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July 6, 1981

JOSEPH L., Jr. and Mary Tunstall; and Joseph Massey, on behalf of themselves and all others similarly situated, Plaintiffs,
OFFICE OF JUDICIAL SUPPORT OF the COURT OF COMMON PLEAS OF DELAWARE COUNTY, Grace Building Company, Inc., and Curtis Building Co., Inc., on behalf of themselves and all others similarly situated, Defendants

The opinion of the court was delivered by: DITTER

This action challenges the constitutionality of certain tax sales conducted pursuant to the Pennsylvania County Return Act (Act), 72 P.S. §§ 5971a et seq. Suit was brought under 42 U.S.C. § 1983 and the Fourteenth Amendment. Earlier, I dismissed plaintiffs' complaint believing the facts of this case fell within the abstention doctrine, Johnson v. Kelly, 436 F. Supp. 155 (E.D.Pa.1977), and therefore did not reach the merits of plaintiffs' claims or the issue of class certification. The Court of Appeals reversed and remanded. 583 F.2d 1242 (3d Cir. 1978). Presently before me are plaintiffs' motion for class certification and the motion of defendant, Curtis Building Co., Inc., to dismiss or, in the alternative, for summary judgment as to two of the named plaintiffs, Mary E. Tunstall and Joseph L. Tunstall, Jr. Since the facts as to the tax sale of each plaintiffs' property are set forth in great detail in my earlier opinion and in the opinion of the Court of Appeals, I shall recite only those necessary for the disposition of these motions.

I. Motion to Dismiss or for Summary Judgment

 Shortly after the Court of Appeals remanded, Curtis filed what it styled a motion to confirm dismissal and/or motion to dismiss as to the Tunstalls. Curtis alleged that because the Tunstalls failed to join the other plaintiffs in appealing from my order of dismissal, the Tunstalls were precluded from pursuing this action on remand. Before I ruled on that request, plaintiffs amended their complaint. Subsequently, Curtis filed another motion; this one to dismiss or, in the alternative, for summary judgment, again as to the Tunstalls. The new motion raised the doctrine of res judicata as a bar to the Tunstalls in proceeding with this action. Additional facts are needed to put this motion into its proper prospective.

 Plaintiffs filed their complaint challenging the constitutionality of the Act on October 31, 1975. Along with their complaint, the Tunstalls sought a temporary restraining order to enjoin the continuance of a state court quiet title action, brought against them by Curtis which had bought their property at a tax sale conducted pursuant to the Act. On that same date, I denied the restraining order. Subsequently, the Tunstalls amended their answer to the quiet title action and raised, for the first time in that action, the question of the constitutionality of the Act. The quiet title action was concluded on March 14, 1979, with the entry of judgment against the Tunstalls and on behalf of Curtis. The judgment was based on the opinion of the Commonwealth Court, reported at 36 Pa. Commw. 233, 387 A.2d 1370 (Pa.Cmwlth.1978). The Tunstalls' petition and supplemental petition for appeal to the Supreme Court of Pennsylvania was denied in late 1978. No attempt to seek review in the Supreme Court of the United States was made.

 Basically, Curtis' argument is that having fully and freely raised and litigated the constitutional issues in state court, the Tunstalls are barred under the doctrine of res judicata from reasserting these same claims in this subsequent federal action. The Tunstalls counter that res judicata has limited application in actions, as this one, that are maintained under 42 U.S.C. § 1983. Both parties rely on New Jersey Education Association v. Burke, 579 F.2d 764 (3d Cir.), cert. denied, 439 U.S. 894, 99 S. Ct. 252, 58 L. Ed. 2d 239 (1978), as support for their respective positions. Therefore, an examination of the Burke decision is in order.

 The Burke court took great pains to distinguish the application of res judicata in section 1983 actions with the doctrine's application in other settings. In a suit brought under section 1983, res judicata will bar only those claims that were "actually decided by the state tribunals," not those that "could have" or "might have been raised before the state court" but were not. Id. Thus, in applying the Burke holding to the facts of this case, I must necessarily decide what issues were " "freely and without reservation' litigated" by the Tunstalls in defending the state court quiet title action brought against them by Curtis. Id. at 775 (quoting England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 419, 84 S. Ct. 461, 467, 11 L. Ed. 2d 440 (1964)). Only those claims that were actually litigated in state court should be dismissed. For the reasons which follow, I hold that Counts One, Two, Three, Four, part of Seven, and Count Eight of the amended complaint should be dismissed as to the Tunstalls on res judicata grounds.

 As stated above, the Tunstalls filed their amended answer to the state court quiet title action after I denied their motion for a temporary restraining order but before I dismissed, on abstention grounds, their federal complaint. The amended answer raised, for the first time in that action, their claims that the Act was unconstitutional. The First Count of the amended answer alleges that the notice provisions of the Act were constitutionally inadequate. Almost verbatim is Count One of the amended complaint. The Second Count of the amended answer challenges the lack of a procedure whereby a property owner can contest the validity of the determination that a tax deficiency exists. Count Two of the amended complaint is substantially the same. The Third Count, which complains of the Act's failure to provide for notice to the property owner of his right to redeem his property within two years of the sale, is nearly a carbon copy of Count Three. The Fourth Count and Count Four are also the same; both claim that the Act is unconstitutional because it fails to provide notice to the property owner of his right to receive any surplus that remains after satisfaction of the tax claims. Most of the Fifth Count is repeated in Count Seven, and these two counts allege that considered as a whole, the Act is unconstitutional. The principal difference between the Fifth Count and Count Seven is the addition of two further allegations in Count Seven that, the plaintiffs complain, contribute to the Act's unconstitutionality as a whole. These two further allegations are spelled out in detail in Counts Five and Six. Count Five alleges the practice of the County Treasurer in sending just one notice to joint property owners is unconstitutional, and Count Six complains of the County Treasurer's practice of crediting tax payments to the tax year in which payments were made rather than past years in which delinquencies existed without making any special effort to notify the owners. The claims advanced in Counts Five and Six of the amended complaint are nowhere mentioned in the Tunstall's amended answer in state court. Finally, the Sixth Count, which is the last count of the Tunstalls' amended answer, repeats Count Eight of the amended complaint.

 Having compared the amended answer with the amended complaint, I must dismiss, as to the Tunstalls only, Counts One, Two, Three, Four, Seven (except as it relates to the allegations raised in Counts Five and Six), and Count Eight of their amended complaint. I do so because the matters covered by these counts were litigated freely and without reservation in state court and are therefore barred by res judicata.

 The Tunstalls argue that res judicata has no application whatsoever in this proceeding. They advance several reasons for this conclusion, none of which I find persuasive. They argue that "considerable doubt" exists whether the highest Pennsylvania court considered the constitutional issues in question since the Supreme Court of Pennsylvania "summarily" refused to allow a discretionary appeal. No citation of authority was given for this proposition. Moreover, Burke exacts no such requirement. In fact, in Burke itself, the highest state court refused to hear the matter and, as here, no attempt was made to seek review in the United States Supreme Court. Furthermore, in Switlik v. Hardwicke Co., Inc., 651 F.2d 852, at 860 (3d Cir. 1981), the Third Circuit stated that merely because the trial court's judgment is affirmed without opinion is of "no consequence" in determining whether the doctrine of res judicata has application in a subsequent proceeding. Thus, in this context, all that is required for res judicata to apply is a final resolution by the state courts. There can be no dispute that it has occurred in the instant case.

 The Tunstalls claim that res judicata should not apply because the Commonwealth Court's opinion did not deal explicitly with all of the constitutional issues raised in the amended complaint and that only scant treatment was given to those which were discussed. I agree, of course, as to those issues not raised in the amended answer. Those that were advanced, however, are barred by res judicata. Although it is true that the Commonwealth Court did not discuss every constitutional issue suggested in the amended answer, it is also clear that those issues were "submitted" to that court (and the other state tribunals) for consideration. That the Commonwealth Court chose not to discuss expressly all the constitutional issues raised is not decisive.

 The Tunstalls argue that they were "compelled" to raise their federal claims in state court, thus precluding a finding that their constitutional claims were litigated freely and without reservation. This compulsion stems from the fact that on the date their restraining order was denied, I stated I should abstain from deciding this case. Thus, the Tunstalls claim they were forced to raise the constitutional questions in a defensive position in state court; otherwise they faced the prospect of never raising those issues in any court. I disagree.

 The Tunstalls were never forced to raise any federal claims in state court. As a litigation tactic, the Tunstalls "could simply have withheld (their) federal constitutional claims in the state court proceedings, and then brought those claims in federal court under § 1983." Lehman v. Lycoming County Children's Services, supra, at 145. There is, however, no indication that the Tunstalls intended to "reserve" any of their federal constitutional issues as required by Burke. Waiting until the state court proceedings concluded before raising their constitutional claims in a subsequent federal proceeding brought under section 1983 would have avoided any abstention problems and not triggered the doctrine of res judicata to bar the constitutional allegations. Moreover, the Tunstalls were entirely free to appeal my dismissal of their complaint on abstention grounds to the Court of Appeals. They did not do so. As noted above, on the appeal of the other plaintiffs, the Third Circuit determined my abstention to be erroneous. The Tunstalls could have done what the other plaintiffs did. Thus, I reject the Tunstalls' assertion that they were compelled to raise their constitutional claims in the state court proceeding.

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