The opinion of the court was delivered by: VANARTSDALEN
Defendant has filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a cause of action. The motion will be granted.
The amended complaint contains five counts. The jurisdictional and factual basis for the asserted claims are not entirely clear from the amended complaint, but defendant raises no issue as to whether the amended complaint is sufficiently definite to comply with Fed. R. Civ. P. 8(a).
Counts I, II and III allege "liability" under 12 U.S.C. § 86, which provides a cause of action for recovery of twice the amount of any usurious interest paid to a national bank. Such actions may be filed in a federal district court, venue being the district wherein the bank is located. 12 U.S.C. § 94. A national bank in a particular state may charge the same maximum interest as is permitted by state law to state banks. Interest in excess of such maximum would be usurious. 12 U.S.C. § 85.
Counts I and II are for recovery of double the amount of claimed usurious interest paid by plaintiff to defendant on certain loans. A Pennsylvania business corporation may not assert a defense of usury nor maintain an action in either Pennsylvania state courts or a federal court sitting in Pennsylvania to recover usurious interest or any statutory penalty provided for usurious loans.
Section 313 of the Business Corporation Law of Pennsylvania provides as follows:
No business corporation shall plead or set up usury, or the taking of more than six per cent interest, as a defense to any action brought against it to recover damages on, or to enforce payment of, or to enforce any other remedy on, any mortgage, bond, note, or other obligation executed or effected by the corporation.
Pa. Stat. tit. 15, § 1313. The above quoted statute has repeatedly been held to bar affirmative action on the part of a business corporation to recover usurious interest, or any statutory penalty, or to rescind, reform or alter the terms and conditions of the contract of loan. All Purpose Finance Corp. v. D'Andrea, 427 Pa. 341, 346, 235 A.2d 808 (1967); Raby v. Commercial Banking Corp., 208 Pa. Super. 52, 54, 220 A.2d 659 (1966); Pink Lady, Inc. v. William Penn Loan Co., Inc., 189 Pa. Super. 187, 150 A.2d 154 (1959); 16 Pa. D&C 2d 505 (Philadelphia County Court of Common Pleas). As stated in Raby v. Commercial Banking Corp., supra at 54:
This statute bars a corporation from claiming usury either as a "shield" to defend an action to recover alleged usurious interest or as a "sword" to recover money already paid and alleged to be usurious.
To the same effect is Brierley v. Commercial Credit Co., 43 F.2d 724, 728-729 (E.D. Pa. 1929), aff'd, 43 F.2d 730 (3d Cir. 1930), decided under another statute
which is identical insofar as applicable to this case. Other courts have similarly interpreted analogous statutes of other jurisdictions. Bichel Optical Laboratories, Inc. v. Marquette National Bank of Minneapolis, 336 F. Supp. 1368 (D. Minn. 1971), aff'd, 487 F.2d 906 (8th Cir. 1973).
The Comptroller of Currency has issued a ruling in its Manual for National Banks that:
A national bank located in a state the law of which denies the defense of usury to a corporate borrower may charge a corporate borrower any rate of ...