ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 71-1202)
Before: CLARK*fn*, Associate Justice, and GIBBONS and HUNTER, Circuit Judges
Appellants, Samuel and Meyers, filed this class action against the appellees, the University of Pittsburgh, Temple University and Pennsylvania State University (Universities), the Governor, Attorney General, and Auditor General of Pennsylvania under 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983, and thereafter Lambert and Farley intervened therein. Appellants attack a statewide residency rule B(2) and its successors,*fn1 applied by Universities, which provide that for tuition purposes the domicile of the wife is that of the husband. Appellants claim that the rule deprives them of their right to equal protection of the laws under the Fourteenth Amendment by requiring them to pay higher tuition fees than other Pennsylvania residents. On August 21, 1972, the District Court certified the case as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure, finding the class to include those married women students attending any of the Universities who were Pennsylvania residents but who were denied that status due to the application of Rule B(2) and its successors. Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D. Pa. 1972). The Court on May 29, 1974, ordered the Universities to deduct 10 percent of each amount paid in restitution to the class to be applied to the payment of attorneys fees and costs.
On April 10, 1974, after extensive discovery and a four day trial, the District Court concluded that Rule B(2) and its successors were unconstitutional, permanently enjoined their application, and ruled that the class members who had suffered injury thereby were entitled to restitution. Samuel v. University of Pittsburgh, 375 F. Supp. 1119 (W.D. Pa. 1974). However, the Court decertified the class as to restitution, finding that each of its members "will present an entirely different factual basis for her contention that she is due restitution", and that no common question of fact or law remained. 375 F. Supp. at 1136. The members of the class thus were left to pursue their individual claims; the court suggested that the claims be processed through administrative channels established by the Universities.
At a conference on April 9, 1974, the District Court denied appellants' motion for the appointment of a master to determine the amount due each student, and to rescind its order decertifying the class as to restitution. It directed on June 7, however, the Universities to bear the expense of identifying members of the class and notifying them that, although the Universities had been found liable to the class, their damage claims would not be adjudicated on a class basis.
On June 13, 1974, the appellants filed a motion to stay the Court's June 7th order until such time as this court could review the District Court's class decertification order. Appellants simultaneously filed an appeal to this court. On the District Court's denial of a motion for stay, one was issued here. On December 26, 1974, this court held that it lacked jurisdiction over plaintiffs' appeal and vacated its July 10, 1974 stay order. Samuel v. University of Pittsburgh, 506 F.2d 355 (3d Cir. 1974).
On February 13, 1975, after an evidentiary hearing, the District Court found that appellants, Samuel, Meyers, Farley, and Lambert, were not entitled to restitution on the facts of their cases. The Court, on June 6, 1975, denied a claim for $188,000 in attorneys' fees (in addition to the contingent fee of 10 percent previously ordered by the Court). 395 F. Supp. 1275 (W.D. Pa. 1975). This appeal was taken from these rulings. The Universities filed their cross-appeals as to their liability for restitution.
The only questions on appeal concern the decertification of the class, restitution due the named members thereof, attorneys fees and costs, and the cross-appeal on the liability of the Universities for restitution.
We have concluded that the District Court correctly held that restitution is due any women who paid the higher out-of-state tuition rate solely by reason of the application of the unconstitutional residency rules. However, we reverse the order decertifying the class as to restitution as well as the order denying recovery to the appellants, Meyers, Lambert, Samuel, and Farley. The order creating a common fund from a 10% assessment against individual restitution recoveries is vacated to the extent it provided for award of attorneys' fees and reversed to the extent that it provided for award of costs. The order denying plaintiffs' counsel's petition for award of attorneys' fees is also vacated, and the case is remanded for further consideration in light of this opinion.
The Liability of the Universities
In addition to the injunctive relief, appellants also sought reimbursement for the difference between the lesser in-state and the higher out-of-state tuition which they were forced to pay by reason of the discriminatory residency rules. As the District Court held;
The equitable remedy of restitution is part and parcel of the injunctive relief already granted plaintiffs. Having assumed jurisdiction in equity over plaintiffs' claim for injunctive relief, the Court may pass upon the intertwined question of restitution as it sees fit. 375 F. Supp. at 1135 (citations omitted).
The Court found that the Universities were unjustly enriched in that they wrongfully secured a benefit which it would be unconscionable for them to retain. We agree with this conclusion. Moreover, there was justifiable reliance by the class upon the representation of the Universities, backed by the Auditor General and the Attorney General of Pennsylvania that the out-of-state fee was correct and was due and payable before they could be ...