Berkowitz v. Philadelphia Chewing Gum Corporation, 13762.

• Decision Date: 31 May 1962
• Docket Number: No. 13762.,13762.
• Citation: 303 F.2d 585
• Parties: Harry BERKOWITZ, Guardian of the Estate of Wilson Kinch, a Minor, and Wilson Kinch, Appellants, v. PHILADELPHIA CHEWING GUM CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

303 F.2d 585 (1962)

Harry BERKOWITZ, Guardian of the Estate of Wilson Kinch, a Minor, and Wilson Kinch, Appellants, v. PHILADELPHIA CHEWING GUM CORPORATION.

No. 13762.

United States Court of Appeals Third Circuit.

Argued February 9, 1962.

Decided May 31, 1962.

Frank M. Jakobowski, Philadelphia, Pa., for plaintiff-appellant.

David L. Pennington, Philadelphia, Pa. (Joseph R. Thompson, Philadelphia, Pa., on the brief), for defendant-appellee.

Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.

BIGGS, Chief Judge.

The issue presented by the appeal at bar is said to be whether there has been a rejection of the provisions of The Pennsylvania Workmen's Compensation Act, 77 P.S. § 1 et seq., so as to allow a suit on behalf of the minor against his employer as at common law. For reasons which will appear hereinafter we do not reach this question.

Wilson Kinch, when he was 18 years old, got a job with the defendant, Philadelphia Chewing Gum Corporation. Soon thereafter he sustained serious injuries by getting his right hand caught in a machine at the chewing gum factory. Forty-eight days after the injury an attorney representing Kinch wrote to the Chewing Gum Corporation and stated that Kinch's parents desired not to have their son take compensation under the Act but that they elected to pursue a claim on his behalf "under the theory of * * * common law liability".¹ On October 31, 1960, a so-called notice of election was sent to the Director of the Bureau of Workmen's Compensation of the Commonwealth of Pennsylvania, stating that Kinch was not subject to the Workmen's Compensation Act, that steps were being taken to proceed against his employer "under our theory of common-law liability", and that a suit would be instituted against the Company.²

The original complaint was filed on November 14, 1960. A motion was filed by the defendant to dismiss the action because it appeared "on the face of the Complaint" that the court lacked jurisdiction "in that the requisite diversity of citizenship is not shown to exist". The court below filed a memorandum opinion and granted the motion to dismiss unless an amended complaint were filed within twenty days. An amended complaint was filed on March 24, 1961. One difference between the original and the amended complaints is that the latter sets out in Paragraph 9 that following the injury Kinch, by his representative, informed the Chewing Gum Corporation and the Department of Labor of the Commonwealth of Pennsylvania that it was his intention not to make a claim for his injuries under the provisions of the Act but rather to proceed against his employer under the theory of common law liability and that the suit at bar was brought "by his legally appointed guardian" in pursuance of that objective.

The original complaint is entitled "Harry Berkowitz, Guardian of the Estate of Wilson Kinch, a Minor, and Wilson Kinch, Individually 1458 Wildwood Avenue Camden, New Jersey, Plaintiffs v. Philadelphia Chewing Gum Corporation Eagle and Lawrence Roads Havertown, Pennsylvania, Defendant". The title of the amended complaint is the same except that the word "Individually" has been omitted after the word "Kinch", second occurrence. The first paragraphs of both complaints are identical and allege that the matter in controversy exceeds, exclusive of interest and costs, the sum of $10,000 and that the court has jurisdiction on the basis of diversity of citizenship of the parties and the amount in controversy. There is no specific allegation as to the citizenship of Wilson Kinch albeit Paragraph 3 of both the original and the amended complaints states: "Plaintiff Wilson Kinch is a minor child, aged twenty years, who at all times material hereto was a resident of Delaware County, Pennsylvania." The second paragraph of both the original and the amended complaints asserts: "Plaintiff Harry Berkowitz is an adult individual, appointed guardian of the Estate of Wilson Kinch, a Minor, by the Orphans' Court of Delaware County, Pennsylvania, and is a citizen of the United States, in the State of New Jersey."

The Chewing Gum Corporation filed a motion to dismiss the action again on the ground, among others, that "it appears on the face of the Complaint that the court lacks jurisdiction of the subject matter in that the requisite diversity of citizenship is not shown to exist." The court below dismissed the action on the ground that notice of the minor's intention not to be bound by The Pennsylvania Workmen's Compensation Act was not sent within the time specified by 77 P.S. § 461. The court did not pass upon any issue relating to diversity of citizenship. In fact the court stated in the final paragraph of its opinion: "It is also noted that the minor's name was improperly included in the caption in view of lack of diversity of citizenship as to him." 198 F.Supp. 351, 354 (1961).

The issue of jurisdiction is always open. Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934). Kinch himself is named as a party plaintiff in the original and in the amended complaint though the latter has omitted the word "Individually" from the title after Kinch's name. There is no allegation in the body of either the complaint or the amended...