The opinion of the court was delivered by: MUIR
This is a proceeding for injunctive relief which raises the issue whether Article III, Sections 302 et seq. of the Pennsylvania Landlord and Tenant Act of 1951 is facially unconstitutional or unconstitutional as applied to plaintiffs and the class they seek to represent in these proceedings.
Jurisdiction is predicated upon 28 U.S.C. § 1331, § 1343(3), § 1343(4), § 2201 and § 2281. A three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284.
Upon the petition and affidavits of plaintiffs George and Dorothy Musselman, Eugene and Judith Newcomer, leave to commence and proceed in forma pauperis was granted, and the complaint was filed. The Judge to whom the petition was presented issued the following temporary restraining order:
"Now, therefore, on motion of plaintiffs, it is ORDERED that the defendants Alvine K. Spies and Malden H. Lucabaugh, their agents, servants and employees, and all persons acting by, through or under them or by their order be, and they hereby are, restrained from selling any property belonging to the plaintiffs, George and Dorothy Musselman and Eugene and Judith Newcomer or found in their homes at Grantview Road, R.D. #3, Hanover, Pennsylvania and 906 West College Avenue, York, Pennsylvania, respectively and from entering or attempting to enter these premises or otherwise interfering with the plaintiffs' possession and control of the aforementioned personal property on the aforementioned leased premises, pursuant to or under color of Article III, Section 302 et seq., of the Pennsylvania Landlord and Tenant Act of 1951 (1951), April 6, P.L. 69 Section 302 et seq.; 68 P.S. Section 250.302 et seq. (1965)."
Subsequently, the temporary restraining order was extended pending a hearing on the application for a preliminary injunction. Defendants John Keesey, George Hansford, Ira W. Keech and Ralph D. Leber filed motions to dismiss and upon motion of the plaintiffs, these defendants were dropped from the suit. Defendants Bobby R. Johnson, James B. Singley, and Stanley L. Keller were also dropped as defendants on motion of plaintiffs on January 14, 1971. Thereafter, Defendant Malden H. Lucabaugh filed a motion to stay the proceedings pending a construction of the Pennsylvania statutes involved by the Pennsylvania courts and requesting for that reason that the court abstain. The three-judge court heard testimony on the plaintiffs' application and heard oral argument on defendant Alvine K. Spies' motion to stay. Decision on the motion to stay was reserved. At the close of the plaintiffs' case, defendant Alvine Spies moved to dismiss, and after oral argument the motion was denied without prejudice to his right to renew it at the close of the defendants' case. At the close of the defendants' case, Spies renewed his motion to dismiss and the matter was reserved for decision. On the same day, the Court enlarged the scope of the temporary restraining order previously entered by entering the following order amending the same:
"It is ordered that the defendants, Alvine K. Spies and Malden H. Lucabaugh and other constables of York County who are members of such class of constables of York County represented by Alvine K. Spies and Malden H. Lucabaugh, their agents, servants, and employees and all persons acting by, through or under them, or by their order, be and they hereby are restrained from advertising for sale, threatening to sell or selling any property belonging to 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, such guidelines being most recently stated in OEO Instruction 6004-1(b), effective December 1, 1970; and from entering or attempting to enter premises of such persons or otherwise interfering with the plaintiffs' possession or control of the personal property on such leased premises pursuant to or under color of 68 P.S. § 250.309."
1. Plaintiffs George and Dorothy Musselman are husband and wife, who at the time of the hearing in this matter resided at Gettysburg, R.D. #5, White Run Road, Pennsylvania.
2. The remaining eight defendants herein are constables of York County, Pennsylvania.
3. On May 6, 1970, the Musselmans and their six children occupied a farmhouse in Spring Grove, Pennsylvania, which they rented for $40.00 per month.
4. The family's income at that time consisted solely of the earnings of Mr. Musselman, which amounted to $80.00 or $90.00 per week, and the Musselmans' assets consisted of various household items and furniture valued at less than $100.00. Finance companies held title to a 1961 Chevrolet truck and a 1961 Ford Falcon which the Musselmans used.
6. A hearing on the Landlord and Tenant complaint was held at the offices of Justice of the Peace Margaret Bealing, Glenville, Pennsylvania. Mrs. Musselman was present and was represented by Joseph Flynn of Tri-County Legal Services, York, Pennsylvania.
7. On May 1, 1970, the landlord obtained an order for possession of the premises, a copy of which was personally served upon the plaintiffs the same day. The order, signed by the Justice of the Peace, required ...