Conn. 585, 59 A.2d 524; Hurwitch, by Goldberg v. Adams, Del., 155 A.2d 591.
The defendant argues that the Soldiers' and Sailors' Civil Relief Act is inapplicable to the instant case because, even though defendant was in military service and stationed outside of Pennsylvania, he was nevertheless subject to service under the Non-Resident Motorist Act of Pennsylvania. Act of May 14, 1929, P.L. 1721, § 1, 75 P.S. § 1201. From this, defendant argues that no reason exists to toll the statute in favor of plaintiff who has delayed pressing his demand beyond the statutory period. Defendant points out that Courts which have held that § 525 of the Act tolled the statute of limitations did not give consideration to the effect which non-resident service statutes might have upon § 525, if indeed the jurisdictions involved had such statutes. The point is not significant. In Blazejowski, the serviceman was stationed in the State of Massachusetts and was subject to personal service in that state. Yet the Court held that 525 tolled the statute. Availability or non-availability for service had nothing to do with the result. The Court recognized that the critical factor which brings 525 into play is that of military service. When that circumstance is shown, the period of limitations is automatically tolled for the duration of that service.
The holding in Puchek v. Elledge, D.C.N.D.Ind.1958, 160 F.Supp. 286, 287 is not at variance with the above view. True, the Court states broadly that the Soldiers' and Sailors' Civil Relief Act is 'operative upon the commencement of the action and has no relation * * * to any suspension of the statute of limitations'. But nothing in the opinion suggests that § 525 was either relied upon by the plaintiff or was considered by the Court. The opinion makes no mention of § 525. What was said had reference seemingly to § 521. This authorizes a Court to stay an action in which a serviceman is involved during the period of such service or within 60 days thereafter.
It was under this provision that the defendant argued that a nonresident serviceman is exempt from service and that the service which had been made under the Indiana Non-Resident Motorist Statute was ineffective as a basis of jurisdiction. The Court rejected this argument, apparently on the theory that the authority of the Court to stay the action provided the serviceman with adequate protection. The fact that Puchek was concerned exclusively with the relationship of § 521 to the validity of service and had nothing to do with the tolling provisions of § 525 is substantiated by the fact that the Court relied solely upon Robinson v. Five One Five Associates Corp., 1943, 180 Misc. 906, 45 N.Y.S.2d 20 and McFadden v. Shore, D.C.E.D.Pa.1945, 60 F.Supp. 8 as the basis of its decision. The latter two cases dealt with the problem of service of process during the times when the defendants were in military service and not with the tolling effect of § 525.
It is unnecessary to consider whether, as defendant claims, the tolling provisions of the Pennsylvania law are inoperative because of the availability of the defendant to service under the Non-Resident Motorist Act of Pennsylvania.
Even though it be assumed that the period of limitations was not tolled by virtue of the Pennsylvania statute, the supremacy clause of Article VI of the United States Constitution makes § 525 pre-emptive in the tolling field and any state law to the contrary must yield to it.
An order denying the motion to dismiss will be entered.