Witherow v. Firestone Tire & Rubber Co., 75--1514
| Decision Date | 26 January 1976 |
| Docket Number | No. 75--1514,75--1514 |
| Citation | 530 F.2d 160 |
| Parties | John T. WITHEROW v. The FIRESTONE TIRE & RUBBER COMPANY, a corporation, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Edward G. O'Connor, Frederick J. Rerko, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellant.
Frederick J. Francis, Jerome J. Purcell, Meyer, Unkovic & Scott, Pittsburgh, Pa., for appellee.
Before ALDISERT, HUNTER and GARTH, Circuit Judges.
The issue in this diversity case is whether defective service of process which resulted in failure to obtain jurisdiction over defendant in the state court within the period of the statute of limitations may be cured on removal to federal court by the application of F.R.Civ.P. 4(h) 1 or 28 U.S.C. § 1448. 2 The district court ruled in favor of the plaintiff and certified the question for appeal pursuant to 28 U.S.C. § 1292(b). We vacate the order appealed from and remand to the district court with instructions to dismiss both the original and the amended complaint.
Plaintiff Witherow was injured in Blandburg, Pennsylvania, on April 17, 1970, when a Firestone tire he was installing exploded.
Pennsylvania has a two-year statute of limitations for 'injury wrongfully done to the person,' 12 P.S. § 34, which beings to run from the time the injury was done. On April 10, 1972--seven days prior to the running of the statute--plaintiff filed a praecipe for a writ of summons in trespass in the Court of Common Pleas of Clearfield County, Pennsylvania. The filing of the praecipe was an authorized mode of commencing the action, Rule 1007, Pa.R.Civ.P., and it tolled the statute of limitations, but only for a period of two years from the date of the issuance of the writ. Marucci v. Lippman, 406 Pa. 283, 177 A.2d 616 (1962); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). Rule 1009(a) Pa.R.Civ.P. requires that the writ be served within 30 days of issuance, but the writ may be reissued pursuant to Rule 1010 any number of times.
The Sheriff's return, filed 18 months later, showed that he had served the writ on April 17, 1972, on the Assistant Manager of Thompson & Buck, a Firestone dealer store in Clearfield, Pennsylvania. Because Thompson & Buck, although a Firestone dealer, was an independent business the service was legally ineffective. Rule 2180 Pa.R.Civ.P. In addition, Firestone never received the summons. Almost two years later, on March 28, 1974, plaintiff filed a complaint in trespass which again was promptly served on Thompson & Buck, this time upon the owner of the dealership who immediately forwarded the complaint to Firestone's legal department.
Firestone had been aware of the claim, though not the lawsuit, since March, 1972 when plaintiff's attorney had notified the company at its Akron headquarters. On April 18, 1974, shortly after receipt of the forwarded complaint, Firestone filed a petition for removal based upon diversity of citizenship to the United States District Court for the Western District of Pennsylvania.
In the district court, Firestone moved to dismiss raising, inter alia, insufficiency of service of process and the bar of the statute of limitations. Plaintiff moved to perfect or amend service of process pursuant to Rule 4(h) of the F.R.Civ.P. and 28 U.S.C. § 1448. Plaintiff also moved to file an amended complaint adding a claim of breach of warranty.
The district court denied Firestone's motion and granted the plaintiff's motion to perfect or amend service of process:
Therefore, we believe that under these particular facts, when the Defendant actually received the proper pleading within the statutory period, albeit improperly, and the Plaintiff, when first notified of the defects of its service, immediately moved to perfect under Fed.R.Civ.P. 4(h), fairness dictates that the motion to Perfect or Amend Service of Process must be granted under the provisions of 28 U.S.C. § 1448 and Rule 4(h) and 4(d)(3), Fed.R.Civ.P.
App. at 98a. The district court also granted plaintiff's motion to file an amended complaint, reasoning that Rule 15(c) F.R.Civ.P. 3 applied and allowed the amendment to relate back to the filing of the complaint on March 28, 1974, thereby satisfying Pennsylvania's four-year breach of warranty statute of limitations, 12A P.S. § 2--725.
The district court certified its opinion and order for appeal pursuant to 28 U.C.S. § 1292(b). We permitted the appeal.
In evaluating defendant Firestone's claim that the action was barred by the Pennsylvania statute of limitations, the district court relied primarily on Anderson v. Bernard Realty Sales Co., 230 Pa.Super. 21, 329 A.2d 852 (1974). Anderson concerned the question 'whether the statute of limitations is tolled when the plaintiff files a praecipe for a writ of summons, but fails to deliver the writ to the sheriff for service.' Ibid. at 22, 329 A.2d at 853. The answer given was affirmative. The district court described this case as addressing a 'similar' problem to the problem under consideration. Because the district court relied on this case, controlling a similar problem, instead of relying on Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970), which controls the actual problem, we cannot agree with its conclusion that the action was not time-barred under Pennsylvania law.
Under Pennsylvania law in effect at the time 4 of these proceedings, an action at law could be commenced by filing a praecipe for a writ of summons or a complaint. However, if commenced by summons, the complaint could not serve as process. 'Where an action is started by summons, the complaint is only the required pleading with none of the characteristics of process; service of the complaint in such a case cannot confer jurisdiction.' Yefko, supra, 437 Pa. at 237, 263 A.2d at 418. Accordingly, a litigant who commenced his action by summons could only acquire jurisdiction by proper and timely service of the writ. The writ had to be served within 30 days of its issuance; it could be reissued any number of times, but it could not be reissued after the period of the applicable statute of limitations, e.g., tort, contract, had run from the last valid reissuance.
Plaintiff's original writ of summons was issued on April 10, 1972. The applicable statute of limitations was two years. Accordingly, he had until April 10, 1974, to seek reissuance. He did not seek reissuance. He did not secure proper service of the writ. Filing and service of the complaint, even if service had been proper, was ineffective. Yefko is 'on all fours':
Thus in the case at hand the service of (appellee's) complaint did not erase the need for timely service of (appellee's) original writ or the alternative requirement that the writ be reissued within two years to prevent its lapse. Having elected to initiate (his) action by filing a praecipe for a writ of summons, and having thereafter failed either to secure timely service of the writ or to reissue the writ within the required two year period (appellee) was barred by the statute of limitations from proceeding with (his) cause of action.
Ibid., 263 A.2d at 418. Accordingly, we conclude that had this action remained in the state court, it would have been time-barred as of April 10, 1974. It was jurisprudentially dead. It remains only to consider whether the subsequent removal to the federal court on April 18, 1974, could breathe new life into it.
Because federal jurisdiction here is based upon diversity of citizenship, and because we must choose whether state or federal law controls, we are conscious of the demanding presence of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We eschew any mechanical interpretation of that case or its successors and hearken, instead, to Chief Justice Warren's reminder that 'choices between state and federal law are to be made not by application of any automatic, 'litmus paper' criterion, but rather by reference to the policies underlying the Erie rule.' Hanna v. Plumer, 380 U.S. 460, 467, 85 S.Ct. 1136, 1141, 14 L.Ed.2d 8 (1965). What follows is a summary of those policies.
The decision in Erie to change prior practice and to apply the substantive law of the forum state and federal procedural law in a diversity case reflected essentially three policy consideration. First, the prior practice resulted in forum shopping because federal courts could and did apply different substantive law from state courts in the same state. See, e.g., Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S.Ct. 404, 72 L.Ed. 681 (1928). The decision to require that federal courts apply state substantive law in diversity cases represented a preference for vertical uniformity of substantive law within each state over horizontal uniformity among federal courts nationwide. See Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693, 715 (1974). After Erie, a plaintiff could conceivably shop among federal courts for favorable substantive law, but, at least, he would be inconvenienced by travel to another state and, in many cases, he would face jurisdictional and other problems. The second policy consideration implicit in Erie was more fundamental: the application of disparate laws to identical claims depending solely on the diversity of citizenship vel non of the parties 'introduced grave discrimination by non-citizens against citizens' and 'rendered impossible equal protection of the law.' Erie, supra, 304 U.S. at 74--75, 58 S.Ct. at 820. In a sense, the conceptual basis of diversity jurisdiction itself discriminates in favor of non-citizens on the theory that, otherwise, they may be discriminated against; and it is premised on the assumption that a non-citizen may obtain a different result in federal court than in state court. 5 Nevertheless, to apply a different rule of law to the non-citizen's case would be contrary to the fundamental...
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