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GALLAGHER v. CARROLL

May 19, 1939

GALLAGHER et al.
v.
CARROLL et al.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This is a motion to strike the second and third separate and complete defenses contained in the answer in an action to recover damages for personal injuries, said to have been suffered by the plaintiff Francis J. Gallagher on October 3, 1936, in the State of Pennsylvania, as the result of a collision of motor vehicles.

The plaintiff James Gallagher is the father of Francis, who was an infant when the accident happened but apparently has since become of age.

 The second defense to which the motion is directed alleges the pendency of a prior action in the State of Maryland but, as one of the defendants in that cause is a corporation, it was conceded at argument that the defense is legally insufficient, and the motion to strike it is therefore granted.

 The third defense pleads the 2-year statute of limitations of Pennsylvania, where the cause of action arose. The allegation is in part "that this action is barred by the limitation contained and provided in the aforesaid statute".

 The complaint was filed in the office of the Clerk of this Court on October 1, 1938, and apparently on the following day the summons and complaint were delivered to the marshal, who later returned the papers non est because the defendant Lawrence P. Carroll was then ill and confined to a hospital in the State of New Jersey. The defendant Michael was never served.

 An alias was procured and service upon the defendant Carroll was made personally on January 18, 1939, within this district.

 The question for decision as to the third defense is whether the action was commenced so as to avoid the bar of the Pennsylvania statute of limitations.

 The defendant asserts that the failure to begin this action by the service of a summons prior to the expiration of the said period of limitation defeats the plaintiffs' cause, and relies upon the New York Civil Practice Act, Section 218, which provides that a civil action is commenced by the service of a summons. Federal Civil Procedure Rule 3, 28 U.S.C.A. following section 723c, reads: "Commencement of Action. A civil action is commenced by filing a complaint with the court."

 Thus is presented the question discussed at the Institute on Federal Rules conducted under the auspices of the American Bar Association in Cleveland, commencing July 21, 1938. Comments will be found at pages 183 and 202 and 203 of the edition of the Rules containing the proceedings of the Institute.

 The subject is interestingly discussed in Volume 1 of Moore's Federal Practice at pages 240-245, and a helpful comment will be found in 51 Harvard Law Review at page 1087.

 In the first place, it is to be observed that the statute of Pennsylvania contains no provision concerning the method of commencing suit. The applicable portion is (1895, June 24, P.L. 236):

 "Section 2 [§ 34]. Every suit hereafter brought to recover damages for injury wrongfully done to a person, in cases where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law." 12 P.S.Pa. § 34.

 That the applicable period is two years, and not three which would be the case if the alleged injury had occurred in the State of New York (Civil Practice Act, Section 49, Paragraph 6), ...


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