motion. We disagree with defendant's interpretation and must deny his motion.
This cause of action was begun in this court on April 25, 1968 and was therefore pending prior to the new rule announced in McSparran, supra, which prohibits artificial diversity. In McSparran, supra, the court declared that pending actions based on 'artificial diversity' would be dismissed,
'only where the court finds that in the circumstances of the particular case there is ample time and opportunity for the plaintiff to institute a new action in the state court and that no unreasonable burden will be imposed on the plaintiff by the dismissal of the federal action'. McSparran, supra, 402 F.2d at 877.
In this case the one year statute of limitations under the wrongful death action
had expired before the McSparran decision became law, although the two year statute of limitations under the survival action
had not. Therefore, were we to dismiss the complaint, the plaintiff would be unable to bring the same complaint in the state courts. Our dismissal would produce the harsh result discussed in Esposito, supra, 402 F.2d at 880:
'As we pointed out in McSparran it would be harsh to apply our new rule retrospectively to a case such as this, in which the plaintiff's rights would be lost because the statute of limitations bars the institution of a new suit in the state court'.
The defendant has notified this court that if we granted his motion to dismiss this action, he would waive his statute of limitations defense in the state court. Despite this stipulation, we are restricted by the McSparran, supra, and Esposito, supra, decisions, which clearly provide that federal jurisdiction will be retained where the statute of limitations has expired. Therefore, we will deny defendant's motion thereby insuring to plaintiff access to all the actions provided for by the Pennsylvania statutes.