MEMORANDUM AND ORDER
Defendants, Nancy and Joan Gentzsch, have moved to dismiss the action in C.A. 70-819 for lack of complete diversity. The plaintiffs are Edward V. Pineda and Monica Pineda, husband and wife, their daughter, Maria Carolina, and their son, Gregory.
Both Maria Carolina and Gregory are minors and their claims for relief are brought by their parents. The case involves an intersectional collision between a vehicle driven by Mrs. Pineda, in which Maria Carolina and Gregory were passengers, and a vehicle driven by Nancy Gentzsch and owned by Joan Gentzsch, in which Karen Fahrner, plaintiff in C.A. 69-814, was a passenger.
Defendants are citizens of the Commonwealth of Pennsylvania. The complaint alleges that Edward V. Pineda, Monica Pineda and Maria Carolina are citizens of Chile, residing in Pennsylvania, and that Gregory is a citizen of the United States, residing in Pennsylvania. Defendants have moved to dismiss for lack of subject matter jurisdiction since it appears on the face of the complaint that complete diversity is lacking in that Gregory is a citizen of the same state as the defendants.
We begin by considering whether the citizenship of the minor, Gregory, or that of the parents as next friend is determinative on the issue of diversity of citizenship of the parties.
If the citizenship of the parents as next friend controls, diversity exists under the alienage provision of 28 U.S.C. § 1332(a)(2) (1970). In Fallat v. Gouran, 220 F.2d 325 (3rd Cir. 1955) a general guardian
appointed by the Court of Common Pleas of Montgomery County, Pennsylvania brought suit to recover for injuries to a person who because of an automobile accident had become mentally incompetent. The guardian was a citizen of New Jersey, while both the incompetent and the defendants were citizens of Pennsylvania. Diversity jurisdiction was found to exist between the general guardian and the defendants. The court felt that because the general guardian had capacity to sue her citizenship was determinative. Accord, Obney v. Schmalzreid, 273 F. Supp. 373 (E.D.Pa.1967); DiStefano v. Lehigh Valley Railroad Co., 258 F. Supp. 721 (E.D.Pa.1966); Johnstone v. O'Connor & Co., 164 F. Supp. 66 (E.D.Pa.1958); Morris v. Bradley, 139 F. Supp. 519 (E.D.Pa.1956). It did not matter who the real party in interest was under state law. The court stated:
It is our conclusion that it is not the citizenship of the incompetent, whether or not he be the real party in interest, which governs but the citizenship of the guardian, provided he has capacity to sue.
Fallat v. Gouran, supra, 220 F.2d at 326.
With this view in mind the court set out two alternative guidelines, without stating which was correct, for determining whether the general guardian had capacity to sue. Capacity to sue in federal court was to be determined by either Rule 17 of the Fed.R.Civ.P., 28 U.S.C.
or by reference to state law. In DiStefano v. Lehigh Valley Railroad Co., supra, the reasoning in Fallat was extended to allow even a guardian ad litem's citizenship to control so long as the guardian ad litem had capacity to sue under state law.
It is doubtful, however, that a next friend as such has capacity to sue under Pennsylvania law. Pennsylvania Fiduciaries Act of 1949, § 1041, 20 P.S. § 320.1041
provides that the "guardian of the estate of a minor appointed by a court . . . shall also have the right to maintain any action with respect to such real or personal property of the minor." A next friend
is in no sense a guardian of the estate of a minor, and is not a party in a suit by a minor. Bertinelli v. Galoni, 331 Pa. 73, 200 A. 58 (1938). And the designation of a next friend as a guardian in Rule 2026 of the Pa.R.Civ.P., 12 P.S. Appendix is merely for the purpose of consistency in terminology. P.L.E. Minors § 74. But Bertinelli did state that the purpose of a next friend is to "supply the want of capacity in the minor." In addition, it may be argued that Fed.R.Civ.P. 17(c) provides the next friend with capacity to sue. Fallat v. Gouran, supra, 220 F.2d at 328.
It is not necessary, however, in light of McSparran v. Weist, 402 F.2d 867 (3rd Cir. 1968), cert. denied sub nom. Fritzinger v. Weist, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969) to distinguish the capacity of a guardian ad litem or a next friend to sue, if indeed such a distinction were at all tenable. See 3A Moore, Federal Practice, para. 17.26, p. 908 (2d Ed.1970). Compare Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585 (3rd Cir. 1962) (distinction between a general guardian and a guardian ad litem recognized). McSparran v. Weist, supra, overruled Fallat to the extent that Fallat indicated approval of "manufactured" diversity. There is much in McSparran, however, to indicate that, regardless of the capacity of a guardian to sue under state law, if a representative is a nominal party the minor's citizenship shall control in determining diversity. McSparran made it clear that a representative, including the guardian of a minor, will be considered a nominal party when the sole grounds for appointment of the representative was for the purpose of creating or manufacturing diversity jurisdiction in violation of 28 U.S.C. § 1359 (1970).
It was the nominal status of the guardian at which the court struck. Thus, in refusing to find significant, on the issue of diversity of citizenship, the guardian's appointment by a state court, the court stated:
We do not impugn this decree [the state court appointment of the guardian] collaterally by refusing to recognize the citizenship of a straw guardian. Guardian he remains, but since he is acting in the capacity of a straw party we refuse to recognize his citizenship for purposes of determining diversity jurisdiction. His appointment may have authorized him to bring suit but his nominal status does not make his citizenship determinative for purposes of diversity. He occupies in effect the role of a guardian ad litem or a next friend or prochein ami whose function merely is to supply a party on the record responsible for costs. ( Bertinelli v. Galoni, 331 Pa. 73, 75, 200 A. 58, 59, 118 A.L.R. 398 (1938), and whose citizenship would not be determinative of diversity jurisdiction.