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March 7, 1973


Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

In this cause of action plaintiff seeks to recover for damage to a transcontinental shipment of goods, allegedly caused by defendants. A trailer containing thirty drums of petroleum lubricating oil was shipped from Philadelphia to Oakland, California, and arrived in a damaged condition. Part of the shipment was delivered by defendant, E.F. Houghton Co., Inc. [Houghton] to plaintiff in Philadelphia. Thereafter, the trailer containing the thirty drums was delivered to defendant, Penn Central Transportation Co. [Penn Central], which accepted the shipment for transportation by rail to Oakland and delivered its bill of lading to plaintiff.

 Plaintiff, as shipper and consignee of the contents of the trailers, filed the instant suit against both defendants to recover for the damaged goods. In Count I of its complaint, plaintiff asserts a claim against Penn Central under the Interstate Commerce Act, 49 U.S.C. § 20(11), alleging 28 U.S.C. § 1337 as its jurisdictional basis. Count II states a negligence claim against Houghton under Pennsylvania law. There is no diversity of citizenship between plaintiff and Houghton nor does Count II raise any federal question. For jurisdiction over its claim against Houghton, plaintiff relies solely upon the doctrine of pendent jurisdiction.

 Before the Court is Houghton's motion to dismiss Count II of the complaint for lack of jurisdiction. It is Houghton's argument that the pendent jurisdiction concept applies only where the same parties are involved on both the state and federal claims. It does not permit, Houghton argues, the addition of an independent party to respond to a state claim on the ground that such claim is closely related to the federal claim against an existing party. See Wright, Law of Federal Court, Section 19, page 65 (2d ed. 1970). Both parties are in substantial agreement that Houghton's position represented the law on this issue prior to the landmark Supreme Court decision in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). In order to determine whether Houghton's argument is valid today, it is necessary to undertake a brief review of the history of pendent jurisdiction both prior and subsequent to Gibbs.

 In United Mine Workers v. Gibbs, supra,2 the Supreme Court rejected the Hurn v. Oursler approach as "unnecessarily grudging", 383 U.S. at 725, 86 S. Ct. at 1138 and refashioned the concept of pendent jurisdiction. The Court succinctly stated:

"Pendent jurisdiction, in the sense of judicial power, exists wherever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .,' U.S.Const. Art. III, § 2, and their relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case'. The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S. Ct. 549, 77 L. Ed. 1062. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues there is power in federal courts to hear the whole." 383 U.S. at 725, 86 S. Ct. at 1138.

 The Court went on to note that pendent jurisdiction is a doctrine of discretion based on the underlying considerations of judicial economy, convenience and fairness to litigants. 383 U.S. at 726, 86 S. Ct. 1130. The Court, in exercising its discretion should dismiss the pendent claims where issues of state law predominate, where the federal claims are dismissed before trial, where there is a substantial likelihood of jury confusion, or where the above mentioned policy considerations are not furthered by one trial.

 In referring to the limited approach of Hurn v. Oursler as "unnecessarily grudging", the Gibbs court patently expanded the theretofore restrictive concept of pendent jurisdiction. Indeed, according to Judge Higginbotham in American Foresight of Philadelphia, Inc. v. Fine Arts Sterling Silver, 268 F. Supp. 656, 152 U.S.P.Q. (BNA) 576 (E.D.Pa.1967), Gibbs created an era of "New Understanding" with respect to pendent jurisdiction. Moreover, Professor Moore maintains cases antedating Gibbs, denying judicial power over the pendent claim, are "suspect as authority". 3A Moore Federal Practice, § 18.07 [1.-4] at p. 1953. Houghton, nonetheless, still relies squarely on Pearce v. Pennsylvania R. Co., 162 F.2d 524 (3d Cir.), cert. denied, 332 U.S. 765, 68 S. Ct. 71, 92 L. Ed. 350 (1947).

 Since the Gibbs decision, the issue before this Court -- whether the doctrine of pendent jurisdiction would permit the assertion of a related state claim against a separate and independent party against whom no federal claim exists -- has not been conclusively resolved. *fn3" In fact, this issue has caused a substantial split among the federal appellate courts. On one hand, the Court of Appeals of the Second, *fn4" Fourth, *fn5" Fifth, *fn6" and Eighth *fn7" Circuits have held that the broad language of Gibbs permits the assertion of federal jurisdiction over additional parties who were not involved in the federal claim and whose sole connection with the case stemmed from the pendent state law claim. The Sixth *fn8" and Ninth *fn9" Circuits, on the other hand, have rejected *fn10" the above approach. Apparently, in order to resolve the conflict between the Circuits, the Supreme Court granted certiorari to determine the question whether Gibbs allows a federal court to exercise jurisdiction over a party on a pendent state law claim when that party is not involved in the related federal claim. Moor v. Madigan, 458 F.2d 1217 (9th Cir. 1972), cert. granted sub nom. Moor v. Alameda County, 409 U.S. 841, 93 S. Ct. 66, 34 L. Ed. 2d 80 (1972). See 41 U.S.L.W. 3090. *fn11"

 We have deliberately postponed our consideration of the decisions of the Third Circuit Court of Appeals, for the state of the law in this Circuit is somewhat anomalous. On one hand, Pearce v. Pennsylvania R. Co., supra, has not been overruled and would ordinarily require the rejection of any pendent jurisdictional claim over Houghton. On the other hand, the subsequent cases of Wilson v. American Chain & Cable Co., 364 F.2d 558 (3rd Cir. 1966) and Jacobson v. Atlantic City Hospital, 392 F.2d 149 (3rd Cir. 1968) have been often cited as supporting the opposite proposition. *fn12" In Pearce, plaintiff sued defendant railroad, basing his claim on the Federal Employers' Liability Act and the Safety Appliance Act, and an individual, Hofkin, basing his claim on the common law of Pennsylvania. Applying the Hurn v. Oursler standard, the Court of Appeals affirmed the dismissal as to Hofkin, on the ground that since two separate and distinct causes of action were alleged, only one of which was federal in character, pendent jurisdiction did not exist over the state claim. In 1966, Gibbs was decided and was shortly thereafter applied in Wilson v. American Chain & Cable Co., supra.

 In Wilson, an action was filed by a minor and his father [who sought consequential damages as a result of the child's injury], against the manufacturer of an allegedly defective lawnmower. The trial court dismissed the father's claim for lack of jurisdiction on the ground that it did not satisfy the amount in controversy requirement. In reversing the lower court decision, the Court of Appeals relied on Gibbs and the doctrine of pendent jurisdiction, maintaining that both claims ordinarily would have been tried in one proceeding, and thus the claims should have been aggregated to satisfy the amount in controversy requirement. The court stated:

"The usual case of pendent jurisdiction involves but one plaintiff. Although the present case involves two plaintiffs, one the minor and one the father in his own right, both these claims arise from the same occurrence." 364 F.2d at 564.

 Thus, the Court of Appeals set forth its first indication that the doctrine of pendent jurisdiction may extend to additional parties, absent ...

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