Fallat v. Gouran

• Decision Date: 23 June 1954
• Docket Number: No. 16038.,16038.
• Citation: 122 F. Supp. 610
• Parties: FALLAT v. GOURAN.
• Court: U.S. District Court — Eastern District of Pennsylvania

122 F. Supp. 610

FALLAT v. GOURAN.

No. 16038.

United States District Court E. D. Pennsylvania.

June 23, 1954.

Meade & Singer, Philadelphia, Pa., for plaintiff.

Swartz, Campbell & Henry, Philadelphia, Pa., for defendant.

CLARY, District Judge.

On December 11, 1952, Cyril Dixon, a pedestrian, was struck by an automobile owned and operated by John A. Gouran, defendant, on Easton Road in Roslyn, Pennsylvania. Both Dixon and Gouran are residents of Montgomery County, Commonwealth of Pennsylvania. The complaint filed in this case alleges that as a result of the injuries sustained in the aforesaid accident Dixon became a weak-minded person and by Decree of the Court of Common Pleas of Montgomery County on July 2, 1953, Loretta Dixon Fallat, daughter of the injured person, and a resident of Somerville, New Jersey, was appointed guardian of his estate. As such, she brought the present action in this Court on behalf of her ward to recover damages for the aforesaid injuries basing her claim to jurisdiction solely on the ground of diversity of citizenship. The defendant filed a motion to dismiss for lack of jurisdiction which motion is presently before the Court for disposition.

The motion of the defendant to dismiss the action for lack of jurisdiction is based solely on the assertion that the named plaintiff is not the real party in interest. Defendant argues that the determination of who is the real party in interest must be made in accordance with State law, Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233; Thames v. State of Mississippi, 5 Cir., 117 F.2d 949, 136 A.L.R. 926; that under the Incompetents' Estates Act of the Commonwealth of Pennsylvania, 1951, June 28, P.L. 612, 50 P.S. § 1631 et seq., and the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix, No. 2051 et seq., the incompetent himself and not the guardian is the real party in interest; that Rule 17 of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires the action to be brought in behalf of the real party in interest and therefore the present action is without the jurisdiction of this Court.

There can be no dispute that under the Federal Rules of Civil Procedure the determination of who is a real party in interest, Rule 17(a), Federal Rules of Civil Procedure, must be made by looking to State law. Mecom v. Fitzsimmons Drilling Co., supra, and Mexican Central R. R. Co. v. Eckman, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245. The only two reported cases directly in point with the instant case in the Federal Courts are Stout v. Rigney, 8 Cir., 1901, 107 F. 545 and Wilcoxen v. Chicago B. & Q. Ry., C.C. 1902, 116 F. 444. In each case, employing State law, in the Stout case the Missouri statute, and in the Wilcoxen case the Iowa statute, the courts found that the appointment of a guardian did not vest the guardian with title to the property of the ward or to a cause of action existing in his favor but only with the right to manage and control the ward's property and to prosecute actions in his behalf and for his benefit. Both courts held that there was lack of the necessary diversity of citizenship, even though in each case the guardian was a resident of a foreign state, that the ward was the real party in interest, and dismissed the actions. On this particular point neither case has ever been cited or reversed. Looking therefore to the Pennsylvania statute to determine who is the real party in interest we find that Section 401 of the Act of June 28, 1951, P.L. 612, § 401, 50 P.S. § 1781, gives a guardian the right to possession, maintenance and administration of the real and personal assets of the incompetent. A guardian under the statute has the duty to prosecute actions for the incompetent. However, Rule 2064, Pa.R.C.P. 12 P.S. Appendix, provides that no action to which an incompetent is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition by any party in interest. Rule 2054(a) provides that an action in which an incompetent is plaintiff shall be entitled "`A, An Incompetent, by B, His Guardian,' against the defendant". However, where the incompetent is a defendant in an action the same rule provides that the action shall be commenced against the incompetent by name in the manner in which a like action is commenced against a competent adult. Pa. R.C.P. Rule 2063 provides that a guardian shall not be individually liable for the payment of any judgment entered against the incompetent or for costs of the action. Section 103 of the statute, 50 P.S. § 1633, specifically provides that legal title to real and personal property shall remain in the incompetent, subject however to management by the guardian under the jurisdiction of the court. Sections 501 and 502 of the Act of June 28, 1951, P.L. 612, 50 P.S. §§ 1841-1842, covering substitution of guardians, clearly indicate that the executor or administrator of a guardian's estate does not succeed to the guardian's right and privileges with respect to the incompetent's estate. Section 443 of the Act, 50 P.S. § 1823, provides for approval of any action by the guardian in the administration or distribution of an incompetent's estate by the court having jurisdiction of the estate.

It would appear therefore that a guardian appointed by a court of competent jurisdiction under the Pennsylvania Incompetents' Estates Act is as stated by Judge Follmer in Hart v. Feely, D.C., 109 F.Supp. 3, 5:

"* * * a bailiff of the Court, the weak minded person became its ward, and his estate was in custodia legis, * * *."

Plaintiff contends that the case is controlled by the result in Mexican Central R. R. Co. v. Eckman, supra, Mecom v. Fitzsimmons Drilling Co., supra, and Jaffe v. Philadelphia & Western R. R., 3 Cir., 1950, 180 F.2d 1010. In the Jaffe case, a New Jersey resident had been appointed...