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March 29, 1993


The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER


 The Defendant, Sears, Roebuck & Company has brought this civil rights action before the Court by filing a motion to dismiss both of Plaintiff's Title VII, 42 U.S.C. § 2000e-5 and Section 1981, 42 U.S.C. § 1981 claims. For the reasons which follow, the motion is denied.


 According to the allegations set forth in the complaint, the Plaintiff, Theodore Clark is "a black individual" who prior to August, 1991 had been "employed by Sears in Philadelphia for approximately twenty-four years as an at-will employee." Beginning in 1987, Mr. Clark was employed as both the Receiving Manager and the Maintenance Manager at Sears' retail store at 22nd Street and Oregon Avenue in Philadelphia at an hourly wage rate of $ 10.63. In the summer of 1989, however, Sears gave the position of Receiving Manager to a white employee, Anthony Barile. Mr. Clark was not criticized for his performance as Receiving Manager; to the contrary, he received a pay raise to $ 10.95 per hour and was told that Mr. Barile had been given the position because he had requested a change from his then-present position as Service Station Manager due to family pressures and job dissatisfaction.

 In June, 1991, Mr. Clark contends he first learned (through documents anonymously provided to him from someone having access to Sears' private files), that in September, 1989, Sears had paid $ 13.42 per hour to Mr. Barile for his work as Receiving Manager. Because that rate of pay had never been made available to him when he had the position, Plaintiff Clark now claims that the Defendant discriminated against him on the grounds of race in violation of Section 1981 and Title VII of the Civil Rights Acts of 1964 and 1991.



 It is well-settled that the most-commonly used vehicle for challenging the sufficiency of a claim or pleading filed in the district courts is a motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to Fed.R.Civ.P. 12(b)(6). In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. 5A Wright & Miller, Federal Practice and Procedure: Civil 2d § 1357, citing, inter alia, Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). As a general rule, the court must accept as true the facts alleged in the complaint together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990); Hough/Lowe Associates, Inc. v. CLX Realty Co., 760 F. Supp. 1141 (E.D. Pa. 1991). The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3rd Cir. 1985), cert. denied, 474 U.S. 935, 106 S. Ct. 267, 88 L. Ed. 2d 274 (1985). Thus, if the facts pled in the complaint and the reasonable inferences therefrom are legally insufficient, a motion to dismiss may be granted. McCoy v. United States, 758 F. Supp. 299, 301 (E.D. Pa. 1991).

 Moreover, as a general rule under Fed.R.Civ.P. 8(c):

"In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense . . ."
(emphasis supplied)

 Although the quoted language of this rule would seem to suggest that the statute of limitations defense cannot be raised via a Rule 12(b) motion to dismiss, an exception is made where the affirmative defense clearly appears on the face of the pleading. In this regard, it has been reasoned that since Rule 9(f) makes averments of time material, the inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim. 5A Wright & Miller, Federal Practice and Procedure: Civil 2d, § 1357. Consequently, a 12(b)(6) motion should not be granted on limitations grounds unless the complaint facially shows noncompliance with the ...

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