JOSEPH L. v. Office of Judicial Support, Civ. A. No. 75-3103.

• Decision Date: 24 June 1986
• Docket Number: Civ. A. No. 75-3103.
• Citation: 638 F. Supp. 833
• Parties: JOSEPH L. Jr. and Mary Tunstall and Joseph Massey, etc. v. OFFICE OF JUDICIAL SUPPORT, etc., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

638 F. Supp. 833

JOSEPH L. Jr. and Mary Tunstall and Joseph Massey, etc. v. OFFICE OF JUDICIAL SUPPORT, etc., et al.

Civ. A. No. 75-3103.

United States District Court, E.D. Pennsylvania.

June 24, 1986.

C. Norwood Wherry, Media, Pa., David A. Scholl, Lehigh Valley Legal Services, Allentown, Pa., for plaintiff.

Michael J. Ehling, Office of Judicial Support—Court House, Media, Pa., Alfred O. Breinig, Jr., Jenkintown, Pa., for defendant.

MEMORANDUM AND ORDER

DITTER, District Judge.

This case comes before the court on a petition for counsel fees pursuant to 42 U.S.C. § 1988, the Civil Rights Attorney's Fees Awards Act of 1976. Plaintiff's petition was brought following the settlement of his claim that a sale of his real estate by Delaware County for tax purposes was unconstitutional. The defendant from which the fees are sought was the purchaser at the tax sale. Under the terms of the settlement, the property was returned to the plaintiff who, in turn, reimbursed the defendant for payment of various taxes. I conclude that because of the special circumstances of this case counsel fees should not be awarded.

On February 4, 1946, Joseph Massey and his late wife, Mozelle, purchased 710 West Cooke Avenue, Darby Township, Delaware County, Pennsylvania. The Masseys resided there until 1966, when they moved to a house on Route 1, Rohn Avenue, Newfield, New Jersey. When the Masseys moved to New Jersey, they rented the Cooke Avenue property to their daughter and son-in-law, Dorothy and Adolphus Collins. Although the Masseys visited the Collins family on most Sundays, they did not remain overnight.

On October 27, 1969, the property was sold at a Delaware County treasurer's tax sale for nonpayment of 1967 real estate taxes, pursuant to 72 Pa.Stat.Ann. § 5971a (Purdon 1968 & Supp.1985). Grace Building Company, Inc., purchased the property for $268.06 at a time when its fair market value was approximately $6,000 to $8,000. On January 30, 1970, the Court of Common Pleas of Delaware County confirmed the sale nisi. The Masseys took no exception to this decree and the Treasurer then conveyed the property to Grace Building by deed dated October 27, 1969.

Starting for the year 1967, and until 1971, Grace Building paid all real estate taxes, a total of $1663.80. Meanwhile, Mr. and Mrs. Collins remained in possession of the property, but paid no rent to Grace Building. On December 8, 1971, Grace Building filed an action to quiet title, its purpose being to obtain possession of the premises from Mr. and Mrs. Collins and to establish that the Masseys had no defense to the 1969 tax sale.

Prior to the tax sale, the treasurer's office provided notice by publication and by certified mail. The first certified mail notice was addressed to "Joseph or Mozelle Massey, 710 Cooke Avenue, Glenolden, Pa." The return receipt bore the signature "Dorothy Collins" and was dated August 8, 1969. The treasurer's office sent a second certified mail notice to the Masseys at the same address. The return receipt for the second notice bore the signature "Mozelle Massey" and was dated August 29, 1969. Mr. Massey contended that the signature was not that of his late wife,¹ they never received either of the mail notices, and they had not seen the published notice. In accordance with its customary, though not statutorily required practice, in November, 1969, the treasurer's office notified the Masseys by regular mail addressed to 710 West Cooke Avenue that their property had been sold on October 27, 1969, and that they had two years in which to redeem it. Neither Mr. Massey nor Mrs. Collins recalled receiving that notice.

This same property had previously been sold at a treasurer's tax sale on October 24, 1966, for the nonpayment of 1964 taxes and the Masseys had redeemed it within the two-year grace period. In 1965 and 1966 the Masseys paid taxes on this property only after receiving notice that the premises would be sold at a treasurer's tax sale. Two other lots on Cooke Avenue owned by the Masseys were also sold at the October 27, 1969, tax sale. The Masseys redeemed them on August 10, 1970. From 1964 through 1969, the Masseys paid the taxes on these two lots only after the taxes had been filed as delinquent in the treasurer's office and in many cases only after receiving notice that the lots would be sold at a treasurer's tax sale. A total of 186 properties were sold by the treasurer on October 27, 1969. Of that number, 97 were subsequently redeemed by or on behalf of their former owners.

Massey and other plaintiffs filed their complaint in the instant case on October 21, 1975, against the appropriate Delaware County officials, Grace Building, and other tax sale purchasers, requesting a declaratory judgment that all Delaware County tax sales held pursuant to the County Return Act were 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 and preventing the prothonotary of Delaware County from accepting such actions for filing; and, an order setting aside the tax sales as to former owners who would pay the Delaware County treasurer all taxes, penalties, interest, and costs for which the properties had been sold and which were presently due. Plaintiffs' claims were grounded upon the assertion that due process had been denied because there had been no personal service of either the notice that their property would be sold for taxes or of the notice that they had a right to redeem.

Almost from the beginning, Delaware County asserted no defense. The county's position was that it had no power to rescind the sale, but it would not object if I ordered the property to be returned to the former owners. Additionally, the county agreed to discontinue the challenged practices in the future conduct of tax sales. Grace Building agreed to stay its action to quiet title pending the outcome of this suit.

On July 11, 1977, I dismissed the complaint believing the facts fell within the abstention doctrine, Johnson v. Kelly, 436 F.Supp. 155 (E.D.Pa.1977). I did not reach the merits of the plaintiffs' claims or issues concerning class certification. After the court of appeals reversed and remanded, 583 F.2d 1242 (3d Cir.1978), I refused plaintiffs' motion for class certification. Joseph L. v. Office of Judicial Support, 516 F.Supp. 1345 (E.D.Pa.1981).² During the course of the proceedings all parties except Massey and Grace Building settled their respective claims. Massey then agreed to pay $1800 to Grace Building in exchange for a quitclaim deed for the property. Massey's attorneys now seek $12,393.50 in fees from Grace Building.

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides in part that in any action or proceeding to enforce civil rights "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." In general, the Congressional purpose in providing counsel fees was to encourage private enforcement and the vindication of civil rights. See S.Rep. No. 1011, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. & Admin.News 5908, 5910. A successful party should ordinarily recover attorneys' fees unless special circumstances would render such an award unjust. Skehan v. Bd. of Trustees, 590 F.2d 470, 496 (3d Cir.1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979).

For the purposes of this opinion, I have assumed that Grace Building is a state actor within the scope of section 1983 and that Massey is a "prevailing party," despite serious doubt as to both of these conditions required for an award of attorney's fees under the statute. First, it is doubtful that Grace Building acted "under color of any statute" when it purchased the property at the treasurer's sale. See Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Second, it is doubtful that Massey is a prevailing party. In...