II. Statute of limitations
As an affirmative defense under F.R.C.P. 8(c), the statute of limitations generally may not serve as a ground for a motion to dismiss. However, when the running of the statute is apparent from the face of the complaint, the defense may be raised in a Rule 12(b)(6) motion. Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980).
All of the events giving rise to plaintiff's causes of action took place more than two years before August 8, 1983, the date plaintiff filed his second complaint. In para. 2 of Count I of the complaint, plaintiff states that defendants' alleged adulterous affair occurred between March 1977 and October 1979. He further states in para. 4 of Count I that "on or about February 25, 1981," it was ultimately revealed that defendant Anthony Parisi, and not plaintiff, was the natural father of the child born to plaintiff's then wife. No more recent event is pleaded in the complaint.
Plaintiff does not dispute that Pennsylvania's two-year statute of limitations, 42 Pa. Cons. Stat. Ann. § 5524, applies to all causes of action alleged in his complaint. Further, plaintiff does not assert, nor could he, that the statute of limitations was tolled by the filing of the first complaint in federal court in April, 1982. The filing of an action in federal court does not toll the statute for purposes of an action later filed in state court. Royal-Globe Insurance Co. v. Hauck Manufacturing Co., 233 Pa. Super. 248, 335 A.2d 460, 462 (1975); DiSabatino v. Mertz, 82 F. Supp. 248, 249 (M.D. Pa. 1949). See also Price v. United States, 466 F. Supp. 315, 318 (E.D. Pa. 1979), in which it was held that a complaint filed in federal court which was dismissed for lack of subject matter jurisdiction did not toll a state statute of limitations.
Plaintiff does, however, claim that his action is not time barred. Although more than two years elapsed between February 25, 1981 and plaintiff's filing of his second complaint on August 8, 1983, plaintiff argues that defendants had been fully aware of the existence and the nature of his claims because of the first complaint filed in April, 1982. This argument must be rejected. The fact that defendants may have been on notice as to plaintiff's causes of action does not toll the running of the statute; only the refiling of the complaint within the statutory period could have done that.
Plaintiff also argues that after his first complaint was dismissed on November 24, 1982, he attempted to preserve his rights by diligently pursuing his cause of action. This argument is belied by the facts and must be rejected. At the time of dismissal, plaintiff could have either obtained local counsel and moved for reconsideration of the order of dismissal, appealed the dismissal, or, at the very least, refiled the complaint within the three months then remaining on the applicable statute of limitations. Plaintiff chose none of these options, but instead allowed the statutory period to expire before refiling the complaint.
In any event, a party's diligence will delay the running of the statute only when such party, in spite of due diligence, remains unaware of his cause of action. Grabowski v. Turner & Newall, 516 F. Supp. 114, 118 (E.D. Pa. 1980), aff'd sub nom. DaMato v. Turner & Newall, Ltd., 651 F.2d 908 (1981). In such case, the statute begins to run only when a reasonably diligent person would have discovered the facts and circumstances upon which the right of recovery is based. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267 (1963). That is quite different from the instant case. Here, plaintiff admits in his complaint that he was fully aware of his cause of action by February 25, 1981. Plaintiff hardly can be heard to claim diligence when, armed with such knowledge, he failed to properly institute the action before February 25, 1983.
Pennsylvania has adopted the general rule set forth by the United States Supreme Court in Willard v. Wood, 164 U.S. 502, 523, 17 S. Ct. 176, 181, 41 L. Ed. 531 (1896) that:
if a plaintiff mistakes his remedy, in the absence of any statutory provision saving his rights, or where from any cause a plaintiff becomes nonsuit or the action abates or is dismissed, and, during the pendency of the action, the limitation runs, the remedy is barred.