The opinion of the court was delivered by: BRODERICK
Plaintiff Clifton Wright ("Wright") brought this action in replevin which was tried before the court without a jury on July 14 and 15, 1975. Wright filed a pro se complaint and represented himself at trial without the assistance of counsel. Defendant Bruce K. Redding ("Redding") also proceeded without counsel and represented himself at trial.
The first question which must be decided is the disputed issue of jurisdiction based on diversity of citizenship. Federal diversity jurisdiction is determined by examining the citizenship of the parties at the time the action is commenced. Smith v. Sperling, 354 U.S. 91, 1 L. Ed. 2d 1205, 77 S. Ct. 1112 (1957). On June 8, 1973, the date on which this action was begun, Wright was a prisoner at Leavenworth Penitentiary in Kansas. A prisoner retains the domicile that he had at the time of his incarceration and may not claim a change of domicile by virtue of his incarceration. United States ex rel. Fear v. Rundle, 364 F. Supp. 53 (E.D.Pa. 1973). Wright testified that he had been arrested in New York, that at the time he was sentenced to prison he had been domiciled in New York, that he voted in New York and possessed a New York driver's license. At the time this suit was instituted, defendants Redding and Bernard D. Weiler ("Weiler") were domiciliaries of Pennsylvania, and defendant J. E. Caldwell and Company ("Caldwell") was a Pennsylvania corporation whose principal place of business was in Philadelphia. Since the amount in controversy exceeds $10,000.00, we find that there is diversity jurisdiction under 28 U.S.C. § 1332.
In this action of replevin, Wright seeks return of certain jewelry which has been in the possession of Caldwell since March 15, 1972. On January 27, 1972, while an inmate at Lewisburg Prison in Pennsylvania, Wright executed a power of attorney appointing Redding as his agent to obtain jewelry and other property from Sylvia Cottman ("Cottman"). This document provides that for his services, Redding was to be compensated as follows:
Redding is entitled 20 per cent of any amount collected or saved -- (Meaning 20 per cent of any amount collected or saved from falling into improper hands.)
The said Bruce K. Redding is empowered to secure all goods from Sylvia Cottman, sometimes known as Sylvia Cottman Wright, including money, jewelry, stocks, banks papers, books, account records etc. Real Estate and is hereby empowered to make settlements and to do all or anything whatsoever to effect same. The total expense for this service is not to exceed 5 per cent in additional to the fee of 20 per cent, thereby making a total maximum charge of 25 per cent (Sic).
On March 9, 1972, Redding, accompanied by Cottman, took 26 pieces of Wright's jewelry to Weiler, a jewelry appraiser. Weiler appraised the 26 pieces at $22,400.00 and on March 11, 1972, returned the jewelry to Redding and Cottman. Sometime later, Weiler received a letter from Wright, dated March 13, 1972, which directed Weiler to retain the jewelry until he received further instructions from Wright. Redding attempted to sell the jewelry and received two offers for it: Weiler, who had appraised it at $22,400.00, offered only $3,630.00 for the 26 pieces, while Caldwell offered $3,800.00. On March 15, 1972, Redding delivered the 26 pieces of jewelry to Caldwell for safekeeping and on April 3, 1972, Wright executed a revocation of his power of attorney to Redding and so notified Redding.
All of the parties in this litigation admit that all 26 pieces of jewelry are the property of Wright. Neither Weiler nor Caldwell claim any interest in the jewelry. Although Redding does not dispute Wright's ownership of the jewelry, he does claim a lien in the amount of $6,035.75 for expenses and services in accordance with the power of attorney.
The court, having found that Redding has no basis for his lien claim, will consider his pro se answer a counterclaim for services and costs in the amount of $6,035.75. The question here presented is whether a defendant in a replevin action heard in federal court may assert a counterclaim. The Pennsylvania Rules of Civil Procedure governing the action of replevin provide in Rule 1082(a):
A claim secured by a lien on the property may be set forth as a counterclaim. No other counterclaim may be asserted.
Does Rule 1082(a) of the Pennsylvania Rules of Civil Procedure prohibit Redding's counterclaim in a replevin action in this Court?
Rule 64 of the Federal Rules of Civil Procedure specifically provides that actions such as replevin "shall be prosecuted . . . pursuant to these rules." As stated in 7 Moore's Federal Practice, 2d edition, para. 64.08 at 64-39 (1974), the above quoted portion of Rule 65 "makes the Federal Rules on commencement, pleading, etc., up to and through appeals . . . generally applicable."
In Consumers Time Credit, Inc. v. Remark Corp., 227 F. Supp. 263 (E.D.Pa. 1964), Judge Kraft discussed Rule 65 and concluded that where actions are instituted in the federal court in accordance with remedies authorized under state law, the Federal Rules of Civil Procedure are applicable to such remedies and not the Pennsylvania Rules of Civil Procedure
Since Rule 13 of the Federal Rules of Civil Procedure compels a defendant to assert his counterclaim "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim," we consider Redding's pro se answer a compulsory counterclaim for services rendered and costs incurred in connection with the jewelry.
The Court finds that during the period when the contract was in effect Redding saved Wright's jewelry from "falling into improper hands", in accordance with the terms of the contract. Redding's total claim is for $6,035.75 for services and costs. The power of attorney provides that the "total expenses for this service is [ sic ] not to exceed 5 per cent in additional [ sic ] to the fee of 20 per cent, thereby making a total maximum charge of 25 per cent." Redding testified that he arrived at the $6,035.75 figure by taking 25 per cent of the $22,400.00 (the appraisal value of the jewelry) plus 25 ...