The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
In this action the plaintiffs challenge the validity of § 6170, Appendix III of the Regulations of the Pennsylvania Department of Public Welfare
which provides emergency assistance payments to needy recipients for special needs resulting only from civil disorders or natural disasters. The plaintiffs contend that § 6170, Appendix III violates the Social Security Act, 42 U.S.C. §§ 603 (a)(5) and 606(e) and federal regulation 45 C.F.R. § 233.120. The plaintiffs also contend that § 6170, Appendix III is violative of due process and equal protection. The plaintiffs seek injunctive and declaratory relief.
On December 11, 1974, plaintiffs filed their complaint invoking jurisdiction under 28 U.S.C. § 1343(3) and (4) and seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202 and 42 U.S.C. § 1983. On that same day, this Court ordered, pursuant to Rule 65(a)(2) F.R.Civ.P., a consolidated hearing on the motion for a preliminary injunction and a hearing on the merits. The Court ordered further that the parties submit Findings of Fact and Conclusions of Law. The hearing having been held and after due consideration of the briefs and evidence presented at the hearing, the Court has determined that the relief requested by the plaintiffs must be granted.
The essential facts in this case are undisputed. The original plaintiffs herein were Mrs. Viola Williams and the Philadelphia Welfare Rights Organization. Mrs. Williams and her child receive Aid to Families with Dependent Children ["AFDC"]. During a period commencing in 1972 and continuing until December 4, 1974, Mrs. Williams accumulated an electric bill of $456.53. On December 4, 1974, the Philadelphia Electric Company terminated all electric service to Mrs. Williams. Mrs. Williams sought and was denied emergency assistance to pay her electric bill in order to have her electric service restored. However, in reviewing the record of payments which she had received from the Department of Welfare, it was determined that an administrative error had been made as to payments which she had received and on or about December 17, 1974, she received an additional lump sum payment from the Pennsylvania Department of Public Welfare in the amount of $627.50. This lump sum payment was more than sufficient to pay her past due electric bill thereby obviating the immediate need of Mrs. Williams. On the day before the hearing commenced, a motion to intervene was filed on behalf of additional named plaintiffs, Geraldine Little, Mary Witt, Beatrice Carmona and Esther Saez.
At the time of the hearing, the parties agreed that if these intervening plaintiffs were to testify, their testimony would be the same as that contained in their affidavits submitted with their motion to intervene. It is sufficient for our purpose to state that these four intervening plaintiffs are all AFDC welfare recipients who have found themselves in emergency situations and who, except for Mrs. Witt, sought assistance from the Department of Public Welfare and were denied relief. The situations presented by the intervening plaintiffs can be summarized as follows: Mrs. Witt, Mrs. Carmona and Mrs. Saez are all mothers who qualify for AFDC assistance. They all received notice of eviction from their respective landlords and were unable to obtain other dwellings for themselves and their children because they could not afford the security deposits required. Mrs. Little and her children are also AFDC recipients. She had an outstanding water bill which she could not pay.
Although some of the situations presented by the plaintiffs have been remedied as a result of aid from other sources, this action is not moot because it is clear that the issue presented is of public importance "capable of repetition, yet evading review". United States v. W.T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911); Groff v. Wohlgemuth, 328 F. Supp. 1016 (E.D.Pa.1971); Adens v. Sailer, 312 F. Supp. 923 (E.D.Pa.1970). The occurrences presented by these plaintiffs are "capable of repetition".
The plaintiffs have brought this action under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343(3) and (4). Plaintiffs contend that § 6170, Appendix III of the Pennsylvania Manual violates the equal protection and due process clauses of the Fourteenth Amendment. Additionally, plaintiffs contend that § 6170, Appendix III is inconsistent with the federal Social Security Act and the federal regulations promulgated thereunder, and is therefore invalid by virtue of the Supremacy Clause of the United States Constitution.
A consideration of the merits of the plaintiffs' constitutional claim requires the convening of a three-judge court. Plaintiffs' statutory Supremacy Clause claim, however, should be decided by the single-judge district court provided there is jurisdiction. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974); Doe v. Beal, 523 F.2d 611 (3rd Cir. 1975).
Our Third Circuit in Doe v. Beal, supra, set forth the procedure to be followed by a district court judge in these cases:
In Hagans v. Lavine, supra, 415 U.S. at 543-44, 94 S. Ct. 1372 the Supreme Court pointed out that a single district judge can grant both declaratory and injunctive relief on statutory grounds in a case such as this, using this language (415 U.S. 543, 94 S. Ct. 1372):
"Given a constitutional question over which the District Court has jurisdiction, it also had jurisdiction over the 'statutory' claim. See supra, at 536, 94 S. Ct. 1372. The later was to be decided first and the former not reached if the statutory claim was dispositive. [Citing cases.] The constitutional claim could be adjudicated only by a three-judge court, but the statutory claim was within the jurisdiction of a single district judge. [Citing cases.] Thus, the District Judge, sitting alone, moved directly to the statutory claim. His decision was appealed to the Court of Appeals, although had a three-judge court been convened, an injunction issued, and the statutory ground alone decided, the appeal would be only to this Court under 28 U.S.C. § 1253."
The court went on to state at 543-45, 94 S. Ct. 1372:
"The procedure followed by the District Court -- initial determination of substantiality and then adjudication of the 'statutory' claim without convening a three-judge court -- . . . accurately reflects the recent evolution of three-judge court jurisprudence . . .
"It is true that the constitutional claim would warrant convening a three-judge court and that if a single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional issue. Nevertheless, the coincidence of a constitutional and statutory claim should not automatically require a single-judge district court to defer to a three-judge panel, which, in view of what we have said in Rosado v. Wyman, supra, [397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442] could then merely pass the statutory claim back to the single judge. [Citing cases.] 'In fact, it would be grossly inefficient to send a three-judge court a claim which will only be sent immediately back. This inefficiency is especially apparent if the single judge's decision resolves the case, for there is then no need to convene the three judge court.' [Citing case.] Section 2281 does not forbid this practice, and we are not inclined to read that statute 'in isolation with mutilating literalness . . . .'"
We have quoted the foregoing because we hold at this time that the majority opinion in Murrow v. Clifford, 502 F.2d 1066 (3d Cir. 1974), will not be followed insofar as it is inconsistent with (a) part II of Hagans v. Lavine, supra, and (b) this opinion. (Footnote omitted).
The single-judge district court must first determine whether the plaintiff's constitutional claim is "of sufficient substance to support federal jurisdiction" under 28 U.S.C. § 1343. Hagans v. Lavine, supra at 536, 94 S. Ct. at 1378. In the event the single-judge district court determines that the complaint has raised a constitutional claim of sufficient substance to support federal jurisdiction, he must then determine, as a matter of pendent jurisdiction, the claim of conflict between the federal and the state law.
If the single-judge district court rejects the plaintiff's statutory Supremacy Clause claim, then and only then must a three-judge court be convened to consider the plaintiff's constitutional claim. See also, McLaughlin v. Wohlgemuth, 398 F. Supp. 269 (E.D.Pa.1975).
The complaint herein alleges a deprivation, under color of state law, of the plaintiffs' constitutional rights. The plaintiffs contend that § 6170, Appendix III violates the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. Specifically, it is asserted that Pennsylvania Department of Public Welfare Regulation § 6170, Appendix III has created an invidious classification which is irrational and serves no legitimate public interest, in that it creates a class of recipients composed of those whose destitution is caused by civil disorder or natural disaster and ignores all those whose destitution is caused by some other emergency. Plaintiffs contend that these classifications treat similarly situated people differently and therefore constitute a deprivation of equal protection. In addition, the plaintiffs contend that the defendants have created a conclusive and irrebuttable presumption that only people who suffer a civil disorder or a natural disaster are in need of emergency assistance and that this violates due process.
In Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970), AFDC recipients challenged the Maryland maximum grant regulation on equal protection grounds. The Supreme Court held that the issue should be resolved by inquiring whether the classification had a rational basis. Finding that it did, the Supreme Court sustained the regulation. In Hagans v. Lavine, supra 415 U.S. at 539, 94 S. Ct. at 138, the Supreme Court admonished that " Dandridge evinced no intention to suspend the operation of the Equal Protection Clause in the field of social welfare law" and that "State laws and regulations must still 'be rationally based and free from invidious discrimination.'" We are unaware of any cases in the Supreme Court dealing with this constitutional issue which have settled the matter one way or the other.
It is not obvious to us from the face of the complaint that providing emergency assistance payments to eligible recipients only when they encounter a civil disorder or natural disaster is so patently rational as to require no meaningful consideration. Thus, it is the determination of this Court that the plaintiffs' claim of violation of equal protection raises a constitutional claim of sufficient substance to support federal jurisdiction and, accordingly, federal jurisdiction is properly invoked under 28 U.S.C. § 1343. The Court's determination that federal jurisdiction exists is not a disposition of the plaintiffs' constitutional claim since such a disposition is exclusively within the province of a three-judge court. We must, however, proceed now to consider the plaintiffs' pendent claim that the Pennsylvania regulation is inconsistent with applicable federal law.
Certification of the Class.
The plaintiffs have made a timely motion, which is unopposed by the defendants, to certify this case as a class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. The proposed class would consist of "all citizens and bona fide residents of the Commonwealth of Pennsylvania who are recipients of Aid to Families with Dependent Children, who require emergency assistance pursuant to 42 U.S.C. §§ 603(a)(5) and 606(e), and whose need for emergency assistance in addition to their regular assistance grants was beyond their control and the granting of emergency assistance will avoid destitution, but who will in the future be denied the emergency assistance." There being no opposition from the defendants and it appearing that the plaintiffs have met the requirements of Rule 23(a) and 23(b)(2), this case shall proceed as a class action in accordance with the above definition of the class.
The plaintiffs attack the Pennsylvania Emergency Assistance program as promulgated in § 6170, Appendix III of the Pennsylvania Manual on the ground that only special needs resulting from civil disorders and natural disasters entitle them to relief and they contend that 42 U.S.C. §§ 603(a)(5) and 606(e) and federal regulation 45 C.F.R. § 233.120 require that emergency assistance be provided to all eligible recipients when they encounter an emergency in order to "avoid destitution".
Under the "Payments to States" section of the AFDC provisions of the Social Security Act, Congress provided in 42 U.S.C. § 603(a)(5):
(a) From the sums appropriated therefor, the Secretary of the Treasury shall . . . pay to each State which has an approved plan for aid and services ...