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October 12, 1973

Helen H. STERN, on behalf of herself and all those similarly situated
MASSACHUSETTS INDEMNITY AND LIFE INSURANCE COMPANY and Herbert S. Denenberg, Insurance Commissioner of the Commonwealth of Pennsylvania

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.


 This action arises under Title 42 of the United States Code, Sections 1983 and 1985, and federal jurisdiction is asserted under Title 28, Sections 1331, 1332, 1343 and 2201.

 Plaintiff is a woman who applied to defendant, Massachusetts Indemnity and Life Insurance Company (hereinafter Insurance Company) for a disability insurance policy in terms available to men of her age, health, income and occupation. She avers that defendant Insurance Company refuses to sell disability insurance to women containing the same terms and conditions available to men solely on the basis of sex. *fn1" Plaintiff argues that this refusal is without actuarial justification and is with the agreement and approval of the Pennsylvania Insurance Commission. *fn2" She contends that the aforesaid discrimination is a denial of equal protection of the law and is in violation of the Constitution of the United States and of the Commonwealth and Section 626 of the Pennsylvania Insurance Company Act *fn3" which prohibits discrimination by casualty and disability insurance companies between individuals of the same class.

 Defendant Insurance Company maintains a number of defenses in its Answer and additional defendant Denenberg also raises essentially the same defenses. These will be explored in greater detail in our Opinion.

 Additional defendant Denenberg has moved to Dismiss Plaintiff's Amended Complaint. In response, plaintiff has filed a Cross-Motion for Partial Summary Judgment and Injunction. For the reasons set forth in our Opinion, we will partially grant and partially deny plaintiff's Motion to Dismiss Defenses and will deny all the other motions in toto.


 Defendant Insurance Company contends as its Second Defense that this court lacks subject matter jurisdiction of the complaint under 28 U.S.C. §§ 1331, 1343 and 2201 because of failure to state a cause of action under 42 U.S.C. §§ 1983 or 1985. In his Motion to Dismiss Amended Complaint, additional defendant Denenberg joins in this defense.

 As its Third Defense, defendant Insurance Company argues that this court lacks subject matter jurisdiction under 28 U.S.C. § 1332. Additional defendant Denenberg also joins in this defense. Because Commissioner Denenberg has been joined in this action, and is a resident of the Commonwealth, diversity jurisdiction under Section 1332 is destroyed. Therefore, the defense is a valid one and plaintiff's motion to dismiss it will be denied.

 Defendant Insurance Company raises as its Fourth Defense the claim that this court lacks subject matter jurisdiction under any section of the U.S. Code.

 As its Fifth and Sixth Defenses, respectively, defendant Insurance Company argues that we lack subject matter jurisdiction of complaints about unlawful discrimination in insurance policies and rates and plaintiff has failed to pursue her administrative remedies under the Pennsylvania Insurance Code, 40 P.S. § 1 et seq. Additional defendant Denenberg joins in these defenses.

 Defendant Insurance Company's Seventh Defense is now moot. It was a claim that plaintiff had failed to join an indispensable party, the Commissioner, under Rule 19, F.R. Civ. P.

 Defendant's Eighth, Ninth, Tenth and Eleventh Defenses are essentially defenses countering plaintiff's allegations that the terms and conditions of disability insurance available to women bear no rational or reasonable relation to the risk to be assumed and that as a class women have been denied equal protection of the law. *fn4"

 Defendant Insurance Company's Twelfth Defense is simply that the complaint fails to state a claim upon which relief can be granted. Again, additional defendant Denenberg concurs in this defense.

 We are disposed at this time to deny plaintiff's motion to dismiss Defenses Eight through Eleven, inclusively, as these defenses involve factual issues better left for determination at trial on the merits. Corresponding defenses of additional defendant Denenberg will be disposed of in the same manner.

 Remaining to be decided, then, are defendant Insurance Company's jurisdictional defenses (Second, Fourth, Fifth and Sixth Defenses) and additional defendant Denenberg's request that we abstain from further proceedings in this case until the Supreme Court of Pennsylvania interprets a recently passed amendment to the Pennsylvania Constitution, Article I, § 27, *fn5" P.S. and Section 626 of the Pennsylvania Insurance Companies Law, 40 P.S. § 761. *fn6"

 It is argued by both defendants that we lack jurisdiction in this matter because plaintiff has failed to show that anyone acted under color of state law. The Civil Rights Act of 1871, 42 U.S.C. § 1983, provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or ...

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