
    KRAUSHAAR v. LESCHIN.
    No. 3535.
    District Court, E. D. Pennsylvania.
    April 27, 1944.
    
      See also 4 F.R.D. 144.
    Maxwell Pestcoe, of Philadelphia, Pa., for plaintiff.
    Edward I. Weisberg, of Philadelphia, Pa,, for defendant.
   KIRKPATRICK, District Judge.

I do not think that, on the pleadings as they now stand, I can consider the question whether the action is barred by the statute of limitations.

The general rule is that a party must- plead the statute of limitations in order to avail himself of it, the reason being that it is an affirmative defense which, like most, may be waived. Rule 8 (c), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, confirms this principle and it is clear that, in general, the defense may not be raised by demurrer in the Federal Courts even though the bar is apparent upon the pleadings.

An exception to the foregoing general rule is to be found where the cause of action is one that does not exist at common law but is created by a statute which makes the bringing of the suit within a specified time a condition precedent to the existence of the cause of action itself. The distinction is between a substantive right and a procedural requirement. However, this exception does not apply to the present case, because this Court is bound by the law of Pennsylvania in matters involving both conflict of laws and substantive rights and, in Rosenzweig v. Heller, 302 Pa. 279, 153 A. 346, 348, the Supreme Court of Pennsylvania, with the precise question before it, held (a) that the New Jersey statute is a general statute of limitation and that the time limitation is not a “condition of the cause of action itself” and (b) that in such cases the “statute of limitation of the state of the forum controls the action.”

The defendant has called his motion both a motion for summary judgment and a motion for judgment on the pleadings and it is impossible to say which he intends it to be. However, I do not think that it makes much difference because what has been said applies equally in either case.

The motion is denied.  