The opinion of the court was delivered by: CALDWELL
Before the court for disposition is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). The motion was filed on behalf of defendant Harry V. Pfautz, D.O., a private physician who allegedly rendered medical treatment to plaintiff Mark T. Kline between February 8 and 15, 1982. For the reasons discussed hereinafter, the motion is denied.
Plaintiffs are a husband and wife whose complaint, filed on February 7, 1984, names four defendants whom plaintiffs contend administered or were responsible for the administering of improper and substandard medical care for an infection in plaintiff husband's left knee. Plaintiffs and the two individual defendants, Pfautz and Bernard Zeliger, also a physician, appear to be Pennsylvania residents. Community General Osteopathic Hospital, where plaintiff husband received treatment is located in Harrisburg, Pennsylvania. The remaining defendant, the United States, has been brought in as a result of treatment plaintiff received at two Veterans Administration hospitals, located in Lebanon and Philadelphia, Pennsylvania.
Plaintiff has alleged that jurisdiction over defendant United States exists pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. Jurisdiction over the other defendants is alleged to be ancillary or pendent. Counts I and II of the complaint are directed to Pfautz, Zeliger, and the hospital. Counts III and IV set forth claims against the United States.
III. The Dismissal Motion
The basis of the dismissal motion filed in the present action is the pendent jurisdiction doctrine. More specifically the issue is one of whether pendent party jurisdiction should be exercised in the present matter so that plaintiff's claim against Pfautz, a non-diverse defendant against whom no federal claim has been made, may be tried along with the claim against the United States under the FTCA. As has long been recognized, the federal courts are tribunals of limited jurisdiction and the general rule is that their authority to adjudicate matters is limited to that found either in Article III of the United States Constitution or congressional enactments. No doubt exists in the present case that jurisdiction over the United States has been properly invoked under the FTCA. Jurisdiction over Pfautz, however, turns on the issue of pendent party jurisdiction.
The landmark case of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) elucidated the concept of pendent jurisdiction but concentrated largely on the propriety of joining state and federal claims rather than joining parties over whom federal jurisdiction exists with those parties over whom there is no independent jurisdictional basis. The Gibbs Court stated,
The federal claim must have substance sufficient to confer subject matter jurisdiction on the court [citation omitted]. 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 [footnote omitted].
That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right [footnote omitted]. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them [citation omitted]. . . .
Id. at 725-26, 16 L. Ed. 2d at 227-28. Following the pronouncements in the Gibbs case, pendent jurisdiction was increasingly exercised by federal courts. In Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976) and Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978), the Supreme Court addressed pendent party jurisdiction. In Aldinger the Court had occasion to address the Gibbs case, to determine exactly what Gibbs did and did not decide, and to identify differences between pendent jurisdiction over claims as distinguished from parties. Although dealing with and declining pendent party jurisdiction in the context of a claim brought under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, Justice Rehnquist, writing for the six member Gibbs majority, did recognize the existence of situations other than that before the court and noted,