the rule." 7A C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1785, at 134-35 (1972). In addition, my colleague, Judge Fullam, has noted that "the Rule provides for great flexibility ... and each case requires its own exercise of judgment." Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 458 (E.D.Pa.1968).
Rule 23(b)(1)(A) provides that a class action is appropriate if "the prosecution of separate actions by or against individual members of the class would create a risk of ... inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards for the party opposing the class." The rule is concerned essentially with "whether individual actions would have an adverse effect on the party opposing the class." 7A C. Wright & A. Miller, supra, § 1773, at 8. "The provision was designed to "obviate the actual or virtual dilemma which would ... confront the party opposing the class' when incompatible adjudications would trap him in the inescapable legal quagmire of not being able to comply with one such judgment without violating the terms of another." Walker v. City of Houston, 341 F. Supp. 1124, 1131 (S.D.Tex.1971) (quoting Advisory Committee Notes to Fed.R.Civ.P. 23).
Plaintiffs claim this subsection is satisfied because of the "possibility of obtaining different adjudications in different cases involving different tax sales conducted pursuant to the County Return Act." Plaintiffs' Memorandum of Law In Support of A ... Class Determination at 27 (Document No. 9). Certainly, it is true that different results may obtain if other suits concerning other properties are brought. Such variety would indeed be expected from the number of factual situations that could form the backdrop before which constitutional arguments may be raised to justify a specific individual's failure to save his property from tax sale or for his later failure to redeem it. But the possibility that there may be different results in different factual situations or even different results in the same factual situation is not the test for Rule 23(b)(1)(A). Rather, the question is whether there is a risk of inconsistent or varying adjudications which would establish incompatible standards of conduct for a specific defendant.
While any defendant who purchased two or more properties at tax sale might, as a result of subsequent litigation, be required to surrender one and be permitted to keep the other, these will be property-by-property decisions. Either a defendant will retain his tax sale purchase or he will be divested of it, but no defendant will be faced with two different orders from two different courts requiring conveyance to two different former owners. See generally Judge VanArtsdalen's discussion in Bogosian v. Gulf Oil Corp., 62 F.R.D. 124, 131-32 (E.D.Pa.1973). For this reason, certification under 23(b)(1)(A) is not appropriate.
As a second basis for certification of a plaintiff class, plaintiffs seek to maintain this action under 23(b)(2) which provides for a class action where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." This subsection of the rule is "limited to those class actions seeking predominantly injunctive or declaratory relief." 1 Newberg on Class Actions, § 1145, at 240 (1977). Plaintiffs claim that they have satisfied this subsection because their amended complaint states that the relief sought primarily is a declaration that all sales held pursuant to the Act were unconstitutional and seeks an injunction to set aside these tax sales. The complaint further avers that an injunction should be issued against the private and public defendants preventing them from commencing, proceeding with, or filing actions to quiet title. Finally, the complaint seeks an order to the effect that if all the delinquent taxes are paid, respectively, by the named plaintiffs, the sales shall be set aside. On its face, the complaint does seem primarily to ask for injunctive and declaratory relief. However, looking beyond the four corners of the complaint, as I may properly do, Doctor v. Seaboard Coast Line R.R. Co., 540 F.2d 699, 707 (4th Cir. 1976), it is apparent the relief sought is not predominantly injunctive or declaratory.
Plaintiffs filed this action on October 31, 1975. Effective January 1, 1976, however, tax sales in Delaware County were no longer governed by the Act here in question but were made pursuant to the Real Estate Tax Sale Law, 72 P.S. §§ 5860.101 et seq. Therefore, plaintiffs are not really asserting a facial challenge to the Act but are contesting its constitutionality as applied to the individual sales of their properties. The relief really sought is a chance for the named plaintiffs and the class they want to represent to reacquire their properties. As the Court of Appeals observed in its opinion vacating my earlier order of dismissal: "In effect, they (plaintiffs) merely are seeking an extension of the two-year redemption period, which is already a part of the statutory scheme, for those individuals whose property has been sold at tax sales that they allege were constitutionally deficient." Johnson v. Kelly, supra, 583 F.2d at 1251. Thus, since the relief that the representatives parties and their proposed class pursue is essentially to right past wrongs, this action is not appropriate for class certification under 23(b)(2).
B. The Proposed Defendant Class
Plaintiffs also seek to maintain this action against a class of defendants, represented by the private defendants, Grace Building Company, Inc. and Curtis Building Company, Inc., consisting of "all purchasers, heirs, and assigns, of lands sold at Delaware County Treasurer's tax sales pursuant to 72 P.S. §§ 5971a ff., who had not consummated a quiet title action against the property owners at the time that this action was instituted." Both the private and the public defendants argue that certification of a defendant class should be denied because the private defendants are not adequate representatives of the class. I agree.
Rule 23(a)(4) provides that "(o)ne or more members of a class may sue or be sued as representative parties on behalf of all only if ... the representative parties will fairly and adequately protect the interests of the class." (emphasis added). From the language "be sued" it is clear that Rule 23 provides expressly for defendant as well as plaintiff class actions. United States v. Trucking Employers, Inc., 75 F.R.D. 682, 686 (E.D.Pa.1977). Since "Rule 23 does not differentiate on its face between plaintiff and defendant class actions ... (it) has been suggested that the test for a defendant class is similar to the test for a plaintiff class for adequacy of representation." 7 C. Wright & A. Miller, supra, § 1770, at 240 (1980 Pocket Part).
Adequacy of representation has been held to encompass consideration of two factors: "(a) the ... attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the (named representatives) must not have interests antagonistic to those of the class." Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975). Moreover, "the courts have focused on whether there are potential conflicts between the class representatives and the unnamed members of the class." Santiago v. City of Philadelphia, 72 F.R.D. 619, 625 (E.D.Pa.1976). Finally, whether or not the representative parties can adequately represent a class "depends on all the circumstances of the particular case." Wetzel, supra, 508 F.2d at 247.
In this case, I do not question the competency of counsel for the private defendants. Their counsel is experienced in tax sale cases and I have no doubt that he will pursue this matter vigorously. My chief concern stems from the fact that I do not believe that the private defendants can adequately protect the interests of the absent class members.
Property owners who have purchased at tax sales have only two things in common: first, they had nothing to do with the mechanics of the sale or any of the purported constitutional defects advanced by the plaintiffs; second, these purchasers do not want the sale set aside. In all other respects they are disparate: each has a different stake in the outcome of this type of litigation, each has different resources to commit, each has a different reason to commit or not commit those resources, and each has a different defense to assert. For example, the named private defendants are speculators who regularly attend tax sales and make purchases. They are sophisticated and knowledgeable in this area. Tax sales are an integral part of their business activities and they have willingly accepted whatever risks are involved, known or unknown. Other purchasers may have bought only at one sale and may have done so without much knowledge or any experience. Some purchasers may have improved their properties; others have not. Some have subdivided others may have assembled a tract by several tax sale purchases. Some may have added by a tax sale purchase to a previously owned and improved property. Others may have straightened a border solved an adverse user problem or extinguished an easement by a tax sale purchase. Some have spent a lot of money to buy; others practically nothing. Some have purchased, failed to pay taxes, and permitted the land to be resold at a subsequent sale. Great is the likelihood that no two have the same interest in the outcome of this litigation or any other similar suit that might be brought.
In their complaint, plaintiffs suggest that many of the proposed plaintiff class are aged, sick, infirm, or inflicted with the loss of mental powers. Many, the complaint alleges, have "little education and are unsophisticated regarding the presence and meaning of tax bills and sales, and hence are unaware of the swift and grave consequences of their failure to pay taxes." According to the complaint, notice of the pending sale at which the Tunstalls' property was sold was constitutionally inadequate because the certified mail receipt was signed only by Mrs. Tunstall. The complaint alleges that notice to the Masseys, who were absentee owners, was constitutionally deficient because it was not delivered to either of them. Rather, it went to the property by certified mail and was received by their daughter-tenant who failed to tell her parents that it had come. For each possible plaintiff there may be a different reason asserted as to why a certain sale should be set aside.
Since each property pairs a potential plaintiff and his contentions with a potential defendant, each defense will be somewhat different. There are infinite degrees of "loss of mental powers" and "little education." To place all defendants into one class, or even a number of sub-classes, would be to require them to accept representation from others with widely different interests and defenses. While the named defendants may be quite knowledgeable, I conclude the interests of all the potential defendants may vary so much that lumping them together in a class or in a group of classes would deny them the adequate representation the rule says they should have.
Moreover, since each defendant is linked by a property to a potential plaintiff, a class of defendants in this case would make no sense and achieve none of the objectives of Rule 23 if there was no plaintiff class. For all these reasons, I conclude that certification of a defendant class is not warranted.
AND NOW, this 6th day of July, 1981, it is hereby ordered that:
1. The private defendants' motion to dismiss and or for summary judgment as to the Tunstalls only is granted as to Counts One, Two, Three, Four, Seven (except insofar as this Count relates to the allegations advanced in Counts Five and Six), and Eight of the amended complaint. In all other respects, this motion is denied.
2. Plaintiffs' motion for class certification is denied in all respects.
3. The pleadings are considered to be amended to eliminate all allegations as to representations of absent parties.
4. A pre-trial conference will be held on Wednesday, July 22, 1981, at 9:15 A.M. to discuss remaining discovery, settlement, and preparations for trial.