O'DONNELL v. Slade

• Decision Date: 29 November 1933
• Docket Number: No. 3372.,3372.
• Parties: O'DONNELL v. SLADE.
• Court: U.S. District Court — Western District of Pennsylvania

5 F. Supp. 265

O'DONNELL v. SLADE.

No. 3372.

District Court, M. D. Pennsylvania.

November 29, 1933.

Dunsmore & Murphy, of Wellsboro, Pa., for plaintiff.

O'Malley, Hill, Harris & Harris, of Scranton, Pa., for defendant.

JOHNSON, District Judge.

The plaintiff instituted this action of trespass to recover damages for personal injuries, alleged to have been sustained as the result of an automobile accident in Bradford county, Pa., under the provisions of the Pennsylvania Statute of 1931, P. L. 50 (75 PS Pa. § 1201 et seq.), which provides as follows: "Section 1. Be it enacted, etc., That from and after the passage of this act, any nonresident of this Commonwealth, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth to nonresident operators and owners of operating a motor vehicle, or of having the same operated, within the Commonwealth of Pennsylvania, or any resident of this Commonwealth, being the licensed operator or owner of any motor vehicle under the laws of this Commonwealth, who shall subsequently become a nonresident or shall conceal his whereabouts, shall, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the Commonwealth of Pennsylvania, make and constitute the Secretary of Revenue of the Commonwealth of Pennsylvania his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts of the Commonwealth of Pennsylvania against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the Commonwealth in which such motor vehicle is involved." (75 PS Pa. § 1201.)

"Section 2. Such process shall be served, by the officer to whom the same shall be directed or by the sheriff of Dauphin County, who may be deputized for such purposes by the officer to whom the service is directed, upon the Secretary of Revenue of the Commonwealth of Pennsylvania, by leaving at the office of said secretary, at least fifteen (15) days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon said Secretary of Revenue, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process." (75 PS Pa. § 1202.)

Suit was instituted in this court on August 3, 1933, by the filing of a statement of claim and a præcipe for summons. A writ of summons was issued by the clerk of the United States District Court and handed to the United States marshal for service. The marshal's return shows that the writ was served by sending a copy of the summons, together with a copy of the statement of claim, to the defendant at his residence in North Tonowanda, N. Y., by registered mail. A return receipt showing that the papers were delivered by the postal authorities to K. N. Slade, as agent for Arthur J. Slade, was attached to the marshal's return. The marshal's return also shows that service of a copy of the same papers was made on the secretary of revenue of the commonwealth of Pennsylvania at his office in the State Capitol at Harrisburg, Pa., and within the middle district of Pennsylvania.

Counsel for the defendant entered a special appearance and filed a petition to quash the summons and dismiss the suit on the ground that the act of the Pennsylvania Assembly does not authorize the service of process issuing out of the United States courts and that the effect of the enforcement of such statute would be to enlarge the jurisdiction of the United States courts. Counsel further contends that such service is not in accordance with any Act of Congress and is not authorized by any law regulating the manner of service of writs of summons in the United States courts. A rule was granted on the petition and argument heard thereon. The constitutionality of the act of the Pennsylvania Assembly is not questioned. This and similar statutes have been declared constitutional. Aversa v. Aubry, 303 Pa. 139, 154 A. 311; Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, 633, 71 L. Ed. 1091. Nor is it alleged that the provisions of the act were not strictly followed in effecting the service of the writ.

The only question is whether this Act of Assembly, authorizing service of process on nonresident defendants who were using the highways of Pennsylvania by serving such nonresident by registered mail and by constituting the secretary of revenue of the commonwealth of Pennsylvania the agent of such nonresident defendants, is to be construed as unlawfully extending the jurisdiction of the federal courts and rendering such service by the United States marshal invalid.

This precise question seems never to have been decided by any courts and no decisions in point can be found.

The Conformity Act, passed by Congress in 1872, 28 USCA § 724, provides that, "The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such district courts are held, any rule of court to the contrary notwithstanding."

Section 112 of title 28 USCA provides in part that "no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

The federal courts have held repeatedly that the right accorded to a defendant by this Act of Congress is a personal privilege which it is competent for him to waive. In re Moore, 209 U. S. 490, 28 S. Ct. 706, 52 L. Ed. 904, 14 Ann. Cas. 1164; Kreigh v. Westinghouse, 214 U. S. 249, 29 S. Ct. 619, 53 L. Ed. 984; St. Louis & San Francisco R. Co. v. McBride, 141 U. S. 127, 11 S. Ct. 982, 35 L. Ed. 659.

The courts have also held that "the limitations imposed by Congress as to the place of trial are only for the convenience of the defendant, and do not involve the jurisdiction of the court at all, properly speaking." Lehigh Valley Coal Company v. Yensavage (C. C. A.) 218 F. 547, 549.

This suit is brought in this court on the ground that the parties are citizens of...