*1 appropriately terminated at the end cf the probation period. record, reviewing agree After we with the PHRC’s conclu- that Kruppa employed sion was not on a probationary basis employment always and that her a matter over which Hersperger complete had discretion. findings PHRC’s and the record are testimony consis-
tent with the conclusion that had Kruppa proven by prepon- derance of the Vending’s evidence that HSS proffered reasons for terminating employment her were pretextual not wor- thy credence. The PHRC did not err in coming to this conclusion.
Accordingly, the PHRC’s order is affirmed.
ORDER NOW, March, 1994, AND this 22nd day of the order of the Pennsylvania Human Relations Commission the above- captioned matter is affirmed.
CommonwealthCourt of Argued Jan. 1994.
Decided March 1994. Reargument May Denied *2 Sherman, Gen., R. Douglas Deputy Atty. for appellants. Jeffrey Cooper, for appellees. *3 DOYLE, PELLEGRINI, JJ., NARICK,
Before and and Judge. Senior
NARICK, Judge. Senior Pennsylvania,
Commonwealth of Department of Revenue Fields, (Department), Barton Secretary a former of the De- Schemer, partment, Secretary James a former of Depart- the Ross, ment and Deputy Karl former Secretary for Fiscal Policy Analysis Department for the (collectively, Common- wealth), appeal from the orders of of the Court Common Pleas County granted Smolow, of Bucks Nan Kim Verrichia representative class taxpayers’ (collectively, Taxpayers) mo- voluntary tion for discontinuance of the class action by filed fees, and Taxpayers attorneys’ their costs and expеnses. We reverse.
FACTS 16, 1988, May action, On rights filed a civil pursuant 1983,1 to 42 challenging U.S.C. a Department provides pertinent part: 1. Section 1983 rebates tax automobile received regarding sales on policy However, a new motor vehicle.2 purchasing consumer when suit, April of this class filing weeks before three to the Secretary Ross issued letter Deputy then (PAA) a result of Association Automotive Pennsylvania auto of re- Department’s for clarification request PAA’s from resulted The need clarification policy. bate taxation using A existed with types problem of rebates.3 differing discounts true purchase term “rebate” to include both rebates, Department determined that i.e. refunds. cash to the dealer in were their rebates purchasers assigning since of lowering effect increasing practical numbers with the vehicle, could the rebate amount be price they paid for amount price, lowering from thus purchase subtracted transaction, provided of sales tax for the Pennsylvania This did time of sale. revision not assigned rebate was purchase due on the of new affect the amount sales tax purchas- vehicle where the manufacturer mailed rebates to the not following Similarly, change er the sale. this revision did involving tax due for a vehicle transaction the amount sales discounts or rebates. dealer that,
Moreover, the fact change the revision did or at given a manufacturer’s rebate cannot be reality, Rather, can be after the time of it still issued sale. policy It is the pre-April sale. challenges.4 Taxpayers’ complaint statute, ordinance, person, any regulation, Every who under color of ..., custom, State, subjects subjected, аny usage, or causes to be rights, deprivation any any citizen the United States ... laws,
privileges, or immunities secured the Constitution and shall *4 injured party in an be liable to the action at law.... 1987, stating 2. in the had written the Department’s improper. was policy price example, applied up-front purchase 3. For some rebates are bonus, purchase cash When the rebate is used as a to effect discount. hand, money given the rebate is it is not taxable. On other when sale, purchase price nor purchaser it affects neither the after amount sales tax. 28, press Following subsequent April clarification letter and release, (Board) Appeals began receiving Department’s Board (2) 201(g)(1) and asserts that Sections Taxpayers’ complaint (Tax Code), Act of March of 1971 of the Tax Reform Code amended, §§ and 7201(g)(1) and P.L. as P.S. at 61 Rеgulation of Revenue Pennsylvania Department 300), such provide § that discounts (Regulation Pa.Code 33.2 discounts, and trade wholesaler’s discounts on-the-spot cash transaction that was affected type of discounts —the effectively estab- 1988 revision —which Department’s April sale, do not occur after the sales and which price lish new price when computing purchase in should be deducted Taxpayers’ complaint of sales tax. determining the amount 202(a) Tax of the pursuant further asserts Section Code, 7202(a), six sales tax Pennsylvania’s percent 72 P.S. full of all purchase price calculated on the erroneously was vehicles, Taxpay- deducting the discounts. new motor Regulation to the Tax Code and contrary ers assert law, Commonwealth, main- under color of state acting a six custom, collecting and policy prаctice tained the purchase of the portion sales tax on the discounted percent this action vehicle. contend of a new motor price confiscatory, discriminatory, unrea- “arbitrary, capricious, thereby justification authority, without wholly sonable and process without due [Taxpayers] property of their depriving Amendments to of the Fifth and Fourteenth and violation ” (8a~9a). the United States Constitution.... that a action is the also contends class Taxpayers’ complaint (1) of action because: this cause proper proceed manner would be joinder numerous that of all members the class is so (2) of law and fact exist as to questions common impractical; (3) class; Taxpayers’ representative each member (4) members; all other class are of the claims of typical claims (5) individual сlass individual suits manageable; the class is adjudica- inconsistent varying result members would (6) tions; single favors a class expense litigation actions. separate action instead of individual or paid or before petitions sales tax on rebates received at for refunds of although did to receive sale the Commonwealth continue the time of the July was filed. until after the lawsuit some sales tax on rebates
615 filed, Commonwealth this lawsuit was the after Shortly disposition stayed pending the action be requested that Despite this and Smolow.5 by filed Verrichia other actions issuing improperly refunds began stay, the Commonwealth July through 1988 October beginning tax collected sales 20, 1990, action was vacated stay this 1989. On April I and Smolow II. Smolow final disposition because which the objections preliminary The Commonwealth filed 12,1990. The on November opinion denied withоut trial court then Commonwealth, moved answering complaint, after an on the action judgment pleadings, basis on 42 1983 state officials against brought U.S.C. pursuant is treasury of monies from the state payment which seeks 58, 2304, Michigan, 109 S.Ct. 105 barred Will 1,1991, the trial court denied the On April L.Ed.2d 45 opinion. -without pleadings, again on the judgment motion for 1991, 17, court conducted a class certifica- trial On June which, class order certifying and entered an hearing tion 26, include 1991, amended to September was 16, class certification May 1986 forward. The period from 324, Commonwealth, Ct. 547 119 Pa.Commonwealth 5. In Smolow v. curiam, (1989) per Pa. A.2d 1063 521 557 A.2d 478 aff'd (Smolow I), petition for and for class certifica Smolow filed a review refunds, injunctive jurisdiction. petition sought original The tion in our restraining Department and treble writ of mandamus relief and/or damages Consumer Protection the Unfair Trade Practices and under amendеd, 17, 1968, Law, §§ P.S. as 73 201- December P.L. Act of exhaust her adminis We held that Smolow had failed to 201-9.2. thus, the action was not maintainable trative remedies and proceed a class action. The original jurisdiction, our it could not affirmed, Supreme per curiam. Court Commonwealth, A.2d 131 Pa.Commonwealth Ct. Smolow v. (1991) (Smolow curiam, (1990) per 527 Pa. A.2d aff'd II), filed Board to collect the a class action Smolow with the concerned claim, overpaid granted individual but tax. The Board Smolow’s sales request for certification. The Board Finance denied the class appealed to this Court. the identical result. Smolow Revenue reached certification, holding right to sue for refund of We also denied class right grieved erroneously paid personal of the individual taxes was a specifically class We held which be maintained as a action. could not permits cause of which that there must be substantive action “Only procedure if there is such cause of of a class action to be used. be Id. at 570 A.2d a class certified.” affirmed, per curiam. Court million members to almost two for notice provided also order owners in all motor vehicles Enclosed the class as defined.6 stipulated the notice packets license renewal *6 provided: parties which CERTIFICATION OF CLASS ACTION
NOTICE 16,1988 in the May on Court was filed A class action lawsuit ('Verrichia, et al v. County Pleas of Bucks Common 88-3983-17-5) Commonwealth, al, et alleging No. officials and its of Revenue Department Pennsylvania of new purchase price tax on the collected sales wrongfully the amount of manufactur- deducting motor vehicles before the time of sale. received rebates or discounts ers’ rights constitutional this violated their allege Plaintiffs similarly who were persons of all other rights and the affected.
Plaintiffs for the all the class damages persons for seek i.e. 6% of the rebate or paid, of sales tax excess amount plus interest. discount on is now collected based on new motor vehicles
Sales tax of rebates or discounts after deduction purchase price will be issued to the sale. at or before received Refunds with request proof written signed who submit persons law. to the overpayment pursuant certified the follow- 1991 the court On June Class. ing class: subject a new motor vehicle purchased
All who persons May after 1986 who sales tax or Pennsylvania with a manufacturer’s dis- were credited received who sale, Pennsyl- time of where at or before the count or rebate barred in the instant case that the Commonwealth is assert appeal not from challenging certification bеcause it did from the class defining approving the class notice. This the class and the order a final denying class certification is is meritless. An order assertion Co., order, Pa. Consumer Discount appealable Bell v. Beneficial granting a class certification is but an order 348 A.2d disposes of the appealable the order neither a final order because of the claim. puts appellant out of court because entire case nor Thus, See, Greco, e.g., Pugar 483 Pa. 394 A.2d appealed order. have from this Commonwealth could not price purchase on the tax calculated collected a sales vania or discount. such rebate deducting of this If are a member Binding on Class. you Decision in this the court’s determination class, be bound you will Prothonotary notice with file a written you case unless House, Doylestоwn, County Bucks Court County, Bucks want to be you 1993 that than March PA. no later class. from the excluded aas identify yourself Tax You
Claims Refunds. for a tax refund may apply and you of this class member with the of Revenue to the submitting a claim (b) a (a) copy purchaser; and address of name following: and the priced showing purchase invoice original tax; (c) rebate; of sales payment proof amount your (d) including by yourself signed this claim card PA Depart- the claim security number. Send *7 social Revenue, Appeals, Board of ment of PA. 17128. Harrisburg, Strawberry Square, will information submitting required persons those Only until be -issued No refunds will for a refund. eligible be court. order of the of the action and disposition final Deadline. Claims postmarked must be Claim Submission March no later than added).
(Emphasis voluntary 7, 1992, filed a motion for Taxpayers On March 1714, contending No. to Pa.R.C.P. pursuant discontinuancе stipulated notice to which the Commonwealth the class the lan- liability upon issues of based effectively resolved all that, persons to will be issued in the notice “Refunds guage proof overpay- with signed request a written who submit also for Taxpayers petitioned law.” ment to the pursuant No. 1716. fees, under Pa.R.C.P. expenses costs and attorneys’ from the testimony parties conflicting trial court heard The had admitted not the Commonwealth whether or concerning Notice of Class language of the liability by stipulating the Commonwealth trial court held that The Certification. trial to the Notice. The stipulating liability had conceded filing Taxpayers’ after the further found court of representative result the efforts of action and as a cause stop taxing manufacturer’s did the Commonwealth to members refunds class pay and to cash agreе rebates The estab- trial court proof overpayment. submitted who totaling approximately for refunds lished a common fund $31.5 million. prevailing parties, that as
The trial court also determined fees amount attorneys’ to Taxpayers were entitled $70,088.07 fund $701,880 from the common plus costs of or, alternatively, of their counsel” by the efforts “generated ap- § now to 42 1988. The Commonwealth U.S.C. pursuant peals.7 the trial court erred as argues Commonwealth 1) to this action allowing Taxpayers of law in: maintain
matter remedies; failed to exhaust administrative 3) v. Michigan; the doctrine of Will 2) failing apply 4) action; awarding this class certifying costs to counsel. attorneys’ Taxpayers’ fees and FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES sup The Commonwealth cites considerable case law that no claim can be maintained proposition its port i.e., process, without due deрrivation property action, plain adequate remedy if a administrative exists *8 that be The Commonwealth asserts property. recover had to recover taxpayers opportunity cause the individual Smolow, individuals, tax of the sales as did overpayment 12,000 others, that a rights and appeal,8 Verrichia over with exists the ad- remedy through for relief plain adequate scope to the trial is limited a determination whether 7. Our review its Mirror committed an error of law or abused discretion. court Board, Printing 148 Ct. Co. v. Altoona Area School Pa.Commonwealth A.2d II at 1. 8. See discussion of Smolow n. The Commonwealth judiciary.9 and the process
ministrative
recovery
to seek
opportunity
had the
argues
having
now
action, and,
§
tax,
may not maintain
of the
the Com-
therefore,
failing
grant
erred in
the trial court
judgment
motion for
objections and
рreliminary
monwealth’s
certifying
the class.
eventually
pleadings
on the
I,
Court,
Supreme
this
affirmed
in Smolow
While
remedies, the
Court,
of administrative
the exhaustion
required
Berks,
Pa.
Murtagh
County
Court
Supreme
to exhaust
taxpayer
require
were the “Welcome § their 1983 action because instituting However, was de discriminatory. Stranger” policy facto 300, here, at and also Regulation applicable and Tax Code II, de I and were not discrimi- in Smolow Smolow issue facto uniformly purchasers to all of applied the law natory because Murtagh Thus, does not received rebates.10 automobiles that at control, Regulation 300 issue because the Tax Code Therefore, discriminatory. we hold that de facto not here are remedy stated adequate an administrative Taxpayers had I, a filing maintaining their of Smolow precludes in which- § action. 1983 cause of WILL v. MICHIGAN
DOCTRINE OF
point,
our discussion at this
we
Although we could end
persuasive
discuss the Commonwealth’s most
obliged
feel
apply
failing
the trial court erred
argument,
v.
Michigan,
v.
In
an
Michigan.
Will
em
doctrine Will
against
Michigan Department
State
filed a claim
ployee
in his official
Michigan
Director
State Police
Police
employee
denied the
parties
that both
had
capacity, alleging
in violation
42
improper
an
reason
U.S.C.
promotion for
employee’s
§
Court dismissed the
1983. The Circuit
Reaffirming
it held in
Supreme
affirmed.
what
and the
Court
Services,
Social
City,
Monell v. New York
436
2018,
(1978),
658,
Supreme
L.Ed.2d 611
U.S.
S.Ct.
“person”
meaning
held
a state is not a
-within the
Court
Court, however,
§
also held that state
Supreme
1983. The
“persons”
are
сapacity
in their
also
acting
officials
official
against
§
a state official
his or
under
1983 because “a suit
against the official but rather
official
is not a suit
capacity
her
office.” Id.
at
U.S.
against
suit
official’s
at 58.11
105 L.Ed.2d
Commonwealth,
Corp.
Line
153 Pa.Com
10. See Transcontinental Gas
v.
Ct.
In the
before
and a
against
deputy
two secretaries
brought
against
The
action
secretary.
initial
was
Secre-
Scheiner,
Fields,
successor,
was later
tary
Secretary
but his
Further,
they
no evidence that
Taxpayers present
added.
damages
from the officials as individuals.
sought
from
coffers of the
only damages
Commonwealth.
sought
fact,
In
that he
“to be
requesting
counsel stated
Smolow’s
$31,000,000
of this so-called
paid by the Commonwealth out
added).
(376a) (Emphasis
common fund.”
provides:
Eleventh Amendment
power
be
The Judicial
of the United States shall not
construed
any
prosecuted against
equity,
law or
commenced or
extend
suit in
State,
by
States
Citizens of another
or
Citizens
one
United
Subjects
any Foreign
or
State.
Will,
is more than
suit
personal-capacity
As was stated
Therefore,
Taxpayers’
because
device.”
pleading
“mere
the Department
secretaries of
successive
action followed
or record did
pleadings
in the
nowhere
Fields,
Schemer
from Defendants
personally
damages
seek
actions were
Ross,
alleged personal-capacity
hold that the
we
causes
personal-capacity
and not true
mere
devices
pleading
in the
holdings
compelled by
is
holding
Our
action.
Because no
Court.
of the United States
decisions
a state
the state or
brought against
can be
§ 1983 action
Will,
no true cause of
and that
capacity,
in his official
official
in this
the state official defendants
brought against
action was
§
cause
had no
capacity, Taxpayers
personal
case
their
ab initio.
action,
action
a cause of
we must examine whether
Because
v.
Lillian
Common
action,
a class
granting
exists
wealth,
Depart
Stevenson
467 Pa.
354 A.2d
I,
(1980)
Revenue,
and Smolow
ment of
489 Pa.
13. We are concerned that
improperly taxed to
individuals who were
court
have misled some
three-year statute
forego filing petition for refund of taxes within the
7253(a). Although
we now reverse
set forth in 72 P.S.
of limitation
certification,
trial
grant
we believe that the
the trial court’s
of class
equitably
running
granting certification does
toll
court’s order
process the
limitations. The Commonwealth thus should
the statute of
*12
by Taxpayers
Class Certification as
under the Notice of
forms submitted
improperly paid.
they
timely petitions
refund of taxes
See
if
were
for
Utah,
Pipe
94
generally
& Construction Co. v.
American
(1974).
One the bases which reverses trial court is its holding had exhaust the adminis- procedures provided bring- trative for in the Tax Code before Pennsylvania policy 2. This clarification of was sent to the PAA and the (PennDot), Transportation agency that collects sales purchases. were issued concern- tax on automobile Press releases also ing the clarification. provides pertinent part: 3. Section 1988 proceeding any provision action or to enforce a [I]n [Section 1983 court, discretion, may prevail- and other in its allow the statutes] States, ing party, attorney's other than the United a reasonable fee as part of the costs. Recognizing 1983 action. ing a Section *14 Berks, 50, Pa. Court, County in 634 A.2d Murtagh v. of (1993), admin- not to exhaust their require Taxpayers did action, a filing before Section istrative remedies claim of Murtagh that involved a majority finds because discrimination, here, is alleged, and no discrimination invidious Murtagh’s of ambit. As distinction takes this case out that their administra- such, required are still to exhaust I action. maintaining Section 1983 tive remedies did not holding Murtagh disagree majority’s with the of exhaustion of administra- attempt necessity to address the remedies, rather, Injunc- of Tax applicability but tive 1937, 28 to a 1983 action Act of U.S.C. Section tion in state courts. brought the real
Murtagh taxpayers challenging involved a class County of the Berks Board procedures tax assessment estate 1983 action. At issue through of Assessment Section to Injunction of the Tax Act Section 1983 applicability jurisdiction in state courts. Because brought actions violations are set Con- statutory federal courts for federаl Act, Injunction in such the Tax can gress, acts as Congress, jurisdiction foreclose of district courts over certain causes Act, Injunction Congress enacting When Tax action. that: provided not enjoin, suspend
The district courts shall restrain the assessment, levy any or collection of tax under state law speedy remedy may and be had in plain, where efficient added). (Emphasis the courts such state. action, Injunction injunctive Tax Act bars
While the Court Fair Assessment Real Estate Associa Supreme tion, McNary, Inc. v. 70 L.Ed.2d comity bars actions for principle found that monetary damages as well. Con- Supreme
The United States
Court stated that when
Act,
Injunction
recognized
it
gress enacted
Tax
autonomy
stability
fiscal
of states survive best when their
and
scrutiny.
Supreme
not
systems
subject
tax
are
federal
monetary damages
allowing
actions for
Court reasoned
to the state’s revenue
just
disruptive
as intrusive and
would be
injunctive
specifically
the actions for
relief
system
collection
Act,
monetary damages
and
Injunction
under the Tax
barred
The court then went on
state
also not be available.
should
of their federal
protection
must seek
taxpayers
that “[s]uch
remedies,
course,
those
provided,
state
rights
and
ultimate-
complete,
are
plain, adequate
remedies
state decisions
this court.” Id.
ly seek review of the
added).
(Emphasis
at 283.
This leads to the crux of with the its that the need to exhaust administra ty: holding plaintiffs to this action. In Howlett v. prior bringing tive remedies Rose, 356, 110 2430, 110 (1990), L.Ed.2d 332 496 U.S. that state courts are mandated to hear Supreme Court held 1983 actions that “federal law is enforceable explaining Section passed in ... and laws state courts because the Constitution passed to it are as much laws the states as laws pursuant Id., 2438, 367, state 496 at 110 S.Ct. at legislature.” U.S. 628 say it is a
110
at
It went on to
that because
L.Ed.2d
347.
law,
not,
or common
may
“a
statute
right,
federal
state
...” nor
of action under Section 1983
create a cause
Id.,
action.
availability
of a Section 1983
state lessen
2442,
348,
376,
2439,
368,
From
(1961),
Supreme
II. majority relies to reverse the The other basis on which the against a 1983 is that action trial court’s decision Section in an is acting capacity its offiсials official Commonwealth and decision in not Court’s maintainable because Police, 58, 109 491 U.S. Michigan State Will v. (1989). 2304, greatly 105 45 Will limited S.Ct. L.Ed.2d actions states and maintaining against 1983 viability Section
629 Will, states against 1983 actions Prior to Section its officials. Amendment to the United under the Eleventh were dismissed against a prohibits which suits generally Constitution States Graham, See, v. e.g., Kentucky 473 U.S. agencies. state or its (1985). it does 3099, 114 Because 159, 105 87 L.Ed.2d S.Ct. courts, Maine v. from suits in state not immunize states Thiboutot, (1980), 1, 2502, L.Ed.2d 555 100 S.Ct. 65 448 U.S. Port Auth. Trans- immunity, a could waive its state 299, 1868, 109 Corp. Feeney, Hudson v. 495 110 S.Ct. U.S. acts as a the Eleventh Amendment L.Ed.2d 264 against 1983 action bringing bar to the Section partial than that them. Will greater protection affords states a much from a Section 1983 suit afforded the Eleventh Amendment in the section. “persons” are not as used by holding states do not fall within the they “persons”, they Because are not sued in state courts nor can thе section’s ambit and cannot be However, maintaining bar to immunity. state waive Will’s acting when their against public 1983 action officials Section capacity official is not total.4 the state continues majority recognizes,
As the
itself
while
suit,
sued under
immune from
state officials still can be
be
injunctive
for
capacity
prospective
Section 1983
their official
Will,
10,
relief. See
n.
at 2311 n.
Because a Section 1983
cannot
any
require
obtain
that would
reimbursement
judgment
I
treasury,
agree
majority
funds from the state
with the
requiring
find that
the Common-
portion Taxpayers’
course, public
аcting
personal
4. Of
officials can be sued when
in their
capacity
complained
if
of were outside those which the
the actions
administered,
public
usually
e.g., firing persons
political
official
reasons,
they
“persons”
public officials could
were
within the Act and
Melo,
capacity.
be sued in their individual
Hafer
III.
of exhaustion
administrative
previous analysis
While the
Taxpayers’
claim was
remedies and the effect of Will
in
way
in
aids
necessаry,
analysis
is
relevant
it
are
fees.
entitled
counsel
determining
whether
us is
are
the issue before
whether
Specifically,
meaning
within the
of Section
when
parties
prevailing
In
v.
voluntarily discontinued their action.
Hewitt
Taxpayers’
Helms,
96 L.Ed.2d
482 U.S.
107 S.Ct.
plaintiff
to be entitled to
Court held that
litigation
show
was the direct cause
counsel fees must
Farrar
made
officials. See also
changes
public
of the
—
(1992).
566, 121
U.S. -,
L.Ed.2d 494
Hobby,
113 S.Ct.
monetary
is
injunctive
An
or
relief
award of some sort of
judicial
com
obtaining
the mere
favorable
required and
bring
the definition of
plaintiff
ments does not
within
Nonetheless,
the court
Hewitt did not
party.
prevailing
judgment
the absence of a formal
despite
foreclose all claims
of the
plaintiff
with some
all
provides
when
suit
has
party
relief
The touchstone
whether
sought.
lawsuit,
there
plaintiffs
is whether
a result
prevailed
legal relationship
partiеs
a material alteration of the
is
fee
caused
Congress sought
promote
which
statute
Association v. Gar
by the
Texas State Teacher’s
litigation.
District,
School
109 S.Ct.
Independent
land
1486,
Section reasons, basic it parties between the for three found Commonwealth:
(cid:127) agreed Taxpayers’ position adopted in July, *18 sale; to the prior received rebates to tax manufacturers 2a). lb, la, Fact (Findings of (cid:127) who filed for those individuals cash refunds pay to agreed 2e). 2c, state; Fact (Findings of from the claim for refunds (cid:127) certified, required and as a result class was the enti- they notice that were notice, received individuals class (Findings on rebates. paid on sales tax tled to refunds 2e). Id, 2b, 2d, Fact they because the award either findings justify those
None of represent or not evidence do by substаntial supported are not par- the relationship between legal in the change a material ties. not to tax policy in the change Department’s
As rebates, sought change Taxpayers that policy 28, 1988, three weeks changed April it was on changed, but The uncon- 1983 action. filed their Section Secretary Deputy testimony Department’s troverted ongoing the result of announced was policy was that of Taxpayers’ PAA and not the result discussions with the Moreover, agreed the Commonwealth just conduct. because would sent out that the Commonwealth when class notice was available, nothing does rebates and that refunds were not tax It was a parties. between the change legal relationship A Section already Taxpayers. available remedy that was no more than it plaintiff doing results in the 1983 lawsuit that satisfy require- never had committed to do will already Disabled in that the caused the benefit. See litigation ment (3rd Pierce, F.2d Pennsylvania Action of Cir.1986). Section finding Taxpayers’ trial court’s that
As to the
issued,
factually supported
it is not
action caused refunds to be
that its
agreed
policy
Department
previously
in that the
had
Even
to issue refunds.
already begun
and had
proper
was not
refunds,
pre-
begun issuing
Will
if the
had
for compensa-
of a
1983 action
maintaining
Section
cludes
relief,
retroactive
awarding any type
tory damages
refunds.
obtaining of tax
including the
in having
were successful
just
Finally,
sending
certified
class certification notices
class
which
process by
an administrative
refunds
there was
rebates,
those
taxes on
is not
paid
would be made to
who
plaintiff
for a
to be awarded
type
of success needed
sent,
notice was
counsel fees. Whеn
class
Section 1988
already
policy
changed
the Commonwealth’s
had
refunds
Hampton,
Hanrahan v.
In
being
issued.
already
were
the Supreme
100 S.Ct.
For the above concur with the denying the trial 'court and claim for reversing Taxpayers’ counsel under Section 1988. fees