The opinion of the court was delivered by: KNOX
In this diversity action plaintiffs, husband and wife, citizens and residents of Pennsylvania, sue the First National Bank of Fort Myers, Florida, as Executor of the Estate of William H. Merker, deceased, a national banking association with its principal place of business in Fort Myers, Lee County, Florida.
The complaint alleges that the said William H. Merker is now deceased but that in 1968 he came to Erie, Pennsylvania, and made a contract or promise to devise or bequeath one-half of his estate to plaintiff Mary Kader and to set plaintiff Robert Kader up in business, conditioned that they would leave Erie and care for him, taking up residence in Lee County, Florida, for this purpose. Plaintiffs state that in reliance upon this contract, they sold their home and business in Erie, the wife quit her job, they moved to Lee County, Florida, and performed the conditions of the promises until terminated by the decedent or performance was "otherwise made impossible" by the conduct of William H. Merker.
Plaintiff instituted suit in this court and caused the defendant to be served by certified mail upon the Pennsylvania Department of State and also by certified mail to the defendant at his address in Florida with an endorsement of service upon the Secretary of State. This was in accordance with the provisions of the Pennsylvania Long Arm Statute adopted by the Pennsylvania Legislature, Act of November 15, 1972, No. 271, eff. 90 days thereafter (42 Purdon's Pa. Stats. 8301 et seq). In Section 8307, provision is made for service of process in this manner.
Defendant thereupon filed a motion to quash the service of process or in the alternative to dismiss the complaint. The motion to quash is based upon failure to comply with Rule 2180(c) of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix. The motion to dismiss is based upon improper venue under 12 U.S.C. § 94, the defendant being a national banking association which it is alleged can only be sued in the county or district wherein its principal office is located. Fort Myers is located as stated in Lee County, in the Middle District of Florida. We will deal with these two objections in order.
(1) Defective Service of Process.
Rule 4(e) of the Federal Rules of Civil Procedure provides for service upon a party not an inhabitant of or found within the state where the district court in which the case was brought sits to be made in compliance with the state law. It is true that Rule 2180(c) of the Pennsylvania Rules of Civil Procedure does provide that:
"[The] court upon petition shall authorize service by registered mail directed to the Secretary of the Commonwealth and to the corporation or similar entity at its last registered address or principal place of business, or by publication as the court may direct."
This rule was last amended effective July 1, 1956.
Before entering into a discussion of defendant's status as a national bank for venue purposes, it should be observed that jurisdiction over the person of the executor of this non-resident decedent under the Pennsylvania Long Arm Statute is questionable. Under Section 8304
a suit against a non-resident individual is only authorized if he has done business in this state on or after August 30, 1970. Here it is averred that the contract was made in 1968 and under Section 8306 rights against an individual's executor would rise no higher than those against him, unless the executor were exercising its powers in this state.
In the affidavit which the court requested to be filed, the executor, the First National Bank of Fort Myers states that it is not conducting any business in Pennsylvania in this estate and has no assets in Pennsylvania. As a matter of fact, a copy of the inventory attached to the affidavit shows that the entire assets of the estate consist of intangibles apparently located in Fort Myers, Florida, plus $7,500 in jewelry.
It would therefore seem that since no contract was made in this state by the decedent on or after August 30, 1970, that neither this court nor the Pennsylvania State court have any jurisdiction over defendant's decedent or his executor. This matter, however, was not raised in the motion filed by the defendant. ...