Litts v. Refrigerated Transport Co., Inc., Civ. No. 71-399.
Decision Date | 19 November 1973 |
Docket Number | Civ. No. 71-399. |
Citation | 375 F. Supp. 675 |
Parties | Harold LITTS, Plaintiff, v. REFRIGERATED TRANSPORT CO., INC., Defendant and Third-Party Plaintiff. GEORGIA BROILER CORPORATION, Defendant, v. GLIDDEN-DURKEE DIVISION SCM CORPORATION and Pillsbury Farms, Inc., Third-Party Defendants, v. GEORGIA BROILER CORPORATION, Third-Party Defendant. |
Court | U.S. District Court — Middle District of Pennsylvania |
Levy, Preate & Purcell, Scranton, Pa., for plaintiff.
John R. Lenahan, Michael J. Eagen, Jr., James J. Haggerty, Scranton, Pa., for defendant.
Plaintiff, Harold Litts, instituted this action, sounding in tort, on September 16, 1971, against defendants Refrigerated Transport Co., Inc., and Georgia Broiler Corporation. Service of process was attempted, but not effected, on Georgia Broiler. Subsequently, Refrigerated Transport, (seeking to obtain service of Georgia Broiler), filed a third-party complaint against Glidden-Durkee Division, SCM Corporation, and Pillsbury Farms, Inc.1 Pursuant to a stipulation between the parties, the complaint against Pillsbury Farms was withdrawn, and on April 27, 1973, after obtaining leave of court, Refrigerated Transport filed a third-party complaint against Georgia Broiler. It is not disputed that Georgia Broiler was dissolved on May 13, 1970, more than two years prior to the filing of the third-party complaint against it.
It is a precept of the common law that all legal proceedings brought by and against a corporation abate upon its dissolution. Oklahoma Natural Gas Co. v. Oklahoma, 273 U.S. 257, 259-260, 47 S.Ct. 391, 71 L.Ed. 634 (1927). Today, however, the harshness of the common law on creditors and shareholders has been abrogated in every American jurisdiction by statutes which extend the corporate life for the purpose of prosecuting and defending suits. See, Note, Suits By and Against Dissolved Corporations, 48 Iowa L.Rev. 1006 (1963).
Georgia's response2 to the common law is enacted in Ga.Code Ann. § 22-1325, which provides:
The question thus presented is whether a dissolved Georgia corporation may be impleaded as a third-party defendant after the two-year period of extension has expired.
Under Rule 3, Fed.R.Civ.Pro., "a civil action is commenced by filing a complaint with the court." Although the third-party complaint against Georgia Broiler was not filed until after the two-year extension period, the third-party plaintiff asserts that the filing of the original complaint by Litts against Georgia Broiler on September 16, 1971 tolled the statute. While the commencement of Litts' action against Georgia Broiler was timely, it cannot be said that since the statute was tolled as to Litts, it was tolled as to the whole world.3 Although the alleged liability of Georgia Broiler to Refrigerated arises out of the same set of facts as does the alleged liability of Refrigerated to Litts, the rights asserted by each party are essentially different. The claim of Litts is based on the alleged tortious action of Refrigerated, while the claim of Refrigerated is one seeking indemnity or contribution. Rule 14(a), Fed.R.Civ.P.; 3 Moore, Federal Practice §§ 14.03 1, 3 and 14.04 (1972). To hold in this instance that the Georgia statute was tolled by the commencement of Litts' action so as to open up a claim by Refrigerated against Georgia Broiler would do violence to the reason behind the statute:
4
The third-party plaintiff also contends that the expiration of a statute of limitations on the cause of action asserted by the original plaintiff against the original defendant has no effect on the right of that defendant as a third-party plaintiff to implead a third-party defendant. That theory apparently has its genesis in the fact that, generally, the cause of action instituted by a third-party plaintiff is governed by a different statute of limitation than that limiting the action asserted by the original plaintiff.
3 Moore, Fed. Practice ¶ 14.09 at 534-35 (1972). See also Corning Glass Works v. Puerto Rico Water Resources Authority, 396 F.2d 421 (1st Cir. 1968); Sabat v. Pennsylvania Railroad Co., 157 F.Supp. 325 (E.D.N.Y.1958).
Moreover, it must be emphasized that the corporate extension statute is not a statute of limitations. Bazan v. Kux Machine Co., 52 Wis.2d 325, 190 N. W.2d 521 (1971). For the purposes of this case, the importance of that statement seems to lie in this: A statute of limitations begins to run upon the accrual of a party's cause of action, while the corporate statute starts running upon the dissolution of the corporation.
Research has only discovered one Georgia case construing § 1325. In Southern Land, Timber and Pulp Corp. v. United States, 322 F.Supp. 788 (N.D. Ga.1970) it was held that a suit instituted by a corporation, more than three years after its dissolution, against the United States for a tax refund was barred by § 1325. In addition, although § 1325 is patterned after § 98 of the Model Business Corporation Act,5 no case construing that Act has been found directly in point. However, in Alpha Portland Cement Co. v. MacDonald Engineering Co., 233 F.Supp. 647 (E.D. Pa. 1964), a similar Pennsylvania statute was construed in light of nearly identical facts so as to bar service...
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