a community building serving the entire township of Warminster as well as the Warminster Heights project; (6) public officials, including Warminster Township officials, deem this project to be private property and yet devote much of the resources of Warminster Township to Warminster Heights; for example, the housing inspector of Warminster Township devotes the majority of his time and energy policing Warminster Heights. The amended complaint added the further jurisdictional allegations that in furtherance of "the defendants' design" to charge excessive fees and succeed in their collection, the defendant Elias causes judicial process in the form of landlord tenant complaints to issue from the local district justice of the peace. The plaintiffs allege that in this manner, "the defendant Elias uses the protection and integrity of the state judicial system to legitimize his systematic confiscation of money not owed from tenants." It is also alleged that in furtherance of "the defendants' design" to perform illegal confiscation of property belonging to tenants, defendants request and permit the presence of Warminster Township Police at homes when resistance is expected to illegal seizures.
There are two principal issues to resolve in order to determine whether plaintiffs are entitled to relief: first, even if the character of Warminster Heights is sufficiently public to make applicable the guarantees of the Fourteenth Amendment and 42 U.S.C. § 1983, in what particular aspect has the conduct of the defendants' abridged rights protected by the Fourteenth Amendment and 42 U.S.C. § 1983; and second, does the United States Housing Act of 1937
and the Housing Act of 1949
which, as amended, are found in 42 U.S.C. §§ 1401-1436 and §§ 1441-1490c and the mortgage contract between the defendant and the Federal National Mortgage Association provide a basis for the present plaintiffs to establish federal question jurisdiction under 28 U.S.C. § 1331.
IV. THE HOUSING ACTS OF 1937 AND 1949: JURISDICTION UNDER 28 U.S.C. § 1331.
I will first consider whether the United States Housing Acts of 1937 and 1949, and the covenants of the mortgage agreement signed by the defendants, provide a jurisdictional basis in conjunction with 28 U.S.C. § 1331
for this Court to determine (1) whether a warranty of habitability should be implied in the leasehold agreement between the tenants and the defendant landlord, and (2) whether the present thirty day lease tenants are required to sign is unconscionable and void as a matter of law.
42 U.S.C. § 1401 declares it to be "the policy of the United States to promote the general welfare of the Nation by employing its funds and credit * * to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe and sanitary dwellings for families of low income, in urban, rural, non-farm and Indian areas that are injurious to the health, safety, and morals of the citizens of the Nation." 42 U.S.C. § 1441 declares it to be the object of national housing policy to realize as soon as feasible "the goal of a decent home and a suitable living environment for every American family * * *" The record indicates that Warminster Heights was constructed by the Federal Government during World War II to provide housing for defense workers. In 1957, the United States Government sold Warminster Heights, formerly known as Lacy Park, to the defendant Bella Angel for three million dollars. At the time of the sale, the defendant Bella Angel executed a mortgage to the United States of America in an amount exceeding two million five-hundred thousand dollars. Approximately $1,500,000 of this mortgage is still outstanding and is presently owned by the Federal National Mortgage Association, an agency of the United States. Paragraph six of this mortgage provides in part that the mortgagor "will maintain [the] property free from waste or nuisance of any kind, and in good condition, and make all repairs, replacements, improvements and additions which may be necessary to preserve and maintain said property and the value thereof. It shall comply with all valid laws, ordinances, and regulations affecting said property or its use."
The plaintiffs' complaint may be construed to allege that the violations of the covenants of a mortgage financed by an agency of the Federal government give rise to a cause of action under 42 U.S.C. §§ 1401, 1441 and 1441a within the scope of 28 U.S.C. § 1331. Without reaching or attempting to resolve this difficult question, I must face the preliminary issue whether the plaintiffs can satisfy the $10,000 jurisdictional requirement of 28 U.S.C. § 1331. On this question it appears that the decisions of the United States Supreme Court and of Federal appellate courts foreclose the possibility of plaintiffs satisfying this jurisdictional requirement.
First, even assuming that the action is properly maintained as a class action under F.R.C.P. 23(b)(2), "permitting plaintiffs to sue as class does not provide the answer to the question of whether it is proper to aggregate the claims of individual members of the class to reach the requisite jurisdictional amount." Potrero Hill Community Action Com. v. Housing Authority, 410 F.2d 974, 976 (9th Cir., 1969). In Potrero Hill a committee representing the tenants in a federally financed, low-rent project in San Francisco brought suit against the San Francisco Housing Authority, contending that an "annual contribution contract" in effect between the United States and the Housing Authority pursuant to 42 U.S.C. § 1410 imposed on the Housing Authority the duty of maintaining the project "in a decent, safe and sanitary condition (while maintaining its low-rent character)" 410 F.2d at 975. The complaint alleged that the Housing Authority had failed and refused to fulfill this contractual duty. Assuming, on the basis of the allegations of the complaint "that a Federal claim is asserted" the appellate court ruled that because aggregation of the individual tenants' claims was impermissible under Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319, (1969) the $10,000 jurisdictional requisite of 28 U.S.C. § 1331 had not been satisfied, and, therefore, the trial court lacked jurisdiction to grant relief to the plaintiffs.
Under Snyder v. Harris, supra plaintiffs cannot aggregate their claims to meet the statutory jurisdictional amounts, unless they assert a "common and undivided interest." Because in this case, as in Potrero Hill and Hahn v. Gottlieb, supra, the rights of plaintiff tenants "appear to arise only from the status of each as individual lessee of a portion of the project premises", aggregation of claims under Snyder v. Harris is impermissible.
In light of Snyder v. Harris and the cited decisions of various courts of appeals, this Court must conclude that plaintiffs cannot establish jurisdiction under 28 U.S.C. § 1331.
V. THE HOUSING ACTS OF 1937 AND 1949: JURISDICTION UNDER 42 U.S.C. § 1983.
As an appropriate basis for this Court to grant their requested relief, plaintiffs place principal reliance on 42 U.S.C. § 1983 and its jurisdictional correlative 28 U.S.C. § 1343. But there is a very serious question whether the civil rights statute codified in 42 U.S.C. § 1983 and its jurisdictional adjunct, 28 U.S.C. § 1343 provide an appropriate basis for this Court to grant the requested declaratory judgment that (1) the present thirty day lease signed by tenants of Warminster Heights is unconscionable and void and (2) that in any valid lease entered into between tenants of Warminster Heights and the defendants, a warranty of habitability should be implied.
In view of the severe shortage today of adequate housing in the United States for low and moderate income families, and the profound importance of adequate housing to the health, safety and dignity of each American, it would appear that one of the most fundamental civil rights deserving protection by the Federal Government and the Federal Courts is the right to "a decent home and a suitable living environment."
The present case, however, presents a severe test of the ability and the power of this Court to give effect to such a social and civil right, declared to be an object of national policy by Congress and incorporated as a condition of performance in the mortgage contract between the United States Government and the defendants.
The United States Government has the legal right and the social obligation to require that the covenants of the mortgage be fulfilled by the defendants. It does not appear, however, that the United States has taken steps to require strict compliance with the terms of the mortgage covenant. Since the United States is not a party to this action, they have not requested the enforcement of their rights under the mortgage contract.
To find that the mortgage covenants create rights which the tenants may enforce under 42 U.S.C. § 1983, I would have to accept three difficult and novel assumptions: (1) that the sixth covenant of the mortgage contract created enforceable third party beneficiary rights in the tenants of Warminster Heights (as well as in the government as party to the mortgage); (2) that the tenants' third party beneficiary rights are rights created by the contract of a Federal agency in order to effectuate the policy of Congress to employ Federal "funds and credit," 42 U.S.C. § 1401, to provide decent housing for Americans of low and moderate income, and therefore, should be considered rights "secured" by the laws of the United States; and (3) that the use of state judicial process to threaten and to effect eviction from Warminster Heights, as well as the alleged public character of the project, satisfies the state action requirement of the Fourteenth Amendment and of 42 U.S.C. § 1983.
But even if these three novel and difficult assumptions were made, a final and insurmountable jurisdictional obstacle would remain. 42 U.S.C. § 1983 is itself not an independent grant of jurisdiction. The most frequently employed jurisdictional correlative of § 1983 is 28 U.S.C. § 1343.
Under the terms of 1343(3), it cannot be said that the National Housing Acts and the mortgage agreement entered into to further the goals of this legislation are laws providing for the "equal rights of citizens" as specified in § 1343(3). Further, though the protection of rights created under the National Housing Acts are basic to any humane concept of social rights in society, these rights do not fall within the definition of civil rights under 1343(4).
VI. ALLEGED CONSTITUTIONAL VIOLATIONS AND § 1983.
A. Warranty of Habitability and Unconscionability.
Other theories of relief under 42 U.S.C. § 1983 also are fraught with difficulties. I recognize the national importance of decent housing for all citizens and I take note on this record of the failure of defendants to fulfill the obligations which they accepted in return for Federal mortgage financing. I am further aware of the difficult and even tragic plight of the plaintiffs in this action who are actually the victims of many cumulative national failures in the provision of decent housing and suitable living environments for our people. Recognizing all of these circumstances, I must conclude that the absence of a warranty of habitability does not constitute a denial of any of the "rights, privileges or immunities" secured by the Constitution of the United States as provided in 42 U.S.C. § 1983.
The plaintiffs also have asked this Court to find that the lease which tenants of Warminster Heights are required to sign is void as a matter of law as violative of the public policy and laws of the Commonwealth of Pennsylvania and the Fourth and Fourteenth Amendments of the United States Constitution. As previously discussed in regard to the warranty of habitability, the alleged conflict of the lease agreement with the "public policy and laws" of Pennsylvania does not necessarily constitute a denial of a right, privilege or immunity of constitutional dimension.
The plaintiffs challenge the lease as violative of the Fourth and Fourteenth Amendments. This assertion is not developed with sufficient specificity on the present record to enable this Court to fairly determine the scope or merit of the plaintiffs' position on this particular question. The plaintiffs initially contended that the defendants summary termination of the supply of electricity or water to a tenant's apartment in order to coerce payment of back charges constituted a deprivation of property without due process of law in violation of the Fourteenth Amendment. Pursuant to an agreement between the parties approved by this Court on November 23, 1970 this practice of disconnecting the supply of water and electricity to tenants' dwellings has ceased and, therefore, this particular abuse is no longer a matter of dispute between the parties.
B. Retaliatory Evictions.
Finally, the plaintiffs have asked that the defendants be enjoined from evicting tenants in retaliation for reporting housing code violations or for attempting to organize for any lawful purpose. It has been held that "the 14th Amendment prohibits a state court from evicting a tenant when the overriding reason the landlord is seeking the eviction is to retaliate for an exercise of his constitutional rights." Hosey v. Club Van Cortlandt, 299 F. Supp. 501 (S.D.N.Y., 1969). At this point, however, it appears that granting injunctive relief would be premature.
The present record does not indicate whether the plaintiffs have raised the defense of retaliatory eviction in any state court proceeding. Before this defense is raised and rejected in state court proceedings, it would be inappropriate for this Court to issue an injunction against any threatened retaliatory eviction by the defendant. In Hosey v. Club Van Cortlandt, supra, the Court declined to issue an injunction against the retaliatory eviction of a tenant until the validity of this defense under state law had been determined.
While I find that this Court has no power to grant directly to the tenants a remedy insuring minimum standards of habitability in their dwellings, I do not mean to imply that conditions of neglect at Warminster Heights are uncorrectable. For certainly the mortgagee, the Federal National Mortgage Association, has ample power to enforce its rights arising out of the mortgage agreement signed by the defendants. Certainly when Congress has stated that we must have a decent home and suitable living environment for every American, and when loans are made to reach that goal, it is an extraordinary paradox that a federal agency does not vigorously enforce the standards provided by the mortgage agreement.
Accordingly, the Clerk of this Court will be directed to send a copy of this Opinion to the Secretary of the Department of Housing and Urban Development for his consideration and for reference to responsible officials of the Federal National Mortgage Association.
In light of the foregoing, plaintiffs' request for declaratory relief will be denied with prejudice and defendants' motion to dismiss in this respect will be granted; plaintiffs' motion for injunctive relief will be denied without prejudice.
The foregoing constitutes findings of fact and conclusions of law in accordance with 52 F.R.C.P.