Michelson v. Exxon Research and Engineering Co., Civ. A. No. 83-309 ERIE.

• Decision Date: 18 January 1984
• Docket Number: Civ. A. No. 83-309 ERIE.
• Citation: 578 F. Supp. 289
• Parties: William L. MICHELSON, Plaintiff, v. EXXON RESEARCH AND ENGINEERING COMPANY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

578 F. Supp. 289

William L. MICHELSON, Plaintiff, v. EXXON RESEARCH AND ENGINEERING COMPANY, et al., Defendants.

Civ. A. No. 83-309 ERIE.

United States District Court, Western District of Pennsylvania.

January 18, 1984.

Paul J. McArdle, Pittsburgh, Pa., for plaintiff.

John J. Myers, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for defendants.

OPINION

WEBER, District Judge.

Plaintiff, claiming diversity jurisdiction, filed a multicount complaint against his former employer and certain other employees, another corporation and its employee, alleging defamation, interference with contractual relations, and wrongful discharge.

Plaintiff is a Pennsylvania citizen. He alleges that all defendants are citizens of other states.

Defendants have moved to dismiss for want of subject matter jurisdiction, and to dismiss as to certain defendants for want of in personam jurisdiction. Because the subject matter jurisdiction question would be dispositive of the whole suit we will consider it first.

Defendants' Motion to Dismiss is based on a detailed affidavit of one of the defendants, Kelly, that he is a citizen of Pennsylvania, the same state as is plaintiff, that he was born in Pennsylvania, and that he has always lived in Pennsylvania, except for temporary work assignments elsewhere, that he owns a home in Pennsylvania, that his wife and children reside at his home in Pennsylvania, that his younger children attend the local public schools in Pennsylvania, and that he pays real estate taxes in Pennsylvania. He further avers that he is temporarily assigned by his employer, the Exxon defendant herein, as a project inspector in California, that under his Temporary Duty Assignment Contract with his employer he returns to his home and family in Pennsylvania at three week intervals at his employers expense, and that his employer reimburses him for the difference between the higher California income tax, which he is required by law to pay, and the income tax which he would have been required to pay on that income in Pennsylvania. Finally, he avers that he fully intends to continue as a domiciliary of Pennsylvania and to reside there when he is not on temporary assignment by his employer. These facts, if uncontroverted, are sufficient to establish Pennsylvania citizenship.

A federal test is applied in determining domicile for the purposes of diversity, Sadat v. Mertes, 615 F.2d 1176 (7th Cir. 1980).

Mere residence in a state is not enough for the purposes of diversity, Sun Printing & Pub., Assn. v. Edwards, 194 U.S. 377, 24 S.Ct. 696, 48 L.Ed. 1027 (1904). The concept of "domicile" is controlling, Reynolds v. Adden, 136 U.S. 348, 10 S.Ct. 843, 34 L.Ed. 360 (1890). A person's domicile is that place where he has his true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom. Stine v. Moore, 213 F.2d 446 (5th Cir.1954), Wright, Law of Federal Courts, (4th Ed.1...