The opinion of the court was delivered by: MARSH
This action was brought to recover damages for the death of Floyd Berkey, which occurred on September 23, 1955, as a result of the alleged negligence of Rockwell Spring & Axle Company, when a tractor which he was operating in the scope of his employment turned over on Pennsylvania Highway No. 88 in Washington County, Pennsylvania.
It appears from the pleadings that the plaintiff is the administratrix of the estate of Floyd Berkey and is a citizen of the United States and resident of Maryland;
that the defendant, Rockwell Spring & Axle Company, is a Pennsylvania corporation, having its principal place of business in Allegheny Country, Pennsylvania, in this judicial district; and that Baughman Construction Company, decedent's employer, was a Maryland corporation.
The defendant, as third-party plaintiff, secured an order under Rule 14, Fed.R.Civ.P., 28 U.S.C.A., granting it leave to serve upon Baughman Construction Company a summons and third-party complaint, alleging, inter alia, that Baughman was the owner of the tractor involved in the highway accident, and that its negligence was the sole or joint cause of the death of plaintiff's decedent. From the pleadings it is obvious that the third-party action is ancillary to the main action, and no contention has been made to the contrary.
On December 18, 1957, the summons and third-party complaint were served by the United States Marshal upon the Secretary of the Commonwealth of Pennsylvania by registered mail, and certified copies of same were sent by registered mail and received by the third-party defendant.
The third-party defendant moves to dismiss the third-party complaint for lack of proper venue, insufficiency of service of process, and lack of jurisdiction. We think the motion should be denied.
First, the third-party defendant argues that 'venue is lacking because all of the plaintiffs and all of the defendants do not reside in the Western District of Pennsylvania'.
The original action brought by plaintiff against defendant presumably is founded on diversity of citizenship. Since the original action was brought in this judicial district where the original defendant is regarded as residing, it satisfies the venue statute, 28 U.S.C.A. § 1391, and the ancillary action between the third-party plaintiff and defendant need not. United States v. Acord, 10 Cir., 1954, 209 F.2d 709, certiorari denied 347 U.S. 975, 74 S. Ct. 766, 98 L. Ed. 1115; Moncrief v. Pennsylvania R. Co., D.C.E.D.Pa.1947, 73 F.Supp 815; Vol. 3 Moore's Federal Practice P14.28 (2), page 504; Federal Practice and Procedure, Barron and Holtzoff, § 71, page 135.
Second, the third-party defendant argues that 'the provisions of the Motor Vehicle Code of Pennsylvania, which provide for service of process on the Secretary of Revenue (Commonwealth) against a non-resident where an accident has occurred within the Commonwealth involving a motor vehicle, does not apply to an accident involving a tractor.'
There seems to be no doubt that the earth-moving equipment involved in the accident alleged in this case is a tractor within the meaning of the Motor Vehicle Code
and the Tractor Code.
The Non-Resident Motorist Statute, as amended,
inter alia, provides that any non-resident being the operator or owner of any motor vehicle, who shall accept the privilege of operating a motor vehicle, or of having same operated, within the Commonwealth, shall make and constitute the Secretary of the Commonwealth his agent for service of process in any civil suit instituted in the United States District Court of Pennsylvania against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident occurring within the Commonwealth in which such motor vehicle was involved.
We are of the opinion that this Act applies to the owner of a tractor.
In this respect, we agree with the learned author of Standard Pennsylvania Practice, Goodrich-Amram Vol. 2, § 2077(a)-6, who states:
'The Non-Resident Motorist Act applies to the owner or operator of any 'motor vehicle,' but does not define the term. In the absence of any limitation, this term should be construed broadly to include not merely automobiles, trucks and trailers but also tractors, mobile agricultural machinery, power shovels, and similar motor-propelled equipment. The fact that the legislature selected the broader term 'motor vehicle' instead of 'automobile' suggests that such a broader construction was intended.'
If it should be thought that a tractor is not included in the term 'motor vehicle' as used in the Non-Resident Motorist Statute, then we think the substituted service in this case could be sustained under the Act of 1957, July 11, P.L. 711, subd. B.
For although it does not appear that the third-party defendant was a corporation qualified to do business in Pennsylvania, uncontradicted affidavits filed by the third-party plaintiffs show that the third-party defendant corporation was doing business in Pennsylvania at the time of the accident. The Act of 1957 provides for service of federal process on the Secretary of the Commonwealth 'in any action arising out of acts or omissions' within the Commonwealth of a foreign business corporation not authorized to do business in ...