Samuel v. University Of Pittsburgh

506 F.2d 355
CourtCourt of Appeals for the Third Circuit
DecidedDecember 26, 1974
Docket74-1624
StatusPublished
Cited by4 cases

This text of 506 F.2d 355 (Samuel v. University Of Pittsburgh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samuel v. University Of Pittsburgh, 506 F.2d 355 (3d Cir. 1974).

Opinion

506 F.2d 355

Cynthia Jo SAMUEL and Dena Meyers, Individually, and on
behalf of all other persons similarly situated,
Plaintiffs, Appellants, Patricia Farley
and Cynthia Lambert,
Intervening Plaintiffs,
v.
UNIVERSITY OF PITTSBURGH, the Pennsylvania State University,
Indiana University of Pennsylvania, Temple University, and
all other state and state-related universities and colleges
in the Commonwealth of Pennsylvania similarly situated,
Wesley Posvar, Chancellor of the University of Pittsburgh,
John W. Oswald, President of the Pennsylvania State
University, William W. Hassoer, President of Indiana
University of Pennsylvania, Paul R. Anderson, President of
Temple University, and all other chancellors and presidents
of all other state and state-related universities and
colleges in the Commonwealth of Pennsylvania similarly
situated, the Boards of Trustees of the University of
Pittsburgh, the Pennsylvania State University, Indiana
University of Pennsylvania, Temple University, and the
Boards of Trustees of all other state and state-related
universities and colleges in the Commonwealth of
Pennsylvania similarly situated, William H. Rea, Chairman of
the Board of Trustees of the University of Pittsburgh and
all other persons on the Board of Trustees of the University
of Pittsburgh, Albert Shoemaker, Chairman of the Board of
Trustees of the Pennsylvania State University and all other
persons on the Board of Trustees of the Pennsylvania State
University, and all other persons on the Board of Trustees
of the Pennsylvania State University, Joseph W. Serene,
Chairman of the Board of Trustees of Indiana University of
Pennsylvania and all other persons on the Board of Trustees
of Indiana University of Pennsylvania, William R. Spofford,
Chairman of the Board of Trustees of Temple University and
all other persons on the Board of Trustees of Temple
University and all other Chairmen and all other persons on
the Boards of Trustees of all other state and state-related
universities and colleges in the Commonwealth of
Pennsylvania similarly situated, R. V. Allshouse, Registrar
of the University of Pittsburgh, and all other registrars or
persons holding similar positions in all other state and
state-related universities and colleges in the Commonwealth
of Pennsylvania similarly situated, Frederick Sehring,
Assistant Registrar of the University of Pittsburgh, and all
other assistant registrars or persons holding similar
positions in all other state and state-related universities
and colleges in the Commonwealth of Pennsylvania similarly
situated, Milton J. Shapp, Governor of the Commonwealth of
Pennsylvania, J. Shane Creamer, Attorney General of the
Commonwealth of Pennsylvania, Robert P. Casey, Auditor
General of the Commonwealth of Pennsylvania, and each and
every named Defendant and each and every Defendant subject
to jurisdiction by representation, Individually and in their
official capacity.

No. 74-1624.

United States Court of Appeals, Third Circuit.

Argued Nov. 12, 1974.
Decided Dec. 26, 1974.

Michael P. Malakoff, Berger & Kapetan, Pittsburgh, Pa., for appellants.

James M. Arensberg, Tucker, Arensberg & Ferguson, Pittsburgh, Pa., for University of Pittsburgh, Wesley W. Posvar, R. V. Allshouse and Frederick Sehring, appellees.

Peter Platten and Richard Z. Freemann, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for Temple University, appellee.

Delbert J. McQuaide and John C. Gilliland II, McQuaide, Blasko & Brown, State College, Pa., for The Pennsylvania State University, appellee.

Israel Packel and Thomas F. Halloran, Pittsburgh, Pa., for the Governor and the Atty. Gen. of the Commonwealth of Pennsylvania, appellees.

Robert P. Meehan and Frank P. Lawley, Jr., Harrisburg, Pa., for Auditor Gen. Robert P. Casey, appellee.

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 71-1202).

Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal by the plaintiffs, two married, female graduate students at the University of Pittsburgh,1 who also represent all married female students who since 1967 have attended any of the three defendant universities and who were classified as out-of-state students for tuition purposes on the basis of Rule B(2) of the Auditor General of Pennsylvania. See Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa. 1972) (certification of plaintiff class). Plaintiffs appeal from an order entered by the District Court for the Western District of Pennsylvania, on June 7, 1974. The order directed the defendant universities to bear the expense of identifying members of plaintiff class and notifying them that, although the defendants had been found liable to the plaintiffs as a class, their damage claims would not be adjudicated on a class-wide basis. For the reasons discussed herein, we find that the appeal must be dismissed for want of a final, appealable order.2 See 28 U.S.C. 1291.

The plaintiffs brought this action on December 28, 1971, to challenge the constitutionality of the Auditor General's Rule B(2), which classified3 women students as resident or nonresident for tuition purposes. It provided:

'The domicile of a wife (adult or minor) is that of her husband. Where, however, an unmarried woman enrolled as a student having a Pennsylvania resident status marries a non-Pennsylvania resident, she shall continue to be classified as a Pennsylvania resident within the meaning of these Rules.' Samuel v. University of Pittsburgh, 56 F.R.D. 435, 437 n. 1 (W.D.Pa.1972).

The plaintiffs assert that the rule denied female students equal protection of the laws. They sought both to have the operation of the Rule enjoined4 and to have restitution made of such tuition amounts as were unconstitutionally collected. The district court certified the above-mentioned class in an opinion and order dated August 21, 1972. Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa. 1972). On October 5, 1972, the district court ordered the members of the plaintiff class to be individually notified at their representatives' expense. On April 10, 1974, the district court by opinion and order found for the plaintiffs on the ground of the rule's unconstitutionality, but at the same time 'decertified' the class with respect to the class members' damage claims. Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa. 1974). Motions of the plaintiffs to enter final judgment on the April 10, 1974, order pursuant to F.R.Civ.P. 54(b), and to certify the decertification of the class for interlocutory appeal pursuant to 28 U.S.C. 1292(b), were denied on May 1 and May 29, 1974, respectively.

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