February 10, 1960
JOHN A. PAVLOVSCAK, APPELLEE,
JOHN L. LEWIS, ET AL., APPELLANTS.
Before GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and FORMAN, Circuit Judges.
Per Curiam: Our decision on this appeal turned upon Pennsylvania law as announced in Stampolis v. Lewis, 1958, 186 Pa. Super. 282, 142 A.2d 348. Now we are able to reexamine our original opinion in the new light which the Supreme Court of Pennsylvania has cast upon the Stampolis ruling in Myhalyk v. Lewis, et al ., No. 149, March Term, 1959, decided on January 18, 1960.
More particularly, our conclusion that the United Mine Workers of America Welfare and Retirement Fund was suable in Pennsylvania and that proper procedure had been followed in serving process depended upon Pennsylvania law as announced in the Stampolis case. Now, in the Myhalyk case, with this very Fund before it the Supreme Court of Pennsylvania has considered the Stampolis decision and has approved the Stampolis result, but has given it an authoritative new rationale. Specifically, while Stampolis indicated that the Trustees of the United Mine Workers of America Welfare and Retirement Fund were suable in Pennsylvania as an unincorporated association, the Myhalyk case has now established that this enterprise is suable in Pennsylvania, but as a "foreign corporation or similar entity" under Rule 2176, Pennsylvania Rules of Civil Procedure, 12 P.S. 482.In addition, Rules 2179 and 2180 provide a procedure for the service of process upon such an entity in a county where it regularly conducts business by personally serving the pleading upon "the agent or person for the time being in charge of any office or usual place of business of the corporation or similar entity". As our original opinion indicates, this procedure was followed here. It is valid under Rule 4(d)(7) of the Federal Rules of Civil Procedure. Actually, there is no essential difference between the procedure prescribed by Pennsylvania Rules 2156 and 2157 for serving a foreign unin-corporated association and the procedure prescribed by Rules 2156 and 2157 for serving a foreign "corporation or similar entity". Thus, for present purposes it makes no difference that in approving the Stampolis result the Supreme Court of Pennsylvania has modified the Stampolis doctrine with respect to the proper legal characterization of United Mine Workers of America Welfare and Retirement Fund.
The petition for rehearing will be denied.
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