The opinion of the court was delivered by: KALODNER
In this action the plaintiff seeks to recover damages for an alleged libelous publication appearing in defendant's magazine 'Life,' dated January 17, 1944. The proceedings were begun on January 17, 1945, in the Common Pleas Court of Philadelphia County, Pennsylvania. Although the 'Statement of Claim' filed therein set forth that both plaintiff and defendant were residents of New York, the defendant procured removal to this Court on the ground that the plaintiff was a resident of New Jersey. The plaintiff has not asserted otherwise, and the requisite jurisdictional amount being present, this Court has jurisdiction over the parties and the subject matter.
Prior to answer, the defendant filed its motion for summary judgment grounded upon two defenses, first, asserting the statute of limitations, and, second, applying the theory of res adjudicata. Affidavits have been filed by both parties, the plaintiff contending that there remain material issues of fact, and therefore, under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A.following section 723c, the motion may not be granted.
The plaintiff has filed a motion to amend his complaint, to which the defendant objects on grounds similar to those on which it bases its own motion, and, in addition, on the ground that the proposed amendment is incomplete, inaccurate and misleading.
Taking first for consideration the defendant's motion for a summary judgment, it must be noted at the outset that Rule 56 conditions the granting of such a motion upon the absence of material questions of fact, except, of course, with respect to amount of damages. Consequently, attention must be directed to this condition in any analysis of the merits of defendant's motion.
With reference to this condition, it may be observed that we are not now concerned with the question as to whether the printed matter is in fact actionable. In answer to the defense invoking the statute of limitations, the plaintiff contends, in brief, that there remain material questions of fact, with respect to the date of publication, and with respect to the tolling of the statute of limitations by reason of the absence of the defendant from the state. It is further asserted that, 'because some of these facts and other pertinent facts are particularly within the exclusive knowledge of the defendant, (the plaintiff) cannot present by affidavit all of the facts essential to justify the plaintiff's opposition to the defendant's motion.'
However, after consideration I am of the opinion that the plaintiff's counter-affidavits are unavailing, either to show that there is a material question of fact, or that the defense to his claim is inadequate in law.
The plaintiff's first attack on the motion is founded upon the assertion that the statute was tolled by the absence of the defendant from the jurisdiction. To support this assertion, an affidavit was filed in which it is stated that: 'The defendant itself has claimed until quite recently that it was not within the jurisdiction of the Common Pleas Courts of Philadelphia County or of this Court as is evidenced by its contention in the case of William N. Barrett v. Time, Inc., Common Pleas Court No. 2, Philadelphia County, December Term, 1937, No. 2877, wherein the Court in Opinion filed July 19, 1938, stated that the defendant was not within the jurisdiction of the Court. Consequently, the Statute of Limitations in this jurisdiction could not run against the defendant until such time as it was within the jurisdiction.' Further, the plaintiff has attached to this affidavit a letter from the Department of State of the Commonwealth of Pennsylvania indicating that an examination of its indices disclosed no corporation either foreign or domestic nor a registration under the provisions of the Fictitious Names Act bearing the title 'Time, Inc.'
Under the provisions of the Pennsylvania Foreign Corporations Act and the Fictitious Names Act,
a firm engaged in business in Pennsylvania without proper registration becomes subject to certain penalties, and such non-compliance constitutes a valid defense to any action brought by such firm, until registration is completed. Failure to register, however, does not make the defaulting organization any less amenable to process, and the fact of non-registration is not available to it as a defense. If the defendant were engaged in business in Pennsylvania, and subject to process under the Pennsylvania practice, it was not any less within the jurisdiction for failure to register. On this score, it is significant to note that the plaintiff's counter-affidavits do not assert that the defendant was not engaged in business in Pennsylvania or did not have a local office. Of course, the decision referred to is not binding upon either party in the instant case, and the statement that defendant was not within the jurisdiction is a conclusion which should be for the court to determine.
More important, the mere assertion that the defendant was not within the jurisdiction is insufficient, under Pennsylvania law, to toll the statute of limitations. In order to be effective for that purpose, the affidavit should contain evidence that the defendant was within the jurisdiction, but absented itself after the alleged cause of action accrued. Thus, Section 1, P.L. 112, May 22, 1895, 12 P.S. 40, provides:
'In all civil suits and actions in which the cause of action shall have arisen within this state the defendant or defendants in such suit or action, who shall have become a non-resident of the state after said cause of action shall have arisen, shall not have the benefit of any statute of this state for the limitations of actions during the period of such residence without the state.'
To dispel any doubt as to the proper construction of this statute, in Hunter v. Bremer, 1917, 256 Pa. 257, at page 264, 100 A. 809, at page 811, Ann.Cas. 1918A, 152, the Supreme Court said:
'In considering the present statute * * * , in Bates v. Collum, 177 Pa. 633, 637, 35 A. 861, 862, 34 L.R.A. 440, 55 Am.St.Rep. 753, we said: 'It applies to 'all civil suits * * * in which the cause of action shall have arisen within this state' ( Shaffer's Est., 228 Pa. 36, 40, 76 A. 716). It affects all defendants 'who shall have become nonresidents * * * after said cause of action shall have arisen" -- meaning, necessarily, defendants who had a residence at the time the cause of action arose, else they could not 'become' nonresidents.'
If the statute is at all applicable to corporate defendants, it would seem that the plaintiff's affidavit must, in order to bring the statute into operation, contain evidence that prior to the time the cause of action arose, the defendant was in the state in such a way as to make it amenable to process, for as stated in Hunter v. Bremer, supra, 256 Pa.at page 264, 100 A.at page 812, Ann.Cas. 1918A, 152, the Act 'contemplates simply a residence of such permanency that the person in question may be found here and served with ordinary legal process at any time, generally speaking. The existence of such a residence constitutes one a resident within the meaning of the act, and, on the other hand, its absence makes him a nonresident.'