Before BIGGS, Chief Judge, GOODRICH and HASTIE, Circuit Judges.
BIGGS, Ch. J.: (1) The plaintiffs-appellants have petitioned for reargument contending that we have construed the provisions of Rule 17(b), Fed. R. Civ. Proc., 28 U.S.C., so as to deny proper force and effect to Rule 23(a) and that we have erred in holding that the court below did not have jurisdiction to decide both suits. We cannot agree.
As pointed out in our first opinion, jurisdiction in these cases is asserted solely on the basis of diversity of citizenship and the substantive rights that were sought to be enforced arose under the common law of the Commonwealth of Pennsylvania. In actions brought in a United States district court where jurisdiction is based on diversity, the capacity of persons to sue or be sued is determined by the law of the state in which the district court sits. Rule 17(b), Fed. R. Civ. Proc., 28 U.S.C. The law of Pennsylvania, while permitting labor unions to sue or be sued as entities does not allow class suits to be maintained by or against them. See note 3 of our original opinion. Pa. R.C.P. 2230(a);*fn1 1 Goodrich-Amram Standard Pennsylvania Practice § 2152-2. Accordingly, we held that the unincorporated associations involved in the cases at bar could sue or be sued only as entities in the court below. For purposes of diversity jurisdiction the citizenships of the members of the respective unincorporated associations involved in the cases at bar have to be shown to be diverse. We held that the court below lacked jurisdiction because diversity of citizenship was not made to appear and the lack of diversity was shown affirmatively.*fn2
The plaintiffs-appellants contend that Rule 17(b) was intended to broaden the scope of federal jurisdiction by overcoming obstacles relating to capacity.*fn3 We cannot agree. It is true that when a substantive right conferred by federal law would be impaired otherwise, Rule 17(b)(1) was designed to permit an unincorporated association to be dealt with as an entity or as a class, even though the state court of the forum would refuse to so deal with the unincorporated association. Clark and Moore, "A New Federal Civil Procedure," 44 Yale Law J. 1291, 1315; United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344 (1922). But as to cases in which jurisdiction is based upon diversity, as the Court of Appeals for the District of Columbia Circuit stated in Fennell v. Bache, 123 F.2d 905, 906 (1941):
"The purpose of the rule is to keep or bring the procedure of the federal courts in conformity with that of the courts of the state in which the district court is held, as respects the capacity of partnerships or unincorporated associations for suing and being sued, except when the state court follows the common law and a federal substantive right is involved."
It follows, therefore, that where a question of capacity to maintain suit in the district court arises, that capacity must be determined by the law of the state in which the district court is sitting, since the cause of action is of a local rather than of a distinctly federal character.
The plaintiffs-appellants contend, however, that such decisions as Montgomery Ward & Co. v. Langer, 168 F.2d 182 (8 Cir. 1948) and International Allied P.T. Ass'n v. Master P. Union of New Jersey, 34 F.Supp. 178 (D.C.N.J. 1940) require a different conclusion.There is no question but that in those cases where jurisdiction based on diversity would be defeated by a suit by or against the unincorporated association as an entity that obstacle may be hurdled by the use of a class action, by a suit brought by or against representative members whose respective citizenships are diverse from those of the opposing parties. But in the cases just cited class actions by and against unincorporated associations were not prohibited by the law of the states in which the district courts were sitting. In states where an unincorporated association can neither sue nor be sued as a class, it necessarily follows that the individual members of an association lack the capacity to sue or to be sued as class representatives of the unincorporated association.
In the Commonwealth of Pennsylvania, as we have said, an unincorporated association, or the members thereof, cannot be subjected to a class suit. Suits by or against unincorporated associations in Pennsylvania can be maintained only as provided by Rules 2152 and 2153 of the Pennsylvania Rules of Civil Procedure, 12 P.S. Pa. The employment of the methods prescribed by the Pennsylvania rules cited is not permissive but is mandatory and exclusive.*fn4 Since under the law of Pennsylvania individuals lack the capacity to be sued as class representatives of an unincorporated association, they have no such capacity in the federal courts. 3 Moore, Federal Practice, para. 17.18. It cannot be said that Rule 23(a) which permits class actions generally, does so irrespective of the lack of capacity of the named representatives to sue or be sued under Rule 17(b). It follows that Rule 23(a) cannot aid the plaintiffs-appellants in maintaining jurisdiction in the cases at bar. We adhere to our original ruling.
(2) The plaintiffs-appellants also seek modification of our judgment in respect to the imposition of costs. It would seem fair to divide the costs between the plaintiffs-appellants and the appellees. Orders to that effect will be entered.
(3) When the plaintiffs-appellants filed the petition for rehearing they were unaware that this Court did not vacate the injunctive relief heretofore granted by us by the injunction entered on June 12, 1957 at our Nos. 12,267 to 12,270, inclusive. While our opinion stated that the injunction would be vacated it is not our intention to do so until the litigations are terminated either by failure to apply for writs of certiorari, denials of certiorari, or final disposition of the litigations by the Supreme Court of the United States.
Orders will be entered denying the prayers of the petition for rehearing, save only as to ...