Lang v. Windsor Mount Joy Mut. Ins. Co.
Decision Date | 20 June 1980 |
Docket Number | Civ. A. No. 80-1377. |
Citation | 493 F. Supp. 97 |
Parties | Theodore LANG, Jr., also known as Ted Lang, Jr. v. WINDSOR MOUNT JOY MUTUAL INSURANCE COMPANY et al. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Dante Mattioni, Philadelphia, Pa., for plaintiff.
John W. Dry, Peter F. Cianci, Reading, Pa., for defendants.
Determining that plaintiff has invoked federal jurisdiction properly constitutes the in limine question which federal courts must consider prior to proceeding to the merits of a claim. Pacific Intermountain Express Co. v. Hawaii Plastics Corp., 528 F.2d 911 (3d Cir. 1976). In the present controversy, resolution of this question requires reference to the capacity of defendant Cloister Relief Association (CRA), an unincorporated association, to be sued as a class under Fed.R.Civ.P. 23.2.1 The Court dismissed the original action which plaintiff, then a domiciliary of the Commonwealth of Virginia, filed because several members of CRA were citizens thereof as well. See Lang v. Windsor Mount Joy Mutual Insurance Co., 487 F.Supp. 1303 (E.D.Pa. 1980) and United Steel Workers of America v. R. H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217 (1965) ( ).2 Shortly before the dismissal, plaintiff filed another complaint, assigned originally to another judge in this district and later transferred, which not only alleged that plaintiff was a citizen of the District of Columbia but also purported to sue CRA as a class under Fed.R.Civ.P. 23.2. Defendants have now moved to dismiss this complaint as well.
At common law an unincorporated association could neither sue nor be sued. See United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975 (1922). Fed.R.Civ.P. 17(b) modifies this rule to allow an unincorporated association to sue or be sued when a question of federal law or rights is involved.3 However, where the predicate of federal jurisdiction lies in diversity of citizenship, Rule 17(b) expressly refers the question of an unincorporated association's jural capacity to state law. See General Heat & Power Co. v. Diversified Mortgage Investors, 552 F.2d 556 (3d Cir. 1977). Pennsylvania law provides that an unincorporated association may sue and be sued as an entity, Pa.R. Civ.P. 2153(a),4 but not as a class. See Plechner v. Widener College, Inc., 569 F.2d 1250 (3d Cir. 1977) and cf. Underwood v. Maloney, 256 F.2d 334 (3d Cir. 1958) (). Notwithstanding, plaintiff contends that Fed.R.Civ.P. 23.2 allows him to sue CRA as a class. The 1966 Committee Notes to this Rule indicate that "the real or main purpose of this characterization" was to give "`entity treatment' to the association when for formal reasons it cannot be sued as a jural person under Rule 17(b)." Because Pennsylvania law allows an unincorporated association to be sued as an entity, the purpose of Rule 23.2 has been served. Therefore, it is unavailable for plaintiff's use.
The court concluded that Rule 23.2 was not available since Puerto Rican law accorded an unincorporated association the capacity to sue and be sued. P.R.Laws Ann. art. 27-30.6
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