of creating diversity of citizenship and (2) whether, assuming diversity to have been "manufactured", a dismissal of this action, the cause for which arose prior to the McSparran decision, would impose an unreasonable burden upon the plaintiff.
Turning my attention to the first and foremost question, I conclude from the record that the appointment of decedent's father as administrator, without doubt, was for purposes other than to create diversity of citizenship. There is no question that decedent's widow was highly distraught upon her husband's death, her hospitalization being needed shortly thereafter. Nor did this distress pass easily, for decedent's widow exhibited this continuing emotional distress upon the stand at the evidentiary hearing.
Decedent's widow was requested by attorneys Watzman and Watzman to act as administratrix of the estate of her late husband for the purpose of the filing of a lawsuit, but she replied to them that she would not so act because anything concerning her late husband upset her. This refusal on the part of decedent's widow, considered together with the evidence of her considerable and continuing distress, is a clear indication that the appointment of one other than her as a personal representative was sought with no dominant purpose of creating diversity of citizenship.
Both the decedent and decedent's widow were very close to decedent's father, having lived with him during four to five years of married life and having visited him regularly thereafter. Decedent had no relative in Pennsylvania or outside of Pennsylvania who could serve as administrator in place of decedent's wife, other than decedent's father. It is clear that he was chosen as administrator because of the warm and close relationship which he had with decedent's immediate family and because of the understanding and emotional support which he could bring to the survivors of the immediate family during difficult times.
While of lesser education than his daughter-in-law, decedent's father was chosen as administrator for the strength which he could bring to the family. Had other motives existed, defendants' cross examination of this man would surely have elicited them. It did not. I therefore conclude that the appointment of decedent's father as administrator was for a dominant if not, in fact, sole purpose other than to create diversity of citizenship.
I also find that to dismiss this action would create an unreasonable burden upon plaintiff. The wrongful death statute of limitations has run. Also, discovery has progressed in this Court. For both reasons, to require the representative of this estate to file suit anew in a different jurisdiction would act to the substantial prejudice of plaintiff and constitute an unreasonable burden upon him.
Now, this 11th day of April, 1970, it is hereby ordered that the Motion to Dismiss filed by defendants Robert H. Hammel and Esther M. Hammel be and the same is hereby denied.
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