424 F2d 540 Frankel v. K Devener

424 F.2d 540

Alvin H. FRANKEL, Administrator of the Estate of Robert B.
Hoffman, Deceased, Appellant,
Norma K. DEVENER, individually and trading as Devener
Airport, and Norma K. Devener, Executrix of the
Estate of Raymond F. Devener, also known
as R. F. Devener, Deceased.

No. 18316.

United States Court of Appeals, Third Circuit.

Argued April 2, 1970.
Decided April 14, 1970.

Milton M. Borowsky, Freedman, Borowsky & Lorry, Philadelphia, Pa., Hurwitz, Klein, Benjamin & Brown, Harrisburg, Pa., for appellant.

Robert A. Steadman, Crawford & Steadman, Ann Arbor, Mich., Robert M. Strickler, Markowitz, Kagen & Griffith, York, Pa., for defendants-appellees.

Before HASTIE, Chief Judge, and MARIS and ADAMS, Circuit Judges.



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This is an appeal by an out-of-state administrator, appointed in an effort to bring this Pennsylvania wrongful death claim within federal diversity jurisdiction, from an order dismissing his complaint for want of jurisdiction under the doctrine of McSparran v. Weist, 3d Cir. 1968, 402 F.2d 867, cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217. The dismissal was without prejudice to litigation of the controversy in an appropriate state court, and was supported by an affidavit in which the defendants agreed to waive the applicable state statute of limitations and to recognize fully all federal discovery proceedings.


We are satisfied that the dismissal of this case imposed no unreasonable burden on the plaintiff and involved no abuse of judicial discretion. We add that counsel for the defendants stipulated on oral argument of this appeal that no objection would be made in the state court to such use of depositions as would have been permissible in the district court.


The judgment will be affirmed.