Commercial Credit Co. v. County of Northumberland

• Decision Date: 27 June 1938
• Citation: 23 F. Supp. 747
• Parties: COMMERCIAL CREDIT CO. v. COUNTY OF NORTHUMBERLAND.
• Court: U.S. District Court — Western District of Pennsylvania

23 F. Supp. 747

COMMERCIAL CREDIT CO. v. COUNTY OF NORTHUMBERLAND.

District Court, M. D. Pennsylvania.

June 27, 1938.

Chas. E. Berger, of Pottsville, Pa., Duane R. Dills and Jack J. Levinson, both of New York City, and J. A. Welsh and S. L. Gribbin, both of Shamokin, Pa., for plaintiff.

Fred B. Moser, of Shamokin, Pa., and Samuel Gubin, of Sunbury, Pa., for defendant.

JOHNSON, District Judge.

The questions presented are raised by a rule to amend the statement of claim and by an affidavit of defense raising questions of law.

The action is assumpsit on a written contract under seal between the Poole Engineering and Machine Company and the County of Northumberland, Pennsylvania, dated on June 13, 1931. The contract provides for the sale of voting machines to the County and for payment to the Poole Company of certain sums alleged to be due under the contract, on December 1, 1931.

The summons was issued and the statement of claim filed October 16, 1937. The statement alleges, inter alia, that the Poole Company was adjudicated a bankrupt on February 9, 1932, in the United States District Court for the District of Maryland, and that George W. Manley duly qualified as Trustee. The statement also alleges that the Trustee of the bankrupt company assigned all of the company's right, title, and interest under its contract with the County of Northumberland to the plaintiff, Commercial Credit Company.

On February 14, 1938, the plaintiff filed a motion to amend the caption of the case to conform with the facts alleged in the statement. The proposed amendment reads: "George W. Manley, Trustee in Bankruptcy of the Poole Engineering and Machinery Company, to the use of Commercial Credit Company, Plaintiff vs. County of Northumberland, Defendant." A rule to show cause why this amendment should not be allowed was granted on February 16, 1938, and on April 1, 1938, the defendant filed an affidavit of defense, which raises the same question.

The defendant contends that the amendment introduces a new cause of action and is therefore barred by the Statute of Limitations.

The rule that a new cause of action barred by the Statute cannot be introduced by amendment is well settled in Pennsylvania. Wright v. Hart's Administrator, 44 Pa. 454; Andrews v. Marsden, 278 Pa. 56, 122 A. 171, 29 A.L.R. 636. However, under the Act of March 21, 1806, 4 Sm.L. 326, § 6, 12 P.S.Pa. § 531, and the Act of May 4, 1852, P.L. 574, § 2, 12 P.S.Pa. § 533, the court may permit at any stage of the proceedings, an amendment changing or adding the names of any party when it appears that a mistake or omission has been made. An amendment may be made under these acts even though the Statute of Limitations has run, provided it does not change the cause of action originally set forth. Leland v. Firemen's Ins. Co., 127 Pa.Super. 533, 193 A. 475.

In the case at bar, the contract is under seal, which is a "specialty", and is expressly omitted from the operation of the Statute of Limitations by the terms of the Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S.Pa. § 31. Such an...