The plaintiff strenuously argues that under the Fiduciaries Act of 1949, the substituted service is valid. We cannot agree. At the time the defendant administrator filed his certificate under the Fiduciaries Act of 1949, this suit had not been filed. Moreover, this suit has not arisen out of, or by reason of, the exercise of any powers of the fiduciary within this state, nor did it arise out of the performance or nonperformance of any of his duties as such fiduciary within this state. This suit arose out of an automobile accident which occurred prior to the death of the decedent.
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 Fiduciaries Act of 1949 to authorize substituted service in this case.
As to substituted service on the defendant partnership, we are of the opinion that it is valid. The language of the Nonresident Motorist Act plainly applies to 'any nonresident * * * , being the operator or owner of any motor vehicle, who shall accept the privilege * * * of operating a motor vehicle, or of having the same operated, within the Commonwealth * * * .' (Italics supplied.)
Moreover, the statute was designed to effect service upon nonresidents against whom injured parties had claims.
We think the Legislature intended to include claims against nonresident partnerships who have cars operated within Pennsylvania upon partnership business and actually driven by a principal and owner of the business. Under such circumstances when an injury occurs the partnership may be liable and all of the partners may be liable jointly and severally for a partner's tort.
It appears that on the day of the accident partner Joseph Rigutto, on behalf of the defendant company, had accepted the privilege of using the highways of Pennsylvania when he undertook a trip from West Virginia to Pittsburgh upon partnership business in his own car.
The question is: Can the nonresident partnership be regarded as the 'operator' of this vehicle owned and driven by Joseph Rigutto? Within the plain language of the statute, and certainly within its intendment, this partnership became the 'operator' of the vehicle involved when, by a partner, it accepted the privilege 'of having the same operated, within the Commonwealth * * * .'
We examined the case
cited by the defendant. There the defendant corporation 'was the lessee of a vehicle which was being operated and driven by Schellhorn who was engaged on the * * * Company's business.' Schellhorn also owned the vehicle. He might have been an independent contractor. Nowhere in the opinion is he called an employee or agent. We are also aware of the cases
where the vehicles involved were owned and operated by employees of the defendant corporations. In all these cases service upon the corporations under the Nonresident Motorist Act was set aside.
The defendant partnership contends that in absence of a Pennsylvania Appellate Court decision, this court is bound by these Pennsylvania lower court decisions.
We concede that we would be bound by them if the instant case were in point, but it is not.
If, like a corporation, a partnership is considered an entity, of course it cannot physically drive a car. But, in Pennsylvania, subject to exceptions, 'a partnership is not recognized as an entity like a corporation, * * * it is not a legal entity having as such a domicile or residence separate and distinct from that of the individuals who compose it. It is rather a relation or status between two or more persons who unite their labor or property to carry on a business for profit.'
Thus when a nonresident partner drives his own car or that of a third person in Pennsylvania upon partnership business, this operation, in our opinion, is equivalent to operation by the nonresident partnership for the purpose of substituted service. A partner occupies a position of closer identity to his partnership than does a mere agent, servant or employee of a corporation.
Contra to the Pennsylvania lower court cases cited in the footnotes is the careful analysis of the problems of substituted service written in Goodrich-amram's Pennsylvania Procedure in the sections under Rule 2077. It is stated by this respected authority at Section 2077(a)-4: 'The Pennsylvania statute is clearly broader in scope than the form of statute stating that operation of a car shall make it applicable, since the Pennsylvania Act applies to the operator or owner of any vehicle operating or having the same operated in Pennsylvania. Because of this greater scope the Pennsylvania Act is not limited to the driver and should be construed to extend to any nonresident having a motor vehicle physically operated by another.'
At Section 2077(a)-13 it is said: 'The provision that the Act applies to one having a car operated shows that the Act is not restricted to the case of a non-resident physically operating his car, but includes a non-resident, who through an agent or employee, has a car operated within the state.'
This interpretation finds support in decisions from other jurisdictions having statutes similar to the Pennsylvania Act
and corroborates our view thereof.
The service of the summons and complaint on the Italian Terrazzo Mosaic Co., a partnership, is sustained.