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NON-RESIDENT TAXPAYERS ASSN. OF PENNSYLVANIA v. MU

August 22, 1972

The NON-RESIDENT TAXPAYERS ASSOCIATION OF PENNSYLVANIA AND NEW JERSEY et al.
v.
Charles MURRAY, Sheriff of Philadelphia County, et al.



The opinion of the court was delivered by: WEINER

WEINER, District Judge.

In this case the plaintiffs have launched an attack upon the constitutional validity of a Pennsylvania statute which authorizes the issuance of a writ of capias ad respondendum in suits to recover fines and penalties and upon the Pennsylvania Rules of Civil Procedure which have preserved and ratified the utilization of the writ for the specific purpose of actions instituted for the collection of fines and penalties.

 By virtue of the Act 1937, June 21, P.L. 1982, as amended, 17 P.S. § 61 et seq., the Supreme Court of Pennsylvania determined that:

 
"Except in an action for fines and penalties, . . . a defendant may not be arrested before judgment in an action or proceeding at law or in equity". Rule 1481 of the Pa. R. Civ. P., 12 P.S. Appendix.

 Thus the Acts of Assembly which governed the commencement of actions for the collection of fines and penalties survived and remain in full force and effect. 12 P.S. § 171 et seq. Our task on review is to decide the constitutionality of the statute. A three-Judge District Court has been convened pursuant to 28 U.S.C. § 2281.

 This Court has jurisdiction under the relevant provisions of the Civil Rights Act, 42 U.S.C. § 1983.

 To fully understand the substance of the plaintiffs' claim, this factual statement of the situation which gave rise to this litigation must be made. The individual plaintiffs do not reside in Philadelphia where they are employed. Buompastore, Goodwin, Gould, and Nole live in New Jersey. Stevenson has his home in Downingtown, Pennsylvania. The Non-Resident Taxpayers Association is a New Jersey Corporation having a membership of over 17,000 persons who are not residents of, but who are employed in Philadelphia. The individual plaintiffs have either been arrested on a capias ad respondendum or have been notified of the City's intent to arrest. Many members of the Taxpayers Association are likely candidates for arrest by capias. It is conceded that the individual plaintiffs have refused to file tax returns or pay wage taxes due under Title 19 of the Philadelphia Code. The authority of the City of Philadelphia to require non-resident employees to file tax returns and to pay a wage tax can no longer be controverted. Non-Resident Taxpayers Association v. Philadelphia, (D.C.N.J. 1971), 341 F. Supp. 1139, aff'd 406 U.S. 951, 92 S. Ct. 2061, 32 L. Ed. 2d 340 (1972). Section 19-502(3)(b) of the Philadelphia Code provides:

 
"In addition to any other sanctions or remedial procedure provided, any person who shall . . . violate any provisions of this title . . . shall be subject to a fine of not more than $300 for each offense together with imprisonment for no more than 90 days if the fine and costs are not paid within 10 days."

 The plaintiffs case is predicated upon a contention that the commencement of an action to recover a fine by the issuance of a writ of capias ad respondendum is violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and the Eighth Amendment proscription against excessive bail. A brief review of the statute is a necessary preclude to our decision. The Act of June 13, 1836, P.L. 568 § 3, 12 P.S. § 171 states that:

 
"It shall be the duty of any Court having jurisdiction of the action, on the application of the plaintiff in any personal action, his agent or attorney, instead of the writ of summons as aforesaid, to issue a writ of capias ad respondendum . . . . "

 As previously stated, the sections of the Act as enumerated above, with the exception as they apply to actions for fines and penalties or writs of ne exeat, were suspended by Rule 1481 of the Pa. R. Civ. P. Remaining are exemptions from civil arrest afforded a Freeholder of real estate worth at least 50 pounds who has resided in Pennsylvania for at least two years, Act of March 20, 1725, 1 Sm. L. 164, 12 P.S. § 251; minors and married women, Act of July 9, 1901, P.L. 614, 12 P.S. § 304.

 Pursuant to Section 15 of the Act the Court of Common Pleas of Philadelphia promulgated ...


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