the Texas usury law based on general principles of law. This court is bound by the interpretation given to the statute by the Texas courts and we are not privileged to make an independent assessment of our own. Moreover, we have searched in vain for any indication that the Pennsylvania courts have deviated from the choice of law rule articulated in Kirk. Plaintiff has cited none. Under the circumstances, our duty is plain. We are bound by the unequivocal pronouncement of the Supreme Court of Pennsylvania.
A brief comment is required concerning Mitsubishi's remaining contention, namely, Pennsylvania law governs the validity of the interest rates charged herein, and summary judgment is required. This court does not reach the issue, inasmuch as we have determined that subject matter jurisdiction is absent to enforce the Texas usury law. If and when plaintiff desires to pursue his claim in the Texas courts, the Texas court, applying its choice of law principles, will have occasion to determine whether Pennsylvania or Texas law governs.
Our decision, today, engenders no injustice, and it is not inconsistent with the order of the Honorable Maurice B. Cohill, Jr. dated August 6, 1976. Mitsubishi raised the defense, which is dispositive of the case in this court, in its Answer dated September 17, 1975. Plaintiff could have instituted a civil action in a court of competent jurisdiction at any time.
On August 6, 1976, Judge Cohill denied Campbell's Motion for Transfer, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Northern District of Texas. Our review of the pleadings, and the opinion of the court, indicates that the question of jurisdictional impediment was not the rationale for the decision. Judge Cohill was confronted with issues concerning (1) which district court was the convenient forum to try this case, and (2) the tardiness of plaintiff's motion. Convenience of the parties should not be confused with the competency of this court to adjudicate the action. If we assume, as alleged by plaintiff, that Campbell's only basis for recovery is predicated upon a Texas statute which is unenforceable in Pennsylvania, the Complaint must be dismissed for want of jurisdiction.
We hold that, since the Texas usury statute has been defined by the courts of that state as a "penal statute" and is, therefore, unenforceable in Pennsylvania, plaintiff's Complaint must be dismissed without prejudice.
An appropriate order will follow.
ORDER OF COURT
AND NOW, this 11th day of July, 1978, in accordance with the accompaning opinion,
IT IS ORDERED that the Complaint of Charles E. Campbell, t/d/b/a Campbell Air Service, be and the same is hereby dismissed without prejudice for lack of jurisdiction over the subject matter.