The opinion of the court was delivered by: WEBER
This case and a companion case filed at Civil Action No. 15-70 Erie are diversity actions under Pennsylvania law. They arose out of the same accident and involve substantially the same parties. They are essentially cross-actions between the two principal parties to an automobile accident which occurred in this district on February 9, 1968. Edward Gumienik and Laura Gumienik, the plaintiffs in the present action, were injured. Gary Slingwine died on February 17, 1968 from injuries received in the accident. His estate is named defendant here and was the plaintiff in Civil Action No. 15-70 Erie.
This suit was filed January 29, 1970, and complaint was served on co-defendant Mark Slingwine, February 11, 1970. An appearance and answer was filed for both defendants by Attorney Knox on February 25, 1970, which denied liability.
On February 17, 1970, Attorney Price filed a separate action at Civil Action No. 15-70 Erie on behalf of the Estate of Gary Slingwine for Wrongful Death and Survival causes of action against Edward Gumienik, one of the within plaintiffs. That action was dismissed by our Memorandum Order of May 8, 1970, 314 F. Supp. 748, on Defendant's Motion for Summary Judgment filed March 26, 1970 because the Statute of Limitations had run on both the Wrongful Death and Survival Action. That plaintiff (present Defendant) made no response or opposition to the Motion for Summary Judgment.
On April 16, 1970, Attorney Price filed an appearance for all defendants in this action and on April 27, 1970, he filed a document captioned "Counterclaim."
No leave of court was requested to amend defendants' answer after twenty days pursuant to Fed. R. of Civ. P. 15. No leave of court to assert the omitted Counterclaim was requested under Fed. R. of Civ. P. 13(f).
Plaintiff has moved to strike the counterclaim since it is barred by the statute of limitations and the matter is res judicata under our Order of May 8, 1970 in Civil Action No. 15-70 Erie.
Defendants ask leave to assert the counterclaim under Fed. R. of Civ. P. 13(f), which allows a counterclaim to be asserted when the failure to do so beforehand was due to oversight, inadvertence or excusable neglect or justice requires that it be asserted.
We find no authority under Fed. R. of Civ. P. 13(f) to allow the assertion of an affirmative counterclaim after the bar of the statute of limitations.
"The statute of limitations involves a matter of state law * * * (citations omitted). Where one is barred from recovery in the state court he is likewise barred in the federal court." (p. 822)
"Rule 13 of the Federal Rules of Civil Procedure, which permits counterclaims, has no application to a counterclaim that is barred by the statute of limitations. (p. 823). Keckley v. Payton, 157 F. Supp. 820, 822, 823 (N.D.W. Va. 1958).
We find the general rule in Pennsylvania to be that a cause of action which would be barred as an original action, because of the statute of limitations, may not be asserted as a counterclaim after the expiration of the statutory period. Woodland Oil Company v. A.M. Byers & Co., 223 Pa. 241, 72 A. 518 (1909). (See Deane et al. v. Greenbaum et al. (Bucks Co., Pa. 1951) 77 Pa. ...