                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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ALD-36                                     NOT PRECEDENTIAL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

                                              2
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.

                                             3
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.

                                              4
