to transact the business of insurance. Plaintiff further requests the Court to declare all of the Statutory Regulations of Insurers in Pennsylvania "unconstitutional and/or declare the State's application of said acts to the plaintiff in the instant matter an unconstitutional application thereof . . ." Complaint p. 36.
Defendants moved for dismissal of the instant action pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. In support of their motion, defendants advanced various grounds, some of which are essentially as follows:
1. The complaint fails to state a claim against defendants upon which relief can be granted.
2. Improper venue.
3. Failure to follow procedures set forth in 28 U.S.C. § 2284(2).
4. The Eleventh Amendment prohibits suits against the Commonwealth of Pennsylvania.
5. The issues involved in the case are moot.
6. The insurance statutes are constitutional.
7. Plaintiff has an adequate remedy in Commonwealth Court of Pennsylvania and thus the Federal Court should not assume jurisdiction.
On April 28, 1971, the late Chief Judge, John W. Lord, Jr., heard argument on plaintiff's application to have a three-judge court convened pursuant to 28 U.S.C. § 2281 and defendants' motion to dismiss plaintiff's complaint. In an opinion and order dated July 15, 1971, Judge Lord denied plaintiff's request for a three-judge court as well as defendants' motion to dismiss and ordered that evidence be taken on plaintiff's cause of action on August 9, 1971. However, on July 22, 1971, Judge Lord ordered the August 9, 1971, trial date vacated and ordered the parties to report the status of discovery within 90 days. The record does not indicate the reasons for vacating the trial date, nor does it indicate that the parties reported the status of discovery within the time as ordered. Shortly after an order of reassignment of case to me on September 15, 1972, as a result of the death of Judge Lord on May 16, 1972, a status conference was held and was attended by counsel for plaintiff and defendants. From the information gleaned from counsel at the conference, it appears that Judge Lord did not proceed with a hearing because plaintiff had in fact been reinstated and was proceeding to operate its business under the insurance laws of Pennsylvania.
C. Defendants filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The principal grounds set forth by defendants in support of their motion may be summarized as follows:
1. The appropriate forum for this action is in the Commonwealth Court of Pennsylvania.
2. Plaintiff seeks extraordinary relief but lays no proper foundation for granting such relief.
3. The case is moot since the controversy upon which plaintiff predicated its action no longer exists.
4. Plaintiff has adequate and equitable remedies in state forums for all the potential wrongs it claims the Insurance Commissioner may inflict upon it in the future.
5. Comity and abstention are applicable to this case, and therefore the Federal Court should refuse jurisdiction and direct plaintiff to pursue its remedies in State Court.
In order for this Court to grant summary judgment to defendants pursuant to Rule 56, Fed. R. Civ. P. it must appear that there is no genuine issue as to any material fact to be resolved by the Court and that defendants show that they are entitled to judgment as a matter of law. Season-All Indus., Inc. v. Turkiye Sise Ve Cam Fabrikalari, A.S., 425 F.2d 34 (3rd Cir. 1970); Janek v. Celebrezze, 336 F.2d 828 (3rd Cir. 1964).
Although it appears that defendants would be entitled to summary judgment, we need not now entertain and rule on defendants' motion for summary judgment since a careful review of the record before us reveals that this court lacks jurisdiction.
Defendants had raised objections to the Court's jurisdiction initially in their motion to dismiss which was decided adversely to them by Judge Lord. In their motion for summary judgment now before us, defendants have again suggested grounds which preclude the jurisdiction of this Court. However, we do not believe that a motion for summary judgment is the appropriate procedure to raise questions as to this Court's jurisdiction in the circumstances of the instant case. Jones v. Brush, 143 F.2d 733 (9th Cir. 1944); Miller v. National Maritime Union, 275 F. Supp. 809 (E.D. Pa. 1967); Kantor v. Comet Press Books Corp., 187 F. Supp. 321 (S.D.N.Y. 1960); Williams v. Minnesota Mining & Mfg. Co., 14 F.R.D. 1 (S.D. Cal. 1953). "Dismissal rather than the granting of defendants' motion for summary judgment is the proper disposition where this Court lacks jurisdiction to decide whether defendants would be 'entitled to a judgment as a matter of law '. This is true, no matter how clearly plaintiff's claim may lack substantive merit." Miller v. National Maritime Union, supra, 275 F. Supp. at 810.
LACK OF JURISDICTION
The authority of a judge to reconsider a previous ruling of a prior judge, sitting on the same case in the same Court, is well settled. Helvering v. Hallock, 309 U.S. 106, 60 S. Ct. 444, 84 L. Ed. 604 (1940); TCF Film Corporation v. Gourley, 240 F.2d 711 (3rd Cir. 1957); Ward v. Louisiana Wild Life and Fisheries Commission, 224 F. Supp. 252 (E.D. La. 1963).
We think this principle is particularly sound with respect to ruling on jurisdictional questions. Moreover, when a Federal District Court decides that jurisdiction is lacking, at any time after a suit is brought, it has no authority to proceed further with an adjudication of the issues on their merits; the Court must dismiss the suit.
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135 (1936); Tanzymore v. Bethlehem Steel Corporation, 457 F.2d 1320 (3rd Cir. 1972); Barkhorn v. Adlib Associates, Inc., 345 F.2d 173 (9th Cir. 1965); Bevan v. Columbia Broadcasting System, Inc., 293 F. Supp. 1366 (S.D.N.Y. 1968); Twardzik v. Sepauley, 286 F. Supp. 346 (E.D. Pa. 1968); Strauss v. International Brother. of Teamsters, Etc., 179 F. Supp. 297 (E.D. Pa. 1959).
For reasons hereinafter set forth, we dismiss plaintiff's complaint on the basis that this Court lacks jurisdiction, and on the basis that, even assuming the existence of jurisdiction, plaintiff's action should be dismissed pursuant to principles of abstention and comity.
A. When a suit is brought requesting the convening of a three-judge court to decide a constitutional question, a single district judge, in ruling on a motion to dismiss, may in the first instance determine whether the Court has jurisdiction even to consider the applicability of a three-judge panel or whether the action is precluded for lack of subject matter jurisdiction. California Water Service Co. v. Redding, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1323 (1938); Booker v. State of Tennessee Board of Education, 240 F.2d 689 (6th Cir. 1957); "Americans United" Inc. v. Walters, 155 U.S. App. D.C. 284, 477 F.2d 1169 (D.C. Cir. 1973); Gravel v. Laird, 347 F. Supp. 7 (D.D.C. 1972). "[The] provision requiring the presence of a court of three-judges necessarily assumes that the District Court has jurisdiction"; Ex Parte Poresky, 290 U.S. 30, 31, 54 S. Ct. 3, 4, 78 L. Ed. 152, 153 (1933); and if the Court concludes that jurisdiction is lacking, it possesses the authority not only to deny the application for a three-judge court, but also to dismiss the complaint. Lion Manufacturing Corp. v. Kennedy, 117 U.S. App. D.C. 367, 330 F.2d 833 (1964); Eastern State Petroleum Corp. v. Rogers, 108 U.S. App. D.C. 63, 280 F.2d 611, cert. denied, 364 U.S. 891, 81 S. Ct. 222, 5 L. Ed. 2d 187 (1960); National Council on the Facts of Overpopulation v. Caplin, 224 F. Supp. 313 (D.D.C. 1963).
Plaintiff has not alleged a jurisdictional statute as a basis for his complaint. However, we recognize that if there is a statement in the complaint sufficient to give the Court jurisdiction, the particular statute conferring jurisdiction need not be specifically pleaded. Chasis v. Progress Manufacturing Company, 382 F.2d 773 (3rd Cir. 1967); Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967); Uhler v. Commonwealth of Pennsylvania, 321 F. Supp. 490 (E.D. Pa. 1970); See Rule 8(a) (1) of the Federal Rules of Civil Procedure. Plaintiff's allegations may possibly be construed as asserting jurisdiction under Title 28 U.S.C. Sections 1331, 1343 (3), (4), 2201, 2202, 2281 and 2284; Title 42 U.S.C. Sections 1981, 1983, and 1985. However, we note that a related action for damages and injunctive relief brought by plaintiff under the Civil Rights Statutes is now pending before another judge in this District Court.
Apparently, plaintiff is attempting to assert only federal question jurisdiction in the instant case.
B. Plaintiff has named the Commonwealth of Pennsylvania as a party defendant in this case. We must dismiss this action as to the Commonwealth for lack of jurisdiction, for even if plaintiff's complaint alleged a federal question, such an allegation does not in and of itself, divest a state of its immunity under the Eleventh Amendment of the United States Constitution. The Amendment provides as follows:
"The Judicial powers of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Although the Amendment by its terms refers only to suits against a state by citizens of other states, "it is established that an unconsenting State is immune from suits brought in federal Courts by its own citizens as well as by citizens of another State." Employees of Dept. of Public Health & Welf. v. Missouri, 411 U.S. 279, 281, 93 S. Ct. 1614, 1616, 36 L. Ed. 2d 251 (1973); See, Parden v. Terminal Ry. Co., of Ala. State Docks Dept., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (1964); Great Northern Ins. Co. v. Read, 322 U.S. 47, 64 S. Ct. 873, 88 L. Ed. 1121 (1944); Duhne v. New Jersey, 251 U.S. 311, 40 S. Ct. 154, 64 L. Ed. 280 (1920); Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1899). To the extent that the present suit may be based on the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its jurisdictional counterparts, 28 U.S.C. § 1343(3) and (4) we simply note that the Commonwealth of Pennsylvania is not a "person" subject to suit within the meaning of § 1983. Monroe v. Pape, 365 U.S. 167, 187-192, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973); United States ex rel. Gittlemacker v. Philadelphia, 413 F.2d 84 (3rd Cir. 1969), cert. den., 396 U.S. 1046, 90 S. Ct. 696, 24 L. Ed. 2d 691 (1970); Fear v. Commonwealth, 413 F.2d 88 (3rd Cir. 1969), cert. den., 396 U.S. 935, 90 S. Ct. 278, 24 L. Ed. 2d 234 (1969); United States ex rel. Foreman v. State of New Jersey, 449 F.2d 1298 (3rd Cir. 1971); Meyer v. State of New Jersey, 460 F.2d 1252 (3rd Cir. 1972).
C. After a careful review of the record before us, we decide that plaintiff's claims for declaratory and injunctive relief as framed in its complaint are moot.
Under Article III, Section 2 of the Constitution, the United States Federal Courts have jurisdiction to hear and determine "cases and controversies". Plaintiff must allege in the complaint an actual case or controversy to satisfy the threshold requirement of Article III. O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974); Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). A suit which is, or has become, moot is neither a case nor a controversy within the meaning of the Constitution. St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199 (1943); United States v. Alaska S.S. Co., 253 U.S. 113, 40 S. Ct. 448, 64 L. Ed. 808 (1920). Federal Courts are not empowered to decide moot questions or render advisory opinions on abstract propositions. Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200, 24 L. Ed. 2d 214 (1969); Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969); A. L. Mechling Barge Lines, Inc., v. United States, 368 U.S. 324, 82 S. Ct. 337, 7 L. Ed. 2d 317 (1961). Thus, upon determining at any stage of the proceeding that a case was moot when initiated or became moot because of subsequent events, the Court must oust itself of jurisdiction since "[mootness] is a jurisdictional question". North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d 413 (1971); California v. San Pablo & Tulane R. Co., 149 U.S. 308, 13 S. Ct. 876, 37 L. Ed. 747 (1893); State of Alabama ex Rel. Baxley v. Woody, 473 F.2d 10 (5th Cir. 1973). We judge mootness at the present moment and not at the time when plaintiff commenced this suit. Golden v. Zwickler, supra.
This action was originally brought against the Commonwealth of Pennsylvania and George F. Reed who was serving as Insurance Commissioner at that time. During the pendency of the action, plaintiff filed a suggestion on April 20, 1971, to change the name of the Insurance Commissioner to Herbert S. Denenberg, who succeeded George F. Reed and assumed official duties on January 19, 1971. Judge Lord granted the motion for substitution.
We note that Amended Rule 25(d) (1) provides in relevant part as follows:
"When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party . . . An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution."