relies on the doctrine of ancillary or pendant jurisdiction and cites Buresch v. American LaFrance, 290 F. Supp. 265 [W.D.Pa., 1968] of this District in support of his motion.
We have always considered pendant jurisdiction as a discretionary matter where the Court may allow the assertion of a non-federal claim for which no independent jurisdictional ground exists, along with a recognized federal claim between the same parties who are properly before the court. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 . This is proper where "the relationship between that (i.e. the federal) claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'" (p. 725, 86 S. Ct. p. 1138).
Under such a view pendant jurisdiction has been employed to entertain those unitary claims where, under state law, two rights of action must be redressed in one suit, i.e. the parents' claim and the minor child's claim, Wilson v. American Chain and Cable Co., 364 F.2d 558 [3rd Cir., 1966], Obney v. Schmalzreid, 273 F. Supp. 373 [W.D.Pa., 1967], and wrongful death and survival action claims, Borror v. Sharon Steel Co., 327 F.2d 165 [3rd Cir., 1964].
Contrary to Buresch v. American LaFrance, supra, the majority of Judges in this District, and the almost unanimous opinion of the federal courts in this country as well as the text writers and the comments of the Advisory Committee on the 1948 Amendments to Fed.R. of Civ.P. 14, all require independent jurisdictional grounds for the assertion of a claim by plaintiff against a third-party defendant. Palumbo v. Western Maryland R.R. Co., 271 F. Supp. 361 [D.Md., 1967]; Corbi v. United States v. T.W. A. Inc., 298 F. Supp. 521 [W.D.Pa., 1969]; Ayoub v. Helm's Express, Inc., 300 F. Supp. 473 [W.D.Pa., 1969]; 3 Moore's Federal Practice § 14.27(i); Annot. 37 A.L.R.2d 1430. None of these cases consider such attempts to assert a direct claim against a third-party defendant to be a matter of discretion under ancillary or pendant jurisdiction. They rest squarely on absence of jurisdiction. See McPherson v. Hoffman, 275 F.2d 466 [6th Cir., 1960]. Nor does the fact that Fed.R. of Civ.P. 14 does not expressly require diversity jurisdiction prevail over the provisions of Fed.R. of Civ.P. 82 which states that these rules neither extend nor limit the jurisdiction of the United States District Courts.
If this were a matter of discretion we would deny the motion because plaintiff sued his employer under the provisions of the F.E.L.A. which applies a different standard of negligence, and a different treatment of contributory negligence, from that which he seeks to assert against the third-party defendants. Gibbs v. United Mine Workers, cit. supra, in discussing the discretionary nature of ancillary jurisdiction, states:
"* * * there may be reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, that would justify separating state and federal claims for trial, Fed.Rule Civ.P. 42(b). If so, jurisdiction should ordinarily be refused." (p. 727 of 383 U.S., p. 1139 of 86 S. Ct.).