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January 23, 1968

Philip OLIVIERI, minor, by Guardian J. Raymond Dietrich
Clifford ADAMS. Alvin H. FRANKEL, Guardian of the Estate of Susan Piselli, minor v. LANSDOWNE CONSTRUCTORS, INC., et al. Alvin H. FRANKEL, Guardian of the Estate of Anne B. Morrow, minor v. John C. HONDROS, Administrator of the Estate of Patricia M. Bradley, Dec'd and Rosemarie Bradley

The opinion of the court was delivered by: LUONGO

The motions before the court arise out of three separate personal injury suits instituted against Pennsylvania defendants on behalf of Pennsylvania minors. In each of the cases a foreign guardian was appointed for the minor, thereby creating the diversity of citizenship upon which this court's jurisdiction is founded. *fn1" 28 U.S.C. § 1332(a). By the pending motions, the minors' parents, who are also citizens and residents of Pennsylvania and, therefore, lack diversity of citizenship with defendants, seek to join as plaintiffs in these suits, either by amendment under Rule 15 or by intervention under Rule 24(b), and to assert claims for the damages sustained by them as a result of the minors' injuries.

 Under Pennsylvania law personal injury to a minor gives rise to two separate and distinct causes of action, one the parent's claim for medical expenses and loss of the minor's services during minority, the other the minor's claim for pain and suffering and for losses after minority, Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (1938); In re Mikasinovich, 110 Pa.Super. 252, 168 A. 506 (1933).

 Numerous attempts have been made recently by parents to join their claims in personal injury suits instituted in this district by foreign guardians for their minor children and because of conflicting views, *fn2" a panel of judges was appointed *fn3" by the court to hear argument (in some instances, re-argument) on the motions in these cases and render a ruling which may establish uniformity of action within the district pending a definitive ruling by the Court of Appeals.

 The principal question presented by these motions is whether this court has jurisdiction over the claims of these parents against these defendants. The subsidiary question is whether this court should exercise its discretion to entertain the claims if it has the jurisdiction to do so.


 The critical question arises because the jurisdiction of the federal courts is limited. Among the nine separately enumerated classes of cases to which "[the] judicial Power shall extend" are cases "arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" and controversies "between Citizens of different States." U.S.Const. Art. III, § 2. Romero v. International Terminal Operating Co., 358 U.S. 354, 364, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959). The former are commonly referred to as federal question cases, the latter as diversity cases.

 Since they and the defendants are all citizens of Pennsylvania, the parents concede that this court lacks original jurisdiction over their claims against defendants. They contend, however, that since the guardians' claims for the minors' injuries are already before us, this court has the power to entertain the parents' claims under the doctrine of pendent jurisdiction. The parents urge that the court should exercise its discretion in favor of their claims since to do so would promote convenience of parties and witnesses and avoid needless duplication of effort by the state and the federal courts.

 The doctrine of pendent jurisdiction was applied in Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933) and, as expanded, was defined thus in United Mine Workers of America v. Gibbs, 383 U.S. 715, at page 725, 86 S. Ct. 1130, at page 1138, 16 L. Ed. 2d 218 (1966).

"Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,' U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. * * * The state and federal claims must derive from a common nucleus of operative fact. But 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."

 Hurn and Gibbs, as well as their forebears and their progeny all require a substantial federal question claim as the basis for the federal court's jurisdiction over a case before the federal court may exercise pendent jurisdiction over non-federal claims of the same plaintiff against the same defendant. *fn4" The reason for the requirement appears clear enough. Federal questions are for the federal courts to decide. Assuming the existence of such a federal question, in order to avoid piece-meal litigation and to promote convenience and judicial economy, the doctrine of pendent jurisdiction permits (not requires) the federal courts to decide not only the federal question claims but also to adjudicate the state law claims in the same "cause of action" (Hurn) or "case" (Gibbs).

 The reason underlying the doctrine, the special competence of the federal courts to decide federal questions, simply does not exist in diversity cases in which, under Erie R.R. Co. v. Tompkins, *fn5" federal courts are required to apply state law. The cases before us, of course, involve no federal question claims, they present only state law claims.

 The parents argue that two decisions by the Court of Appeals in this Circuit, Borror v. Sharon Steel Co., 327 F.2d 165 (3d Cir. 1964) and Wilson v. American Chain & Cable Co., 364 F.2d 558 (3d Cir. 1966), have extended the doctrine of pendent jurisdiction to diversity cases and that we are bound by those precedents to apply the doctrine in these cases. We do not think that the holding in either case goes that far, although there are statements in each, especially in Wilson, which would seem to support the parents' position.

 The holding in Borror is that an administrator suing for the estate of a deceased minor under Pennsylvania's Survival Act, *fn6" has the capacity to sue and is the proper party plaintiff in the claim for the Wrongful Death Act *fn7" beneficiaries, consequently the administrator's foreign citizenship, not the non-diverse citizenship of the Wrongful Death Act beneficiaries, controls for diversity purposes. Although the issue before it was thus decided, the Court went on to discuss pendent jurisdiction. Acknowledging that Hurn required a substantial federal question as the jurisdictional base for application of the doctrine and that it would be an extension to apply it in a diversity case, the Court opined that such extension was "desirable and should be countenanced by law" ( Borror, supra, 327 F.2d at 174) and concluded that jurisdiction of the Wrongful Death Act suit could be sustained under the Hurn principle of pendency. Even if, as parents contend, that statement was made as an alternative holding rather than as dictum, it is limited to its narrow facts, i.e., a suit instituted by one person empowered by state law to seek redress for multiple claims under Wrongful Death and Survival Acts *fn8" which are complementary in nature and involve danger of duplication of damages if not tried ...

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