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Commonwealth of Pennsylvania v. Gittman

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: November 9, 1971.

COMMONWEALTH OF PENNSYLVANIA EX REL. NANCY R. GITTMAN
v.
COLE Y. GITTMAN, JR., DEFENDANT, PETITIONER. (COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNA. CRIMINAL ACTION-LAW, NO. F-15-83, SEPT. TERM, 1970), APPELLANT IN NO. 71-1290. COMMONWEALTH OF PENNSYLVANIA EX REL. NANCY R. GITTMAN V. COLE L. GITTMAN, JR., PETITIONER. (DEFENDANT, COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNA. CRIMINAL ACTION-LAW, NO. F-16-83, SEPT. TERM, 1970. IN CONTEMPT), APPELLANT IN NO. 71-1291

Staley, Adams and Rosenn, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

Appellant Cole Gittman, Jr., was sued by his wife under 18 P.S. § 4733*fn1 for the support and maintenance of his three minor children who reside with her in Pennsylvania. He has claimed that the proceedings required by the State of Pennsylvania in such cases are essentially criminal in nature but fail to guaranty a defendant various constitutional rights.

Pursuant to 28 U.S.C. § 1443,*fn2 the civil rights removal statute, appellant filed a petition to remove the support action filed against him by his wife in the Court of Common Pleas of Delaware County, Pennsylvania, to the District Court for the Eastern District of Pennsylvania. The district court, without a hearing, found that appellant had failed to show he could not enforce his civil rights in the state court. The petition was denied, giving rise to this appeal.

Taking all the allegations of the petition as true, Gittman has failed to make out a case for removal under Section 1443 as interpreted by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966). He has failed to present in his petition any basis for an assertion that he will be denied his equal rights in the Pennsylvania state courts. The case is merely a matrimonial dispute. A removal petition under Section 1443 must allege a specific right under a law in terms of racial equality and a denial of that right in stat court. Georgia v. Rachel, supra, 384 U.S. at 792, 86 S. Ct. 1800. Gittman's petition does neither. See Dillard v. Family Court, Queens County, 404 F.2d 404 (2d Cir. 1968).

Gittman has also failed to make out a case under Section 1441, for on the face of the complaint in this matrimonial controversy there is not a substantial federal question. Gully v. First National Bank of Meridian, 299 U.S. 109, 112, 57 S. Ct. 96, 81 L. Ed. 70 (1936). In any case, a decision on removal under § 1441 is not appealable under 28 U.S.C. § 1447(d).

Although the district court held that appellant's petition was "denied," this court deems that the purport of his order was to remand this case to the Court of Common Pleas of Delaware County. On that basis, the decisions below will be affirmed.

Because of our disposition of this case, we do not consider the merits of appellant's contentions*fn3 or his demands for extraordinary relief from the actions of the state court.


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