Maris, Seitz and Stahl, Circuit Judges.
This is an appeal from an order dismissing a survival and wrongful death diversity action on the ground that diversity had been "manufactured" contrary to the rule of McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968), cert. denied sub nom. Fritzinger v. Weist, 395 U.S. 903, 89 S. Ct. 1739, 23 L. Ed. 2d 217 (1969).*fn1
Plaintiff-appellant, a resident of Ohio, is the administrator of the estate of his grandnephew who was a citizen of Pennsylvania. Defendant-appellee Brooks is a citizen of Pennsylvania, and defendant-appellee Pennsylvania Electric Company is a Pennsylvania corporation with its principal place of business in the state.
The decedent, at the age of 19, was killed in Somerset County, Pennsylvania, on June 1, 1966. His death resulted from an electrical contact between a high voltage line of appellee Pennsylvania Electric Company and a crane of appellee Brooks. Prior to his death, decedent resided with his parents who at all times pertinent have been residents of Fayette County, Pennsylvania.*fn2
This suit was filed on January 17, 1967, in the United States District Court for the Western District of Pennsylvania.*fn3 On October 2, 1968 while the instant case was pending trial, we decided in McSparran v. Weist, supra, that 28 U.S.C. § 1359*fn4 bars federal court jurisdiction in a suit by a personal representative where the sole purpose of the appointment of the representative was to create diversity. However, in the interest of fairness to litigants whose cases were then pending in the district courts of this circuit, we limited retroactive application of our decision. Whether it was proper to give the McSparran rule retrospective application where the statute of limitations had run, or had nearly run, at the time the order dismissing the suit was issued is the question presented in this appeal.
On February 28, 1969, after all pretrial steps save the pretrial hearing had been completed, appellees moved to dismiss the action alleging that diversity had been manufactured by the appointment of a citizen of Ohio as administrator and that the court was therefore without subject matter jurisdiction under McSparran. In their motion to dismiss, appellees offered to waive the defense of the statute of limitations in the state court as to both the wrongful death and survival actions for a period of six months following a dismissal order.
Neither the court nor the parties suggested or requested a hearing or the filing of affidavits on the issue of manufactured diversity.*fn5 The court asked for the submission of briefs. Aside from mentioning the relationship of the administrator to the decedent, the appellant's lower court brief, which we have examined, did not discuss to any extent the question of alleged manufactured diversity. Thus, while not admitting that diversity had been manufactured, appellant submitted no affidavit or any other factual evidence in support of his claim of federal jurisdiction.*fn6
On March 27, 1969, after consideration of the briefs submitted by the parties, the district court ordered the case dismissed stating that,
In accordance with the doctrine of McSparran v. Weist, * * * for lack of bona fide federal jurisdiction, * * * the Court [was] of [the] opinion that [the] motion should be granted. * * * Appendix (App.) 20a.
No express finding of fact with regard to the artificial creation of diversity jurisdiction was made by the court.
The court conditioned its order upon the agreement of the appellees to waive the defense of the statute of limitations in the state court and to give full effect in the state court to the pretrial discovery and other preliminary steps already taken in the federal court. Further, the court provided that if appellees failed to comply with these conditions within 30 days, the dismissal order would become void and the case would be reinstated on the federal docket.*fn7
Appellant relies on our statement in McSparran that the rule against manufactured diversity is to be applied retroactively "only where the court finds that in the circumstances of the particular case there is ample time and opportunity for the plaintiff to ...