On June 3, 1975, the Zoning Hearing Board quashed the appeal, ruling that it was filed prematurely. The ruling apparently was made prior to any hearing on the appeal itself. Plaintiffs then sought to appeal this order to the Court of Common Pleas of Allegheny County.
On August 25, 1975, Oxford Development Company, the intervenor herein and owner of the land rezoned under Ordinance #90, submitted plans to the Pine Township Board of Supervisors and requested certain site and zoning approvals, etc. Plaintiffs on October 23, 1975 filed a Notice of Appeal with the Zoning Hearing Board, requesting a hearing on the substantive validity of Ordinance No. 90. Plaintiffs in this petition further alleged that the "landowner" had now submitted complete plans for development of the property. On December 1, 1975 the board of supervisors conditionally approved Oxford Development Company's applications. Plaintiffs thereafter amended their Notice of Appeal to include allegations as to the permit approvals.
On or about December 22, 1975 Oxford Development Company filed a petition with the Court of Common Pleas of Allegheny County, seeking to require appellants to post bond before proceeding with the Appeal from the initial decision of the Zoning Hearing Board, that is, the decision holding that plaintiffs' Appeal of March 20, 1975 was filed prematurely. The bond sought by the intervenor also apparently was to cover the appeals then pending before the Zoning Hearing Board as of December 22nd.
The Court of Common Pleas held hearings on the petition of Oxford Development Company, following which the plaintiffs were ordered to post a bond, the premiums for which would cost some $9,120 per month. Plaintiffs have taken appeals to the Court of Common Pleas and the Pennsylvania Commonwealth Court where said appeals were dismissed and the lower court decisions affirmed. Presently, there are no actions regarding this case in any state court.
Plaintiffs allege that they are unable to post a bond even for the first month and that this inability resulted in the dismissal with prejudice of the appeals before the Zoning Hearing Board and the Court of Common Pleas of Allegheny County. Plaintiffs assert that to date the Zoning Hearing Board has not held a hearing on the substantive validity of Ordinance No. 90.
Plaintiffs contend that they were denied due process and equal protection rights secured by the Fourteenth Amendment of the United States Constitution, as a result of the application to their appeals of the bond and permit provisions of the Pennsylvania Municipalities Code. Specifically, they assert that such denial resulted from the requirement that bond be posted to perfect an appeal regardless of both the merits of the appeal and the financial ability of the appellant. They also assert that at the hearings concerning the bond requirement they were precluded from submitting evidence on the merits of their appeals or on their financial ability to post bond. They acknowledge that these rulings are mandated under judicial interpretation of 53 P.S. 10916.
In any case in which application is made to a federal judge for the convocation of a three-judge court under 28 U.S.C. § 2281, that judge must initially determine whether jurisdiction exists in the district court. Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933). If the general requisites of federal jurisdiction are not present, the issue of whether or not to convene a three-judge court need not be decided. Atlee v. Laird, 339 F. Supp. 1347 (E.D. Pa. 1972), aff'd mem. 411 U.S. 911, 93 S. Ct. 1545, 36 L. Ed. 2d 304 (1973).
It thus becomes necessary for this court to determine which of the grounds for dismissal alleged by the defendants involve jurisdictional grounds we must consider prior to authorizing a three-judge court.
Defendants argue that the acts averred in plaintiffs' complaint do not fall within the purview of 42 U.S.C. §§ 1983, 1985. Since this allegation goes to the merits a single judge cannot consider it. Fort v. Daley, 431 F.2d 1128 (7th Cir. 1970).
Both the defendants and the intervenor in their motions to dismiss refer to plaintiffs' pending state court proceedings as grounds for dismissal. According to the Stipulation (filed Feb. 17, 1977) and the Supplement to Stipulation (filed May 12, 1977), there are no pending state court actions relating to matters involved in our case. Therefore, it is unnecessary to rule on those grounds for dismissal as they are now moot.
Both the defendants and the intervenor allege that the judge who issued the bond order must be joined in this action. The question of joinder of such a party does not relate to whether or not the district court has jurisdiction at this point in time; therefore, we will not rule on that allegation.
Intervenor alleges that the plaintiffs have failed to state a claim upon which relief can be granted and that the permit requirement of the statute in question is now moot. Such allegations require a judge to go beyond an inquiry into whether or not the court has jurisdiction. At this stage in the proceedings, the court can look only at whether or not federal jurisdiction is present.
We find that this court has general federal jurisdiction.
This court is without the power to rule on grounds for dismissal which are non-jurisdictional. Of course, defendants and intervenor can renew their motions at a more appropriate time.
Since plaintiffs have requested the convocation of a three-judge court, our primary duty now is to determine whether a three-judge court should be empanelled. This priority is dictated by rulings to the effect that while the single-judge court must decide the "jurisdictional" questions of whether a three-judge court is required, Fort v. Daley, 431 F.2d 1128, 1131 (7th Cir. 1970); Majuri v. United States, 431 F.2d 469, 474 (3d Cir.), cert. denied, 400 U.S. 943, 91 S. Ct. 245, 27 L. Ed. 2d 248 (1970), the single-judge court does not have "jurisdiction to proceed to the merits of plaintiffs' claim if formation of this special tribunal is required," Police Officers' Guild v. Washington, 369 F. Supp. 543, 548 (D. D.C. 1973); Fort v. Daley, 431 F.2d at 1131. While 28 U.S.C. § 2284(5) states that "(a) single judge shall not . . . dismiss the action, or enter a summary and final judgment," this provision has been interpreted uniformly to limit the single-judge's power only after a three-judge court has been convened. See, e.g., Atlee v. Laird, 339 F. Supp. 1347, 1350 (E.D. Pa. 1972), aff'd. mem. 411 U.S. 911, 93 S. Ct. 1545, 36 L. Ed. 2d 304 (1973).
As the Third Circuit observed: "The duty of a district judge in considering an application for a statutory three-judge court is set forth in Idlewild Bon Voyage Liquor Corp. v. Epstein [370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962)]. Chlystek v. Kane, 540 F.2d 171, 172-73 (3d Cir. 1976).
"[The] court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirement of the three-judge statute."