and leave to amend should ordinarily be granted when a complaint is dismissed for failure to state a claim. See 3 Moore's Federal Practice para. 15.10. The defendant will not be prejudiced if an amendment is allowed at this early stage of the litigation, so leave to amend should be permitted. See Dozier v. Chupka, 395 F. Supp. 836, 848 (S.D. Ohio 1975).
Since the plaintiff presumably can correct the deficiencies in the complaint under Griffin v. Breckenridge, supra, we also must consider the defendant's additional challenges to the § 1985(3) claim. In fact, granting leave to amend is a useless gesture if a properly pleaded § 1985(3) claim nevertheless must be dismissed. The defendant's first argument is that a single corporation cannot conspire with itself in violation of § 1985(3). This seemingly simple argument has resulted in inconsistent lower court decisions. Some courts have held that a complaint naming corporate officials and the corporation itself does state a claim under § 1985(3): Jackson v. University of Pittsburgh, 405 F. Supp. 607 (W.D. Pa. 1975); Rackin v. University of Pennsylvania, 386 F. Supp. 992, 1005 (E.D. Pa. 1974). Other courts have refused to recognize such conspiracies: Girard v. 94th Street and Fifth Avenue Corp., et al., 530 F.2d 66 (2d Cir. 1976), affirming 396 F. Supp. 450 (S.D.N.Y. 1975); Baker v. Stuart Broadcasting Corp., 505 F.2d 181 (8th Cir. 1974); Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Cole v. University of Hartford, 391 F. Supp. 888 (D. Conn. 1975).
These cases indicate that the size of the corporation, the number of acts of discrimination, and the number of persons or entities involved in making corporate decisions must be considered in applying § 1985(3) to a single firm conspiracy. Here the defendant is a very large corporation with numerous separate offices, the complaint alleges a broad policy of discrimination rather than a single discriminatory act, and the plaintiff is not challenging a specific, formally adopted corporate policy. Moreover, the complaint alleges the involvement of franchisees who are not directly controlled by the defendant, Hertz Corporation. These allegations bring this case closer to the factual situation in Rackin v. University of Pennsylvania, than to the facts in the Girard and Dombrowski line of cases. At any rate, the allegations are sufficient to withstand a motion to dismiss. See Beamon v. W. B. Saunders Co., 413 F. Supp. 1167 (E.D. Pa. 1976) (Slip opinion at 15).
Hertz next challenges the § 1985(3) claim on the basis of the statute of limitations. The limitations period for actions brought under § 1985(3) must be determined by reference to the most nearly analogous state statute of limitations. Young v. International Telephone and Telegraph Co., 438 F.2d 757 (3d Cir. 1971). In Pennsylvania, district courts have split in deciding what limitations provision is most applicable to employment discrimination claims. Several cases from the Western District of Pennsylvania have applied the two-year statute of limitations for tort actions to employment discrimination cases. (12 P.S. § 34) Davis v. United States Steel Corp., 405 F. Supp. 394, 12 F.E.P. 1 (W.D. Pa.1976); Wilson v. Sharon Steel Corp., 399 F. Supp. 403 (W.D. Pa. 1975). Judge Bechtle of this District recently expressed his agreement with these decisions in Presseisen v. Swarthmore College, 71 F.R.D. 34 (E.D. Pa. 1976). On the other hand, three cases from the Eastern District of Pennsylvania have held that Pennsylvania's six-year statute of limitations for actions on contracts should be applied in employment discrimination cases. Beamon v. W. B. Saunders Co., 413 F. Supp. 1167 (E.D. Pa. 1976); Dudley v. Textron, Inc., 386 F. Supp. 602 (E.D. Pa. 1975); Jones v. United Gas Improvement Corp., 383 F. Supp. 420 (E.D. Pa. 1974).
We believe that the cases applying the six-year statute of limitations are more persuasive. To begin with, certain practical considerations involving the relationship between the Civil Rights Acts and Title VII call for a relatively long statute of limitations in employment discrimination cases brought under § 1981 or § 1985(3). As stated by Judge Fullam in Beamon v. W.B. Saunders Co., supra :
"It is apparent that, as a practical matter, if it is determined that a relatively short statute of limitations, say less than three years, is applicable in § 1981 employment discrimination cases, the natural effect of this decision will be to force litigants in employment discrimination cases to file their § 1981 causes of action in the federal courts before EEOC's Title VII mandated involvement in the case has been completed. It is clear from both the Title VII statutory provisions, and the legislative history of that Act, that Congress intended that individuals should not be required to sue in employment discrimination cases until the administrative review process has been completed." (413 F. Supp. at 1174) (footnotes and citations omitted).