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April 30, 1976

Adam J. CHLYSTEK and Helen Chlystek, Plaintiffs,
Rita Wilson KANE, Individually and as Register of Wills and Ex Officio Clerk of Court of the Orphans' Court of Allegheny County, Pennsylvania, Defendant

The opinion of the court was delivered by: DUMBAULD

 The male plaintiff in this case like "The Thane of Fife had a wife: Where is she now?" *fn1" Apparently she is alive and well, whether living in Paris or elsewhere, and has not been done to death by the lawless violence of a Macbeth. It is because she lives that this litigation lives also.

 It seems that the matrimonial bond between said wife and male plaintiff was severed at her instance on October 31, 1944, at 229 October Term 1944 in the Court of Common Pleas of Allegheny County, Pennsylvania, on the grounds of adultery between male plaintiff and female plaintiff.

 For the last thirty-five years, the complaint alleges, male and female plaintiffs have been cohabiting together as husband and wife, and have raised four children aged from 34 to 26.

 Desiring to consecrate their status by ceremonial marriage, in order to assure the wife of Social Security benefits as a widow upon the male husband's death, they apparently sought a license from defendant, the Register of Wills of Allegheny County, Pennsylvania (though this is not alleged in the Complaint, see pars. 14 & 15, using present tense). Apparently the defendant denied the license, relying upon the Act of August 22, 1953, P.L. 1344, 48 P.S. 1-5(h) (although this is also not alleged in the Complaint).

 That statute provides: "No license to marry shall be issued by any clerk of the orphans' court: . . .

 (h) To a person divorced by his or her former spouse on the grounds of adultery, for the marriage of such person to the person with whom the crime of adultery was committed, during the lifetime of the former husband or wife."

 Apparently this legislation supersedes the Act of March 13, 1815, P.L. 150, 48 P.S. 169, which reads:

 "The husband or wife, who shall have been guilty of the crime of adultery, shall not marry the person with whom the said crime was committed during the life of the former wife or husband; but nothing herein contained shall be construed to extend to or affect or render illegitimate any children born of the body of the wife during coverture." *fn2"

 Both statutes refer to "the crime of adultery." It is therefore arguable that the language should be construed as applicable only to cases where criminal prosecution for that crime has resulted in conviction, and the disability to marry may be regarded as a species of supplemental penalty (similar to disqualification to vote, or to testify in court). It is not clear what if any criminal punishment was visited upon adulterers by Pennsylvania law in 1944; but it seems highly improbable that either of the plaintiffs were convicted and sentenced for that offense. Accordingly the statutory provisions may be inapplicable to them, and no constitutional questions presented by the case. But this is basically a question for the State courts to resolve, as is true of matters relating to marriage and divorce in general. Blank v. Blank, 320 F. Supp. 1389, 1390-92 (W.D.Pa.1971).

 Is the instant litigation such that it requires the attention of a three-judge district court? From the unprinted opinion of the Court of Appeals in the instant case [reported at 529 F.2d 511 (Table)] we learn that it is error to deny a three-judge court on the ground that no substantial federal question is presented unless plaintiff's claim is frivolous in the sense of being "wholly foreclosed by prior Supreme Court decisions" (p. 4 of unprinted opinion at No. 75-1756, filed December 30, 1975). It remains for us to determine "whether the other conditions precedent to convening a three-judge court were satisfied." (Ibid., p. 5).

 For additional guidance as to the requisites for a three-judge court, there is available the able discussion by Judge Leland C. Nielsen, *fn3" "Three-Judge Courts: A Comprehensive Study," 66 F.R.D. 495-527 (1975); and the excellent address of Judge Walter K. Stapleton, *fn4" "The State of the Art in Three Judge District Courts" (typewritten address of September 9, 1975, delivered at Third Circuit Judicial Conference in Philadelphia).

 Among the questions to be passed upon which Judge Stapleton enumerates are federal jurisdiction, standing, case or controversy, mootness, unripeness, controlling non-constitutional questions, the "traditional requisites of equity jurisdiction," statewide applicability of statute, and the doctrine of abstention.

 Apart from the above-mentioned questions of statutory interpretation, the principal pertinent issues for consideration from Judge Stapleton's list are those of equity jurisdiction and "whether the action sought to enjoin a state official from executing ...

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