Summers v. SKIBS A/S MYKEN
Citation | 184 F. Supp. 745 |
Decision Date | 10 June 1960 |
Docket Number | Civ. A. No. 26902. |
Parties | Elijah SUMMERS v. SKIBS A/S MYKEN. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Marvin I. Barish, Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiff.
Harrison G. Kildare, Rawle & Henderson, Philadelphia, Pa., for defendant.
On December 22, 1958, Elijah Summers, a longshoreman, was injured seriously aboard the defendant's motor ship Myken, as a result of the alleged unseaworthiness of that vessel and the negligence of its owner. Suit was instituted on August 25, 1959. On February 2, 1960, the plaintiff purported to make service upon the defendant under the provisions of the Pennsylvania Nonresident Vessel Owners Act, which had been approved November 10, 1959.
Defendant has moved to set aside the purported service for the following reasons:
This Court is entirely satisfied that the motion of defendant must be granted. It is, however, unable to agree with counsel for either side as to the principles and authorities which govern the result. It is furthermore on notice that numerous pending cases depend upon the eventual determination of the present motion. For those reasons, a somewhat formidable number of the cases in point are being listed. To avoid burying discussion in citations, however, most of the authorities have been cited in appendices rather than in the text of this opinion.
The wording closely follows that of the Pennsylvania Nonresident Motorist Act, 75 P.S. § 2001 (Appendix II). That act in turn is derived from the Massachusetts protoype act of 1923, St.1923, c. 431, § 2, M.G.L.A. c. 90 §§ 3A, 3B, which was upheld in the celebrated case of Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091.
The constitutionality of the Pennsylvania Nonresident Vessel Owners Act is deemed to be in no way involved in the present motion, however. That is for the reason that the statute is deemed by this Court to be not applicable to pending cases, on the authority of an unbroken series of cases under similar (motorists') statutes in various state and federal courts from 1927 to the present (Appendix III). Paraboschi v. Shaw, 1927, 258 Mass. 531, 155 N.E. 445; Guerra De Chapa v. Allen, D.C.S.D.Tex. 1954, 119 F.Supp. 129. At least 15 states, from Arkansas to Wisconsin, have considered such statutes and found them not retroactive for a variety of reasons. e. g. Fritchey v. Summar, D.C.W.S.Ark. 1949, 86 F.Supp. 391; Zavis v. Warren, D.C.E.D.Wis.1940, 35 F.Supp. 689; Appendix IV.
The decisions that substituted service statutes partake of substantive law and are not retrospective seem uniform in result regardless of variation in statutes. The same principles, for instance, are applied in South Carolina under a statute (45 St. at Large, pp. 561-563) providing for service upon nonresident directors of domestic corporations. Johnson v. Baldwin, 1949, 214 S.C. 545, 53 S.E.2d 785. And no case has been found which represents a clear cut departure from the foregoing proposition. See Appendix V, discussing Allen v. Superior Ct., Cal. App. 1953, 251 P.2d 358.
Much was made in argument of the circumstance that the 1929 Pennsylvania Nonresident Motorist Act is introduced by the words "From and after the passage of this act, any nonresident * *." The instant act, plaintiff points out, is not so limited as to date.
In the view of this Court, the 1937 Act is merely confirmatory of a basic principle of law, in its present application, at least. United States v. Heth, 1806, 3 Cranch 399, 413, 7 U.S. 399, 413, 2 L.Ed. 479, 483; Appendix VI. It therefore seems unnecessary to speculate upon the possible bearing of the Statutory Construction Act.
Lest it appear that too much weight is being given to the decisions of other state courts, it is mentioned that previous constructions of prototype acts are assumed to have been accepted by states adopting or paraphrasing such statutes. Ashley v. Brown, 1930, 198 N.C. 369, 151 S.E. 725, 728; Appendix VII.
Somewhat more specific, however, is the Pennsylvania doctrine that legislative rules as to service of process are in derogation of common law and must be strictly construed. McCall v. Gates, 1946, 354 Pa. 158, 47 A.2d 211; Appendix VIII.
It is familiar law that constitutional questions are not to be anticipated. Peters v. Hobby, 1955, 349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129; Appendix IX. Since the purported service in the instant case is deemed not authorized by the terms of the statute, there is at any rate no present occasion to consider its constitutionality.
It should be mentioned, however, that the cases denying retroactivity to the nonresident motorist acts reecho the warning that to hold such a statute retroactive would raise grave doubt as to its constitutionality. Guerra De Chapa v. Allen, D.C.S.D.Tex.1954, 119 F.Supp. 129, 131; Appendix X. Indeed, in the case last cited, an amendment to such an act was held prospective despite the very terms of the act whereby it was to be applicable to actions "now pending or hereafter instituted." Emphasis added.
Plaintiff has pressed upon us the rule of numerous Pennsylvania cases which hold that procedural statutes are retrospective. e. g. Kuca v. Lehigh Valley Coal Co., 1920, 268 Pa. 163, 110 A. 731. Lest it appear that such authorities are being passed over in cavalier fashion, it is noted here that the same argument appears in virtually every case on the instant question. (Appendices III, IV and V). The crux of the decisions which are pertinent, however, is that the substituted service statutes affect substantive rights. They are thus found to be more than merely procedural or remedial. Paraboschi v. Shaw, 1927, 258 Mass. 531, 155 N.E. 445; Restatement of Conflict of Laws § 84; Appendix XI.
There are several recent cases which hold to the foregoing principle and nevertheless demonstrate the sort of procedural change which can be made in such statute and which will affect pending cases. Such are the instances where the title or even the office of the state officer who is named as the fictive agent for service of process is changed by amendment. Zavis v. Warren, D.C.E.D.Wis. 1940, 35 F.Supp. 689; Appendix XII.
For the foregoing reasons, the motion of Skibs A/S Myken, defendant, to set aside the attempted service under the Pennsylvania Nonresident Vessel Owners Act is Granted, and it is So Ordered.
Appendix
I. Text of Pennsylvania Nonresident Vessel Owners Act II. Text of Pennsylvania Nonresident Motorist Act III. "No Retroactivity" Decisions since 1927 IV. A Variety of Reasons for Such Results V. The California Case distinguished VI. Statutory Construction; Statute and Basic Law VII. Presumption that Preexisting Statutory Constructions are Accepted with Prototype Acts VIII. Legislative Rules as to Service of Process: Strict Construction IX. No Anticipation of Constitutional Questions X. Dubious Constitutionality of Retroactive Acts XI. Procedure vs. Substance; Restatement of Conflict of Laws XII. Changes within Substituted Service Statutes which are Procedural
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