SHERIDAN, Chief Judge.
In this diversity action the jury returned a verdict for defendant. Plaintiff has filed motions to dismiss or for a new trial.
On October 25, 1967, Thelma J. Law, Administratrix of the Estate of William C. Yaggi, brought an action under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601, and Survival Act, 20 P.S. § 320.601, to recover damages for the death of William C. Yaggi on January 16, 1967, following an automobile accident. On July 22, 1968, the jury returned a verdict for defendant and judgment was entered thereon. On July 29, 1968, plaintiff filed a motion for a new trial, and on October 28, 1968, filed a motion to dismiss.
The motion to dismiss is based on the October 2, 1968, decision of the Court of Appeals for the Third Circuit in McSparran v. Weist, 402 F.2d 867. In her motion and in her brief, plaintiff states that Thelma Law, the Administratrix, is a citizen and resident of Texas, that she was appointed Administratrix solely to "manufactured" citizenship diverse to that of defendant so that the action could be brought in federal court, and that manufactured" citizenship was disapproved in McSparran as a means of conferring jurisdiction on a federal court. Plaintiff argues, therefore, that this court has no jurisdiction, that the statute of limitations has not run on the survival action,
and that under McSparran, supra, and Esposito v. Emery, 3 Cir. 1968, 402 F.2d 878, the court should dismiss pending cases for want of jurisdiction where the statute of limitations has not run and plaintiff has time to file an action in State court. It is clear that plaintiff is attempting to have "two bites of the apple." She seeks to void the judgment in this court by a dismissal for want of subject matter jurisdiction, thereby preventing a bar to the survival action in the State court.
In McSparran, the court held that artificially "manufactured" diversity will not create federal jurisdiction. It directed that its holding shall apply to all causes of action which arose after the date of the decision, and, with limitations, to those which arose before the decision, including cases pending:
"We recognize that many actions are now pending in the courts of this circuit in reliance on our earlier decisions. In many of these actions the statute of limitations may already bar the institution of new suits in the state courts, although in some of them protective state court actions may have been filed. To apply the rule we have here announced to all pending and future actions indiscriminately would work great hardship on those who have relied on our prior recognition of artificial diversity jurisdiction. It is therefore appropriate to declare the new rule to be prospective.