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KOZIKOWSKI v. DELAWARE RIVER PORT AUTH.

July 3, 1975

Joseph KOZIKOWSKI
v.
DELAWARE RIVER PORT AUTHORITY and Volkswagen of America, Inc., jointly, severally and/or in the alternative Volkswagenwerk Aktiengesellschaft v. MODJESKI AND MASTERS-AMMANN AND WHITNEY ENGINEERS, joint venture, and William Dix. Joseph KOZIKOWSKI, Jr., et al. v. DELAWARE RIVER PORT AUTHORITY et al.



The opinion of the court was delivered by: BROTMAN

 On August 9, 1970 Joseph Kozikowski, Sr., while operating a Volkswagen automobile on the Walt Whitman Bridge between the states of Pennsylvania and New Jersey, became involved in a head-on collision with one William Dix. Lucie Kozikowski and her three minor children were passengers in her husband's automobile at the time of the accident.

 Joseph Kozikowski, Sr. instituted suit against the Delaware River Port Authority (hereinafter referred to as DRPA or the Authority), which operated the bridge, and Volkswagen of America, Inc., and Volkswagenwerk Aktiengesellschaft (hereinafter jointly referred to as Volkswagen) the distributor and manufacturer respectively of the automobile. (Civil Action No. 1166-71). Jurisdiction is alleged to exist by virtue of diversity of citizenship between the parties. 28 U.S.C. § 1332.

 Kozikowski alleges, inter alia, that defendant DRPA was negligent in its design, construction, maintenance and control of the bridge. Further he alleges, inter alia, that defendant Volkswagen designed, manufactured and distributed a defective automobile. In addition, a complaint, which generally makes the same allegations, was filed against the defendants by Lucie Kozikowski, individually and as guardian ad litem for the three minor Kozikowski children. (Civil Action No. 1875-71). By order of the court the two actions were consolidated.

 At this pretrial stage in the proceedings, three motions are before the court for decision. The first question raised is whether the court has jurisdiction over this case, and if so, on what basis. Should the court decide it has jurisdiction, it then must decide plaintiff's motion to strike defendant DRPA's defense of immunity from suit and the third party defendant's motion for summary judgment based upon the Statute of Limitations, N.J.S.A. 2A:14-1.1.

 The court raised the jurisdictional issue sua sponte. Plaintiffs are all residents of Pennsylvania. Defendant DRPA is a bi-state agency created by virtue of a compact entered into between the Commonwealth of Pennsylvania and the State of New Jersey. N.J.S.A. 32:3-1 et seq. ; 36 P.S. § 3503. This compact was approved by Congress, as required by the United States Constitution, Article I, § 10, cl. 3. 47 Stat. 308; 66 Stat. 738. *fn2" Because DRPA is incorporated in both Pennsylvania and New Jersey, and plaintiff is a citizen of Pennsylvania, a question arises as to whether the complete diversity requirement of Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806) has been met. *fn3"

 The court, in response to its question, determines that diversity jurisdiction exists under the forum doctrine first recognized by the Supreme Court in Chicago & Northwestern Ry. Co. v. Whitton, 80 U.S. (13 Wall.) 270, 20 L. Ed. 571 (1872). In Whitton, supra, suit was brought in Wisconsin by an Illinois citizen against a corporation which had been incorporated in both Wisconsin and Illinois. A unanimous Court rejected the challenge to diversity jurisdiction, stating:

 
But it is said, and here the objection to the jurisdiction arises, that the defendant is also a corporation under the laws of Illinois, and, therefore, is also a citizen of the same state with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois have no operation. The defendant is a corporation, and as such a citizen of Wisconsin by the laws of that state. It is not there a corporation or a citizen of any other state. Being there sued it can only be brought into court as a citizen of that state, whatever its status or citizenship may be elsewhere. (emphasis in original) Id. at 283.

 See also Muller v. Dows, 94 U.S. 444, 447-48, 24 L. Ed. 207 (1876).

 Although the Supreme Court has never overruled the forum doctrine, some commentators have questioned the doctrine's continuing validity in light of a 1958 amendment by Congress to the Judicial Code. 1 Moore's Federal Practice (MFP) (2nd Ed.) §§ 723.50-723.58; Wright, The Law of Federal Courts (2nd Ed.) § 27; Note, 72 Harv.L.Rev. 391, 394-395 (1958). That amendment provides, in pertinent part:

 
For the purposes of this section and section 1441 of this title, a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business . . . . 28 U.S.C. § 1332(c) (emphasis added).

 Essentially, the argument made is that "any State" means every state. Consequently, it is argued that a corporation should be treated as a citizen of each state ...


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