APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-2103)
Before Seitz, Chief Judge, and Aldisert and Hunter, Circuit Judges.
When this case was previously before us in 1976, Garrett v. Bamford, 538 F.2d 63, (Garrett I ), we determined that the Pennsylvania statutory procedure to review county real estate tax assessments did not provide appellants with the "plain, speedy and efficient remedy" in Pennsylvania courts to make operative the prohibition of the Tax Injunction Act, 28 U.S.C. § 1341. Thereafter, in 1977, obviously in response to our decision, Pennsylvania amended the tax assessment statutory review procedure. This appeal requires us to decide if the legislative solution has met the concerns identified in Garrett I. The district court held that it did and dismissed the action; the plaintiffs again appeal. We hold that the district court correctly evaluated the subsequent change in Pennsylvania law, and that the court properly abstained from further proceedings, but that the court should have retained jurisdiction pending state court proceedings by the appellants.
Here, as before, we are required to interpret the congressional mandate expressed in the 1937 Tax Injunction Act:
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.
Appellants have requested a federal forum to adjudicate a Fourteenth Amendment Equal Protection claim on behalf of a class of owners and occupants of residential property in areas of substantial concentrations of non-white population within Berks County, Pennsylvania. Their complaint alleges that the properties owned or occupied by them and class members are assessed for purposes of real estate taxes at values which are higher than the values assigned to similar properties in predominantly or exclusively white areas of the county; moreover, they allege that the assessments on their properties constitute a greater percentage of their actual value than is the case with properties in white areas generally. Appellants seek a nondiscriminatory assessment of Berks County residential property.
We previously determined that if appellants were able to bring their "action in the Pennsylvania courts of equity, they would have an adequate remedy," 538 F.2d at 68. But we also stated that there was "substantial uncertainty as to the availability of a Pennsylvania equity forum. . . ." 538 F.2d at 70. We adhere to this view. Our present inquiry, therefore, tracks a narrow compass. We are required to decide if the state procedure affording administrative appeal with judicial review which we previously deemed inadequate only because class action relief was unavailable and the legal remedies required multiple suits involving identical issues against the same defendants, 538 F.2d at 71 now meets the congressional test of "a plain, speedy and efficient remedy."
To understand the 1977 Pennsylvania amendment, it is necessary to consider the state's statutory schema of reviewing assessments and assessment procedures. In Garrett I, we described these procedures as follows:
The statutory remedy . . . is contained in the assessments legislation for counties of the third class, 72 P.S. § 5342 et seq. (Supp.1975). The statute creates a three-member Board of Assessment Appeals, 72 P.S. § 5342 (Supp.1975), which must cause annual assessment of property within its jurisdiction. 72 P.S. § 5344 (Supp.1975). Assessments must be completed by the fifteenth of August of each year, 72 P.S. § 5347 (1968), and property owners must be duly notified. 72 P.S. § 5348 (1968). "Any person aggrieved by any assessment, whether or not the value thereof shall have been changed since the preceding annual assessment . . . may appeal to the board for relief." 72 P.S. § 5349(c) (Supp.1975). Parties must be notified of hearings and the board has "the power to compel the attendance of witnesses and the furnishing of documents." 72 P.S. § 5349(d) (Supp.1975). A final decision of the board may be appealed to the court of common pleas, which may proceed de novo. 72 P.S. § 5350 (Supp.1975).
In the case of real property, the court shall determine, from the evidence submitted at the hearing, what ratio of assessed value to actual value was used generally in the taxing district, and the court shall direct the application of the ratio so found to the value of the property which is the subject matter of the appeal . . . .
Id. Decisions of the court of common pleas may be appealed. Id.
538 F.2d at 70 (footnote omitted).
Isolating the deficiency in this procedure, we noted that the "statutory remedy is clearly designed for an Individual taxpayer to appeal his Individual assessment," 538 F.2d at 70 (emphasis added). Thus, in 1977, the Pennsylvania legislature sought to remove this deficiency by enacting an addition to 72 P.S. § 5349(c)(2):
For the purpose of assessment appeals under this act, the term "person" shall include, in addition to that provided by law, a group of two or more persons acting on behalf of a class of persons similarly situated with regard to the assessment.
As amended 1977, Aug. 5, P.L. 182, No. 48, § 1, imd. effective.
In arguing that the 1977 amendment does not solve their problem, appellants present five contentions: (a) the amended statute does not provide for class action assessment appeals in the state courts, but only at the administrative level; (b) the state remedy still fails to provide for the elimination of the discrimination; (c) the state remedy still fails to provide ongoing relief; (d) plaintiffs are time-barred from bringing this action in the state courts; and (e) the district court's dismissal violated the rule that jurisdiction is determined ...