B. Joseph L. Tunstall, Jr. and Mary Tunstall v. Curtis Building Company, Inc.
Mr. and Mrs. Tunstall are adults who reside at 67 Upland Road, Havertown, Delaware County, Pennsylvania. On May 31, 1961, the Tunstall's mortgaged this property to Havertown Savings and Loan Association, which has since merged with Penn Federal Savings and Loan Association, Inc. The mortgage provided for the customary escrowing arrangement whereby monthly payments including principal, interest and taxes were forwarded to the mortgagee which in turn was responsible for paying the property taxes each year. Accordingly, tax bills received by the Tunstalls were forwarded to Penn Federal.
Except in 1964 when they apparently had some difficulty, the Tunstalls have made their mortgage payments, including taxes, to the mortgagee since 1961.
As far as appears herein, with the exception of 1966, tax bills received by the Tunstalls for each year from 1961 to at least 1971 were forwarded to the mortgagee which paid them. For some unexplained reason taxes for the year 1966 allegedly were not paid.
Because of the nonpayment of 1966 taxes, the property in question was sold at treasurer's tax sale on October 28, 1968. Defendant Curtis Building Company purchased it for $424.44, subject to the balance of the Penn Federal mortgage, approximately $4,000. The property's fair market value as of the commencement of the instant lawsuit was approximately $30,000.
As required by Section 5971g, prior to the tax sale the treasurer's office provided notice by publication and by certified mail to the Tunstalls, the record owners. The certified mail notice was addressed to the Tunstalls at 67 Upland Road, Havertown, Pennsylvania, and the return receipt bears the signature "Mary E. Tunstall" and is dated August 6, 1968, but neither Mr. nor Mrs. Tunstall have any recollection of receiving it nor did they see the published notice. In accordance with its customary procedures on November 13, 1968, the treasurer's office notified the Tunstalls via regular mail that their property had been sold on October 28, 1968, and of their two-year right of redemption. Again, the Tunstalls have no recollection of receiving this notice.
Curtis filed a complaint to quiet title and for possession of the property on May 20, 1971, in the Court of Common Pleas of Delaware County. Although personal service in the quiet title action was made by leaving a copy of the complaint at the Tunstall's residence with their adult daughter, Elizabeth, on May 27, 1971, the Tunstalls did not defend against this action and a final judgment by default was entered on September 9, 1971. Subsequently the Tunstalls petitioned to have the judgment opened, which was granted on March 21, 1972. An answer was filed, the quiet title action proceeded to trial without a jury, and on September 12, 1972, the court entered a verdict in favor of the Tunstalls.
On appeal to the Commonwealth Court, the judgment was reversed and the case remanded for further proceedings. Curtis Building Company, Inc. v. Tunstall, 21 Pa. Commw. 81, 343 A. 2d 389 (1975).
The trial judge then ordered a new trial at which the prior record would be incorporated and the parties allowed to present additional evidence. The second trial had not commenced when this complaint was filed and is presumably being held in abeyance pending my decision herein.
C. Joseph Massey v. Grace Building Company, Inc.
On February 4, 1946, Joseph Massey and his late wife, Mozelle, purchased 710 W. Cooke Ave., Darby Township, Glenolden Post Office, Delaware County, Pennsylvania. The Masseys resided there until 1966 when they moved to a smaller home where Mr. Massey still resides at Route 1, Rome Avenue, Newfield, New Jersey. Mrs. Massey died on July 21, 1973. When the Masseys moved to New Jersey they rented the Cooke Avenue property to their daughter and son-in-law, Dorothy and Adolphus Collins, who have resided at the property ever since.
On October 27, 1969, the property was sold at treasurer's tax sale for non-payment of 1967 taxes. Grace purchased it for $268.06; the property's fair market value is approximately $6,000.-$8,000. Prior to the tax sale the treasurer's office provided notice by publication and by certified mail to the Masseys. The first certified mail notice was addressed to "Joseph or Mozelle Massey, 710 Cooke Ave., Glenolden, Pa." and the return receipt bears the signature "Dorothy Collins" and is 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 bears the signature "Mozelle Massey" and is dated August 29, 1969. Mr. Massey disputes that the signature is in fact that of his late wife and contends that the couple never received either of the mail notices nor saw the published notice.
Although the treasurer's office records contained some reference to the Masseys' New Jersey address, no notice of the sale was sent there. In accordance with its customary though not required practice, in November, 1969, the treasurer's office notified the Masseys by regular mail addressed to 710 W. Cooke Ave. that their property had been sold on October 27, 1969, and of their two year right of redemption. Neither Mr. Massey nor Mrs. Collins recalls receiving this notice.
Curtis filed an action to quiet title and for possession against the Masseys on December 8, 1971. This matter had not come to trial when the instant suit was filed and apparently is now being held in abeyance pending my decision herein.
There are two judicially
created abstention doctrines which are potentially applicable in this case.
The first, usually designated Pullman abstention after the case which was its genesis, Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), has as its purpose the avoidance of needless constitutional adjudication. It comes into play where an ambiguous or unconstrued state statute challenged on federal constitutional grounds might be interpreted by a state court so as to avoid the necessity for decision of the constitutional issue. Id. at 500, 61 S. Ct. at 645. Pullman - type abstention has no application where the state law is clear, Wisconsin v. Constantineau, 400 U.S. 433, 438-39, 91 S. Ct. 507, 510-11, 27 L. Ed. 2d 515 (1971); Coll v. Hyland, 411 F. Supp. 905, 908 (D. N.J. 1976) (three-judge court), or where the statute or regulation would be unconstitutional no matter how it might be construed by the state courts. Harman v. Forssenius, 380 U.S. 528, 534-35, 85 S. Ct. 1177, 1182, 14 L. Ed. 2d 50 (1965); Cicero v. Olgiati, 410 F. Supp. 1080, 1088 (S.D. N.Y. 1976). Moreover, the mere fact -- almost always present -- that federal constitutional issues might be litigated in state court is no ground for Pullman -type abstention. See Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L. Ed. 2d 418 (1971); McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963). "Prior resort to the state courts even where there may be an available state remedy, is not required." Conover v. Montemuro, 477 F.2d 1073, 1079 (3d Cir. 1973).
When these principles are applied here, it becomes clear that Pullman -type abstention is inappropriate: the County Return Act clearly contains no provisions for the two procedures -- (1) a judicial determination of the legitimacy of the alleged tax deficiency prior to the tax sale and (2) personal service by the sheriff of the notice of tax sale --
the absence of which form the essential basis for the plaintiffs' constitutional attack. Thus there is no possibility of a state court construction which would avoid the need for adjudication of the constitutional issues. See Constantineau, supra, 400 U.S. at 439, 91 S. Ct. at 511.
The second abstention doctrine, which may be dubbed Younger -abstention after the case which is primarily responsible for its modern contours, is based on principles of equity, comity, and federalism. In Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court held that absent highly unusual circumstances a federal court may not enjoin ongoing state criminal proceedings.
And with Huffman v. Pursue, 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977); and Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486, 45 U.S.L.W. 4535 (1977), the court has extended the reach of Younger to a variety of ongoing state civil proceedings, although it has not yet held the doctrine to be applicable to all civil litigation. Trainor, supra, 45 U.S.L.W. at 4538 n. 8; Juidice, supra, 430 U.S. at 336, n. 13, 97 S. Ct. at 1218.
Unlike the Pullman doctrine, the linchpin of Younger abstention is not unresolved state law questions, but the pendency of state proceedings. Huffman, supra, 420 U.S. at 606-607, 95 S. Ct. at 1209; Trainor, supra, 45 U.S.L.W. at 4538. Younger abstention is proper even though the underlying dispute will require adjudication of federal issues by some court. See Gibson v. Berryhill, 411 U.S. 564, 577, 93 S. Ct. 1689, 1697, 36 L. Ed. 2d 488 (1973).
Indeed, the very rationale of the doctrine is to allow the state judiciary to perform its function of "providing a forum competent to vindicate any constitutional objections interposed against [the state's] policies" free from interference by the federal courts, which might "be interpreted as reflecting negatively upon the state court's ability" to carry out such responsibilities. Huffman,18 supra, 420 U.S. at 604-605, 95 S. Ct. at 1208, quoting, Steffel v. Thompson, 415 U.S. 452, 462, 94 S. Ct. 1209, 1217, 39 L. Ed. 2d 505 (1974).
Plaintiffs argue that Younger abstention is applicable only when the state proceedings are criminal or "quasi-criminal" and cite a number of cases in which federal courts did not abstain from deciding constitutional questions despite the fact that civil proceedings were pending in the state courts. The problem is that most of these cases were decided prior to Huffman, did not address the abstention questions at all, or considered only Pullman abstention. More specifically all three cases cited by plaintiffs which involved challenges to state tax sales, i.e. Wager v. Lind, 389 F. Supp. 213 (S.D. N.Y. 1975); Ponder v. Montieth, Civil Action No. 73-1991 (E.D. Pa. filed Oct. 18, 1974) (three-judge court); Scoggin v. Schrunk, 344 F. Supp. 463 (D. Ore. 1971), rev'd, 522 F.2d 436 (9th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S. Ct. 807, 46 L. Ed. 2d 657 (1976), were decided before Huffman and none addressed the abstention issue. In any event the Supreme Court's recent decisions in Juidice and Trainor put to rest the notion that labels such as "criminal," "quasi criminal" or "civil" have any talismanic quality for Younger purposes. In these cases the Court noted that the quasi-criminal nature of the nuisance proceeding at issue in Huffman was only one of the two factors upon which that decision had been based. The other and more important factor was
"the notion of 'comity,' that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Huffman, supra, 420 U.S. at 601, 95 S. Ct. at 1206, quoting Younger, supra, 401 U.S. at 44, 91 S. Ct. at 750.
Juidice, supra, 430 U.S. at 334, 97 S. Ct. at 1217 (1977).
Juidice applied the Younger doctrine to a state judicial contempt proceeding and Trainor held it applicable to a civil suit instituted by the state to recover fraudulently obtained welfare payments. But even before these most recent Supreme Court decisions lower federal courts had recognized the broad implications of the Younger doctrine and had relied upon it in abstaining in a wide variety of cases not involving quasi-criminal matters. See Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1052 (6th Cir.), cert. denied, 431 U.S. 968, 97 S. Ct. 2926, 53 L. Ed. 2d 1064, 45 U.S.L.W. 3803 (1977) (state court civil proceedings alleged to violate full faith and credit); Louisville Area Inter-Faith Committee v. Nottingham Liquors, 542 F.2d 652 (6th Cir. 1976) (labor dispute); Williams v. Williams, 532 F.2d 120 (8th Cir. 1976) (per curiam) (termination of parental rights);
Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir. 1975) (eminent domain); McCune v. Frank, 521 F.2d 1152 (2d Cir. 1975) (police grooming regulations);
Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), cert. denied, 415 U.S. 983, 94 S. Ct. 1576, 39 L. Ed. 2d 880 (1974) (access to public schools); Cousins v. Wigoda, 463 F.2d 603 (7th Cir.) (per curiam), application for stay denied, 409 U.S. 1201, 92 S. Ct. 2610, 34 L. Ed. 2d 15 (1972) (Rehnquist, Circuit Justice) (political party delegates); Gras v. Stevens, 415 F. Supp. 1148 (S.D. N.Y. 1976) (three judge court) (divorce); Kahn v. Shainswit, 414 F. Supp. 1064 (S.D. N.Y. 1976) (divorce); Burdick v. Miech, 409 F. Supp. 982 (E.D. Wisc. 1975) (three judge court) (proceedings to identify father of child likely to become public charge); Sorger v. Philadelphia Redevelopment Authority, 401 F. Supp. 348 (E.D. Pa. 1975) (eminent domain); Fisher v. Federal National Mortgage Assoc., 360 F. Supp. 207 (D. Md. 1973) (mortgage foreclosure).
I believe that the standard which governs Younger's application to civil proceedings was aptly put by Judge Gordon in Burdick v. Miech, supra:
[The] controlling concept in determining the kind of civil proceeding to which Younger should be applied is whether the state proceeding is one where "the State's interest . . . is likely to be every bit as great as it would be were [it] a criminal proceeding."