The opinion of the court was delivered by: DAVIS
We have before us the defendant's motion to dismiss the complaint on the ground that this court has no jurisdiction over the subject matter due to lack of diversity of citizenship.
Mark A. Hanichak, a minor and a citizen of Pennsylvania, suffered injuries on May 24, 1964 allegedly as a result of the negligence of the defendant railroad, also a citizen of Pennsylvania. About a year and a half later, his parents petitioned the Orphans' Court of Lehigh County, Pennsylvania to appoint Laurence J. DiStefano, a citizen of New Jersey, as his guardian.
The petition stated in part:
"3. The appointment of a Guardian is necessary for the prosecution of an action in Trespass to be commenced by the Guardian of the said minor resulting from an accident which occurred on May 24, 1964 * * *
"6. There are no assets in the estate of the said minor, either real or personal excepting the cause of action resulting from the accident of May 24, 1964 whence the minor sustained the injuries heretofore described."
"2. That the powers and duties of said Guardian, without further Order of this Court, shall be limited to the institution and prosecution to final judgment and/or settlement of a civil suit in the United States District Court for the Eastern District of Pennsylvania for damages for personal injuries to minor Petitioner arising out of an automobile accident which occurred on May 24, 1964, provided, however, that no compromise of said action shall be affected without prior approval of this Court;
"3. That without further order of this Court, said Guardian shall have no authority to receive the proceeds of any recovery in said suit by way of verdict or settlement."
The question presented therefore is whether under the facts of this case, the court must consider the citizenship of the guardian or that of the minor in determining whether diversity jurisdiction exists.
The defendant contends that Mr. DiStefano is only a guardian ad litem under the Orphans' Court decree, making him but a nominal or formal party and the state of his domicile irrelevant for jurisdictional purposes.
In Fallat v. Gouran, 220 F.2d 325 (3d Cir. 1955), the Court of Appeals of this circuit rejected the test of looking to the citizenship of the real party in interest and on the basis of its interpretation of several Supreme Court decisions, held that the citizenship of an incompetent's guardian was controlling if he had capacity to sue. While the court specifically reserved the question as to how it should be determined whether the fiduciary has such a capacity, it outlined two possible approaches: Rule 17 of the Federal Rules of Civil Procedure and the law of the state that appointed the guardian. See Lumbermen's Mutual Casualty Co. v. Elbert, 348 U.S. 48, 75 S. Ct. 151, 99 L. Ed. 59 (1954); Mexican Central Railway Co. v. Eckman, 187 U.S. 429, 23 S. Ct. 211, 47 L. Ed. 245 (1903); City of New Orleans v. Gaines's Administrator, 138 U.S. 595, 11 S. Ct. 428, 34 L. Ed. 1102 (1891).
The law of Pennsylvania clearly gives a guardian, whether he be a general guardian or a guardian ad litem, the right and capacity to sue on behalf of a minor. Pa.Stat.Ann., tit. 20, § 320.1041 provides that "[the] guardian of the estate of a minor * * * shall also have the right to maintain any action with respect to * * * real or personal property of the minor." Rule 2027 of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix goes on to require that "When a minor is party to an action he shall be represented by a guardian who shall supervise and control the conduct of the action in behalf of the minor." Rule 2026 defines "guardian" as either a "guardian of a minor appointed by any court of competent jurisdiction" or "a person in the nature of a next friend * * *" or "a ...