1956, even by his death. It would seem that logic requires, in view of the statute, that a non-resident owner of real property situate in Pennsylvania authorizes the Secretary to accept process on his behalf for a cause of action 'arising out of or by reason of any accident or injury occurring within the Commonwealth in which such real estate, footways, and curbs are involved', regardless of the sale of the property after the cause of action arose. As in the non-resident motorist's act, the statute involved here applies not only to a person who is a non-resident in the first instance but a resident who subsequently leaves the state. The two statutes seek to accomplish the same purpose. That purpose is to permit service upon a non-resident on a cause of action arising by reason of activities within the state.
In 1927 in Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091, the Supreme Court of the United States affirmed the principle 'that the use of the highway by the non-resident is the equivalent of the appointment of the registrar as agent on whom process may be served.' Under modern conditions of communication, transportation and interstate business, the Congress and the Legislatures have enacted statutes permitting substituted service when activities in the forum state give rise to a cause of action in that state. Rufo v. Bastian-Blessing Company, 405 Pa. 12, 173 A.2d 123, (1961), is an illustration of a typical statute and its interpretation by the Supreme Court of Pennsylvania. Judge McIlvaine's decision in Saccoccia v. Stough, 198 F.Supp. 169 (W.D.Pa., 1961), presents another view of this problem. In my own decision, Fannin v. Chesapeake & Ohio Railway Company, (D.C., 1962) 204 F.Supp. 154, several of the decisions are cited in the general discussion of circumstances in which substituted service upon a non-resident of a state is permitted. Counsel for plaintiff cites the Eastern District decision of Judge Wood, Melo v. Bailey, 196 F.Supp. 95, (D.C., 1961). That decision is not decisive on any of the problems in the instant case but it is significant that Judge Wood is concerned with the 'use' of the property as distinguished from ownership. It is to be noticed that it is by the 'use' of a highway which authorizes service under the non-resident motorist's act. In my view, the ownership of property in Pennsylvania at the time an accident occurs upon it, which is the basis of a cause of action, permits service of process in the Federal Courts by the United States Marshal under the provisions of the cited statute.
Statutes in other states having a generally similar purpose are discussed in a number of Federal Court decisions. Compare McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223, 1957; Frase v. Columbia Transportation Company, 158 F.Supp. 858 (N.D.Ill.E.D.1957); Teague v. Damascus, 183 F.Supp. 446 (E.D.Washington, N.D., 1960); Davis v. St. Paul-Mercury Indemnity Company, 294 F.2d 641 (4 Cir. 1961).
See also the discussion of Rule 4(d)(7), Vol. 2, Moore's Federal Practice.
This court concludes that the statute permits the service as made in the instant case and that the statute permitting it and the type of service made is in compliance with the requirements of Federal due process.
AND NOW, this 29th day of May, 1962, for the reasons mentioned in the foregoing opinion, the motion of defendants as filed under Rule 12(b) to quash the service and for other relief is denied.
AND FURTHER, the Marshal's return of service shows that as to the other defendant, Peter Pulakos, Inc., a Pennsylvania corporation, no service was made as that defendant was not found. In any event, from the complaint there is no jurisdiction because of the lack of diversity of citizenship between the plaintiff and the corporate defendant, which defendant is herewith dismissed of record for that reason.
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