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PANGAIO v. PALMER TWP.

May 15, 1972

Mary R. PANGAIO, Administratrix of the Estate of Armando Pangaio, Deceased
v.
PALMER TOWNSHIP et al. GANNETT, FLEMING, CORDRY & CARPENTER, INC., and United Gas Incorporated, Defendants and Third-Party Plaintiffs, and LIBSON CONTRACTORS, INC., Third-Party Defendant


Troutman, District Judge.


The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 On February 17, 1971, Armando Pangaio was killed as a result of a cave-in of earth and stone into a ditch in which he was working. The decedent's widow renounced her right to administer the estate of her husband, and, on May 10, 1971, Mary Pangaio, a New York citizen, was appointed administratrix. Subsequently, suit was filed in this Court under the Pennsylvania Wrongful Death and Survival Acts, alleging diversity of citizenship as the jurisdictional basis. Before the Court is defendants' motion to dismiss the complaint on the ground that the administratrix was appointed solely for the purpose of manufacturing diversity.

 Title 28 U.S.C. ยง 1359 provides:

 
"A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court."

 In 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), the Court of Appeals held that Section 1359 bars federal court jurisdiction in a suit by a personal representative where the purpose of his appointment was to create diversity jurisdiction. The Court further held that whether in an individual case diversity jurisdiction is manufactured is a question of fact to be determined by the District Court, 402 F.2d at 875, and that the burden of proving the facts to sustain diversity jurisdiction rests with the plaintiff. 402 F.2d at 875. The factors which the District Court may consider in determining whether diversity has been artificially created were enumerated in Groh v. Brooks, 421 F.2d 589 (3d Cir. 1970):

 
"* * * the identity of the representative and his relationship to the party represented; the scope of the representative's powers and duties; any special capacity or experience which the representative may possess with respect to the purpose of his appointment; whether there exists a nondiverse party, such as a parent in a suit for injuries to a child, who might more normally be expected to represent the interests involved; whether those seeking the appointment of the representative express any particular reasons for selecting an out-of-state person; and whether, apart from the appointment of an out-of-state representative, the suit is one wholly local in nature." 421 F.2d at 595.

 In applying the facts of this case to the criteria set forth in Groh v. Brooks, supra, we make the following findings:

 
1. The administratrix is the first cousin of the decedent and his only relative in the United States other than his immediate family;
 
2. The administratrix has a general power of administration of the decedent's estate;
 
3. The administratrix has no special capacity or experience in the administration of estates. As the administrative assistant to a corporate vice-president, she does, however, have experience in financial matters;
 
4. Ordinarily, the widow or her twenty-two year old son might be expected to represent the interests involved;
 
5. The particular reasons for the appointment of the present administratrix are: (a) although both the widow and eldest son can speak and write in English, they would prefer to use the Portuguese language; and (b) the administratrix had much more education and financial experience than the widow and eldest son;
 
6. This suit, in which the decedent resided in Pennsylvania, the statutory beneficiaries for whose benefit this action is being prosecuted are residents of Pennsylvania, the location of the accident is in Pennsylvania, the estate is being administered in Pennsylvania, and all defendants are ...

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