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GANNON v. NATIONAL RAILROAD PASSENGER CORPORATION

June 9, 2004.

MICHAEL J. GANNON, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, t/a AMTRAK, Defendant.



The opinion of the court was delivered by: JAMES KELLY, Senior District Judge

MEMORANDUM AND ORDER

Presently before the Court is a Motion to Dismiss Defendant's Counterclaims filed by Plaintiff Michael J. Gannon ("Gannon" or "Plaintiff") seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of the counterclaims for conversion and unjust enrichment filed by Defendant National Railroad Passenger Corporation, t/a Amtrak ("Defendant" or "Amtrak").

Plaintiff initiated suit in this Court alleging that he was unlawfully terminated from employment following his return from active military service. Defendant answered Plaintiff's Complaint and asserted counterclaims for conversion and unjust enrichment contending that Plaintiff improperly received and retained Amtrak wages during periods of military service in 1999, and that Plaintiff's failure to repay those wages violated Amtrak's policy prohibiting employees from "double-dipping" by simultaneously receiving Amtrak and military wages.

  For the following reasons, Plaintiff's Motion to Dismiss Counterclaims is DENIED.

  I. BACKGROUND

  Plaintiff was employed by Defendant as a Special Agent in its Office of Inspector General from 1989 through August 31, 2001. Plaintiff was also a Reservist in the United States Air Force Reserve and, in 1999, volunteered for military duty in connection with operations in Kosovo.

  As a result of Plaintiff's alleged failure to submit a written leave request along with copies of military orders to Amtrak in May 1999, Plaintiff received and retained both his Amtrak salary and his reserve military pay during the period of May 2, 1999 through December 17, 1999. Upon Plaintiff's return to work at Amtrak in December 1999, he was advised of his violations of Amtrak's leave policies and his obligation to repay the wages he had improperly received during the period of military service. In the months following his return to work, Plaintiff repeatedly acknowledged his obligation to repay the wages he had received from Amtrak during his military service. To date, Plaintiff has not repaid the improperly received wages.

  II. STANDARD OF REVIEW

  In deciding a motion to dismiss a counterclaim under Federal Rule of Civil Procedure 12(b)(6), the Court must accept all wellpleaded facts, and any reasonable inferences derived therefrom, as true, and view them in the light most favorable to the nonmoving party. In re Sunrise Sec. Litig., 793 F. Supp. 1306, 1310 (E.D. Pa. 1992). A claim should not be dismissed for failure to state a claim unless it appears beyond a doubt that the non-moving party can prove no set of facts in support of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  III. DISCUSSION

  Plaintiff contends that Defendant's counterclaim for conversion is barred by the two-year statute of limitations, and should be dismissed in its entirety. Plaintiff also contends that Defendant's counterclaim for unjust enrichment, to the extent that it seeks damages beyond the four-year statute of limitations, should be dismissed. Each of Plaintiff's arguments is addressed below.

  A. Conversion

  An action for conversion must be commenced within two years of the taking or injury. 42 Pa. Cons. Stat. § 5524(3) (specifying two-year statute of limitation for "actions for taking, detaining or injuring personal property, including actions for specific recovery thereof."); Kingston Coal Co. v. Felton Min. Co., Inc., 690 A.2d 284, 288 (Pa. Super. 1997). Here, Defendant admits that the period of time during which Plaintiff improperly received Amtrak salary at the same time that he received his military pay was from May 2, 1999 through December 17, 1999. It is also clear from the docket entries that Defendant asserted its counterclaim for conversion on October 15, 2003, more than two years after the complained-of time period.

  While Defendant's counterclaim for conversion was filed beyond Pennsylvania's two-year statute of limitations, our analysis does not stop here. Pennsylvania law recognizes that the acknowledgment doctrine may serve to toll a statute of limitations where there is an unequivocal acknowledgment of a debt as an existing obligation: "A clear, distinct and unequivocal acknowledgment of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll ...


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