invasion of privacy is an "injury wrongfully done to the person" and thus the two year statute of limitations applied and held that the action was time barred since more than two years had elapsed from the time distribution of the magazine article was completed.
We have concluded that plaintiff's instant cause of action is likewise barred by the two year statute of limitations. Her complaint was not filed until January 19, 1966. The two year limitation period had begun to run on January 9, 1964, which was the effective date of the magazine's distribution.
Thus the statute of limitations had run on January 9, 1966, ten days before the complaint was filed.
In the event we were to hold that plaintiff's claim regarding the February 1964 publication is barred by the statute of limitations, plaintiff orally moved at the time of argument for leave to amend her complaint to include the claims for invasion of privacy which relate to the March and April 1964 issues of "Movie Life" wherein the same photograph appeared.
Such amendment would have been allowed under F.R.Civ.P. 15 if plaintiff had requested it at a much earlier date. However, the two year statute of limitations, 12 Purd.Stat. § 34, ran as to those two additional issues sometime during February and March of 1966. Thus to permit plaintiff to amend as of the date of argument on defendants' summary judgment motion would be an allowance to amend around the statute of limitations.
Since the March and April issues are separate and distinct publications
and the claims based thereon do not relate back to plaintiff's original cause of action, such leave to amend the complaint will not be granted. Hartmann v. Time, Inc., 64 F. Supp. 671, 680 (E.D.Pa.1946), reversed on other grounds, 166 F.2d 127 (3rd Cir. 1948). See generally, Moore's Federal Practice, Second Edition, pp. 1015-1066.
And now, this fifth day of September, 1967, it is ordered that defendants' Motion for Summary Judgment be and the same is granted.
It is further ordered that plaintiff's oral motion for leave to amend her complaint is hereby denied and the complaint is dismissed with prejudice.