302 Pa. 279, 153 A. 346, Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 68 A.2d 517.
The facts of this case make the Wells decision undistinguishable. In Wells, this Court, 102 F.Supp. 519 granted a motion for summary judgment by applying the one-year Pennsylvania statute of limitations, 12 P.S. § 1603, rather than the two-year limitation in the Alabama Act, Code 1940, Tit. 7, § 123, which was the place where the cause of action arose. This was affirmed by the Supreme Court of the United States which held that this was not a denial of full faith and credit. Therefore, in the instant case, even if we were to allow the amendment which would allege the New Jersey Wrongful Death Act, which has a two-year statute of limitations, we must still apply the one-year statute of limitations of Pennsylvania and this action is therefore barred.
Coming now to the Survival action, several different questions are presented. Although plaintiff's motion to amend was filed more than two years after the date of the accident, we do not think that this would introduce a new cause of action or in any way prejudice the defendants. The plaintiff, in her original complaint, has pleaded sufficient facts to apprise the defendants of the nature of her claim, and would be sufficient without mention of the precise statute under which it is brought, since that would be mere surplusage. 'State law need not be pleaded as a federal court will take judicial notice thereof.' Straub v. Jaeger, D.C.E.D.Pa.1950, 9 F.R.D. 672, 673, 674.
The test of relation back under Rule 15(c), 28 U.S.C.A. is whether the claim 'arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth in the original pleading.' This departs from the narrow concept of cause of action to a much broader view based on the conduct upon which the parties rely to enforce their claim. See 3 Moore, Federal Practice, § 15.15, p. 851, Kimbro v. United States Rubber Company, D.C.D.Conn.1958, 22 F.R.D. 309, Gabaree v. Jay Ship Maintenance Corporation, D.C.E.D.Pa.1958, 166 F.Supp. 625. Therefore, the Court feels that justice requires the granting of plaintiff's motion to amend the survival action.
Defendants have cited the recent lower Court decision in the Common Pleas Court of Pennsylvania of Bonner, administratrix v. Roden (C.P. No. 7, 1958) and urge that because of its similarity to the present action, it would be controlling. However, for the reasons stated above, and the fact that this is a question to be determined by interpreting the Federal Rules of Civil Procedure, we feel this case is not controlling.
Counsel for the respective parties shall submit appropriate forms of Order.
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