to prefer such a construction of the proceedings if the alternative construction-with Mr. Soonoser as a purported party plaintiff-were to dictate dismissal for lack of jurisdiction. But under the federal and local rules governing civil cases in this court, there would appear to be serious question whether one who is not a member of the Pennsylvania bar (and, so far as appears, not otherwise eligible to be admitted, generally or pro hac vice, to try a case in this court) could represent a party plaintiff other than himself notwithstanding that he is vested with that party plaintiff's power of attorney.
If the answer to that question is in the negative, dismissal would presumably follow, unless, within such reasonable time as this court would prescribe, an attorney admitted to practice before this court were to file an appearance on Mr. Hazarsharian's behalf.
In order to facilitate resolution of the questions posed under sections I(A) and (B) of this opinion, I request Mr. Soonoser and defendant Prudential to file legal memoranda and such supporting documentation as they may deem appropriate. Mr. Soonoser's submission should be filed within two weeks of the date of filing of this opinion. Prudential's submission should be filed within one week of the date of filing of Mr. Soonoser's submission.
This brings me to Mr. Soonoser's motion to disqualify Henry Balka, Esq. because of an alleged conflict of interest. In response to that motion, defendant has filed an affidavit by Mr. Balka reciting (1) that he has never represented Mr. Soonoser, and (2) that he understands that his son, Jerome Balka, Esq., did represent Mr. Soonoser in a related matter, but that he and his son have not, during any relevant time period, been associated in the practice of law. This response removes any question of impropriety in Henry Balka's representation of the defendant in this case, and so, in an order filed today, I will DENY Mr. Soonoser's motion to disqualify Mr. Balka.
In a previous opinion of July 31, 1980, I explored preliminarily the issue of federal jurisdiction, and requested additional submissions to assist my determination. I now find that, for lack of complete diversity, I have no jurisdiction to hear the case, and hence I will enter an order of dismissal. 28 U.S.C. § 1332(a)(2).
The pleadings and uncontested affidavits filed reveal the following circumstances. Alex Soonoser, an American citizen and resident of Pennsylvania, filed suit in the Philadelphia Court of Common Pleas to recover from an insurance company for the loss by fire of a building. Mr. Soonoser had invested a substantial sum on behalf of one Onnig K. Hazarsharian, a citizen of Lebanon. The matter was settled for $ 23,000, and the check deposited in an escrow account with the Prudential Savings Association of Philadelphia, pending the outcome of a dispute over attorney's fees.
Upon an award by a board of arbiters, the Court of Common Pleas ordered the Prudential account garnished for $ 4,568.91, in favor of the attorney who obtained the insurance case settlement. Mr. Soonoser withdrew the balance in his own name, and then brought this action against the bank to complain of the garnishment.
As the complaint's caption (reproduced above) suggests, the issue now before this court focuses on the status of Mr. Soonoser: Since the defendant bank is a Pennsylvania corporation, if Mr. Soonoser is, in legal contemplation, a party-plaintiff, diversity is destroyed.
A letter to me (dated August 4, 1980) from Onnig K. Hazarsharian refers to Mr. Soonoser as both his attorney and as a plaintiff. Mr. Soonoser, for his part, seems to maintain that he is not a plaintiff, but Mr. Hazarsharian's attorney. Were Mr. Soonoser not a party, the consequent diversity between the Pennsylvania bank and Mr. Soonoser's Lebanese client would appear to satisfy jurisdictional requirements.
However, I conclude that Mr. Soonoser is a real party to this controversy. Navarro Savings Ass'n v. Lee, 446 U.S. 458, 462, 64 L. Ed. 2d 425, 100 S. Ct. 1779 and n. 9, (1980). The pleadings here show that Mr. Soonooser had full power to manage and control the sum entrusted to him by Mr. Hazarsharian; further, all of the initial litigation in the Philadelphia courts and before the board of arbiters appears to have been at the instigation, and under the control, of Mr. Soonoser. Indeed, neither of the two lawyers who represented Mr. Soonoser there knew of Mr. Hazarsharian's alleged interest, nor was Mr. Hazarsharian mentioned in any pleading. The sum of money there at issue, a part of which forms the nub of the litigation before me, was in Mr. Soonoser's name at Prudential. He had legal title, managed the assets, and controlled the litigation. Navarro Savings Ass'n v. Lee, 446 U.S. at 461, 100 S. Ct. at 1782, construing Bullard v. Cisco, 290 U.S. 179, 189, 54 S. Ct. 177, 180, 78 L. Ed. 254 (1933). Thus, Mr. Soonoser's citizenship is relevant to the determination of diversity and destroys it. Field v. Volkswagenwerk AG, 626 F.2d 293, at 302 (3d Cir. 1980).
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