Johnson v. Kelly, 77-2225

Decision Date29 September 1978
Docket NumberNo. 77-2225,77-2225
Citation583 F.2d 1242
PartiesDoris E. JOHNSON, Edna Sylvester, Joseph L., Jr. and Mary Tunstall, and Joseph Massey, on behalf of themselves and all others similarly situated v. Robert F. KELLY, Individually and as Prothonotary of the Court of Common Pleas of Delaware County, Court House, Media, Pennsylvania, and Grace Building Company, Inc., George and Rye Gold, Robert Alden, Inc., and Curtis Building Co., Inc., on behalf of themselves and all others similarly situated. Appeal of Doris E. JOHNSON and Joseph Massey, on behalf of themselves and the class which they purport to represent.
CourtU.S. Court of Appeals — Third Circuit

David A. Scholl, Alan H. Kleinman, Community Legal Services, Inc., Philadelphia, Pa., for appellants.

Alfred O. Breinig, Jr., Jenkintown, Pa., for appellee.

Before SEITZ, Chief Judge, ALDISERT and ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Plaintiffs appeal from an order of the district court dismissing their constitutional challenge to the validity of tax sales conducted against their properties pursuant to the Pennsylvania County Return Act, Act of May 29, 1931, P.L. 280, §§ 1-21, as amended, 72 P.S. §§ 5971a-t. The district court, concluding that it was constrained from reaching the merits of plaintiffs' claim, dismissed the complaint "in deference to the principles explained in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny . . . ." Johnson v. Kelly, 436 F.Supp. 155, 158 (E.D.Pa.1977).

I. FACTUAL BACKGROUND

The named plaintiffs in this proposed class action, Doris E. Johnson, Joseph Massey, and Joseph and Mary Tunstall, are former owners of residential property located in Delaware County, Pennsylvania, that has been sold at a County Treasurer's tax sale for the alleged nonpayment of local property taxes. Defendants Grace Building Company, Inc. and Curtis Building Company, Inc. are the tax sale purchasers of the properties in question; the third named defendant is E. Jack Ippoliti, Prothonotary of the Delaware County Court of Common Pleas (substituted for Robert F. Kelly, who occupied that office at the time the complaint was filed).

The factual setting of this case with regard to each of the named plaintiffs is set out at some length in the district court's opinion. See Johnson v. Kelly, supra at 159-61. Each of the three controversies developed around a common factual pattern which, given the district court's disposition of the case below, need only be briefly summarized here. The tax sales of the plaintiffs' property were conducted because of their alleged nonpayment of Delaware County property taxes. The parties stipulated that the Johnson and Massey properties were purchased by Grace Building at a 1969 tax sale for $198.31 and $268.06, respectively. The Tunstalls' property was purchased by Curtis Building at a 1968 tax sale for $424.44. The purchase prices were equivalent to the amount of the alleged tax delinquencies and each property had a fair market value far greater (ranging from $8,000 to $30,000) than the tax sale purchase price. The Tunstalls continued to pay local property taxes to Delaware County from 1968 until 1971, but those payments were not credited against the 1966 delinquency which had triggered the tax sale.

The County Return Act, which governed the sales, requires that the record owners of such property be notified prior to the date of sale by certified or registered mail, and by newspaper publication. The Act also provides that failure of the owner to receive personal notice of the sale shall not serve to prejudice the title acquired by a tax sale purchaser as long as the notice was properly sent. See 72 P.S. § 5971g.

All of the plaintiffs here claim that they have no recollection of receiving any notices sent to them by the Delaware County Treasurer's office, and that they did not see the newspaper advertisements regarding the tax sales of their properties. The plaintiffs contend, therefore, that they remained unaware that their properties had been sold until the tax sale purchasers, who are defendants here, instituted state court actions to quiet title and obtain possession. Consequently, none of the plaintiffs exercised his statutory right to redeem the properties within two years of the date of the tax sale. See 72 P.S. § 5971 O. It was the pendency of the aforementioned quiet title actions in the state courts of Pennsylvania, presently at various stages of litigation, 1 that caused the district court to dismiss plaintiffs' federal complaint on Younger grounds.

The plaintiffs filed a complaint in federal court on October 21, 1975, which requested, inter alia, a declaratory judgment that all Delaware County tax sales held pursuant to the County Return Act 2 are unconstitutional, as violative of the due process guarantee of the fourteenth amendment; injunctions preventing tax sale purchasers from commencing or proceeding with state court actions to quiet title to properties purchased at such tax sales and preventing defendant Ippoliti, in his capacity as Prothonotary of the Delaware County Court of Common Pleas, from filing those actions; and an order setting aside the tax sales of the properties of each of the named and class plaintiffs who pay to the Delaware County Treasurer all taxes, penalties, interest, and costs for which the properties were sold or which are presently due.

The plaintiffs' principal constitutional contention is that the County Return Act violates due process by failing to require a judicial determination of the accuracy of an alleged tax delinquency prior to the County's conducting a tax sale, and by failing to require notice by personal service to a property owner whose land is scheduled to be sold for taxes.

The district court, after hearing, dismissed the complaints of all three named plaintiffs on Younger grounds and thus did not reach the issue of class certification. Johnson v. Kelly, supra at 158 & n.3. Plaintiffs Johnson and Massey, on behalf of themselves and the class they seek to represent, appeal from that order.

II. DISCUSSION

At the outset of its discussion of the legal issues presented here, the district court noted that "(t)here are two judicially created abstention doctrines which are potentially applicable in this case." Id. 162 (footnotes omitted). The court concluded that the first of these doctrines Pullman abstention, See Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) is inapplicable to the factual allegations and constitutional claims presented in this case. Johnson v. Kelly, supra at 162. However, after considering the contours of the second doctrine, formulated by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, the district court concluded that it "must abstain from reaching the merits of the controversy and order that the complaint be dismissed." Johnson v. Kelly, supra at 167 (footnotes omitted). It is the application of Younger principles to this federal action that is the subject of this appeal.

In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court reversed the order of a three-judge district court that had enjoined the Los Angeles County District Attorney from prosecuting the plaintiff, Harris, who had been indicted in a California state court on a charge of violating the California Criminal Syndicalism Act. The Court held that the district court's judgment "must be reversed as a violation of the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." 401 U.S. at 41, 91 S.Ct. at 749. (footnote omitted).

Justice Black, writing for the Court, articulated the following principles as the "primary sources" of that national policy. First, he referred to "the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Id. 43-44, 91 S.Ct. at 750. This principle he found to serve the policies of preventing erosion of the role of the jury in criminal cases, and to avoid a duplication of legal proceedings and legal sanctions. Id. 44, 91 S.Ct. 746. In addition, Justice Black found this principle of equitable restraint with respect to criminal prosecutions to be "reinforced by an even more vital consideration, the notion of 'comity,' that 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 their separate ways." Id. This principle, which Justice Black felt was embodied in the phrase "Our Federalism," is a concept which 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 may 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." Id.

Several years passed before the Supreme Court decided that the principles articulated by Justice Black in Younger could be applicable to federal court intervention in a state civil proceeding. In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Court created a limited "civil counterpart" to the Younger doctrine, but made "no general pronouncements upon the applicability of Younger to all civil litigation." 420 U.S. at 607, 95 S.Ct. at 1209. In Huffman, the sheriff and prosecuting attorney of Allen County, Ohio,...

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