Appeal, No. 335, Jan. T., 1962, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1957, No. 451, in case of Luish London v. City of Philadelphia. Judgment reversed.
Levy Anderson, First Deputy City Solicitor, with him Richard K. Masterson and Mattew W. Bullock, Jr., Assistant City Solicitors, Joseph V. Furlong, Jr., Deputy City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, appellant.
William H. Brown, III, with him A. Leon Higginbotham, Jr., for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
An automobile, operated by Luish London, was involved in a collision with a truck, owned by the City of Philadelphia (City), and operated by one of its employees. Two passengers in the London automobile, Lettie and William Cherry, were injured.
The Cherrys, being residents and citizens of the State of Virginia, instituted personal injury actions against the City in the United States District Court for the Eastern District of Pennsylvania. The City joined London as a third-party defendant. Subsequently the City settled the Cherrys' claims by the payment of $20,000 in damages*fn1 and sought partial recovery from London. The contribution action proceeded and the jury, after trial, returned a verdict in favor of the City and against London in the amount of $10,000, being one-half of the amount paid by the City in settlement of the Cherrys' claims. London did not assert any claim against the City in this action.
During the pendency of the foregoing federal action, London commenced this suit in the Court of Common Pleas No. 3 of Philadelphia County, seeking damages from the City in compensation for injuries suffered int he accident. The City in its answer to the complaint asserted that the judgment in the federal court contribution action barred London's present action. The court overruled the City's motion for judgment on the pleadings. A trial ensued subsequent to the termination
of the federal court action and resulted in a verdict for London against the City in the amount of $18,000. The City's motion for judgment notwithstanding the verdict was overruled. From the judgment entered on the verdict, the City appeals.
The lower court in ruling that the federal action did not bar the present suit based its conclusion upon the premise that London could not have asserted or litigated his claim against the City in the federal court action, due to the lack of diversity of citizenship between London and the City. This was not correct. London's claim could have been asserted as a counterclaim in the federal court as a matter ancillary to the original actions. Since the federal court had jurisdiction in the action of the Cherrys against the City, due to diversity of citizenship of the original parties, an independent federal jurisdictional basis was not required in the ancillary actions. Once the federal court validly acquired jurisdiction, its jurisdiction extended to all matters ancillary to the main cause of action, even though the ancillary matter lacked federal jurisdictional requisites: Heintz & Co. v. Provident Tradesmens Bank & Trust Co., 30 F.R.D. 171 (E.D. Pa. 1962); Dery v. Wyer, 265 F.2d 804 (2 Cir. 1959).
Moreover, not only was it possible for London to assert his claim in the federal court action, but his failure to do so precluded him from ever subsequently asserting it in any federal court. This is based on the res adjudicata principle. See, United States v. Southern Construction Co., 293 F.2d 493 (6 Cir. 1961); Union Paving Company v. Downer Corporation, 276 ...