry J. MURTAGH, Spencer Lee Cherashore, Frederick Murtagh, et al.
• Court: Pennsylvania Commonwealth Court

Page 1083

659 A.2d 1083

GREENWICH TOWNSHIP, et al., Appellants, v. Merry J. MURTAGH, et al.,

BOROUGH OF WYOMISSING HILLS, Borough of Birdsboro, Borough

of West Reading, et al., Appellants v. Merry J. MURTAGH, Spencer Lee Cherashore, Frederick Murtagh, et al.

Commonwealth Court of Pennsylvania.

Argued Dec. 7, 1994.

Decided May 26, 1995.

As Amended June 27, 1995.

David M. Kozloff, for appellants/appellees Greenwich Tp., Marion Tp., Brecknock Tp., Centre Tp. and Maxatawny Tp.

Robert A. Swift, for appellees/appellants 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.

E. Thomas Henefer, for appellee/appellant County of Berks.

Joseph C. Mossop, for appellee/appellant Berks County Bd. of Assessment Appeals.

Before COLINS, President Judge, and McGINLEY, SMITH, PELLEGRINI, FRIEDMAN, KELLEY and NEWMAN, JJ.

KELLEY, Judge.

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. ¹

I. FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history as substantially set forth in our decision in Greenwich I 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 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 ² 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, 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 issue for appeal pursuant to Pa.R.A.P. 1311(b). ³ 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. ⁴

Section 1983 provides, in pertinent part, that:

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.

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. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (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 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 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, 106 S.Ct. at 1299-1300 (citations and footnotes omitted).

The Supreme Court in City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (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, 108 S.Ct. at 925 (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 statutorily vested in the Board. Further, the Local Governments contend that they could not delegate an authority which they do not possess. ⁵

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 cause solely by an improper assessment.

Second, the Local Governments are liable under section 1983 for constitutional violations by officials who have final policymaking...