Hastie, Chief Judge, Biggs, McLaughlin, Kalodner, Freedman, Seitz and Van Dusen,*fn* Circuit Judges. Biggs, Circuit Judge, dissenting in part and concurring in part.
After submission to a panel we ordered this appeal to be argued before the court en banc with McSparran v. Weist, 402 F.2d 867, in order to review the jurisdictional question which we raised sua sponte,*fn1 where diversity of citizenship is created or "manufactured" by the appointment of a nonresident guardian of a minor, selected solely for the purpose of creating diversity.
On January 3, 1962, David J. McClintock, Jr., a seven year old second grade pupil at the Unionville, Pennsylvania, Elementary School, was seriously injured when a bank of school lockers toppled over on him as he tried to open one of them.
A year later the boy's parents with whom he resided in Pennsylvania petitioned the Orphans' Court of Chester County, Pennsylvania, to appoint Dominic A. Esposito, a resident of Wilmington, Delaware, as guardian of the minor's estate. Their petition expressly averred that "a Guardian is necessary for the Estate of the minor so that suit may be brought in the United States District Court for the Eastern District of Pennsylvania to recover for injuries received by the minor as the result of an accident on January 3, 1962." The petition also averred that the claim, "for which suit will be brought in the United States District Court for the Eastern District of Pennsylvania", was the "sole asset of the estate of the minor." Solely on the basis of the petition the Orphans' Court on January 18, 1963, appointed Esposito as "Guardian of the property of the Estate of David J. McClintock, Jr., without the necessity of filing bond, until such time as assets shall be received by said guardian."
Shortly thereafter Esposito brought the present action for negligence in the district court against the principal, the assistant principal, the director of administrative services and the janitor of the school, but recognizing its immunity, did not join the school district itself as a defendant. The individual defendants sought summary judgment on the ground that they too were immune from suit for conduct within the scope of their authority as employees of the school district. Their contention was rejected by the district court. 249 F. Supp. 308 (E.D.Pa.1965). In the course of the ensuing jury trial the director of administrative services and the assistant principal were dismissed as parties and the case was submitted to the jury against the two remaining defendants. The jury was unable to agree on one of the questions submitted in special interrogatories, but the court later granted the motion of defendants for judgment on the whole record on the ground that there was no evidence of negligence on their part. 266 F. Supp. 219 (E.D.Pa.1967). Plaintiff thereupon took this appeal.
It is conceded that the present case is one of artificial or "manufactured" diversity in which an out-of-state guardian was appointed solely for the purpose of creating an apparent federal jurisdiction. As in McSparran not only was the straw guardian appointed solely to create diversity jurisdiction, but the controversy itself is essentially local, and one of the reasons underlying diversity jurisdiction, the prevention of discrimination against out-of-state litigants,*fn2 is completely absent. The accident occurred in Pennsylvania where the injured minor and both the defendants reside and have their citizenship. Moreover, the artificial creation of diversity here cast upon the federal courts the necessity to decide as a matter of first impression an important question of Pennsylvania policy -- the immunity of school district officials for torts committed in the performance of their duties, a question in which there is no federal interest and which it would have been preferable for the state courts themselves to decide.
The case, therefore, is ruled by McSparran v. Weist, decided this day, holding that artificially "manufactured" diversity is insufficient to create federal jurisdiction, although Judge Van Dusen who sat at the rehearing en banc has since disqualified himself from participating in the disposition of this case and the remaining members of the court who sat at the rehearing are evenly divided as to the correctness of the McSparran ruling.
The accident in this case occurred on January 3, 1962, and Pennsylvania's two-year statute of limitations has long since expired. As we pointed out in McSparran it would be harsh to apply our new rule retrospectively to a case such as this, in which the plaintiff's rights would be lost because the statute of limitations bars the institution of a new suit in the state court.
We therefore have considered the merits of the case. After examining the evidence we are unanimous in finding it inadequate to establish any negligence by the individual defendants.
The judgment of the district court will be affirmed.
KALODNER, Circuit Judge, concurs in the result on the merits of the case, but dissents from the majority view with respect to the issue of "manufactured" diversity jurisdiction for the ...