530 F.

2d 160

John T. WITHEROW
v.
The FIRESTONE TIRE & RUBBER COMPANY, a
corporation, Appellant.
No. 75--1514.

United States Court of Appeals,

Third Circuit.
Argued Nov. 10, 1975.
Decided Jan. 26, 1976.

Edward G. O'Connor, Frederick J. Rerko, Eckert, Seamans, Cherin &

Mellott, Pittsburgh, Pa., for appellant.
Frederick J. Francis, Jerome J. Purcell, Meyer, Unkovic & Scott,
Pittsburgh, Pa., for appellee.
Before ALDISERT, HUNTER and GARTH, Circuit Judges.
OPINION OF THE COURT
ALDISERT, Circuit Judge.

The issue in this diversity case is whether defective service of process which
resulted in failure to obtain jurisdiction over defendant in the state court within
the period of the statute of limitations may be cured on removal to federal court
by the application of F.R.Civ.P. 4(h)1 or 28 U.S.C. 1448.2 The district court
ruled in favor of the plaintiff and certified the question for appeal pursuant to
28 U.S.C. 1292(b). We vacate the order appealed from and remand to the
district court with instructions to dismiss both the original and the amended
complaint.

I.
2

Plaintiff Witherow was injured in Blandburg, Pennsylvania, on April 17, 1970,

when a Firestone tire he was installing exploded.

Pennsylvania has a two-year statute of limitations for 'injury wrongfully done to

the person,' 12 P.S. 34, which beings to run from the time the injury was
done. On April 10, 1972--seven days prior to the running of the statute-plaintiff filed a praecipe for a writ of summons in trespass in the Court of
Common Pleas of Clearfield County, Pennsylvania. The filing of the praecipe
was an authorized mode of commencing the action, Rule 1007, Pa.R.Civ.P.,
and it tolled the statute of limitations, but only for a period of two years from
the date of the issuance of the writ. Marucci v. Lippman, 406 Pa. 283, 177 A.2d
616 (1962); Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317 (1961). Rule
1009(a) Pa.R.Civ.P. requires that the writ be served within 30 days of issuance,
but the writ may be reissued pursuant to Rule 1010 any number of times.

The Sheriff's return, filed 18 months later, showed that he had served the writ
on April 17, 1972, on the Assistant Manager of Thompson & Buck, a Firestone
dealer store in Clearfield, Pennsylvania. Because Thompson & Buck, although
a Firestone dealer, was an independent business the service was legally
ineffective. Rule 2180 Pa.R.Civ.P. In addition, Firestone never received the
summons. Almost two years later, on March 28, 1974, plaintiff filed a
complaint in trespass which again was promptly served on Thompson & Buck,
this time upon the owner of the dealership who immediately forwarded the
complaint to Firestone's legal department.

Firestone had been aware of the claim, though not the lawsuit, since March,
1972 when plaintiff's attorney had notified the company at its Akron
headquarters. On April 18, 1974, shortly after receipt of the forwarded
complaint, Firestone filed a petition for removal based upon diversity of
citizenship to the United States District Court for the Western District of
Pennsylvania.

In the district court, Firestone moved to dismiss raising, inter alia, insufficiency
of service of process and the bar of the statute of limitations. Plaintiff moved to
perfect or amend service of process pursuant to Rule 4(h) of the F.R.Civ.P. and
28 U.S.C. 1448. Plaintiff also moved to file an amended complaint adding a
claim of breach of warranty.

The district court denied Firestone's motion and granted the plaintiff's motion to
perfect or amend service of process:

8
Therefore,
we believe that under these particular facts, when the Defendant actually
received the proper pleading within the statutory period, albeit improperly, and the
Plaintiff, when first notified of the defects of its service, immediately moved to
perfect under Fed.R.Civ.P. 4(h), fairness dictates that the motion to Perfect or

Amend Service of Process must be granted under the provisions of 28 U.S.C. 1448
and Rule 4(h) and 4(d)(3), Fed.R.Civ.P.
9

App. at 98a. The district court also granted plaintiff's motion to file an amended
complaint, reasoning that Rule 15(c) F.R.Civ.P.3 applied and allowed the
amendment to relate back to the filing of the complaint on March 28, 1974,
thereby satisfying Pennsylvania's four-year breach of warranty statute of
limitations, 12A P.S. 2--725.

10

The district court certified its opinion and order for appeal pursuant to 28
U.C.S. 1292(b). We permitted the appeal.

II.
11

In evaluating defendant Firestone's claim that the action was barred by the
Pennsylvania statute of limitations, the district court relied primarily on
Anderson v. Bernard Realty Sales Co., 230 Pa.Super. 21, 329 A.2d 852 (1974).
Anderson concerned the question 'whether the statute of limitations is tolled
when the plaintiff files a praecipe for a writ of summons, but fails to deliver the
writ to the sheriff for service.' Ibid. at 22, 329 A.2d at 853. The answer given
was affirmative. The district court described this case as addressing a 'similar'
problem to the problem under consideration. Because the district court relied on
this case, controlling a similar problem, instead of relying on Yefko v. Ochs,
437 Pa. 233, 263 A.2d 416 (1970), which controls the actual problem, we
cannot agree with its conclusion that the action was not time-barred under
Pennsylvania law.

12

Under Pennsylvania law in effect at the time4 of these proceedings, an action at

law could be commenced by filing a praecipe for a writ of summons or a
complaint. However, if commenced by summons, the complaint could not
serve as process. 'Where an action is started by summons, the complaint is only
the required pleading with none of the characteristics of process; service of the
complaint in such a case cannot confer jurisdiction.' Yefko, supra, 437 Pa. at
237, 263 A.2d at 418. Accordingly, a litigant who commenced his action by
summons could only acquire jurisdiction by proper and timely service of the
writ. The writ had to be served within 30 days of its issuance; it could be
reissued any number of times, but it could not be reissued after the period of the
applicable statute of limitations, e.g., tort, contract, had run from the last valid
reissuance.

13

Plaintiff's original writ of summons was issued on April 10, 1972. The

applicable statute of limitations was two years. Accordingly, he had until April
10, 1974, to seek reissuance. He did not seek reissuance. He did not secure
proper service of the writ. Filing and service of the complaint, even if service
had been proper, was ineffective. Yefko is 'on all fours':
14 in the case at hand the service of (appellee's) complaint did not erase the need
Thus
for timely service of (appellee's) original writ or the alternative requirement that the
writ be reissued within two years to prevent its lapse. Having elected to initiate (his)
action by filing a praecipe for a writ of summons, and having thereafter failed either
to secure timely service of the writ or to reissue the writ within the required two year
period (appellee) was barred by the statute of limitations from proceeding with (his)
cause of action.
15

Ibid., 263 A.2d at 418. Accordingly, we conclude that had this action remained
in the state court, it would have been time-barred as of April 10, 1974. It was
jurisprudentially dead. It remains only to consider whether the subsequent
removal to the federal court on April 18, 1974, could breathe new life into it.

III.
16

Because federal jurisdiction here is based upon diversity of citizenship, and

because we must choose whether state or federal law controls, we are conscious
of the demanding presence of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938). We eschew any mechanical interpretation of that
case or its successors and hearken, instead, to Chief Justice Warren's reminder
that 'choices between state and federal law are to be made not by application of
any automatic, 'litmus paper' criterion, but rather by reference to the policies
underlying the Erie rule.' Hanna v. Plumer, 380 U.S. 460, 467, 85 S.Ct. 1136,
1141, 14 L.Ed.2d 8 (1965). What follows is a summary of those policies.

17

The decision in Erie to change prior practice and to apply the substantive law of
the forum state and federal procedural law in a diversity case reflected
essentially three policy consideration. First, the prior practice resulted in forum
shopping because federal courts could and did apply different substantive law
from state courts in the same state. See, e.g., Black & White Taxicab & Transfer
Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S.Ct. 404,
72 L.Ed. 681 (1928). The decision to require that federal courts apply state
substantive law in diversity cases represented a preference for vertical
uniformity of substantive law within each state over horizontal uniformity
among federal courts nationwide. See Ely, The Irrepressible Myth of Erie, 87
Harv.L.Rev. 693, 715 (1974). After Erie, a plaintiff could conceivably shop
among federal courts for favorable substantive law, but, at least, he would be

inconvenienced by travel to another state and, in many cases, he would face

jurisdictional and other problems. The second policy consideration implicit in
Erie was more fundamental: the application of disparate laws to identical
claims depending solely on the diversity of citizenship vel non of the parties
'introduced grave discrimination by non-citizens against citizens' and 'rendered
impossible equal protection of the law.' Erie, supra, 304 U.S. at 74--75, 58 S.Ct.
at 820. In a sense, the conceptual basis of diversity jurisdiction itself
discriminates in favor of non-citizens on the theory that, otherwise, they may be
discriminated against; and it is premised on the assumption that a non-citizen
may obtain a different result in federal court than in state court.5 Nevertheless,
to apply a different rule of law to the non-citizen's case would be contrary to the
fundamental notion--since Erie, at least--that the diversity jurisdiction simply
provides an impartial forum, not a different set of legal rules. Finally, Erie
reflected judicial concern over the allocation of lawmaking authority between
state and federal governments. Erie, in 1938, considered itself a constitutional
decision. Ibid. at 79--80, 58 S.Ct. 817. Whether it ought to be so regarded has
attracted diverse views6 among the most respectable commentators. See
authorities collected in C. Wright, Law of Federal Courts 56 (2d ed. 1970).
But certainly a concern for states' policies and prerogatives can never be out of
place in a system of coordinate sovereignties--as a matter of prudence and
comity if not as a matter of constitutional law. Even Hanna, while making a
vigorous case for the validity of the Federal Rules of Civil Procedure, noted
that a court 'need not wholly blind itself to the degree to which (a federal) Rule
makes the character and result of the federal litigation stray from the course it
would follow in state courts.' Hanna v. Plumer, 380 U.S. at 473, 85 S.Ct. at
1145.
18

Keeping in mind the basic policy considerations that inform the choice of state
or federal law in a diversity case, we proceed to a more particular analysis of
the laws, state and federal, relied on in this case.

A.
19

Appellant relies on Pennsylvania's statute of limitations and, especially, on the

judicially created requirement of seeking reissuance of the writ where service
has not been timely effected.7 The central importance in this case of
Pennsylvania's statute of limitations is beyond peradventure and, while we find
no implication of improper forum shopping here, we nevertheless feel
compelled to observe that variant statutes of limitation, perhaps more than any
other kind of disparity, present opportunity for the kind of forum shopping Erie
intended to preclude. See Iovino v. Waterson, 274 F.2d 41, 48 n.5 (2d Cir.
1959), cert. denied, 362 U.S. 949, 80 S.Ct. 860, 4 L.Ed.2d 867 (1960). Statutes

of limitation present a peculiarly difficult case for Erie substance-procedure

characterization inasmuch as they undoubtedly embody both substantive and
procedural policies. We are not, however, without authoritative guidance:
20 question is not whether a statute of limitations is deemed a matter of
(T)he
'procedure' in some sense. The question is whether such a statute concerns merely
the manner and the means by which a right to recover, as recognized by the State, is
enforced, or whether such statutory limitation is a matter of substance in the aspect
that alone is relevant to our problem, namely, does it significantly affect the result of
a litigation for a federal court to disregard a law of a State that would be controlling
in an action upon the same claim by the same parties in a State court?
21

Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed.
560 (1945) (Frankfurter, J.). The Court in Guaranty Trust held that, when no
recovery could be had on the claim in the New York state courts because the
action was barred by the statute of limitations, a federal court sitting in New
York similarly could not take cognizance of the suit.

22

Four years later, in Ragan v. Merchants Transfer & Warehouse Co., 337 U.S.
530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), the Court again confronted the
statute of limitations issue in a diversity, case. Ragan involved not the period of
the statute, but the tolling of it--in that sense, Ragan seems particularly relevant
to our inquiry. Plaintiff in Ragan relied on F.R.Civ.P. 3, claiming that he tolled
the applicable Kansas statute of limitations when he commenced his action in
federal court by filing his complaint. Defendant relied on the Kansas rule that
the statute was tolled only upon service of the summons, and the Court agreed:
'If recovery could not be had in the state court, it should be denied in the federal
court.' Ibid. at 532.

23

Ragan8 and Guaranty Trust emphasize the importance of a state's policy

favoring repose embodied in its statute of limitations, and remind us of the
inequities of allowing an action to proceed in federal court that would be timebarred in state court. These are compelling considerations. 'In essence, the
intent of (the Erie) decision was to insure that, in all cases where a federal court
is exercising jurisdiction solely because of the diversity of citizenship of the
parties, the outcome of the litigation in the federal court should be substantially
the same, so far as legal rules determine the outcome of a litigation, as it would
be if tried in a State court. The nub of the policy that underlies Erie R. Co. v.
Tompkins is that for the same transaction the accident of a suit by a nonresident litigant in a federal court instead of in a State court a block away,
should not lead to a substantially different result.' Guaranty Trust Co. v. York,
326 U.S. at 109, 65 S.Ct. at 1470.

24

While we avoid mechanical application of the 'outcome-determinative' test, or

any other single test, we observe that nothing could be more 'substantial' than to
allow an action to proceed in federal court which would be time-barred in state
court. Moreover, to refuse to give effect to Pennsylvania's statute of limitations
would not only frustrate the state's policy of repose embodied in that law but
would, in the curious posture of this case, penalize the non-citizen defendant
for invoking the federal diversity jurisdiction.

B.
25

Appellee relies on Rule 4(h) of the F.R.Civ.P. and on 28 U.S.C. 1448 to

support his argument that he should be allowed to 'amend or perfect' process
and proceed with the case. We have no hesitancy in concluding that Rule 4(h)
does not apply. Rule 4(h) provides that 'the court may allow any process or
proof of service thereof to be amended, unless it clearly appears that material
prejudice would result to the substantial rights of the party against whom the
process issued.' In granting plaintiff's motion to amend or perfect process, the
district court stated: '(Our) primary rationale . . . was that if Firestone had actual
notice of the proceedings, it would not be prejudiced by permitting Witherow to
perfect a disputed improper service by applying the provisions of Rule 4(h) and
Rule 4(d)(3) (relating to the manner of serving corporations, partnerships, and
associations).' App. at 91a.9 Conceding that Firestone had actual notice, we
nevertheless cannot accept this approach to federal or state rules of service.
Whatever relevance 'notice' may have in a due process context, the controlling
point is whether service was achieved under the substantive law of both agency
and service of process. Thus, in Gottlieb v. Sandia American Corp., 452 F.2d
510, 513 (3d Cir.), cert. denied, 404 U.S. 938, 92 S.Ct. 274, 30 L.Ed.2d 250
(1971), we held as improper service upon the corporation, actual service on a
co-defendant, who was the corporation's controlling stockholder--but not an
'officer, a managing or general agent, or . . . agent authorized by appointment or
by law to receive service of process'--and who had knowledge of the business
transaction that was the subject of the law suit. Had we deemed notice of the
pending law suit a relevant factor, we obviously would have reached a contrary
result.

26

Assuming, arguendo, that Rule 4(h) applies, we have serious problems with the
conclusion that defendant is not prejudiced by the reinstatement in federal court
of a claim that was time-barred in the state court. But, more fundamentally, we
do not believe that the Rule applies. By its terms, it allows amendment only, of
'process or proof of service thereof'; it simply does not speak to the question of
defective service of process. Rule 4(h) concerns papers: it looks at the face of
the process and the face of the proof of service of process--it looks no farther. It

concerns formal errors:

27 most common occasion for amendment is when plaintiff has made a simple
The
mistake or a technical error that results in a failure to identify defendant properly,
such as when a corporation is not denominated by its registered name or defendant's
name is misspelled. When the error goes to form rather than substance, as these
defects obviously do, and the proper defendant receives the original process, realizes
it is directed at him, and thus is put on notice of the commencement of the action,
there is no reason why a federal court should refuse to permit amendment.
28

C. Wright & A. Miller, 4 Federal Practice and Procedure 1131, at 547--48

(1969) (footnotes omitted).

29

Plaintiff does not seek, in any sense, to amend his process. Moreover, nothing
could be more removed from 'a simple mistake or a technical error' than
seeking, simultaneously, to avoid a statute of limitations defense and to obtain
jurisdiction over the defendant.

30

We are more troubled by the argument relating to 28 U.S.C. 1448 which

provides in pertinent part:

31 all cases removed from any State court to any district court of the United States in
In
which any one or more of the defendants has not been served with process or in
which the service has not been perfected prior to removal, or in which process served
proves to be defective, such process or service may be completed or new process
issued in the same manner as in cases originally filed in such district court.
32

We conclude that, like Rule 4(h), it does not speak to the issues this litigation
raises. Our conclusion is based both upon a consideration of the specific
language and purpose of 1448, and upon an awareness of the general policies
and principles immanent in the federal removal jurisdiction.

33

Section 1448 contemplates primarily the following problem. A removable

action is initiated in state court naming several defendants. The first defendant
served with process, anxious not to lose his removal right by delay, files his
petition for removal immediately and before effective service on 'one or more
of the (remaining) defendants.' The federal court then has jurisdiction over the
case, and over the petitioning defendant, but not over the remaining defendants
still unserved. Section 1448 authorizes the federal court to issue process to
obtain jurisdiction over them and to proceed. See 28 U.S.C. 1447(a). Section
1448, then, addresses itself to a problem quite different from that here
presented.

34

However, because we can conceive cases where it would not be improper to

apply it to a single defendant, cf. Polizzi v. Cowles Magazines, Inc.,345 U.S.
663, 73 S.Ct. 900, 97 L.Ed. 1331 (1953), we do not rest our conclusion that
1448 does not apply solely on considerations of its purpose. To apply it to the
circumstances of this case would constitute that statute a pro tanto abrogation of
Pennsylvania's statute of limitations. We decline such a construction as
violative of basic principles of removal jurisdiction. See generally, P. Bator, P.
Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and
the Federal System 1192--1230 (2d ed. 1973).

35

It is often said, and it is undisputably the law, that removal jurisdiction is

derivative--that the federal court 'derives' its jurisdiction from the state court
and that, if the state court had no jurisdiction, the federal court can acquire
none, and must dismiss. E.g., Minnesota v. United States, 305 U.S. 382, 389,
59 S.Ct. 292, 83 L.Ed. 235 (1939); Lambert Run Coal Co. v. Baltimore & O.R.
Co., 258 U.S. 377, 382, 42 S.Ct. 349, 66 L.Ed. 671 (1922); Gleason v. United
States, 458 F.2d 171, 173--74 (3d Cir. 1972); C. Wright, Federal Courts 38, at
132 (2d ed. 1970). Professor Moore correctly observes, however, that the
'concept of derivative jurisdiction that commands dismissal is properly limited
to jurisdiction over the subject matter.' 1A, pt. 1, J. Moore, Federal Practice
P0.168(4.--3), at 540 (2d ed. 1974). Provisions of 1448 obviously reinforce
that observation. But, more important, a clear purpose of the derivative
limitation--that federal courts not entertain, on removal, actions which the state
courts could not entertain in the first instance--confirms the essential
correctness of Moore's observation.

36

The ultimate question is simply this: on April 18, 1974, when defendant filed
its petition for removal, could the Court of Common Pleas of Clearfield County
have granted relief in the face of a statute of limitations defense? Clearly, it
could not have done so, because the action was time-barred. This is dispositive
of the case.

37

Clearly, the state court lacked personal jurisdiction over the defendant by virtue
of the inadequacy of service of process. We may assume, without deciding, that
this might have been remedied by the federal court. But the state court lacked
something even more significant: plaintiff had not only failed to obtain
jurisdiction over the defendant, he had failed to do so within the period of the
statute of limitations. We do not suggest that a valid statute of limitations
defense ought to be characterized as a defect of subject matter jurisdiction. But
cf. Hart & Wechsler's The Federal Courts and the Federal System, supra, at
839--40. And we hasten to note that, unlike subject matter jurisdiction, the
statute of limitations is a waivable affirmative defense. But logic would compel

the conclusion that if one may not prosecute on removal an action in which the
state court lacked subject matter jurisdiction, then one may not prosecute on
removal an action in which the state court would have denied relief because the
claim was time-barred under state law. We find inherent in Pennsylvania's
statute of limitations the same kind of courtroom door-closing policy that
inheres in traditional subject matter limitations--the courts are not to entertain
the claim--and we deem that policy worthy of federal respect. See Woods v.
Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949);
Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Hart &
Wechsler's The Federal Courts and the Federal System, supra, at 754--55.
Analogizing to the doctrine of derivative jurisdiction, we conclude that the
district court could not grant federal relief in this removed diversity case which
would have been dismissed as time-barred had it remained in state court and the
proper limitations of actions defense been asserted there as was presented here.
Implicit in our conclusion is that 1448 cannot be utilized to breathe
jurisprudential life in federal court into a case legally dead in state court.
38

We have attempted, in our analysis, to 'stay close to basic principles.' Hanna v.

Plumer, 380 U.S. at 475, 85 S.Ct. 1136 (Harlan, J., concurring). We have set
forth the reasons why we feel the state rule ought to control, part A, supra, and
we have indicated why we consider the federal statutes inapplicable, part B,
supra. We discern valid reasons supporting the application of state law. And we
perceive at work here no federal 'affirmative countervailing considerations.'
Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 537, 78
S.Ct. 893, 2 L.Ed.2d 953 (1958). See R. Leflar, American Conflicts Law 66,
at 152 (rev.ed. 1968). On the contrary, it is federal policy to strictly construe
removal statutes and to limit the removal jurisdiction of the federal courts. The
cases are legion. See cases collected at 28 U.S.C.A. 1441 nn.8, 9, at 30--32; 1
W. Barron & A. Holtzoff, Federal Practice and Procedure 101 nn.7.5, 7.6
(Wright ed. 1961).

39

Our decision is not to be construed as casting doubt on the validity or general

availability of Rule 4(h) of the F.R.Civ.P. or on 28 U.S.C.A. 1448--we have
decided only that those statutes do not apply to this factual complex. See
Bernhardt v. Polygraphic Co., 350 U.S. 198, 201--02, 76 S.Ct. 273, 100 L.Ed.
199 (1956). Furthermore, we express no opinion on what the result would have
been if defendant had filed its removal petition prior to the expiration of the
statute of limitations. That would be a very different case. The brute fact here is
that the action was dead, time-barred, when the petition for removal was filed.
Accordingly, we hold that the district court could not entertain the merits of the
claim; it could only apply the state statute of limitations and dismiss the
complaint.

IV.
40

Two issues remain. Neither need detain us long. First, appellee argues that
Firestone is barred by laches from objecting to improper service and asserting
the defense of the statute of limitations. This argument borders on the frivolous:
Firestone moved to dismiss by reason of the statute of limitations on April 19,
1974, one day after removal and only nine days after the statute ran. It is
common sense not to interpose a statute of limitations defense until the statute
has run. The objection to improper service was obviously related to the statute
of limitations defense. It too was timely asserted.

41

Second, the district court's ruling that the amended complaint was timely
because it related back to the original complaint is mooted by our decision that
the district court could not entertain the original complaint, and was required to
dismiss it. To paraphrase Winston Churchill, there is nothing back to which the
amended complaint can relate.

42

The order appealed from will be vacated and the proceedings remanded to the
district court with instructions to dismiss both the original and the amended
complaint.

Rule 4(h) Amendment. At any time in its discretion and upon such terms as it
deems just, the court may allow any process or proof of service thereof to be
amended, unless it clearly appears that material prejudice would result to the
substantial rights of the party against whom the process issued

1448. Process after removal

In all cases removed from any State court to any district court of the United
States in which any one or more of the defendants has not been served with
process or in which the service has not been perfected prior to removal, or in
which process served proves to be defective, such process or service may be
completed or new process issued in the same manner as in cases originally filed
in such district court.
This section shall not deprive any defendant upon whom process is served after
removal of his right to move to remand the case. June 25, 1948, c. 646, 62 Stat.
940.

Rule 15(c) Relation Back of Amendments. Whenever the claim or defense

asserted in the amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates back if the
foregoing provision is satisfied and, within the period provided by law for
commencing the action against him, the party to be brought in by amendment
(1) has received such notice of the institution of the action that he will not be
prejudiced in maintaining his defense on the merits, and (2) knew or should
have known that, but for a mistake concerning the identity of the proper party,
the action would have been brought against him
4

Pennsylvania law has since been changed. A June 28, 1974, amendment to Rule
1010 Pa.R.Civ.P. now permits the filing of a complaint and service thereof
without reissuance of the writ of summons. The district court observed, and we
agree, that this rule change cannot apply to this case. See Rule 152 Pa.R.Civ.P.;
Stoltzfus v. Haus, 234 Pa.Super. 46, 334 A.2d 738, 739, n. 1 (1975); Trinity
Area School District v. Dickson, 223 Pa.Super. 546, 551, 302 A.2d 481, 484
(1973)

'. . . James Madison, one of the strongest friends of diversity jurisdiction, . . .

(stated) on one occasion:
As to its cognizance of disputes between citizens of different states, I will not
say it is a matter of such importance. Perhaps it might be left to the state courts.
But I sincerely believe this provision will be rather salutary, than otherwise. It
may happen that a strong prejudice may arise in some states, against the
citizens of others, who may have claims against them. We know what tardy,
and even defective administration of justice, has happened in some states. A
citizen of another state might not chance to get justice in a state court, and at all
events he might think himself injured.
Madison's reasoning represents the traditional, and most often cited,
explanation of the purpose of diversity jurisdiction--the fear that state courts
would be prejudiced against out-of-state litigants.' C. Wright, A. Miller, & E.
Cooper, 13 Federal Practice and Procedure 3601 (1975) (footnotes omitted).
For other expressions of other fears see authorities collected in 3601.

See, e.g., Fly, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693, 698 (1974)
('Where a non-statutory rule is involved, the Constitution necessarily remains in
the background, but is functionally irrelevant because the applicable statutes
are significantly more protective of the prerogatives of state law'). But see, e.g.,
Mishkin, Some Further Last Words on Erie--The Thread, 87 Harv.L.Rev. 1682
(1974) ('I maintain that the Constitution bears not only on Congressional power
but also imposes a distinctive, independently significant limit on the authority

of the federal courts to displace state law')

The 'applicable statutes' referred to are the Rules of Decision Act, n. 7, infra,
and the Rules Enabling Act, 28 U.S.C. 2072. The latter authorizes the
Supreme Court to prescribe rules of 'practice and procedure' for the federal
courts, which rules 'shall not abridge, enlarge or modify any substantive right.'
7

Appellee accuses appellant of 'confusing' Pennsylvania's statute of limitations

with its decisional authorities concerning the reissuance of writs. Appellee's
Brief at 5. It is, of course, immaterial for Erie purposes whether state law is
declared by the legislature or the courts. Erie specifically overruled Swift v.
Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which had held that 'decisions
of courts, . . . are, at most, only evidence of what the laws are, and are not, of
themselves, laws.' See Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct.
1835, 31 L.Ed.2d 712 (1971). In fact, the Erie decision itself concerned the
question whether federal courts were bound to apply state judge-made law.
Even at that time federal courts were bound to apply state statutes in diversity
cases pursuant to the Rules of Decision Act, 28 U.S.C. 1652. Further,
admitting that the requirement concerning the reissuance of writs is not a
'statute', we nevertheless see no usefulness in semantic argument whether it
ought to be characterized as a statute of limitations, or as a judicially-created
adjunct to a statute of limitations, or as something else. The policy is the same.
In any event, the Supreme Court of Pennsylvania in Yefko, supra, stated that,
having 'failed either to secure timely service of the writ or to reissue the writ
within the required two year period, appellant was barred by the statute of
limitations from proceeding with her cause of action.' 437 Pa. at 237, 263 A.2d
at 418--19. We refer to the requirement as a statute of limitations

We recognize that the continuing vitality of the particular rule of Ragan is not
free from doubt. See Sylvestri v. Warner & Swasey Co., 398 F.2d 598, 605 (2d
Cir. 1968) (collecting cases on both sides of the issue). Insofar as we rely on
that, or any other, case, we rely on the principles embodied in that decision. We
have found no rule controlling our decision. Pound, Hierarchy of Sources and
Forms in Different Systems of Law, 7 Tul.L.Rev. 475, 482--84 (1933)

We consider it no longer 'disputed' that service was improper. See App. at 95a,
98a (District Court Opinion and Order)