The opinion of the court was delivered by: TROUTMAN
TROUTMAN, District Judge.
This matter is before the Court for disposition of defendants' motions pursuant to Rule 12(b) of the F.R.Civ.P., to dismiss this action for lack of jurisdiction.
Gregory Martyniuk, a Russian immigrant, and a veteran of the armed forces, died intestate in a Veterans' Administration Hospital on August 12, 1950. He left an estate in excess of fifty thousand dollars ($50,000.00), representing disability compensation that had been paid to him by the Veterans' Administration. At the audit of the Administrator's account in the Orphans' Court of Philadelphia County, three sets of claimants to the fund appeared:
1. Anna Martyniuk and Mikhail Martyniuk, present plaintiffs, and residents of the U.S.S.R., appearing through local counsel and claiming to be the wife and the son of the decedent;
2. The United States claiming as trustee for the General Post Fund pursuant to 38 U.S.C. §§ 5220-5228;
When the account of the administrator came before the Auditing Judge, he appointed a Master to ascertain whether any heirs existed. On behalf of the Russian claimants there were produced before the Master a power of attorney and affidavits executed by the claimants before the American Consul in Moscow and depositions and other documentary evidence taken before a Russian notary and authenticated by the Consul. The Master refused to accept their documents as proof of heirship. Local counsel for the Russian claimants then filed a petition with the Court en banc for letters rogatory to take the testimony of his clients in Russia. In April of 1955 the Court denied this petition.
No exception was filed to this decree and no appeal was taken from it.
The Russian claimants filed exceptions to the refusal to accept the documentary matter into evidence and the United States also took exception. The Orphans' Court affirmed the conclusion of the Auditing Judge that the Russian claimants failed to prove heirship and ordered that the estate be paid into the Treasury of the Commonwealth of Pennsylvania pursuant to 72 P.S. § 1314 until such time as the existence or non-existence of heirs of the decedent could be conclusively established. Estate of Martinzik, 25 Pa.Dist. & Co.2d 701 (1962). The United States has not objected to the ruling of the Court directing the payment of the fund into the State Treasury and has not otherwise pursued its claim to the estate pursuant to 38 U.S.C. § 5220.
The plaintiffs have filed suit in this Court, naming the United States and the Commonwealth of Pennsylvania as defendants, demanding judgment "declaring them to be the heirs of the decedent and awarding them the funds on deposit with the COMMONWEALTH OF PENNSYLVANIA in the approximate sum of Fifty-Four Thousand ($54,000.00) Dollars with interest and costs."
The complaint further alleges that in support of their demand for a declaration of heirship, the plaintiffs require the use of the Federal procedural devices in order to obtain depositions, interrogatories or letters rogatory.
The defendants contend (a) lack of jurisdiction to hear the present controversy on the basis of governmental immunity, (b) absence of a Federal question, and (c) inability of a Federal court to decide what is essentially a probate matter.
The plaintiffs contend that since Congress has given the United States a potential claim pursuant to 38 U.S.C. § 5220 and since the United States asserted that claim in the Orphans' Court proceedings, its immunity has thereby been waived. But this overlooks the fact that although the United States may have a potential claim and did seek to assert it, it has not seen fit to pursue its claim. In any event, from the mere fact that the United States has a claim by virtue of 38 U.S.C. § 5220, it does not follow that Congress intended to waive the immunity of the United States from suit. To sustain such an argument and permit suits against the United States in every case where the United States has a claim by virtue of an Act of Congress would be to virtually emasculate the doctrine of sovereign immunity and render the requirement of consent vitually meaningless. Moreover, from the fact that want of consent is a fundamental defect which may be asserted at any time, State of Minnesota v. United States, 305 U.S. 382, 59 S. Ct. 292, 83 L. Ed. 235 (1939); Mellos v. Brownell, 102 U.S.App.D.C. 67, 250 F.2d 35 (1958), it follows that it is not subject to estoppel and consequently cannot be waived and was not here waived in asserting a claim in the Orphans' Court on behalf of the United States. It can only be waived by Congress. United States v. Shaw, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888 (1940).
On a number of occasions Congress has successively broadened the consent of the United States to be sued. The Court of Claims was created to determine money claims against the Government founded on Acts of Congress, or regulations of executive departments, or express or implied contracts with the Government. This jurisdiction was expanded by the passage of the Tucker Act, which grants jurisdiction additionally in cases founded upon the Constitution, and in cases for damages not sounding in tort. 28 U.S.C. §§ 1346(a)(2), 1491. Jurisdiction under the Tucker Act is in the Court of Claims or, if the claim does not exceed a certain amount, now $10,000.00, in the District Court. The plaintiffs have not attempted to invoke the jurisdiction of this Court under the provisions of the Tucker Act. Were it to be so argued, however, it seems clear that this Act is not a waiver of sovereign immunity where declaratory and other equitable relief is sought. Wells v. United States, 280 F.2d 275, 277 (9th Cir. 1960); Blanc v. United States, 244 F.2d 708, 709 (2nd Cir. 1957). Were it to be argued that the plaintiffs are asking for ...