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LACKOWITZ v. LUMMUS CO.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


December 27, 1960

Joseph LACKOWITZ
v.
LUMMUS COMPANY and Graver Tank & Manufacturing Company, Inc.

The opinion of the court was delivered by: EGAN

On July 26, 1960, about four days before the period of limitation would have run, the plaintiff, a citizen of Pennsylvania, instituted this diversity tort action against The Lummus Company and Graver Tank & Manufacturing Company, Inc. Prior to its dissolution on December 31, 1958, Graver Tank & Manufacturing Company, Inc. was a wholly-owned subsidiary of Union Tank Car Company. Upon its dissolution, all of its assets were transferred to Graver Tank and Manufacturing Company, Division of Union Tank Car Company, a New Jersey corporation. (Defendant's brief, p. 3). On September 19, 1960, defendant Graver Tank & Manufacturing Company, Inc. moved to dismiss as to it, on the ground that it had been dissolved in December 1958, pursuant to the laws of Delaware, and was therefore not subject to service of process in the Eastern District of Pennsylvania. *fn1" The plaintiff them moved to amend the complaint to change the name of the defendant from Graver Tank & Manufacturing Company, Inc. to Graver Tank and Manufacturing Company, Division of Union Tank Car Company.

The original complaint names Graver Tank & Manufacturing Company, Inc. as a defendant, alleging that it is a New Jersey corporation with its principal place of business in Chicago and that it has an office located at The Benson Apartments, Jenkintown, Pennsylvania. It is the same office as that maintained by Graver Tank & Manufacturing Company, Inc. prior to the time of its dissolution and transfer of its assets and corporate privileges to Graver Tank and Manufacturing Company, Division of Union Tank Car Company. Service of the summons and complaint was made on the Graver Division's resident manager, Arthur I. Webb, at the Jenkintown office on August 8, 1960.

 The statute of limitations has run on the plaintiff's cause of action, and so he will have no claim against the Graver Division unless his motion to amend is granted.

 In a situation like this, the test should be, according to Professor Moore:

 'whether, on the basis of an objective standard, it is reasonable to conclude that the plaintiff had in mind a particular entity or person, merely made a mistake as to the name, and actually served the entity or person intended; or whether plaintiff actually meant to serve and sue a different person.' 2 Moore's Federal Practice, par. 4.44 (2d ed. 1948).

 We feel it is reasonable to conclude that the plaintiff had in mind the Graver Division of Union Tank Car Company, merely made a mistake as to its name, and served an agent of the Graver Division. We note that the complaint correctly indicated the state of incorporation and the location of the principal place of business of Union Tank Car Company and the location of the Jenkintown office of the Graver Division. Accordingly, we will grant the plaintiff's motion to amend. *fn2"


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