(concurring).
Though I do not disagree with the conclusion which the court has reached or with some of the language of the majority opinion, I deem it desirable nonetheless to file a caveat against certain implications which may perhaps be read into what has been written therein.
The right of a citizen of a state to bring suit against a citizen of another state in a United States district court is a right granted and secured by Section 2, Article III, of the Constitution of the United States. In Barrow Steamship Co. v. Kane, 1898, 170 U.S. 100, 111, 18 S.Ct. 526, 530, 42 L.Ed. 964, the Supreme Court, by Mr. Justice Gray, stated: “The object of the provisions of the constitution and statutes of the United States in conferring upon the circuit courts of the United States jurisdiction of controversies between citizens of different States of the Union * * * was to secure a tribunal presumed to be more impartial than a court of the state in which one of the litigants resides. The jurisdiction so conferred upon the national courts cannot be abridged or impaired by any statute of a state. * * *” To this I would add — '“or of any decision by a state tribunal.” Neither Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, nor any of the decisions which followed it, require a contrary conclusion. See Pike v. New England Greyhound Lines, D.C., 93 F.Supp. 669, 671, distinguishing Pulson v. American Rolling Mill Co., 1 Cir., 170 F.2d 193, and Moore’s Federal Practice § 425, 2d ed. 1948, and the notes cited to the text.
It is clear that the majority opinion relies on decisions of the Supreme Court of Pennsylvania as to what constitutes doing business in the Commonwealth but it is not apparent whether the decision is based on a construction of Fed.Rules Civ.Proc., rule 4(d) (7), 28 U.S.C.A. providing inter alia for a method of service of process under state practice, or strictly on the doctrine of Erie R. Co. v. Tompkins. The reasoning of the majority opinion seems to indicate that the basis of the decision is that a foreign corporation may not be served with process unless it is doing business in the state and the question of whether it is doing business in the state is one which must be decided by the law of the state.
The majority opinion correctly points to the provisions of the Fourteenth Amendment, as supplying limitations on the powers of a state, and does not emphasize the provisions of Section 2, Article III of the Constitution which gives locus standi to the foreign litigant. Concededly, federal jurisdiction must be determined by federal law, albeit federal law in diversity cases calls for reference to the background of state law. But this does not mean that a state by arbitrary application of a statute or by judicial decision may prevent a plaintiff from maintaining a suit when the defendant corporation has actually been or is doing business in the state. Nor could a state by legislation or its courts by decision render service of process difficult or impossible. Cf. the decision of the Supreme Court of Pennsylvania in Lutz v. Foster & Kester Company, Inc., 1951, 367 Pa. 125, 79 A.2d 222.
I agree with the majority that in the light of the case just cited the defendant in the instant case would probably be deemed not to be doing business in Pennsylvania by the Supreme Court of Pennsylvania. But the Lutz decision presents too narrow a construction of doing business when measured by Section 2 of Article III of the Constitution.
I would vote to reverse the court below were it not for the fact that the subject matter of the suit does not arise out of the sale of parking meters by the defendant in Pennsylvania. The cause of action in the instant case is really unrelated to the activities of the defendant in the Commonwealth of Pennsylvania. Cf. Woodworkers Tool Works v. Byrne, 1951, 9 Cir., 191 F.2d 667. The instant case does not, therefore, meet the test laid down by the Supreme Court of the United States in International Shoe Co. v. Washington, 326 U.S. 310, 316-317, 66 S.Ct. 154, 90 L.Ed. 95, and the judgment of the court below should be affirmed.