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SEBER v. DANIELS TRANSFER CO.

October 1, 1985

CHARLES A. SEBER, JR., Plaintiff
v.
DANIELS TRANSFER COMPANY, a corporation, ROBERT MERVINE and CHARLES MERVINE, Defendants



The opinion of the court was delivered by: WEBER

 In accordance with the foregoing Opinion, Defendants' motion for judgment N.O.V. is DENIED. Costs shall be awarded to plaintiff and denied as to defendants.

 WEBER, D. J.

 Plaintiff filed this action in March 1984. The case was fraught with discovery disputes, but eventually came to trial by jury in late January and February 1985. Plaintiff alleged two causes of action: age discrimination under the Age Discrimination in Employment Act ("ADEA") 29 U.S.C. ยง 621 et seq., and wrongful discharge in that plaintiff was discharged from employment for reasons contrary to public policy. The jury returned a verdict for plaintiff only on the wrongful discharge count and awarded him $19,000 in compensatory damages and $16,250 in punitive damages.

 Defendants have filed a motion for judgment notwithstanding the verdict on three grounds. First, Charles Mervine and Robert Mervine claim that plaintiff's action is barred against them as individuals by Pennsylvania's two-year statute of limitations for tort actions. Second, all defendants seek to have plaintiff's unemployment compensation set off against his award for compensatory damages. Third, defendant Daniels Transfer Company seeks to have the punitive damages award set aside for lack of evidence of outrageous conduct. Defendants also have filed a bill of costs, or alternatively, ask that each side be required to bear its own costs. Plaintiff has responded to defendants' motions and bill of costs and filed his own bill of costs.

 I. DEFENDANTS' MOTION FOR JUDGMENT N.O.V.

 Defendants first obstacle in moving for judgment N.O.V., as plaintiff notes in his opposing brief, is to satisfy the requirements of Fed.R.Civ.P. 50. Section (b) provides that the moving party must have moved for a directed verdict at the close of all evidence before the court can entertain a motion for judgment N.O.V. See Mallick v. International Brotherhood of Electrical Workers, 644 F.2d 228 (3d Cir. 1981). Defendants did orally move to dismiss at the close of their case on January 31, 1985. We granted the motion as to all defendants except Daniels Transfer Company, Robert Mervine and Charles Mervine. We therefore find that defendants have properly preserved the merits of the statute of limitations argument raised in their motion for judgment N.O.V., to which we now turn.

 A. THE STATUTE OF LIMITATIONS

 Charles Mervine and Robert Mervine contend that the action against them is barred by the Pennsylvania two-year statute of limitations for tort injuries. On its surface their argument has merit. Plaintiff filed his original complaint on March 30, 1984, concerning a job termination occurring April 1, 1982, barely within the limitations period. This complaint names only Daniels Transfer Company and plaintiff's Teamsters Local. *fn1" The Mervines were not named until plaintiff filed a motion to join parties and Second Amended Complaint on August 6, 1984. Soon afterward plaintiff moved to join another defendant and filed a Third Amended Complaint. Defendants raised their statute of limitations defense generally in their answer to this last amended complaint.

 While we have no doubt that the Mervines were named beyond the two year deadline, we find that the statute does not bar their liability. Plaintiff may take advantage of Fed.R.Civ.P. 15 allowing relation back of amendments under certain conditions. Section (a) of Rule 15 requires us to freely grant amendments to serve justice. Rule 15(c) states:

 
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

 Plaintiff thus is entitled to have his August 6, 1984 second amended complaint relate back to his first, timely complaint if he shows both that the Mervines received some formal or informal notice of the suit by April 1, 1984 and that holding them liable is not otherwise prejudicial. The existence of prejudice is largely determined by two findings: whether the original party and the party added by amendment share an identity of interest, and whether the amendment was not unduly delayed. See generally, Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 492 (3rd Cir. 1978); Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir. 1974), cert. denied 419 U.S. 1070, 95 S. Ct. 657, 42 L. Ed. 2d 666 (1974) (amendment to add officers, directors, and shareholders permitted when they were active participants in events alleged as basis of suit and had constructive notice).


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