Dennis v. Galvanek
Decision Date | 12 March 1959 |
Docket Number | Civ. A. No. 6409. |
Citation | 171 F. Supp. 115 |
Parties | Patricia DENNIS and Joseph Dennis, her husband, Carmella Dennis and Angelo Dennis, her husband, in his own right and as Guardian of Kathleen Dennis, a minor, and Robert Dennis, a minor, v. Andrew GALVANEK and Fishback Trucking Company. |
Court | U.S. District Court — Middle District of Pennsylvania |
Wollman, Tracey, Schlesinger & Salus, Philadelphia, Pa., Garber & Garber, Carlisle, Pa., for plaintiffs.
Caldwell, Fox & Stoner, Harrisburg, Pa., for defendant, Andrew Galvanek.
Hull, Leiby & Metzger, Harrisburg, Pa., for defendant, Fishback Trucking Co. FOLLMER, District Judge.
The plaintiffs are citizens of Pennsylvania, residing at Philadelphia in the Eastern District of Pennsylvania. The defendant Galvanek is a citizen of and residing in New Jersey. The other defendant, Fishback Trucking Company, is an Ohio corporation. The action is predicated upon a motor vehicle accident alleged to have occurred on the Pennsylvania Turnpike within the Middle District of Pennsylvania. Service was had under the Pennsylvania Non-Resident Motorist Act (75 Pa.P.S. § 1201 et seq.).1
Galvanek moves to dismiss on the contention that
The diversity requirements for jurisdiction exist in this action. The question is solely as to venue which, as the defendant Galvanek contends, is in the Eastern District where the plaintiffs reside and not in the Middle District where the accident occurred. No purpose would be served by attempting to add to the discussion of Chief Judge Gourley of the Western District of Pennsylvania in Claditis v. Wainwright, D.C.W.D.Pa., 119 F.Supp. 739, and of Judge Marsh of that District in Berkey v. Rockwell Spring & Axle Company, D.C.W.D.Pa., 162 F.Supp. 493.2
The defendant Fishback Trucking Company likewise moves to dismiss, relying on Olberding v. Illinois Central R. Co., 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39, as well as the opinion of our own Court of Appeals in McCoy v. Siler, 3 Cir., 205 F.2d 498, and deduces therefrom that the action must be dismissed.
Plaintiffs seek relief under 28 U.S.C.A. § 1406(a) which provides:
"The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."
In the Olberding and McCoy cases, supra, the question of transfer was not discussed. Moreover the action in Olberding was in Kentucky by an Illinois corporation against an Indiana truck owner and in McCoy by an Iowa resident in Pennsylvania against residents of North Carolina. Whether the statute of limitations was involved does not appear, but it is clear that different problems influencing any exercise of discretion by the court would have been presented there.
In the present action the complaint alleges September 23, 1956 as the...
To continue reading
Request your trial-
Athletes Foot of Delaware v. Ralph Libonati Co.
...United States for Use and Benefit of Angell Bros., Inc. v. Cave Construction, Inc., 250 F.Supp. 873 (D.Mont.1966); Dennis v. Galvanek, 171 F.Supp. 115 (M.D.Pa.1959); Schultz v. McAfee, 160 F.Supp. 210 (D.Me.1958). Thus, dismissal of the complaint as to Lando and Libonati appears more approp......
-
Goldberg v. Wharf Constructers
...Skilling v. Funk Aircraft Co., 173 F.Supp. 939 (W.D.Mo.1959). 25 Wilt v. Smack, 147 F.Supp. 700 (E.D. Pa.1957); Dennis v. Gaivanek, 171 F. Supp. 115 (M.D.Pa.1959); Jacobson v. Indianapolis Power & Light Co., 163 F. Supp. 218 (N.D.Ind.1958); Schultz v. McAfee, 160 F.Supp. 210 ...
-
Burnett v. New York Central Railroad Company
...of justice' requires that the cause be transferred. See, e.g., Gold v. Griffith, 190 F.Supp. 482 (D.C.N.D.Ind.); Dennis v. Galvanek, 171 F.Supp. 115 (D.C.M.D.Pa.); Schultz v. McAfee, 160 F.Supp. 210 8 Thirty-one States have transfer-of-venue statutes which appear to be relevant: Alaska Stat......
-
Viaggio v. Field
...it will appear that in those cases the transfer was sought to the district where limitations had not expired. See Dennis v. Galvanek, D.C.M.D.Pa.1959, 171 F.Supp. 115, and Wilt v. Smack, D.C. E.D.Pa.1957, 147 F.Supp. It is extremely doubtful that suit could have been brought successfully in......