in Atlantic City. During the summer months, when the rooms and apartments in those houses are fully occupied, the Defendant physically resides in Atlantic City and spends her entire time managing these properties. During the summer season, the Defendant's husband sleeps in Atlantic City and commutes to work in Philadelphia except for the occasional times when he stays in Pennsylvania overnight because one of the Defendant's three Philadelphia apartment houses requires maintenance. During the portion of the year from Labor Day to Memorial Day, the Defendant and her husband stay in the Defendant's house in Sharon Hill during the week and go to Atlantic City on the weekends for the purpose of inspecting the rooming houses and for performing whatever off-season maintenance work may be required. The Defendant's state of mind toward her apartment in her rooming house in Atlantic City is that she goes there only for business reasons, and she is more comfortable in the Sharon Hill home, which is more commodious.
From the above recited facts, it is clear that the Defendant was a citizen of Pennsylvania on June 18, 1971, when this action was instituted. Moreover, she has been a citizen of Pennsylvania continuously since 1937, and she is still a citizen of Pennsylvania and never was a citizen of New Jersey.
The Plaintiff may have been led astray in this case into the belief that the Defendant was a citizen of New Jersey because of a letter that the Defendant sent the Plaintiff from Atlantic City on August 15, 1969, about two weeks after the accident of July 29, 1969. In the letter, the defendant asked the Plaintiff for information about the accident and the Defendant said "I am in Atlantic City running a Guest house (sic) would (sic) you be so kind to Call (sic) me at this number 1-609-348-9736. Thank you in advance (sic) I pay charges on this in Virginia Covert." The letter contained the return address "#6 N. New Hampshire Ave (sic) Atlantic City, N.J." and the envelope contained a sticker bearing the printed address "Virginia Covert, 6 N. New Hampshire Av. (sic), Atlantic City, N.J. 08401." The letter contained no representations to the Plaintiff that the Defendant was a citizen of New Jersey. To the extent the letter gives any information concerning the Defendant's reason for writing to the Plaintiff from Atlantic City, the letter truthfully indicates that the Defendant was only in Atlantic City for the temporary purpose of "running a Guest house." Accordingly, the Court believes there is nothing in the letter which could be construed as intentionally deceiving the Plaintiff into the belief that the Defendant was a citizen of New Jersey.
In any event, it is irrelevant to this motion whether the Plaintiff was or was not misled by the Defendant's letter into the erroneous conclusion that the Defendant was a citizen of New Jersey. It has been decided repeatedly that a mistaken belief on the part of a plaintiff that diversity of citizenship exists cannot confer jurisdiction on this Court by estoppel when jurisdiction is, in fact, absent. Brown v. Fennell, 155 F. Supp. 424 (E.D.Pa.1957). See also Hamlin v. Holland, 256 F. Supp. 25 (E.D.Pa.1966). In the Brown case, the defendant, a citizen of Pennsylvania, owned a motor vehicle registered in New Jersey and possessed a New Jersey motor vehicle operator's license. Furthermore, the defendant's insurance carrier initiated a subrogation action in the defendant's name which showed a New Jersey address for the defendant. The Court held that, in the absence of intent to make New Jersey his home, the Defendant was not a citizen of New Jersey, and despite the fact that the plaintiff's mistake was understandable, that mistake could not confer jurisdiction on the Court. In the Hamlin case, the Plaintiffs claimed that jurisdiction existed because they relied upon a letter from the defendant's lawyer which indicated that the defendant was a resident of Florida. The Court dismissed this contention, stating that such a letter is immaterial for the purpose of determining jurisdiction, which is wholly dependent upon the actuality, not the mistaken belief, of diversity of citizenship.
The facts of the present case lead to the inescapable conclusion that the Defendant is and has been, since 1937, a citizen of the Commonwealth of Pennsylvania. Federal jurisdiction cannot be conferred by agreement, consent, or collusion of the parties, and a party cannot be precluded from raising the question of jurisdiction by any form of laches, waiver, or estoppel. Brown v. Fennell, supra, 427 of 155 F. Supp. Accordingly, the Court determines that the Defendant was a citizen of Pennsylvania on June 18, 1971, and the instant case must be dismissed for lack of diversity.
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