heavily on statutory language, the majority decided that the trial court's setoff was improper. Judge Seitz would have held to the contrary, explaining his position in a well-reasoned dissent.
We have found these references enlightening but not controlling. For while plaintiff initially relied on a federal statute to invoke this court's jurisdiction, he of course prevailed only on the state law claim of wrongful discharge. Pennsylvania law thus governs our decision.
We find this question particularly difficult because it calls into play two competing principles of tort recovery, mitigation of damages and the collateral source rule. According to the collateral source rule, a tort victim is entitled to damages caused by a tortfeasor regardless of compensation the victim receives from other sources. Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963). The rule typically operates to block introduction of evidence that a plaintiff has received insurance benefits which a defendant will argue compensate him for his injuries. On the other hand, a plaintiff cannot recover for damages which he reasonably could have avoided. We think this rule applies particularly to wrongful discharge suits because a reasonable course of mitigation is easier to ascertain than in a case where the plaintiff suffers physical injury. There is no question of judgments of physicians or conflicting medical evidence; plaintiff here simply must diligently look for work. Furthermore, the lure of a guaranteed stream of unemployment benefits may invite a plaintiff to purposely delay his job search until his benefits expire.
Our preliminary inquiry produced three Commonwealth Court decisions which specifically permit the setoff of unemployment compensation from back pay awards. Bellefonte Area School District v. Lipner, 81 Pa. Cmwlth. 334, 473 A.2d 741 (1984); Pennsylvania Labor Relations Board v. Stairways, Inc., 56 Pa.Cmwlth. 462, 425 A. 2d 1172 (1981); Shearer v. Pennsylvania Secretary of Education, 57 Pa. Cmwlth. 266, 424 A.2d 633 (1981). These cases are distinguishable, however, in that they involve statutory or contractual damage provisions.
We believe that the controlling precedent is Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557 (1962). In Lobalzo, the plaintiff was injured in a truck accident. At trial, defense counsel made known to the jury that the plaintiff had collected workmen's compensation and unemployment compensation. The Pennsylvania Supreme Court reversed and granted a new trial for this error. See also, Feeley v. United States, 337 F.2d 924 (3d Cir. 1964). Defendants thus are not entitled to a setoff of plaintiff's unemployment compensation from his damage award.
C. PUNITIVE DAMAGES
Defendants moved for judgment N.O.V. on the punitive damage award alleging that plaintiff offered no proof of outrageous conduct. While we found that defendants' other argument qualified for a narrow exception to Rule 50(b), this one does not. The topic of punitive damages was raised repeatedly during the three conferences of counsel during the damage phase of trial. Defendants' counsel never specifically objected to our decision to charge on punitive damages. See Transcript at 42, 53, 60, and 62. His few remarks suggest that he accepted our decision. See Bonjorno v. Kaiser Aluminum & Chemical Corporation, 752 F.2d 802, 815 (3d Cir. 1984). In addition, while he did specifically object at the conclusion of our jury charge to our failure to charge on the two issues discussed above, he made no reference to punitive damages. Finally, neither of his two supporting briefs address the topic. He did raise the issue in his points for charge on damages. But unlike the issues above, the context of our discussion with counsel over the question does not raise it to the level where it would qualify as a substitute for a motion for directed verdict.
Under Fed.R.Civ.P. 54(d) "costs shall be allowed as of course to the prevailing party unless the court otherwise directs." The dispute here is over which party prevailed. Each side has filed a bill of costs. Defendants argue that plaintiff could not have sued in federal court but for the federal age discrimination claim on which most of the effort in preparing for trial was expended. Since the jury found for defendants on this claim, they contend that they have prevailed.
This argument is factually and legally unsupported. Plaintiff amended his complaint on January 24, 1985 to allege diversity jurisdiction. His right to sue in this court did not rest entirely on the federal question presented by the ADEA count.
Even though plaintiff was unsuccessful in pursuing the ADEA claim, this would not establish defendants as the prevailing parties for the purposes of awarding costs. This trial was not complex; it involved two counts. Plaintiff succeeded on one of the two counts and was awarded $19,000 in compensatory damages and $16,250 in punitive damages. Defendants received no award. While our research did not reveal any direct authority from the Court of Appeals for the Third Circuit, we have little hesitation in holding that plaintiff need not succeed on every count to be considered the prevailing party in this case. See Hines v. Perez, 242 F.2d 459, 466 (9th Cir. 1957); see generally, Lacovara v. Merrill Lynch Pierce Fenner & Smith, 102 F.R.D. 959 (E.D. Pa. 1984). Having settled this question, actual taxation of costs shall be referred as always to the Clerk.