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MANGENE v. DIAMOND

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


June 9, 1955

Marjorie B. MANGENE and Robert Mangene, her husband,
v.
William J. DIAMOND

The opinion of the court was delivered by: GRIM

This action for personal injuries arising from an automobile collision in California was brought more than one year but less than two years after the accident occurred. According to his uncontradicted affidavit and deposition, defendant at the time of the accident was a 'nonresident' motorist of California, *fn1" where he was stationed with the Marine Corps. He returned to his home in Morton, Pennsylvania, about three months after the accident.

Defendant has moved to dismiss this action on the ground that it is barred by the California Statute of Limitations. Code Civ.Proc. § 340.

 Under the Pennsylvania 'Borrowing Act', *fn2" if the cause of action has been 'fully barred' by the applicable one-year California Statute of Limitations, 'such bar shall be a complete defense to an action thereon brought in any of the courts of this commonwealth' including the federal district courts situated in Pennsylvania. If the cause of action has not been 'fully barred' by the one-year California Statute of Limitations, then, of course, the suit is timely under the two year Pennsylvania Statute of Limitations, 12 P.S. § 34, the law of the forum applicable to personal injury actions.

 Whether the cause of action was 'fully barred' by the California Statute of Limitations depends on whether the California Suspension of Limitations Statute *fn3" is applicable in a case, like the present one, where the absent defendant is amenable to substituted service of process under the California Nonresident Motorist Act *fn4" during the entire one-year statutory period of limitations.

 On the basis of the reasoning appearing in the following analogous cases, I have concluded that since plaintiffs could have maintained a timely action in California by substituted service of process, the one-year California Statute of Limitations was not tolled by that state's Suspension of Limitations Statute, despite defendant's departure from California three months after the accident: Karaginnis v. Shaffer, D.C.W.D.Pa.1951, 96 F.Supp. 211; Arrowood v. McMinn County, 1938, 173 Tenn. 562, 121 S.W.2d 566, 119 A.L.R. 855; *fn5" cf. Loope v. Greyhound Lines, 1952, 114 Cal.App.2d 611, 250 P.2d 651.

 Therefore, under the Pennsylvania 'Borrowing Act', this action, having been brought more than one year after the cause of action arose, is fully barred by the California Statute of Limitations. *fn6"

 And Now, in accordance with the foregoing memorandum opinion it is Ordered complaint be and it is hereby granted and the complaint is hereby dismissed.


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