on the ground that proper diversity of citizenship is lacking.
Gerald Miller, Sr., his wife Esther, and one of their four children, Linda, were killed in an automobile accident on September 5, 1970. The Millers were all citizens and residents of Pennsylvania as were all the defendants. William Pistone, a Philadelphia attorney who lives in New Jersey, was appointed administrator of the estates of the three deceased Millers and suit was instituted in his name on behalf of the estates. The question raised by defendants' motion to dismiss is whether diversity of citizenship was "manufactured" for the purpose of invoking the jurisdiction of this court. 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 pertinent facts as they appear in the record (including pleadings, deposition and affidavit of Gerald Miller, Jr., and affidavit of James D. McCrudden, Esquire, attorney for plaintiff) are:
The decedents were survived by three Miller children, Gerald Jr., 22 years of age, Edward, 19, and Mariann, 11. At the time of the accident Gerald Jr. was in the United States Navy stationed at San Diego, California. Within approximately 2 1/2 months after the accident, Gerald Jr. received a hardship discharge from the Navy and returned to the family home in Philadelphia. Gerald Miller, Sr., was also survived by five brothers and two sisters. One of the sisters, Alene Murray, with her husband Frank, moved into the Miller home sometime in October 1970 to serve the role of foster parents to the children. Another sister, Carrie Hecker, lived in Philadelphia and the five brothers, Edward, Merle, Lawrence, Kenneth and Keith, all lived in Philadelphia or in the nearby suburbs. One of the brothers, Edward, was in the real estate business and another, Merle, operated a moving business and had employed Gerald Sr. on a part-time basis prior to the latter's death.
McSparran v. Weist, supra, laid down the rule for this Circuit that 28 U.S.C. § 1359
bars access to the federal courts for a suit brought by a diverse personal representative whose appointment as such is for the purpose of creating diversity jurisdiction. That case went on further to reiterate that it is the plaintiff's burden to prove facts supporting diversity jurisdiction. The factors to be considered in determining whether diversity has been artificially created were later enumerated in Groh v. Brooks, 421 F.2d 589 (3d Cir. 1970), at 595:
". . . 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 non-diverse 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 wholly local in nature."