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MILLICAN v. GEE

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


October 9, 1950

MILLICAN
v.
GEE et al.

The opinion of the court was delivered by: MARSH

In this case the plaintiff avers that the defendant Gee is an employee, jointly or severally, of the defendant, Kidd, and the additional defendant, A. and A. Machinery Corporation. The latter moves to dismiss the action or quash the service because it, being a New York corporation, was brought in under the Pennsylvania Nonresident Motor Vehicle Act, *fn1" and is not amenable to service because it did not operate or cause to be operated a motor vehicle involved in Pennsylvania.

Counsel for A. and A. Machinery Corporation cites Midora v. Alfieri, 341 Pa. 27, 17 A.2d 873, to sustain its motion to dismiss. Counsel for plaintiff cites Kimble v. Wilson, 352 Pa. 275, 42 A.2d 526; Kissell, Trustees, v. Motor Age Transit Lines, Inc., 357 Pa. 204, 53 A.2d 593; and Allaman v. Pennsylvania Public Utility Commission, 149 Pa.Super. 353, 359, 27 A.2d 516, as authority for denying the motion.

 This Court assumes for the purpose of this motion, as alleged in the amended complaint, that Gee is an employee of the A. and A. Machinery Corporation.

 Independent examination reveals that Pennsylvania Common Pleas Courts of Lehigh and Erie Counties *fn2" have held that an employer corporation whose employee owns and operates the offending vehicle is not amenable to service under the Nonresident Motorist Act. Also, the Common Pleas Court of Philadelphia County *fn3" has held that the corporation lessee of a vehicle which was owned and operated by the lessor upon the business of the lessee is likewise not an 'owner or operator' of a motor vehicle within the Nonresident Motorist Act and was not amenable to service.

 This Court is in accord with the reasoning set forth in Goodrich-Amram's Pennsylvania Procedure, Rule 2077, Sections 2077(a)-4 and 2077(a)-13, wherein the interpretation of the Statute is quite contrary to that of the Pennsylvania Common Pleas Courts. *fn4"

 However, this Court is bound by the law as set forth in these Pennsylvania decisions. *fn5"

 The Service of Process upon the A. and A. Machinery Corporation, additional defendant, must be quashed.


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