Tye v. Hertz Drivurself Stations, Civ. A. No. 5692.
| Decision Date | 01 October 1946 |
| Docket Number | Civ. A. No. 5692. |
| Citation | 80 F. Supp. 536 |
| Parties | TYE v. HERTZ DRIVURSELF STATIONS, Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Meyer E. Maurer, of Philadelphia, Pa., for plaintiff.
George E. Beechwood, and Bernard J. Smolens, of Conlen, LaBrum & Beechwood, all of Philadelphia, Pa., for defendant.
I have considered the motion for summary judgment, the pleadings, the admissions, affidavits and briefs in the above styled matter and have reached the conclusion that the plaintiff is entitled to a summary judgment to the extent that from the above documents it is clear the plaintiff and defendant were engaged in commerce within the meaning of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., and that the plaintiff is entitled to a judgment in some amount.
The payment of $639.67 on December 11, 1945 does not constitute a bar to liquidated damages, but the defendant is entitled to have this credited against any amount of judgment that might be collected. Brooklyn Savings Bank v. O'Neal, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296. Plaintiff is entitled to a judgment for all overtime that accrued subsequent to March 6, 1940. All amounts that accrued prior to that time are barred by the statute of limitations, which the defendant has pled, and in this case the six year statute of limitations of Pennsylvania, 12 P.S. § 31, is applicable. Smith v. Continental Oil Company, D.C., 59 F.Supp. 91.
The affidavits and the admissions show conclusively that the plaintiff entered the defendant's employ on April 4, 1939 and worked from that time until October 30, 1944 as a desk man. His duties were so closely connected with Interstate Commerce that under the act as construed by the Supreme Court of the United States in Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638, and many other cases of the Supreme Court of the United States, it is clear that he was covered by the act. The defendant company was engaged in serving and hiring trucks engaged in commerce within the Act. It is therefore clear that the plaintiff is entitled to a judgment. The amount, however, cannot be determined from the present record.
The defendant denied many of the assertions requested to be admitted and it, therefore, will be necessary that the amount be determined either by further affidavits or by a hearing upon the merits as to the amount.
An order may be drawn in accordance with this opinion holding that the plaintiff is...
To continue reading
Request your trial
-
Gruca v. United States Steel Corporation, Civ. A. No. 72-1610.
...in installments, the statute of limitations begins to run as to each installment from the time it falls due. Tye v. Hertz Drivurself Stations, 80 F.Supp. 536 (E.D.Pa.1948), appeal dismissed, 173 F.2d 317 (3d Cir. 1949); Barrett v. National Malleable & Steel Castings Co., 68 F.Supp. 410 (W.D......
-
Davis v. Alabama Power Company
...v. Dillin, 241 Ala. 362, 2 So.2d 440 (1941); Hodgson v. Behrens Drug Co., 475 F.2d 1041 at 1050 (5th Cir. 1973); Tye v. Hertz Drivurself Stations, 80 F.Supp. 536 (E.D.Pa.1948), appeal Finally, Alabama Power asserts that if this court determines that the plaintiff's claim for relief constitu......
-
Tye v. Hertz Drivurself Stations
...in the amount of $639.67, the presiding judge2 having directed a minimum verdict of $585. Judgment therefor was entered on October 28, 1946, 80 F.Supp. 536. Within ten days, the defendant moved for judgment pursuant to Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., and the plain......