Michael Davis, et al v. City of Philadelphia

Filing

PRECEDENTIAL OPINION Coram: MCKEE, SMITH and HARDIMAN, Circuit Judges. Total Pages: 7. Judge: HARDIMAN Authoring. [Edited to reflect Michael A. Siddons' correct address.]

Case: 15-2937

Document: 003112282265

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Date Filed: 05/04/2016

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-2937
____________
MICHAEL E. DAVIS;
GLOBAL SALES CALL CENTER LLC
v.
CITY OF PHILADELPHIA
Michael E. Davis,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-14-cv-06979)
District Judge: Honorable Gerald J. Pappert
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 4, 2016
Before: McKEE, Chief Judge, SMITH, and HARDIMAN,
Circuit Judges.
(Filed: May 4, 2016)
Earl D. Raynor, Jr.
234 North Peach Street
Philadelphia, PA 19139
Counsel for Appellant
Michael A. Siddons
230 North Monroe Street
P.O. Box 403

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Media, PA 19063
Counsel for Appellee
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Federal law confers various protections on United
States servicemembers called to active duty. Among these are
limits on the interest and penalties that may be charged to a
servicemember for overdue property taxes. Michael Davis,
who served his country in both Iraq and Afghanistan, appeals
the District Court’s order dismissing his lawsuit challenging
delinquent property tax interest and penalties that the City of
Philadelphia assessed against his company while he was on
active duty. The question presented by this appeal is whether
the protections afforded to Davis as a servicemember extend
to his company’s property.
I
Davis and his wife purchased a two-story, threebedroom rental property at 5624 Willows Avenue in
Philadelphia on July 15, 1997. A longtime member of the
United States Army Reserve, Davis was called to active duty
in December 2004. A few months after he was called up,
Davis and his wife transferred the property to Global Sales
Call Center LLC, a Pennsylvania company that is solely
owned and managed by Davis.1 Davis served six months of
active duty in Iraq in 2005 and three years in Afghanistan
between 2008 and 2011.

The Davises did so to “insulate themselves from
liability because [Davis] was on active duty [in the Army]
and his wife was unable to manage the property.” Davis v.
City of Philadelphia, 2015 WL 4461770, at *1 n.1 (E.D. Pa.
July 21, 2015).
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In December 2009, Davis and Global asked the
Philadelphia Department of Revenue to reduce Global’s
property tax debt in accordance with the Servicemembers
Civil Relief Act (SCRA), 50 U.S.C. § 3901 et seq., which
limits any interest imposed on a servicemember’s delinquent
property taxes during his period of active duty to a rate of six
percent and forbids any additional penalties.2 50 U.S.C. §§
3991(d), 3937(a)(1). The Department denied this request on
the grounds that the SCRA does not apply to a business
owned by a servicemember, telling Davis that he should
instead file an abatement petition with the Philadelphia Tax
Review Board. Davis did so in January 2010, rehashing his
SCRA argument and requesting a recalculation of the interest
and penalties assessed against Global based on its overdue
property taxes. The Review Board denied the petition after a
March 2011 hearing.
Two years later the City of Philadelphia initiated
foreclosure proceedings on Global’s property because of its
failure to pay the delinquent property taxes and associated
interest and penalties, and the Philadelphia Court of Common
Pleas entered judgment in the City’s favor. In a subsequent
hearing upon a petition to open the judgment, Davis again
requested an abatement of Global’s debt, reasserting that the
interest and penalties assessed by the City violated the SCRA
and neglecting to inform the Court that the Review Board had
already considered and rejected this argument. After learning
of the Review Board’s decision, the Court of Common Pleas
ruled in the City’s favor and signed the foreclosure petition.
Davis and Global then turned to federal court, suing
under 42 U.S.C. § 1983, which “provides a recovery
mechanism for the deprivation of a federal right by a person
acting under color of state law.” Hynson By & Through
Hynson v. City of Chester Legal Dep’t, 864 F.2d 1026, 1029
(3d Cir. 1988). The City moved to dismiss, arguing that it had
applied the SCRA to Davis’s personal liabilities (those arising
2

Davis alleges that nearly half of the $17,120.47
demanded by the City in back taxes and court costs is illegal
under the SCRA.
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during the brief period between Davis’s transition to active
duty and his transfer of the Willows Avenue property to
Global) and that both Davis and Global lack standing.
The District Court granted the City’s motion. The
Court reasoned that the SCRA extends only to
servicemembers and that a corporation is not a
“servicemember” under the statute. Davis v. City of
Philadelphia, 2015 WL 4461770, at *3 (E.D. Pa. July 21,
2015). Accordingly, it concluded that Global was without
statutory standing to seek relief under the SCRA. Id. The
Court also dismissed Davis’s suit, holding that—because he
was not personally liable for Global’s tax debt—he “has not
been denied relief under the SCRA.” Id.
Global did not appeal, but Davis did.3
II
This appeal is our first opportunity to interpret the
Servicemembers Civil Relief Act. This straightforward statute
provides that any interest imposed on a servicemember’s late
property taxes during a period of active duty may not exceed
six percent. 50 U.S.C. §§ 3991(a), (d), 3937(a), and
3911(2)(A)(i), (3). The law also bars any additional charges
or interest under the guise of a “penalty.” 50 U.S.C.
§ 3991(d). These property tax interest rate and penalty
protections extend only to “property . . . owned individually
by a servicemember or jointly by a servicemember and a
dependent or dependents.” 50 U.S.C. § 3991(e) (emphasis
added). The SCRA defines a “servicemember” as “a member
of the uniformed services.” 50 U.S.C. § 3911(1).
3

The District Court had jurisdiction under 28 U.S.C.
§ 1331 and 28 U.S.C. § 1343. We have jurisdiction under 28
U.S.C. § 1291. We reject the City’s odd suggestion that our
inquiry is merely whether the District Court’s order is
“clearly erroneous” or amounts to an abuse of discretion. City
Br. 8, 13, 16; but see id. at 14–15 (correctly identifying our
standard of review). Our review is plenary. Ballentine v.
United States, 486 F.3d 806, 808 (3d Cir. 2007).
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Although the parties view this case purely in terms of
standing, we see it somewhat differently. As we shall explain,
Global lacks standing, but Davis does have standing to sue.
Standing is a sine qua non in any case. See Warth v.
Seldin, 422 U.S. 490, 498 (1975). There are three types of
standing: (1) constitutional standing owing to the “irreducible
constitutional minimum” of the existence of an Article III
“case or controversy,” Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992); (2) prudential standing consistent with
“judicially self-imposed limits on the exercise of federal
jurisdiction,” United States v. Windsor, 133 S. Ct. 2675, 2685
(2013); and (3) statutory standing, which is at issue in this
case. Whereas “[c]onstitutional and prudential standing are
about, respectively, the constitutional power of a federal court
to resolve a dispute and the wisdom of so doing,” statutory
standing is simply a matter of statutory interpretation. Graden
v. Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir. 2007). We
inquire “whether Congress has accorded this injured plaintiff
the right to sue the defendant to redress his injury.” Id.
Applying these principles, the District Court correctly
held that Global is not a “servicemember” under the SCRA,
as it is not a “member of the uniformed services.” 50 U.S.C.
§ 3911(1). Although federal law treats corporations as
“people” in many respects, it does not deem them soldiers.
Moreover, the SCRA limits the class of persons who may
petition a court for relief under the Act to those with
“servicemember” status. 50 U.S.C. § 4021(a). Thus, the plain
language of the SCRA precludes Global’s standing.
Unlike Global, Davis is a servicemember. As such, he
is precisely the sort of plaintiff that the SCRA protects.
Contrary to the City’s arguments and the District Court’s
implicit holding, his complaint is not defeated for lack of
statutory standing.
Unfortunately for Davis, he has not—and cannot—
state a claim for relief under the SCRA. “To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
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quotation marks omitted). To state a claim for relief, Davis
was required to plead facts sufficient to prove the following
elements of a SCRA claim: (1) an interest at a rate above six
percent (2) assessed against a servicemember while on active
duty (3) based on delinquent property taxes relating to
“property . . . owned individually by a servicemember or
jointly by a servicemember and a dependent or dependents.”
50 U.S.C. § 3991(e) (emphasis added). Davis cannot satisfy
the second or third elements because it is undisputed that
Global owns the property in question and that Global alone is
liable for the tax debt.4 Under Pennsylvania law, Global has
its own legal identity, so Davis may not invoke the SCRA on
Global’s behalf. Nor may Davis appeal to equity to pierce
Global’s corporate veil based purely on the unremarkable fact
that Global has no corporate shareholders or personnel
beyond Davis and absent any evidence that the entity was
nothing but a sham, as it is well established that “[m]ere stock
ownership by a small number of shareholders does not blur
the distinction between individual and corporate entities.” In
re Deed of Trust of Rose Hill Cemetery Ass’n, 590 A.2d 1, 4
(Pa. 1991); see also Sams v. Redevelopment Auth. of City of
New Kensington, 244 A.2d 779, 781 (Pa. 1968) (“[O]ne
cannot choose to accept the benefits incident to a corporate
enterprise and at the same time brush aside the corporate form
when it works to their (shareholders’) detriment.”); Barium
Steel Corp. v. Wiley, 108 A.2d 336, 341 (Pa. 1954) (“The fact
that one person owns all of the stock does not make him and
the corporation one and the same person.”).
Contrary to Davis’s argument, an SCRA provision
circumscribing the obligations of servicemember-owned
businesses hurts—not helps—his case. That provision states
that “[i]f the trade or business . . . of a servicemember has an
obligation or liability for which the servicemember is
personally liable, the assets of the servicemember not held in
connection with the trade or business may not be available
for satisfaction of the obligation or liability during the
servicemember’s military service.” 50 U.S.C. § 4026(a)
4

Davis concedes that the City has applied the SCRA
to his personal liabilities.
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(emphases added). This simply means that “business creditors
cannot execute on the servicemember’s non-business assets to
satisfy business debt.” Newton v. Bank of McKenney, 2012
WL 1752407, at *6 (E.D. Va. May 16, 2012). A “necessary
corollary to this rule is that business creditors are allowed to
execute on the servicemember’s business assets to satisfy
business debt, even if the servicemember is personally liable
for that business debt.” Id. (emphases added). Hence, even in
the event that some or all of the money owed by Global to the
City effectively comes out of Davis’s pocket, nothing in the
SCRA would stand in the way so long as his non-business
assets are respected.
III
It is an unfortunate twist of law and fate that Davis and
his wife, in transferring their rental property to Global in
order to protect their financial interests during Davis’s period
of military service, unwittingly undermined existing
safeguards of those interests. Undoubtedly, denying these
safeguards to Davis’s closely held company runs counter to
the SCRA’s ambition that servicemembers feel secure in their
tax and legal affairs during their active duty deployments so
that they may “devote their entire energy to the defense needs
of the Nation.” 50 U.S.C. § 3902(1). But Davis received all
the benefits that come with incorporation, and he cannot have
his cake and eat it too. The clear text of the SCRA limits its
protections to property owned individually by a
servicemember or jointly by a servicemember and a
dependent. Because Global owns the property in question and
the City has applied the SCRA’s protections to Davis’s
personal liabilities, we will affirm the judgment of the District
Court.

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