and second, that venue was improperly laid in this District.
I will first consider defendants' contention as to jurisdiction, for if that contention is correct, it will not be necessary to pass upon the question of venue. The only basis of jurisdiction alleged in the instant case is that defendants were served in accordance with the Act of May 14, 1929, and Rule 2079, P.R.C.P., supra. Defendants suggest that the benefits of service under the Act of May 14, 1929, do not inure to a plaintiff who is not a resident of the Commonwealth of Pennsylvania. I am of the opinion that that contention is correct.
In the case of Haddonleigh Estates, Inc., et al., v. Spector Motor Service, Inc., 41 Pa.Dist.& C. 246 (Common Pleas, Bucks County, 1941), the Court held that the Act of May 14, 1929, could not be invoked in an action by one nonresident against another nonresident of Pennsylvania. I am aware of no other case decided in Pennsylvania, either by an appellate court or by a court of first instance, in which this precise question has been presented and passed upon.
Although the Haddonleigh case was decided by a Lower Court of the Commonwealth of Pennsylvania, in the absence of a Pennsylvania appellate court ruling, the Haddonleigh decision is controlling upon this Court under the rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, and the decision in Fidelity Union Trust Co., Executors, v. Field, 311 U.S. 169, 61 S. Ct. 176, 85 L. Ed. 109. Said the Court in the Fidelity Union Trust Co. case, 311 U.S.at pages 177, 178, 61 S. Ct.at page 178, 85 L. Ed. 109:
'* * * The highest state court is the final authority on state law ( Beals v. Hale, 4 How. 37, 54, 11 L. Ed. 865; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 823, 82 L. Ed. 1188, 114 A.L.R. 1487), but it is still the duty of the federal courts, where the state law supplies the rule of decision, to ascertain and apply that law even though it has not been expounded by the highest court of the State. See Rubin v. New York Life Insurance Co., 304 U.S. 202, 209, 58 S. Ct. 860, 862, 82 L. Ed. 1290. An intermediate state court in declaring and applying the state law is acting as an organ of the State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question * **.'
See also Buttson v. Arnold, D.C.E.D. Pa., 1945, 4 F.R.D. 492.
Defendant's motion to dismiss is granted.
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