Berry v. Franklin Plate Glass Corp., Civ. A. No. 5035.

• Decision Date: 11 June 1946
• Docket Number: Civ. A. No. 5035.
• Citation: 66 F. Supp. 863
• Parties: BERRY v. FRANKLIN PLATE GLASS CORPORATION.
• Court: U.S. District Court — Western District of Pennsylvania

66 F. Supp. 863

BERRY v. FRANKLIN PLATE GLASS CORPORATION.

Civ. A. No. 5035.

District Court, W. D. Pennsylvania.

June 11, 1946.

John D. Meyer, of Pittsburgh, Pa., and Sidney S. Levine, of New York City, for plaintiff.

John M. Reed, of Pittsburgh, Pa., for defendant.

GOURLEY, District Judge.

This case comes before the Court on defendant's motion to dismiss the complaint for the reason that the complaint fails to set forth a cause of action against the defendant upon which relief can be granted.

This action is filed by Ida Berry, individually and as administratrix of the goods, chattels and credits of Olivia Marshall, deceased, against the Franklin Plate Glass Corporation.

It is set forth, inter alia, that during the year 1932, the defendant became the owner of a manufacturing plant within the jurisdiction of this Court and, in connection therewith, engaged in the manufacture of plate glass. That in connection with the furtherance of said business, the defendant in the year 1932, and during the whole of the period set forth in the complaint which gives rise to the alleged cause of action, discharged silica and waste from said plant in a careless, reckless and negligent manner. In addition thereto, the defendant caused the silica and waste to be stored or placed in high piles and banks within 700 feet of the residence of Olivia Marshall, unprotected from the weather and natural elements in the vicinity.

That during the period beginning in 1932, and for many years prior to said year, and to April 1939, the deceased, Olivia Marshall, resided in one of the dwellings which was located within the distance of 700 feet of the location of the plant of the defendant company and where the silica and waste were deposited. Between the years 1932 and April of 1939, the deceased, Olivia Marshall, not knowing the poisonous and obnoxious ingredients of said silica, which permeated the air in the vicinity of her home, was compelled to daily inhale great quantities of said silica. As a result of this condition, the respiratory system of the deceased was injured which caused her to permanently abandon her home in April of 1939, at which time she established a residence in the City of New York. The deceased continued to reside in the City of New York with her sister, Ida Berry, from April of 1939 until November 19, 1944, at which time it is claimed that as a result of infection of the throat, lungs and respiratory system of the deceased, said conditions progressed to the extent that it resulted in the death of Olivia Marshall on November 19, 1944.

Ida Berry instituted this action against the Franklin Plate Glass Corporation, in which a right of recovery is claimed individually and as administratrix of the estate of her sister, Olivia Marshall. Said cause of action was filed on October 2, 1945, and prior to the filing of an answer, the defendant filed its motion to dismiss the complaint in which it is claimed that the complaint fails to state a claim against the defendant upon which relief can be granted for the following reasons:

1. The complaint shows that the claim was barred by the statute of limitations of two years of the State of Pennsylvania in such cases made and provided by reason of the fact that it appears that the last exposure of decedent to the alleged silica and waste was not later than April, 1939, and the complaint was not filed until October 2, 1945.

2. The complaint does not show a cause of action in Ida Berry individually.

3. The complaint does not show any damages sustained by Ida Berry individually.

4. The complaint does not set forth any damages sustained for which Ida Berry, administratrix, is entitled to maintain an action.

There are three questions before the Court for consideration:

1. Under the Federal Rules of Civil Procedure, 28 U.SC.A. following section 723c, is it permissible to raise the question of the statute of limitations by a motion to dismiss?

2. Is the Federal Court bound to follow the construction placed by the Supreme Court of the Commonwealth of Pennsylvania upon the laws of the Commonwealth?

3. Under the laws of the Commonwealth of Pennsylvania, does the plaintiff in either her individual or administrative capacity have a right of action against the defendant?

In connection with the pleading of the statute of limitations and the motion to dismiss, Rule 9(f) of the Federal Rules of Civil Procedure provides: "(f) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter."

Rule 8(c) of the Federal Rules of Civil Procedure provides, inter alia, that in pleading to a preceding pleading, a party shall set forth affirmatively the statute of limitations if it constitutes an affirmative defense and has application to the facts at issue.

It has been held by this Court that where the allegations of time and place are averred in a pleading, whether a claim is barred by the statute of limitations may be determined by a motion to dismiss. Hartford-Empire Co. v. Glenshaw Glass Co., D.C., 47 F.Supp. 711.

It has also been held by the Supreme Court of the United States in the case of Flynn, Executor, v. New York, New Haven, & Hartford R. Co., reported in 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837, 72 A. L.R. 1311, that the Employers' Liability Act gives a right of action to the employee, or, in case of his death, to his personal representative for the benefit of the widow and children, and provides that no action shall be maintained unless commenced within two years from the day the cause of action accrued, and the right of a representative of an estate is derivative. As a result thereof, the right of action depends upon the continuance of a right in the injured employee at the time of his death, so if the right of the employee was extinguished before he died, by the lapse of the prescribed period, there was no right in his executor, on behalf of his widow and children.

It, therefore, appears that the decision of the Circuit Court, upon which absolute reliance has been placed by the plaintiff, has been overruled by the Supreme Court of the United States. However, it is necessary for the Court to first decide whether the interpretations of the Acts of Assembly should be made by this Court or if we are bound by the interpretations made by the courts of the Commonwealth of Pennsylvania.

It, therefore, is the opinion of the Court that the matters presented in the motion for dismissal are properly before the Court.

It is contended by counsel for the plaintiff that the complaint filed by the plaintiff, in both an individual and administrative capacity, is in accordance with the provisions of the law in the Commonwealth of Pennsylvania, and that the Court has jurisdiction of the cause of action by virtue of a decision of the Circuit Court in this District, in the case of Western Union Telegraph Co. v. Preston, 3 Cir., 254 F. 229.

The defendant contends that the cause of action filed by the plaintiff, in both her individual and administrative capacity, is barred by the statute of limitations and that no right of recovery, therefore, exists.

It is true that the Circuit Court in this District in the case of Western Union Telegraph Co. v. Preston, 3 Cir., 254 F. 229, held that the statute of limitations in a death case runs from the time of death and not from the date of the original tort which resulted in the decedent's death. It further appears that at the time this decision was filed by the Circuit Court, the question as to when the statute of limitations in a death case commences to run had never been interpreted by the Supreme Court in this Commonwealth. It further appears that said question had not been decided by the Supreme Court of the United States at the time the interpretation was made by the Circuit Court of Appeals in this District. However, this question has been presented to the Supreme Court of the United States, both as a general proposition of law and in an interpretation of a similar federal statute under the Merchant Marine Act, 46 U.S.C.A. § 861 et seq. as supplemented by the Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

In the case of Engel v. Davenport et al., 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813, it was held, inter alia, that a provision which provides that no action shall be maintained unless commenced within two years from the day the cause of action accrued, is one of substantive right, both setting a limit and necessarily implying that the action may be maintained, as a substantive right, within a period of two years.

The plaintiff has filed her cause of action in the District Court solely on the basis of diversity if citizenship, and the alleged right of recovery is not derived in any respect by virtue of any laws of the United States, said right of recovery, if any, being based on the laws of the Commonwealth of Pennsylvania. A question, therefore, arises whether or not a statute of limitations concerns merely the manner and the means by which a right to recovery, as recognized by the State, is enforced, or whether such statutory limitation is a matter of substance in the aspect that alone is relevant to the problem, namely, does it significantly affect the result of litigation for a Federal Court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a state court.

Conventional conflict of laws' characterization of matters as "procedural" or substantive" has little, if any, bearing upon whether a federal court in a diversity of citizenship suit is or is not to apply state law in cases where there is no applicable Federal Rule of Civil Procedure. In such cases it is more important and desirable for federal courts to achieve uniformity with State administration of state law. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719; Stoner v. New York...