The opinion of the court was delivered by: GIBSON
Although claiming to appear in the interest of Local Union No. 61, Industrial Union of Marine and Shipbuilders Workers of America, C.I.O., counsel for plaintiffs filed the complaint herein in forma pauperis.
On April 26, 1946, a complaint was filed on behalf of plaintiffs wherein it was alleged that the Dravo Corporation and said Union had entered into a collective bargaining agreement on September 7, 1945, and that on March 15, 1946, the Union served written notice of its intention to call a strike after thirty days notice. It is further asserted in the complaint that Dravo Corporation on March 20, 1946, instituted a lockout, contrary to the provisions of the War Labor Disputes Act, 50 U.S.C.A.Appendix, § 1501 et seq. Despite my individual knowledge that the members of said Union voluntarily instituted a strike on the day the notice to call a strike was served, I must accept this allegation of the complaint in passing upon a motion to dismiss it.
The complaint further alleges that the members of the Union began to picket the plants and yards of the Dravo Corporation in an orderly fashion after the lockout, and that on April 20, 1946, Dravo obtained a preliminary injunction in the Court of Common Pleas of Allegheny County, and on April 23, 1946, obtained from said court a Writ of Assistance. Although it does not directly so state, it possibly may be inferred that the Common Pleas writ was issued upon injunction affidavits. The writ, it is alleged in substance, was based upon prior decisions of the Supreme Court of Pennsylvania, and which the complaint asserts were repugnant to the 14th Amendment and contrary to the Pennsylvania Constitution, art. 1, Sec. 1, P.S. The writ of injunction, it is declared, 'constitutes a denial of due process and a denial of the equal protection of the laws to plaintiffs who are defendants in said action * * * ' and is void and of no effect.
The prayer for relief was as follows:
'(a) That an injunction may issue preliminarily until hearing and perpetual thereafter restraining the defendant (Walter C. Monaghan, Sheriff) from executing said writ of assistance.
'(b) That an order be made by your Honorable Court decreeing that said injunction is null and void and that the writ of assistance which is based thereon is void.'
Section 265 of the Judicial Code, 28 U.S.C.A. § 379, provides as follows:
'The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.'
See Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S. Ct. 139, 86 L. Ed. 100, 137 A.L.R. 967.
Faced with Section 265 of the Judicial Code, counsel for the plaintiffs amended the complaint. The substance of the amendment is found in the added 13th paragraph and the added prayers for relief.
The 13th paragraph is as follows:
'13. The actions and decisions of the Pennsylvania Supreme Court constitute legislation. The actions and decisions of the Pennsylvania Supreme Court purport to be based upon the state law of 1939. Act No. 163 (43 P.S. Sec. 206d), which plaintiffs aver is contrary to the provisions of the U.S. Constitution, 14th Amendment, section 1. The decision and action of the Common Pleas Court set forth above under color of said Act of 1939, and said decisions of the Pennsylvania Supreme Court is (sic) unconstitutional and void. The said State Act of 1939 and the decisions and actions of the Common Pleas and Supreme Court of Pennsylvania and the writ of assistance based thereon constitute a violation of the rights of the plaintiffs to peaceful picketing, freedom of speech, freedom of assembly and freedom of press and are a denial to plaintiffs of due process of law and of the equal protection of the laws.'
By the amendment the prayers for relief contain the following additions:
'c. That your Honorable Court may issue a preliminary injunction and temporary restraining order enjoining and restraining the enforcement of said Pennsylvania Act of 1939, P.L. 302, Act No. 163, and the Pennsylvania Supreme and Common Pleas Court decisions, and decreeing the same to be ...