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April 10, 1972

David E. GROSHENS, President Judge of the Court of Common Pleas of Montgomery County and Elmer Lentz

Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

EDWARD R. BECKER, District Judge.

 This is a civil rights action brought against David E. Groshens, the President Judge of the Court of Common Pleas of Montgomery County, Pennsylvania, and Elmer Lentz, the Court's Chief Domestic Relations Officer. The plaintiff, Joseph R. Thompson ("Thompson"), who is a respondent in support proceedings brought against him in that Court by his estranged wife Joan Thompson, seeks declaratory and injunctive relief for alleged violations by the defendants of his civil rights in connection with those proceedings. He also requests that a three-judge court be convened to declare unconstitutional, either facially or as applied, § 733 of the Pennsylvania Penal Code, 18 Purdon Stat. § 4733, under which the support charges against him were brought. *fn1" Section 733 is the traditional umbrella for support actions in Pennsylvania. *fn2" Jurisdiction is asserted under 28 U.S.C. § 1331, § 1334(3) & (4), 42 U.S.C. § 1983, 28 U.S.C. §§ 2281-2284 and 28 U.S.C. §§ 2201, 02. The matter comes before us on the motions of Judge Groshens and Mr. Lentz under Rule 12(b) Fed. R. Civ. P. to dismiss the complaint. For a variety of reasons, we grant their motions. We turn first, however, to a review of the facts set forth in the complaint and the other facts of which we may take judicial notice.

 On November 6, 1969, following the filing of Mrs. Thompson's complaint, a hearing was held before Judge Groshens, at which Mrs. Thompson testified, and as the result of which Judge Groshens entered a temporary order requiring Thompson to make support payments to Mrs. Thompson of $80 a week. A final hearing was held on February 4, 1970, during which Thompson completed his testimony and defense; pending oral argument and the submission of briefs, Judge Groshens continued the temporary order, which remained in effect until June 23, 1970, when Judge Groshens entered a final order reducing the weekly support payments from $80 to $60 per week. Thompson appealed this final order to the Superior Court of Pennsylvania, No. 1197 October Term 1970. In his appeal, he challenged not only the trial court's finding of his obligation to provide support, but also the constitutionality of § 733, claiming that it violated the due process clause of the Fourteenth Amendment (the precise nature of the constitutional claims are discussed, infra). The Superior Court affirmed Judge Groshens per curiam without opinion on December 10, 1970. Commonwealth ex rel. Thompson v. Thompson, 217 Pa. Super. 874, 272 A. 2d 189 (1970). On January 7, 1971, Thompson filed a timely petition for Allowance of Appeal to the Supreme Court of Pennsylvania, again attacking the constitutionality of the Statute. Miscellaneous Docket No. 18, No. 494-A. This petition was denied on August 16, 1971.

 On September 9, 1971, Thompson filed with the Montgomery County Prothonotary, pursuant to 28 U.S.C. § 1257(2), a notice of appeal to the United States Supreme Court. The jurisdictional statement which he subsequently filed with the Supreme Court revealed that he was challenging the Desertion and Nonsupport Statute on the same grounds as he did in the state courts. After the notice of appeal was filed (although before the appeal had been perfected by the filing of the jurisdictional statement) a hearing was scheduled before Judge Groshens on a petition which Mrs. Thompson had previously filed in April 1971 seeking an increase in the support order due to allegedly increased medical expenses. She had sought a hearing on her petition at the time she filed it, but Judge A. Benjamin Scirica of the Montgomery County Court of Common Pleas had ordered the proceedings stayed on the ground that the court had no authority to modify an order from which an appeal had been taken. *fn3" However, Judge Groshens refused to continue the hearing on Mrs. Thompson's petition which was listed before him on October 19, 1971, and a subpoena was served on Mr. Thompson at the behest of Mr. Lentz with the legend that a bench warrant for his arrest would be issued if he failed to appear. *fn4"

 These latter events precipitated the filing of the present lawsuit. In it Thompson has made essentially the same constitutional allegations as he made before the State Supreme Court and the United States Supreme Court. However, Thompson's principal contention, as he presented it to us, was that the holding of a hearing by Judge Groshens would "interfere with the appellate jurisdiction of the United States Supreme Court".

 After Judge Groshens was served with the complaint, he referred it to the Attorney General of Pennsylvania for defense. *fn5" Nevertheless, sua sponte, he continued the scheduled hearing. At a conference of counsel in chambers, we denied Thompson's request for a temporary restraining order. Defendants thereupon filed their motions to dismiss and we have heard argument and have received briefs with respect to same. On March 6, 1972, the United States Supreme Court dismissed the appeal, and treated it as a petition for a writ of certiorari, which it denied.

(1) the arbitrary and capricious entering of the final order contrary to the evidence;
(2) the entering of a temporary order before he (Thompson) had completed his defense; and
(3) the entering of a temporary order which required him to pay over $2,500 before he could appeal.

 His claims encompass an attack on the constitutionality of § 733 on the grounds that it:

(1) permits retroactive support orders and gives the court authority to commit a husband to prison if he fails ...

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