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June 30, 1988

Phillip E. Shultz
Superior Tube Company and Ernest Smith

The opinion of the court was delivered by: BRODERICK


 Plaintiff Phillip E. Shultz, a citizen of Pennsylvania, filed a complaint against defendants Superior Tube Company ("Superior Tube"), a corporation organized under the laws of and having its principal place of business in Pennsylvania and Ernest Smith, a citizen of Pennsylvania, concerning plaintiff's discharge from employment with Superior Tube on February 4, 1986. In Count I of the complaint, plaintiff alleges that Superior Tube discharged plaintiff in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Section 623(a). Accordingly, as to Count I, jurisdiction of this Court is based upon 28 U.S.C. §§ 1331 and 1343. Count II of the complaint alleges a pendent state claim of age discrimination against Superior Tube in violation of the Pennsylvania Human Relations Act, 43 P.S. § 955(a). Defendant Ernest Smith is not mentioned in either Count I or II. In Count III of the complaint, plaintiff alleges that defendant Ernest Smith, in violation of Pennsylvania common law, intentionally interfered with plaintiff's business relations with Superior Tube by providing Superior Tube with fraudulent information concerning plaintiff.

 In Count III, plaintiff has alleged a state tort claim against a non-diverse defendant. In Aldinger v. Howard, 427 U.S. 1, 9, 96 S. Ct. 2413, 2418, 49 L. Ed. 2d 276 (1976), the Supreme Court addressed the issue of "whether a non-federal claim could . . . be the basis for joining a party over whom no independent basis for federal jurisdiction exists, simply because the claim could be derived from the 'common nucleus of operative facts' giving rise to the dispute between the parties to the federal claim." While declining to formulate any "general, all encompassing jurisdictional rule" regarding the exercise of pendent party jurisdiction, the Court noted that the inclusion or addition of a "completely new party would run counter to the well established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress." Aldinger, 427 U.S. at 15, 96 S. Ct. at 2420.

 In determining whether the joinder of an otherwise unreachable party should be accomplished through pendent party jurisdiction, the Supreme Court concluded that courts must consider "whether by virtue of the statutory grant of subject matter jurisdiction, upon which [plaintiff's] principal claim against the [defendant] rests, Congress has addressed itself to the party as to whom jurisdiction pendent to the principal claim is sought." Aldinger, 427 U.S. at 16, 96 S. Ct. at 2421. In other words, the courts are to deduce, through an examination of relevant statutes, "whether Congress wanted to grant this sort of jurisdiction to federal courts." Aldinger, 427 U.S. at 17, 96 S. Ct. at 2421. The Third Circuit, in Ambromovage v. United Mine Workers, further refined the relevant inquiry:

The court may consider whether the plaintiff's assertion of . . . pendent jurisdiction is an attempt to manufacture federal jurisdiction where it is otherwise foreclosed by the relevant statutes. The issue generally turns on statutory interpretation.

 726 F.2d 972, 990 (3d Cir. 1984).

 Based upon a review of the relevant statute, the ADEA, this Court concludes that Congress did not authorize the federal courts to hear claims such as alleged by plaintiff against defendant Ernest Smith in Count III of the complaint. The ADEA, 29 U.S.C. Section 621 et seq., prohibits age discrimination by employers, employment organizations, and labor organizations, in the hiring and discharging of employees. See, e.g., Zinger v. Blanchette, 549 F.2d 901, 905 (3d Cir. 1977), cert. denied, 434 U.S. 1008, 98 S. Ct. 717, 54 L. Ed. 2d 750 (1978). Indeed, Congress explicitly established a statutory scheme allowing recovery only where a plaintiff proves by a preponderance of the evidence that age was "a determinative factor" in the employer's decision to hire or discharge an employee. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S. Ct. 592, 83 L. Ed. 2d 702 (1984). Congress delineated the scope of the ADEA:

It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.

 29 U.S.C. § 621(b). Courts have recognized that 29 U.S.C. Section 630(b) authorizes the treatment of agents and supervisory officials of an employer as employers for the purposes of the ADEA. See, e.g., Wasilchuk v. Harvey's Wagon Wheel, Inc., 610 F. Supp. 206, 208 (D. Nev. 1985); Dague v. Riverdale Athletic Ass'n, 99 F.R.D. 325, 327 (N.D. Ga. 1983).

[The court] must assume that the Plaintiff can prove the facts alleged in [the] Complaint. It is not, however, proper to assume that the Plaintiff can prove facts that it has not alleged . . .

 Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173, 180 (3d Cir. 1988) quoting Associated General Contractors of California v. California State Counsel of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Accordingly, this Court must assume ...

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