Eckman v. Baker

• Decision Date: 28 December 1954
• Docket Number: Civ. No. 11758.
• Citation: 126 F. Supp. 656
• Parties: Jeavon L. ECKMAN and John F. Eckman, Plaintiffs, v. Abe BAKER, individually and trading as Simmonds Upholstering Co., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

126 F. Supp. 656

Jeavon L. ECKMAN and John F. Eckman, Plaintiffs, v. Abe BAKER, individually and trading as Simmonds Upholstering Co., Defendants.

Civ. No. 11758.

United States District Court, W. D. Pennsylvania.

December 28, 1954.

Robert B. Ivory, Evans, Ivory & Evans, Pittsburgh, Pa., for plaintiffs.

James J. Burns, Jr., Randall J. McConnell, Jr., Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, Pa., for defendants.

MILLER, District Judge.

The case arises upon plaintiffs' motion for a preliminary hearing to determine the question of service of process raised by defendant's answer to plaintiffs' complaint. Rule 12(d), Federal Rules of Civil Procedure, 28 U.S.C.

The instant litigation arose out of a collision in Allegheny County, in the Western District of Pennsylvania, between an automobile driven by the plaintiff husband, John P. Eckman, and an automobile driven by defendant's duly authorized servant, agent and employee, acting within the scope of his employment and authority. The complaint avers that the automobile driven by defendant's employee was owned by the driver's wife. The complaint, as amended, also avers that, pursuant to an arrangement, the cost of the gas and oil used in its operation was paid by defendant. Plaintiffs are citizens of Pennsylvania, residing in Allegheny County; defendant is a citizen of Massachusetts.

Defendant contends that he was not amenable to service which was made in accordance with the provisions of the Pennsylvania Act of May 14, 1929, P.L. 1721, as amended, 75 P.S. § 1201, which by its terms is applicable to:

"* * * 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 * * *."

See Rule 4(d) (7), Federal Rules of Civil Procedure.

The Pennsylvania Act has been construed by the following decisions of the Pennsylvania Courts of Common Pleas:

1. Riccio v. Niagara Cotton Co., C.P., Lehigh Co., 1931, 15 Lehigh Co.L.J. 195, 47 York Leg.Rec. 70. In this case, service of process against a nonresident corporate employer of the driver of a car in Pennsylvania was set aside. The driver was the owner of the car.

President Judge Reno held:

"By its own terms the Act applies to those nonresidents who (a) operate cars in Pennsylvania and (b) owners of cars who have them operated in Pennsylvania."

2. Darling v. Paramount Line, Inc., C. P., Erie Co., 1941, 24 Erie L.J. 109. In this case the Court held that the Riccio case, supra, was "squarely in point" and that service should be set aside against the nonresident defendant, there being nothing in the case to fasten the ownership of the motor vehicle upon the nonresident defendant.

3. Burns v. Philadelphia Transportation Co., Inc., et al., C.P. No. 1 Phila. Co., 1942, 44 Pa.Dist. & Co. 654. In this case service was set aside against the nonresident lessee of a motor vehicle which was driven by its lessor in Pennsylvania upon the nonresident defendant's business. Plaintiff had averred that the lessor was the owner as well as the operator of the vehicle involved in the collision. The Court held that the clause "having the same operated" refers to nonresident owners of motor vehicles, from an analysis of the statutory language.

4. Stouffer v. Eastern Motor Dispatch, Inc., C.P., Lebanon Co., 1951, 80 Pa.Dist. & Co., 30. In this case the defendant driver had driven a tractor and trailer in Pennsylvania, in doing which he was engaged in the business of the nonresident Eastern Motor Dispatch, Inc. The trailer was owned by Eastern Motor Dispatch, Inc., and leased to the driver; the tractor was owned by the driver and leased to Eastern Motor Dispatch, Inc. As in the Burns case, supra, the Court held the service improper, rejecting the contention that where an automobile is being operated by some one who is engaged on the business of lessee, the lessee is having it operated.

The Act has also been construed by the following previous decisions of this Court:

1. Rigutto v. Italian Terrazzo Mosaic Co., D.C., W.D.Pa., 1950, 93 F.Supp. 124. In this case the Court held that the Pennsylvania statute in question was applicable to a nonresident defendant partnership, where the car involved was owned by the partner who was driving it in Pennsylvania on the business of the partnership.

Citing Williams v. Meredith, 1927, 326 Pa. 570, 572, 192 A. 924, 115 A.L.R. 890, the Court stated that 93 F.Supp. 127 "statutes governing service of process must be strictly construed, inasmuch as they are in derogation of the common law." However, the Court held the service of process valid under the facts of the case, carefully basing its decision upon the nature of partnerships, as distinguished from other forms of business enterprise.

2. Millican v. Gee, D.C., W.D.Pa., 1950, 97 F.Supp. 1012. In this case the Court held that service against a nonresident corporate defendant whose employee had owned and driven the vehicle involved in Pennsylvania must be quashed, on the authority of the three Common Pleas decisions which had theretofore been decided.

3. Glover v. Daniels Motor Freight, Inc., D.C., W.D.Pa., 1951, 101 F.Supp. 97. In this case the driver of the vehicle involved was an employee of the nonresident corporate defendant, and the corporate defendant was lessee of the vehicle. Service of process was held proper under the Pennsylvania statute on the ground that the lessee was the "operator" of the vehicle. The Court's decision was based, at least in part, upon the definition of "operator" contained in the Tractor Code, Act of May 1, 1929, P.L.1005, § 102, as amended, 75 P.S. § 862, which definition has since been repealed by the Act of Jan. 14, 1952, P.L.1996, § 2, Laws of 1951.

4. Reese v. American Red Ball Transit Co., Inc., D.C., W.D.Pa., 1952, 107 F.Supp. 549. In this case also, service was held proper against the corporate nonresident defendant who was a lessee of a motor vehicle driven by its employee in Pennsylvania, on the authority of the Glover case, supra.

It is clear that this Court, in determining the law of Pennsylvania, is not bound by decisions of the Pennsylvania Courts of Common Pleas, as it would be bound by decisions of the Pennsylvania appellate Courts. Sunbeam Corp. v. Civil Service Employees' Cooperative Ass'n, 3 Cir., 1951, 187 F.2d 768. See also Berkshire Land Co., v. Federal Security Co., 3 Cir., 1952, 199 F.2d 438; National Foam System, Inc., v. Urquhart, 3 Cir., 1953, 202 F.2d 659.

On the other hand, it is equally clear that the interpretation given by this Court to the Pennsylvania statute should not differ from that which the Pennsylvania courts are likely to follow, regardless of what interpretation this Court may think correct or prefer. It follows that the four decisions of the Courts of Common Pleas, which constitute all of the available data from which this Court may ascertain the meaning of the Pennsylvania statute as construed by the Pennsylvania Courts, should be accorded great weight by this Court, in the absence of convincing evidence that...