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LAWRENCE J. SPIELVOGEL, INC. v. TOWNSHIP OF CHELTE

November 15, 1995

LAWRENCE J. SPIELVOGEL, INC., Plaintiff,
v.
TOWNSHIP OF CHELTENHAM, et al., Defendants.



The opinion of the court was delivered by: JOYNER

 Joyner, J.

 We address today the motions to dismiss filed by the defendants in this § 1983 case. For the reasons that follow, we conclude that we lack subject matter jurisdiction over the instant dispute, and as a result, we must dismiss the plaintiff's complaint.

 BACKGROUND

 The plaintiff in this case is Lawrence J. Spielvogel, Inc. ("LGSI"), a Pennsylvania engineering consulting firm with its sole office located in Cheltenham, Pennsylvania, a Philadelphia suburb. During the time period relevant to this lawsuit, LGSI provided professional services to clients both within and outside of Pennsylvania. On December, 30, 1976, the Township of Cheltenham (the "Township"), one of the defendants in this case, promulgated Ordinance No. 1400, which imposed a registration fee and a business privilege tax on the gross receipts of any person or organization doing business in the Township. Neither Ordinance No. 1400 nor the regulation that superseded it on January 1, 1987, Ordinance No. 1639, explicitly permit taxpayers who do business outside of Pennsylvania to apportion their taxable revenue so as to exclude income derived from out-of-state sources. Both ordinances, however, provide a means by which a taxpayer can claim an exemption, pursuant to which the taxpayer bears the burden of demonstrating an entitlement to an exemption by clear and convincing evidence. *fn1"

 On November 8, 1989, after a bench trial, the Court of Common Pleas ruled in the Township's favor, but failed to reach the question of whether the Township can lawfully tax income derived outside Pennsylvania. Instead, the court held that even if such taxation were deemed unlawful, LGSI could not prevail because it failed to produce evidence relating to the amount of revenue it generated out-of-state. After its post-trial motion was denied, LGSI appealed the decision to the Commonwealth Court, which affirmed the lower court's decision. Lawrence G. Spielvogel, Inc. v. Township of Cheltenham, 144 Pa. Commw. 510, 601 A.2d 1310 (1992). Unlike the Court of Common Pleas, however, the Commonwealth Court addressed the question of the business privilege tax's constitutionality, noting that while the constitution precludes a political subdivision from imposing a direct tax on the privilege of conducting interstate commerce, a business privilege tax is not invalid merely because a portion of the revenue is generated out-of-state. 601 A.2d at 1314 (citations omitted). The court then held that "as long as the intent of the taxing ordinance is to tax intrastate and not interstate receipts, and the two are separable, the constitutional prerequisites have been met." Id. at 1315. Thus, the ordinance was not rendered invalid merely because it did not contain a provision for apportionment. Indeed, since the ordinance provided for a means by which a taxpayer could claim an exemption with respect to particular revenues, it met the separability requirement and therefore was within constitutional bounds. Id. at 1315-16.

 Meanwhile, the Township initiated a second action in the Court of Common Pleas against LGSI, seeking recovery of business privilege taxes on receipts generated from out-of-state activities during the tax years of 1986 through 1991, plus interest and penalties. Township of Cheltenham v. Lawrence G. Spielvogel, Inc., Civ. No. 90-02702 ("Spielvogel II "). After the Commonwealth Court issued its decision in Spielvogel I, Mr. Spielvogel contacted Township officials in an attempt to demonstrate an entitlement to an exemption from taxation on revenue generated outside of Pennsylvania, but was told that unless LGSI paid the taxes on all gross receipts, as well as interest and penalties, the Township would move forward with the second action. LGSI refused this demand.

 Spielvogel II was presented to an arbitration panel, which ruled against LGSI on the issue of the exemption. When LGSI appealed the arbitration panel's decision to the Court of Common Pleas, the Township stipulated that LGSI properly claimed and supported its request for an exemption for the portion of its gross receipts derived out-of-state, but argued that it was entitled to levy a tax on all receipts, regardless of where they were generated, without affording the taxpayer the opportunity to demonstrate an entitlement to an exemption. The Court of Common Pleas disagreed, and entered an order in LGSI's favor on December 27, 1994. Basing its decision on Spielvogel I, the court held that since the parties agreed that LGSI properly set forth a claim for an exemption, the Township's refusal to allow the exemption rendered the ordinance unconstitutional as applied. The Township elected not to appeal.

 LGSI filed the instant complaint, which is 50 pages long and contains 327 averments, on March 21, 1995. It names as defendants not only the Attorney Defendants, who represented the Township throughout its 11-year battle with LGSI and allegedly assisted the Township in the drafting of the ordinances at issue, but also the Township and Ruth M. Damsker, William David Webb and Marsha Gash, all of whom worked in the Township's Tax Collector's Office during the time period relevant to the lawsuit (collectively, the "Township Defendants"). Moreover, the complaint contains four claims, the first three of which are brought pursuant to 42 U.S.C. § 1983. In the first claim, LGSI asserts that all of the defendants conspired to deprive it of the rights secured to it by the commerce clause and the due process clause of the fourteenth amendment. LGSI alleges in the second and third counts that Defendants Damsker, Gash, High, Abrams, HSRS and the Township acted to deprive it of its rights under the commerce clause and the due process clause of the fourteenth amendment, respectively. Finally, in Count IV, LGSI asserts that Defendants Damsker, High, Abrams, Clemm, HSRS and the Township are liable to it under a malicious prosecution theory. For their part, the Attorney Defendants and the Township Defendants have both submitted separate motions to dismiss. In support of their motion, the Township Defendants argue, inter alia, that this Court lacks subject matter jurisdiction over the instant dispute. We turn now to address their argument.

 DISCUSSION

 The Township Defendants call our attention to the Tax Injunction Act, 28 U.S.C. § 1341 (the "Act"), and argue that we must dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) for want of subject matter jurisdiction. *fn2" The Congress enacted the Act in 1937 for the purpose of "divesting the federal courts of jurisdiction to interfere with state tax administration." California v. Grace Brethren Church, 457 U.S. 393, 409 n.22, 102 S. Ct. 2498, 73 L. Ed. 2d 93 (1982). Thus, the Act provides as follows: "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." 28 U.S.C. § 1341. *fn3" Construing this statute, and the principle of comity *fn4" it embodies, the Supreme Court held that "taxpayers are barred by the principle of comity from asserting § 1983 actions against the validity of state tax systems in federal courts," and must pursue state remedies to vindicate their federal rights, as long as "those remedies are plain, adequate, and complete." Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100, 116, 102 S. Ct. 177, 70 L. Ed. 2d 271 (1981). *fn5"

 Courts in this circuit have also had occasion to apply the rule. In Long v. Kistler, 524 F. Supp. 225 (E.D. Pa. 1981), we ...


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