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KANE v. CAMERON

June 30, 1971

Eileen H. KANE, Admx. of the Estate of John J. Conner, Deceased
v.
Albert A. CAMERON and Marie I. Cameron, his wife, Defendants, and Commissioners of Township of Lower Merion, Defendants and Hom A. SONG, Third-Party Defendant


Ditter, District Judge.


The opinion of the court was delivered by: DITTER

DITTER, District Judge.

 This matter is before the court on a motion to dismiss a survival and wrongful death action on the ground that diversity of citizenship has been "manufactured." Plaintiff, a New Jersey resident, is the administratrix of the estate of her brother-in-law, who was a resident of Pennsylvania. Third party defendant, Hom A. Song, who filed the instant motion, is a Pennsylvania resident, as are all the other defendants.

 The complaint alleges that the decedent, John J. Conner, died on March 14, 1968, from injuries sustained in a fall on a sidewalk owned and maintained by defendants, in Montgomery County, Pennsylvania.

 Third party defendant contends that decedent's administratrix was appointed for the sole purpose of creating diversity so that an action could be brought in this court. We agree. McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. denied sub nom. Fritzinger v. Weist, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969), bars such a suit. In compliance with Groh v. Brooks, 421 F.2d 589 (3d Cir. 1970), an explanation of our findings follows.

 By affidavit filed August 20, 1970, Alice Conner, wife of the decedent, stated that at the time of the appointment of her sister, Eileen H. Kane, as administratrix, both of her sons were in or about to enter the military. Her daugher and son-in-law were then out of the country. Accordingly, none of them could act as an administrator. Mrs. Conner chose her sister because she was "mature and capable of sound judgment." In addition, she was Mrs. Conner's closest living relative. Decedent's wife did not have herself appointed because at the time, she was "still very much emotionally upset" and was "fearful and concerned about making decisions with respect to his estate." *fn1"

 
1. The chosen administratrix is a sister of decedent's wife; therefore, a close relationship exists.
 
2. The administratrix has apparently unlimited scope with respect to her powers and duties.
 
3. Aside from Mrs. Conner's confidence in the administratrix, Eileen Kane has no special capacity or experience with respect to the purpose of her appointment.
 
4. There exists a non-diverse party, Mrs. Conner, who might more normally be expected to represent the interests involved.
 
5. Those seeking the appointment of plaintiff as administratrix have expressed questionable reasons for selecting an out-of-state person, especially in light of the fact that the right of action in question constitutes the main and probably the only asset of the estate.
 
6. Apart from the appointment of an out-of-state administratrix, the suit is one wholly local in nature. All of the defendants and decedent's wife are Pennsylvania residents and the accident occurred in that state.

 In view of the uncertainty about the reason for Mrs. Kane's appointment which the answers to interrogatories create, we conclude that she was chosen so that federal jurisdiction could be asserted. Since all the interested parties, except administratrix, have been and are residents of Pennsylvania, and since the defendants reside and the accident occurred in Montgomery County, suit ...


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