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July 19, 1974

United Mine Workers Of America et al., Plaintiffs
Jones & Laughlin Steel Corporation et al., Defendants

Scalera, D.J.

The opinion of the court was delivered by: SCALERA


 In Count I of this action brought under § 301 of the National Labor Relations Act, 29 U.S.C. § 185, the plaintiffs United Mine Workers of America and Peter Yankura seek to have the court vacate an arbitration award discharging Yankura on the basis that the award was founded on false evidence. Plaintiffs also request that the court enter an order reinstating Yankura with full seniority, award him back pay, and grant punitive damages.

 In Count II, plaintiffs Yankura, Yesenosky and Hager seek compensatory and punitive damages for malicious prosecution. This court's jurisdiction over Count II, which arises under the laws of Pennsylvania, is said to be pendent to the court's jurisdiction over Count I.

 The complaint alleges that Ralph F. Willis gave a false written statement about an altercation which occurred between himself and the individual plaintiffs during a work stoppage, which statement was admitted into evidence before a joint board hearing, that defendants Mine Supervisor Skeens and Mine Foreman Tilton testified falsely at the hearing concerning the statement, and that it was only because of this statement that the umpire entered an award affirming the discharge of Yankura.

 The complaint further alleges that at the insistence of defendant Skeens, Willis brought criminal charges of assault and battery and surety of the peace against plaintiffs Yankura, Yesenosky and Hager and falsely testified at a probable cause hearing before a magistrate on July 6, 1972, as a result of which Yankura and Hager were bound over for trial.

 The complaint also alleges that on September 26, 1972, Willis gave a sworn deposition to Morley M. Azorsky, Esq., one of the attorneys for the plaintiffs, averring that the written statement he had given his supervisor, the criminal charges he had initiated, and the testimony he had given at the probable cause hearing before the magistrate had been false.

 On October 10, 1972, Willis was found dead in his car as a result of a gunshot wound, which the coroner found was self-inflicted.

 All three defendants have filed motions to dismiss the complaint or in the alternative to strike portions of the complaint.

 Defendants seek dismissal of Count I on the basis that it was untimely filed. Defendants assert that if Count I is dismissed, Count II must also be dismissed because it arises under the state law and this court has no jurisdiction to hear it other than as a pendent jurisdictional matter. Even if Count I is not dismissed, defendants seek dismissal of Count II on the basis that it may not be properly considered to be within the pendent jurisdiction of this court. Dismissal of Counts I and II is also sought on the theory that a claim for relief has not been stated because the proof of all the allegations of the complaint is dependent upon an inadmissible statement.

 Defendant Skeens also moved to dismiss the complaint on the basis that Skeens had not been properly served under Pennsylvania law.

 Timeliness of Complaint

 Defendants contend that Count I of the complaint is barred by the applicable statute of limitations.

 Accepting as true all well-pleaded allegations of the complaint, as well as all reasonable inferences drawn therefrom, as we are required to do in a motion to dismiss, Park View Heights Corporation v. City of Black Jack, 467 F.2d 1208 (8th Cir. 1972), we must determine whether plaintiffs have stated a claim upon which relief could be granted in Count I which is not barred by the statute of limitations.

 The following facts are before us: The arbitration award was entered on September 6, 1972. *fn1" The statement of Willis, upon which plaintiffs are relying to set aside the arbitration award, was given to Mr. Azorsky twenty days later on September 26, 1972. The complaint was filed on August 8, 1973, approximately eleven months after entry of the arbitration award and ten and one-half months after the statement was given to Mr. Azorsky, one of the attorneys of record filing the complaint on behalf of plaintiffs.

 There is no statute of limitations provision governing § 301 suits in the federal law. The Supreme Court has held that the "timeliness of a 301 suit . . . is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." International Union v. Hoosier Cardinal ...

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