The opinion of the court was delivered by: BODY
In this purported class action under F.R. Civ. P. 23, plaintiff has brought suit under 42 U.S.C. § 1983 and 28 U.S.C. § 2201 against the above-named defendants for a declaration of the unconstitutionality of certain Pennsylvania statutes in the area of criminal libel, 18 P.S. §§ 4412, 4413 and 4413.1
and for a permanent injunction against the enforcement of these statutes by the defendants. Plaintiff bases his claim of jurisdiction on 28 U.S.C. §§ 1331, 1343 (Federal Question; Civil Rights and elective franchise).
The criminal complaint which initiated the chain of events leading to the commencement of this civil rights action was filed by Officer Joseph Beck of the Philadelphia Police Department on July 18, 1969. In it he alleged that Marvin Burak, our plaintiff here, in a radio broadcast of July 11, 1969 on Station WXUR, Media, Pennsylvania, made certain "malicious, defamatory, false and libelous statements" which constituted criminal acts under 18 P.S. §§ 4412, 4413.1 and 4302. Our plaintiff commenced his action here on July 23, 1969. An amended complaint, which added allegations of bad faith on the part of defendants, was filed on July 30, 1969.
Since the initial hearing on the question of depositions in this action, the Supreme Court of the United States decided Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) and Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971). Further argument was had before the three-judge court on November 9, 1971 concerning the applicability of these recent decisions to the present civil rights action.
Plaintiff contends that Younger and Samuels are not applicable to our present action. It seems clear, however, that if these cases are applicable, and if our case does not fall within the exceptions to the rule of Younger and Samuels, we are compelled to grant defendants' motions to dismiss because of the "national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances." Younger v. Harris, supra, 401 U.S. at 41, 91 S. Ct. at 749.
Plaintiff notes that the rule of Younger and Samuels is applicable only to "pending" state criminal prosecutions and that, since plaintiff was not indicted until after his federal civil rights suit was filed, there was no pending state criminal prosecution in this case. Plaintiff suggests that the time of indictment or information is the only trigger to the application of the Younger rule. We disagree.
Plaintiff points to a footnote in a prior Supreme Court opinion to justify his position. Dombrowski v. Pfister, 380 U.S. 479, 484 fn. 2, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). Language in that footnote does support plaintiff's position, but since it was not necessary to the decision in that action, we do not find it dispositive of the issue before us.
There is language in a companion case to Younger which suggests that the Supreme Court did not mean to articulate an inflexible rule as to when a criminal prosecution is pending. In Byrne v. Karalexis, 401 U.S. 216, 91 S. Ct. 777, 27 L. Ed. 2d 792 (1971), plaintiff had already been indicted for violation of Massachusetts obscenity laws when he filed his suit for federal declaratory and injunctive relief. Subsequently, however, those indictments were dismissed, though later new indictments were returned. The Supreme Court declared that it would treat the prosecution as if it had been pending at the time the federal suit was begun. Byrne, supra, at 218 fn. 2, 91 S. Ct. 777.
A recent decision in this Circuit held that dismissal of a lawsuit was proper under the authority of Younger and Samuels where the suit had been initiated after the filing of a state criminal complaint but before the grand jury had met. Lewis v. Kugler, 446 F.2d 1343, 1348 fn. 8 (3d Cir. 1971).
We find it noteworthy that in Pennsylvania "Criminal proceedings may be instituted by: 1. A written complaint in any case." Pa. R. Crim. P. 102, 19 P.S. In Philadelphia, within the jurisdiction of the Municipal Court, criminal prosecutions (involving cases where the offense charged carries a maximum sentence of not more than five years imprisonment) occur without any indictment procedure. We do not find it likely, in view of the disparity involved in state criminal prosecutions, that the Supreme Court meant to enunciate a rigid rule concerning the commencement of state criminal prosecutions.
We hold that the state criminal prosecution, commenced by the filing of a criminal complaint by Officer Beck on July 18, 1969, was pending at the time plaintiff filed his federal suit for declaratory and injunctive relief.