The crux of the question, therefore, resolves itself into a determination as to whether under Section 1201 of the Pennsylvania Vehicle Code the non-resident defendant waived the venue requirements of 28 U.S.C.A. § 1391(a, c).
Venue is a personal privilege which may be either expressly or impliedly waived by a defendant. Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S. Ct. 153, 84 L. Ed. 167; Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 49 S. Ct. 98, 73 L. Ed. 252; Knott Corp. v. Furman, 4 Cir., 163 F.2d 199.
When defendant operated its vehicle on the public highways of Pennsylvania, although a resident of Texas, it subjected itself to the law of Pennsylvania and, in effect, consented to be sued in the State courts and submitted itself to the venue of the courts. Urso v. Scales, D.C., 90 F.Supp. 653.
Had the non-resident plaintiff in the present action begun his suit in a State court in this judicial district, the non-resident defendant could have removed it to this Federal court. Lee v. Chesapeake & Ohio Railway Co., 260 U.S. 653, 43 S. Ct. 260, 67 L. Ed. 443.
Certainly it would prove an anomaly, and the interests of justice would not be subserved, if the non-resident plaintiff could sue the non-resident defendant in a State court but not in a Federal court, when the defendant could have removed the State-court case to the Federal court.
A non-resident operating a vehicle or consenting to the operation of a vehicle upon the highways of a state where a non-resident motor vehicle act such as prevails in Pennsylvania is in effect, waives venue in both State and Federal courts in actions arising out of an accident on the state highways. Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., supra; Ex parte Schollenberger, 96 U.S. 369, 24 L. Ed. 853.
In the event the complaint in this proceeding is dismissed, the plaintiff would have but one federal forum open to him- the Federal courts of Texas.
The plaintiff in this proceeding resides in Buffalo, New York, a relatively short distance from the district in Pennsylvania where this case would be tried. Most, if not all, witnesses conversant with the facts of the accident reside in Pennsylvania. The locale of the accident might well be an area of Pennsylvania with which most jurors of this district would be familiar.
To compel the plaintiff to proceed to trial in the State of Texas, in order to maintain federal jurisdiction, would prove highly inequitable and would radically jeopardize a fair and expeditious administration of justice.
I am conclusively satisfied that a non-resident's use of the Pennsylvania highways operated as an implied waiver of the venue requirement of the Federal statute. Jacobson v. Schuman, D.C., 105 F.Supp. 483; Garcia v. Frausto, D.C., 97 F.Supp. 583; Burnett v. Swenson, D.C., 95 F.Supp. 524; Urso v. Scales, D.C., 90 F.Supp. 653; Morris v. Sun Oil Co., D.C., 88 F.Supp. 529; Archambeau v. Emerson, D.C., 108 F.Supp. 28.
I am cognizant of holdings to the contrary of the views herein expressed. Waters v. Plyborn, D.C., 93 F.Supp. 651; Martin v. Fischbach Trucking Co., 1 Cir., 183 F.2d 53.
With due deference to the opinion of Judge Albert B. Maris in the latter case, I am of the belief that a significant distinction pertains between the Pennsylvania Non-Resident Motor Vehicle Act involved in the present proceeding, and the Massachusetts Act upon which Judge Maris premised his conclusions.
The Pennsylvania Act specifically applies the Non-Resident Motor Act provisions to any 'suit or proceeding instituted in the courts of the Commonwealth of Pennsylvania or in the United States District Courts of Pennsylvania', while Massachusetts Act, G.L.Mass. (Ter.Ed.) c. 90, Sections 3A, 3B, makes no reference to application of the statute to proceedings in the United States District Courts.
I deem the two statutes distinguishable and it is my considered judgment that the rule enunciated by the First Circuit should not be applied in the present instance.
The order of September 3, 1952 granting motion to dismiss will be vacated.
An appropriate order is entered.
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