The opinion of the court was delivered by: GOURLEY
This is a veteran's action for damages and/or reinstatement to former employment under the Selective Service and Training Act of 1940, 50 U.S.C.A. Appendix, § 459(g)(4).
Although dealing with a veteran with an exemplary military background, the trial was fraught with much bitterness and unusual and extraordinary difficulties. The veteran insisted on his right to proceed to trial without aid of legal counsel although the Court, in consultation with the President of the local Bar Association, encouraged the veteran to permit legal counsel to extend aid and assistance. Accordingly, divers unorthodox procedures and trial supervision were required.
The veteran was stationed at Pearl Harbor at the time of the merciless and infamous bombardment by the Japanese on December 7, 1941. The veteran's valor and extraordinary courage in the face of overwhelming odds exemplified a most commendable devotion and dedication to American freedom. His honorable discharge certificate reflects the following:
'Headquarters 17th Air Base Group (Reinforced) Office of the Group Commander
'Hickam Field, T.H., December 12, 1941
'To: The Officers and Men of the 17th Air Base Group (Reinforced).
'This Copy For: Private Stephen L. Carmalt.
'2. Your actions at that time and at all times since have been highly commendable. You fought valiantly against a foe who had superiority in everything but courage. In total disregard of personal safety you fought back with any weapons you could find. Your cool headed bravery in the operation of these weapons succeeded in inflicting considerable losses on your attacker. Since the attack you have worked long hours and have conducted yourselves admirably.
'3. I commend you most highly for the splendid spirit and high courage you have shown.
Wm. L. Boyd Lt. Col., Air Corps Commanding'
A review of the record and all exhibits requires the conclusion that at the time the veteran entered the service of his country he was an employee of the defendant and that subsequently, upon discharge from military service, he requested reinstatement to his former employment.
The veteran was able and competent to perform the type of employment that he pursued at the time of his entry in the military service and the defendant, without cause or justification, refused the veteran reinstatement to employment when the veteran was physically and mentally qualified to pursue tasks and responsibilities that might be assigned.
It is to the credit of the veteran and to the undoubted benefit of the defendant that he applied great diligence after the defendant refused to grant him reemployment to secure remunerative employment with other persons during the period that a legal obligation was owned the veteran for reemployment by the defendant.
The defendant advances the legal thesis that since a delay in filing said action of approximately seventeen years has expired, the complaint should be dismissed on grounds of laches. It is noteworthy, however, that since October 9, 1945, the hiatus was created by the veteran's disability wherein he was rendered 100 per cent incompetent.
A Federal Court, sitting in equity, will be guided by state statutes of limitations, though not bound thereby, in determining whether suit should be dismissed for laches, Benedict v. City of New York, 250 U.S. 321, 39 S. Ct. 476, 63 L. Ed. 1005. In this connection, I shall take judicial notice of Pennsylvania law which permits persons under disability to bring an action after the removal of such disability, 12 Pa.P.S. § 35. Just as incompetency tolls the operation of the statute of limitations against an incompetent, it would follow as a necessary corollary that the doctrine of laches would not have application to an incompetent during his period of incompetency, Williams v. Williams et al., 7 Cir., 61 F.2d 257.
Upon evaluating the question of what prejudice, if any, has been suffered by the defendant as the result of the extended delay in filing suit, I find additional reason not to invoke laches against the plaintiff. Defendant was on notice of plaintiff's request for reemployment from the very inception of his discharge from the military service and, being presumed to have knowledge of the law, defendant in no way was subjected to any prejudice by the delay nor is there any evidence that the passage of time has in any way compromised defendant's ability to present its defense, Walker v. Mummert, 394 Pa. 146, 146 A.2d 289.
A most difficult and enigmatic problem exists, however, as to the amount of recovery to which the veteran is entitled. As a result of the harrowing experiences at Pearl Harbor and while valuably rendering further service in the islands of the South Pacific, the mental and physical pressures to which the veteran was subjected resulted in a gradual development of a condition which resulted in the Veteran's Administration declaring and determining on October 9, 1945, a 100 per cent service connected disability. I must conclude, therefore, that since October 9, 1945, the veteran is entitled to no recovery against the defendant for money damages nor can an order be entered which would require the defendant to reemploy the veteran. However, for the period from the date of discharge on April 21, 1943, until the date of the determination of permanent and service connected disability on October 9, 1945, I conclude that the veteran could have earned, if he had been reemployed by the defendant, the amount of $ 5,467.50 based upon his maximum earning capacity in said employment, Loeb v. Kivo et al., 2 Cir., 169 F.2d 346. During said period, based on the employment which the veteran pursued and as best I can evaluate all the evidence, the veteran earned in other employment the amount of $ 3,700 to which amount the defendant is entitled a credit or set off. Thus the veteran is entitled to payment of $ 1,767.50 due to the arbitrary refusal of the defendant to reemploy the veteran without basic cause or justification. In addition, I believe interest at the rate of 6 per cent per annum ...