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April 27, 1999


The opinion of the court was delivered by: Katz, Senior District Judge.


Before the court is defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction. Because the Tax Injunction Act, principles of comity, and the Johnson Act bar federal jurisdiction to adjudicate plaintiff's claims, the motion will be granted.

I.  Background*fn1

The plaintiff, Trading Company of North America, Inc. (Trading Company) brought this action for damages, declaratory relief, and injunctive relief against the Bristol Township Authority, Bristol Township, Richard M. Snyder, Esq.,*fn2 and Carmen Raddi*fn3 for violation of 42 U.S.C. § 1983 and wrongful use of civil process under Pennsylvania law stemming from what Trading Company claims was the improper assessment of sewer charges.

Trading Company owns a building in Bristol Township that has one water line coming into the building and one sewer line leaving the building. The building itself is divided into three sections: two sections are used as storage, and one is occupied by a tenant. Only the tenant's section is connected to sewer and water.

According to the applicable local ordinance, sewer charges may be based only on actual water consumption. Nonetheless, for many years, Trading Company received bills for sewer charges for the two addresses that had no water connection and thus no consumption. Trading Company refused to pay those bills, and defendants subsequently filed a lien on each of those two addresses. In November 1995, Trading Company filed a Notice in state court against Bristol for the two liens requiring Bristol to file Writs of Scire Facias or suffer dismissal of the liens. One lien was dismissed by the Bucks County Court of Common Pleas in January 1996 because the Township did not file a writ; however, Bristol continued to assess the same charges until January 1997. With respect to the other lien, Trading Company filed a motion for summary judgment on the issue of whether billing should be on actual water consumption or on the number of tenants, an interpretation apparently applied by the Township. The Township did not answer the motion because it did not want an adverse judgment, and this lien was also dismissed on July 1, 1997. However, Bristol continued to assess the same charges until September 1997 when Trading Company informed Bristol that it was filing the present lawsuit. Bristol immediately stopped assessing charges, dropped all past charges, interest and penalties, and cleared the record of the liens. The entire litigation effort to resolve the matter cost plaintiff $3,500.00

II. Applicability of the Tax Injunction Act

The defendants now argue that this court does not have subject matter jurisdiction over the section 1983 claim brought by the plaintiff because plaintiff is indirectly attacking a state tax in violation of the Tax Injunction Act. The motion is brought by the Township of Bristol and the Bristol Township Authority and joined by Defendants Raddi and Snyder.

A.  Standards

The defendants bring this motion to dismiss when the case is listed for trial, long after the answers to the complaint have been filed, and, indeed, after several summary judgment motions and an appeal. However, because the question of jurisdiction may be raised at any stage in the proceedings and because the court's duty to satisfy itself of its own jurisdiction is ongoing, defendants may bring this motion, albeit belatedly. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"); Joyce v. United States, 474 F.2d 215 (3d Cir. 1973) (noting that though defendant could have raised issue sooner, "[w]here there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction").*fn4 In evaluating such a motion to dismiss for lack of jurisdiction, "there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Heller v. CACL Fed. Credit Union, 775 F. Supp. 839, 841 (E.D.Pa. 1991) (citations omitted). Consequently, the court will consider evidence presented by the parties pertaining to jurisdiction.

B.  The Tax Injunction Act & Comity

The Tax Injunction Act is intended to prevent federal district courts from interfering with state revenue collection: "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. "[T]his legislation was first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes." Rosewell v. LaSalle Nat'l Bank, 450 U.S. 503, 522, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981) (citations omitted). Quoting Justice Brennan's opinion in Perez v. Ledesma, 401 U.S. 82, 128 n. 17, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971), the Supreme Court stressed that federal injunctive relief might throw state tax processes into disarray, permit state taxpayers to escape ordinary procedures, and create crises in state budget planning, all to the detriment of state-federal relations. See Rosewell, 450 U.S. at 527, 101 S.Ct. 1221.

Declaratory relief and damages are also barred when such actions stem from an attack on state taxation practices. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299-300, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943) (barring declaratory relief); Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1982) (barring damages actions under section 1983).*fn5 In both cases, the Supreme Court emphasized that the Tax Injunction Act was intended to promote the comity between state governments and the federal courts necessary for federalism to function. See McNary, 454 U.S. at 103, 109-10, 102 S.Ct. 177; Great Lakes, 319 U.S. at 296-300, 63 S.Ct. 1070. Neither Great Lakes nor McNary reached the question of whether the Tax Injunction Act, standing alone, would preclude damages or declaratory relief, because the Court held that comity alone would bar such actions. See McNary, 454 U.S. at 110-11, 115-18, 102 S.Ct. 177; Great Lakes, 319 U.S. at 299, 63 S.Ct. 1070. Subsequently, the Supreme Court ruled in California v. Grace Brethren Church, 457 U.S. 393, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982), that the Tax Injunction Act itself barred declaratory actions. See id. at 407-11, 102 S.Ct. 2498. McNary makes it quite clear, though, that comity is as strong a basis as the Tax Injunction Act to reject federal jurisdiction:

  Petitioners will not recover damages under § 1983
  unless a district court first determines that
  respondents' administration of the County tax
  system violated petitioners' constitutional rights.
  In effect, the district court must first enter a
  declaratory judgment like that barred in Great
  Lakes. We are convinced that such a determination
  would be fully as intrusive as the equitable
  actions that are barred by principles of comity.
  Moreover, the intrusiveness of such § 1983 actions
  would be exacerbated by the nonexhaustion doctrine
  of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5
  L.Ed.2d 492 (1961).

McNary, 454 U.S. at 113-14, 102 S.Ct. 177; see also National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582, 586, 588, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995) (stressing that previous decisions barred district courts from granting injunctive, declaratory, or damages relief in suits challenging the constitutionality of state taxes).

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