Co. of America v. Sergeant, 337 F. Supp. 88, 89-90 (D. Kansas 1972) and Sears, Roebuck & Co. v. Roddewig, 24 F. Supp. 321, 324-325 (S.D. Iowa 1938).
Plaintiffs here do have a "plain, speedy and efficient remedy" in the courts of the Commonwealth of Pennsylvania. Some of the plaintiffs allege that the distraint procedure deprives them of the opportunity to dispute their liability for the taxes unless they either pay the tax under protest and seek a refund or opt not to pay and then subject themselves to the application of the distraint process. Pursuant to 72 P.S. § 5511.37
the taxpayer, at no expense to himself and prior to payment of any tax, can apply with the local authority for an exoneration from payment of the tax. If a mistake had been committed, as apparently is asserted by plaintiff Hawkes when she claims she did not reside in the taxing district during the period for which she was taxed, she can request an exoneration. If the taxpayer is indigent, an exoneration is available.
Although plaintiff Eyler requested an exoneration on the ground of indigency and had her request denied, the Court cannot conclude that the mechanism is so discretionary, uncertain or inadequate that it constitutes an exceptional or extraordinary circumstance warranting federal intervention.
Cf. Hillsborough v. Cromwell, 326 U.S. 620, 625-630, 66 S. Ct. 445, 449-451, 90 L. Ed. 358 (1946); Allen v. Regents of University System, 304 U.S. 439, 448-449, 58 S. Ct. 980, 984, 82 L. Ed. 1448 (1938); Miller v. Standard Nut Margarine Co. of Florida, 284 U.S. 498, 509-511, 52 S. Ct. 260, 263-264, 76 L. Ed. 422 (1932); Hopkins v. Southern California Telephone Co., 275 U.S. 393, 399-400, 48 S. Ct. 180, 182, 72 L. Ed. 329 (1928); Bohler v. Callaway, 267 U.S. 479, 486-489, 45 S. Ct. 431, 434-435, 69 L. Ed. 745 (1925); Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 519-521, 37 S. Ct. 673, 682, 61 L. Ed. 1280 (1917); Louisville & Nashville R. Co. v. Public Service Commission of Tenn., 249 F. Supp. 894, 903-904 (M.D. Tenn. 1966); D.C. Transit System v. Pearson, 149 F. Supp. 18, 19-20 (D.D.C. 1957); and Birch v. McColgan, 39 F. Supp. 358, 365-366 (S.D. Cal. 1941).
In addition to the exoneration procedure, under Pennsylvania law, 72 P.S. § 5566b,
a taxpayer can remit the tax to the appropriate authority and simultaneously tender a written and verified claim for a refund. This procedure can be utilized by the taxpayer without incurring any expense other than payment of the tax. The procedure is an administrative one, but it does afford the taxpayer the opportunity to raise any defenses. Should either of these aforementioned methods prove unsuccessful, a third remedy exists in 72 P.S. § 5566c.
The taxpayer can pay the tax under protest and then institute an action in assumpsit for a refund where he bears the cost of litigation and assumes the burden of proof.
Payment of the tax under protest and demanding a refund has frequently been upheld as a plain, speedy and efficient remedy under state law. See, e.g., Matthews v. Rodgers, supra, 284 U.S. at 525-528, 52 S. Ct. at 219-220; Aronoff v. Franchise Tax Board of State of California, 348 F.2d 9, 10-11 (9th Cir. 1965); Helmsley v. City of Detroit, supra, 320 F.2d at 479-481; and Carbonneau Industries, Inc. v. City of Grand Rapids, supra, 198 F. Supp. at 632-633. Cf. George F. Alger Co. v. Peck, 98 L. Ed. 1148, 74 S. Ct. 605, 606-607 (1954); Ford Motor Credit Co. v. Louisiana Tax Commission, supra, 440 F.2d at 676-677; Kiker v. Hefner, 409 F.2d 1067, 1069 (5th Cir. 1969); Pitts v. Kunsman, supra, 363 F.2d at 842-843; Henry v. Metropolitan Dade County, supra, 329 F.2d at 781; Corbett v. Printers & Publishers Corp., 127 F.2d 195, 197-198 (9th Cir. 1942); Phipps v. School District of Pittsburgh, supra, 111 F.2d at 397-398; and Delaware, Lackawanna and Western R. Co. v. Kingsley, 189 F. Supp. 39, 53 (D.N.J. 1960).
In the matter at bar plaintiffs assert that the distraint procedure runs afoul of the Fourteenth Amendment Due Process Clause. But state Courts are mandated and empowered to vigorously enforce and protect rights secured by the federal constitution of the United States. See, e.g., Helmsley v. City of Detroit, supra, 320 F.2d at 480; Phipps v. School District of Pittsburgh, supra, 111 F.2d at 400; Baker v. Atchison, T. & S.F. Ry. Co., 106 F.2d 525, 530 (10th Cir. 1939), cert. denied, 308 U.S. 620, 60 S. Ct. 296, 84 L. Ed. 518 (1939); and Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 140 F. Supp. 920, 923 (E.D. Mich. 1956), aff'd, 252 F.2d 317 (6th Cir. 1956).
While it is true that the distraint procedure attacked here is not the exclusive method for collection of delinquent taxes,
it is the procedure principally relied upon by the defendants. The ultimate forum for challenging the constitutionality of state taxing statutes lies in the state Courts. Comity requires a recognition by a federal Court of the integral significance of the tax collection scheme utilized by a state and its interrelationship with the overall fiscal system of that state or its political subdivision.
The Court is deliberately refraining from considering the merits of these lawsuits since it believes § 1341 is applicable. In Bland v. McHann, supra, 463 F.2d at 28-29, the Court of Appeals affirmed the District Court Judge insofar as he relied on § 1341, but the Fifth Circuit vacated that portion of the lower court judgment which went to the merits of the controversy, noting that it was inappropriate for the District Judge to pursue that course of action. Similarly, in Charles R. Shepherd, Inc., v. Monaghan, supra, 256 F.2d at 884, the Court of Appeals underscored its affirmance of the lower court ruling on the point of non-jurisdiction by striking any reference to the granting of summary judgment for the defendants, treating the lower court ruling as a dismissal for want of jurisdiction.
Thus for all the foregoing reasons the Court concludes that § 1341 is controlling and consequently the Court is without jurisdiction in this matter.
AND NOW, this 20th day of May, 1974, it is hereby ORDERED that the Defendants' Motion for Summary Judgment is hereby GRANTED on the ground of lack of jurisdiction*. The Court expresses no opinion regarding the merits of the case.