Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-4-2006
Kepoint Preservation v. Fisher
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3455
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Recommended Citation
"Kepoint Preservation v. Fisher" (2006). 2006 Decisions. Paper 1325.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1325
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3455
________________
**KEPOINT PRESERVATION TRUST
ORG., BY AND THROUGH J. BROWN,
JOINT TENANT TRUSTEE
v.
D. MICHAEL FISHER, INDIVIDUAL;
COMMONWEALTH OF PA;
COMMONWEALTH OF PA DEPARTMENT OF
REVENUE BUREAU OF INDIVIDUAL TAXES;
COMMONWEALTH OF PA BOARD OF
FINANCE AND REVENUE; COMMONWEALTH OF PA
DEPARTMENT OF REVENUE BOARD OF APPEALS;
THE TAX CLAIM BUREAU COURT HOUSE;
EDWARD W. GILLESPIE, TRAPPE BORO TAX
COLLECTOR; COUNTY OF MONTGOMERY
RECORDER OF DEEDS
*S. James Brown,
Appellant
*(Pursuant to Rule 12(a), F.R.A.P.)
**(Dismissed Per Clerk's Order of 9/16/04)
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 00-04564)
District Judge: Honorable Mary A. McLaughlin
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
February 28, 2005
BEFORE: ROTH, McKEE and ALDISERT, CIRCUIT JUDGES
(Filed: April 4, 2006)
_______________________
OPINION
_______________________
PER CURIAM
S. James Brown, as the “Joint Tenant Trustee” acting on behalf of Kepoint
Preservation Trust, an “independant, unincorporated, private inter vivos trust
organization,” filed a complaint in the U.S. District Court for the Eastern District of
Pennsylvania, claiming that the imposition of state taxes after real estate was transferred
from an individual to the trust violated the Contracts Clause, U.S. Const. Art. I, § 10, cl.1,
and Pennsylvania law. The District Court dismissed the claims against most Defendants
on the basis of Eleventh Amendment immunity, the Tax Injunction Act, and its discretion
to decline to hear state law claims under 28 U.S.C. § 1367(c). We affirmed that order to
the extent that S. James Brown (“Brown”) was a party to the action below and was an
appellant in his own right, although we dismissed Kepoint Preservation Trust as an
appellant because Brown had not obtained counsel for it. See Kepoint Preservation Trust
v. Fisher, No. 01-3708 (3d Cir. July 3, 2002).
The Montgomery County Recorder of Deeds and the Montgomery County Tax
2
Claim Bureau (“Tax Claim Bureau”), neither of whom had responded to the suit by the
time that the first appeal was filed, remained in the case. Brown voluntarily dismissed the
claims against the Montgomery County Recorder of Deeds. As an individual and as the
“Joint Tenant Trustee” of Kepoint Preservation Trust, a “private trust agreement,” Brown
then filed an amended complaint against the Tax Claim Bureau. In the amended
complaint, Brown maintained his constitutional claims, although he complained about the
unconstitutionality of a different state tax (Pennsylvania’s General County Assessment
Law, 72 P.S. § 5020-101 et seq.), and omitted the state law claim. On the Tax Claim
Bureau’s motion, the District Court dismissed the amended complaint. Brown appeals,1
and the Tax Claim Bureau moves for summary affirmance and for just damages and
double costs. For the reasons set forth below, we will affirm.
The Tax Claim Bureau questions Brown’s standing. Brown, however, is the real
party in interest who claims an injury to his right to contract caused by tax collection
efforts, including the threat of the sale of his home, which could be redressed if a court
ruled in his favor.
Although Brown has standing, he does not have a meritorious appeal because most
of the reasons for the dismissal of his earlier claims apply equally here. Specifically, as
we and the District Court have previously explained, the Tax Injunction Act bars the
injunctive and declaratory relief sought, see California v. Grace Brethren Church, 457
1
Kepoint Preservation Trust, dismissed for want of prosecution, see L.A.R. 107.2, is
no longer a party to this appeal.
3
U.S. 393, 408 (1982), and “the free-standing principle of comity” bars damages, Wright v.
Pappas, 256 F.3d 635, 637 (7th Cir. 2001). Furthermore, the Rooker-Feldman doctrine
bars review of his claims because Pennsylvania court rulings (that the Pennsylvania
Board of Assessment Appeals is the exclusive forum for Brown’s claims), in the state
court suit that Brown filed after his last federal appeal, are inextricably intertwined with
Brown’s federal suit. Therefore, the order of the District Court will be affirmed.
In addition, the Tax Claim Bureau’s motion for just damages and double costs
pursuant to Federal Rule of Appellate Procedure 38 will be granted. We may award
damages under Rule 38 when an appeal is “wholly without merit.” See Nagle v. Alspach,
8 F.3d 141, 145 (3d Cir. 1993). Previously, we affirmed the dismissal of claims similar to
those at issue here. Even though Brown protested a different state tax in his amended
complaint, his arguments and their refutations remain the same. In addition, since his last
appeal, the Pennsylvania state courts have also dismissed his related claims. For these
reasons, and after consideration of what amount would equitably compensate the Tax
Claim Bureau, see Beam v. Bauer, 338 F.3d 106, 108-09 (3d Cir. 2004), we will award
Rule 38 damages in the amount of $1,500.00. Costs will be taxed against the Appellant.