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ELLEN BRONSTEIN v. WILLIAM J. SHEPPARD (03/19/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 19, 1980.

ELLEN BRONSTEIN, INDIVIDUALLY AND AS REPRESENTATIVE OF A CLASS, PETITIONER
v.
WILLIAM J. SHEPPARD, PENNSYLVANIA INSURANCE COMMISSIONER, AND MASSACHUSETTS INDEMNITY AND LIFE INSURANCE COMPANY, IN ITS OWN RIGHT AND AS REPRESENTATIVE OF A CLASS, RESPONDENTS

Original jurisdiction in case of Ellen Bronstein, Individually and as Representative of a Class v. William J. Sheppard, Pennsylvania Insurance Commissioner, and Massachusetts Indemnity and Life Insurance Company, in its own right and as Representative of a Class.

COUNSEL

Michael Brodie, of Pechner, Dorfman, Wolffe, Rounick & Cabot, for petitioner.

Hannah Leavitt, Assistant Attorney General, with her William H. Lowery, Kathryn D. Portner, John F. Smith, III, James R. Farley, Assistant Attorneys General, and Edward G. Biester, Jr., Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Rogers. Judges Blatt, DiSalle, Craig and MacPhail did not participate. Opinion by President Judge Bowman. Judge DiSalle did not participate in the decision in this case.

Author: Bowman

[ 50 Pa. Commw. Page 200]

Invoking our original jurisdiction pursuant to Section 761 of the Judicial Code (Code), 42 Pa. C.S. § 761, Ellen Bronstein (petitioner), by petition for review characterized as one in the nature of a complaint in equity attacks the use by Massachusetts Indemnity and Life Insurance Company (Massachusetts) of sex as a basis for determining premiums for life insurance. Petitioner alleges that Massachusetts and the class of insurers which sell disability insurance in Pennsylvania have unlawfully*fn1 discriminated against

[ 50 Pa. Commw. Page 201]

    her and other female policyholders of disability insurance by charging higher insurance rates for females than for males, and on this basis requests declaratory and injunctive relief as well as an accounting and money damages through a class action suit. The petition for review purports to assert a plaintiff class action suit as well as a class action suit against all such insurers. In addition, petitioner claims that the Insurance Commissioner of the Commonwealth of Pennsylvania (Commissioner) has acted unlawfully*fn2 by approving rate filings which provide for higher insurance premium payments for women than for men, and seeks declaratory and injunctive relief against the Commissioner.

Massachusetts and the Commissioner have each filed preliminary objections in the nature of a demurrer to petitioner's complaint, asserting that the petitioner has failed to exhaust the administrative remedies provided by law and is consequently precluded from invoking the equitable jurisdiction of this Court. In addition, Massachusetts has objected to petitioner's capacity to sue, and the Commissioner has moved to strike the class action because of failure to conform to the Pennsylvania Rules of Civil Procedure. The disposition of these preliminary objections is presently before the Court.

Initially, we must determine whether the petitioner has an adequate remedy at law, since we are precluded from exercising equity jurisdiction in order to grant injunctive relief*fn3 if an adequate remedy exists at law.

[ 50 Pa. Commw. Page 202]

    against the Commissioner or the relief sought as against him but rather to the cause asserted against Massachusetts and the asserted class respondent insurance companies over which this Court has no jurisdiction absent jurisdiction over the Commissioner as a properly pleaded cause within our original jurisdiction. 42 Pa. C.S. § 761.

Petitioner cannot bootstrap a cause of action over the Commissioner as within our original jurisdiction in equity by simply also naming in the same suit other respondents against which she asserts another cause or causes and other reliefs and thereby successfully claim the inadequacy of the administrative remedy as to the cause asserted against him.

We shall sustain the demurrer of the Commissioner as to the cause of action asserted against him because of the existence of an administrative remedy subject to judicial review and, by doing so, must necessarily conclude a want of jurisdiction over Massachusetts as to the cause asserted against it. Having found that a cause of action in equity against the Commissioner will not lie within our original jurisdiction, we need not and cannot reach the further issues raised by Massachusetts. The cause as asserted against Massachusetts shall be transferred to the appropriate court of common pleas pursuant to Section 5103(a) of the Code, 42 Pa. C.S. § 5103(a) and Pa. R.C.P. No. 213(f).*fn5

Order

Now, March 19, 1980, the preliminary objections of the Insurance Commissioner of Pennsylvania in the nature of a demurrer are sustained and the cause of

[ 50 Pa. Commw. Page 204]

    action as asserted against the Commissioner is dismissed. The balance of the cause of action shall be transferred to the appropriate court of common pleas.

The foregoing opinion and Order were prepared by President Judge Bowman prior to his death. They are hereby adopted as the opinion and Order of the Court.

Judge DiSalle did not participate in the decision in this case.

Disposition

Preliminary objections of Commissioner sustained. Petition dismissed as to Commissioner. Case transferred to appropriate court of common pleas.


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