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HAZARSHARIAN v. PRUDENTIAL SAVING ASSN. OF PHILADE

July 31, 1980

Onnig K. HAZARSHARIAN (P.O. Box 2285, Beirut Liban), Alex Soonoser (Power of Attorney for above plaintiff),
v.
PRUDENTIAL SAVING ASSOCIATION OF PHILADELPHIA



The opinion of the court was delivered by: POLLAK

This action was filed on March 21, 1980, with the caption appearing above. When an answer was filed by Henry W. Balka, Esq., on behalf of defendant, Prudential Saving Association, Alex Soonoser filed a motion "to strike that Henry W. Balka out of the case, the ground is that in several occasion (sic ) he is been attorney for plaintiff now he can't act against the plaintiff as an attorney."

Oral argument was to be heard on this motion on June 27, 1980. But when the matter was called for argument, I took the opportunity to explore, at my own instance, a larger question-namely, whether there is subject matter jurisdiction in this case.

 The jurisdictional question arises as follows: Because the substantive claim in this case presents no federal question, this court is without jurisdiction unless there is diversity of citizenship as between the parties.

 It is apparent from the pleadings that Onnig K. Hazarsharian is a citizen and resident of Lebanon, and that Prudential Saving Association of Philadelphia is a Pennsylvania corporation. As between Mr. Hazarsharian, as plaintiff, and Prudential, as defendant, there is a requisite diversity. 28 U.S.C. § 1332(a) (2). What complicates matters is the role in this litigation of Alex Soonoser, who, according to the caption of this case, holds "Power of Attorney for above plaintiff" (Mr. Hazarsharian). Mr. Soonoser, representing both Mr. Hazarsharian and himself, advised me in court on June 27 that (a) he is an American citizen resident in Pennsylvania, and (b) he is, although a lawyer by training and experience before coming to this country, not admitted to the Pennsylvania bar.

 If Mr. Soonoser, styled in the caption of this case in the manner set forth above, is to be taken as a party plaintiff along with Mr. Hazarsharian, there is presented a serious question whether his presence in the litigation destroys diversity (infra, I(A)).

 Conversely, if Mr. Hazarsharian is the sole plaintiff, and Mr. Soonoser's role in the case is only that which derives from his asserted "Power of Attorney," the equally serious question arises whether Mr. Soonoser, not a member of the Pennsylvania bar, can pursue this case on Hazarsharian's behalf (infra, I(B)).

 I.

 A.

 On further reflection, I am less certain than I was on June 27 that Mr. Soonoser's role as plaintiff-if indeed he means so to present himself-is destructive of diversity jurisdiction. That would of course be the case in an ordinary lawsuit since it has been the established rule ever since Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806), that there must be complete diversity between the parties. Ambiguity creeps in, however, when a party's status is representative. When the representative is one of the "real parties to the controversy," Navarro Savings Ass'n v. Lee, 446 U.S. 458, 462 n. 9, 100 S. Ct. 1779, 1782 n. 9, 64 L. Ed. 2d 425 (1980), the citizenship of the representative is then taken into account in determining whether there is diversity of citizenship. See Ivanna Field v. Volkswagenwerk AG, 626 F.2d 293, (3d Cir., 1980).

 This would appear to mean that whether Mr. Soonoser's Pennsylvania citizenship should, for jurisdictional purposes, be heeded or ignored, depends on whether Mr. Soonoser's power of attorney makes him a "real party to the controversy" under Pennsylvania law (or under such other body of law as may have controlling impact on some aspect of the litigation). Compare Wood v. Davis, 59 U.S. (18 How.) 467, 15 L. Ed. 460 (1856). An affirmative answer would mean that there are Pennsylvania citizens on both sides of this litigation, and dismissal for lack of jurisdiction would be required.

 On the other hand, in this Circuit at least, a negative answer-a finding that Mr. Soonoser's power of attorney did not make him a "real party to the controversy"-may not necessarily mean that diversity jurisdiction exists. In Fallat v. Gouran, 220 F.2d 325 (1955), Chief Judge Biggs ruled that the district court erred in dismissing, for lack of diversity, a suit brought by a New Jersey citizen, acting as Pennsylvania-court-appointed guardian for a Pennsylvania citizen, against a Pennsylvania citizen; notwithstanding that the guardian-plaintiff was not the person beneficially interested in the litigation, it was held that the guardian-plaintiff's citizenship was controlling for diversity purposes for the reason that she had capacity to sue under Pennsylvania law. The rule in Fallat has not been uniformly acclaimed (see 3A Moore's Federal Practice 17-37), and the Court of Appeals has declined to apply it in instances (apparently the obverse of the situation at bar) in which the appointment of a representative was thought to be a device to create diversity. See McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. denied, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969), and Groh v. Brooks, 421 F.2d 589 (3d Cir. 1970); compare the valuable discussion in 14 Wright & Miller, Federal Practice and Procedure § 3640. But, as thus limited, Fallat appears to have retained its vitality in this Circuit. See Carlsberg Resources Corp. v. Cambria Savings & Loan Ass'n, 554 F.2d 1254, 1263 n. 6 (3d Cir. 1977) (Hunter, J., concurring). It is arguable that the Supreme Court's recently renewed emphasis on the real-party-to-the-controversy rule ( Navarro Savings Ass'n, supra ) leaves Fallat with no scope. But our Court of Appeals has not yet so decreed. Cf. Volkswagenwerk AG, supra.

 In sum, whether Mr. Soonoser's participation as a party plaintiff would be fatal to the subject matter jurisdiction of this court is an ...


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