MEMORANDUM AND ORDER
VANARTSDALEN, District Judge.
This is a motion to dismiss for lack of diversity jurisdiction filed by defendant, Margaret E. Driscole, based upon the contention that plaintiff manufactured jurisdiction by appointing an out-of-state guardian for the plaintiff, a minor. The suit arises out of injuries allegedly sustained by the plaintiff, Don Repella, a minor, who while riding a bicycle was allegedly hit and injured by defendant's automobile on January 8, 1966. The injured minor has always lived with his parents in Levittown, Pennsylvania, and the defendant, Margaret E. Driscole, lives in Fairless Hills, Pennsylvania. The Court appointed guardian, James S. Puliti, Jr., is a New Jersey resident, who, as admitted by the plaintiff, was chosen as guardian solely to manufacture diversity.
On January 4, 1968, the plaintiff filed a complaint in federal court. A praecipe for a writ of summons in trespass was also filed the same day in the Court of Common Pleas of Bucks County, Pennsylvania. However, the plaintiff directed that the prothonotary not certify the writ to the Sheriff for service in the state court action and as a result, plaintiff's cause of action in the state courts may now be barred by the statute of limitations, or abandonment. See Will v. Malosky, 432 Pa. 246, 247 A. 2d 788 (1968); Marucci v. Lippman, 406 Pa. 283, 177 A. 2d 616 (1962); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A. 2d 317 (1961). See also 22 P.L.E. Lim. of Actions § 101.
It is clear that this motion to dismiss must be disposed of in compliance with the Rule of the Third Circuit as expressed in McSparran v. Weist, 402 F.2d 867 (3rd Cir. 1968). In McSparran the Court granted a motion to dismiss where an out-of-state guardian was appointed in order to manufacture diversity. However, in that case the statute of limitations had not run on the cause of action in the state court. The court, reversing previous decisions, held that artificially manufactured diversity would be insufficient to create federal jurisdiction. In an effort to be equitable concerning causes of action presently in federal court upon manufactured diversity which would be barred in state court by the statute of limitations the court limited the application of the new rule.
"It shall apply to all causes of action which arise after the date of the filing of this opinion [October 2, 1968]. In cases involving causes of action which arose prior to such date, including cases now pending, a district court shall apply the new rule against artificially created diversity, either on motion of a party or sua sponte, if it is conceded by the parties or the court finds as a fact that diversity was artificially created, but 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." Id. at 877.
In the subsequent case of Esposito v. Emery, 402 F.2d 878 (1968), the Third Circuit refused to dismiss a case by applying McSparran retroactively where the state statute of limitations had run. The court stated:
"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." Id. at 880.