Brown v. Hughes

• Decision Date: 04 November 1955
• Docket Number: Civ. A. No. 5167.
• Citation: 136 F. Supp. 55
• Parties: James BROWN, a Minor, by John Brown, his Parent and Natural Guardian, Plaintiff, v. Wanda Lee HUGHES, Administratrix of the Estate of Claude C. Hughes, Jr., Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

136 F. Supp. 55

James BROWN, a Minor, by John Brown, his Parent and Natural Guardian, Plaintiff, v. Wanda Lee HUGHES, Administratrix of the Estate of Claude C. Hughes, Jr., Defendant.

Civ. A. No. 5167.

United States District Court M. D. Pennsylvania.

November 4, 1955.

Thomas J. Foley, John A. Morano, Scranton, Pa., for plaintiff.

Richard H. Warren, of Harris, Warren, Hill & Henkelman, Scranton, Pa., for defendant.

JOHN W. MURPHY, District Judge.

Defendant, a West Virginia administratrix acting through her counsel, appearing specially, moves to dismiss plaintiff's action because the court has not acquired jurisdiction of her person. Following her husband's instant death as owner-driver of an automobile in a collision on a highway in this district, defendant was appointed administratrix of his estate by a West Virginia court. Thereafter, appearing only through counsel, an action was filed in this district¹ to recover for the wrongful death from James Neary of Pennsylvania, driver of the other car. James Brown, injured while riding in the Neary car, then by his parent and natural guardian filed the present action against the administratrix, the summons and complaint being served by the United States Marshal by registered mail upon the Secretary of the Commonwealth of Pennsylvania and an endorsed copy upon the defendant in West Virginia.²

Jurisdiction of a person may be secured by personal presence, domicile, allegiance, consent or acts done within the territorial jurisdiction of the court. Restatement Conflict of Laws, § 77. "It is an elementary principle of jurisprudence that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service of notice sic within the jurisdiction upon him or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service." Goldey v. Morning News, 156 U.S. 518, at page 521, 15 S.Ct. 559, 39 L.Ed. 517. A personal judgment rendered against a non-resident who has neither been served with process nor appeared in the suit is without validity. McDonald v. Mabee, 243 U.S. 90, at page 92, 37 S.Ct. 343, 61 L.Ed. 608. The mere fact that notice was sent to him outside the state is of no avail. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The mere transaction of business in a state by a non-resident natural person does not imply consent to be bound by the process of its courts. Flexner v. Farson, 248 U.S. 289, 39 S.Ct. 97, 63 L.Ed. 250.

The Federal Rules of Civil Procedure, Rule 4(d) (1), 28 U.S.C., provides that service shall be made "Upon an individual * * * personally or * * * an agent authorized by appointment or by law to receive service of process." Rule 4(d) (7), "* * * it is * * * sufficient if * * * served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the service is made * * *." Such service is however always subject to constitutional notions as to validity. 2 Moore's Federal Practice, 2d Ed., § 418, p. 942.

Obviously there was no personal service upon the defendant in Pennsylvania. There is no pertinent statute of the United States. As to the law of Pennsylvania, see Heaney v. Mauch Chunk Borough, 1936, 322 Pa. 487, at page 490, 185 A. 732, at page 733, "The common-law rule in regard to service of process * * * has always been accepted as binding in this state. In an action in personam, the process must be served personally within the jurisdiction of the court in which the action was commenced, upon the person to be affected thereby. This rule prevails, unless a statute clearly and definitely manifests that a different method as to service has been promulgated by the Legislature"; and Williams v. Meredith, 1937, 326 Pa. 570, at page 572, 192 A. 924, at page 925, 115 A.L.R. 890, "The long-established principle of universal application is that statutes in derogation of the common law must be strictly construed. This rule has been steadfastly adhered to in the construction of statutes governing the service of process."

Although service upon the Secretary of the Commonwealth by virtue of the Pennsylvania Motor Vehicles Act of May 14, 1929, as amended, 75 P.S. § 1201, supplemented by Pa.Proc.Rules 2077(a), 2079(a), 12 P.S.Appendix, would be effective as against Claude C. Hughes, Jr., if death had not occurred,³ no provision was made therein for substituted service upon the personal representative of the non-resident owner-driver. The agency conferred upon the Secretary of the Commonwealth to accept service was terminated by death. Buttson v. Arnold, D.C.E.D.Pa.1945, 4 F.R.D. 492; Rigutto v. Italian Terrazzo Mosaic Co., D.C.W.D.Pa.1950, 93 F.Supp. 124, at page 126; Arlotta v. McCauley, 1931, 16 Pa. Dist. & Co. R., 657; Minehart v. Shaffer, 1938, 86 Pitts.Leg.J. 317; McElroy v. George, 1951, 76 Pa. Dist. & Co. R. 231; Goodrich-Amram Pa.Proc. Rules 2077(a)-11; cf. Giampalo v. Taylor, 1939, 335 Pa. 121, at page 125, 6 A. 2d 499, and see Wittman v. Hanson, D. C.Minn.1951, 100 F.Supp. 747.⁴

The Restatement of the Conflict of Laws, § 512, provides, "No action can be maintained against any administrator outside the state of his appointment upon a claim against the estate of the decedent."⁵ Contrary to the general rule of nonsuability of a foreign administratrix, Pennsylvania makes an exception where personal service is made within the state, Laughlin & McManus v. Solomon, 1897, 180 Pa. 177, 36 A. 704, 57 Am. St.Rep. 633, or where there has been a voluntary appearance.⁶ Evans v. Tatem, 9 Serg. & Rawle, Pa., 252, 11 Am.Dec. 717; Carey v. Storms, 20 Pa.Dist. & Co. R. 75.

In addition, the Pennsylvania Fiduciary Act, 20 P.S. § 320.1103, provides, "The acceptance by a foreign fiduciary of the privilege extended by the laws of the Commonwealth of exercising any of his powers within the Commonwealth shall constitute the Secretary of the Commonwealth his attorney-in-fact upon whom service of process and notices may be made in any suit or proceeding instituted in the courts of the Commonwealth arising out of, or by reason of, the exercise of any of his powers or the performance or non-performance of any of his duties as such fiduciary."⁷

Did the administratrix by instituting the action against Neary accept the privilege extended by the Act and thereby constitute the Secretary of the Commonwealth as her attorney-in-fact upon whom service of process could be made in a separate and distinct action, notwithstanding that it arises from the same collision?⁸ The language of the section and by analogy the holding in Rigutto v. Italian Terrazzo Mosaic Co., supra, 93 F.Supp. at page 127, are contra. Applying the rule of strict construction, the present suit did not arise out of, or by reason of, the exercise of any of her powers or the performance or non-performance of any of her duties as fiduciary in Pennsylvania. It arose as the result of injuries received in a collision which occurred prior to the decedent's death. The attempt to sue the administratrix in Pennsylvania may have been motivated by her filing the action here, but the claim or right of action did not arise therefrom or by reason thereof.⁹ If the legislature intended to include an action such as we have here it certainly did not clearly and definitely say so.¹⁰ Where there has been a desire to make a foreign personal representative amenable to process in an action arising out of an automobile accident, it has been spelled out clearly and definitely. See, e. g., Leighton v. Roper, 300 N. Y. 434, 91 N.E.2d 876, 18 A.L.R.2d 537, and Note Id. at page 544.¹¹¹²

Although jurisdiction was not acquired over defendant's person by virtue of the use of Pennsylvania highways by decedent and attempted service under 75 P.S. § 1201 and Pennsylvania Proc.Rules, supra, or by virtue of any provisions of the Pennsylvania Fiduciaries Act, supra, the administratrix by commencing her action thereby voluntarily submitted herself to the jurisdiction of this court and of Pennsylvania as to the claim sued upon and as to any cross action by defendant during the pendency of the first action.¹³ Pa.Proc. Rule 1046, § 1046-1;¹⁴ Restatement Conflict of Laws § 83; Restatement Judgments § 21, comment c; Rogers v. Burns, 1856, 27 Pa. 525, at page 527; Guthrie v. Lowry, 1877, 84 Pa. 533, at page 537, and see Newman v. Shreve, 1910, 229 Pa. 200, at page 214, 78 A. 79. "Where one puts in motion the process of a court or seeks to use the procedure of the court for the purpose of obtaining a benefit for himself, jurisdiction is conferred over him so far as the defendant in the proceeding or the court is concerned." Delco Ice Mfg. Co. v. Frick Co., Inc., 1935, 318 Pa. 337, at page 345, 178 A. 135, 139; Thompson v. FitzGerald, 1938, 329 Pa. 497, at page 504, 198 A. 58; Peck v. Jenness, 48 U.S. 612, 624, 12 L. Ed. 841; Hoxsey v. Hoffpauir, 5 Cir., 180 F.2d 84, at page 86; Natural Gas Pipeline Co. of America v. Federal Power Commission, 7 Cir., 1942, 128 F.2d 481, at page 484; 21 C.J.S. Courts, §§ 75, 76, pp. 112, 114, "* * * having acquired jurisdiction, the court will retain it for the purpose of administering justice to resident citizens, and will not send them to foreign jurisdictions to seek redress"; and see Moore v. Fields, 42 Pa. 467, at page 472; 72 C.J.S., Process, § 44, p. 1056, "* * * all action taken thereafter in that proceeding or supplementary thereto * * *." 14 Am.Jur. Courts, § 170, p. 370; Ward v. Todd, 103 U.S. 327, at page 329, 26 L.Ed. 339; Ober v. Gallagher, 93 U.S. 199, at page 206, 23 L.Ed. 829.

See Restatement Conflict of Laws, § 76, "If a court obtains jurisdiction over a party to an action, that jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action."¹⁵ The Pennsylvania Supreme Court in recent cases has broadened the concept "cause of action"¹⁶ so as to...