The opinion of the court was delivered by: MURPHY
In this diversity action plaintiffs seek to recover for property damages and injuries sustained in a grade crossing accident. Pennsylvania law determines the substantive rights and obligations of the parties. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, at page 78, 58 S. Ct. 817, at page 822, 82 L. Ed. 1188, and see Smith v. Piper Aircraft Corp., D.C.M.D.Pa.1955, 18 F.R.D. 169, at pages 171-175. Suits for personal injuries must be brought within two years; Act of 1895, June 24, P.L. 236, § 2, 12 P.S.Pa. § 34; do, suits by a husband for injuries to his wife. Black v. Eastern Pennsylvania Rys. Co., 1917, 257 Pa. 273, 101 A. 644; six years as to property damages; Act of 1713, March 27, 1 Sm.L. 76, § 1, 12 P.S. § 31.
The complaint named the New York, Ontario and Western Railway, a New York corporation -- described as 'doing business within the jurisdiction as an interstate common carrier' -- as defendant. A summons was promptly issued and executed by the Marshal 'on the New York, Ontario and Western Railway by making service on Mr. J. A. Pfeifer, trainmaster in his office in this district.'
Before answer or otherwise pleading defendant moved for dismissal of the complaint; (a) because it was not filed within two years; (b) defendant was not 'doing business' within the jurisdiction of this court; (c) the court lacks jurisdiction of the defendant; (d) failure to state a claim upon which relief may be granted.
Where the problem of limitations -- normally an affirmative defense, Federal Rules of Civil Procedure, Rule 8(c), 28 U.S.C.A. -- is apparent on the face of the pleadings it may be raised on a motion to dismiss; Di Sabatino v. Mertz, D.C.M.D.Pa.1949, 82 F.Supp. 248; Shandelman v. Schuman, D.C.E.D.Pa.1950, 92 F.Supp. 334; 2 Moore's Fed.Prac.2d Ed., § 12.10; similarly as to the legal sufficiency of the complaint. In passing upon the motion all well pleaded material allegations are taken as admitted, not conclusions of law or unwarranted deductions of fact. Moore op. cit. supra, Id. § 12.08, p. 2244; Clark v. Uebersee Finanz-Korporation, A.G., 1947, 332 U.S. 480, 482, 68 S. Ct. 174, 92 L. Ed. 88. 'No matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it.' Continental Collieries, Inc., v. Shober, 3 Cir., 1942, 130 F.2d 631, at page 635.
Here the complaint was not filed until two years and two days after the injury. Plaintiffs' brief states that on Friday, the day before, and Saturday, the day on which the two year period expired, they attempted but were unable to file their complaint because the district court had ordered the clerk's office closed temporarily because an extraordinary flood had crippled public utility and other essential facilities in the area. The first day the clerk's office was opened, the complaint was filed and served within two days thereafter.
Upon plaintiff's request, taking judicial notice of our official records, IX Wigmore on Evidence, 3d Ed., § 2579, we find that the clerk's office was closed as indicated. However the attempt to file should be presented by stipulation or affidavit, affording opportunity for denial by opposing counsel.
While the plea of the statute of limitations is a meritorious defense, see cases cited in Carr-Consolidated Biscuit Co. v. Moore, D.C.M.D.Pa. 1954, 125 F.Supp. 423, at pages 430-431. '* * * most courts recognize a limited class of exceptions arising from necessity * * * The broad rule is laid down that whenever some paramount authority prevents a person from exercising his legal remedy, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right, even though the statute makes no specific exception in his favor in such cases.' 34 Am.Jur. 152, Limitations of Actions, 187;
Hanger v. Abbott, 1867, 6 Wall. 532, at pages 534, 540, 542, 73 U.S. 532, at pages 534, 540, 542, 18 L. Ed. 939; Braun v. Sauerwein, 1869, 10 Wall. 218, at page 222, 77 U.S. 218, at page 222, 19 L. Ed. 895; United States v. Wiley, 1870, 11 Wall. 508, at page 513, 78 U.S. 508, at page 513, 20 L. Ed. 211; Brown v. Hiatts, 1872, 15 Wall. 177, at page 184, 82 U.S. 177, at page 184, 21 L. Ed. 128; Oerlikon Machine Tool Works Buehrle & Co. v. United States, 1952, 102 F.Supp. 417, at pages 420, 421, 121 Ct.Cl. 616; United States v. Lazenby, D.C.N.D.Tex.1925, 5 F.2d 827, at page 828, and see F.R.C.P. Rule 6(a), Pennsylvania Statutory Construction Act of 1937, May 28, P.L. 1019, Art. III, § 38, 46 P.S. § 538, where the last day is a Sunday or a holiday. Joint Council, etc. v. Delaware, L. & W.R. Co., 2 Cir., 1946, 157 F.2d 417, at page 420, suggests that Rule 6(a) does not apply until an action is commenced and therefore cannot modify a statute of limitations.
Cf. however Wilkes v. United States, 5 Cir., 1951, 192 F.2d 128, and see Union National Bank of Wichita, Kan. v. Lamb, 1949, 337 U.S. 38, at pages 40, 41, 69 S. Ct. 911, at page 912, 93 L. Ed. 1190; Sherwood Bros., Inc., v. District of Col., 1940, 72 App.D.C. 155, 113 F.2d 162; McCord v. Commissioner of Int. Rev., 1941, 74 App.D.C. 369, 123 F.2d 164, at page 165, holding that a court or a department '* * * cannot by rules or conduct limit the time or opportunity for filing given by statute.' Jacobs Pharmacy Co., Inc., v. United States, D.C.N.D.Ga., 71 F.Supp. 584, 585, "The rule (6a) does not attempt to change a jurisdictional statute, but merely provides a method of computing the statutory period different from that fixed by judicial decision." Wilson v. Southern Ry. Co., 5 Cir., 1945, 147 F.2d 165, at page 166.
The statute was tolled during the emergency. The complaint was filed on time.
Defendant's motion asserts it is a New York corporation; that it was not doing business within this district; inferentially that Mr. Pfeifer was not its trainmaster; that it was not amenable to service (see Shambe v. Delaware & H.R. Co., 1927, 288 Pa. 240, at page 245, 135 A. 755, at page 757; Goodrich-Amram Standard Pennsylvania Practice, Vol. 13, § 11, p. 132, and Pa.Rules of Civil Procedure, § 2179(a)(2) and § 2179-9, § 2179-10; 12 P.S.Appendix); and that the court does not have jurisdiction of the person of the defendant. Defendant's brief states that by decree of the United States District Court for the Southern District of New York, a trustee has been the owner in control and operation of defendant railway since 1937. (See New York Times, October 21, 1956.) See 11 U.S.C.A. § 205, sub. i. Bankruptcy Act. Upon appointment a receiver or trustee comes into possession and is vested with title to the property of the railroad. Isaacs v. Hobbs Tie and Timber Co., 1931, 282 U.S. 734, at page 737, 51 S. Ct. 270, at page 271, 75 L. Ed. 645; Dugan v. Gardner, D.C.S.D.N.Y.1946, 68 F.Supp. 709, 711, '* * * the railroad company, although its corporate existence may not have terminated, cannot be said to have been doing business * * * cannot be held liable * * * for the negligence of * * * employees of its trustee in re-organization. ( Detwiler v. Chicago, R.I. and Pac. Ry. Co., D.C.Minn. 1st Div., 15 F.Supp. 541, 542)'; and see Jakubowski v. Central R. Co. of N.J., D.C.1950, 88 F.Supp. 258.
'A receiver appointed by a court of equity to hold, manage, and operate an insolvent railroad is not the agent of the insolvent railroad corporation, and is not a substitute for the board of directors. He is but the hand of the court appointing him, and holds, manages, and operates the property under the orders and directions of the court as its custodian, and not for or under the control of the directors or shareholders of the corporation. His management is for the benefit of those ultimately entitled under decree of the court. His acts are not the acts of the corporation, and his servants are not the agents or servants of the corporation.' Memphis & C.R. Co. v. Hoechner, 6 Cir., 1895, 67 F. 456, at page 457.
'If the plaintiff had no cause of action against the * * * Railroad Company * * * a suit against that company would not be a suit against the receivers, and could not operate to stop the running of the statutory limitation in favor of the receivers.' Id., 67 F. 459.
'The appointment of receivers * * * was an act of such notoriety * * * that all persons have constructive notice. * * * There was no evidence tending to show any concealment of the facts. Public notices were posted * * * if the plaintiff did not know it, it * * * cannot have the legal effect of suspending the statute of limitations affecting his suit, or estop the receivers from relying upon it.' Id., 67 F. 459, 460.
Assuming the trusteeship was properly before the court by stipulation, motion for summary judgment and accompanying affidavit, or other competent evidence; piercing the allegations of the complaint, in the absence of a dispute as to a material fact,
it would appear that the railroad company was not doing business in this district at the time in question, was not responsible for the conduct of the train crew, was not subject to process herein and is therefore not a party to the record so as to give the court jurisdiction of the person of the defendant.
The trustee, not the railroad company, was the real party in interest. See 11 U.S.C.A. § 205, sub. j.
An examination of the complaint, summons, and return of service indicates plaintiffs' intention to make the railroad company the party defendant. In fact, plaintiffs' brief argues that the railroad company is the proper party defendant, the real in interest, and that under Pennsylvania law suit must be brought against the corporation qua corporation, citing Pennsylvania Rule of Civil Procedure 2177. In this respect they are obviously in error. Although adequate opportunity was afforded, plaintiffs have not by motion spelled out their theory by moving to amend the complaint and summons, F.R.C.P. 15(a), (c), the return of service, Id. Rule 4(h), or in any manner moved to substitute the trustee as the proper party defendant. Plaintiffs' brief suggests that if necessary an amendment may be made correctly stating the name of the defendant, citing Pennsylvania Rules, supra, 1033, contending that since ...