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November 4, 1955

James BROWN, a Minor, by John Brown, his Parent and Natural Guardian, Plaintiff,
Wanda Lee HUGHES, Administratix of the Estate of Claude C. Hughes, Jr., Defendant

The opinion of the court was delivered by: MURPHY

Defendant, a West Virginia administratrix acting through her counsel, appearing specially, moves to dismiss plaintiff's action because the court has not acquired jurisdiction of her person. Following her husband's instant death as owner-driver of an automobile in a collision on a highway in this district, defendant was appointed administratrix of his estate by a West Virginia court. Thereafter, appearing only through counsel, an action was filed in this district *fn1" to recover for the wrongful death from James Neary of Pennsylvania, driver of the other car. James Brown, injured while riding in the Neary car, then by his parent and natural guardian filed the present action against the administratrix, the summons and complaint being served by the United States Marshal by registered mail upon the Secretary of the Commonwealth of Pennsylvania and an endorsed copy upon the defendant in West Virginia. *fn2"

Jurisdiction of a person may be secured by personal presence, domicile, allegiance, consent or acts done within the territorial jurisdiction of the court. Restatement Conflict of Laws, 77. 'It is an elementary principle of jurisprudence that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service of notice (sic) within the jurisdiction upon him or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service.' Goldey v. Morning News, 156 U.S. 518, at page 521, 15 S. Ct. 559, 39 L. Ed. 517. A personal judgment rendered against a non-resident who has neither been served with process nor appeared in the suit is without validity. McDonald v. Mabee, 243 U.S. 90, at page 92, 37 S. Ct. 343, 61 L. Ed. 608. The mere fact that notice was sent to him outside the state is of no avail. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565. The mere transaction of business in a state by a non-resident natural person does not imply consent to be bound by the process of its courts. Flexner v. Farson, 248 U.S. 289, 39 S. Ct. 97, 63 L. Ed. 250.

 The Federal Rules of Civil Procedure, Rule 4(d)(1), 28 U.S.C., provides that service shall be made 'Upon an individual * * * personally or * * * an agent authorized by appointment or by law to receive service of process.' Rule 4(d) (7), '* * * it is * * * sufficient if * * * served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the service is made * * *.' Such service is however always subject to constitutional notions as to validity. 2 Moore's Federal Practice, 2d Ed., 418, p. 942.

 Obviously there was no personal service upon the defendant in Pennsylvania. There is no pertinent statute of the United States. As to the law of Pennsylvania, see Heaney v. Mauch Chunk Borough, 1936, 322 Pa. 487, at page 490, 185 A. 732, at page 733, 'The common-law rule in regard to service of process * * * has always been accepted as binding in this state. In an action in personam, the process must be served personally within the jurisdiction of the court in which the action was commenced, upon the person to be affected thereby. This rule prevails, unless a statute clearly and definitely manifests that a different method as to service has been promulgated by the Legislature'; and Williams v. Meredith, 1937, 326 Pa. 570, at page 572, 192 A. 924, at page 925, 115 A.L.R. 890, 'The long-established principle of universal application is that statutes in derogation of the common law must be strictly construed. This rule has been steadfastly adhered to in the construction of statutes governing the service of process.'

 Although service upon the Secretary of the Commonwealth by virtue of the Pennsylvania Motor Vehicles Act of May 14, 1929, as amended, 75 P.S. 1201, supplemented by Pa.Proc.Rules 2077(a), 2079(a), 12 P.S.Appendix, would be effective as against Claude C. Hughes, Jr., if death had not occurred, *fn3" no provision was made therein for substituted service upon the personal representative of the non-resident owner-driver. The agency conferred upon the Secretary of the Commonwealth to accept service was terminated by death. Buttson v. Arnold, D.C.E.D.Pa.1945, 4 F.R.D. 492; Rigutto v. Italian Terrazzo Mosaic Co., D.C.W.D.Pa.1950, 93 F.Supp. 124, at page 126; Arlotta v. McCauley, 1931, 16 Pa. Dist. & Co. R., 657; Minehart v. Shaffer, 1938, 86 Pitts.Leg.J. 317; McElroy v. George, 1951, 76 Pa. Dist. & Co. R. 231; Goodrich-Amram Pa.Proc. Rules 2077na)-11; cf. Giampalo v. Taylor, 1939, 335 Pa. 121, at page 125, 6 A.2d 499, and see Wittman v. Hanson, D.C.Minn.1951, 100 F.Supp. 747. *fn4"

 The Restatement of the Conflict of Laws, 512, provides, 'No action can be maintained against any administrator outside the state of his appointment upon a claim against the estate of the decedent.' *fn5" Contrary to the general rule of nonsuability of a foreign administratrix, Pennsylvania makes an exception where personal service is made within the state, Laughlin & McManus v. Solomon, 1897, 180 Pa. 177, 36 A. 704, 57 Am.St.Rep. 633, or where there has been a voluntary appearance. *fn6" Evans v. Tatem, 9 Serg. & Rawle, Pa., 252, 11 Am.Dec. 717; Carey v. Storms, 20 Pa.Dist. & Co. R. 75.

 In addition, the Pennsylvania Fiduciary Act, 20 P.S. 320.1103, provides, 'The acceptance by a foreign fiduciary of the privilege extended by the laws of the Commonwealth of exercising any of his powers within the Commonwealth shall constitute the Secretary of the Commonwealth his attorney-in-fact upon whom service of process and notices may be made in any suit or proceeding instituted in the courts of the Commonwealth arising out of, or by reason of, the exercise of any of his powers or the performance or non-performance of any of his duties as such fiduciary.' *fn7"

 Did the administratrix by instituting the action against Neary accept the privilege extended by the Act and thereby constitute the Secretary of the Commonwealth as her attorney-in-fact upon whom service of process could be made in a separate and distinct action, notwithstanding that it arises from the same collision? *fn8" The language of the section and by analogy the holding in Rigutto v. Italian Terrazzo Mosaic Co., supra, 93 F.Supp. at page 127, are contra. Applying the rule of strict construction, the present suit did not arise out of, or by reason of, the exercise of any of her powers or the performance or non-performance of any of her duties as fiduciary in Pennsylvania. It arose as the result of injuries received in a collision which occurred prior to the decedent's death. The attempt to sue the administratrix in Pennsylvania may have been motivated by her filing the action here, but the claim or right of action did not arise therefrom or by reason thereof. *fn9" If the legislature intended to include an action such as we have here it certainly did not clearly and definitely say so. *fn10" Where there has been a desire to make a foreign personal representative amendable to process in an action arising out of an automobile accident, it has been spelled out clearly and definitely. See, e.g., Leighton v. Roper, 300 N.Y. 434, 91 N.E.2d 876, 18 A.L.R.2d 537, and Note Id. at page 544. *fn11" *fn12"

 Although jurisdiction was not acquired over defendant's person by virtue of the use of Pennsylvania highways by decedent and attempted service under 75 P.S. 1201 and Pennsylvania Proc.Rules, supra, or by virtue of any provisions of the Pennsylvania Fiduciaries Act, supra, the administratrix by commencing her action thereby voluntarily submitted herself to the jurisdiction of this court and of Pennsylvania as to the claim sued upon and as to any cross action by defendant during the pendency of the first action. *fn13" Pa.Proc. Rule 1046, 1046-1; *fn14" Restatement Conflict of Laws 83; Restatement Judgments 21, comment c; Rogers v. Burns, 1856, 27 Pa. 525, at page 527; Guthrie v. Lowry, 1877, 84 Pa. 533, at page 537, and see Newman v. Shreve, 1910, 229 Pa. 200, at page 214, 78 A. 79. 'Where one puts in motion the process of a court or seeks to use the procedure of the court for the purpose of obtaining a benefit for himself, jurisdiction is conferred over him so far as the defendant in the proceeding or the court is concerned.' Delco Ice Mfg. Co. v. Frick Co., Inc., 1935, 318 Pa. 337, at page 345, 178 A. 135, 139; Thompson v. FitzGerald, 1938, 329 Pa. 497, at page 504, 198 A. 58; Peck v. Jenness, 48 U.S. 612, 624, 12 L. Ed. 841; Hoxsey v. Hoffpauir, 5 Cir., 180 F.2d 84, at page 86; Natural Gas Pipeline Co. of America v. Federal Power Commission, 7 Cir., 1942, 128 F.2d 481, at page 484; 21 C.J.S. Courts, 75, 76, pp. 112, 114, '* * * having acquired jurisdiction, the court will retain it for the purpose of administering justice to resident citizens, and will not send them to foreign jurisdictions to seek redress'; and see Moore v. Fields, 42 Pa. 467, at page 472; 72 C.J.S., Process, 44, p. 1056, '* * * all action taken thereafter in that proceeding or supplementary thereto * * *.' 14 Am.Jur. Courts, 170, p. 370; Ward v. Todd, 103 U.S. 327, at page 329, 26 L. Ed. 339; Ober v. Gallagher, 93 U.S. 199, at page 206, 23 L. Ed. 829.

 See Restatement Conflict of Laws, 76, 'If a court obtains jurisdiction over a party to an action, that jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action.' *fn15" The Pennsylvania Supreme Court in recent cases has broadened the concept 'cause of action' *fn16" so as to embrace not only the defendants and additional defendants inter se but in addition separate and distinct claims by third parties provided that they arise from the same automobile accident. *fn17" See Vaughan v. Womeldorf, 1951, 366 Pa. 262, at page 265, 77 A.2d 424; Shellito v. Grimshaw, 1951, 367 Pa. 599, at page 602, 81 A.2d 544, and Groff v. Meloche, 88 Pa. Dist. & Co. R. 418, to the effect that by commencing an action a plaintiff not only submits herself to the jurisdiction of the court in that action but in addition thereby consents to the jurisdiction of the court and to service of process (really notice) in all actions arising out of the same automobile accident -- even those by third party passengers. This appears to be contrary to the teachings of the Restatement Judgments 5, comment (h), p. 32, which would consider the claim of each plaintiff as a separate independent proceeding. The difference arises from the Pennsylvania Courts concept for this purpose of 'cause of action'.

 Vaughan v. Womeldorf, Shellito v. Grimshaw, and Groff v. Meloche, all supra, speak in terms of the court having jurisdiction because the plaintiff commenced an action. *fn18" They speak also of the problem of service of process apparently in the first two cases in the context of its sufficiency to confer jurisdiction, e.g., in Vaughan, that service of process binding upon a defendant, resident in another county, may be made upon a local attorney; in Shellito, that by coming into the state to attend a deposition proceeding a party plaintiff may be served with process and made a party defendant in a case involving a passenger in one of the automobiles; in Meloche, that deputized service intra state is proper; all of this under the concept of a liberal interpretation of the procedural rules. *fn19"

 Properly understood, cf. Giampalo v. Taylor, supra, 335 Pa. at page 126, 6 A.2d 499, there is thus no departure from the common law rule, cf. Williams v. Meredith, supra, 326 Pa. at page 574, 192 A. 924, or the teachings of other Pennsylvania cases *fn20" that statutes permitting substituted process and in fact all statutes as to service of process which in any way vary from common law requirements, Earle v. McVeigh, 1875, 91 U.S. 503, at page 508, 23 L. Ed. 398, must be strictly construed.

 Since the court has jurisdiction of the person, the problem is one of whether or not the defendant was afforded reasonable notice and an opportunity to be heard so as to comply with the historical requirements of procedural due process of law. See Restatement Judgments 6, comments a, b, c, d, e, f, 8, comment b; see and cf. In re Komara's Estate, 1933, 311 Pa. 135, at page 140, 166 A. 577; Atlantic Seaboard Natural Gas Co. v. Whitten, 1934, 315 Pa. 529, at page 531, 173 A. 305, 93 A.L.R. 615; Vaughan v. Love, 324 Pa. 276, 188 A. 299, 107 A.L.R. 1336; Wise v. Herzog, 1940, 72 App.D.C. 335, 114 F.2d 486, at page 488, and cases cited; 21 C.J.S., Courts, 76, p. 113, 88, p. 136, as to charging the party with notice, cf. McDonald v. Mabee, supra, 243 U.S. at page 92, 37 S. Ct. 343, where a better method is available; International Shoe Co. v. Washington, 1945, 326 U.S. 310, at page 316, 66 S. Ct. 154, 90 L. Ed. 95; Milliken v. Meyer, 1940, 311 U.S. 457, at page 463, 61 S. Ct. 339, at page 342, 85 L. Ed. 278, 132 A.L.R. 1357, 'Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard. If it is, the traditional notions of fair play and substantial justice implicit in due process are satisfied.' And see Restatement Conflict of Laws, 75, comment d, p. 113. Here there can be no question on that score; see Boone v. Washovia Bank & Trust Co., 1947, 82 U.S.App.D.C. 317, 163 f.2d 809, at pages 815, 816; Louisville and Nashville R.R. v. Schmidt, 1900, 177 U.S. 230, at page 236, 20 S. Ct. 620, 44 L. Ed. 747. The due process clause of the Fourteenth Amendment does not control forms of procedure in state courts or regulate practice therein. Simon v. Craft, 1901, 182 U.S. 427, at page 437, 21 S. Ct. 836, 45 L. Ed. 1165. The procedure may be adapted to the case. Ballard v. Hunter, 1907, 204 U.S. 241, at page 254, 27 S. Ct. 261, 51 L. Ed. 461. Personal notice is not necessary in all cases. Failing therein, there may be, and necessarily must be, some form of constructive service. Jacob v. Roberts, 223 U.S. 261, at page 265, 32 S. Ct. 303, 56 L. Ed. 429, and see Operative Plasterers' Etc. Ass'n v. Case, 1937, 68 App.D.C. 43, 93 F.2d 56, at page 63, '* * * if a statute * * * does not violate due process, the * * * court did not * * * when it reached the same result by judicial decision without statutory support.'

 In view of the foregoing, defendant's motion to dismiss will be denied.

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