Avenue. Presumably, although not alleged, the lack of any proprietary interest in the church premises on the part of the defendants means they have no right to determine who should use the 40th Street and Fairmount Avenue Church. The combination of the defendants' assertion of proprietary interest in the 40th Street and Fairmount Avenue Church of God by determining who shall be its minister and the alleged systematic exclusion of Negroes from policy roles in the National Body operate to deny plaintiffs of their right to Freedom of Religion and Equal Protection.
In its answer, the defendants deny many of the plaintiffs' allegations regarding who constitutes the membership of the 40th Street and Fairmount Avenue Church. Secondly, the defendants deny the gist of the plaintiffs' allegations regarding the General Assembly as merged, its policies, and its actions toward Reverend Hawes and its Negro membership generally. The defendants incorporate by reference the pleadings and findings of the State Court proceedings in the Common Pleas Court which would operate, on defendants' theory, to either bar this suit or at the very least to prevent this Court from staying the execution of the State Court decree restraining Reverend Hawes.
The parties in the state court proceedings were 40th Street and Fairmount Avenue Church as plaintiff, and Reverend Horace A. Hawes as defendant. From the pleadings of the state court proceedings it appears that two issues decisive to this litigation on defendants' theory were before the state courts. The state court decided whether the 40th Street and Fairmount Avenue Church ever affiliated with and subjected itself to the General Assembly. The state court also adjudicated whether Reverend Hawes was the minister of the 40th Street and Fairmount Avenue Church. See, para. 2, para. 3 of Answer in 40th Street and Fairmount Avenue Church of God v. Horace A. Hawes, Court of Common Pleas, September Term, 1967, No. 1594 in Equity. The state court judge having resolved both of these issues against Reverend Hawes' contentions, ordered him not to interfere with the premises at 40th Street and Fairmount Avenue Church and not to conduct services at those premises. (Conclusion of Law No. 4 and Decree.) The Supreme Court of Pennsylvania dismissed the appeal by Reverend Hawes because the appeal was never perfected within the required period of time.
Although the defendants have raised the issues of whether this suit is barred or of whether a federal court is prohibited in any case from enjoining a state court judgment, the issue of overriding importance is whether this Court has jurisdiction over the subject matter of this suit. The plaintiffs have, after the filing of the Answer and oral argument on the motion to dismiss, moved for leave to file an amended complaint. For the reasons hereafter stated, I have decided to dismiss the complaint for lack of subject matter jurisdiction, to deny the request for a preliminary injunction, and to deny to the plaintiffs the right to file an amended complaint
The plaintiffs do not ask this Court to resolve the question of who has legal title to 40th Street and Fairmount Avenue Church. For the essence of what the plaintiffs seek is an adjudication by this Court that plaintiff, Reverend Hawes, has the "right" to conduct services at 40th Street and Fairmount Avenue Church. Such an adjudication would require an inquiry into whether the defrocking procedures of Reverend Hawes were proper because the defendants have asserted a right of ecclesiastical direction over 40th Street and Fairmount Avenue Church rather than a right of ownership in the physical structure. The First Amendment prohibits this Court from inquiring into the appropriateness of the defrocking of Reverend Hawes. Presbyterian Church in the United States et al. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969).
Were I asked to resolve who has legal title to the premises, I could conduct the circumscribed inquiry along the lines of neutral principles of law required by the Constitution. But here the plaintiffs ask this Court to intervene with the adjudication of the church tribunal that revoked Reverend Hawes' ministry in the Church of God (Finding of Fact No. 25 in 40th Street and Fairmount Avenue Church of God v. Horace A. Hawes, supra,) for deviating from established church doctrine. Whether Reverend Hawes' departure from church doctrine was prompted by the elimination of the separate "Colored Work" headquarters or the appointment of a "White" overseer for his church, a civil court is not allowed to decide whether this reason justified Reverend Hawes' deviation.
This Court thus lacks subject matter jurisdiction over this suit since to decide the issues presented would violate the First Amendment.
Plaintiffs proffered amended complaint fails to correct the defect of lack of subject matter jurisdiction. Rather the plaintiffs attempt to cure another jurisdictional defect present on the face of the complaint since there is a lack of diversity, the alleged basis of jurisdiction, between all of the named parties. The citizenship
of all the plaintiffs is alleged as being in Pennsylvania and the citizenship of defendant Paul Stover is alleged to be that of Pennsylvania. Plaintiffs' attempt to cure the lack of complete diversity required under 28 U.S.C. § 1332 would be unsuccessful since defendant, Paul Stover, is still named as defendant along with other persons who are not allegedly citizens of Pennsylvania. Since the proposed amended complaint does not cure the major defect of lack of subject matter jurisdiction under the First Amendment nor the lack of complete diversity, I will not allow the filing of the amended complaint under Rule 15, Federal Rules of Civil Procedure.
Finally, plaintiffs' request for the convening of a three-judge court is denied since no state statute is attacked as unconstitutional in the complaint as required by 28 U.S.C. § 2281.