most favorable to the plaintiff, it may have been appropriate to state that there was a suggestion of condonation by the Executive Board in accepting Patterson's version of the incident, such was hardly appropriate on the basis of a trial record which failed to show that the Executive Board had a duty to become informed of plaintiff's version or physical condition, or did, in fact, know of his version. In the absence of knowledge of Maier's version, it is impossible to conclude that there was a selection of Patterson's version over plaintiff's. Once plaintiff sued the Union, it had a duty to defend its interests.
Accordingly, for the reasons stated, a reasonable jury could not have found that Maier's LMRDA claim warranted relief. Thus, a directed verdict on Count II was proper.
C. Dismissal of Patterson in His Official Capacity -- Count I
Plaintiff, without reference to the record, contends there was sufficient evidence from which the jury could have found that Patterson, while engaged in a union meeting and acting within the scope of his authority, attacked plaintiff in an effort to punish him and interfere with his protected right of free speech. Plaintiff again relies on the court's previous decision of March 25, 1981, see supra, n.4, denying defendant's motion for summary judgment. As previously stated, this reliance is totally misplaced. An earlier denial of a motion for summary judgment is not in any way a barrier to later consideration of a motion for a directed verdict. LaRue v. General Telephone Co. of Southwest, 545 F.2d 546 (5th Cir. 1977), (defendant's renewed motion for summary judgment, after plaintiff's evidence, treated as motion for directed verdict). See also 5A Moore's Federal Practice, para. 50.03 at 50-49 (2d ed. 1982).
In the instant case, plaintiff's testimony at trial was not sufficient to show that the actions of Patterson interfered with plaintiff's union rights as a member and officer, nor that plaintiff acted as the Union's agent. See discussion, supra. Furthermore, even assuming the meeting in Patterson's office could be considered a "Union meeting," see supra, n.5, an assault and battery on a union member arising out of a personal feud may not be vindicated under the bill of rights section contained in LMRDA. Tomko v. Hilbert, 288 F.2d at 629 (3d Cir. 1971).
For the above reasons and those made in granting the Rule 50(a) motion on June 17, 1981, plaintiff's motion for new trial as to Counts I, II and IV is denied.
III. DELAY DAMAGES
By memorandum and order filed August 7, 1981, 91 F.R.D. 127, the court denied plaintiff's motion to add damages for delay pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure.
The court treated plaintiff's motion as one to "alter or amend the judgment" under Fed. R. Civ. P. 59(e). This rule requires such a motion to be served "no later than 10 days after entry of the judgment." Since judgment was entered thirty-one days before service of plaintiff's motion, the motion was denied.
In light of the Third Circuit's decision in Hayden v. Scott Aviation Assoc., 684 F.2d 270 (3d Cir. 1982), holding that Rule 60(a) Fed. R. Civ. P. rather than Rule 59(e), governs a motion to correct the omission of Rule 238 delay damages, plaintiff's motion must be reconsidered and is hereby GRANTED. See also Jarvis v. Johnson, 668 F.2d 740 (3d Cir. 1982) (Pennsylvania Rule of Civil Procedure 238 applies in diversity cases). Under Rule 60(a), "clerical mistakes in judgments, orders, or other parts of the record . . . may be corrected by the court at any time of its own initiative or on the motion of any party . . . ." Under Rule 238 the computation of prejudgment interest after a verdict is a clerical matter in which there is no room for discretion. Hayden, 684 F.2d at 272. Accordingly, plaintiff was not time-barred from an award of delay damages and the judgment shall be amended to reflect the sum of $503.00 as requested.
An appropriate order follows.
AND NOW, this 1st day of December, 1982, for the reasons stated in the accompanying memorandum and at trial, it is hereby ORDERED that:
1. Plaintiff's motion for a new trial as to counts I, II and IV of his complaint is DENIED.
2. Plaintiff's motion for delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure, is GRANTED, nunc pro tunc. The judgment is hereby amended to add $503.00 to the principal amount of the jury award in plaintiff's favor and against William Patterson.
3. Final Judgment is entered in favor of plaintiff on count III and in favor of defendants on counts I, II and IV.