The opinion of the court was delivered by: ZIEGLER
This case grows out of the construction of a housing project in Philipsburg, Pennsylvania. Plaintiff, Penn State Construction Company, is the managing joint venturer of the general contractor, Philipsburg Construction Company. Philipsburg U.A.W. Housing Company is the owner of the project, and Keystone U.A.W. Housing Corporation is the general partner.
Defendant, Associated-East Mortgage Company, is the lender and the Department of Housing and Urban Development, which insured the loan, is also a defendant.
Penn State alleges that during the course of its performance various disputes arose with U.A.W. pertaining to payment schedules, changes in site conditions, and installation of street entrances. As a result, delays were encountered which rendered plaintiff's performance impossible.
The complaint is framed in three counts. Count I is directed against HUD. Penn State avers that the contracts executed by plaintiff, Associated-East, and U.A.W., obligated HUD to exercise supervisory control over the project and to interpret certain contract provisions.
Plaintiff contends HUD failed to discharge its responsibilities but no damages are claimed. Penn State demands judicial review of the various administrative determinations rendered by HUD in connection with the project.
Count III requests damages from U.A.W. alleging breach of contract to plaintiff.
Associated-East and U.A.W. have moved to dismiss the complaint under Rule 12(b)(1) for want of subject matter jurisdiction. Although HUD has not moved to dismiss, the court will consider Sua sponte whether subject matter jurisdiction is extant over any of the defendants, including HUD. We are required to do so because the court must assess its jurisdiction even where the parties do not raise the question. See, Carlsberg Resources Corp. v. Cambria Sav. & L., 554 F.2d 1254 (3d Cir. 1977).
We hold that this court lacks subject matter jurisdiction over plaintiff's complaint and the complaint must be dismissed.
Penn State tenders four independent bases of jurisdiction. They are: (1) diversity of citizenship against Associated-East pursuant to 28 U.S.C. § 1332. (Plaintiff's claims against U.A.W. are alleged to be "pendent" to this claim against Associated-East);
(2) jurisdiction under 5 U.S.C. §§ 701-706 of the Administrative Procedure Act, which authorizes judicial review of administrative orders; (3) federal question jurisdiction pursuant to 28 U.S.C. § 1331; and (4) jurisdiction over conduct arising under Acts of Congress regulating commerce pursuant to 28 U.S.C. § 1337.
(A) Diversity of Citizenship
Diversity jurisdiction is absent for several reasons. First, affidavits submitted by Associated-East establish that, although incorporated in New Jersey, its principal place of business is in Pennsylvania. For example, 11 of its 16 officers maintain offices in Pennsylvania; director and shareholder meetings are conducted here; the corporate headquarters is in the Commonwealth and its bank records are in this state. Under the "nerve center" test, we hold that Pennsylvania is the principal place of business of Associated-East. Kelly v. U. S. Steel Corp., 284 F.2d 850 (3d Cir. 1960); 13 Wright & Miller, Federal Practice & Procedure, § 3625.
Under 28 U.S.C. § 1332(c), a corporation is a citizen of both its principal place of business and its state of incorporation; therefore, diversity jurisdiction is lacking, since Penn State is a Pennsylvania corporation.
Secondly, even if Associated-East is a New Jersey citizen only, diversity jurisdiction is lacking over the so-called "pendent parties" because Philipsburg and Keystone U.A.W. are Pennsylvania concerns. Accordingly, the complete diversity requirement of 28 U.S.C. § 1332(a) is absent. See, Owen Equipment and ...