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SCHOFIELD v. TRUSTEES OF THE UNIV. OF PENNSYLVANIA

August 3, 1995

JOYCE SCHOFIELD, Plaintiff,
v.
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, Defendant.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 I. BACKGROUND

 This employment discrimination case is before the Court today on motion of the plaintiff, who seeks leave to amend her complaint. The plaintiff is Joyce Schofield, an African American woman and an employee of the defendant, the University of Pennsylvania ("the University"). On September 27, 1994, Ms. Schofield filed a complaint in this Court, in which she alleged that her supervisor subjected her to racial discrimination and sexual harassment on the job. Ms. Schofield reported these incidents to the University, which investigated and verified her claims, but failed to remedy the situation. As a consequence of these alleged misdeeds, Ms. Schofield seeks relief under the following federal and common law theories of liability: (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ; (2) the Civil Rights Act of 1866, 42 U.S.C. § 1981; and (3) the tort of intentional infliction of emotional distress.

 On July 5, 1995, one month after the close of the discovery phase and one month prior to trial, Ms. Schofield submitted the instant motion, in which she seeks leave to amend her complaint to add claims under both the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951 et seq. ("PHRA"), and the tort of negligent retention. The University opposes Ms. Schofield's motion, and argues that Ms. Schofield's failure to offer any reasonable explanation as to why she waited until one month prior to trial to submit the instant motion precludes the attempted amendment. Moreover, the University contends the PHRA claim is barred by the applicable limitations period, and therefore futile. Finally, the University claims that it will be severely prejudiced if the negligent retention claim goes forward, because its counsel has not retained an expert to contrast the propriety of its actions with community norms. Upon careful review of the parties' arguments, and for the reasons stated below, we will grant Ms. Schofield's motion.

 II. MOTION FOR LEAVE TO AMEND

 The decision to grant or deny a motion for leave to amend a complaint rests within the trial court's discretion. Dole v. Arco Chemical Co., 921 F.2d 484, 486 (3d Cir. 1990); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). Pursuant to the Federal Rules, however, the general rule is that "leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Thus, Rule 15(a) "embodies a liberal approach to amendment," so that issues may be decided on their merits rather than on a technicality. Dole, 921 F.2d at 486-87; see Long v. Lipkins, 96 F.R.D. 234, 234 (E.D. Pa. 1983)(noting that our Rule 15(a) discretion "should be generally exercised in favor of amendment").

 As our Court of Appeals has noted, however, the policy favoring liberal amendment of the complaint is not unbounded. Dole, 921 F.2d at 487. Indeed, the United States Supreme Court has set forth a number of factors which militate against amendment, including "'undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, futility of amendment, etc.'" Id. (quoting Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962)). The Third Circuit has further recognized that delay, by itself, is insufficient grounds on which to deny the motion. Instead, "the touchstone is whether the non-moving party will be prejudiced if the amendment is allowed." Howze, 750 F.2d at 1212 (citing Cornell & Co. v. Occupational Safety & Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978)); see Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991)(leave to amend should be granted unless opposing party would be prejudiced). With this standard in mind, we turn now to address the merits of the arguments.

 A. Negligent Retention Claim

 The crux of the University's argument is that the addition of a negligent retention claim would raise, for the first time, the issue of the reasonableness of the actions taken by the University regarding Ms. Schofield's supervisor. Thus, the University argues that it needs to retain an expert in the human resources field to compare the University's conduct with the community standard, and that it cannot do so in time for trial. The Supreme Court of Pennsylvania has adopted the Restatement (Second) of Torts § 317 (1965) to guide the lower courts in their evaluation of negligent retention claims. Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418, 421 (1968). Section 317 provides as follows:

 
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
 
(a) the servant
 
(i) is upon the premises in possession of the master of upon which the servant is privileged to ...

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