had run on August 26, 1976, the commencement of an action against Independent, by the filing of the Amended Complaint on November 2, 1976, was untimely; plaintiff's cause of action against Independent is therefore barred by the statute of limitations, 12 P.S. § 34.
While our Order, of July 21, 1976, permitted both joinder of Independent as an additional defendant, and issuance of process, neither that Order nor the actual issuance of process, on August 24, 1976, tolled the statute of limitations; plaintiff's failure to file the Amended Complaint, the only act which could toll the statute of limitations as to defendant, Independent, was a fatal error. Clearly, application of the federal rules mandates that the only possible date for "commencement" of the action is the date upon which the Amended Complaint is actually filed of record. F.R.Civ.P. 3.
It is, of course, unfortunate that plaintiff is out of court, as to Independent, because of his failure to commence an action within the statutory period. Superficially the result may appear to be harsh, since plaintiff apparently "commenced" his action in accordance with Pennsylvania practice, even though he failed to take the step necessary to constitute "commencement" within the meaning of the Federal Rules of Civil Procedure. Yet plaintiff's delay in filing the Amended Complaint cannot be excused; he filed his motion with us, for leave to amend the Complaint, and we granted that motion, more than a month prior to the two-year limitations deadline. Although the motion was granted on July 21, 1976, the Amended Complaint, which would have tolled the statute if filed by August 26, 1976, was not in fact filed until November 2, 1976 -- a delay which cannot be excused by plaintiff's attempted reliance on Pa.R.C.P. 1007 as the relevant "commencement" rule.
B. The "Notice Pleading" Issue
In addition to his argument for application of Pa.R.C.P. 1007, plaintiff has advanced an alternative theory which he claims substantiates his contention that the claims against Independent are not barred by the statute of limitations. Plaintiff argues that the defendant had the type of notice of the claims against it, which permits plaintiff to overcome the limitations defense. Plaintiff relies upon F.R.Civ.P. 8(f), which states that, "all pleadings shall be so construed as to do substantial justice"; he would have us treat defendant Independent as an entity which had "notice" of the plaintiff's claims, prior to the actual date the Amended Complaint was filed and served. Specifically, plaintiff argues that the summons of August 24, 1976, together with the copy of the Motion for Leave to Amend, the original Complaint, and our Order which granted leave to amend, should be held to be the equivalent of an Amended Complaint, because those papers contained all of the material allegations that relate to defendant Independent's alleged liability to plaintiff.
Plaintiff's argument misses the mark, and completely misconstrues the thrust of F.R.Civ.P. 8(f). F.R.Civ.P. 3 has been held to be the applicable federal rule, for purposes of determining when a statute of limitations is tolled, in order to avoid the thicket in which federal courts would be hopelessly entangled if the standard was that urged by the plaintiff -- one which would state that a suit is timely commenced, prior to the filing of the complaint, if a party merely had "notice" of the claims against him. Commencement of the action, by the filing of a complaint, is the critical act required to toll the statute.
Rule 3 applies; Rule 8, under the circumstances of this case, is inapposite. While Rule 8 provides for the liberal construction of pleadings, it does not allow a Motion for Leave to Amend to serve as a substitute for the Amended Complaint itself.10 Neither the principles of liberal construction, nor the concept of notice pleading, can offer support to plaintiff in this case.
Because plaintiff's Amended Complaint, in which Independent was named as a defendant for the first time, was not filed until November 2, 1976, we hold that plaintiff's action against Independent was not commenced until that date. F.R.Civ.P. 3. Since the applicable limitations period set forth in 12 P.S. § 34 expired in August, 1976, the Amended Complaint was not filed within the controlling limitations period. Accordingly, plaintiff's Amended Complaint against defendant Independent is barred by the statute. There are no genuine issues of material fact before us; hence, Independent is entitled to judgment as a matter of law. An appropriate Order will issue, directing the entry of summary judgment on behalf of defendant Independent, pursuant to F.R.Civ.P. 56(b), as to all claims asserted against Independent by plaintiff, in the Amended Complaint.
BY THE COURT:
HERBERT A. FOGEL J., United States District Court [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 427 F. Supp.]
AND NOW, to wit, this 21st day of FEB, 1977, upon consideration of the following: (1) the Motion for Judgment, filed January 11, 1977, by the additional defendant, Independent Filter Press Co., Inc.; (2) plaintiff's Answer to the motion; (3) memoranda and briefs submitted by the parties; and (4) the record as a whole; and for the reasons set forth in the accompanying Opinion,
IT IS HERBY ORDERED, ADJUDGED and DECREED that defendant, Independent Filter Press Co., Inc.'s Motion for Summary Judgment be, and the same hereby is, GRANTED, and the clerk is directed to enter judgment in favor of Independent Filter Press Co., Inc., pursuant to F.R.Civ.P. 56, as to all claims asserted against Independent Filter Press Co., Inc. by plaintiff Chladek, in the Amended Complaint of November 2, 1976.
BY THE COURT:
HERBERT A. FOGEL J., United States District Court