The opinion of the court was delivered by: BRODERICK
The complaint was filed by the Township in the state court on June 23, 1980. It is a complaint in equity in which the Township is seeking to enjoin Pan Am from using a residence leased by Pan Am for the purpose of housing three mentally retarded children. The complaint alleges that the leased premises are in an area zoned "residential" and that Pan Am intended to use the property for a commercial activity which violated the zoning ordinance. The Township also claims that Pan Am violated the building code of the Township in that a certificate of occupancy had not been obtained. The state court judge held a hearing on June 25, 1980 and entered a preliminary injunction on June 27, 1980.
Pan Am filed a petition for removal on July 3, 1980.
Pan Am states in this petition that it entered into an agreement with Delaware County to provide a community living arrangement for certain retarded residents of Delaware County pursuant to this court's order in Halderman v. Pennhurst, D.C., 446 F. Supp. 1295, which is presently on our docket. The property which is the subject of this action was leased by Pan Am in order to establish a residence for not more than three retarded children. Pan Am claims that its proposed use of the property does not violate the zoning ordinance.
The burden is on Pan Am to prove that removal is proper. Jones v. General Tire & Rubber Co., 541 F.2d 660 (7th Cir. 1976); Shelly v. Commonwealth of Pennsylvania, 451 F. Supp. 899 (M.D.Pa.1978). Pan Am claims that removal of this action to this court is proper under 28 U.S.C.A. § 1441 on the grounds that: (1) it has a right under the Constitution and laws of the United States to so use the premises; and (2) this matter is directly related to Halderman v. Pennhurst, D.C., 446 F. Supp. 1295, which is currently on this court's docket.
The Supreme Court has stated that a federal district court may assume jurisdiction of an action removed from a state court only when the federal court:
would have had original jurisdiction of the case had it been filed in that court. Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S. Ct. 1344, 1347, 31 L. Ed. 2d 612 (1972).
Furthermore, "federal question jurisdiction must appear on the face of the complaint." LaChemise Lacoste v. Alligator Co., 506 F.2d 339, 343 (3d Cir. 1974), cert. denied, 421 U.S. 937, 95 S. Ct. 1666, 44 L. Ed. 2d 94 (1975); PAAC v. Rizzo, 502 F.2d 306 (3d Cir. 1974), cert. denied, 419 U.S. 1108, 95 S. Ct. 780, 42 L. Ed. 2d 804 (1975); see 14 Wright & Miller, Federal Practice and Procedure § 3721, at 530 (1976). An action is not removable when the federal question is a defense which appears only in the answer or petition for removal. LaChemise, supra. In order for Pan Am to carry its burden, the complaint must contain the allegations which would establish federal jurisdiction.
An examination of the complaint filed in the state court does not reveal a basis for federal jurisdiction. In the complaint, the Township alleges that the proposed use of the premises by Pan Am is a violation of the local zoning ordinance and building code. These allegations do not establish federal question jurisdiction; they assert violations of state law.
Pan Am's allegations concerning a violation of the Constitution and laws of the United States may well be a defense to the Township's action, but they cannot serve as a basis for removal to this court pursuant to 28 U.S.C.A. § 1441. Furthermore, although this court's decision in Halderman v. Pennhurst, 446 F. Supp. 1295, which is currently on our docket, establishes the rights of retarded citizens to reside in community living arrangements, it did not determine questions concerning the rights of the retarded in relation to local zoning ordinances and building codes.
Accordingly, this court will enter an order granting the Township's motion to remand this action to the Court of Common Pleas of Delaware County since, as heretofore pointed out, Pan Am's allegations of federal question jurisdiction ...