The defendants assert that the Act of March 26, 1785, 2 Sm.L. § 6 (12 P.S. § 44), governs this action and that any award of damages must be limited to the year preceding the commencement of this action. That Act provides as follows:
'All actions, suits, bills, indictments or informations, which shall be brought for any forfeiture, upon any penal act of assembly made or to be made, whereby the forfeiture is or shall be limited to the commonwealth only, shall hereafter be brought within two years after the offense was committed, and at no time afterwards; and that all actions, suits, bills or informations, which shall be brought for any forfeiture, upon any penal act of assembly made or to be made, the benefit and suit whereof is or shall be by the said act limited to the commonwealth, and to any person or persons that shall prosecute in that behalf, shall be brought by any person or persons that may lawfully sue for the same, within one year next after the offense was committed; and in default of such pursuit, that then the same shall be brought for the commonwealth, any time within one year after that year ended; and if any action, suit, bill, indictment or information, shall be brought after the time so limited, the same shall be void, and where a shorter time is limited by any act of assembly, the prosecution shall be within that time.'
In support of their contention, defendants cite the Court of Appeals for the Third Circuit's decision in Gordon v. Loew's Incorporated.
In that case, the court held that a New Jersey statute of limitations governing 'All actions at law brought for any forfeiture upon any penal statute * * *'
applied to a suit under § 4 of the Clayton Act for treble damages. An examination of the basis for the decision, however, shows that it only establishes the approach to be taken in resolving the question presented. The court pointed out in Gordon that when the federal courts employ a state statute of limitations for federal purposes, they must give it the scope and meaning that the state courts give to it in analogous suits under state law.
The court then referred to a recent New Jersey case which held that the state Rent Control Act, providing for treble damages in suits by a tenant against his landlord for violations of that Act, was a penal statute for statute of limitation purposes.
Our inquiry must, therefore, be directed to the problem of how the courts of Pennsylvania would characterize a statute similar to § 4 of the Clayton Act in applying the Act of 1785.
In Commonwealth v. Musser Forests, Inc., 1958, 394 Pa. 205, 146 A.2d 714, the Supreme Court of Pennsylvania had occasion to consider the applicability of the Act of 1785 to the Forest Tree Seedling Act, which provides that anyone who purchases trees from the Commonwealth must promise to pay a penalty of three times the value of any trees resold for ornamental use.
The court held that the Act of 1785 did not apply. The court cites Justice Holmes' opinion in the Chattanooga Foundry case
in support of its conclusion.
This is a clear indication that the Supreme Court of Pennsylvania would not apply the Act of 1785 to a private action under § 4 of the Clayton Act. Therefore, this court cannot apply that statute.
It has been conceded by all parties that, in the event that the Act of 1785 does not apply to this action, the six-year Pennsylvania statute for actions in trespass on the case
should be employed with respect to all defendants except Fox Philadelphia Building, Inc., and that the recent four-year federal statute
should be used for the latter since it was not joined as a defendant until April 26, 1956, which was after the federal statute became effective.
The contentions of counsel for defendant Twentieth Century-Fox Film Corporation were disposed of by this court in County Theatre Company v. Paramount Film Dist. Corp., D.C.E.D.Pa.1958, 166 F.Supp. 221.
Counsel for plaintiffs will submit an order consistent with this opinion within one week.