The opinion of the court was delivered by: CALDWELL
Before us for disposition is defendants' motion to dismiss or stay the present action. Defendants are members of the Pennsylvania State Dental Council and Examining Board (hereinafter "Dental Board") and were sued in their official and individual capacities by thirteen individual and four corporate plaintiffs. The individual plaintiffs are dentists or dental hygienists licensed to practice in Pennsylvania and are professionally employed by dental facilities using the trade name "Dentalworks." Plaintiff Dentalworks, Inc. has its principal place of business in Allentown, Pennsylvania, and has sold franchises for the establishment of wholly-owned subsidiaries at three other Pennsylvania locations. (For purposes of our discussion, unless otherwise indicated, references to "Dentalworks" shall include all four of the corporate plaintiffs.)
The present case originated when the individual plaintiffs were cited to appear simultaneously before the Dental Board at 10:00 a.m. on July 12, 1982, to show cause why their professional licenses should not be revoked or suspended for practicing under the "Dentalworks" trade name. Their conduct purportedly violated 49 Pa. Code § 33.22(a) (1), which provides as follows:
The use of a trade name or an assumed name is prohibited. A dentist shall practice under his own name, the name of a dentist employing him who proactices in the same office, a partnership name composed only of the name of one or more of the dentists practicing in a partnership in the same office or under a corporate name composed only of the name of one or more of the dentists practicing as employes of the corporation in the same office.
When settlement attempts were unavailing, plaintiffs prepared papers to be filed in federal court and submitted to defendants a written outline and memorandum regarding the federal action. The Dental Board then adjourned the scheduled hearing date and filed a quo warranto and declaratory judgment action in the Commonwealth Court of Pennsylvania.
Writs of quo warranto were requested to cancel the Dentalworks charters and require dissolution of the corporations or, alternatively, to require that the corporations confine their activities to the purposes stated in their charters.
The other facet of the Commonwealth Court case seeks a declaratory judgment that Pennsylvania law and Dental Board regulations lawfully prohibit licensed dentists from using a trade name and that the individual respondents (plaintiffs in the federal court action) violated those prohibitions through their association with Dentalworks facilities.
On August 31, 1982, the present action in federal court was filed, pursuant to which plaintiffs also seek declaratory judgments on the constitutionality and enforceability of 49 Pa. Code § 33.22 and of 71 P.S. § 124, Pa. Adm. Code § 414, which mandates that members of the Pennsylvania Dental Association comprise a super-majority of the Dental Board. In addition, plaintiffs have requested a preliminary, as well as a permanent, injunction against enforcement of the aforesaid Pa. Code provision and have sought compensatory and punitive damages. Furthermore, since plaintiffs have also brought an antitrust claim, they have asked for treble damages pursuant to 15 U.S.C. § 15 and for costs plus attorneys' fees, as provided for in the federal antitrust law and in 42 U.S.C. § 1988.
On September 14, 1982, pursuant to discussions at a pre-trial/discovery conference, defendants urged that we defer any action pending the outcome of the Pennsylvania Commonwealth Court matter. In addition, defendants informally agreed not to pursue hearings, etc. regarding plaintiffs' professional licenses. On September 21, 1982, defendants filed a motion and supporting memorandum that we dismiss all claims other than the antitrust claim and that we stay action on the latter. Alternatively, defendants urged that if we declined to dismiss any of the federal claims, we should, nevertheless, abstain from action pending resolution of the Commonwealth Court case. Plaintiffs filed a timely opposing memorandum. After consideration of the positions of the parties and independent review of the record and applicable law, we are denying defendants' motion in its entirety for the reasons discussed hereinafter.
In the case of Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 404, 5 L. Ed. 257, 291 (1821), Chief Justice Marshall wrote,
It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. . . . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. . . .
Although this observation may have been adhered to over the years by the Supreme Court, it has clearly not been the rule in the other federal courts, particularly since the emergence of the so-called abstention doctrines and the landmark case of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). The Pullman case involved an attempt by the famous sleeping car company and affected railroads and porters to have a federal district court enjoin enforcement of a railroad commission order which required sleepers in Texas to be supervised by conductors, who were always white. Traditionally, porters, who were always black, were in charge of sleepers and on trains with several sleeping cars, were subject to the control of a train conductor. The major problem ...