The opinion of the court was delivered by: MILLER
The case arises upon plaintiffs' motion for a preliminary hearing to determine the question of service of process raised by defendant's answer to plaintiffs' complaint. Rule 12(d), Federal Rules of Civil Procedure, 28 U.S.C.
The instant litigation arose out of a collision in Allegheny County, in the Western District of Pennsylvania, between an automobile driven by the plaintiff husband, John P. Eckman, and an automobile driven by defendant's duly authorized servant, agent and employee, acting within the scope of his employment and authority. The complaint avers that the automobile driven by defendant's employee was owned by the driver's wife. The complaint, as amended, also avers that, pursuant to an arrangement, the cost of the gas and oil used in its operation was paid by defendant. Plaintiffs are citizens of Pennsylvania, residing in Allegheny County; defendant is a citizen of Massachusetts.
Defendant contends that he was not amenable to service which was made in accordance with the provisions of the Pennsylvania Act of May 14, 1929, P.L.1721, as amended, 75 P.S. § 1201, which by its terms is applicable to:
'* * * any nonresident of this Commonwealth, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth to nonresident operators and owners of operating a motor vehicle, or of having the same operated, within the Commonwealth of Pennsylvania * * *.'
See Rule 4(d)(7), Federal Rules of Civil Procedure.
The Pennsylvania Act has been construed by the following decisions of the Pennsylvania Courts of Common Pleas:
1. Riccio v. Niagara Cotton Co., C.P., Lehigh Co., 1931, 15 Lehigh Co.L.J. 195, 47 York Leg.Rec. 70. In this case, service of process against a nonresident corporate employer of the driver of a car in Pennsylvania was set aside. The driver was the owner of the car.
President Judge Reno held:
'By its own terms the Act applies to those nonresidents who (a) operate cars in Pennsylvania and (b) owners of cars who have them operated in Pennsylvania.'
2. Darling v. Paramount Line, Inc., C. P., Erie Co., 1941, 24 Erie L.J. 109. In this case the Court held that the Riccio case, supra, was 'squarely in point' and that service should be set aside against the nonresident defendant, there being nothing in the case to fasten the ownership of the motor vehicle upon the nonresident defendant.
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 ...