Herbert S. Gass, Jr. v. County of Allegheny, Pennsylvania

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-2679
HERBERT S. GASS, JR.;
JOHN ZITELLI, an individual;
DIANE ZITELLI, his wife;
JEFF CORSELLO, an individual;
LYNN CORSELLO, his wife;
MICHAEL LEAHY, an individual;
DOMENIC DIPILATO, an individual;
ANNA DIPILATO, his wife;
ROBINHILL DEVELOPMENT
COMPANY
v.
COUNTY OF ALLEGHENY,
PENNSYLVANIA;
BOARD OF PROPERTY
ASSESSMENT, APPEALS
AND REVIEW OF ALLEGHENY
COUNTY;
KEVIN MCKEEGIN, an individual;
PATRICIA MCCULLOUGH, an
individual;
JERRY SPEER, an individual;
JAM ES SKINZER, an individual;
DEBORAH BARON, an individual;
FREDERICK VALENCENTI, an
individual
Herbert S. Gass, Jr.; John Zitelli;
Diane Zitelli; *Jeff Corsello;
*Lynn Corsello;
Robinhill Development Company,
Appellants
(*Per Amended Notice of Appeal filed
6/12/03)
On Appeal from the United States
District Court for the
Western District of Pennsylvania
(D.C. Civil No. 02-cv-01394)
District Judge: Hon. Joy F. Conti
Argued January 12, 2004
Before: SLOVITER, RENDELL, and
ALDISERT, Circuit Judges
(Filed June 10, 2004)
Robert A. Goldman (Argued)
Pittsburgh, PA l5234
Attorney for Appellants
Charles P. McCullough
County Solicitor
Caroline P. Liebenguth (Argued)
Assistant County Solicitor
Isobel Storch
Solicitor
Board of Property Assessment
Office of Allegheny County Law
Department
Pittsburgh, PA l5219
Attorneys for Appellees

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OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellants, property-owning
taxpayers in Allegheny County, filed this
suit asserting that the Allegheny County
Board of Property Assessment, Appeals
and Review (the Board) has adopted a
policy, custom or practice in processing
appeals from property tax assessments that
violates their rights to due process. The
District Court dismissed this action for
lack of subject-matter jurisdiction because
of the Tax Injunction Act, 28 U.S.C. §
1341. Because the Tax Injunction Act
deprives federal courts of jurisdiction to
review challenges to a state property tax
system where the state provides a plain,
speedy and efficient remedy, we will
affirm the decision of the District Court.
I.
Appellants, Herbert S. Gass, Jr.,
John and Diane Zitelli, Jeff and Lynn
Corsello, Michael Leahy, Domenic and
A n n a D i P i l a to , a n d R o b i n h i l l
Development Company, appealed their
real property assessments in 2001 and
2002 to the Board pursuant to the
procedures set out in Section 207.01, et
seq. of the Administrative Code of
Allegheny County. The Board’s hearing
officers held appeals hearings for each of
the Appellants and made recommendations
to the Board for final resolution of their
tax liability. Appellants allege that the
Board considered ex parte evidence
regarding market values in making the
final assessments.
On August 9, 2002, Appellants filed
this action pursuant to 42 U.S.C. § 1983 in
the Western District of Pennsylvania
seeking a declaratory judgment that
Appellees, the County of Allegheny, the
Board and individual Board members,1
violated their due process rights by
encouraging hearing officers to seek out ex
parte evidence of market values and to
consider such evidence after the hearings,
without affording the property owners
notice or the opportunity to respond to the
new evidence. Appellants also claimed
that hearing officers made arbitrary and
capricious recommendations to the Board
as to the assessed value of each of their
properties.
The Board moved to dismiss the
case on the ground that the Tax Injunction
Act and principles of comity prevent
federal courts from exercising subject-
matter jurisdiction over a challenge to a
state tax system. Appellants responded
that although the Tax Injunction Act bars
federal jurisdiction over challenges to a
state’s assessment, levy, or collection of
property taxes, it does not bar challenges
to a state’s post-payment appeals
procedures.
The District Court referred the
motion to dismiss to Magistrate Judge Ila
1The named Board members are Kevin
McKeegin, Patricia McCullough, Jerry
Speer, James Skinzer, Deborah Baron, and
Frederick Valencenti.

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Jeanne Sensenich for a Report and
Recommendation (R&R). Magistrate
Judge Sensenich issued a thorough, well-
reasoned report recommending that the
District Court grant the Board’s motion to
dismiss for lack of subject-matter
jurisdiction. She reasoned that if a federal
court could award damages or declare a
state tax system unconstitutional, it could
halt the proper functioning of state
government in a manner that was
antithetical to principles of comity. Judge
Sensenich thus rejected Appellants’
asserted distinction between the taxing
power and the appeals process. Finally,
Judge Sensenich found that, in light of
recent additions to Pennsylvania law,
Pennsylvania’s courts provide a “plain,
speedy, and efficient” remedy through the
process for appeal of tax assessments. The
District Court adopted the R&R as the
opinion of the court and granted the
Board’s motion to dismiss for lack of
jurisdiction.
On appeal, Appellants argue that 1)
the Tax Injunction Act does not apply to
their challenge to Pennsylvania’s post-
payment appeals process; 2) even if the
Tax Injunction Act applies to their case,
the federal courts still have jurisdiction
because Appellants lack a plain, speedy
and efficient remedy at state law; and/or 3)
the Tax Injunction Act is unconstitutional.
II.
The Tax Injunction Act provides
that “[t]he 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. Although the express
language of the Tax Injunction Act only
refers to injunctive actions, the Supreme
Court has held that the Tax Injunction Act
also prohibits federal courts from issuing
declaratory judgments holding state tax
laws unconstitutional. California v. Grace
Brethren Church, 457 U.S. 393, 408
(1982).
A.
Appellants’ first argument is that
the Tax Injunction Act does not apply
because they have not asked the District
Court to “enjoin, suspend or restrain the
assessment, levy or collection of any tax.”
Appellants’ Br. at 10 (quoting 28 U.S.C. §
1341). Appellants argue that they only
challenge the post-collection appeals
process, which does not implicate the
Commonwealth’s ability to assess, levy, or
collect taxes as described in the text of the
Tax Injunction Act.2
As noted above, Judge Sensenich
rejected their attempt to distinguish their
challenge from the type of challenge
covered by the Act. She concluded that:
[appellants] ultimately []
challenge the methods used
by the Board to assess
2Although Appellants’ initial complaint
also requested damages, they clarified
during oral argument that they only seek
declaratory relief, the cost of the appeal
and attorneys’ fees.

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property values (i.e.,
the Board improperly
considers ex parte
evidence regarding
market values after
the appeal hearings
are concluded to
d e t e r m i n e
assessment values)
and not the appeal
process itself. This
is exactly the type of
claim contemplated
b y C o n g r e ss in
enacting the Tax
Injunction Act . . . .
App. at 15. We agree. The appeal process
is directed to the Board’s ultimate goal and
responsibility of determining the proper
amount of tax to assess – a power of
“assessment” that explicitly falls within
the ambit of the Tax Injunction Act.
Appellants’ prior payment of the tax does
not change the fact that they seek to enjoin
Pennsylvania’s finalization of assessments
or re-assessments of taxes. Appellants’
attempt to distinguish the appeals process
from the tax assessment is unpersuasive.
B.
The Tax Injunction Act divests
federal courts of jurisdiction only if the
state fails to provide a “plain, speedy and
efficient” remedy in its court. Appellants
argue that the federal courts have
jurisdiction over this case because
Pennsylvania has failed to provide a
“plain, speedy and efficient” remedy at
state law.
In determining whether the remedy
in Pennsylvania courts is “plain, speedy
and efficient,” we are guided by the
Supreme Court's decision in Rosewell v.
La Salle National Bank, 450 U.S. 503
(1981). In Rosewell, a taxpayer
challenged Illinois’ real estate tax refund
procedure, which required taxpayers to pay
the tax first and then attempt to contest the
assessment and obtain a refund. The
plaintiff in Rosewell refused to pay her tax
assessments because they were set at a
“discriminatory level.” Id. at 518 n.22.
The plaintiff filed a Section 1983 action
and the defendants moved to dismiss for
lack of jurisdiction. Because the Court
found at the outset that the Tax Injunction
Act “generally prohibits federal district
cour ts from enjoining state ta x
administration,” the Court focused on the
question of whether Illinois provided an
adequate state remedy. Id. at 512.
In Rosewell, the Court construed
“plain, speedy and efficient” to mean that
a state court must meet “certain minimal
procedural criteria,” but it did not require
that the state’s remedy be the best, most
convenient, or speediest one. Id.
(emphasis in original); see also id. at 518-
21 (stating that two-year delay in state
court, although regrettable, was not so
egregious that it ran afoul of the Act’s
requirement of a “speedy” remedy).
Congress’ intent in requiring that the state
provide a plain, speedy and efficient
remedy was to ensure that the taxpayer be
afforded “a full hearing and judicial
determination of the controversy,” id. at

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513 (quoting testimony of Senator Bone,
18 Cong. Rec. 1416 (1937)), and be able to
appeal to the United States Supreme Court,
id. (quoting S. Rep. No. 1035, at 2 (1937)).
In light of the Supreme Court’s
reluctance “‘to interfere with the operation
of state tax systems,’” and desire to “‘be
faithful to the congressional intent to limit
drastically federal court interference with
state tax systems,’” we have stated that
“we must construe narrowly the ‘plain,
speedy and efficient’ exception to the Tax
Injunction Act.” Sipe v. Amerada Hess
Corp., 689 F.2d 396, 404 (3d Cir. 1982)
(quoting Grace Brethren Church,
457 U.S. at 412, 413).
We confronted a similar challenge
to the one at bar in Behe v. Chester County
Board of Assessment Appeals, 952 F.2d
66 (3d Cir. 1991). Behe and other
homeowners who claimed that Chester
County violated their constitutional rights
by failing to revise property assessments
annually and causing differential tax
burdens between property taxes on newer
and older properties filed their suit in
federal court pursuant to 42 U.S.C. § 1983.
They argued that the Tax Injunction Act
did not divest the federal courts of
jurisdiction because the Pennsylvania
courts did not provide a “plain, speedy and
efficient” remedy for their claim .
Following an examination of the relevant
causes of action and procedures for
appealing tax assessments in Pennsylvania,
we concluded that Pennsylvania did
provide a “plain, speedy, and efficient”
remedy for the purposes of the Tax
Injunction Act and dismissed the case for
lack of subject-matter jurisdiction. Id. at
68-71.
Shortly thereafter, we reaffirmed
the continued vitality of that conclusion in
Balazik v. County of Dauphin, 44 F.3d 209
(3d Cir. 1995), where we stated:
Upon review of the state law
canvassed in Behe, we see no need
to rehearse those findings here,
other than to note that since that
time [that Behe was decided] the
Pennsylvania Supreme Court has
made it easier for taxpayers to
b y p a s s e x i s t i n g s t a tu t o r y
procedures and bring an action
directly in state court. We hold that
Pennsylvania provides a “plain,
adequate and complete” remedy for
§ 1983 plaintiffs challenging state
taxation policies.
Id. at 218 (emphasis added). Critically,
Appellants point to no subsequent case law
or legislation that suggests that
Pennsylvania has made it more difficult to
bring an action challenging tax assessment
schemes in state court.
Other similarly-situated plaintiffs
availed themselves of Pennsylvania’s court
system by filing an almost identical action
to the one before us in the Court of
Common Pleas of Allegheny County. In
2002, they filed a class action, challenging,
inter alia, the County’s alleged practice of
permitting and encouraging the Appeals
Board to use ex parte evidence after
hearings in violation of their due process
rights. Kowenhoven v. County of

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Allegheny, No. GD02-21763, slip op. at 1-
3 (Ct. Com. Pl. of Allegheny County July
10, 2003). The Board filed preliminary
objections, including a claim that an
adequate statutory remedy existed. The
court sustained the Board’s objections and
dismissed the suit because the plaintiffs
had “an adequate statutory remedy, namely
the appeal to the common pleas court for a
de novo hearing” on their assessment
disputes. Id. at 3; see also Murtagh v.
County of Berks, 715 A.2d 548, 550-51
(Pa. Commw. Ct. 1998) (en banc) (citing
Nat’l Private Truck Council, Inc. v. Okla.
Tax Comm’n, 515 U.S. 582 (1995))
(taxpayer may not maintain Section 1983
action where state’s administrative process
provides adequate remedy and taxpayer
failed to exhaust administrative remedy);
Jordan v. Fayette County Bd. of
Assessment Appeals, 782 A.2d 642, 644
(Pa. Commw. Ct. 2001) (en banc) (same).
Appellants here allege that they do
not have an adequate remedy in state court
because the Court of Common Pleas of
Allegheny C ou nt y dismisse d the
Kowenhoven action. At the time that
Appellants filed their briefs in this court,
the Kowenhoven plaintiffs’ appeal to the
Commonwealth Court was still pending.
They thus argued before us that the
uncertainty of the pending appeal made the
availability of the state court remedy
questionable or less than “plain.”
However, since then, the Commonwealth
Court issued its opinion in Kowenhoven v.
County of Allegheny, 2004 WL 769711
(Pa. Commw. Ct. Apr. 13, 2004). It
affirmed the trial court’s order dismissing
the action, agreeing that there was an
adequate statutory remedy available.
However, its opinion included
language that was highly favorable to
Appellants, in that the court expressed
concern that the Board’s internal
guidelines appeared to be inappropriate.
Id. at *2. On one hand, the Board sent a
memo to hearing officers and case
reviewers directing that when making
recommendations, “Hearing Officers and
Case Reviewers are not to reappraise the
property or submit post-hearing evidence.”
Id. at *1 (quoting Allegheny County
Assessment Board Apr. 9, 2002 Memo to
Hearing Officers and Case Reviewers)
(emphasis in original). On the other hand,
the same memo also provided that “[a]
Hearing Officer and Case Reviewer who
has personal knowledge of an area or more
suitable sales comparables to those
introduced at a hearing may supply this
i n f o r m a t i o n f o r t h e B o a r d ’ s
consideration.” Id. The Commonwealth
Court characterized the latter practice as
“inject[ing] an improper element into the
process of adjudication,” id. at *4, which
“appears to fly in the face of procedural
due process notions, which require that
parties be afforded an opportunity to
confront the witnesses against them . . . .”
Id. at *2; see also id. at *4 (plaintiffs may
“challenge any improperly considered
evidence” and “improper evidentiary
matters approved in the Board's memo are
not permitted under the statute or the
constitution”). The Commonwealth Court
further noted that if the plaintiffs filed a de
novo appeal asserting that the Board

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accepted and relied upon evidence not
permitted under the tax assessment statute,
the Board “will be required to reject that
improperly considered evidence and base
a decision only upon evidence properly
offered to the hearing officer which [the
plaintiffs] had an opportunity to challenge,
or such additional evidence that may be
then presented.” Id. at *4 (emphasis
added).
The Commonwealth Court rejected
the argument made by the plaintiffs that
they were entitled to pretermit the
administrative proceedings under Ward v.
Village of Monroeville. 409 U.S. 57
(1972) (holding that plaintiff challenging
constitutionality of statute authorizing
quasi-judicial proceedings was entitled to
due process in quasi-judicial hearing
beyond de novo appeal to trial court).
However, the Commonwealth Court held
that beca use th e plain tiffs were
c h a l le n g i n g the ap plic ation a n d
interpretation of the assessment statute,
rather than its constitutionality, Ward did
not support their argument. Id. at *2-3;
see also Jordan, 782 A.2d at 646 (holding
that attacks on the application of a statute,
rather than “frontal attacks” on a statute’s
constitutionality, do not trigger equity
jurisdiction and are appropriate for Board
review). The court thus concluded that
under the local rules
applicable in this case, [the
p l a i n t i f f s ] h a v e t h e
opportunity to claim in an
appeal to common pleas that
the implementation of the
process as enunciated in the
Board's policy memo results
in a violation of their
procedural due process
rights, or more simply to
assert that the Board
committed an error of law
b y c o n s i d e ri n g s u c h
evidence.
Kowenhoven, 2004 WL 769711, at *4.
Based on the above, we reject
Appellants’ argument that Pennsylvania
provides inadequate remedies. The Tax
Injunction Act does not require that the
state courts provide a favorable substantive
outcome; instead, it only requires access to
the state courts and an opportunity for
meaningful review. Appellants’ failure to
obtain relief in the state courts does not
impugn either the adequacy or the
accessibility of the Commonwealth’s
courts. And the Commonwealth Court’s
dicta regarding the impropriety of
Allegheny County’s procedures suggests
that the court agrees with many of
Appellants’ objections, but nonetheless
requires that they pursue the appropriate
statutory and administrative remedies in
asserting those grievances. In short,
P e n n s y l v a n i a ’ s r e q u i re m e n t t h at
d i s s a t i s f i e d t a x p a y e r s p u r s u e
administrative remedies for as-applied
challenges does not imply that they are
without an adequate remedy.
Indeed, the Second Class County
Assessment law creates a seven-member
Board of Property Assessment, Appeals
and Review “[i]n order to more efficiently
and equitably assess and value persons,

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property and subjects of taxation for
county purposes . . . .” 72 P.S. §§ 5452.1-
2. The Board is tasked with “hear[ing] all
cases of appeals from assessments, and all
complaints as to assessments, errors,
exonerations and refunds.” 72 P.S. §
5452.4(c). The Assessment Board of
Allegheny County also has promulgated
procedures and practices for Appeals
Hearings, including requirements that
hearing officers must provide reports with
factual findings, conclusions of law, and
recommendations to the full Board.
Kowenhoven, 2004 WL 769711, at *1
(citing Allegheny County’s Admin. Code
§ 207.07E). The General County
Assessment Law provides further
protections for dissatisfied taxpayers:
W h e n e v e r t h r o u g h
mathematical or clerical
error an assessment is made
more than it should have
been, and taxes are paid on
such incorrect assessment,
the county commissioners,
acting as a board of revision
of taxes, or the board for the
assessment and revision of
taxes, upon discovery of
such error and correction of
the assessment shall so
inform the appropriate
taxing district or districts,
which shall make a refund
to the taxpayer or taxpayers
for the period of the error or
six years, whichever is less,
from the date of application
for refund or discovery of
such error by the board.
72 P.S. § 5020-505.1.
Pennsylvania provides for adequate
notice to taxpayers of the appeals
procedures. General County Assessment
Law 72 P.S. § 5020-508 requires that the
Board “give written or printed notice, at
least five days before the day of appeal, to
every taxable inhabitant within the
respective” taxable area, along with “the
amount of the present assessment,
valuation and ratio, the amount or sum of
which he stands rated, and the rate per cent
of the tax, and of the time and place of
such appeal.” The Board or its officers
must further give notice, by advertisement
in one or more local newspapers, at least
three weeks before the day of appeal, of
the time and place fixed for the appeal. 72
P.S. § 5020-509. Real estate owners who
feel aggrieved by an assessment of their
real estate may appeal from the decision of
the Board of Property Assessment,
Appeals and Review to the local Court of
Common Pleas, and may further appeal to
the Superior or Supreme Court. 72 P.S. §§
5020-518.1-519. In short, Appellants have
a fully-developed administrative and
judicial apparatus through which they may
grieve their claims. Because the state
forum provides the procedural minimum
required and “plainly” is accessible to
Appellants, the state court remedy is
adequate.
Appellants argue that if the federal
courts were to assume jurisdiction of their
claim, it would not upset the primary
purpose of the Act: preventing out-of-

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state corporations from gaining unfair
advantages in litigation. It is true that this
court has previously suggested that one
purpose of the Tax Injunction Act was to
“deprive out-of-state corporations of an
advantage over state taxpayers in being
able to threaten localities with protracted
injunctive litigation in federal courts which
induce[] the localities to compromise their
tax claims.” Robinson Protective Alarm
Co. v. City of Philadelphia, 581 F.2d 371,
375 (3d Cir. 1978). However, the
Supreme Court in Rosewell did not accept
the notion that the above-stated concern
was the sole purpose of the Act. The
Court instead clarified that, “first and
foremost,” the Act was designed to
prohibit federal judicial interference with
local tax collection. Rosewell, 450 U.S. at
522 & n.29. As such, we reject
Appellants’ interpretation of the legislative
intent of the Act.
C.
Lastly, Appellants argue that the
Tax Injunction Act is unconstitutional to
the extent that it deprives them of a forum
to adjudicate their constitutional claims.
This argument is baseless. Because the
Tax Injunction Act only prohibits federal
jurisdiction where there is a “plain, speedy,
and efficient” remedy at state law, the Act
clearly provides for a forum in which
Appellants may grieve their alleged
deprivation. Where the state forum is
adequate, parties may assert their
constitutional claims in state court; where
the state forum is inadequate, parties may
sue in federal court. Because the
Pennsylvania state courts are open to
Appellants, they may (continue to) pursue
their constitutional claims in state court.3
III.
For the foregoing reasons, we will
affirm the judgment of the District Court
finding that it lacks subject-matter
jurisdiction to review Appellants’ claim.
3Because the federal courts do not have
jurisdiction to review Appellants’ claim,
we need not address the substance of
Appellants’ claim regarding the use of ex
parte evidence during the appeals process.

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