Opinion
No. 13112.
Argued January 18, 1960.
Decided February 9, 1960. Rehearing Denied February 24, 1960.
Frank P. Lawley, Jr., Harrisburg, Pa. (Herbert N. Shenkin, Frank P. Lawley, Jr., Deputy Attys. Gen., Anne X. Alpern, Atty. Gen., on the brief), for appellant.
Jacob Kossman, Philadelphia, Pa., for appellee.
Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
This case is before us on a motion to dissolve the preliminary injunction against the defendants granted by a judge of the Eastern District of Pennsylvania. The subject matter of the controversy is the legality of certain pinball machines belonging to the plaintiff. His position is that having converted his multiple-coin machines into single-coin machines he is not in violation of the Pennsylvania statute, 18 P.S. §§ 1444, 1445, as construed by the Supreme Court of that state. He charges that the threatened seizure of his machines by the defendants, if carried out, will deprive him of constitutional rights. We do not know, in the absence of authoritative pronouncement by a Pennsylvania court, whether the plaintiff's machines do violate the law of Pennsylvania. But if they do and the plaintiff claims that action by the state authorities will deprive him of his constitutional rights, he must seek relief through a three-judge court provided for by the federal statutes. No such court has been constituted. We think the injunction against the defendants cannot be maintained. But we do not pass in any respect on the merits of the case.
The motion to dissolve the injunction will be granted.