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Joseph L. v. Office of Judicial Support of Court of Common Pleas of Delaware County and Grace Building Co.

submitted: February 23, 1987.

JOSEPH L., JR., AND MARY TUNSTALL; AND JOSEPH MASSEY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED
v.
OFFICE OF JUDICIAL SUPPORT OF THE COURT OF COMMON PLEAS OF DELAWARE COUNTY AND GRACE BUILDING COMPANY, INC. AND CURTIS BUILDING CO., INC. JOSEPH MASSEY, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, D.C. Civil No. 75-3103.

Author: Weis

Before: WEIS, BECKER, and VAN DUSEN, Circuit Judges.

WEIS, Circuit Judge.

The question presented in this appeal is whether a purchaser of property at a sale conducted by a municipality to collect delinquent taxes acts under color of state law for purposes of 42 U.S.C. §§ 1983, 1988. We conclude that the buyer is not a state actor in that circumstance nor in later filing an action to quiet title in state court. Accordingly, we will affirm an order of the district court denying a request for an assessment of counsel fees against the purchaser.

After the parties in the underlying litigation settled their dispute, plaintiff Joseph Massey filed a petition with the district court requesting $12,393 in attorney's fees. The court denied the request, finding that "special circumstances" in the case would make it unjust to assess fees against Grace Building Company, one of the defendants.

The controversy arose out of the 1969 tax sale of a house owned by Joseph Massey and his late wife on West Cooke Avenue in Glenolden, Pennsylvania. The Delaware County treasurer sold the property for nonpayment of real estate taxes pursuant to the provisions of a state statute.

The Masseys had purchased the house in 1946 and lived there until they moved to New Jersey in 1966. They then rented the premises to their daughter and son-in-law, visiting them frequently.

Before the tax sale, the county treasurer sent certified mail notices addressed to Massey and his wife at the Glenolden address. One receipt was returned, apparently signed by Massey's daughter. Mrs. Massey purportedly signed the other receipt, although her husband controverted the genuineness of the signature. After the sale, the treasurer sent a notice by regular mail to the Masseys, advising them of the option of redemption. Neither Massey nor his daughter recalled receiving that notice.

In 1965 and 1966, the Masseys paid delinquent taxes on the West Cooke Avenue property only after receiving notice that the premises would be sold at a treasurer's tax sale. In October 1966, the property was sold at a tax sale for nonpayment of still outstanding 1964 taxes, but the Masseys redeemed it within the grace period.

The Masseys owned two other lots in the same area which were sold at the tax sale in 1969; however, they redeemed these properties the next year. From 1964 through 1969, the Masseys paid delinquent taxes on these two lots in many cases only after learning that the property would be sold at a treasurer's sale.

Grace Building Company purchased the West Cooke Avenue property at the 1969 tax sale. The Court of Common Pleas of Delaware County confirmed the sale nisi in January 1970, and because the Masseys took no exception to this decree, the county treasurer deeded the property to Grace.

After Grace acquired ownership, the Masseys' daughter and son-in-law continued to reside as tenants at the West Cooke Avenue house but paid no rent. Grace paid all real estate taxes due on the property from 1967 until 1971. On December 8, 1971, Grace began an action to quiet title in state court, intending to obtain possession of the premises.

In 1975, Massey and several other similarly situated plaintiffs filed a complaint in the district court alleging causes of action under 42 U.S.C. § 1983 against the appropriate Delaware County officials and various tax sale purchasers, including Grace. plaintiffs sought a declaratory judgment that all Delaware County tax sales violated due process; they also asked for an injunction to prevent purchasers from commencing or proceeding with quiet title actions in the state courts. Finally, plaintiffs sought an order setting aside the tax sales as to those former owners who would pay all current and past due taxes plus penalties, interest, and costs.

The county agreed to discontinue the challenged notice practices, but contended it had no power to rescind the sales. The district court dismissed the complaint on abstention grounds; this court reversed and remanded the case in Johnson v. Kelly, 583 F.2d 1242 (3d Cir. 1978).*fn1 During the course of the proceedings, all parties settled their claims. Massey agreed to reimburse Grace ...


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