Kimmey v. HA Berkheimer, Inc.

Decision Date20 May 1974
Docket NumberCiv. A. No. 72-1588,72-1724.
Citation376 F. Supp. 49
PartiesShirley KIMMEY et al. v. H. A. BERKHEIMER, INC., and Lewis Dreisbach. Charles WATSON et al. v. John W. HULME et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Alan N. Linder, Jon C. Lyons, York, Pa., J. Richard Gray, Lancaster, Pa., of Tri-County Legal Services, for plaintiffs.

Kimber E. Vought, Joseph A. Tate, Schnader, Harrison, Segal & Lewis, Philadelphia Pa., for defendants.

Leo Kostman, Pittsburgh, Pa., for intervenor-defendant, Pennsylvania Municipal Services Co.

HIGGINBOTHAM, District Judge.


Presently before the Court are two civil rights actions wherein the plaintiffs and the class they purport to represent assail the constitutionality of various provisions of the Pennsylvania Local Tax Collection Law, 72 P.S. § 5511.1 et seq. More specifically, plaintiffs contend that those sections of the Pennsylvania Local Tax Collection Law, 72 P.S. §§ 5511.171 and 5641,2 authorizing local tax collectors to distrain personal property of delinquent taxpayers prior to a hearing or an adjudication relative to liability for said taxes, are repugnant to the Due Process Clause of the Fourteenth Amendment. Predicating jurisdiction on 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. § 1343(3) and (4), plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.

The parties have filed cross-motions for summary judgment and have stipulated to all the material facts. Without reaching the merits of the instant controversy, the Court finds that, by reason of the Johnson Act, 28 U.S.C. § 1341,3 it is divested of jurisdiction and accordingly defendants' motion for summary judgment is hereby granted.


The named plaintiffs in these actions are allegedly indigent persons residing in York County and Lancaster County, Pennsylvania.4 For various reasons the plaintiffs have failed to pay several municipal taxes, viz., a county head tax, a borough head tax and/or local school taxes. The local and municipal taxes in question range from $5.00 to $36.75, exclusive of the costs of any distraint. For instance, plaintiff Shirley Kimmey's tax notices disclosed that her York County head tax was $5.00 and her borough head tax was $5.00. Her school district taxes were $20.00, consisting of a school head tax of $5.00, a school resident tax of $5.00 and a school occupation tax of $10.00. Persons who remit their taxes before a certain date are entitled to a two percent rebate and after a designated date failure to satisfy one's tax obligations carries a five percent penalty.

Periodically, adult residents of the respective taxing districts receive tax notices advising them of their specific tax assessments.5 Upon expiration of an allotted period of time, all unpaid taxes are considered delinquent. The municipal authority then compiles a list of these delinquent taxpayers and said list is forwarded to a tax collector or his agents for collection of the outstanding taxes. Under Pennsylvania law, 72 P.S. § 5511.2, political subdivisions of the Commonwealth are permitted to appoint tax collectors for performance of these services. Any costs incurred in the collection of the delinquent taxes are borne not by the municipality or taxing district but rather are imposed on the individual taxpayer.

The defendants here are duly authorized local tax collectors assigned to York County and Lancaster County. In discharging their duties the defendant tax collectors had delivered to the plaintiffs a notice captioned "Distraint for Delinquent Taxes." The notice stated that after giving ten (10) days notice plaintiffs' personal property would be sold at a public sale unless payment of the taxes in full was received within five (5) days.6 Although plaintiffs did not pay their taxes, the defendants have made no effort to obtain possession of or sell any property subject to the distraints. While the defendants have stipulated that it is not their policy to remove or sell personal property under distraint, they do not aver that they are legally precluded under the law of Pennsylvania from pursuing such actions as a means of facilitating their tax collection.

After the plaintiffs instituted these suits challenging the constitutionality of the distraint provisions, the Court granted the plaintiffs an ex parte temporary restraining order enjoining the defendants from executing upon the distraints by sale of the property until the Court could schedule a hearing with all parties being present. Shortly thereafter the plaintiffs and defendants executed a stipulation that the latter would not distrain or sell any property pending the Court's disposition of this matter.


The threshold inquiry for the Court must be whether it has jurisdiction to adjudicate this matter. The statutory authority that most directly impinges on the Court's jurisdiction is 28 U.S.C. § 1341, which provides:

"The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State."

This provision has engendered a substantial number of judicial rulings where the congressional intent has been exhaustively explored and its mandate frequently elucidated and clarified. For a collection of many of the cases explicating § 1341, see Annotation: Construction and Application of Federal Statute (28 U.S.C. § 1341) Prohibiting Federal District Courts From Interfering with Assessment, Levy, or Collection of State Taxes, 17 L.Ed.2d 1026 (1966). In the face of a statute whose language is unambiguous and where the history, meaning and application of the enactment have been virtually undeviatingly consistent, the Court is constrained to defer to these myriad precedents. When applicable, § 1341 effectively ousts the federal Court of jurisdiction and the Court is mandatorily foreclosed from granting relief. No conduct or actions of the parties can confer jurisdiction upon the Court when it otherwise does not exist nor can the parties waive objections to jurisdictional requirements. City of Houston v. Standard-Triumph Motor Company, 347 F.2d 194, 197 (5th Cir. 1965), cert. denied, 382 U.S. 974, 86 S. Ct. 539, 15 L.Ed.2d 466 (1966).

Section 1341 appears to have been a codification of established and recognized equitable principles. "The scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such equitable relief should be denied in every case where the asserted federal right may be preserved without it. Whenever the question has been presented, the United States Supreme Court has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States." Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S. Ct. 217, 219-220, 76 L.Ed. 447 (1932).

The statutory prohibition of § 1341 cannot be evaded merely by framing the complaint as a request for declaratory relief. The seminal pronouncement of Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298-301, 63 S.Ct. 1070, 1073-1074, 87 L. Ed. 1407 (1943), holding that the Declaratory Judgment Act falls within the ambit of § 1341, persuasively evidences the paramount congressional concern that federal Courts abstain and refrain from unnecessarily interfering in or obstructing the domestic financial policies of states. See, also, Ford Motor Credit Co. v. Louisiana Tax Commission, 440 F.2d 675 (5th Cir. 1971); Gray v. Morgan, 371 F.2d 172, 174 (7th Cir. 1966); City of Houston v. Standard-Triumph Motor Company, supra, 347 F.2d at 197-198; Helmsley v. City of Detroit, 320 F.2d 476, 480 (6th Cir. 1963); Charles R. Shepherd, Inc. v. Monaghan, 256 F.2d 882 (5th Cir. 1958); Miller v. City of Greenville, 138 F.2d 712, 719 (5th Cir. 1943); Non-Resident Tax Ass'n. v. Municipality of Philadelphia, 341 F.Supp. 1135, 1138 (D.N.J.1971), aff'd 406 U.S. 951, 92 S.Ct. 2061, 32 L. Ed.2d 340 (1972); Mandel v. Hutchinson, 336 F.Supp. 772, 777-779 (C.D.Cal. 1971); Hickman v. Wujick, 333 F.Supp. 1221, 1225-1226 (E.D.N.Y.1971); Olan Mills, Inc. v. Opelika, 207 F.Supp. 332, 334 (M.D.Ala.1962); Mid-Continent Airlines v. Nebraska State Board of Eq., 105 F.Supp. 188, 193-194 (D.Neb.1952), and Collier Advertising Service v. City of New York, 32 F.Supp. 870, 872 (S.D. N.Y.1940).

The Court here is indeed acutely aware that the instant actions seek vindication for civil rights encroachments, but where jurisdiction is circumscribed by § 1341, premising the Court's power on 42 U.S.C. § 1983 and its jurisdictional analogue, 28 U.S.C. § 1343, will not compel a contrary result. In Lynch v. Household Finance Corp., 405 U.S. 538, 552-553, 92 S.Ct. 1113, 1121-1122, 31 L. Ed.2d 424 (1972), rehearing denied, 406 U.S. 911, 92 S.Ct. 1611, 31 L.Ed.2d 822 (1972), the Court definitively crystalized the concept that property rights were cognizable as fundamental civil rights under 28 U.S.C. § 1343. Prior to Lynch, several federal Courts, when confronted with state tax statutes where the taxpayer had attempted to bottom jurisdiction on § 1343, had ruled that § 1343 did not encompass protection of property rights and thus in those contexts § 1343 was inapplicable and not determinative. See, e. g., Gray v. Morgan, supra, 371 F.2d at 175; Jones v. Township of North Bergen, 331 F.Supp. 1281, 1285 (D.N.J.1971); Bussie v. Long, 254 F.Supp. 797, 801 (E.D.La.1966), aff'd, 383 F.2d 766 (5th Cir. 1967), and Abernathy v. Carpenter, 208 F.Supp. 793, 794-795 (W.D.Mo.1962), aff'd, 373 U.S. 241, 83 S.Ct. 1295, 10 L.Ed.2d 409 (1963). Nonetheless, the foregoing cases, along with other pre-Lynch authorities, American Commuters Ass'n v. Levitt, 405 F.2d 1148, 1150-1151 (2d Cir. 1969) and Hickman v. Wujick, supra, 333 F.Supp. at 1224, were...

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