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Mazzanti v. Merck and Co.

August 9, 1985

PATRICIA MAZZANTI
v.
MERCK AND COMPANY, INC.; PATRICIA J. MAZZANTI, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, (D.C. Civil Action No. 84-1902)

Opinion OF THE COURT

Before: SEITZ, HIGGINBOTHAM and SLOVITER, Circuit Judges.

Per Curiam

In this diversity action we must predict which of the Pennsylvania statutes of limitations the Pennsylvania Supreme Court would apply to an action for tortious interference with an employment contract. Our review is plenary.

On April 20, 1984, Patricia J. Mazzanti (plaintiff) filed a complaint against Merck & Company, Inc. (defendant) alleging a Pennsylvania common law claim for tortious interference with plaintiff's employment contract with PHP Graphic Arts Corporation (Graphic). Graphic had terminated plaintiff's employment on February 1, 1980. Defendant moved to dismiss the complaint on the basis of Pennsylvania's two year statute of limitations. The district court granted the motion, and this appeal followed.

Plaintiff concedes here as she did in the district court that her claim accrued on February 1, 1980, and is barred if Pennsylvania's two year statute controls. She argues that the district court erred in not applying Pennsylvania's six year statute. Her argument goes this way:

The limitation period for civil actions in Pennsylvania is controlled by Sections 5501 to 5536 of the Judicial Code, 42 Pa. Cons. Sat. Ann. § 5501 et seq. (Purdons 1981) (amended 1982, Dec. 20, P.L. 1409, No. 326, art. II, sec. 201). The 1982 amendments to that Act admittedly do not determine the outcome of the instant action because the cause of action had accrued prior to the effective date of the amendments to the controlling sections. See Section 403 of Act 1982, Dec. 20, P.L. 1409, No. 326 (amendments [amendments] to sections 5524 and 5527 became effective prosecutively sixty days after the date of the Act).

For the sake of completeness, attention is called to the addition of a seventh paragraph in the 1982 amendment to 42 Pa. C.S.A. § 5524. It provides:

(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud except an action or proceeding subject to another limitation specified in this subchapter.

Both parties concede that had that paragraph been in effect at the accrual date of this action, it would have required that the two year statute of limitations be applied.

In our case the district court held that Pennsylvania's two year statute, applicable to actions for "taking, detaining or injuring personal property," 42 Pa. Cons. Stat. Ann. § 5524(3), was controlling. Plaintiff argues that Pennsylvania's residual six year statute governs this case. 42 pa. Cons. Stat. Ann. § 5527(6). It provides:

The following actions and proceedings must be commenced within six years:

(6) Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation).

The basic issue here is whether the claim asserted is "subject to another limitation" period. Defendant says the two year statute (42 Cons. Stat. ...


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