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October 12, 1966

Ronald NEWMAN, a Minor, by Alvin H. Frankel, his Guardian
Daniel W. FREEMAN and James Mason and Mary Mason, his wife

John Morgan Davis, District Judge.

The opinion of the court was delivered by: DAVIS

The minor plaintiff, a citizen of Pennsylvania, was injured in an automobile accident on June 29, 1964, allegedly as the result of the negligence of the defendants, also citizens of Pennsylvania. After the appointment of a New Jersey guardian for the minor, an action for the child's damages was seasonably instituted in this court on the basis of our diversity jurisdiction. The child's father then brought a seperate action in the Court of Common Pleas of Montgomery County, Pennsylvania for the damages he sustained as a result of his son's injuries.

 We have before us the plaintiff's motion to amend his complaint to include the claim of the minor's father for medical expenses and loss of services due to the minor's injuries.

 Under Rule 15(a) of the Federal Rules of Civil Procedure a party must seek leave of court or written consent of the adverse party before he may amend his pleadings if a responsive pleading has been served. The rule also states that "leave shall be freely given when justice so requires."

 The defendants, however, contend that we cannot permit this additional claim because the father's joinder will destroy diversity since he is a citizen of Pennsylvania. The plaintiff argues, on the other hand, that this additional claim for relief comes within our pendent jurisdiction.

 Under the doctrine of pendent jurisdiction, this court has power over any claim for relief not otherwise subject to its jurisdiction so long as it derives from a common nucleus of operative fact with a federal claim that is properly within our power as outlined in Article III of the Constitution. As stated in United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966), "* * * [If], considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." See Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933); Taussig v. Wellington Fund, Inc., 313 F.2d 472 (3d Cir. 1963).

 The Supreme Court cases that have applied pendent jurisdiction have involved a federal claim rather than one under our diversity power. Nevertheless, in Borror v. Sharon Steel Company, 327 F.2d 165 (3d Cir. 1964), the doctrine was extended to permit a valid diversity claim to act as the basis of jurisdiction for other claims that could not otherwise be brought into federal court. In that case, an out of state administrator of a decedent's state brought an action under the Pennsylvania Survival Act, Pa.Stat.Ann. tit. 20, §§ 320, 601, for the benefit of the decedent's estate and under the Pennsylvania Wrongful Death Act, Pa.Stat.Ann. tit. 12, § 1601, for the benefit of the decedent's parents. The question arose as to whether the wrongful death action was properly before the court since the decedent's parents and the defendant were all citizens of Pennsylvania. The court, first of all, sustained the jurisdiction on the theory that the administrator had a right to bring the action and that his citizenship was controlling.

 However, the opinion went further by stating that even if the parents were the required parties the wrongful death action was properly before the Court on the basis of pendent jurisdiction, there being no dispute concerning the court's diversity jurisdiction over the survival claim. The court reasoned that while the two actions were distinct, they were very much dependent on one another. They arose out of the same acts, and damages were not to be duplicated. As Judge Biggs phrased it, they were a "kind of legal hybrid, Siamese twins of the Pennsylvania law, joined together by the nexus of damages." Borror, supra, at 173.

 In the case now before the court, we have a similar situation. We have two claims that originate from the same occurrence and involve physical injuries to the same person. The damages to the parents here emanate directly from the tort committed against their child. Moreover, under Rule 2228(b) of the Pennsylvania Rules of Civil Procedure, 12 P.S.Pa. Appendix *fn1" which incorporates a longstanding policy of the Commonwealth, the claims of the parents and minor must be enforced in one action.

 This principle of pendent jurisdiction was recently applied in Wilson v. American Chain and Cable Company, 364 F.2d 558 (3d Cir. 1966). There the minor had been injured by a rotary power mower. His father brought an action as his child's guardian for damages sustained by the minor and also in his own right for damages he sustained as the child's parent. The trial judge dismissed the father's own claim on the basis that it did not meet the $10,000 jurisdictional amount. The Court of Appeals reversed, holding that the father's claim could be brought with his son's claim on the theory of pendent jurisdiction. The court recognized that cases where pendent jurisdiction was applied usually involved one plaintiff and that this case involved two distinct plaintiffs, although they were the same person suing in different capacities. Nevertheless, it found such a close relationship between these claims for relief that this difference was not seen as a bar. Judicial economy, and convenience and fairness to the parties were the court's overriding considerations.

 We think the principle of the Wilson case, supra, applies here. The defendants, however, argue there are now two different individuals as plaintiffs while in Wilson the plaintiffs were actually the same person so that diversity was never destroyed. To us, this is an insignificant distinction. The whole basis of pendent jurisdiction is the fact that one claim is within our jurisdiction and the other would not be if it stood alone. The reason why it is not within our power seems to be immaterial, and no cases have been pointed out to us by counsel where such distinction has been drawn. In Wilson, the father's claim was considered defective because it did not meet our monetary jurisdiction. The $10,000 requirement and the diversity requirement are both limitations on our power to hear cases, and we can see no distinctions between them for the purposes of the motion now before us. *fn2"

 So long as one claim is substantial and is properly before us and the other derives from the same operative facts in the manner it does here and logically would be tried in the same proceeding, we have power to adjudicate the entire controversy. United Mine Workers of America v. Gibbs, supra.

 We are not persuaded by the defendant's argument that the rule of complete diversity as enunciated in Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806) must be rigidly maintained. We need not belabor this point except to point out that the principle is not followed whenever the doctrine of ancillary jurisdiction is operative or the case involves statutory interpleader. See 1 Barron & Holtzoff, Federal Practice and Procedure §§ 23, 26; Wright, Federal Courts, §§ 24, 74, 75 and cases cited therein; Diversity of Citizenship; The Interpleader Act, 63 Harvard Law Review, 886 (1950); 28 U.S.C. § 1335. Indeed, the defendants' argument was implicitly rejected in Borror, supra, where the court applied pendent jurisdiction to an action under the Pennsylvania Survival Act and the Wrongful Death Act. The survival claim was lawfully before the court under our diversity jurisdiction, and the question was whether the wrongful death claim with the parents and defendants as citizens of Pennsylvania could still be maintained in the court despite a lack of diversity. The appellate court answered in the affirmative.

 We hold, therefore, that where a minor is injured and suit is brought by a guardian for his damages and diversity of citizenship exists between the guardian and the defendants, a claim by the child's parents for damages resulting to them from the tort committed against their child may properly be brought with the minor's claim under our pendent jurisdiction ...

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