OpenJurist

437 F2d 955 Petty v. E E Somers W J F

437 F.2d 955

Robert F. PETTY, Guardian of the Estate of Ardell Donaldson, a minor
v.
E. E. SOMERS, W. J. Mitchell and Charleroi-Monessen Hospital,
Robert F. Petty, Guardian of the Estate of Ardell Donaldson, a minor, Appellant in No. 18,969,
Charleroi-Monessen Hospital, Appellant in No. 18,970.

No. 18969.

No. 18970.

United States Court of Appeals, Third Circuit.

Argued January 8, 1971.

Decided March 1, 1971.

Rehearing Denied March 15, 1971.

Appeal from the United States District Court for the Western District of Pennsylvania; Herbert P. Sorg, Judge.

1

Hymen Schlesinger, Pittsburgh, Pa., for appellant in No. 18969 and appellee in No. 18970.

2

Norman J. Cowie, Thomson, Rhodes & Grigsby, Pittsburgh, Pa., argued for appellee (Charleroi-Monessen Hospital) in No. 18969 and appellant in No. 18970.

3

Bruce R. Martin, Pittsburgh, Pa., for appellees, E. E. Somers and W. J. Mitchell in both cases.

4

Before GANEY and ADAMS, Circuit Judges, and WEIS, District Judge.

OPINION OF THE COURT

PER CURIAM:

5

Plaintiff, a citizen of New Jersey, brought this action as guardian for Ardell Donaldson, a Pennsylvania citizen, against the defendants, individual doctors and hospital, also citizens of Pennsylvania. The suit is based on a claim for personal injuries received as a result of alleged medical malpractice.

6

The district court found that diversity had been "manufactured"; that suits had been filed in state courts against the individual defendants before the statute of limitations had run; but that timely action had not been taken against the hospital which refused to waive the limitations defense.

7

Following the holding of McSparran v. Weist, 402 F.2d 867 (3rd Cir. 1968), cert. den. sub nomine Fritzinger v. Weist, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969), the district court dismissed the action as to the individual defendants but denied the motion of the defendant hospital.

8

The plaintiff appellant disputes the factual determinations made by the lower court but the record contains ample support for the findings and we will not disturb them.

9

The hospital appellant contests prospective application of the "manufactured diversity" doctrine. This issue was considered and decided adversely to appellant by the court en banc in McSparran v. Weist, supra. Accord: Green v. Hale, 433 F.2d 324 (5th Cir. 1970); Lester v. McFaddon, 415 F.2d 1101 (4th Cir. 1969).

10

The judgment will be affirmed.