Opinion
Civil Action No. 05-CV-00402.
August 24, 2006
DONALD P. RUSSO, ESQUIRE On behalf of Plaintiff.
SEAN M. HART, ESQUIRE On behalf of Defendant.
MEMORANDUM
This matter is before the court on plaintiff's Motion for Relief from Judgment or Order Pursuant to F.R.C.P. 60(b), which motion was filed November 9, 2005, accompanied by a brief. Defendant's Brief in Opposition to Plaintiff's Motion for Relief from Judgment was filed November 21, 2005. Upon consideration of the briefs of the parties and for the reasons expressed below, we grant plaintiff's motion.
Specifically, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure we grant plaintiff's motion for relief from our Order and Opinion dated September 28, 2005. We now vacate our September 28, 2005 Order and withdraw the Opinion accompanying that Order.
Jurisdiction
Jurisdiction is based uponon federal question jurisdiction pursuant to 28 U.S.C. § 1331. Specifically, plaintiff's Complaint alleges discrimination under Title VII of the Civil Rights Act of 1991 ("Title VII") and under the Age Discrimination in Employment Act ("ADEA").
42 U.S.C. §§ 2000(e) to 2000(e)-17.
29 U.S.C. §§ 621 to 634.
Venue
Venue is proper in the United States District Court for the Eastern District of Pennsylvania because the events and omissions giving rise to plaintiff's claims allegedly occurred in Bethlehem, Northampton County, Pennsylvania, which is located within this judicial district. See 28 U.S.C. §§ 118, 1391(b).
Procedural History
Plaintiff's claims in this matter arise from the termination of her employment as a manager at defendant's hotel on July 23, 2002. On December 7, 2002 plaintiff Sandra K. Frable filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") against defendant Christmas City Hotel, LLC, trading as Radisson Hotel Bethlehem, and requested that the charge be cross-filed with the Pennsylvania Human Relations Commission. On March 9, 2004 the EEOC issued a right-to-sue letter to plaintiff.
On June 4, 2004 plaintiff commenced this action by filing a Praecipe for Writ of Summons with the Prothonotary of the Court of Common Pleas of Northampton County, Pennsylvania. On December 16, 2004 plaintiff filed her Complaint in the Court of Common Pleas of Northampton County. On January 28, 2005 defendant filed its Notice of Removal pursuant to 28 U.S.C. § 1441(b). Plaintiff has not contested removal.
Defendant's Motion to Dismiss Plaintiff's Complaint was filed February 4, 2005. By Order and Opinion dated September 28, 2005 we granted defendant's motion in part. Specifically, we determined that plaintiff's claims of discrimination under Title VII and the ADEA were barred by the applicable statute of limitations.
On October 28, 2005 plaintiff filed a Notice of Appeal from our September 28, 2005 decision to the United States Court of Appeals for the Third Circuit. Subsequently, we became aware of the subsequent decision of our colleague United States District Judge Berle M. Schiller in Heater v. Kidspeace, No.Civ.A. 05-4545, 2005 U.S. Dist. LEXIS 22512 (E.D.Pa. October 5, 2005) and of the decision of the Supreme Court of Pennsylvania in Galbraith v. Gahagen, 415 Pa. 500, 204 A.2d 251 (1964) upon which Judge Schiller relied.
By Order of the undersigned dated November 3, 2005, and based upon the Heater and Galbraith decisions, we invited the parties to file a Rule 60(b) motion on or before November 10, 2005. As noted above, plaintiff filed the within motion on November 9, 2005.
On February 17, 2006, pursuant to the decision of the United States Court of Appeals for the Third Circuit in Venen v. Sweet, 758 F.2d 117 (3d Cir. 1985) we certified to the Third Circuit that, upon remand, it would be our intention to grant plaintiff's motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure and to vacate the Order and withdraw the accompanying Opinion filed September 28, 2005.
By Order dated March 23, 2006 the Third Circuit remanded this matter for consideration of plaintiff's motion for relief under Rule 60(b). We now address that motion.
Discussion
Rule 60(b) of the Federal Rules of Civil Procedure provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it based has been reversed or otherwise vacated, or is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
In its underlying motion to dismiss, defendant contended that plaintiff's claims under Title VII and the ADEA were barred by the statute of limitations. Specifically, defendant contended that as a prerequisite to filing suit under either Title VII or the ADEA, a plaintiff must first file a charge of discrimination with the EEOC and must receive from the EEOC a notice of the right to sue. In this case, defendant does not dispute that this occurred.
A plaintiff then has 90 days in which to commence a civil action after receipt of the notice to bring suit. See 29 U.S.C. § 626(e); 42 U.S.C. § 2000e-5(f) (1). Defendant cites McCray v. Corry Manufacturing Company, 61 F.3d 224 (3d Cir. 1995) for the proposition that the 90-day filing period acts as a statute of limitation.
In this case, the EEOC issued plaintiff a right-to-sue letter on March 9, 2004. There is a presumption under the Federal Rules of Civil Procedure that plaintiff received the letter three days later on March 12, 2004. See Fed.R.Civ.P. 6(e). Therefore, plaintiff had until June 10, 2004 to initiate a lawsuit alleging violations of Title VII and the ADEA.
Defendant concedes that on June 4, 2004 plaintiff initiated an action in the Court of Common Pleas of Northampton County by filing a Praecipe for Writ of Summons. Defendant further concedes that, although the Writ of Summons fails to allege specific violations of either Title VII or the ADEA, its filing fell within the 90-day period for plaintiff to commence litigation. However, defendant contended that this filing (and the subsequent service of the Writ of Summons on defendant) did not end plaintiff's responsibilities in this matter.
Defendant contended that under Pennsylvania law the filing and serving of the Writ of Summons upon defendant extended the statute of limitations deadline for plaintiff to file a complaint for an additional period of 90 days until September 2, 2004. Defendant relied for this proposition on the decisions of the Superior Court of Pennsylvania in Shackelford v. Chester County Hospital, 456 Pa.Super. 356, 690 A.2d 732 (1997) and Beck v. Minestrella, 264 Pa.Super. 609, 401 A.2d 762 (1979).
Defendant contended that a Complaint was not filed until December 17, 2004, over three months after expiration of the statute of limitations. Thus, defendant asserted that plaintiff's claims under Title VII and the ADEA are barred by the statute of limitations. In our September 28, 2005 Order and Opinion we agreed with defendant.
In response to defendant's motion to dismiss, plaintiff asserted that she preserved her right to sue by filing a Writ of Summons in Pennsylvania state court within 90 days of the EEOC's issuance of a notice of right to sue. Plaintiff contends that the precise facts in this case are governed by the decision of the undersigned on a nearly identical fact pattern in Vail v. Harleysville Insurance Company, No. Civ.A. 02-2933, 2003 U.S. Dist. LEXIS 17405 (E.D.Pa. Sept. 30, 2003) (Gardner, J.).
By Order dated March 10, 2005 we granted defendant leave to file a reply brief in support of its motion to dismiss. In its reply brief, defendant argued that the arguments for dismissal inVail and the within matter are markedly different.
Specifically, the defendant in Vail, argued that plaintiff's filing a Writ of Summons did not toll the statute of limitations because the Writ did not put defendant on notice of plaintiff's causes of action prior to expiration of the 90-day statute of limitations. In Vail, defendant argued that Mr. Vail's action should not be salvaged by the filing of a Writ of Summons when under the Federal Rules of Civil Procedure the only way to commence suit is by the filing of a complaint.
In the case before this court, defendant concedes that the filing of the Writ of Summons tolled the statute of limitations, but that the statute was tolled only for a period of time equal to the original statute of limitations (i.e., 90 days). Defendant relied on the recent decision of the Superior Court of Pennsylvania in Devine v. Hutt, 863 A.2d 1160 (Pa.Super. 2004) for this long-standing proposition under Pennsylvania law.
By our Order of June 22, 2005, we requested plaintiff to file a surreply brief in response to defendant's reply brief on the issue of what is the applicable statute of limitations under Pennsylvania law for filing a complaint after commencing a lawsuit by Praecipe for Writ of Summons. On June 28, 2005 plaintiff filed a surreply.
In her surreply, plaintiff relies on what she characterized as dicta from the Supreme Court of Pennsylvania in Witherspoon v. City of Philadelphia, which states:
At this juncture, it becomes appropriate to reassess the wisdom of the "equivalent period" doctrine. In light of the changes in practice and in application of the rules beginning with Lamp [v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976)], we fail to see any justification for the continuation of this common law doctrine in the present circumstances. The notion that an action can be "kept alive" for the same period of time as the applicable limitations period although the defendant has not been made aware of the action, is inherently inconsistent with the requirement that the plaintiff make a good faith attempt to notify the defendant of the action.564 Pa. 388, 397, 768 A.2d 1079, 1083-1084. In addition, plaintiff apparently declined to provide the court with any argument on what is the appropriate statute of limitations by essentially arguing that no such statute now exists.
In our September 28, 2005 Order and Opinion we agreed with defendant and dismissed plaintiff's claims under Title VII and the ADEA as barred by the statute of limitations. We further agreed with defendant that our decision in Vail does not address the discrete issue in this case because the issue was not addressed by defendant in Vail.
Specifically, in Vail, defendant simply argued that plaintiff should not be permitted to circumvent the federal requirement to file a complaint within 90 days by filing a non-specific writ in state court. There, we concluded that both state and federal courts have concurrent jurisdiction over the federal claims asserted.
See 29 U.S.C. § 626(c) (1) (ADEA); Jones v. Illinois Central Railroad Company, 859 F.Supp. 1144 (N.D.Ill. 1994) (ADA).
Moreover, under Pennsylvania law "[a]n action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons, or (2) a complaint." Pa.R.Civ.P. 1007. "Generally, compliance with the Pennsylvania procedural rule satisfies the tolling requirement in cases removed to this court." Perry v. City of Philadelphia, No. Civ.A. 99-2989, 1999 U.S. Dist. LEXIS 12915 at *4 (E.D.Pa. Aug. 17, 1999).
Thus, in Vail because plaintiff filed his Praecipe for Writ of Summons in the Court of Common Pleas of Northampton County prior to the expiration of the 90-day limitations period, we concluded this satisfied Pennsylvania Rule of Civil Procedure Rule 1007 relating to commencement of an action, and plaintiff tolled the statute of limitations.
In this case, defendant concedes that the filing and service of the Writ of Summons tolled the statute of limitations. However, defendant contends that this only extended the time for plaintiff to file a complaint for an additional 90 days. We now disagree.
In the recent decision of Devine v. Hutt, supra, the Superior Court of Pennsylvania reiterated the long-standing legal doctrine that "[w]hen a plaintiff successfully tolls the applicable statute of limitations on an action by timely issuance and delivery of a [writ of summons] for service, the action is kept alive for a period equal to the original statute of limitations. 863 A.2d at 1167 (emphasis in original). However, the Superior Court in Devine failed to take into account the controlling decision of the Supreme Court of Pennsylvania in Galbraith v. Gahagen, 415 Pa. 500, 204 A.2d 251 (1964).
In Galbraith a complaint was filed more than two years (the applicable statute of limitations period) after a praecipe for writ of summons was filed and served. The Supreme Court of Pennsylvania stated that "where the plaintiff has had the summons served upon the defendant, and the defendant . . . is thus made aware of the lawsuit pending against him, he cannot complain if plaintiff takes his time and files the Complaint more than two years after service." Thus, pursuant to Galbraith, filing a praecipe for writ of summons merely extends the statute of limitations for an equivalent statutory period until the writ is served. It does not limit the time for filing a complaint.
Defendant asserts that Galbraith is no longer controlling authority after the decision of the Supreme Court of Pennsylvania in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). We disagree. There is no mention of the Galbraith decision inLamp and no indication that the Supreme Court of Pennsylvania has reversed its holding in Galbraith.
Accordingly, it appears that under Pennsylvania law, the statute of limitations for a claim against a defendant who has been properly served a writ of summons is tolled indefinitely regardless of when a complaint is filed. Furthermore, the remedy for any hardship stemming from the indefinite filing date of the plaintiff's complaint is for a defendant to force a plaintiff to promptly file a complaint by moving for relief by filing a Rule to file a complaint under Pa.R.Civ.P. 1037. Galbraith, supra.
Plaintiff did not cite Galbraith in opposition to the original motion to dismiss. We consider plaintiff's failure to cite this case as either mistake, inadvertence or excusable neglect. See Fed.R.Civ.P. 60(b) (1). Moreover, plaintiff could not have cited Judge Schiller's decision in Heater because it was not issued until after our September 28, 2005 Order and Opinion.
Based upon the Supreme Court of Pennsylvania's decision inGalbraith, which is mandatory authority, and Judge Schiller's decision in Heater, which we consider persuasive authority, we conclude that our reliance upon the decisions of the Superior Court of Pennsylvania in Devine, Beck and Shackelford was misplaced. Moreover, defendant's argument that Galbraith is no longer good law is not compelling. Thus, pursuant to Fed.R.Civ.P. 60(b) (6) there are other reasons justifying relief from the operation of our September 28, 2005 Order and Opinion.
Accordingly, we grant plaintiff's motion for relief from our September 28, 2005 Order and Opinion. Therefore, we vacate the Order and withdraw the Opinion.
Finally, we recognize that defendant raised additional issues in its prior motion to dismiss the Complaint which we did not address in our September 28, 2005 Order. However, because the remand by the Third Circuit was limited to addressing the within Rule 60(b) motion, we do not believe that we have jurisdiction to address those additional arguments at this time. In the event that this matter is now remanded to the undersigned for all purposes, we will permit defendant 20 days (from the date of any mandate remanding this case back to this court) to file either an answer to plaintiff's Complaint or a supplemental motion to dismiss based solely on the issues not addressed by our September 28, 2005 Order and Opinion.
Conclusion
For all the foregoing reasons, we grant plaintiff's Motion for Relief From Judgment or Order Pursuant to F.R.C.P. 60 (b).
ORDER
NOW, this 24th day of August, 2006, upon consideration of plaintiff's Motion for Relief from Judgment or Order Pursuant to F.R.C.P. 60(b), which motion was filed November 9, 2005; upon consideration of the Order dated March 23, 2006 from the United States Court of Appeals for the Third Circuit remanding this case to the undersigned to dispose of plaintiff's within motion; upon consideration of the briefs of the parties; and for the reasons articulated in the accompanying Memorandum,IT IS ORDERED that plaintiff's Motion for Relief from Judgment or Order Pursuant to F.R.C.P. 60(b) is granted.
IT IS FURTHER ORDERED that the Order of the undersigned dated September 28, 2005 is vacated.
IT IS FURTHER ORDERED that the Opinion of the undersigned accompanying the vacated Order is withdrawn.
IT IS FURTHER ORDERED that Counts I and II of plaintiff's Complaint are reinstated.
IT IS FURTHER ORDERED that defendant is granted leave to file either an answer to plaintiff's Complaint or a supplemental motion to dismiss the Complaint, which answer or supplemental motion shall be filed within 20 days of the date of any mandate of the United States Court of Appeals for the Third Circuit which remands this entire case back to this court for all purposes.
IT IS FURTHER ORDERED that the Clerk of Court for the United States District Court for the Eastern District of Pennsylvania shall immediately transmit a copy of this Order and the accompanying Memorandum to the United States Court of Appeals for the Third Circuit.