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BARRETT v. COVERT

January 31, 1973

Cassie BARRETT
v.
Virginia COVERT


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 Presently before the Court is Defendant's Motion under Federal Rule of Civil Procedure 12 to dismiss Plaintiff's Complaint, or in the alternative, a Motion for Summary Judgment for lack of diversity under Federal Rule of Civil Procedure 56.

 The sole ground upon which Plaintiff invokes Federal jurisdiction is the averment in Paragraph 1 of the Complaint that, at the time the action was initiated, the Plaintiff was a citizen of Pennsylvania, the defendant was a citizen of New Jersey, and the amount in controversy exceeds the sum of $10,000.00, exclusive of interest and costs.

 The Defendant claims that as a matter of fact, about which there is no genuine issue, the plaintiff and defendant were both citizens of the Commonwealth of Pennsylvania when this action was initiated.

 The Defendant's Motion is based upon the Plaintiff's Complaint, the Defendant's Answer, and the transcript of a deposition that was taken of Defendant.

 The Plaintiff seeks to recover money damages for personal injuries sustained as a result of an automobile accident which occurred on July 29, 1969, at the intersection of 45th and Market Streets, in Philadelphia, Pennsylvania. The Plaintiff was operating an automobile in a westerly direction on Market Street, and the Defendant's husband was operating the Defendant's automobile in a northerly direction on 45th Street and was in the process of turning left to proceed west on Market Street. The jurisdiction of this Court has been based upon diversity of citizenship, and the Plaintiff has conceded that she is a resident and a citizen of the Commonwealth of Pennsylvania. The defendant maintains that she, too, was a citizen and a resident of Pennsylvania at the time this action was filed on June 18, 1971.

 The jurisdiction of this Court is invoked pursuant to Section 1332(a)(1) of The Judicial Code, 28 U.S.C. 1332, which provides, in relevant part, that the District Court shall have original jurisdiction of civil actions "between citizens of different states." Whether an action is between citizens of different states is a question of law to be determined by the trial Court and is controlled by the status of the parties at the time suit is begun. Seideman v. Hamilton, 173 F. Supp. 641 (E.D.Pa.1959), aff'd 275 F.2d 224 (3rd Cir., 1960).

 "It is well settled that 'citizens' as used in § 1332(a)(1) is substantially synonymous with domicile. Sherman v. Roosevelt Co., D.C., 48 F. Supp. 434; Messick v. Southern Pennsylvania Bus Co., 59 F. Supp. 799 (E.D.Pa.1945); Visintainer v. Hazleton Auto Bus Co., 61 F. Supp. 633 (M.D.Pa.1945); and Greene v. Keim, D.C., 74 F. Supp. 950. The basic elements of domicile are residence in fact, coupled with the purpose to make the residence one's home. Greene v. Keim, supra. As stated by the Supreme Court in State of Texas v. State of Florida, 306 U.S. 398, 59 S. Ct. 563, 83 L. Ed. 817, 'Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile.'" Pemberton v. Colonna, 189 F. Supp. 430, 431 (E.D.Pa.1960), aff'd 290 F.2d 220 (3rd Cir., 1961).

 Thus, the question presented by the Defendant's Motion is whether or not the Defendant was domiciled in Pennsylvania when she filed this action on June 18, 1971. If the Defendant was a domiciliary of Pennsylvania on that date, the Plaintiff's Complaint must be dismissed.

 In the case of Hamlin v. Holland, 256 F. Supp. 25 (E.D.Pa.1966), Judge Wood noted (at page 27) that "jurisdictional statutes are to be strictly construed. Consequently, plaintiffs have the burden of supporting jurisdictional allegations by competent proof . . . ." The transcript of the Defendant's deposition reveals that the Defendant has resided in Pennsylvania since 1937, when she came to this state from Virginia and established a home in West Philadelphia. In 1941, the Defendant married Ed Covert, and the couple took up residence in West Philadelphia. Later, the Defendant and Mr. Covert moved to 8015 Chelwynde Avenue, in the Eastwick section of Philadelphia. The Defendant and Mr. Covert have three sons, DeHaven, Alonzo and Arnold. The Defendant's marriage to Mr. Covert ended in divorce and, in 1961, the Defendant moved from her Eastwick home to her present home at 708 Greenhill Road, Sharon Hill, Pennsylvania. In 1961, the Defendant married Lloyd Johnson in Philadelphia, Pennsylvania. The Defendant and Mr. Johnson reside at the Defendant's home in Sharon Hill, Pennsylvania.

 On the basis of the complaint, the answer, and the above mentioned deposition, there is no doubt in the Court's mind but that the defendant expressly intended Sharon Hill, Pennsylvania to be her permanent home. She had so considered it since 1961, and she intends Sharon Hill to be her home into the indefinite future (deposition transcript page 53). The Defendant's activities are entirely consistent with her expressed intent to have Sharon Hill as her domicile. A brief review of the factors which have been considered by other courts to be relevant in considering the question of domiciliary intent shows that other courts have considered the residence, the family, the voting location, income tax, banking, real estate and vehicle registration.

 Residence. The Defendant's Sharon Hill, Pennsylvania home is a single family dwelling with three bedrooms, two baths, a living room, dining room, den, kitchen and garage.

 Family. The Defendant's three sons were raised and educated in Pennsylvania. DeHaven, the oldest, is a member of the Armed Forces. He keeps his clothes and personal property in a room which is permanently set aside for him in the Defendant's Sharon Hill home. Alonzo lived at the Defendant's home until his marriage in 1971. Arnold also lived at the Sharon Hill home until his marriage in 1970. None of the ...


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