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CHLADEK v. STERNS TRANSP. CO.

February 21, 1977

ROBERT CHLADEK
v.
STERNS TRANSPORTATION COMPANY and WHITE MOTOR CORPORATION and INDEPENDENT FILTER PRESS CO., INC. also t/a LIQUIDYNE, INC. v. CAROLINA FREIGHT CARRIERS CORP.



The opinion of the court was delivered by: FOGEL

 FOGEL, Judge.

 Defendant, Independent Filter Press Co., Inc., (Independent), requests judgment on the pleadings, pursuant to F.R. Civ.P. 12(c), or summary judgment, pursuant to F.R.Civ.P. 56(b), as to claims asserted against Independent by the plaintiff, Robert Chladek. Independent advances only one argument in support of its motion; namely, that plaintiff's suit is barred by the applicable statute of limitations, 12 P.S. § 34, since no complaint against Independent was filed within two years of plaintiff's alleged injury.

 The precise question we face, one that has not been decided by the Third Circuit, is as follows: Are plaintiff's claims against an additional defendant barred by the statute of limitations in this diversity suit, because of his failure to file an amended complaint naming that additional defendant until after the limitations period had run, even though he had, prior to the expiration of the statutory period, applied for and been granted leave of court to amend an original timely complaint?

 We are satisfied, after consideration of the record before us, that there is no genuine issue as to those facts which are material to the disposition of Independent's motion for judgment; thus, the validity of the limitations defense raised by defendant Independent can be decided as a matter of law, under F.R.Civ.P. 56(b). We hold that plaintiff failed to commence his action against the additional defendant, Independent, within the two-year limitations period set forth in 12 P.S. § 34, and that plaintiff's claims against Independent are therefore barred by that statute of limitations. Accordingly, we will direct the entry of summary judgment in Independent's favor. Our reasons follow:

 I. Factual Background

 Jurisdiction is based solely on diversity of citizenship under 28 U.S.C. § 1332; no federal question is presented. Plaintiff's cause of action arises as a result of injuries allegedly sustained when he used a forklift to unload a shipment of steel bars. The original Complaint was filed on February 3, 1976, against two defendants: Sterns Transportation Company, (Sterns), which is alleged to have prepared the steel bars for shipment, and White Motor Corporation, (White), which plaintiff avers manufactured the forklift. During the course of certain pretrial depositions, plaintiff's discovery led him to conclude that Independent was the manufacturer and shipper of the steel bars in question. Plaintiff then took certain steps to join Independent as an additional defendant. The issue before us is the sufficiency of those steps to commence an action against Independent, before the expiration of the statute of limitations period.

 The record reveals that there is no genuine dispute as to the following pertinent material facts: (1) plaintiff was injured on August 26, 1974; (2) plaintiff's original Complaint was filed February 3, 1976; it named Sterns and White as defendants, but did not name Independent as a defendant; (3) on June 30, 1976, plaintiff filed a "Motion for Leave of Court to Amend Complaint"; *fn1" (4) attached to the plaintiff's motion of June 30, 1976, was a copy of the original Complaint, a memorandum of law, and a form of proposed order; (5) the motion of June 30, 1976, was not accompanied by a copy of the Amended Complaint which plaintiff proposed to file; (6) by our Order of July 21, 1976, we granted plaintiff's motion; *fn2" (7) on August 24, 1976, the clerk issued a summons, directed to Independent, although no Amended Complaint, naming Independent as a defendant, had been filed as of that date; *fn3" (8) attached to the summons of August 24, 1976, were copies of the plaintiff's Motion for Leave to Amend, the original Complaint, and our Order of July 21, 1976; there was not a copy of any proposed Amended Complaint, since none had been filed; (9) the summons of August 24, 1976, together with its attachments, was served upon Independent on October 6, 1976; (10) the Amended Complaint, in which Independent was first named as a party defendant, was not filed until November 2, 1976; the Amended Complaint was then served upon Independent on November 5, 1976.

 Given this factual situation, we must decide when plaintiff brought his action against Independent, and whether that date was prior, or subsequent, to the expiration of the limitations period.

 There is no dispute with respect to the fact that the applicable Pennsylvania statute of limitations, 12 P.S. § 34, dictates that plaintiff must bring an action of this type within two years of the date of injury, August 24, 1974. *fn4" However, plaintiff and defendant clash as to the date upon which the action against Independent was actually "commenced"; it is this dispute which we must resolve.

 II. Determination with respect to whether federal or state procedural rules govern the "commencement" issue

 The critical threshold question is whether federal or state court procedural rules control with respect to the timeliness of plaintiff's commencement of his action against Independent. Plaintiff contends that, under the Pennsylvania Rules of Civil Procedure, his action against Independent was timely initiated by the issuance of the summons on August 24, 1976, two days before the statutory period expired; defendant argues, conversely for application of the Federal Rules of Civil Procedure, and asserts that the action against it was not commenced until the filing of the Amended Complaint on November 2, 1976, well after the expiration of the limitations period.

 A. Distinction between Pennsylvania and federal practice

 The limitations statute, 12 P.S. § 34, does not in and of itself contain any provision which defines the time at which an action can be considered as having been "brought". We must look to Rule 1007 of the Pennsylvania Rules of Civil Procedure for guidance as to the state procedures which govern commencement of a civil action. *fn5" Rule 1007 permits the "commencement" of an action in state court by the filing with the prothonotary of a praecipe for a writ of summons. Under Pennsylvania procedure, the mere filing of such a praecipe is sufficient to toll the running of the statute of limitations. Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The Pennsylvania Supreme Court recently stated that the underlying purpose of Pa.R.C.P. 1007 is to provide certainty with respect to the commencement of an action, thus freeing plaintiff from the risk that the statute of limitations may bar him if he acts in time, but someone else, (i.e., the prothonotary or the sheriff) fails to take ...


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