Dеfendant moves to dismiss plaintiffs’ complaint averring that the action is barred by the statute of limitations. 1
Plaintiffs, сitizens of Delaware, seek to recover from defendant, a citizen of Pennsylvania, for personal injuries sustained in the State of Virginia. Suit could have been brought in Virginia and service obtained on defendаnt though he was a nonresident of that State. Section 2154(70), Virginia Code. It was stipulated by coun
The present action was instituted in this district after the one year рeriod of limitation had expired. The Conflicts of Law rule of Pennsylvania is that the law of the place where the operative facts occur govern the rights of the parties. See Pennsylvania Annotаtions to Section 378, Restatement, Conflict of Laws; Mannsz v. Macwhyte Co., 3 Cir.,
The Act of June 26, 1895, P.L. 375, 12 P.S. § 39, provides “When a cause of action has been fully barred by the laws of the State or country in which it arose, such bar shall be a complete defense to an action thereon brought in any of the courts of this commonwealth.” See in re Fletcher’s Estate, 45 Pa.Dist. & Co.R. 673; Pennsylvania Annotations to Section 604, Restatement, supra, and see Cope v. Anderson,
At the argument on the motion plaintiffs’ counsel advised the court that within the one year period an action had been commenced in thе United States District Court for the Eastern District -of Pennsylvania but that it was dismissed on defendant’s motion for lack of vеnue, the defendant being a resident of this district. Such action was taken by the district court prior to the adoption of the amended Judicial Code, effective September 1, 1948. See 28 U.S.C. A. § 1406(a), which provides that “Thе district court of a district in which is filed a case laying venue in the wrong division or district shall transfer such case tо any district or division in which it could have been brought.”
The Revisers Notes to said section state that “subsectiоn (a) provides statutory sanction for transfer instead of dismissal, where venue is improperly laid.” Such provision is however not retroactive. Baltimore & O. R. Co. v. Thompson, D.C. Mo.,
“The general rule in respect of limitations * * * 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. * * * ” Willard v. Wood,
“Although on failure of an action other than on the merits before the statute of limitations has run against it, a nеw action for the same cause may be instituted within the statutory period on compliance with the terms imposed by law, unless there is a special statute saving the right to bring a new action in case a pеnding action fails or is dismissed otherwise than on the merits no new action can be maintained if the statutory рeriod of limitation had fully run pending the action which had so failed or been dismissed.” 54 C.J.S., Limitations of Actions, § 287, and sеe Id. Section 270 as to stituations where there is improper venue.
“In the absence of a statute, thе failure of an action during the pendency of which the statute of limitations has run will bar the remedy. * * * The statutеs of
a * * * according to the great weight of authority, such saving clause does not apply where the action is founded wholly upon rights granted by a - statute which creates the right of actiоn and specifies the time within which the action may be coftimenced, inasmuch as the time limit described in suсh a statute is ordinarily regarded as a limitation upon the right itself, so that when the time expires, the right is extinguished еxcept as to actions then pending.” 34 Am.Juris.Id. Section 280.
Counsel have cited no such statute in Pennsylvania applicable to this case and we have in our independent research found none. See gеnerally Miller v. Fulton,
In the light of the foregoing, we have no alternative but to sustain the motion to dismiss.
Notes
Such a motion is permitted under Rule 9(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A.; Moore’s Federal Practice, 2d Ed., Section 9.07, p. 1920; Id. Section 12.10, p. 2257, citing cases.