APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil Action No. 70-3303
Hastie, Aldisert and Weis, Circuit Judges.
In September of 1970 Susan Gross, the plaintiff-appellee, became a tenant of defendant Devon-Strafford Company, owner of an apartment building. In November of the same year Devon-Strafford caused the defendant J. Wilson Fox, a deputy constable, to execute a distraint upon Gross' possessions, pursuant to the Pennsylvania Landlord and Tenant Act of 1951, 68 P.S. § 250.302. Fox entered the leased premises, removed a television and a clock-radio, and posted a distraint notice on the outside of the apartment door.
Plaintiff then filed her original complaint, denominating it a class action on behalf of all renters of real property in Pennsylvania. She requested temporary and permanent injunctive relief, as well as a declaration that the distraint statute was unconstitutional on its face. She made no request for damages in that complaint.
After a three-judge district court had been convened to hear the case, the defendant returned the television and the clock-radio and withdrew the distraint.
Following an initial hearing in January 1971, the district court determined that Gross would not fairly and adequately represent the class and denied class action status to the suit.*fn1 In April 1971 Gross, pursuant to notice that she had given, vacated the premises and terminated her lease. She subsequently filed an amended complaint which contained three counts and again purported to be a class action.*fn2 Count I was substantially the same as the initial complaint; count II sought damages under both the United States Constitution and Pennsylvania law for Fox's entries into her home and removal of her property; and count III sought damages in libel based on the language of the publicly exposed distraint notice.
The court severed counts II and III from the amended complaint for trial before a single judge. The three-judge court held another hearing on count I, and, on a stipulated set of facts, eventually*fn3 granted plaintiff the declaratory judgment from which defendants took the present appeal.*fn4 That judgment declared the distraint statute to be unconstitutional on its face for failure to require prior notice and hearing.
Appellants urge that the controversy over the constitutionality of the statute was mooted when Gross vacated the leased premises. Appellee predicates her contrary contention upon the circumstance that her claim for damages, still pending before a single judge, may depend upon the constitutionality of the distraint statute. Thus, the decision appealed from may have a function in the resolution of an outstanding controversy.
But the district court can face the constitutional question if and when it is presented in the damage action. Plaintiff has no need of a separate judgment declaring the statute void, for her only interest is in recovery of damages. Although necessity is not always a prerequisite to declaratory relief,*fn5 in this case the lack of need combines with several independent factors to cause us to conclude that declaratory relief should have been denied,*fn6 whether or not, in a technical view, the controversy is moot.
First, courts generally try to avoid reaching constitutional issues, especially where, as here, a federal court is asked to pass on a state statute, and the question is not free from doubt. The damage action may be decided without resolution of the constitutional issue, if the facts are disputed,*fn7 or if a defense of immunity or good faith is asserted,*fn8 or if Constable Fox should be held not to be a state official.*fn9
Second, this declaratory judgment would not terminate the controversy between the parties, a significant factor in deciding whether it was appropriate to enter the judgment.*fn10
Third, the Commonwealth of Pennsylvania did not appear below nor is it before us now. The record shows that counsel advised the Attorney General's office of the existence of the case in February 1972. Although notification was tardy -- the complaint was filed in December 1970 -- there was probably sufficient time for the Commonwealth to defend the statute, if it had so elected. The record offers no reason for the state's failure ...