Sontcvh v. Sharon Steel Corporation, Civil Action No. 6114.

• Decision Date: 24 September 1947
• Docket Number: Civil Action No. 6114.
• Citation: 73 F. Supp. 825
• Parties: SONTCVH v. SHARON STEEL CORPORATION.
• Court: U.S. District Court — Western District of Pennsylvania

73 F. Supp. 825

SONTCVH v. SHARON STEEL CORPORATION.

Civil Action No. 6114.

District Court, W. D. Pennsylvania.

September 24, 1947.

J. Thomas Hoffman, of Pittsburgh, Pa., for plaintiff.

J. G. Wayman, of Pittsburgh, Pa., and Emrys G. Francis and Fruit & Francis, all of Sharon, Pa., for defendant.

McVICAR, District Judge.

This is an action to recover overtime under the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq. Defendant moved to dismiss the action on the ground that it was barred by the Ohio statute of limitations. After argument, decision was withheld by reason of the pendency in the Supreme Court of the action of Cope v. Anderson, Receiver, on writ of certiorari to the Circuit Court of Appeals for the Third Circuit and the case of Anderson, Receiver, v. Helmers et al. on a writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit. After the decision by the Supreme Court, June 2, 1947, in the above cases, 67 S.Ct. 1340, plaintiff amended his complaint and to this amended complaint, defendant filed a motion to dimiss under Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, upon the ground that the amended complaint, by reason of the bar of the applicable statute of limitations, failed to state a claim against defendant upon which relief can be granted. This is the motion which is now before the Court.

This action was brought December 16, 1946. Section 11225 of the Ohio Code, as amended September 20, 1943, provides as follows:

"An action for libel, slander, assault, battery, malicious prosecution, false imprisonment or malpractice, or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrued, provided that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation or liquidated damages by reason of the non-payment of minimum wages or overtime compensation, shall be brought within three years after the cause thereof accrued."

Plaintiff contends that this provision of the Ohio Code is not applicable to the present action. The language "* * * that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation or liquidated damages by reason of the non-payment of minimum wages or overtime compensation, shall be brought within three years after the cause thereof accrued" clearly makes it applicable to the action in this case for unpaid overtime. It has been so held by the District Court for the Northern District of Ohio in the case of Remley v. Triangle Publications, Inc., D.C.1946, 69 F. Supp. 808. It also held that section 11225 excludes any application of section 11222. The above case was followed by the same Court in Stein v. Youngstown Steel Car Corp., D.C., 6 F.R.D. 362, and O'Donel v. Great Lakes Steamship Co., 7 F.R.D. 501.

Plaintiff, in his amended complaint, added paragraph 8, which reads:

"6. Pleading in the alternative, should the Court hold that Section 1125 of the Ohio Code covers this action, plaintiff avers that his delay in instituting this action was brought about by the conduct of the defendant through its duly authorized agents in advising the plaintiff orally and his several attorneys in writing, which...