4. Plaintiff contends that the Notes are negotiable instruments and are governed by Pennsylvania's six-year statute of limitations, as provided in 13 Pa.C.S.A. § 3118(a) (Supp. 1996), which allows that "an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if the date is accelerated, within six years after the accelerated due date." Id. According to plaintiff, this specific provision supersedes any otherwise applicable statute of limitations. See 42 Pa.C.S.A. § 5501(b) (1981) (stating that provisions of Title 13 shall control over any provision of Title 42 with which it conflicts). Plaintiff claims, in the alternative, that if the Notes are not negotiable instruments, they are subject to Pennsylvania's four-year statute of limitations, which applies to actions "upon a negotiable or non-negotiable bond, note or other instrument in writing." 42 Pa.C.S.A. § 5525(7) (Supp. 1996);
5. In evaluating a motion to dismiss the court accepts the veracity of the plaintiff's allegations and will not dismiss the complaint unless the plaintiff clearly will not be able to prove any set of facts in support of its claim which would entitle it to relief. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In addition to looking to the complaint, the court may also look to exhibits attached to the complaint. See In re Westinghouse Securities Litigation, 90 F.3d 696, 707 (3d Cir. 1996);
6. Because this is a diversity action, the court will apply the choice of law rules of Pennsylvania, the state in which this Court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). "Pennsylvania courts generally honor the intent of the contracting parties and enforce choice of law provisions in contracts executed by them." Kruzits v. Okuma Mach. Tool. Inc., 40 F.3d 52, 55 (3rd Cir. 1994) (citations omitted). In the instant case, the parties provided in the Partnership Agreement that Texas substantive law applies. See P 11.4 ("This Agreement, the application or interpretation hereof and the liability of the parties hereto shall be governed exclusively by the laws of the State of Texas.").
Because Texas law provides that the law of the forum state controls as to procedural matters, including statute of limitations, State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 230-231 (Tex.), cert. denied, 356 U.S. 967, 2 L. Ed. 2d 1074, 78 S. Ct. 1006 (1958); Hollander v. Capon, 853 S.W.2d 723, 727 (Tex. Ct. App. 1993), this Court applies the substantive law of Texas and the statutes of limitations of Pennsylvania;
7. Because plaintiff brought this action on December 29, 1995, within three years of December 31, 1992, the date defendant defaulted on the first Note, its claims upon all three Notes will not be barred if either the six- or four-year statute of limitations applies;
8. The six-year statute of limitations, provided in 13 Pa.C.S.A. § 3118 (a) and applicable to negotiable instruments, governs this action because the Notes are negotiable instruments. A "negotiable instrument" is
an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it: