the partnership to create diversity jurisdiction clearly indicate that there can be no diversity jurisdiction even if Max Nobel's resignation as general partner of the limited partnership was effective, since diversity jurisdiction would have been collusively manufactured.
Further, even assuming for purposes of argument that diversity jurisdiction exists, this Court finds that there is no subject matter jurisdiction in this case.
The concept of res adjudicata is applicable since this case was heretofore settled in Fayette County by Max and Helen Nobel as tenants by the entireties. The land presently the subject of this litigation was, at the time of the filing of the state court action, sworn by Max Nobel to be entireties property to which Max Nobel and his wife held clear title. Max Nobel controlled the litigation of the state court action, including settlement negotiations before Fayette County Judge Adams. Max Nobel, in his own name and not in his capacity as general partner of the limited partnership Menallen Coke Company of New Salem, directed his attorney to discontinue the Fayette County action. However, this action was not terminated since trial proceedings had begun, and on February 21, 1978, the check of M & M Mining, Inc. in the amount of $ 12,407.28 and the check of Menallen Coke Company in the amount of $ 9,000.00 was paid into the Court of Common Pleas of Fayette County to be deposited in the Office of the Prothonotary pending final determination of the matter, and such monies still remain with that court. Court Exhibit A-3.
Until such money is disposed of, the state court proceeding cannot be closed, then or now, without a prior order of the Court of Common Pleas of Fayette County. Pa.R.C.P. 229. Also, the Fayette County proceeding would remain open in any event, and a second case could not be brought, since the record of the Prothonotary of Fayette County does not indicate that the costs of the former action, that is, the Fayette County action, have been paid. See Pa.R.C.P. 231.
Thus the issue of the damages due for wrongful removal of coal has been settled on the basis of $ 2.00 per ton in the Fayette County action, and the only remaining question left to be decided in the Fayette County case is how the money remaining with the Fayette County Court should be distributed.
Finally, there can be no cause of action by the limited partnership for the alleged wrongful removal of coal because the cause of action for damages remains with Max and Helen Nobel, and said cause of action is their property, not the property of the limited partnership. The Court previously found in the October 30, 1981 hearing that all of the relevant coal in question was mined from the subject land prior to May 5, 1978, the date of the Nobel deed to the limited partnership. Transcript, October 30, 1981, at 26. We reiterate this finding: At the time of Max and Helen Nobel's May 5, 1978 deed to the limited partnership all damage to said land had occurred. Max Nobel's May 5, 1978 deed transferring the subject property to the limited partnership did not transfer the chose in action for the damages resulting from the allegedly wrongful removal of the coal since all damages had occurred prior to May 5, 1978. In Pennsylvania, such a chose in action is assignable. Moffit et al. v. Vesta Coal Co., 17 Washington County Reports 204 (1934) (damages for tortious injury to property are assignable); Maxon v. Chaplin, 9 D. & C.2d 649 (C.P. Cambria County, 1956) (right of action for damages in trespass for strip-mining of coal is assignable).
The chose in action for prior damages to the land was separate from the land at the time of the May 5, 1978 deed to the limited partnership, and is therefore the property of Max and Helen Nobel as tenants by the entireties. Thus the limited partnership has no title to the cause of action in the present case, and this Court would have no subject matter jurisdiction even assuming the existence of diversity jurisdiction (this Court has found that diversity jurisdiction does not exist).
For the reasons previously discussed in this Opinion, the October 30, 1981 Order of the Court dismissing the action for lack of diversity jurisdiction will be affirmed, and Plaintiff's Motion to Amend the Findings of Fact and Conclusions of Law heretofore entered in this case will be denied.
An appropriate Order will be entered.
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