Michael Meyers, Individually and as Representative of a Class v. Pennypack Woods Home Ownership Association and Marion A. Steinbronn

ADAMS, Before WEIS, ROSENN and Judges. Circuit OPINION OF THE COURT ROSENN, Judge. Circuit case, In this we are called upon to deter- significant mine several growing issues out rights of a civil action commenced Mi- by Meyers, Negro, chael a charging Pennypack Home Ownership Woods Association with against discrimination Negroes in housing membership. I.

Pennypack Woods Home Ownership As- (“Pennypack” sociation or “the Associa- tion”) a non-profit is Pennsylvania corpora- organized tion in 1952 which owns and man- ages a community separate of a thousand housing units one, two, and three-bed- rooms in northeast Philadelphia. Each resi- dent of Pennypack Woods is a member of and owns a one-thousandth undivided inter- est in the Association while it- Pennypack self simple holds fee title to all the homes. A member of Pennypack enjoys perpetual use house pursuant to a “Home Securi- ty Policy” long so complies he with Pen- nypack’s regulations. rules and for housing demand at Pennypack the supply exceeds and the Association has complex developed system for va- filling cancies. A member transfer his Home Security Policy relatives, to certain close child, parent such as a or either testa- instrument, or mentary inter vivos but such member-resident not otherwise “sell” his or her house. Units not transferred are Pennypack relatives allocated to itself. preference First disposing two and given three-bedroom units is to current of Pennypack member-residents in- whose Morikawa, Christopher Dennis J. K. Wal- family qualifies creased size larger them for ters, Bockius, Morgan, & preference Lewis Philadel- houses. Second is to children Pa., appellant. phia, members, current thereby giv- never member incep- received their black since its have not who ing children over out- priority although comprise transfer blacks house tion parents’ another acquiring percent Philadelphia’s population. siders neither which are filled units found, Those home. by allocation relative nor to a by transfer of black members of Pen- [t]he chil- or their Pennypack members present largely explained by the fact nypack who have persons offered to are then dren persons inquired few black ap- on an placed interviewed been applied membership in Pen- about vacant Any house still waiting list. proved nypack. rules, then, according to court further found that at The district yet list of outsiders not to a offered for the except relevant times summer of all approved. interviewed he adjacent when lived 6, 1971, plaintiff applied September On Woods,2 Bronx, Meyers resided in the New Pennypack for a three-bedroom by letter York, sought housing and that he had never mother, himself, and his three for house Philadelphia except for his application replied that siblings. Pennypack younger facts, Pennypack.3 Based on these homes was for three-bedroom list Meyers concluded that was a “tester” In closed, which was in fact case.1 than a bona applicant rather fide for Pen- again wrote to Meyers once April housing. nypack name and asked to have his Pennypack waiting Pennypack list and judgment The district court entered placed been him that the list had informed again grounds, on three any one of defendants May In application. his first prior which, closed opinion court, in the of the district written de- counsel made a Meyers’ sup- would alone furnished sufficient placed on the Meyers’ name be that mand judgment: (1) Meyers that port for Sep- applying after persons of ahead list (2) applicant; fide that both of not a bona Pennypack refused to com- 1971. tember Meyers’ claims were barred the Statute Meyers’ demand. with ply Limitations; Meyers and of had 3, 1975, in his having prove failed that defendants had discri- January failed On housing, Mey- Pennypack him race. against to secure minated because of his efforts Pennypack against an action Meyers appeals judgment. ers from that Steinbronn, in the president, Marion and Court for East- District States II. STANDING Pennsylvania alleging racial of District

ern first issue we must consider is stand- The relief, seeking equitable and discrimination Having ing. Meyers found that was a damages and at- punitive compensatory “tester,” district court held without ci- Rights Act of the Civil fees under torney’s faith good tation (1970), “[t]he and the Fair § 42 U.S.C. part Meyers complete on the is a et offer Act of U.S.C. Housing § complaint Fair trial, to his under the non-jury defense Following a seq. Act Pennypack Housing had of 1968 as well as Civil court found district mother, brother, family Meyers’ younger had been closed on 2. list The three-bedroom 1. —his living high at the time August demand and two sisters —were 1971 due preferred housing among in New York. houses urban three-bedroom groups members’ relatives Penny- application members. current date of his 3. Since the year spent completing Meyers pack, one the 27 three- found that of district court The College Springs, in Yellow Antioch studies at January between vacated units bedroom Ohio, years Rutgers at Law as student three trial, six were transferred to and the time Newark, Jersey, New and has since members, School relatives, current 20 to employed National Association for been ap- person remaining one to a on the and the People Colored in New the Advancement applied proved had in 1964. list who York. 1866.” We need not review Act of same principle years nine later in Pierson v. holding that lack of bona Ray, defense to a claim for relief under is a fides A group clergymen Housing Act4 since we hold in the Fair states, various from Northern Pierson v. III, A, infra, claim Section Ray, 215-16 However, that Act time-barred. under Jackson, travelled to Mississippi, en- to review the required we are that city’s tered bus terminal “for the sole holding applies as it to sections 1981 court’s purpose testing rights their to unsegre- public gated accommodations.” The Court gist of the district court’s hold held status as a ing “tester” bars petitioners the right to use the him relief under sections from 1981 and waiting room of the Jackson bus termi- is, it, wé understand Meyers nal, and their deliberate exercise of that personal interest or stake in Pen lacks the peaceful, right orderly, and inoffen- policies required give which is nypack’s sive manner does not disqualify them See, standing to sue. g., him e. Tileston v. seeking damages from under § Ullman, U.S. 87 L.Ed. (1943).5 (footnote 87 S.Ct. at appealing aspect In decision, omitted). Meyers the district court’s as We therefore hold court’s finding that the that he was a serts standing to maintain his action under is.clearly erroneous but we need “tester” finding review the court’s of fact. assuming arguendo Meyers’ ap Even that III. STATUTE OF LIMITATIONS to was in fact motivat

plication solely by his desire to test legality ed the of A. The Fair Housing Act Pennypack’s policies, such a purpose is suf Meyers contends that the district court See, standing. g., to confer ficient e. Smith in holding erred that his Fair Housing Act Montgomery, of v. YMCA 462 F.2d by claim was time-barred day the 180 limi- (5th Cir. In Evers v. Dwyer, 645-46 of 42 3612(a).6 tation U.S.C. According to 3 L.Ed.2d 222 U.S. S.Ct. Meyers, only did the final refusal on the curiam), (1958) (per Supreme the Court held part of occur as late as Decem- standing a black to main that Pennypack’s ber 1975 but discriminatory rights though tain a civil action even his are of a continuing acts also nature. For sitting in in purpose the white section of a reasons, Meyers argues bus to these that segregated legality was test of his com- segregation. 3, 1975, Court reiterated the filed on plaint January timely. was holding evidently by The district court’s was still be alive virtue of unresolved language See, damages. g. based on the of section 3604 of Title e. claim for Powell v. McCor 42, providing part: mack, 486, 495-500, by applicable Jafco, As made section 3603 of this Liner L.Ed.2d 491 except exempted by 304-09, title sections title, 3603(b) and 3607 of this it shall be unlawful— (a) To to sell or rent refuse after the mak- 3612(a) provides pertinent part: 6. Section offer, ing negoti- of a bona fide or to refuse to (a) rights granted by sections of, ate for the sale or rental or otherwise and 3606 of this title be deny, any dwelling a make unavailable to appropriate enforced civil action in United race, color, person religion because of or na- regard courts States without to origin. tional controversy appropriate amount and in (Emphasis supplied). general jurisdiction. State or local courts of opinion Also inherent in the district court’s A civil action shall be commenced within one the notion decision to eighty days alleged hundred and after reside in New York moots his claims for in- discriminatory housing practice occurred junctive relief. Even if were so —and controversy express opinion no —the hand, Lines, Inc., maintains Collins v. Air other on the Pennypack, continuing and are not violations Loo Gerarge, discriminatory alleged last of the (D.Hawaii 1974). In the April was the practices housing contrary authority, per- we are Meyers by Pennypack sent letter alleged suaded section 3604 viola- —the place Meyers' by Pennypack refusal final against Meyers is not a continuing tion one contends that list. purposes of day the 180 peri- limitation it was filed untimely since complaint 3612(a). od of section later. Two years a half two and than more first, whether thus raised: are issues We must reject Meyers’ conten one, continuing a violation is alleged Pennypack’s tion conduct in December conduct in De- second, Pennypack’s whether an independent constituted either vio violation of the constituted a cember Housing of the Fair lation Act or the final Act. single a stretching violation component initial Pennypack’s refusal to sell back issues, of these Turning to the first September Meyers house 1971. The Meyers authority cites we note conduct to adverts consisted' those alleged such as acts argument Mey letters from counsel to Pennypack may been committed rejecting ers’ counsel the latter’s December continuing pur violation for constitute redress. 1974 demands for If such futile limitation. Further day of the poses attempts or negotiation by which we at settlement eases could more, four all alleged injured party discussion that allowed to to assume without were seem find day peri-, dead, the 180 life into a claim the 180 long breathe violation “occurfs]” to run when an oral written begins day limitation by Congress established od are place.7 rent or takes We significance. sell would have little a tac refusal Such course, employment aware, dis tic, permitted, if would enable a victim of with the dealing eases analo crimination alleged discrimination circumvent (formerly 90) day period limitation gous merely limitations by provoking statute of VII the Civil Act Title under adversary into another to sell or refusal discriminatory hold re 19648 Congress We cannot believe that in rent. continuing hire constitute fusal day tended the 180 limitation of section See, Liberty e. v. Mu g. Wetzel violation. 3612(a) in such operate a fashion. Cf. (3d Cir.), Co., 239 — 508 F.2d Ins. tual Lines, Evans, Air Inc. v. 2415, denied, 1011, 95 44 421 U.S. S.Ct. 1885, —, 52 97 L.Ed.2d 571 S.Ct. (1975); Briggs v. Brown & 679 Accordingly, we hold that claim 414 371 Corp., F.Supp. Tobacco Williamson Act Housing under Fair is time-barred. & v. Crom Blank Sullivan (E.D.Va.1976); F.Supp. (S.D.N.Y.1975). Those well, 1 418 B. Rights The Civil Act of 1866 cases, involving class actions were day The 180 limitation of the Fair practices of discrimi patterns and alleged Housing application Meyers’ Act has no all of continuing to affect members nation 1866, the Civil of 42 claim under Act class the instant case whereas alleged of discrimi 1982 Warren a discrete act U.S.C. sections concerns Co., 513 Realty F.2d 733 plaintiff.9 Cf. v. Norman against the individual nation 2000e-5(e) III, 1973), (N.D.Tex. (Supp. Mentzell, F.Supp. 1 42 § U.S.C. v. 409 Jefferson Alabama, 2000e-5(d) amending ; Player F.Supp. 1976) § 400 42 U.S.C. v. (5th aff’d, F.2d 1385 (M.D. Cir. Ala. Ballas, F.Supp. (N.D. ; 1977) Meyers brought Brown the instant case as a class Hafler, F.Supp. Tex.1971); James v. court determined that it action but the district (5th aff'd, only F.2d 511 (N.D.Ga.1970), Cir. as an ac- be maintained individual could 1972). appealed that deter- tion. has mination. state court. Pennsylvania 423 U.S. Cir.), cert. decisions of (1975); Hickman v. federal 105, 46 L.Ed.2d Pennsylvania courts of 1973); cf. (4th Cir. Fincher, issue, are in conflict on this some favoring Tel. 438 F.2d 757 Pennsylvania’s Int’l Tel. & Young year two applicable statute Congress provided 1971). Since actions (3d personal injury,10 to certain for 34,11 of limitations for sections favoring Pennsylva P.S. and others § federal statute actions, apply we must “the 1981 and general statute,12 nia’s six year 12 P.S. applica- would be . . which . limitation The resolution of controversy 31.13 of the state which the ble in the courts requires we understand both the essen sitting had an action seek- federal tial of the federal nature claim and the brought under relief been state ing similar operation of the various Pennsylvania stat Diehl, (3d 507 F.2d Polite law.” utes. (en banc). 1074) See also Johnson v. Turning first characterization Express Agency,

Railway claim, the federal of we observe Chester, Supreme decisions Court and of the Ammlung City of 1974). any other circuits do not reach consensus. present action hav- Actions under sections 1981 brought in federal court in Penn- and 1982 have ing been analogized state our task is to determine which law actions for been sylvania, contract,15 personal injury,14 statute of limitation would breach of Pennsylvania tres pass wrongful appropriation proper- action under state law in a govern similar College, trespass quare v. Swarthmore All actions of 10. See Presseisen clausum fre- detinue, git, replevin, (E.D.Pa.1976); trover Davis v. United States all actions F.R.D. cattle, taking away goods (W.D.Pa. 1976); Supply, F.Supp. for upon all actions Steel upon (other account and case than Wilson v. Sharon Steel concern such accounts as chandise between merchant and the trade of mer- part, part, (W.D.Pa.1975), 'd vacated in aff merchant, for further consideration of the and remanded servants), their factors grounded upon all actions of debt question, 549 F.2d 276 of limitations statute any lending or contract with- 27, 1977); January Gozdanovic v. Cir. filed debt, specialty, all actions of out ages rents, arrear- Comm., (W.D.Pa. F.Supp. 504 Civil Service rent, except proprietaries’ quit- ássault, trespass, and all actions of menace, battery, wounding imprison- Act of June P.L. 2§ 11. The them, ment, any which shall be sued or provides: any brought time after the five and twenti- personal injury Limitation in cases of Every day April, year which shall eth be brought to recover suit hereafter seven our Lord one thousand thirteen, hundred and damages injury wrongfully done to the commenced shall be and sued with- injury person, does not in case where in the time and limitation hereafter ex- death, after; within two must say, result years pressed, and not that is to the said slander, injury case, time when the upon from the other actions and the said actions in, trespass quare than for afterwards; account, in cases where the and not done injury actions for and the said debt, trespass, replev- result in death the limitation of does for detinue and (cid:127) cattle, goods remain as now established or and the action shall for said actions of fregit clausum within law. three years April day the said five and twentieth after of F.Supp. Dupree v. Hertz 764 12. See next, years within six next after the Co., (E.D.Pa.1976); v. W. B. Beamon Saunders suit, such actions or cause of not after (E.D.Pa.1976); Dudley F.Supp. 1167 v. Textron, Inc., (E.D.Pa.1975); F.Supp. McCrary, 160, 179-81, Runyon v. 427 U.S. Improvement Corp., 383 Jones v. United Gas 2586, (1976) (relying 49 L.Ed.2d415 96 S.Ct. the Fourth Circuit’s Allen, (E.D.Pa.1974); F.Supp. Yatzor v. expertise Virginia law). aff'd, 875, (W.D.Pa. 1973), F.Supp. 503 F.2d denied, 929, 1974), cert. 420 U.S. of 15. Sims v. Order United Commercial Travel (1975). L.Ed.2d 401 95 S.Ct. ers, F.Supp. (D.Mass.1972); Page Curtiss-Wright Corp., provides perti- March The Act of (D.N.J.1971); Railway Express cf. Johnson v. part: nent Agency, 421 U.S. 95 S.Ct. actions, (1975). when to be 295 n. 7 Personal 44 L.Ed.2d infliction distress. Without expressing any and intentional opinion defamation ty,16 unspecified distress,17 or to some that analogy might as to whether appro- mental be Annot., of Limi- State Statutes See for other actions priate tort.18 under sections 1981 Affecting Federal Civil As complaining tations or 1982 of different sorts of 1981, 29 A.L.R. Under U.S.C. conduct, Actions we decline to adopt it in the case Furthermore, aspect each Meyers’ complaint Fed. judice. may periph- sub or 1982 under sections 1981 complaint aof erally encompass emotional or psychic of limita- separate statute given be may which he injury may suffered, but its nature of depending on the treatment tions directed specific are to a averments con- of. complained act or acts specific Meyers injury: crete wants to buy a house Olinkraft, Inc., F.Supp. 861 Smith Woods and Pennypack wi]l Diehl, 507 F.2d cf. Polite v. (W.D.La.1975); one. Pennypack’s him sell conduct not 1974) banc). (en 122-23 little resemblance to defamation bears or to infliction an intentional possible mental begin our consideration of distress. We injury action is analogies Meyers’ by Meyers’ primarily tangible, law state allegations intangible; his com observing that wants both a house tort, Al not in contract. for the damages deprivation sound in he plaint alleg as complaint may reasons, be read For these though endured. we do not be- a con wrongful refusal to enter into Meyers’ ing a suit can properly lieve be tract, possibly it cannot be construed action for treated as an defamation or for existing con any the breach of alleging infliction of intentional mental distress. arises not Meyers’ cause of action tract. We also persuaded a breach are promise a breach of but from Pen

from suggestion that analogy nypack’s therefore action duty. It must find analogized sort of action in tort. Cf. Sewell be to a should state law in some action Lodge & privacy. of Int’l Ass’n of Machinists Although invasion an Grand inva Wrkrs., 548-50 Aerospace privacy produce sion of mental 1971), cert. the essence of the anguish, is injury an The deter interference in unreasonable making know in tort action sounds mination person’s affairs others or exhibiting however; must iden step, first we only public. See likeness Restatement of similar to specific state tort most tify the 848; Hull v. Curtis Publishing Torts § We can alleged complaint. in the acts 86, Pa.Super. A.2d 644 On various similarity assess the of the best hand, gravamen injury the other claim law torts to federal state alleged here is the tortious refusal to con (1) the defend perspectives: three from for the sale a house. Flowing tract conduct, (2) injury, and ant’s injuries invasion privacy both —the requested. relief (3) the enter refusal to into a contract — reaction, painful mental but this Loeth common on the dictum in Relying Curtis affords a 189, 195-96 ality hardly sufficient basis for n. er, 415 U.S. urges duty the breach of two (1974), equating instances. conduct bears little purposes statute of limitations def to an invasion of Meyers’ complaint alleged pri as if it resemblance another’s treat vacy. of mental intentional infliction amation Rockwall, Body, City Fisher (6th v. v. Kittrell Marlowe F.2d 715 18. 489 F.2d 1057 526

16. Lodge v. 1976). Sewell Grand of Int’l Ass’n (5th Cir. Cir. Wrkrs., Aerospace & of Machinists 1024, (5th Loether, 404 189, 545 Cir. v. 195-96 n. 17. Curtis (1972); 674, Buckner v. 674 30 L.Ed.2d 1005, (1974) (dic 92 S.Ct. 10, 260 Co., Goodyear &Tire Rubber F.Supp. is of limitations not addressed statute tum aff’d, (N.D.Ala.1972), 476 F.2d 1287 Cir. sue). 1975). Meyers’ Having concluded actions death. Faced with this incongruity, equated with an action for defa- cannot Supreme Pennsylvania Court has held that mation, distress, for mental or for invasion of 1895 repealed the Act the Act of 1713 we turn our privacy, attention another as relevant insofar but that the Act of 1713 recognized by Pennsylvania group of torts governs all trespass still actions in not in fraudulent law —torts such as interference volving personal injury.24 See Walker v. rights wrongful with contractual interfer- Mummert, 146, 394 Pa. A.2d 289 business,20 ence with another’s violation of Helmig Co., Mfg. Rockwell supra, 389 Pa. rights,21 seniority express and breach of an 21, 131 3, A.2d at Thus, 626 n. 628. Meyers’ wrong- trust.22 All these torts involve the governed action general year six financial, interference with another’s ful statute, 31, section unless it falls within the commercial, rights. A victim business precise terms of the more year limited two one of these torts suffers not so much from statute, section 34. trauma an emotional or mental as he does Even without the benefit of the numer- right from the actual denial of his to law- point, ous cases on we would be inclined business, fully pursue employment, conclude as a matter of statutory construc- Meyers appears affairs. personal to com- tion that claim does not come with- plain just such denial. limited compass in the First, section 34. sure, Meyers To be allegedly that section applies terms only to injury “feelings” suffered to his but “actions to recover damages” complaint, McCully-Smith, thrust of his cf. whereas seeks a broad range of supra, is that wrongfully inter- equitable relief. See Jones v. United Gas deprived fered with and him of federally Improvement Corp., F.Supp. (E.D. right to contract protected purchase for the Pa.1975). Secondly, the statutory phrases apply of a home. We must therefore “injury wrongfully done person, of limitations Pennsylvania statute cases where the injury does not result apply courts to state law actions complain- expresses death” only limitation on ac- ing of similar tortious conduct. bodily injury25 tions for whereas Pennsylvania scheme of limi claim is for tortious interference with his complex. tations is The Act of March right to contract purchase supra, see note 13 P.S. estab § Jones, supra. house. See single year lished inter alia a six limitation We need not base our governing all actions in decision on contract as well as such considerations, however, trespass.23 all actions of since Act of June the case law is clear. In state P.S. see note law supra, resembling suits Mey- reference, however, action, without Pennsylvania to the former ers’ both courts and act, provides year a two limitation on ac federal courts applying Pennsylvania law personal injury tions for not resulting in uniformly applied the year six limita- Helmig Co., Mfg. April Rockwell 389 Pa. The Act of 12 P.S. § 32 A.2d 622 provides year a one limitation for slander and libel actions. Assoc., McCully-Smith Inc. v. Armour & Co., F.Supp. (W.D.Pa.1973); Cooper reason, 24. For this the mere identification of a Co., Fidelity-Philadelphia F.Supp. Trust rights sounding civil action as in tort does not (E.D.Pa.1962). determine whether section 31 or section 34 applies. See Wilson Sharon Steel 2026, UMW, 21. Falsetti v. Local (3d 1977). (W.D.Pa.1965), aff’d, 355 F.2d 658 Davis, 1966); Haefele v. 399 Pa. 160 A.2d aware, however, case, 25. We are that in one Pennsylvania appellate ap- intermediate plied section 34 to an action for invasion of Bank, City 22. Sherwin v. Oil Nat’l 18 F.R.D. privacy. Publishing See Hull v. Curtis aff’d, (W.D.Pa.), 229 F.2d 835 Pa.Super. 125 A.2d Inc., (3d 1972), 454 F.2d 81 McCully-Smith we are 31.26 See of section tion 332; Falsetti, F.Supp. at conclude that Assoc., supra, 358 constrained exclusion 972; supra, Cooper, F.Supp. at two witnesses did constitute supra, of these such 3; Sherwin, supra, 18 170 n. F.Supp. at an abuse. 194; Davis, Pa. at Haefele at F.R.D. (1) district court had directed that all 714; supra, 389 Helmig, at 511, 160 A.2d completed 30,1976, discovery by January be n. 3. Cf. A.2d at 626 n. at 28 Pa. plaintiff pretrial file his memoran- (2) Rwy. Steam v. Brotherhood Gainey dum, including expected a list of his wit- (E.D.Pa. Clerks, F.Supp. ship nesses, (3) by January 1968), aff’d, 1967), memorandum, pretrial file its in- defendant witnesses, expected by cluding February therefore conclude (1969). We timely pretrial Plaintiff filed his 1976. 1981 and 1982 action under §§ listing seven witnesses and memorandum time-barred.27 not is February 1976, pretrial on a conference and trial was was held scheduled for March IV. later, Three days February have determined We having plaintiff, evidently learned of standing to maintain his action witnesses, fact new sent a letter potential Rights Act of under the Civil his claim copy to defendant’s counsel with to the trial Nonetheless, we was not time-barred. informing sup- him that he wished to judge the dis this time review unable at are pretrial memorandum with the plement plaintiff suf judgment court’s trict following witnesses whom names because the district discrimination fered might call at trial: plaintiff offered key two witnesses excluded Sweeney Donald they were ground Meyers on Milgram Mr. and Mrs. Morris memoran pretrial listed Records of Custodian ruling ex Although a trial court’s dum. Ownership Home Woods Association the failure of because of cluding evidence following concluded with the in- The letter order will pretrial to a to adhere counsel you any questions “If vitation: con- appeal absent a clear disturbed be above, cerning please do not hesitate to Turbine, discretion, De Laval Inc. abuse Sweeney us.” Donald Indus., Inc., Penny- contact India v. West Prods., president then resided in Elect. former Sylvania pack’s Moore decision, Although of our we are had exhausted remedies under not a basis the Fair Housing policy which Act or Title VII of the considerations Civil Act of two mindful First, limitation, year plaintiff the court a six support we reach. of 1964. With the result Textron, disposition Dudley to wait until the of his can afford observed (E.D.Pa. is clear before F.Supp. action consider- a section 1981 administrative “patterned-type ing in the courts. See Beamon typically action be- an W. involves violation havior, Saunders, (E.D.Pa. 1976); involving documentary frequently B. Accord, Dupree F.Supp, v. Hertz thing might be proof." said The same (E.D.Pa.1976). action such as the instant one section heavily depends on statistical evidence. do not now hold that all actions in the We likely impede passage is less of time “[T]he Pennsylvania courts of under sections federal proof section in a section 1981 or of facts” governed year 1982 are six 1981 and injury physical than in a state law action previously 31. As dis- of section limitation cussed, U.S.C, under 42 a federal action action or aspects action and even individual each example, longer statute of and a may differently be treated same action appropriate. be Id. limitations purposes. limitations We now for statute of might appear only Secondly, although applies first it at that section actions decide application alleging wrong- of a shorter statute 1981 and 1982 under sections blush housing. of cases on the or rent We limit the number to sell tend to ful refusal would docket, year present opposite the six result in fact whether need not decide federal begins year ap- period at the were of section 31 run time of If the two statute reached. be filing Mey- pressured or the final refusal since plied, into the first refusal timely approach. either court before he under in the district ers' action civil action Milgram product was a Pennsylvania. complete rather was Pittsburgh, disinter- who integrated communities in developer -residing Pennypack. est Blacks in to Pen- adjacent Belt Knoll tending prove in Green to Evidence that the absence lived accepted the neither Defendant was not due nypack. of Blacks to a lack of interest to contact plaintiff’s counsel conceivably could judge invitation have led the to new wit- attempted depose the Pennypack’s nor policies him conclude were in- 3, 1976, to by letter dated March or, least, but tentionally discriminatory nesses at dis- and sur- judge pleaded prejudice effect, trial in criminatory the their ulti- might and prise. led mately judgment Meyers’ have to a in facts, these favor. Given question the case for trial on the was called When whether the district court’s exclusion of Sweeney called and plaintiff March Milgram Sweeney and abuse constituted an counsel for Milgram. According to Morris of discretion. in they would have testified Meyers, or unsuc- Negroes inquired years had past Decisions of this and other courts Pennypack cessfully applied housing the factors to be suggest considered re in the Pennypack reputation had a and question: solving part bad faith the develop- community as an all white black seeking party the to call witnesses buy homes. in which Blacks could not ment memorandum; pretrial listed in his see testimony Pennypack objected to of these Co., R.R. v. Pa. (2d Clark not been they witnesses because two pretrial listed in the memoran- previously of the ability testimony now came and because their dum party to have discovered the ear witnesses surprise prejudicial and was since de- as a lier, see Hunt v. Pa. R.R. 41 F.R.D. 349 opportunity had not had the fendant (E.D.Pa.1967); validity of the excuse of them ascertain what in advance depose party, Thompson fered the v. Calmar responded proposed say. Plaintiff they Steamship F.2d letter to afforded defense counsel 1964); willfulness of party’s the failure request was “every opportunity” but no him the comply order, with court’s Taggart to what the made for information as ever Transportation Co., Vermont F.R.D. trial testify.28 judge would witnesses (E.D.Pa.1963), aff’d 325 F.2d 1022 objection and exclud- defendant’s sustained parties’ intent or con to mislead witnesses. ed the adversary, Pakech v. Ex fuse American Lines, reading opinion port of the Isbrandtsen 69 F.R.D. 534 A district court’s (E.D.Pa.1967); and finally, testimo- important importance how such demonstrates testimony, Clark, critical is might supra. have been and how of the excluded ny Underlying The district court’s conclusion cases to which have we absence. (1) did not discriminate these basic adverted are considerations: large measure Meyers surprise was based in against prejudice fact policies whom premise against witnesses party on the excluded testified, (2) discriminatory Blacks against ability had no effect of that (3) was in turn party prejudice, That conclusion to cure extent general. finding calling on the of fact of the rule against court’s to which waiver predicated potentially significant disrupt orderly statistical witnesses would unlisted trial of black residents in and efficient of the case other or of court, (4) not the result of discrimination but in the faith or was cases bad pointed file his and list in the interest of memorandum of witnesses until out 2, 1976, February depositions order court’s of No- after had been fairness plaintiff fixing longer time limits for dis- when could no de- closed and vember covery appears filing pretrial pose memoranda witnesses. While it defendant’s placed pretrial plaintiff required thus decided to file his memoranda order at a that this discovery disadvantage, relevancy fail to see its list of witnesses before required to whereas was not at hand. closed defendant issue failing comply Weighing against with the these factors were the willfulness alleged prejudice and the pos- order. court’s disruptive waiving effect of sible the rule. in examination, these considerations Applying of these On neither case, to con appears significant we are constrained in factors this case. the instant possible prejudice Pennypack The to was court abused its dis the district clude not only by Pennypack’s minimized famil- Milgram. and excluding Sweeney cretion iarity at least with Sweeney, its former and the dis allegation made no Pennypack by but the sequence of events. president, Meyers’ finding no made court trict objected letter to Pennypack The so Sweeney Milgram and include to failure strenuously by only days followed three original his either in list of witnesses his filing on his Meyers’ pretrial amended or in his amended memorandum pretrial Pennypack to which memorandum voiced February 23 was a memorandum pretrial objection. More importantly no there re- fail faith nor that of bad product after the letter was sent almost mained was willful or comply with the order to ure weeks before trial. three Yet Pennypack. mislead or confuse to intended depose no effort to or interroga- made serve Meyers for his fail by offered The excuse the new tories on witnesses or even to re- apparently the witnesses was to list ure Meyers’ counsel to quest furnish additional he not had representation fide bona or written information statements of the pretrial until the them after discovered testimony. proposed We believe that recently was filed. We memorandum circumstances Pennypack these had some of critical evidence the exclusion held obligation steps to take to minimize its al- sanction, Dudley v. South “extreme” is an leged prejudice surprise. and We are also Metal, Inc., Jersey the orderly and efficient persuaded normally imposed not to be ab of other cases in the court and of this trial showing deception of willful or “fla sent particular case in would not have been seri- by of a court order the disregard” grant by ously impeded the relaxation of the trial evidence. In the instant of the proponent It would entirely have been appro- order. case, Penny- the court not neither district impose for the court to rea- priate alleged by or such misconduct found pack sanctions on for his sonable failure supra, Dudley, recog Id. In Meyers. witnesses, but we believe a to list the less by for the had that counsel defendant nized sanction, especially since it drastic was a interrogatories to certain creat answers his trial, should have been adopted per- bench — uncertainty but we also confusion ed adjournment of few haps, days an while plaintiff’s assertion of observed discovery conducted with costs prejudice had to be viewed in surprise and Meyers. Dudley, supra, to at 100. taxed own failure to context reasons, we hold For these the dis- facts. any steps clarify to take excluding abused its discretion in trict court presents testimony Sweeney Milgram. case a similar situa- The instant trial, is not a jury this it February 26 letter from Since tion. simply reopen the trial for addi-

counsel, though written almost feasible even it was testimony rather than to tional hold an the commencement weeks before three encourage trial.29 entire new We the dis- trial, complicated prepa- the trial may have possibility. to consider trict court adversary his but ration attempt part made counsel for V. by responding plain- matters simplify judgment to furnish information of the district court will be offer tiff’s part part and reversed in discovery. initiating further affirmed the case and also allow anticipate will call re- the district court 29. We depose opportunity Pennypack an Mr. buttal witnesses. afford reopening Sweeney Milgram Mr. before proceedings identity were discovered before for further Febru- case remanded conference; Each opinion. with this the date ary pretrial inconsistent plaintiff did why request his or its costs. an amend- to bear party pretrial order or a further ment concurring and dis- WEIS, Judge, Circuit Conspicuously lacking conference. pretrial senting: justification for his had prepared to be pretrial re- failure majori- I, III II and in Parts join I by the court’s order of November quired However, agree I am unable to ty opinion. view in Part IV that the majority with proposed allow two refusal to judge’s trial discovery time fixed Since an of discre- testify was abuse witnesses expired, defendant not free tion. depose proposed the four to witnesses in the a court order. Under the cir- occasions, this Court On numerous cumstances, one have expected whether a determination as to that the held at least to have plaintiff delivered a state- pretrial held to orders is should party proposed testimony ment witnesses’ judge. the trial discretion of within arrange depositions, to and an offer if discretion, of that abuse a clear Absent to the court. agreeable Plaintiff did noth- See, rulings. with e. such will not interfere ing, choosing day instead to wait until the Turbine, Inc. v. West India Laval g., De ruling from the I of trial for court. find Industries, 502 F.2d 259 and, no abuse of discretion on this record Products, Inc., Electric Sylvania Moore therefore, agree majority’s do not with the 1972); Ely Reading (3d Cir. order. I am in the minority, remand Since That 424 F.2d 758 Company, place, and the will take remand I here. applied should be principle my Judge concurrence with Rosenn’s note pretrial plaintiff filed an amended The suggestion non-jury that because this is a February on memorandum trial, reopening may a limited suffice. place day. conference took on that pretrial order, view of the In remand it is not plaintiff’s listing letter from counsel The express my for me to appropriate views on witnesses was dated Febru- additional four the other serious issues not reached The record does not reveal ary majority disposition and the ultimate counsel, to defense it was delivered when case. objection dated March 1976 fol- but thereafter. soon

lowed court, local Rule

Under pretrial listed in the order

only witnesses testify except “pre- permitted

will be injustice.” judge trial manifest

vent designed give the rule was

noted opportunity explore sides an both KINCADE, Appellant, Alan Gene in the case and it was unfair to facts in a witness at the eleventh hour bring America, Appellee. UNITED STATES party arrange could not the other when 76-2289. No. deposition. Appeals, States Court of majority faults defendant for not Third Circuit. in- contacting plaintiff’s counsel secure him, initiating further formation Under Third Circuit Rule Submitted taking steps other to minimize discovery, or 12(6) June short, the on placed In burden is prejudice. July Decided cure a situation the defendant dereliction. The record explanation when contains witness, particularly if learned of

first

Case Details

Case Name: Michael Meyers, Individually and as Representative of a Class v. Pennypack Woods Home Ownership Association and Marion A. Steinbronn

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 6, 1977

Citation: 559 F.2d 894

Docket Number: 76-2223

Court Abbreviation: 3rd Cir.