The opinion of the court was delivered by: LORD, JR.
JOHN W. LORD, Jr., Chief Judge.
Presently before the Court is Defendants' Motion to Dismiss and/or Motion for Summary Judgment. The Plaintiffs, who are residents of East Coventry Township, Chester County, Pennsylvania, have filed a Civil Rights Complaint against their township and its Supervisors. In their complaint, Plaintiffs pray for declaratory, injunctive, and compensatory relief and seek to have declared unconstitutional the township's zoning ordinance and building code ordinance. Plaintiffs pray a three-judge court be designated pursuant to 28 U.S.C. 2281 and 2284.
A three-judge court may only be convened if there is a substantial, non-frivolous attack upon the constitutionality of a state statute, but not otherwise. Swift & Co. v. Wickham, 382 U.S. 111, 115, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). Moreover, the term "statute," as employed in Section 2281, does not encompass municipal ordinances. Ascheim v. Quinlan, 314 F. Supp 685, 689 (W.D. Pa. 1970); Landry v. Daley, 280 F. Supp. 929, 937 (N.D. Ill. 1967); Moody v. Flowers, 387 U.S. 97, 101-102, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1966); Ex parte Collins, 277 U.S. 565, 567, 48 S. Ct. 585, 72 L. Ed. 990 (1928). Attacks upon the ordinances of a governmental subdivision are triable only before a single judge court. Ascheim v. Quinlan, 314 F. Supp. 685, 689 (W.D. Pa. 1970). Therefore, Plaintiffs' request that a three-judge court be convened is denied.
As to the issue of declaratory, injunctive, and compensatory relief, Plaintiffs pray this Court restrain the Defendants from preventing Plaintiffs' establishment of a seventy foot by twelve foot mobile home as a permanent single-family residence on a four acre tract of land in East Coventry Township. Jurisdiction over the parties and subject matter is premised on the Civil Rights Act, 42 U.S.C. 1981 et seq. and the Interstate Commerce Clause of the United States Constitution.
The Defendants move for dismissal and/or summary judgment on four grounds:
1. The Court lacks jurisdiction over the parties and subject matter of the present action.
2. The Defendant Supervisors are immune from suit.
3. Plaintiffs' Complaint fails to state a claim upon which relief can be granted.
4. The Court should abstain from assuming jurisdiction over a municipal zoning and building dispute where Plaintiffs have failed to exhaust their administrative and judicial remedies available under the ordinances and laws of the Township of East Coventry and the Commonwealth of Pennsylvania.
I. Lack of Jurisdiction Over the Parties and Subject Matter.
As to the first ground, Defendant East Coventry Township asserts that a municipal corporation is not a "person" within the meaning of the Civil Rights Act and is therefore not subject to the jurisdiction of the act. The law is clear that Plaintiffs cannot recover money damages from a municipal corporation; however, when injunctive or declaratory relief is sought a municipal corporation is subject to suit under the Civil Rights Act. Service Employees International Union, AFL-CIO v. County of Butler, Pennsylvania, 306 F. Supp. 1080 (W.D. Pa. 1969); Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969); Adams v. City of Park Ridge, 293 F.2d 585 (7th Cir., 1961). Plaintiffs' Complaint raises the substantial constitutional issues of due process of law and equal protection under the law in that in order for Plaintiffs to avail themselves of the administratives remedies provided in the township's zoning ordinance and building code ordinance, Plaintiffs would allegedly have to pay a $750.00 filing fee. Plaintiffs' conjugal annual income, after taxes, is $8,000.00. Clearly, a filing fee which equals approximately ten percent of Plaintiffs' annual income acts as a bar to their administrative remedies. Jurisdiction, in the face of such a bar, is properly founded upon the Civil Rights Act as a deprivation of due process and equal protection under the law.
In the light of the Court's decision as to proper jurisdiction under 42 U.S.C. 1981 et seq., we do not find it necessary to comment on the allegation of jurisdiction under the Interstate ...