upon the nonresident defendant's business. Plaintiff had averred that the lessor was the owner as well as the operator of the vehicle involved in the collision. The Court held that the clause 'having the same operated' refers to nonresident owners of motor vehicles, from an analysis of the statutory language.
4. Stouffer v. Eastern Motor Dispatch, Inc., C.P., Lebanon Co., 1951, 80 Pa.Dist. & Co., 30. In this case the defendant driver had driven a tractor and trailer in Pennsylvania, in doing which he was engaged in the business of the nonresident Eastern Motor Dispatch, Inc. The trailer was owned by Eastern Motor Dispatch, Inc., and leased to the driver; the tractor was owned by the driver and leased to Eastern Motor Dispatch, Inc. As in the Burns case, supra, the Court held that service improper, rejecting the contention that where an automobile is being operated by some one who is engaged on the business of lessee, the lessee is having it operated.
The Act has also been construed by the following previous decisions of this Court:
1. Rigutto v. Italian Terrazzo Mosaic Co., D.C., W.D.Pa., 1950, 93 F.Supp. 124. In this case the Court held that the Pennsylvania statute in question was applicable to a nonresident defendant partnership, where the car involved was owned by the partner who was driving it in Pennsylvania on the business of the partnership.
Citing Williams v. Meredith, 1927, 326 Pa. 570, 572, 192 A. 924, 115 A.L.R. 890, the Court stated that [ 93 F.Supp. 127] 'statutes governing service of process must be strictly construed, inasmuch as they are in derogation of the common law.' However, the Court held the service of process valid under the facts of the case, carefully basing its decision upon the nature of partnerships, as distinguished from other forms of business enterprise.
2. Millican v. Gee, D.C., W.D.Pa., 1950, 97 F.Supp. 1012. In this case the Court held that service against a nonresident corporate defendant whose employee had owned and driven the vehicle involved in Pennsylvania must be quashed, on the authority of the three Common Pleas decisions which had theretofore been decided.
3. Glover v. Daniels Motor Freight, Inc., D.C., W.D.Pa., 1951, 101 F.Supp. 97. In this case the driver of the vehicle involved was an employee of the nonresident corporate defendant, and the corporate defendant was lessee of the vehicle. Service of process was held proper under the Pennsylvania statute on the ground that the lessee was the 'operator' of the vehicle. The Court's decision was based, at least in part, upon the definition of 'operator' contained in the Tractor Code, Act of May 1, 1929, P.L.1005, § 102, as amended, 75 P.S. § 862, which definition has since been repealed by the Act of Jan. 14, 1952, P.L.1996, § 2, Laws of 1951.
4. Reese v. American Red Ball Transit Co., Inc., D.C., W.D.Pa., 1952, 107 F.Supp. 549. In this case also, service was held proper against the corporate nonresident defendant who was a lessee of a motor vehicle driven by its employee in Pennsylvania, on the authority of the Glover case, supra.
It is clear that this Court, in determining the law of Pennsylvania, is not bound by decisions of the Pennsylvania Courts of Common Pleas, as it would be bound by decisions of the Pennsylvania appellate Courts. Sunbeam Corp. v. Civil Service Employees' Cooperative Ass'n, 3 Cir., 1951, 187 F.2d 768. See also Berkshire Land Co., v. Federal Security Co., 3 Cir., 1952, 199 F.2d 438; National Foam System, Inc., v. Urquhart, 3 Cir., 1953, 202 F.2d 659.
On the other hand, it is equally clear that the interpretation given by this Court to the Pennsylvania statute should not differ from that which the Pennsylvania courts are likely to follow, regardless of what interpretation this Court may think correct or prefer. It follows that the four decisions of the Courts of Common Pleas, which constitute all of the available data from which this Court may ascertain the meaning of the Pennsylvania statute as construed by the Pennsylvania Courts, should be accorded great weight by this Court, in the absence of convincing evidence that the Pennsylvania Supreme Court would overrule them. See Fidelity Union Trust Co., Executors, v. Field, 1940, 311 U.S. 169, 61 S. Ct. 176, 85 L. Ed. 109; West v. American Telephone and Telegraph Co., 1940, 311 U.S. 223, 61 S. Ct. 179, 85 L. Ed. 139; McLouth Steel Corp. v. Mesta Machine Co., 3 Cir., 1954, 214 F.2d 608; Lattavo Bros., Inc., v. Hudock, D.C., W.D.Pa., 1953, 119 F.Supp. 587, 590. Cf. King v. Order of United Commercial Travelers of America, 1948, 333 U.S. 153, 157, 162, 68 S. Ct. 488, 92 L. Ed. 608.
As stated in West v. American Telephone & Telegraph Co., supra, 311 U.S. at pages 236, 237, 61 S. Ct. at page 183:
'* * * There are many rules of decision commonly accepted and acted upon by the bar and inferior courts which are nevertheless laws of the state although the highest court of the state has never passed upon them. In those circumstances a federal court is not free to reject the state rule merely because it has not received the sanction of the highest state court, even though it thinks the rule is unsound in principle or that another is preferable. State law is to be applied in the federal as well as the state courts and it is the duty of the former in every case to ascertain from all the available data what the state law is and apply it rather than to prescribe a different rule, however superior it may appear from the viewpoint of 'general law' and however much the state rule may have departed from prior decisions of the federal courts. * * *'