parties with no direct interest in the plaintiff's employment relationship.
Defendants also argue that legitimate interests of airline comity justified their action in reporting plaintiff's conduct to USAir. This argument presupposes that Foster and Eastern's version is true and not motivated by malice or revenge when in fact this is a sharply contested factual issue supported by evidentiary material.
For the reasons stated the motion of Eastern and Foster for summary judgment on plaintiff's claim of intentional interference with a contractual relationship will be denied.
5) Defamation - Eastern and Foster.
In Count II of the Complaint plaintiff alleges that Eastern and Foster defamed plaintiff by communicating a false version of the jumpseat incident which injured plaintiff's reputation. Defendants seek summary judgment on the grounds that the reports made by Foster and Eastern are not defamatory. To the contrary facts of record indicate that defendants' reports may have been false and wrongly accused plaintiff of insubordination, certainly a defamatory statement to make to one's employer.
Defendants also seek summary judgment on the basis of a conditional privilege, arguing again that legitimate interests of airline comity justified communication of plaintiff's insubordination to his employer. Again the argument as made in the brief assumes that defendants' version is true, but plaintiff's description of events indicates that Foster's version was false and motivated by ill will or malice. Summary judgment is unavailable in the face of a disputed issue of fact.
6) Statute of Limitations - Defamation.
Pennsylvania has a one year limitations period for defamation actions. 42 Pa.C.S.A. § 5523(1). Defendant Foster prepared his Line Pilot Report concerning the jumpseat incident on October 15, 1985. The original Complaint in this action was filed in Common Pleas Court on October 15, 1986, but it named as a defendant David Foster. Plaintiff did not serve defendant Dewey DeWitt Foster until February 17, 1987, and the Complaint was amended April 3, 1987 to correct the name of the defendant.
Defendant Foster contends that the Complaint is untimely filed as to him because he was not the person sued in the original Complaint filed on the last day of the one year limitations period. We think this is merely a case of correcting a misnomer, and under the first sentence of Fed.R.Civ.P. 15(c) the amendment will relate back to the original Complaint. See Wright & Miller, Fed. Practice and Procedure § 1498; and e.g., Malmrose v. Estate of F. G. Aljoe, 92 F.R.D. 490 (W.D. Pa. 1981); Boatman v. Thomas, 320 F. Supp. 1079 (M.D. Pa. 1971). Because the amendment merely corrects a misnomer and does not in fact change parties, and because the original Complaint was timely served and no prejudice has been demonstrated, the amendment relates back and plaintiff's claims against Foster are timely.
For the reasons stated, summary judgment will be granted in favor of USAir on all claims. However, the motion of Eastern and Foster for summary judgment will be denied and plaintiff's claims against those defendants for defamation and tortious interference with contract remain viable. An appropriate Order accompanies this Opinion.
AND NOW in accord with the accompanying Opinion, it is hereby ORDERED:
1) That summary judgment is GRANTED in favor of Defendant USAir on all counts of Plaintiff's Complaint and USAir is therefore DISMISSED.
2) the motion of defendants Eastern and Foster for summary judgment on Counts I and II of plaintiff's Complaint is DENIED.
3) the Court will hold a Supplemental Status Conference on Tuesday, November 29, 1988 at 4 o'clock P.M., to discuss further proceedings in this action
SO ORDERED this 31 day of October, 1988.
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