Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-20-2006
Tauro v. PA Dept Pub Welfare
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5482
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"Tauro v. PA Dept Pub Welfare" (2006). 2006 Decisions. Paper 170.
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ALD-36 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-5482
________________
JOHN J. TAURO,
v.
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE,
ITS EMPLOYEES AND AGENTS (D.P.W.);
DOMESTIC RELATIONS SECTION, ALLEGHENY COUNTY
FAMILY DIVISION, ACTING IN ITS CAPACITY AS
CONTRACTED AGENTS FOR THE D.P.W. (D.R.S.);
ALLEGHENY SOLICITOR, ACTING IN ITS
CAPACITY AS APPOINTED AGENTS FOR THE D.P.W.
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-0480)
District Judge: Honorable Joy Flowers Conti
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
November 2, 2006
Before: SLOVITER, CHAGARES AND NYGAARD, CIRCUIT JUDGES
(Filed: November 20, 2006)
_______________________
OPINION
_______________________
PER CURIAM
John Tauro appeals from the District Court’s order dismissing his complaint as
frivolous under 28 U.S.C. § 1915(e)(2)(B). Because we determine that the appeal is
lacking in arguable legal merit, we will dismiss it under § 1915(e)(2)(B).
In 2002, a Pennsylvania Family Court ordered Tauro to pay $14,162.75 in child
support arrears. The mother of Tauro’s child received public assistance during the time
that he was delinquent with his child support. Under Pennsylvania law, acceptance of
public assistance operates as an assignment of the recipient’s right to child support to the
Department of Public Welfare (“DPW”). See 23 PA. CONS. STAT. ANN. § 4378(b).
Accordingly, the $14,162.75 in child support arrears is owed to DPW.
DPW has pursued a variety of methods to collect Tauro’s child support arrears,
including garnishing his wages and tax refunds. Tauro unsuccessfully attempted to
challenge in federal court the validity of the support order as well as the constitutionality
of DPW’s attempts to collect his child support arrears. See Tauro v. Mulligan, No. 02-
0495 (W.D. Pa. April 4, 2003) (adopting and affirming Magistrate Judge’s Report and
Recommendation), aff’d, No 03-2638 (3d Cir. Feb 27, 2004).
In 2005, Tauro filed this civil rights suit under 42 U.S.C. § 1983 against the
Pennsylvania Department of Public Welfare, the Allegheny County Solicitor, and the
Domestic Relations Section, Allegheny County Family Division. The complaint is
mostly a repetition of claims that were previously denied in Tauro v. Mulligan; namely,
that the Family Court order assessing his arrears was invalid, that DPW is not entitled to
collect child support arrears that were owed to the mother, that his child support
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obligations had ended pursuant to an agreement that he had entered into with the mother,
and that DPW’s garnishments constitute a deprivation of property without due process of
law. Tauro also claims that the appearance by the County Solicitor in proceedings to
collect the arrears violated Pennsylvania law and that DPW has refused to participate in
his pending action in the Commonwealth Court challenging the collection of his child
support arrears.
The District Court dismissed the complaint as frivolous, finding that Tauro’s
claims were barred by collateral estoppel. After filing two motions for reconsideration,
which were denied, Tauro appealed. Because we find that Tauro’s appeal has no arguable
basis in law, we will affirm.1
We have jurisdiction to consider this appeal pursuant to 28 U.S.C. § 1291. Our
review of a District Court’s dismissal under § 1915(e)(2)(B) is plenary. Allah v.
Severling, 229 F.3d 220, 223 (3d Cir. 2000). An appeal may be dismissed under
§ 1915(e)(2)(B) if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). We may affirm the District Court on any ground supported by the
record. Tourscher v. McCullough, 184 F.3d 236, 239 (3d Cir. 1999).
The doctrine of issue preclusion, or collateral estoppel, ensures that “once an issue
is actually and necessarily determined by a court of competent jurisdiction, that
1
Although the District Court dismissed the complaint without giving Tauro an
opportunity to amend as required by Grayson v. Mayhew State Hosp., 293 F.3d 103 (3d
Cir. 2003), Tauro’s two motions for reconsideration amply demonstrate that any
amendment would have been futile. See id. at 108.
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determination is conclusive in subsequent suits based on a different cause of action
involving a party to a prior action.” Burlington Northern R. Co. v. Hyundai Merchant
Marine Co., Ltd., 63 F.3d 1227, 1231 (3d Cir. 1995) (quoting Montana v. United States,
440 U.S. 147, 153 (1979)). To the extent that Tauro is attempting to challenge the
validity of the Family Court’s assessment of his arrears or challenge DPW’s authority to
collect the arrears, his suit is barred by collateral estoppel. Tauro has already
unsuccessfully litigated these issues. Thus, we must accept that he owes $14,162.75 in
child support arrears and that DPW is entitled to collect that debt.
Tauro’s remaining claims, that state law precludes the County Solicitor from
representing the Domestic Relations Section in its collection proceedings and that DPW
has not appeared in his pending Commonwealth Court action, are similarly without merit.
The mere violation of a state law does not result in a due process violation. Snowden v.
Hughes, 321 U.S. 1, 11 (1944). Even if the county solicitor was acting contrary to
Pennsylvania law when collecting the child support arrears owed to DPW, that action
alone would not violate the Due Process Clause. Further, the proper remedy for a party’s
failure to respond to civil complaint is to file for a default judgment, see Pa.R.C.P. No.
1037(b), not a federal lawsuit.
In sum, we readily conclude that the District Court correctly dismissed Tauro’s
complaint. Because his appeal also lacks arguable merit, we will dismiss it under §
1915(e)(2)(B). In light of the disposition of his appeal, Tauro’s motion for appointment
of counsel is denied.
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