inasmuch as he is merely a nominal party who state law does not require be joined as party defendant and against whom no relief has been asked in plaintiff's complaint, and inasmuch as venue in Allegheny County in an action against the Attorney General is improper.
(b) That the United States District Court should not abstain from exercising jurisdiction in this proceeding since exceptional circumstances do not exist in view of the fact that the Supreme Court of Pennsylvania has decided the legal issue involved and has declared said statute constitutional.
The Attorney General of the Commonwealth of Pennsylvania has moved to have himself dismissed as a party respondent on the thesis that no provision in state law requires the Attorney General to be made a party defendant nor does state law permit him to be sued in any court other than the Court of Common Pleas of Dauphin County.
The Federal Declaratory Judgments Act provides, inter alia, that when a case of actual controversy is within the jurisdiction of the district court, the court may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. 28 U.S.C.A. § 2201.
I do not believe this is the type of declaratory judgment proceeding in which the United States District Court should exercise its discretion and assume or take jurisdiction of the proceeding. This conclusion is premised on the reasoning that if jurisdiction of the petition for declaratory judgment is taken, the Court would have no other alternative but to dismiss the proceeding since the state constitutional question has already been determined by the Supreme Court of Pennsylvania and, unquestionably, the United States Court in a diversity action is bound by such decision.
I, therefore, hold that even if diversity and jurisdictional amount were present and the Court had jurisdiction, under the facts and circumstances of this case, I must, in the exercise of the judicial discretion vested in this Court, decline to accept and exercise jurisdiction of this particular proceeding. Furthermore, I hold that the original jurisdiction in this Court required for removal under 28 U.S.C.A. § 1441 is not present, the proceeding is not properly in this Court and it is to be remanded to the State court.
The fact that the constitutional question may be reconsidered by the Supreme Court of Pennsylvania in a separate proceeding does not, in my judgment, justify or require this Court to stay the proceeding or any part of it, pending reconsideration by the Supreme Court of Pennsylvania for the reason that if this were done, the sole issue before this Court would have been determined and there would remain nothing for this Court to adjudicate.
In view of the conclusion reached, the other questions raised need not and should not be determined. Since the Court is not assuming jurisdiction, the motion of the Attorney General to dismiss the proceeding against him as a party defendant is not properly before the Court, and I do not decide it nor express any opinion relative to said motion.
An appropriate Order is entered.
AND NOW, this 19 day of April, 1963, IT IS ORDERED AND DIRECTED that the within proceeding will be, and it hereby is, remanded to the Court of Common Pleas of Allegheny County, Pennsylvania.
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