the view outlined in Santiago and accordingly hold that we have jurisdiction over plaintiffs' constitutional claims.
Before reaching the merits, it is necessary to consider defendants' contention that we must abstain.
This action is brought under the federal Civil Rights Act, raising federal constitutional claims. Abstention in such cases is appropriate only when there is an unresolved question of state law which only the state courts can authoritatively construe. Lewis v. Kugler, 446 F.2d 1343, 1346 (3d Cir. 1971). King-Smith v. Aaron, et al., 455 F.2d 378 (3d Cir. 1972), at pp. 381-382.) However, that certain state judicial remedies may exist in the circumstances of this case is not a sufficient reason for refusing to exercise our jurisdiction. With certain exceptions,
exhaustion of state remedies is not necessary under the Civil Rights Act. Monroe v. Pape, 365 U.S. 167, 180-183, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 672, 83 S. Ct. 1433, 10 L. Ed. 2d 622 (1963); Santiago v. McElroy, 319 F. Supp. 284, 292 (E.D. Pa. 1970). Rather, the propriety of abstention turns on the issue whether there is an unresolved question of state law determination of which might make unnecessary the consideration of federal constitutional claims. Askew v. Hargrave, 401 U.S. 476, 478, 91 S. Ct. 856, 28 L. Ed. 2d 196 (1971); Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970); Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941); University Day Care Center v. Temple University, 442 F.2d 1116 (3d Cir. 1971). The critical inquiry, therefore, on the question of the applicability of the abstention doctrine to the instant case is whether there is an uncertain state law issue. Defendants contend there is. We disagree.
The Defendants' chief argument on this score is simple. First, recognizing that the remedy of replevin with bond to regain possession of their personal property from distraining landlords is unavailable as a practical matter to low income tenants, because of financial inability to post a bond, they argue that the unresolved state law question which compels abstention is whether or not a tenant can stop a sale pursuant to 68 P.S. § 250.309 of distressed goods and retain or regain possession thereof by bringing the action in replevin, provided for in 68 P.S. § 250.306, without bond.5 Second, defendants argue that were Pennsylvania courts to hold that the remedy of replevin without bond carries such consequences, this would cure any federal constitutional infirmity in the Pennsylvania statutory scheme.
Although we are not aware of any decision in which the Pennsylvania Supreme Court has faced the question whether replevin by a tenant under 68 P.S. § 250.306 must be with bond in order to halt the sale of distressed personal property, we believe the law of Pennsylvania is sufficiently clear that only replevin with bond achieves this result. 68 P.S. § 250.306; Pa. R.C.P. 1073; Pambosh Industries, Inc. v. Pittsburgh Western Land Corp., 30 Pa. Dist. & Co. R. 2d 712, 111 Pitts. Leg. J. 327 (1963); Degillio v. Harry F. Goeringer & Sons, 39 Pa. Dist. & Co. R. 2d 691 (1966).
Defendants cite Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970), in which the Supreme Court vacated the judgment of a three-judge court which had declared unconstitutional and enjoined enforcement of certain fishing laws and regulations of Alaska. The statute and regulations challenged in Reetz restricted eligibility for salmon net gear licenses for any particular area to those who had previously held such licenses or had for any three years held a commercial license and had fished in that particular area. The plaintiffs were nonresident commercial salmon fishermen who were, by virtue of the statute and regulations under it, ineligible for licenses, and in their suit they attacked the statute on both federal and state constitutional grounds. The Alaska constitution deals specifically in two sections with fishing rights. In vacating the judgment of the lower court, the Court found significance in the fact that the Alaska constitutional provisions were directly related to the "same unique resource" which was the subject matter of the statute and regulations, and the Court was able to say "here the nub of the whole controversy may be the state constitution." 397 U.S. at 87, 90 S. Ct. at 790.
That is not this case. We are cited to no provision of the Pennsylvania Constitution directly relating to the respective rights of landlords and tenants. The defendants urge us to abstain to afford the Pennsylvania courts an opportunity to adopt a narrowing construction of the Pennsylvania statute which might obviate the necessity of reaching the constitutional questions presented here. In the circumstances of Reetz, that contention may have some force. There, the laws in question were passed in 1968, and the regulations involved had been in effect for less than a year. The landlord and tenant provisions under attack in the instant case have been in effect for twenty years, ample time for a narrowing construction had one been forthcoming. Likewise, defendants' reliance upon Fornaris v. Ridge Tool Co. et al., 400 U.S. 41, 91 S. Ct. 156, 27 L. Ed. 2d 174 (1970), appears to us misplaced. The statute involved in that case was Puerto Rico's Dealer's Contract Law, which provided that a Puerto Rican dealer's contract with a manufacturer is renewable indefinitely at the option of the local dealer unless the manufacturer has "just cause" to terminate. The Court reversed the decision of the Court of Appeals for the First Circuit, which had held unconstitutional those provisions of the Dealer's Contract Law having the effect of an impermissible retroactive alteration of contractual provisions. In reversing the Court of Appeals, the Supreme Court specifically adverted to its pronouncement in Bonet v. Texas Co., 308 U.S. 463, 471, 60 S. Ct. 349, 84 L. Ed. 401 (1950) that, since Puerto Rico is a Spanish-speaking Commonwealth with a set of laws still impregnated with the Spanish tradition, "a Puerto Rican court should not be overruled on its construction of local law unless it could be said to be 'inescapably wrong,'" 400 U.S. at 43, 91 S. Ct. at 157, and noted that the "rather vague Puerto Rican law" had not been authoritatively construed by the Supreme Court of Puerto Rico. The special circumstances which required abstention in Fornaris are not present here. Haakenson v. Parkhouse, 312 F. Supp. 929 (E.D. Pa. 1970), cited by Defendants, bears a strong resemblance to Reetz v. Bozanich, supra, and is inapposite for the same reason. In Haakenson, the statute relating to absentee ballots was a 1968 enactment, and the federal constitutional argument was dependent on the plaintiffs' claim that the statute was violative of a provision of the Pennsylvania Constitution, which had never been construed by the Pennsylvania courts, directly relating to absentee ballots. 312 F. Supp. at 933-934.
We hold, therefore, that abstention would be inappropriate in the circumstances of this case.
We define the class of plaintiffs to be the class of low income tenants residing in York County, Pennsylvania. By "low income tenants" we mean the class of tenants who have an income which qualifies them as "poor" under the guidelines periodically published by the Office of Economic Opportunity.
The plaintiffs' arguments that the Pennsylvania statute is unconstitutional are three in number: first, they argue that the statutory scheme is unconstitutional on its face because, by virtue of the statute, any tenant may be deprived of his property without notice and an opportunity to defend in violation of the due process clause of the Fourteenth Amendment; second, they argue that the Pennsylvania statutory scheme is unconstitutional on its face and as applied to the plaintiffs and the class they purport to represent because its requirement of a bond in the amount of twice the value of the property distrained as a condition to presenting legal defenses to a landlord's action in distraint creates an invidious discrimination based upon wealth and, therefore, denies them equal protection of the law; finally, the plaintiffs contend that "the mechanics of the procedure create an opportunity for abuses which accentuate the difficulties . . . [arising from the above features of the Act] . . . and lead to unjustified infringements upon the constitutionally protected rights of privacy and the sanctity of the home."
The question whether distress sales pursuant to 68 P.S. § 250.309 amount to a deprivation of property without procedural due process in light of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), was fully examined in the opinion of the court in Santiago v. McElroy, 319 F. Supp. 284, 293-295 (E.D. Pa. 1970), and we adopt the views set forth there in holding that the provision authorizing sale of the tenant's property after distress violates the due process clause of the Fourteenth Amendment. We agree that the fact the Landlord and Tenant Act of 1951 provides for a statutory exemption from levy and sale is not sufficient to redeem the statutory scheme because the exemption is "not sufficiently generous to leaven the impact of the loss in a substantial manner." Santiago v. McElroy, supra, at 294. When they do not follow a hearing, before a tenant is deprived of his property, distress sales violate the principles of due process.
IV. CONCLUSIONS OF LAW
1. This Court has jurisdiction over plaintiffs' constitutional claims by virtue of 28 U.S.C. § 1343(3). See Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424, (1972).
2. Under the circumstances of this case, abstention would be inappropriate. The motion to stay and the motion to dismiss will be denied.
3. This action is determined to be a class action on behalf of the class of low income tenants residing in York County, Pennsylvania, whose income qualifies them as "poor" under the guidelines published periodically by the Office of Economic Opportunity.
4. The distress sale provision of the Pennsylvania Landlord and Tenant Act of 1951, 68 Pa. Stat. Ann. § 250.309, is violative of the due process clause of the United States Constitution and therefore invalid and void insofar as it provides for sales of goods found upon leased premises without a prior due process hearing.
5. The defendants, their agents and employees and all persons acting through, by and under them, will be permanently enjoined from selling, threatening to sell, advertising for sale, or removing from the leased premises, any property belonging to, or found in the homes of, members of the plaintiff class, pursuant to or under color of the provisions of the Pennsylvania law herein declared to be invalid and void.
6. Pursuant to Rule 23(d)(2) of the Federal Rules of Civil Procedure, the defendants, their agents and employees, and all persons acting through, by or under them, will be ordered to give notice of this judgment to members of the plaintiff class by including such notification in any notice of distraint hereunder issued which is or may be directed to a member of the plaintiff class.
7. The defendant Lucabaugh, his agents and employees, and all persons acting through, by and under him, will be permanently enjoined from breaking and entering any property occupied by members of the plaintiff class in order to execute a levy on property belonging to or found in the homes of such members of the plaintiff class under 68 P.S. § 250.302.
See LaPrease v. Raymours Furniture Co., Inc., 315 F. Supp. 716 (N.D.N.Y. 1970); cf. Camara v. Municipal Court, 387 U.S. 523, 530-531, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1966).
Counsel will submit within 30 days an appropriate order in accordance with the foregoing.