Robert L. Magaziner v. Frank J. Montemuro, JR., Administrative Judge of The Family Court Division of The Court of Common Pleas of Philadelphia County, 468 F.2d 782, 3rd Cir. (1972)

468 F.
2d 782
Robert L. MAGAZINER et al., Appellants,

v.
Frank J. MONTEMURO, Jr., Administrative Judge of the
Family
Court Division of the Court of Common Pleas of
Philadelphia County,
No. 71-1667.
United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) May 26, 1972.
Resubmitted Aug. 18, 1972.
Decided Sept. 29, 1972.
Sharon K. Wallis, Philadelphia, Pa., for appellants.

Joseph Matusow, Philadelphia, Pa., for appellee.
Before STALEY, ALDISERT and HUNTER, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
The question presented is whether the district court should have reached the
merits of a claim sounding under the Civil Rights Acts, 42 U.S.C. Secs. 1981
and 1983, wherein appellants, children of parties to a state court civil action
adjudicating rights to their custody, and the children's counsel, have charged a
state judge of depriving the children of federal constitutional rights by vacating
the ex parte appearance of counsel on their behalf. The district court held that
appellants had an adequate remedy at law, ruling that "if we have jurisdiction in
this case, we decline to exercise it under the circumstances here involved on the
state of the record as it exists today, and we shall, therefore, grant the
defendants' motion to dismiss."
The Magaziner children are not adults: Robert Lee was born on January 8,
1955; Jonathan M., on June 19, 1958, and Diane, on February 6, 1960. The
complaint stated that following certain trial and appellate proceedings brought
by their parents over their custody, "[t]hey [the children] retained as counsel,
Lisa Aversa Richette, Esquire, who on December 22, 1970, entered her
appearance on their behalf in the custody case pending in the Family Court
Division of the Court of Common Pleas of Philadelphia County." The entry of
appearance was challenged, and following argument on the issue, the
appearance was quashed by order on March 17, 1971. Appellants took no
further action in the state court system, although the vacating of the appearance
was a final and, therefore, appealable order under state law. At the time of the
entry of the attorney's appearance the appellants were ages 15, 12 and 10
respectively.
3
Notwithstanding their tender years, they describe themselves in their complaint

as "mature children." Neither the children nor their self-styled "next friend" and
lawyer petitioned any state court for appointment of Mrs. Richette as guardian
ad litem. They have alleged:
4 There is no statute, regulation, or court-promulgated rule in Pennsylvania

53.
providing for the representation of mature children by counsel of their own choosing
and full due process hearing in contested custody cases and the common custom and
usage of the Family Court Division of the Court of Common Pleas is to refuse to
allow such representation and hearing.
5
We will affirm the judgment of the district court dismissing this action.
I.
6
Initially, there exists a serious problem of mootness. Notwithstanding the

general nature of the relief demanded, as couched in requests for injunctive and
declaratory relief, the specific case or controversy before the court was the
action of the defendant, Judge Montemuro, in vacating the appearance of the
children's self-styled next friend, Mrs. Richette, as their lawyer. Mrs. Richette is
no longer a practicing attorney. She is now serving as Judge of the Court of
Common Pleas of Philadelphia County, Pennsylvania.1 The Pennsylvania
Constitution provides that "judges shall devote full time to their judicial duties,
and shall not engage in the practice of law. . . ." Art. 5, Sec. 17, P.S.
Under these circumstances, appellants' claim stands in the same posture of

mootness as did Zwickler's claim in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct.
956, 22 L.Ed.2d 113 (1969). That is, it is impossible for this court to order the
requested relief because of Mrs. Richette's present inability to serve as counsel.
Thus, even if a federal court reached the merits and were inclined to grant the
requested relief, it would be impossible to effectuate the court's judgment. A
comparison is invited to the facts of Golden v. Zwickler, supra, the appeal
following the remand to the district court ordered in Zwickler v. Koota, 389
U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Zwickler was a printer who had
published certain handbills relating to the re-election campaign of Congressman
Multer in the congressional elections of 1964. The complaint alleged that
Multer would again be a candidate in 1966. At issue was the validity of a New
York statute requiring that there be printed on political handbills the identity of
those responsible for their publication. Subsequent to the original appeal in
Zwickler v. Koota, Congressman Multer left the House of Representatives and
was elected to a fourteen-year term on the New York Supreme Court. The
district court held that election to the judicial post did not seem "to moot the
controversy and thus to abort a declaration of constitutional invalidity," holding
that at the time the action was filed a ripe controversy was presented. A
unanimous Supreme Court reversed, holding that "Zwickler did not establish
the existence at the time of the hearing on the remand of the elements
governing the issuance of a declaratory judgment." 394 U.S. at 110, 89 S.Ct. at
960.
8
The Court said: "'[T]he federal courts established pursuant to Article III of the
Constitution do not render advisory opinions. For adjudication of constitutional
issues, "concrete legal issues, presented in actual cases, not abstractions," are
requisite. This is as true of declaratory judgments as any other field.' United
Public Workers of America v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed.
754 (1947)." 394 U.S. at 108, 89 S.Ct. at 959. 2
Because Judge Richette lacks the capacity to participate in the requested relief
as counsel, the matter sub judice becomes simply a request for an advisory
opinion. "[T]he oldest and most consistent thread in the federal law of
justiciability is that the federal courts will not give advisory opinions." Wright,
Federal Courts, Sec. 12 at 37.
II.
10
It may be contended that Judge Richette's present judicial status, although

precluding her functioning as a lawyer, does not prevent her from serving as the
next friend of the minors. Assuming that such activity is permitted by the
restrictions of the Pennsylvania Constitution, this factor would not in itself alter
our decision. The threshold issue still is one of state law which has not been
fully presented to the state courts. Indeed, in our view, irrespective of the
mootness question, there must be a resolution of preliminary state law questions
by the state courts as a necessary prerequisite to acquisition of federal

jurisdiction over the constitutional question.A.
11
Although appellants argue that no Pennsylvania rule or statute permits the

representation of "mature children" in a custody proceeding, they did not avail
themselves of many provisions of the Pennsylvania Rules of Civil Procedure
governing minors and intervenors. Mrs. Richette entered an ex parte appearance
as "next friend" without utilizing the intervention provisions of Pa.R.Civ.P.
2326 et seq. 12 P.S.Appendix. Although Pa.R.Civ.P. 2031(a) provides that a
minor plaintiff may select his guardian, "such selection shall not bar the court
from removing the guardian for cause in accordance with these rules." See
Haines v. Fitzgerald, 108 Pa.Super. 290, 165 A. 52 (1933). Indeed, Rule
2033(a) provides: "A person who is entitled to apply for the appointment of a
guardian for a minor may petition the court for a rule to show cause why the
guardian representing the minor in an action should not be removed and another
guardian be substituted." Rules 2031 and 2034 set forth the procedure for the
selection and appointment of guardians and objections thereto.
12
The ex parte appearance for the children also by-passed the detailed
intervention procedure outlined in Pa.R.Civ. P. 2327(4), permitting intervention
of persons not parties to an action when "the determination of such action may
affect any legally enforceable interest of such person. . . ." The Pennsylvania
advisory committee's note to this rule states: "The interest justifying
intervention must be a right or liability recognized and enforceable at law or in
equity as distinguished from an economic motive or interest in seeing one
litigant or another prevail in the proceedings" [citing Pennsylvania cases]. Rule
2328 outlines the procedure for intervention and requires the filing of a petition
and service; Rule 2329 provides for a hearing on the petition for intervention
after notice. Cf., federal practice governing intervention, F.R.Civ.P. 24 and 5.
Pennsylvania Rule 2326 provides that the intervention procedure applies to any
"civil action or proceeding at law or in equity brought in or appealed to any
court of record which is subject to these rules."
13
The Divorce Code of Pennsylvania confers jurisdiction on the Municipal Court

of Philadelphia over matters pertaining to "custody or visitation rights" of
children. 23 Pa.Stat.Anno. Sec. 15, subd. 3(d). (The name of this court was
changed to the County Court of Philadelphia in 1961. 17 Pa.Stat.Anno. Sec.
705. The jurisdiction of that court has now been assumed by the Family
Division of the Court of Common Pleas. Pa. Const. Art. 5, Schedule, Sec. 16(q)
(i).) It is provided by statute that Courts of Common Pleas may determine in
one action the future care, custody, and visitation rights as to children of the
marriage, and "[a]ny other matters pertaining to such marriage and divorce or
annulment authorized by law and which fairly and expeditiously may be

determined and disposed of in such action." 23 Pa.Stat.Anno. Sec. 15, subd.
1(b) & (e). Furthermore, the rules governing divorce and annulment provide
that any matters which by statute may be joined with an action for divorce and
annulment may be set forth in the same complaint. Rule 1127. The
Pennsylvania Rules of Civil Procedure, 1121-1137, govern the action of
divorce, and provide that except as otherwise provided, the procedure in
divorce actions "shall be in accordance with the rules relating to the action of
assumpsit." Rule 1121(b). A similar provision is contained in Equity Rule
1501.
14
It is arguable, therefore, that the Pennsylvania rules for intervention are

applicable to child custody proceedings, whether viewed as an action in law, to
wit, as ancillary to divorce, Rules 1121 et seq., or as an action in equity, Rules
1501 et seq. In any event the initial determination of the applicability of the
appropriate Pennsylvania procedural rules is properly a matter for the state's
courts. Therefore, because appellants did not attempt to avail themselves of the
intervention procedure under Pa.R. Civ.P. 2326-2330, we are unwilling to
accept their allegation that no Pennsylvania procedural avenue is open to them.
B.
15
In addition to recognizing that appellants failed to observe procedural rules of

the state to achieve intervention and self-styled next friend or guardian status,
we experience difficulty in accepting appellants' designation that the Magaziner
children were "mature children," and thereby entitled, without more, to select
their guardian and next friend and their own counsel in a proceeding to which
they are not parties. As we have previously noted, the children were ages 15,
12, and 10 at the time of the entry of appearance. We do not understand the
legal connotations of the description "mature children," nor is it necessary for
us to do so in the present posture of this case. At the very least, if the status of
"mature children" confers rights and privileges not possessed by ordinary
minors under Pennsylvania law, determination of this issue is a subject for
adjudication by that state's judiciary and not for initial determination by the
federal courts.
16
Recourse to Mr. Justice Frankfurter's observations in Railroad Commission of

Texas v. Pullman Co., 312 U.S. 496, 498, 61 S.Ct. 643, 644, 85 L.Ed. 971
(1941), is especially appropriate: "The complaint . . . undoubtedly tendered a
substantial constitutional issue. It is more than substantial. It touches a sensitive
area of social policy upon which the federal courts ought not to enter unless no
alternative to its adjudication is open. Such constitutional adjudication plainly
can be avoided if a definitive ruling on the state issue would terminate the
controversy."
17
In its most recent pronouncement on abstention, Lake Carriers' Ass'n v.

MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 1759, 32 L.Ed.2d 257 (1972), the
Supreme Court ordered a Pullman-type abstention (retaining jurisdiction until
the state courts acted): "The paradigm case for abstention arises when the
challenged state statute is susceptible of 'a construction by the state courts that
would avoid or modify the [federal] constitutional question. Harrison v.
NAACP, 360 U.S. 167 [79 S.Ct. 1025, 3 L.Ed.2d 1152.] Compare Baggett v.
Bullitt, 377 U.S. 360 [84 S.Ct. 1316, 12 L.Ed.2d 377]. Zwickler v. Koota,
supra, 389 U.S. 241 at 249 [88 S.Ct. 391 at 396]. More fully, we have
explained:
18
"'Where
resolution of the federal constitutional question is dependent upon, or may
be materially altered by, the determination of an uncertain issue of state law,
abstention may be proper in order to avoid unnecessary friction in federal-state
relations, interference with important state functions, tentative decisions on
questions of state law, and premature constitutional adjudication. . . . The doctrine . .
. contemplates that deference to state court adjudication only be made where the
issue of state law is uncertain.' Harman v. Forssenius, 380 U.S. 528, 534 [85 S.Ct.
1177, 1182, 14 L.Ed.2d 50, 406 U.S. at 510-511, 92 S.Ct. at 1757] (1965)."
19
That is precisely the situation presented here. We have rehearsed in detail the
procedural avenues which at least appear to provide courtroom access to the
appellants, despite their allegations to the contrary. Moreover, Pennsylvania law
also authorizes the use of the writ of habeas corpus to test child custody rights.
Standard Pennsylvania Practice, Sec. 50 Infants. In Commonwealth ex rel. Ebel
v. King, 162 Pa.Super. 533, 58 A.2d 484 (1948), the court suggested that
children could have status as petitioners and, therefore, as parties, in a child
custody proceeding brought, not as here, under 23 Pa.Stat. Anno. Sec. 15, subd.
3 (c), but under the Great Writ.
20
We conclude, therefore, that the issues of state law are unresolved, and that
these important preliminary issues must be decided by the state courts before a
federal court can be hospitable to appellants' allegations that a single
Pennsylvania state court judge deprived them of rights secured by the federal
constitution.
III.
21
Alternatively, if we approach the concept of abstention from the strictures of
Zwickler v. Koota, supra, 389 U.S. at 248, 88 S.Ct. 391, suggesting that the
judge-made doctrine of abstention sanctions escape from immediate federal
decision only in narrowly limited "special circumstances," we nevertheless find
those circumstances present here-a state domestic relations case. Traditionally,
it has been the policy of federal courts to avoid assumption of jurisdiction in
this species of litigation. "The whole subject of the domestic relations of
husband and wife, parent and child, belongs to the laws of the states and not to
the laws of the United States." In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct.
850, 853, 34 L.Ed. 500 (1890).3 Indeed, this court has explicitly held there is
no federal diversity jurisdiction in a domestic relations case involving a child.
Albanese v. Richter, 161 F.2d 688 (3d Cir. 1947).
22
"As a matter of policy and comity, [child support cases are] local problems
[which] should be decided in state courts. Domestic relations is a field
peculiarly suited to state regulation and control, and peculiarly unsuited to
control by federal courts." Buechold v. Ortiz, 401 F.2d 371, 373 (9th Cir.
1968). For other cases to the same effect, see 1 Barron and Holtzoff, (Wright
Ed.) Sec. 40.1 n.36.11. Thus, putting aside equal protection considerations,
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), not
present here, the federal courts, and especially this circuit, have steered a course
away from domestic relations cases.4
23
In recent months, this court has invoked the doctrine of abstention even in a
diversity case, because of deference to the expertise of the Orphans Court of
Pennsylvania, recognizing "the special ability of the state court to decide those
issues in view of its exclusive state jurisdiction over trusts and estates."
Reichman v. Pittsburgh National Bank, 465 F.2d 16, 18 (3d Cir., 1972.
Similarly, in Allegheny Airlines v. Pennsylvania Public Utility Commission,
465 F.2d 237 (3d Cir., 1972), abstention was allowed, not only because of the
teachings of Alabama Public Service Commission v. Southern R. Co., 341 U.S.
341, 71 S. Ct. 762, 95 L.Ed. 1002 (1951), and Burford v. Sun Oil Co., 319 U.S.
315, 63 S. Ct. 1098, 87 L.Ed 1424 (1943), but because we found the presence
of significant state concerns and the absence of corresponding federal concerns.
This consideration has been the philosophical underpinning of the reluctance of
federal courts to intrude upon domestic relations problems, traditionally
governed by the domestic policies of the several states. Professor Wright
observes that the domestic relations and probate exceptions, see Reichman v.
Pittsburgh National Bank, supra, to federal jurisdiction, may "rationally be
defended on the ground that these are areas of the law in which the states have
an especially strong interest and a well-developed competence for dealing with
them." Wright, Federal Courts, Sec. 25 at 84.
24
Because of our finding of mootness, the unsettled state of Pennsylvania law in

this area, and the re-affirmation of our policy of non-intrusion by federal courts
in domestic relations problems, we agree that dismissal of the complaint was
proper.
25
The judgment of the district court will be affirmed.5
We take judicial notice that Lisa Aversa Richette has been serving as judge of
the Court of Common Pleas of Philadelphia County, Pennsylvania, since
December 30, 1971. Judge Richette was trial counsel and was on the original
brief in this court. Appellants are now represented in this court by other counsel
The Court continued:

"The difference between an abstract question and a 'controversy' contemplated
by the Declaratory Judgment Act is necessarily one of degree, and it would be
difficult, if it would be possible, to fashion a precise test for determining in
every case whether there is such a controversy. Basically, the question in each
case is whether the facts alleged, under all the circumstances, show that there is
a substantial controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a declaratory
judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,
273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).
We think that under all the circumstances of the case the fact that it was most
unlikely that the Congressman would again be a candidate for Congress
precluded a finding that there was "sufficient immediacy and reality" here. . . .
It was not enough to say, as did the District Court, that nevertheless Zwickler
has a "further and far broader right to a general adjudication of
unconstitutionality . . . [in] [h]is own interest as well as that of others who
would with like anonymity practise free speech in a political environment. . . ."
The constitutional question, First Amendment or otherwise, must be presented
in the context of a specific live grievance.
394 U.S. at 108-110, 89 S.Ct. 956 at 960.
Professors Hart and Wechsler have commented: "The Burrus case actually
involved only the question of the power of a United States district court, under
the habeas corpus statutes, to make an award of an infant's custody in the
absence of diversity of citizenship jurisdiction. The question of power, given
such jurisdiction and the requisite jurisdictional amount, was expressly reserved
(136 U.S. at 597, [10 S.Ct. 850]). But the quoted dictum nevertheless has been
taken as referring to judicial competence as well as legislative." The Federal
Courts and the Federal System, 1016-1017
4
Except those emanating from the Virgin Islands where our scope of review
extends to that of a territorial appellate court as well as a federal court of
appeals
When this appeal was initially presented to this panel, we affirmed the
dismissal of the complaint solely on the basis that appellee enjoyed judicial
immunity. See Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966). In the view we
now take, it does not become necessary to decide whether the Bauers doctrine
applies to actions other than those claiming money damages

Robert L. Magaziner v. Frank J. Montemuro, JR., Administrative Judge of The Family Court Division of The Court of Common Pleas of Philadelphia County, 468 F.2d 782, 3rd Cir. (1972)

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468 F.

Robert L. MAGAZINER et al., Appellants,

United States Court of Appeals, Third Circuit.

Sharon K. Wallis, Philadelphia, Pa., for appellants.

Notwithstanding their tender years, they describe themselves in their complaint

4 There is no statute, regulation, or court-promulgated rule in Pennsylvania

Initially, there exists a serious problem of mootness. Notwithstanding the

Under these circumstances, appellants' claim stands in the same posture of

It may be contended that Judge Richette's present judicial status, although

by the state courts as a necessary prerequisite to acquisition of federal

Although appellants argue that no Pennsylvania rule or statute permits the

The Divorce Code of Pennsylvania confers jurisdiction on the Municipal Court

annulment authorized by law and which fairly and expeditiously may be

It is arguable, therefore, that the Pennsylvania rules for intervention are

In addition to recognizing that appellants failed to observe procedural rules of

Recourse to Mr. Justice Frankfurter's observations in Railroad Commission of

In its most recent pronouncement on abstention, Lake Carriers' Ass'n v.

Alternatively, if we approach the concept of abstention from the strictures of

Because of our finding of mootness, the unsettled state of Pennsylvania law in

The judgment of the district court will be affirmed.5

The Court continued:

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