Summers v. SKIBS A/S MYKEN, Civ. A. No. 26902.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtLORD
PartiesElijah SUMMERS v. SKIBS A/S MYKEN.
Decision Date10 June 1960
Docket NumberCiv. A. No. 26902.

184 F. Supp. 745

Elijah SUMMERS
v.
SKIBS A/S MYKEN.

Civ. A. No. 26902.

United States District Court E. D. Pennsylvania.

June 10, 1960.


Marvin I. Barish, Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiff.

Harrison G. Kildare, Rawle & Henderson, Philadelphia, Pa., for defendant.

LORD, District Judge.

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:

(1) that the Pennsylvania statute is effective only with respect to causes of action arising subsequent to its date of enactment;
(2) that even if it were the intention of the legislature to apply the statute retroactively, such application would be a violation of the constitutional guarantees of due process and protection against ex post facto laws; and
(3) that the nonresident vessel owners act is unconstitutional as an unreasonable burden upon interstate and foreign commerce.

Resisting the motion, plaintiff concedes on none of these scores, and says to the contrary

(1) that the Pennsylvania statute is merely procedural and remedial, and thus applicable to pending cases;
(2) that there is no constitutional barrier to the retroactivity of such statutes; and
(3) that the nonresident vessel owners act, on principle and authority, is not unconstitutional.

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.

184 F. Supp. 746
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 relevant portions of the statute (full text in Appendix I) provide that:—

"Any nonresident * * * owner or operator of any vessel, who shall accept the privilege, extended by the laws of the Commonwealth * * * of operating a vessel in the waters of this Commonwealth or of using its port facilities or ports * * * shall thereby make and constitute the Secretary of the Commonwealth his agent for the service of process in any civil suit or proceeding instituted in the courts of * * * Pennsylvania or in the United States Courts in Pennsylvania against such operator or owner * * * arising out of * * * any accident or collision, occurring within the waters of the Commonwealth in which such vessel is involved." 12 P.S. § 336.

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.

Defendant says the omission of "from and after" in the recent act is of no significance; that there has intervened, between 1929 and 1959, the Pennsylvania Statutory Construction Act of 1937:—

"No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature." 46 P.S. § 556. (Appendix VI.)

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

184 F. Supp. 747
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
                

I. Text of Pennsylvania Nonresident Vessel Owners Act

Purdon's Pennsylvania Legislative Service, 1959-60 No. 10, p. 1545— Service of Process—Nonresident Operators or Owners—Vessels—Act No. 500 (12 P.S. §§ 336, 337) S.B. No. 187.
184 F. Supp. 748
"An Act providing for the service of process in civil suits on nonresident operators or nonresident owners, or a resident who becomes a nonresident and conceals his whereabouts, of vessels operated in the Commonwealth of Pennsylvania; and making the operation of such vessels in the Commonwealth of Pennsylvania, the equivalent of the appointment of the Secretary of the Commonwealth as the agent of the said nonresident upon whom civil process may be served; and providing for further notice to the defendant in any such suit.
"Service of process.
"The General Assembly of the Commonwealth
...

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5 practice notes
  • Krueger v. Rheem Mfg. Co., No. 52349
    • United States
    • United States State Supreme Court of Iowa
    • March 7, 1967
    ...212, 214, (Secretary of State); Nevins v. Revlon Inc., 23 Conn.Sup. 314, 182 A.2d 634, (Secretary of State); Summers v. Skibs A/S Myken, 184 F.Supp. 745, 746, 191 F.Supp. 929, aff'd 3rd Cir., 296 F.2d 548, (Secretary of Commonwealth); Cassan v. Fern, 33 N.J.Super. 96, 109 A.2d 482, (Directo......
  • Hill v. Electronics Corp. of America, No. 50395
    • United States
    • United States State Supreme Court of Iowa
    • February 6, 1962
    ...1031, 78 N.W.2d 6, and citations; Mayer v. Wright, supra, 234 Iowa 1158, 1161, 15 N.W.2d 268, 270; Summers v. Skibs A/S Myken, E.D.Pa., 184 F.Supp. 745, and citations page 749. See also Jacobs v. Miller, 252 Iowa ----, 111 N.W.2d 673, 676, and citation; Manilla Community School District v. ......
  • Bruney v. Little, No. 22781
    • United States
    • Court of Common Pleas of Ohio
    • June 15, 1966
    ...to cause of action arising prior to enactment and effective date of statute.' [222 N.E.2d 456] (3) Summers v. Skibs A/S Myken, D.C., 184 F.Supp. 745. The 2nd, 4th & 5th paragraphs of the syllabus read as '2. Under Pennsylvania law, legislative rules as to service of process are in derogatio......
  • Summers v. SKIBS A/S MYKEN, Civ. A. No. 28551.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 1, 1961
    ...1958. The defendant corporation, organized 191 F. Supp. 930 in Norway, is the owner of the S.S. Myken. Plaintiff first brought a suit (184 F.Supp. 745) on this cause of action on August 25, 1959, and attempted to serve process in February 1960. Defendant's Motion to Set Aside Service of Pro......
  • Request a trial to view additional results
5 cases
  • Krueger v. Rheem Mfg. Co., No. 52349
    • United States
    • United States State Supreme Court of Iowa
    • March 7, 1967
    ...212, 214, (Secretary of State); Nevins v. Revlon Inc., 23 Conn.Sup. 314, 182 A.2d 634, (Secretary of State); Summers v. Skibs A/S Myken, 184 F.Supp. 745, 746, 191 F.Supp. 929, aff'd 3rd Cir., 296 F.2d 548, (Secretary of Commonwealth); Cassan v. Fern, 33 N.J.Super. 96, 109 A.2d 482, (Directo......
  • Hill v. Electronics Corp. of America, No. 50395
    • United States
    • United States State Supreme Court of Iowa
    • February 6, 1962
    ...1031, 78 N.W.2d 6, and citations; Mayer v. Wright, supra, 234 Iowa 1158, 1161, 15 N.W.2d 268, 270; Summers v. Skibs A/S Myken, E.D.Pa., 184 F.Supp. 745, and citations page 749. See also Jacobs v. Miller, 252 Iowa ----, 111 N.W.2d 673, 676, and citation; Manilla Community School District v. ......
  • Bruney v. Little, No. 22781
    • United States
    • Court of Common Pleas of Ohio
    • June 15, 1966
    ...to cause of action arising prior to enactment and effective date of statute.' [222 N.E.2d 456] (3) Summers v. Skibs A/S Myken, D.C., 184 F.Supp. 745. The 2nd, 4th & 5th paragraphs of the syllabus read as '2. Under Pennsylvania law, legislative rules as to service of process are in derog......
  • Summers v. SKIBS A/S MYKEN, Civ. A. No. 28551.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 1, 1961
    ...1958. The defendant corporation, organized 191 F. Supp. 930 in Norway, is the owner of the S.S. Myken. Plaintiff first brought a suit (184 F.Supp. 745) on this cause of action on August 25, 1959, and attempted to serve process in February 1960. Defendant's Motion to Set Aside Service of Pro......
  • Request a trial to view additional results

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