Action to recover for injuries received in automobile collision. Defendants moved to dismiss the action or in lieu thereof to quash writ of summons and return thereof. The Superior Court, Terry, J., held that the notice provisions of the Nonresident Motor Vehicle Act are unconstitutional.
Defendant's motion to quash writ of summons, the service and return thereof, granted.
[48 Del. 551] Motion under Rule 12(b) of this Court, Del.C.Ann., to dismiss this action, or in lieu thereof to quash the writ of summons, the service and the return thereof, on the ground that the statute relied upon for service of process on nonresident operators and owners of motor vehicles (Sec. 3112, Title 10 of the Delaware Code of 1953) is unconstitutional under the due process of law clauses of the Federal and State Constitutions.
Vincent A. Theisen and Aubrey Lank (of Logan, Marvel and Boggs), and Paul Rinard, Wilmington, for plaintiffs.
Stewart Lynch and Alfred R. Fraczkowski (of Hastings, Lynch & Taylor), Wilmington, for defendants.
This is an action brought by the plaintiffs to recover damages for personal injuries sustained by them resulting from an automobile collision upon a highway in this State on the 8th day of April, 1953. The plaintiffs are residents of this State. The defendants are nonresidents in that they were at the time of the collision, and still are, residents of the State of Pennsylvania.
The plaintiffs commenced this action on November 20, 1953, by filing their complaint. On November 20, 1953, a writ of summons was duly issued and placed in the hands of the Sheriff for New Castle County with directions that service thereof should be made upon the Secretary of State of this State. On November 20, 1953, the writ of summons was served, together with the complaint, upon the Secretary of State. Plaintiffs' attorney, by letters dated November 18, 1953, forwarded by registered mail to each of the defendants a copy of the complaint, together with a copy of the writ of summons, and indicated in said letter that service of the original of such process had been or would soon be made upon the Secretary of State of the State of Delaware. The letter further contained a statement that the suit had been instituted on October 22, 1953.
[48 Del. 552] On December 14, 1953, the plaintiffs filed an amendment to their complaint in compliance with Rule 4(h) of this Court, Del.C.Ann.
The defendants have moved to dismiss this action, or in lieu thereof to quash the writ of summons, the service and the return thereof, upon the ground that the statute under which this Court purportedly acquired
jurisdiction over the nonresident defendants is invalid and unconstitutional in that it contravenes the due process of law clauses in our State (art. 1 Sec. 7 & 9) and Federal (Amend. 14) Constitutions.
The pertinent statute involved is Section 3112, Chapter 31, Title 10, Delaware Code of 1953.
‘ § 3112. (a) Any non-resident owner, operator or driver of any motor vehicle, not registered under the laws of this State providing for the registration of motor vehicles, who accepts the privilege extended by law to non-residents of this State to operate or drive such motor vehicles on the public streets, roads, turnpikes or highways of this State by operating or driving such motor vehicle or by having the same operated or driven on any public street, road, turnpike or highway of this State shall by such acceptance of the privilege be deemed thereby to have appointed and constituted the Secretary of State of this State, his agent for the acceptance of legal process in any civil action against such non-resident owner, operator or driver arising or growing out of any accident or collision occurring within this State in which such motor vehicle is involved. ...