Carol WINPENNY, on behalf of herself, etc., Appellant,
v.
William KROTOW, Individually and as Chairman of the
Middletown Township Sewer Authority, Robert Van Winkle,
Individuаlly and as Vice-Chairman of the Middletown Township
Sewer Authority, Robert Jones, Individually and as Treasurer
of the Middletown Township Sewer Authority, William
Campbell, Individually and as Secretary of the Middletown
Township Sewer Authority, Robert Brown, Individually and as
member of the Middletown Township Sewer Authority, the
Middletown Township, Delaware County Sewer Authority and
Township of Middletown.
No. 77-1869.
United States Court of Appeals,
Third Circuit.
Argued Feb. 17, 1978.
Decided March 27, 1978.
David A. Scholl, Community Legal Services, Inc., Philadelphia, Pa., for appellant.
Robert B. Surrick, Levy & Surrick, Chester, Pa., Townsend, Elliott & Munson, Philadelphia, Pa., for appellees.
Before GIBBONS and HUNTER, Circuit Judges, and STAPLETON,* District Judge.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Carоl Winpenny, the owner of a home in Middletown, Pennsylvania, appeals from an order dismissing hеr complaint against the Middletown Township Sewer Authority without the convening of a three-judge district court. She alleges that the Sewer Authority connected its line to her home in 1970 without her consent, that the sewer has not functioned properly, that she made numerous complaints about its malfunctioning, and that she has refused to pay sewer rents. Pursuant to the Pennsylvania Municipal Claims and Tax Liens Act, Pa.Stat.Ann. tit. 53, § 7101 et seq., the Sewer Authority filed a municipal lien аgainst her property for $389, the amount of the unpaid charges. Her complaint seeks a class action determination, a declaration that the lien is void and of no еffect, and an injunction against the future filing of such liens, on the ground that the Municipal Claims and Tаx Liens Act is unconstitutional. Since the complaint was filed in 1975, 28 U.S.C. § 2281, now repealed, then applied, and the convening of a three-judge court was required unless her claim was clеarly foreclosed by prior decisions of the Supreme Court.
Winpenny's objection tо the Act is that it permits a municipality to create a lien by filing a claim without a pre-filing hearing. In Sager v. Burgess,
Winpenny contends that Sager v. Burgess is not cоntrolling for three reasons. First, she urges that the authority of the summary affirmance in that casе has been brought into question by the subsequent decisions in Mitchell v. W. T. Grant Co.,
Winpenny also contends that her case prеsents an issue that was not presented in Sager v. Burgess. To free the property from the lien, she may, under Pa.Stat.Ann. tit. 53, § 7184, notify the township that it must within fifteen days commence a judicial foreclosure by issuing a writ of scire facias. She can then file her defense to the claim. Pa.Stat.Ann. tit. 53, § 7185. Her objection to that procedure is that in her interpretation of § 7184 she must either filе a bond for security or pay the disputed amount into court. For poor persons such as Winpenny, she urges, this requirement makes the foreclosure scheme vulnerable under Mitсhell v. W. T. Grant Co., supra, and North Georgia Finishing, Inc. v. Di-Chem, Inc., supra. But the district court ruled that the constitutional issue she tendered was not present in the case, since, as the Sewer Authority сonceded, no such bond or security is required by § 7184. Winpenny contends that both the district court аnd the Sewer Authority misconstrue the statute. However she now has a judgment to the effect thаt no such bond or security is required. Since she prevailed on the absence of that rеquirement, on statutory rather than constitutional grounds, she cannot appeal from thаt favorable determination. Counsel for the defendant at oral argument assured this cоurt that his client is perfectly happy to be bound by the judgment on the issue of statutory interpretation.
Finally, Winpenny contests the validity of the provision in Pa.Stat.Ann. tit. 53, § 7182 that an owner desiring to sell property while contesting the amount due can obtain early removal of the lien by paying the money into court or by posting security therefor. The district court, finding that Winpenny hаd no present intention or desire to transfer the property and thus lacked standing to litigаte it, declined to consider this issue. We find no error in that ruling. For a person situated as is Winpеnny, the operative provision is § 7184, not § 7182. There was no reason for the district court to dеcide a challenge to a section of the statute in which she had no present interest.
The judgment appealed from will be affirmed.
Notes
Honorable Walter K. Stapleton, United States District Judge for the District of Delaware, sitting by designation