The opinion of the court was delivered by: GOURLEY
This case comes before the Court on defendant's motion to dismiss the complaint for the reason that the complaint fails to set forth a cause of action against the defendant upon which relief can be granted.
This action is filed by Ida Berry, individually and as administratrix of the goods, chattels and credits of Olivia Marshall, deceased, against the Franklin Plate Glass Corporation.
It is set forth, inter alia, that during the year 1932, the defendant became the owner of a manufacturing plant within the jurisdiction of this Court and, in connection therewith, engaged in the manufacture of plate glass. That in connection with the furtherance of said business, the defendant in the year 1932, and during the whole of the period set forth in the complaint which gives rise to the alleged cause of action, discharged silica and waste from said plant in a careless, reckless and negligent manner. In addition thereto, the defendant caused the silica and waste to be stored or placed in high piles and banks within 700 feet of the residence of Olivia Marshall, unprotected from the weather and natural elements in the vicinity.
That during the period beginning in 1932, and for many years prior to said year, and to April 1939, the deceased, Olivia Marshall, resided in one of the dwellings which was located within the distance of 700 feet of the location of the plant of the defendant company and where the silica and waste were deposited. Between the years 1932 and April of 1939, the deceased, Olivia Marshall, not knowing the poisonous and obnoxious ingredients of said silica, which permeated the air in the vicinity of her home, was compelled to daily inhale great quantities of said silica. As a result of this condition, the respiratory system of the deceased was injured which caused her to permanently abandon her home in April of 1939, at which time she established a residence in the City of New York. The deceased continued to reside in the City of New York with her sister, Ida Berry, from April of 1939 until November 19, 1944, at which time it is claimed that as a result of infection of the throat, lungs and respiratory system of the deceased, said conditions progressed to the extent that it resulted in the death of Olivia Marshall on November 19, 1944.
Ida Berry instituted this action against the Franklin Plate Glass Corporation, in which a right of recovery is claimed individually and as administratrix of the estate of her sister, Olivia Marshall. Siad cause of action was filed on October 2, 1945, and prior to the filing of an answer, the defendant filed its motion to dismiss the complaint in which it is claimed that the complaint fails to state a claim against the defendant upon which relief can be granted for the following reasons:
1. The complaint shows that the claim was barred by the statute of limitations of two years of the State of Pennsylvania in such cases made and provided by reason of the fact that it appears that the last exposure of decedent to the alleged silica and waste was not later than April, 1939, and the complaint was not filed until October 2, 1945.
2. The complaint does not show a cause of action in Ida Berry individually.
3. The complaint does not set forth any damages sustained for which Ida Berry, administratrix, is entitled to maintain an action.
4. The complaint does not set forth any damages sustained by Ida Berry individually.
There are three questions before the Court for consideration:
1. Under the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, is it permissible to raise the question of the statute of limitations by a motion to dismiss?
2. Is the Federal Court bound to follow the construction placed by the Supreme Court of the Commonwealth of Pennsylvania upon the laws of the Commonwealth?
3. Under the laws of the Commonwealth of Pennsylvania, does the plaintiff in either her individual or administrative capacity have a right of action against the defendant?
In connection with the pleading of the statute of limitations and the motion to dismiss, Rule 9(f) of the Federal Rules of Civil Procedure provides: '(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material ...