The opinion of the court was delivered by: MARSH
In this action John Rigutto, administrator of the estate of Louis Rigutto, deceased, brought suit against Italian Terrazzo Mosaic Company, a partnership, and John D. Kennedy, administrator of the estate of Joseph Rigutto, deceased, to recover damages for the death of Louis Rigutto resulting from an automobile accident which occurred in Westmoreland County, Pennsylvania, on or about the 29th day of October, 1949.
The plaintiff, administrator of the estate of Louis Rigutto, is a resident of Allegheny County, Pennsylvania, as was Louis Rigutto prior to his death.
The defendant, John D. Kennedy, administrator of the estate of Joseph Rigutto, is a resident of Florida, as was Joseph Rigutto prior to his death.
The defendant, Italian Terrazzo Mosaic Company, was a partnership, having its principal offices in Florida, and its partners were Louis Babuin and the said Joseph Rigutto, both of whom on the day of the accident, were residents of Florida.
The complaint alleges, inter alia, that Louis Rigutto, a guest passenger, was fatally injured by the negligent operation of a motor vehicle owned and driven by Joseph Rigutto, 'acting for himself, and/or on behalf of the business generally of the defendant partnership,' while traveling on the public highways of Westmoreland County, Pennsylvania.
On the 3rd day of December, 1949, the defendant, John D. Kennedy, was appointed domiciliary administrator of the estate of Joseph Rigutto by the Probate Court of Broward County, State of Florida. On February 15, 1950, Mr. Kennedy filed his certificate of authority to act as administrator of said estate in the Register's Office of Allegheny County, Pennsylvania, for the purpose of removing certain assets of the estate of Joseph Rigutto located in Allegheny County at the time of his death.
The plaintiff caused the Secretary of the Commonwealth to be served with process against the defendant administrator and against the defendant administrator and against the defendant partnership in accordance with Rule 2079(a)
of the Pennsylvania Rules of Civil Procedure.
Counsel for the defendants appeared de bene esse, and moved to quash and strike off the service of the summons and dismiss the action, alleging that the court lacks jurisdiction over the parties, and insufficiency of service of process on the defendants.
The plaintiff concedes that the Nonresident Motorist Act, partially quoted in footnote 3 infra, cannot be invoked to effect valid substituted service upon the personal representative of the estate of the deceased nonresident. See Buttson et al. v. Arnold, D.C., 4 F.R.D. 492.
In order to sustain the substituted service upon the defendant administrator, the plaintiff invokes the Fiduciaries Act of April 18, 1949, P.L. 512, Art. XI, Sec. 1103, 20 P.S. § 320.1103.
In order to sustain the substituted service upon the defendant partnership, the plaintiff invokes the Nonresident Motorist Act of May 14, 1929, P.L. 1721, as last amended by the Act of May 23, 1949, P.L. 1651,Sec. 1, 75 P.S. § 1201.
Counsel contends that the defendant administrator has a duty toward the Pennsylvania tort claimant as a creditor; that he has been guilty of nonperformance of that duty and is, therefore, amenable to the Pennsylvania courts. Until plaintiff reduces the tort claim to judgment, it can hardly be said that he is more than a potential creditor toward whom the defendant administrator would owe no active duty. Ordinarily, an administrator will determine that it is his duty to resist an unliquidated tort claim, at least until judgment.
Statutes governing the service of process must be strictly construed, inasmuch as they are in derogation of the common law. Williams et ux. v. Meredith, Appellant, 326 Pa. 570, 572, 192 A. 924, 115 A.L.R. 890. We cannot extend the language used in the ...