Rockwell v. United States Fidelity & Guaranty Co.

• Decision Date: 28 December 1955
• Docket Number: Civ. A. 4766.
• Citation: 137 F. Supp. 317
• Parties: Alice T. ROCKWELL, Plaintiff, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

137 F. Supp. 317

Alice T. ROCKWELL, Plaintiff, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant.

Civ. A. 4766.

United States District Court M. D. Pennsylvania.

December 28, 1955.

James Rutherford, Honesdale, Pa., for plaintiff.

Carlon M. O'Malley, Scranton, Pa., for defendant.

JOHN W. MURPHY, Chief Judge.

Plaintiff of Wayne County, Pennsylvania, in this district, sought in the state court to recover from defendant, a Maryland corporation, for alleged fraud, service of process being made upon one John B. Kemple, one of defendant's special agents, while he was visiting the Wayne County Court House on other business of defendant. Upon defendant's petition, 28 U.S.C.A. § 1441 (a, b), § 1446(a, b, d, e), this diversity action was removed to this court. Defendant moves to dismiss plaintiff's action for lack of jurisdiction over the person. Federal Rules of Civil Procedure, 12(b) (2), 28 U.S.C.A.

Pennsylvania Procedural Rule 2180 (a), 12 P.S.Appendix, provides: "Service of process within the county in which the action is instituted shall be made upon a corporation * * * by the sheriff of that county by handing a true and attested copy thereof (1) to an executive officer, partner or trustee of the corporation * * * (2) to an agent or person for the time being in charge of, and only at, any office or usual place of business of the corporation * * *; or (3) to an agent authorized by appointment to receive service of process; or by delivering a true and attested copy thereof in the manner provided by law to a statutory agent authorized to receive service of process."

Defendant has its principal office and place of business in Baltimore, Maryland, its principal Pennsylvania office at Harrisburg, and a branch office at Scranton, the latter two cities being in this district. It had no office or place of business at Honesdale. It was stipulated by counsel that Mr. Kemple was not an authorized officer or agent upon whom valid service could be made. Service of process was therefore invalid under Pennsylvania law. See Goodrich-Amram Procedural Rules Service, commentary, §§ 2180-1 et seq., 2180(a)-1 et seq.

In the petition for removal defendant asserted, inter alia, "your petitioner was served with a certified copy of said complaint * * *". See and cf. 28 U.S.C.A. § 1446(b), "The petition for removal * * * shall be filed within twenty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading * * * or within twenty days after the service of summons upon the defendant * * * whichever period is shorter." Plaintiff contends that by making the averment as to service, apparently in order to comply with the statute, the defendant thereby admitted that proper service was made and by its conduct was either estopped to deny that fact or had thereby waived compliance with the statute as to service of process and apparently that defendant thereby waived his right to removal. We do not agree.

Defendant's petition for removal was filed for the express purpose of raising the question of lack of jurisdiction of the person in this court. The motion to dismiss was filed promptly after removal. Certainly the act of removal per se was not a waiver of any objection to jurisdiction over the person. See Morris & Co. v. Skandinavia Ins. Co., 1929, 279 U.S. 405, 409, 49 S.Ct. 360, 73 L.Ed. 762; General Investment Co. v. Lake Shore & M. S. R. Co., 1922, 260 U.S. 261, at page 268, 43 S.Ct. 106, 67 L.Ed. 244. The language of Mr. Chief Justice Fuller in Wabash Western Ry. v. Brow, 1896, 164 U.S. 271, at page 278, 17 S. Ct. 126, 128, 41 L.Ed. 431, is most pertinent, "The right of * * * defendant to a removal is * * * statutory * * * he is obliged to pursue the course pointed out * * * when he confines himself to the enforcement of that right in the manner prescribed, he ought not to be held thereby to have voluntarily waived any other right he possesses. * * * The statute does not require the removing party to raise the question of jurisdiction over his person in the state court before removing the cause, or to reserve that question in respect of a court which is to lose any power to deal with it * * *"; and see Id., 164 U.S. 276, 279, 17 S.Ct. 127, 128.

A waiver is the voluntary extinguishment of a known right. Ordinarily it is a question of intent. Houlton Savings Bank v. American Laundry Machinery Co., D.C.Me., 7 F.Supp. 858, 859, at pages 861, 862. It may however be inferred from conduct. Cf. Wabash Western Ry. v. Brow, supra, 164 U.S. at page 278, 17 S.Ct. 126; General Phoenix Corp. v. Malyon, D.C.S.D.N.Y., 88 F. Supp. 502. To operate as a waiver the act of the party must be irreconcilably repugnant to the assertion of his legal right. There must be a clear, unequivocal and decisive act showing such a purpose or acts amounting to an estoppel. We find none. Whiteley Malleable Castings Co. v. Sterlingworth Railway Supply Co., C.C.Ind., 83 F. 853, at page 855, and see McMillen v. Indemnity Ins. Co. of North America, D.C.Mo., 8 F.2d 881, at page 883; Town of Edenton v. Hervey Foundation, Inc., D.C.N.C., 71 F. Supp. 998, at pages 999, 1000. This statutory right should not be denied because of some fortuitous act which defendant did not intend to have such an effect. The action relied upon must be inconsistent with a purpose to pursue the right to remove and clearly indicate an intention to...