Shapiro v. Paramount Film Distributing Corporation

• Citation: 274 F.2d 743
• Decision Date: 11 February 1960
• Docket Number: No. 13074.,13074.
• Parties: Merton SHAPIRO et al. v. PARAMOUNT FILM DISTRIBUTING CORPORATION et al., Appellants.
• Court: U.S. Court of Appeals — Third Circuit

274 F.2d 743 (1960)

Merton SHAPIRO et al. v. PARAMOUNT FILM DISTRIBUTING CORPORATION et al., Appellants.

No. 13074.

United States Court of Appeals Third Circuit.

Argued February 2, 1960.

Decided February 11, 1960.

Arlin M. Adams, Philadelphia, Pa., for appellants except 20th Century-Fox Film Corp.

John F. Caskey, New York City, for Twentieth Century-Fox Film Corp.

Wm. A. Schnader, W. Bradley Ward, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Royall, Koegel, Harris & Caskey, New York City, on the brief for Paramount Film Distributing Corp., Columbia Pictures Corp., Universal Film Exchanges, Inc.; United Artists Corp., RKO Radio Pictures, Inc.; and Twentieth Century-Fox Film Corp., appellants.

Louis J. Goffman, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., on the brief, for Warner Brothers Pictures Distributing Corp., and Stanley-Warner Management Corp., appellants.

William A. Gray, Philadelphia, Pa., on the brief, for William Goldman Theatres, Inc., appellant.

Arthur Littleton, John N. Schaeffer, Jr., Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief, for Fox Philadelphia Building, Inc., appellant.

Nochem S. Winnet, Philadelphia, Pa. (Fox, Rothschild, O'Brien & Frankel, Donald Brown, Daniel Lowenthal, Philadelphia, Pa., on the brief), for appellees.

Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.

PER CURIAM.

In this private treble damage action under the federal anti-trust laws, among other things, the defendants pleaded the statute of limitations as an affirmative defense. On October 5, 1959, in its pretrial order, the district court held that the Pennsylvania six year statute of limitations, 12 P.S. § 31, for actions on the case applied to all defendants except Fox Philadelphia Building, Inc. The court further said that: "This order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation." We allowed an interlocutory appeal by the defendants from said order November 4, 1959.

It is properly conceded that, except as to defendant Fox Philadelphia Building, Inc., the applicable Pennsylvania statute of limitations governs. It is further properly conceded that if the Act of March 26, 1785, 2 Sm.L. § 6 (12 P.S. § 44), does not apply, the six year Pennsylvania statute of limitations for actions in trespass on the case controls, subject to the question below raised regarding defendant Twentieth Century-Fox Film Corporation, and excluding Fox Philadelphia Building, Inc., as above stated.

In Gordon v. Loew's, Inc., 3 Cir., 1957, 247 F.2d 451 dealing with a similar situation, where there was no federal statute of limitations applicable to suits under the federal anti-trust laws, we held that the statute of limitations of the state in which the district court was sitting was to be applied by that court to federal anti-trust litigation. Chattanooga Foundry & Pipe Works v. City of Atlanta, 1906, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241; Bluefields S. S. Co. v. United Fruit Co., 3 Cir., 1917, 243 F. 1, 20, error dismissed, 1919, 248 U.S. 595, 39 S.Ct. 136, 63 L.Ed. 438.

Following the rule of Gordon our task is to ascertain whether the Pennsylvania statute of 1785 is to be enforced against these plaintiffs in the suit before us. And as was said in Gordon, 247 F.2d at page 455, "In determining that question we must, we believe, take that statute to have the meaning and scope which the New Jersey here, Pennsylvania courts have given it in relation to state suits analogous to federal antitrust actions."

As it happens the 1785 statute actually needs no interpretation by analogy, it is that clear on its face. It reads:

"All actions, suits, bills, indictments or informations, which shall be brought for any forfeiture, upon any penal act of assembly made or to be made, whereby the forfeiture is or shall be limited to the commonwealth only, shall hereafter be brought within two years after the offense was committed, and at no time afterwards; and that all actions, suits, bills or informations, which shall be brought for any forfeiture, upon any penal act of assembly made or to be made, the benefit and suit whereof is or shall be by the said act limited to the commonwealth, and to any person or persons that shall prosecute in that behalf, shall be brought by any person or persons that may lawfully sue for the same, within one year next after the offense was committed; and in default of such pursuit, that then the same shall be brought for the commonwealth, any time within one year after that year ended; and if any action, suit, bill, indictment or information, shall be brought after the time so limited, the same shall be void, and where a shorter time is limited by any act of assembly, the prosecution shall be within that time."

By its precise terms this law of Pennsylvania deals exclusively with rights created by the Assembly of that state. That statement is borne out by its title which reads: "An Act for the limitations of actions to be brought for the inheritance or possession of real property, or upon penal acts of Assembly." It presents a far more rigid limitation than the, comparatively speaking, all...