The opinion of the court was delivered by: MCILVAINE
In this case the plaintiff school districts have filed a suit against the Secretary of Health, Education and Welfare of the United States and the Secretary of Labor and Industry of the Commonwealth of Pennsylvania. It appears that by amendment to the Social Security Act political sub-divisions of the United States are authorized to extend to their employees and officers the benefits of the Social Security Act. However, in order to obtain these benefits each state had to pass enabling legislation and enter into an agreement with the Secretary of Health, Education and Welfare. Pennsylvania passed such an act on January 5, 1952, P.L.1833; 64 P.S. § 201. This act authorized the Secretary of Labor and Industry of Pennsylvania to enter into an appropriate agreement with the Secretary of Health, Education and Welfare, and pursuant to this agreement the Superintendent of Public Instruction of Pennsylvanina executed agreements on behalf of all the school districts in behalf of the school district of Pennsylvania extending the benefits of the Social Security Act to public school employees.
The plaintiffs allege that they have been required to pay into the contribution fund under the Pennsylvania Enabling Act the amount specified under the Social Security Act. The plaintiffs further allege that this system has been applied to elected tax collectors, solicitors, auditors, dentists, and doctors who have done work for the school district.
The school districts, however, maintain that these people are not employees within in the meaning of the Social Security Act, 42 U.S.C.A. § 410(k).
After the suit was filed, motions to dismiss were filed by the Secretary of Health, Education and Welfare and by the Secretary of Labor and Industry of the Commonwealth of Pennsylvania. The Secretary of Health, Education and Welfare urges that the complaint be dismissed because it fails to state a claim upon which relief can be granted; that the Court lacks jurisdiction over the case; that the Secretary of Health, Education and Welfare is not sueable, and even if he were, this district does not have venue, but venue should lie in the District of Columbia. The Secretary of Labor and Industry of the Commonwealth of Pennsylvania urges that the complaint be dismissed because it involves a controversy with respect to the federal taxes which is a subject specifically excluded by the Declaratory Judgment Act; that the service of process was improper in that the summonses were served by certified mail and not by personal service of process as required by law; that the venue of this Court is improper since an action against an officer of the Commonwealth can only be instituted in Dauphin County. Under state law it alleges that the Governor of Pennsylvania is an indispensable party and has not been joined; that the plaintiffs have no standing to raise a question of coverage as the only people who should be able to question this are the individuals subject to the contract; and that the plaintiffs have not exhausted their administrative remedies available to them.
Many issues have been raised by the motions filed in this case. We think, however, the matter can be resolved if attention is directed to whether or not this Court has jurisdiction to decide the issues.
This brings us to the matters raised on behalf of the Secretary of Labor and Industry of the Commonwealth of Pennsylvania. The return of the United States Marshal indicates that a copy of the summons and complaint was served by certified mail to the Secretary of Labor and Industry of the Commonwealth of Pennsylvania at Harrisburg, Pennsylvania.
It is basic that before a court can entertain a case a defendant must be properly before it, and no defendant can be brought properly before a court unless there has been a proper service of process or the defendant voluntarily enters a general appearance. The Federal Rules of Civil Procedure govern service of process, and in particular, Rule 4(d)(6), 28 U.S.C.A.:
'Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant.'
Here it is obvious we must look to the requirements of the law of the Commonwealth of Pennsylvania for service of this process upon officials of the Commonwealth of Pennsylvania. See Pennsylvania Rules of Civil Procedure 2104(b), 12 P.S.Appendix:
'When an action is commenced against an officer of the Commonwealth, or against a department, board, commission or instrumentality of the Commonwealth, or a member thereof, other than an appeal from an administrative determination, order or decree of such officer, department, board, commission or instrumentality, service shall be made at the office of the defendant and at the office of the attorney general by handing a copy of the writ, or a complaint if the action is commenced by complaint, to the person in charge thereof.'
Service was not so made upon the Secretary of Labor and Industry, but was sent by certified mail. The plaintiffs urge that this is an error that can be corrected. As of this date, no correction has yet been made. Therefore, it would appear proper that since the Secretary of Labor and Industry of the Commonwealth of Pennsylvania is not properly before this Court, his motion to dismiss for lack of service of process over him should be granted, and that would be the end of the case as to him.
The Secretary of Health, Education and Welfare, however, did not raise the question of improper service of process. However, he raises the question of jurisdiction, and we must look to the plaintiffs' complaint to see if there is jurisdiction.
Rule 8 of the Federal Rules of Civil Procedure provides that any pleading which sets forth a claim for relief shall contain a short and plain statement of the grounds upon which the court's jurisdiction depends. In paragraph 8 of the plaintiffs' ...