The opinion of the court was delivered by: RAMBO
On March 9, 1983, the plaintiffs, graduates of ADIO Institute of Straight Chiropractic, Inc. (hereinafter ADIO), filed a complaint against various defendants who are involved in the controversy surrounding the state's approval of ADIO, the licensing of ADIO's graduates or the funding of students attending ADIO.
In addition to the complaint, two subgroups of the plaintiffs have moved for a temporary restraining order and a preliminary injunction against one defendant, The Pennsylvania State Board of Chiropractic Examiners. The subgroups of plaintiffs are those who graduated from ADIO before June 17, 1982, but passed the State examination after June 17, 1982, and those who graduated from ADIO and passed the State examination after June 17, 1982. The TRO and the preliminary injunction seek to require the Pennsylvania State Board of Chiropractic Examiners to immediately issue licenses to practice chiropractic to the subgroups of plaintiffs defined above. On March 16, 1983 after notice to the attorney representing the State Board, this court held a hearing on the motion for the TRO.
At the hearing the court was informed that the identical issue presented in the motion for a TRO is already before the Honorable David W. Craig, Judge, Commonwealth Court of Pennsylvania, in Brady v. Commonwealth of Pennsylvania, State Board of Chiropractic Examiners, No. 1921 C.D. 1982. The State Board argues that in light of the pending Commonwealth Court action this court should abstain.
The litigation before Judge Craig seeks the following relief:
WHEREFORE, Petitioners respectfully pray that this Honorable Court order that those graduates of ADIO who complete and pass the November, 1982 licensure examination, or any other licensure examinations given by Respondent State Board, be granted licenses to practice chiropractic, and provide such other and further relief as to the Court appears just and proper in the circumstances. Amended Petition for Review at 10, No. 1921 C.D. 1982 (Oct. 12, 1982).
The relief sought in Commonwealth Court is substantially identical to the relief sought in the motion for a temporary restraining order in this court. Both cases would, if successful, compel the licensing of ADIO graduates who successfully pass "any . . . licensure examinations given by Respondent State Board, . . ." The parties in the Brady case have completed the pleadings and Judge Craig has scheduled an evidentiary hearing for Monday, March 28, 1983. Brady v. Commonwealth of Pennsylvania, State Board of Chiropractic Examiners, No. 1921 C.D. 1982 (Feb. 14, 1983).
The United States Supreme Court has identified a number of circumstances when abstention is appropriate. One set of facts calling for abstention was announced in Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943). The Burford case involved issues of state policy and procedures in regulating intrastate oil and gas production. Id. at 316-17. Justice Black, relying on the decision in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), said:
The State provides a unified method for the formation of policy and determination of cases by the Commission and by the state courts. The judicial review of the Commission's decisions in the state courts is expeditious and adequate. Conflicts in the interpretation of state law, dangerous to the success of state policies, are almost certain to result from the intervention of the lower federal courts. On the other hand, if the state procedure is followed from the Commission to the State Supreme Court, ultimate review of the federal questions is fully preserved here. Cf. Matthews v. Rodgers, 284 U.S. 521, 76 L. Ed. 447, 52 S. Ct. 217. Under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand. 319 U.S. at 333-34.
The Burford theory of abstention was qualified and explained by the Court in Colorado River Water Conservation District v. U.S., 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). Justice Brennan, writing for the Court said:
In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Id. at 814.
See Pike County Light and Power Co. v. Pennsylvania Public Utility Commission, No. 82-1608 at p. 6 (M.D. Pa. Jan. 13, 1983).
The present case falls within the Burford abstention theory. The Commonwealth of Pennsylvania has in place an administrative process by which practitioners of chiropractic are licensed. See 63 P.S. § 601 et seq. Those applicants who are denied licenses can appeal to the Commonwealth Court. See 42 Pa. C.S.A. § 761. The Commonwealth has a strong interest in establishing a coherent policy and procedure by which to protect its citizens from the dangers of unqualified chiropractic practice. See Eatough v. Albano, 673 F.2d 671, 676 (3d Cir. 1982); Davis v. Board of Medical Examiners, 497 F. Supp. 525, 528 (D.N.J. 1980). In furtherance of the procedures and policy outlined in the statutes, the Commonwealth Court, Judge Craig presiding, has considered matters relating to previous graduates of ADIO and their ability to take the state licensing examination. Smith v. State Board of Chiropractic Examiners, No. 485 C.D. 1981 (Mar. 27, 1981); Mittica v. State Board of Chiropractic Examiners, No. 2446 C.D. 1981 (Oct. 15, 1981); Zivanovitch v. Commonwealth of Pennsylvania, State Board of Chiropractic Examiners, No. 844 C.D. 1982 (Apr. 27, 1982). Judge Craig, at this very date, has before him the Brady case, see supra at 435, which is identical to the case before this court.
The existence of the Brady case greatly strengthens the reasons for this court abstaining on the motion for a temporary restraining order. The Brady case is scheduled for an evidentiary hearing before Judge Craig on Monday, March 28, 1983. Brady v. Commonwealth of Pennsylvania, State Board of Chiropractic Examiners, No. 1921 C.D. 1982 (Feb. 14, 1983). The relative progress which has been made in the duplicative state and federal lawsuits is a factor considered by the Supreme Court in analysis of the facts in Colorado River Water Conservation District v. U.S., 424 U.S. 800, 820, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). The progress of the actions was characterized as the "priority" element of the Colorado River test. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 461 U.S. 1, 51 U.S.L.W., 4156, 4161, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). In Colorado River the federal suit had been filed prior to the state action, but only the complaint and the motion to dismiss had been filed in federal court. 424 U.S. at 820. The lack of any proceedings in the federal court was an element in favor of abstention. Id., 51 U.S.L.W. at 4161. The configuration of the ...