I, therefore, believe that the period of sixty (60) days prior to the date of trial, which has been agreed upon by counsel, is a fair, reasonable and just period of time for any additional person or persons to request leave to join as party-plaintiffs in the within action. Such stipulation is, therefore, approved.
The third question argued by the defendant and which is before the Court for consideration is -- Does the Pennsylvania Statute of Limitations upon a contract without specialty, or an action in a nature of debt, apply to an action for overtime wages under the Fair Labor Standards Act, and, as a result thereof, should the actions in the instant case be disregarded to the extent that it asserts a right of recovery for any period greater than six years before the suit was filed?
Since there is no federal statute of limitations limiting time within which suits may be filed, under the provisions of Section 16(b), 29 U.S.C.A. § 216(b), of the Fair Labor Standards Act, the federal courts will apply the statute of limitation in the state where the suit is pending. Republic Pictures Corp. v. Kappler, 8 Cir., 151 F.2d 543; Keen v. Mid-Continent Petroleum Corp., 63 F.Supp. 120; 157 A.L.R.A. 545; Loggins et al. v. Steel Const. Co., 5 Cir., 129 F.2d 118; Culver et al. v. Bell & Loffland, Inc., 9 Cir., 146 F.2d 29.
The statute of limitations in Pennsylvania for an action of contract without a specialty, or an action in debt, is six years. Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 Purdon's Penna.Statutes Annotated, § 31.
Since the instant case was filed on December 6, 1945, it is ordered that the suit be dismissed as to any and all claims for overtime wages earned prior to December 6, 1939.
It is finally contended by the defendant that a claim for overtime or twice the normal rate of time worked on the '7th consecutive day' has no relation to the Fair Labor Standards Act nor acts thereunder. Careful consideration has been given to the provisions of the Fair Labor Standards Act, more particularly Section 7(a), 29 U.S.C.A. § 207(a), and the only requirement which is set forth in the Act is that the employee receives compensation for his employment in excess of the hours specified at a rate not less than one and one-half times the regular rate for which he is employed. This provision of law does not purport to regulate wages but imposes a penalty on overtime work regardless of what the rate of pay might be. Carleton Serew Products Co. v. Fleming, 8 Cir., 126 F.2d 557.
It does not appear to me, from the specific language of the statute, that any basis exists upon which a claim for double time for the '7th consecutive day' may be made, and under the provisions of the Fair Labor Standards Act, no such right of recovery can be had. In the case before the Court for consideration, the cause of action of any of the plaintiffs is dismissed in so far as he seeks to recover for overtime compensation at twice the normal rate for time worked on the '7th consecutive day.' Steiner v. Pleasantville Construction, Inc., 182 Misc. 66, 49 N.Y.S.2d 42.
Although the defendant did not argue or refer in its brief to the request made that the plaintiffs be required to furnish a more definite statement as to the extent and nature of the employment of the plaintiffs, I believe the information desired is solely and wholly, as far as definiteness is concerned, within the knowledge of the defendant. As a result thereof, no useful purpose could be gained in directing the plaintiffs to make available the information requested in Paragraph 7 of the motion to dismiss since the plaintiffs would be compelled to file a motion for interrogatories or a bill of discovery against the defendant to secure the necessary data that would be required in connection therewith. If this were done, the Court would be compelled to grant the motion filed. Hickman v. Taylor, 3 Cir., 153 F.2d 212.
The request of the defendant for a more definite statement is, therefore, refused.
The defendant further contends that the action should be dismissed for the reason that the complaint sets forth that the plaintiffs are executive employees and, as a result thereof, are not covered by the Fair Labor Standards Act. Title 29 U.S.C.A. 2 § 13(a)(1).
In this connection it is impossible for the Court to state as a matter of law that the plaintiffs do not have a right of recovery since at the time of trial one or all of the plaintiffs might be able to prove that they do not fall within the administrative definition of an employee employed in the bona fide executive capacity which satisfies the definition promulgated by the Administrator. As a result thereof, the motion to dismiss on the ground that the plaintiffs are executive employees and do not, therefore, have a right of recovery is refused. Schmidt v. Emigrant Industrial Savings Bank, 2 Cir., 148 F.2d 294; Fanelli v. U.S. Gypsum Co., 2 Cir., 141 F.2d 216; Smith et al. v. Porter et al., 8 Cir., 143 F.2d 292; Block v. Bell et al., 63 F.Supp. 863.
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