plane. It, therefore, appears that plaintiffs allege alternative causes of action against the two defendants, in an effort to recover against either or both, as the facts may develop at the trial, - against the defendant The United States, under the Federal Tort Claims Act, and against defendant TWA, under the common law of Pennsylvania. Cf. Pearce v. Pennsylvania R. Co., 162 F.2d 524 (3d Cir. 1947).
At an informal hearing it appeared that between the plaintiffs and the third party defendant there exists diversity jurisdiction, but the relief sought in the complaint is below the jurisdictional amount. Section 1332, 28 U. S. C. Thus, the issue is: May plaintiffs bring in a third party defendant under Rule 14(a) Fed. R. Civ. P. absent the jurisdictional amount when federal jurisdiction does not otherwise appear between them? We think this issue must be answered in the negative.
It has been long since decided that under Rule 14(a) Fed. R. Civ. P. jurisdictional facts must exist between the plaintiff and a third party defendant before plaintiff is permitted by way of amendment to add the third party defendant as a party defendant. See McPherson v. Hoffman, 275 F.2d 466 (6th Cir. 1960); Patton v. Baltimore & O. R. Co., 197 F.2d 732, 743 (3d Cir. 1952); Gladden v. Stockard S. S. Co., 184 F.2d 510 (3d Cir. 1950); Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir. 1948); Friend v. Middle Atlantic Transp. Co., 153 F.2d 778 (2d Cir. 1946)
; Osthaus v. Button, 70 F.2d 392 (3d Cir. 1934); Palumbo v. Western Maryland Railway Company, 271 F. Supp. 361 (D. Md. 1967); Armstrong v. United States, 171 F. Supp. 835, 840 f. n. 4 (E. D. Pa. 1959); McDonald v. Dykes, 6 F. R. D. 569 (E. D. Pa. 1947) aff'd per curiam 163 F.2d 828 (3d Cir. 1947); 3 Moore's Federal Practice para. 14.27. None of these cases so much as mentions pendent jurisdiction. The principles of the rule that once jurisdiction attaches, a federal court retains jurisdiction, are not applicable.
I relied on some of these decisions in Pasternack v. Dalo, 17 F. R. D. 420, 425 (W. D. Pa. 1955) in declaring that if the plaintiffs and third party defendants were citizens of the same state the district court "would lack jurisdiction to render a binding judgment in favor of the plaintiffs against the third-party defendants."
As stated in 37 A.L.R.2d, at page 1430, Sec. 9: "The courts have held, with almost complete uniformity, that an amendment of the plaintiff's complaint so as to assert a claim against the third-party defendant destroys the court's jurisdiction, where the plaintiff and the third-party defendant have a common citizenship." (Citing numerous decisions)
The notes of the Advisory Committee on Rule 14 state that "[In] any case where the plaintiff could not have joined the third party originally because of jurisdictional limitations such as lack of diversity of citizenship, the majority view is that any attempt by the plaintiff to amend his complaint and assert a claim against the impleaded third party would be unavailing.
This case is unlike cases where under state statutory law two rights of action shall be redressed in one suit, for example: a father's claim is pendent to that of his son, Wilson v. American Chain and Cable, 364 F.2d 558 (3d Cir. 1966), and under both the Survival Act and Wrongful Death Act of Pennsylvania the Federal Court has jurisdiction of either claim as pendent to the other, Borror v. Sharon Steel Company, 327 F.2d 165 (3d Cir. 1964).
I am aware of the persuasive authorities cited by the plaintiffs in their supplemental brief, but even they agree that the weight of authority is opposed to their position. No appellate court case is included among the citations submitted. In the circumstances, it is my opinion that higher authority than that of a district court should extend jurisdiction beyond that which is apparently the established law.
An appropriate Order will be entered.