United States Court of Appeals,third Circuit, 883 F.2d 1194 (3d Cir. 1989)

This action, filed pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343, was brought by John Savarese and Edward Flaxman against their former employer, the Monroe County Transportation Authority ("MCTA").¹  The defendants include the MCTA, six out of seven members of the MCTA's Board of Directors (including William Agriss, Dan Bogen, Thomas Bonser, Martha Kitchen, Wayne Mazur and John Neff), the County of Monroe, two of the three commissioners of Monroe County (including James Cadue and Thomas Joyce) and the solicitor of the MCTA (Marc Wolfe). App. at 154. The plaintiffs alleged a deprivation of certain rights under the first and fourteenth amendments of the United States Constitution. Specifically, they alleged the defendants fired them based on their political beliefs and in retaliation for a legal action filed by Savarese against various defendants.

Because we determine that the district court properly admitted certain statements which defendants allege are hearsay, we will affirm the liability portion of the judgment in favor of the plaintiffs. However, because we determine that the district court's orders regarding various damage awards were erroneous, we will reverse those portions of the judgment.

The Monroe County Transportation Authority was established in 1979 and Savarese was appointed its first director. Edward Flaxman was the controller of MCTA. T.T. at 472. He became an employee of MCTA on June 15, 1984. At the time of his appointment, Savarese was a registered Republican and he has remained a Republican throughout this litigation. The members of the Board of the MCTA ("members") were all appointed by the County Commissioners. T.T. at 1485. From the beginning of Savarese's employment as executive director of the MCTA until January, 1984, the Republican party was the controlling party in the county. Two of the three county commissioners were elected on the Republican party ticket.²  Under the direction of Savarese, the MCTA grew to a point where it had thirty-three employees; operated eighteen buses; and had a budget in excess of $1 million. App. at 214.

In 1983, a number of members of MCTA discussed with Savarese the idea of granting him a contract which would guarantee his employment for a number of years. As a result of those discussions, the members of the MCTA voted unanimously to grant Savarese a five-year contract of employment as executive director, which he accepted. As a result of the election of November, 1983, defendants Cadue and Joyce, members of the Democratic party, comprised the majority of the Board of County Commissioners, effective January 1984. Savarese alleges that after the November election, however, Mazur, Wolfe and the Democratic commissioners conducted a campaign to drive him from his employment as executive director. According to Savarese, part of this campaign included delaying the execution of the written employment contract, and asking Savarese to withdraw his "request" for an employment contract. App. at 8.

Over a period of time, the new Democratic majority replaced all of the members of the MCTA with people who had either social, political or business associations with the majority commissioners and were registered Democrats. In June, 1985, defendant Bogen became the chairman of the MCTA. Within one year, however, Bogen died. During this same period of time, Bogen suggested to Savarese and his wife that it would be wise if they changed their registration from the Republican to the Democratic party. App. at 456. Savarese's wife, thinking that it would stabilize her husband's position, changed her registration to the Democratic Party. Savarese, however, did not do so.

Although the prior Board felt strongly that Savarese should be given a contract of employment, Bogen indicated that the new commissioners would not offer Savarese such a contract. Savarese was requested to withdraw his request for a contract and he did so. He, therefore, remained in the position of Executive Director without a contract and as employee at will.

At approximately the same time, the MCTA was considering buying a fifteen-acre property known as the "Oak Street site" which was ultimately purchased by Savarese's father-in-law. The purchase resulted in speculation that there may have been some impropriety involving Savarese. Board member Bogen, in an interview with a local newspaper, indicated that Savarese had acted improperly by allegedly serving the interests of his father-in-law rather than the interests of the MCTA by providing his father-in-law confidential information that the Oak Street site was for sale. T.T. at 146-47³  Savarese then filed a libel action against Bogen, among others.⁴  In the course of this dispute, Bogen made a public statement that there was no longer "room for the two of us" at the MCTA. He felt that Savarese would have to leave as a result of the lawsuit. Also, on the day following the filing of the libel action, an emergency meeting was called by the Board and it voted to suspend both Savarese and Flaxman.

After the controversy concerning the Oak Street site, the County Commissioners instituted an investigation of Savarese through their county solicitor.⁵  At least one Board member--namely, defendant Mazur--met with an MCTA employee and received from her several invoices which allegedly indicated improprieties on the part of Savarese. Mazur, in a telephone call to Flaxman, sought to enlist the aid of Flaxman in securing additional information against Savarese. He indicated that, in exchange for Flaxman's cooperation, Flaxman would be considered as a replacement for Savarese. T.T. at 483. Flaxman, however, refused to assist. Consequently, on October 18, 1985, Flaxman was orally suspended and this suspension was later confirmed by letter the same day. T.T. at 485. On October 22, 1985, the MCTA allegedly caused a report to appear in a local paper stating that the MCTA had suspended Flaxman pending an investigation into allegations of financial improprieties.

On October 25, 1985, the MCTA sent Flaxman a letter notifying him that a hearing would be held on November 12, 1985 concerning his job status. Savarese's hearing was scheduled for the same evening. T.T. at 178. However, Savarese did not receive the statement of charges against him until Friday, November 8. Since this was a holiday weekend, it was nearly impossible for Savarese to obtain access to records or to properly meet with witnesses to prepare for the Tuesday hearing. Despite his requests for a continuance, Savarese was forced to proceed. On November 13, 1985, the directors fired Savarese.⁶  In light of the way Savarese's hearing was handled, Flaxman refused to attend his own hearing. The hearing proceeded without him, however, and he was also terminated. The MCTA also caused an article to appear in the same local paper stating that Flaxman had been terminated for mishandling MCTA funds and records.

The plaintiffs, in their complaint, sought legal and equitable relief. Savarese made three claims against the defendants: (1) that his termination was caused by his affiliation with the Republican Party and hence violated the First Amendment; (2) that his suspension and termination was caused by the fact that he brought a libel action against the Chairman of the Board, Dan Bogen, and several other parties and thus violated the First Amendment; and (3) that the procedures used by the MCTA to terminate him violated his due process rights. App. at 155. Flaxman claimed that the defendants deprived him of a liberty interest in his good name and reputation without due process of law and that his first amendment rights were violated by defendants' political firings. App. at 162. In an amended complaint Savarese requested reinstatement with back pay, compensatory damages, punitive damages, costs and attorneys fees. App. at 13. Flaxman requested compensatory damages, punitive damages, costs and attorneys fees. App. at 16.

The claims for legal relief were presented to a jury while the equitable claims were decided by the district judge following the rendering of the jury verdict. After a thirteen-day trial, the jury returned a verdict for plaintiffs.⁷  Because the judge wanted time to review the issue of punitive damages, the jury was recessed rather than discharged. App. at 191.

On June 17, 1987, following the reconvening of the jury for determination of the issue of punitive damages, the jury rendered a verdict in favor of the defendants.

On July 1, 1987, the plaintiffs served five motions: to add interest to the verdict; for a new trial on compensatory damages for Savarese; for a new trial on punitive damages; for equitable relief, including reinstatement with back pay and expungement of personnel files; and for attorneys fees and litigation expenses. The court denied Savarese's motion for a new trial on the issue of compensatory damages. The plaintiffs' motion for a new trial on the issue of punitive damages was also denied. In an opinion an order entered June 8, 1988, the district court also denied the defendants' motion for judgment NOV and a new trial.

In its order of July 6, 1988, the district court, considering itself bound by the jury's factual determinations in deciding that the plaintiffs had been impermissibly fired from their positions, ordered the plaintiffs to be reinstated. The court also granted plaintiffs' request for back wages, and ordered that the defendants pay the plaintiffs wages and benefits for the period from June 5, 1987 through July 20, 1988 "at levels equal [to] the wages and benefits they were receiving at the time of their suspension, increased to allow for any raises or changes in benefits which have accrued to similar employees since the date of their suspension from duties." Rec.Doc. No. 196. Additionally, the Court ordered the expungement of the plaintiffs' records concerning their discharge as the jury had found that the hearings accompanying the discharges violated plaintiffs' due process rights. Id.

In an order dated July 7, 1988, the court awarded the plaintiffs attorneys' fees. On July 20, 1988, the MCTA offered to reinstate Savarese if he produced a certificate stating that he had recovered from the emotional illness caused by his firing. Flaxman was reinstated on July 21, 1988; however, Savarese was not reinstated due to his inability to produce the certificate. On August 17, 1988, the plaintiffs moved to enjoin the pending state court action taken against them to recover allegedly misappropriated funds. On August 18, 1988, the back pay award was stayed pending appeal.

On August 23, 1988, the defendants appealed the award of attorneys fees (Appeal No. 88-5671). On September 9, 1988, the court awarded plaintiffs $5,966.07 as damages for delay pursuant to Pennsylvania Rule of Civil Procedure 238.

On November 18, 1988, the court held a hearing on the amount of back pay and benefits to be awarded pursuant to the July 6, 1988 order as the parties were unable to agree on the amount. The court, on December 9, 1988, issued three memoranda and orders: (1) denying Savarese's request for reinstatement; (2) denying plaintiffs' motion to enjoin the state court actions; and (3) awarding Savarese $44,631.23 and Flaxman $31,191.06 in lost wages and benefits. See Rec.Doc. Nos. 290-92. Judgment was entered on December 12, 1988 and the defendants appealed and the plaintiffs cross-appealed. We have jurisdiction of this appeal based on 28 U.S.C. § 1291.

DISCUSSION

The defendants have challenged the admission of a series of statements made by the MCTA chairman, Bogen, during the period from April, 1983 to October, 1985.⁸  Defendants argue that " [t]he flaw in such testimony is that it was hearsay, the declarant Bogen being deceased at the time of trial." Appellant's Brief at 9.

We generally review trial rulings concerning the admission of evidence under the "abuse of discretion" standard. See In re Japanese Electronic Products, 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds, sub nom Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). However, when "rulings on admissibility of evidence call for the application of a legally set standard ... our review is plenary." Id. at 257. Accordingly, we exercise plenary review over the district court's determination that the statements are admissible under Fed.R.Evid. 801(d) (2) (A). Because we agree that Bogen's statements are admissible as the statements of a party opponent, we hold that the district judge did not err in admitting these statements.

At the outset, we note that Bogen was a party to this action in his official capacity despite the fact that he was deceased at the time of trial.⁹  Rule 801(d), which plaintiffs argue applies to Bogen's statements, provides:

Statements which are not hearsay. A statement is not hearsay if--

....

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity....

Fed.R.Evid. 801(d) (2) (A).¹⁰ 

The defendants argued during oral argument that admission of these statements is not supported by the theory underlying the admission into evidence of admissions, namely, their inherent reliability. The Advisory Committee Notes state that " [n]o guarantee of trustworthiness is required in the case of an admission." Fed.R.Evid. 801(d) (2). In support of their position, the defendants cited during oral argument the Advisory Committee's statement that " [a]dmissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule." Id (emphasis added). They argue that since Bogen is now deceased, the admission into evidence of his statements is not justified as it cannot be accomplished within an "adversary" context.

However, we also note that the Advisory Committee called for "generous treatment to this avenue of admissibility." Id. Moreover, the Advisory Committee Notes to Fed.R.Evid. 804(b) (3) suggest that a deceased party's statement will be admissible under Fed.R.Evid. 801(d) (2) as the Notes state that, " [i]f the statement is that of a party, offered by his opponent, it comes in as an admission [under Rule 801(d) (2) ] and there is no occasion to inquire whether it is against interest, this not being a condition precedent to admissibility of admissions by opponents." Since unavailability of the declarant is a prerequisite to admissibility under Rule 804, it follows that the Advisory Committee must have contemplated cases in which a party is no longer available. See also J. Wigmore, IV Wigmore on Evidence Sec. 1049 at 8 (1972) (subheading entitled, "Admissions, distinguished from the hearsay exception for statements of facts against interest; death not necessary.") (emphasis added).

Although this is an issue of first impression in this Court, we have, on a prior occasion, suggested that an admission by a party-opponent may be admissible when the party is deceased at the time of trial. In Pollack v. Metropolitan Life Ins. Co., 138 F.2d 123 (3d Cir. 1943), we stated:

'The statements made out of court by a party-opponent are universally deemed admissible when offered against him.' While it is true that statements are extra-judicial, and technically hearsay, since the witness offers the statement of another as proof of the fact alleged in the statement, yet since the statement is that of the party himself, he can hardly be heard to complain that he cannot cross-examine himself as to his own utterances. The rule is well settled, of course, that for an admission to be available as evidence against a party the declarant need not be dead or otherwise unavailable.

Id. at 125 (quoting 4 Wigmore on Evidence Sec. 1048 (3d Ed.1940)) (footnotes omitted). If a declarant "need not be dead," it logically follows that the declarant could be dead. See also United States v. Young, 736 F.2d 565, 569 (10th Cir. 1983) (" [i]n a case with facts similar to this, it was held that statements made by a witness who died prior to trial would be admissible under Rule 801(d) (2) (A) [pertaining to admissions by a party opponent], (B), and (E)"). Further, we note that several courts have held that a statement by a declarant, deceased at the time of trial, may be admissible under the vicarious admission provision in Fed.R.Evid. 801(d) (2) (D). See, e.g., Pino v. Protection Maritime Ins. Co., 599 F.2d 10, 13 (1st Cir.), cert. denied, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979); Cedeck v. Hamiltonian Fed. Sav. & Loan Ass'n., 551 F.2d 1136, 1138 (8th Cir. 1977). We believe the better view is that the fact of the declarant's death impacts on the weight of the evidence rather than its admissibility. See J. Wigmore, Wigmore on Evidence Secs. 1055, 1056 at 23 (1972) (acknowledging in a subheading entitled, "Weight of Admissions," that "there is a general distrust of testimony reporting any extrajudicial oral statements alleged to have been made, including a party's admissions.") (footnote omitted) (emphasis in original). Accordingly, we will affirm the district court's ruling on the admissibility of the challenged statements.

The plaintiffs assert several grounds on appeal as bases for their claim that they are entitled to a new trial on the issue of punitive damages, including the argument that the district court improperly charged the jury. Because the district court's instructions on punitive damages were ambiguous as to the correct legal standard the jury was to apply, we will vacate this portion of the judgment, and do not find it necessary to discuss the other alleged grounds for reversal.

On June 9, 1987, plaintiffs requested the court to charge the jury in accordance with Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). The court reconvened on June 16, 1987 and charged the jury on punitive damages. T.T. at 1829.¹¹  Following the charge, plaintiffs' counsel objected on the ground that the charge imposed a higher and more difficult standard than that required by Wade.¹² 

Generally, " [t]he standard of review for the district court's ruling on points for charge is ... abuse of discretion." Link v. Mercedes-Benz of N.Am., 788 F.2d 918, 922 (3d Cir. 1986). Jury instructions are considered as a whole to determine whether they are misleading or inadequate. However, the question of whether a jury instruction misstates a legal standard is a question over which we have plenary review. See United States v. Douglass, 780 F.2d 1472, 1475 (9th Cir. 1986); United States v. Adams, 759 F.2d 1099, 1115-16 (3d Cir.), cert. denied, Alongi v. United States, 474 U.S. 906, 106 S. Ct. 275, 88 L. Ed. 2d 236 (1985), and cert. denied, Adams v. United States, 474 U.S. 971, 106 S. Ct. 336, 88 L. Ed. 2d 321 (1985).¹³ 

We find that at various points the judge's instruction erroneously required a higher standard for the award of punitive damages than that set forth in Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). In Wade, the United States Supreme Court held that a jury may impose punitive damages against defendants in a section 1983 case for conduct which demonstrates a reckless or callous disregard of, or indifference to, the rights or safety of others. Id. at 56, 103 S. Ct. at 1640.

The jury instruction given by the trial judge in Wade--which the United States Supreme Court ultimately approved--was, in relevant part:

If you find the issues in favor of the plaintiff, and if the conduct of one or more of the defendants is shown to be a reckless or callous disregard of, or indifference to, the rights or safety of others, then you may assess punitive or exemplary damages in addition to any award of actual damages.

461 U.S. at 33, 103 S. Ct. at 1628 (emphasis added by Supreme Court). The petitioner in Wade was charged with a section 1983 violation, and had argued that the proper test for an award of punitive damages is one of actual intent--"ill will, spite, or intent to injure." 461 U.S. at 37, 103 S. Ct. at 1630. The Supreme Court, however, specifically rejected the proposed actual intent standard after surveying the common law from the time of section 1983's predecessor statute, the Civil Rights Act of 1871. In the course of examining state law, the Court noted that:

Most cases under state common law, although varying in their precise terminology, have adopted more or less the same rule, recognizing that punitive damages in tort cases may be awarded not only for actual intent to injure or evil motive, but also for recklessness, serious indifference to or disregard for the rights of others or even gross negligence.

461 U.S. at 48-49, 103 S. Ct. at 1636. In addressing whether or not the same standard applies in a section 1983 context, the Court stated that "we discern no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action." 461 U.S. at 48-49, 103 S. Ct. at 1636. Accordingly, the Court held that "reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law, should be sufficient to trigger a jury's consideration of the appropriateness of punitive damages." 461 U.S. at 51, 103 S. Ct. at 1651.

Thus, for a plaintiff in a section 1983 case to qualify for a punitive award, the defendant's conduct must be, at a minimum, reckless or callous. Punitive damages might also be allowed if the conduct is intentional or motivated by evil motive, but the defendant's action need not necessarily meet this higher standard. This point is made clear by the Supreme Court's language in Wade: " [A] jury may be permitted to assess punitive damages in an action under Sec. 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Id. at 56, 103 S. Ct. at 1640 (emphasis added). See also id. at 46-47, 103 S. Ct. at 1635-36 (quoting disjunctively stated standards in Restatement (Second) of Torts Sec. 908(2) (1979)).

Our principal difficulty with the jury charge on punitive damages in this case is that the district court presented the "reckless or callous disregard or indifference" standard as well as the higher "evil, intentional" standard, disjunctively in some instances and conjunctively in others. For example, the court at one point correctly instructed, "And you must find that ... the testimony convinces you [the defendants] acted intentionally, or recklessly, or in complete disregard of the rights of other people in this case, namely, the Plaintiffs...." T.T. at 1882 (emphasis added). Similarly, the court also charged: "The conduct, in order for it to require the assessment of punitive damage, the law says, must be outrageous either because the Defendants' acts are done with an evil intent, or because they are done with reckless indifference to the rights of the Plaintiffs in this particular case." Id. at 1885 (emphasis added).¹⁴ 

In another instance, however, the court's instruction may have confused the jury, by directing, " [I]n order for the Plaintiffs to be awarded any further damages in this case, you must find that they have proved by the fair weight and the preponderance of the evidence, that the Defendants have engaged in conduct that was so outrageous, so vicious, so intentionally harmful that they should be punished for that conduct." Id. at 1880-81. Likewise, the court also stated that the jury could award punitive damages where it found that "in addition to the negligent or careless behavior, that there was reckless, vicious, intentional, deliberate, harmful conduct, almost like criminal conduct...." Id. at 1884 (emphasis added).

A review of the entire jury charge thus leads us to conclude that the jury was given an ambiguous statement of punitive damages liability. The jury may have been led erroneously to believe from the numerous references in the instructions that in order to award punitive damages it was required to find that the defendants' conduct was "intentional," "vicious," "deliberate," and "evil," a standard which exceeds that of "recklessness" which the Supreme Court held was an alternative basis for an award. Accordingly, we will vacate the judgment in the punitive damages aspect of the case and remand for a new trial.

We note, however, that our decision here leaves undisturbed this Court's view that punitive damages in general represent a limited remedy, to be reserved for special circumstances. See Cochetti v. Desmond, 572 F.2d 102, 105-06 (3d Cir. 1978).¹⁵ 

The jury awarded compensatory damages to Savarese in the amount of $103,400.00 and to Flaxman in the amount of $75,600.00.¹⁶  Savarese presents two arguments as possible bases for vacating his compensatory damage award. First he argues that the award was inadequate because he presented evidence to the jury showing lost wages and fringe benefits in the amount of $58,209.00 and future medical expenses ranging from $43,750.00 to $63,000.00. He states that Flaxman, by comparison, presented lost wage and economic claims amounting to $3,300.00 and moving expenses of approximately $5,000.00.¹⁷ 

Our review of a damage award is "exceedingly narrow." Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir. 1987) (quoting Walters v. Mintec/International, 758 F.2d 73, 80 (3d Cir. 1985)). In Williams, we stated that we would grant a new trial " 'only if the verdict is 'so grossly excessive as to shock the judicial conscience.' " ' " Id. (citations omitted). The same standard applies to awards challenged for inadequacy. Because we do not find the award in this case "shocking," we reject this challenge as the jury is free to refuse to credit all of Savarese's testimony.

Second, Savarese argues that the award of compensatory damages should be vacated by this Court and that the award should be recalculated. Based on his citation of Greminger v. Seaborne, 584 F.2d 275 (8th Cir. 1978), Savarese apparently believes that it is unclear how much of the award was for front pay and that the front and back pay awards may overlap. Appellees' Reply Brief at 15-16. Savarese argues that the district court should recalculate the amount of back pay and let the jury determine the length of time for which Savarese should receive front pay. He believes he was undercompensated for the "emotional injuries" he sustained. See Appellees' Reply Brief at 15-16. Conversely, the defendants appeal the equitable award of back pay, alleging that the jury may have awarded front pay in its compensatory damage award, resulting in possible double-counting or overlapping awards.¹⁸  They maintain that it was error for the district court to grant an equitable award of back pay where the plaintiffs introduced evidence of future wage losses and where the judge instructed the jury that they may consider future wage losses as part of the damages. The district court's order of July 6, 1988, directed the Authority to pay back pay to each plaintiff for the period from June 5, 1987, the date following the verdict, to July 20, 1988. However, when instructing the jury on compensatory damages on June 5, 1987, the district judge instructed the jury that it may "look at the loss of earnings, if any, that you find from the both plaintiffs that were incurred as a result of the actions of the defendants in this case; and you can look at the future loss of earnings." App. at 164-65. It is apparent to us that the damage awards may have overlapped.

In Wagle v. Murray, 546 F.2d 1329, 1336 (9th Cir. 1976), vacated and remanded on other grounds, 431 U.S. 935, 97 S. Ct. 2645, 53 L. Ed. 2d 252 (1977), the Court of Appeals for the Ninth Circuit stated that if there is some doubt "whether the jury may have included back pay in calculating damages [,]" then " [i]t will be open to the trial court on remand to resolve this issue, and, if it appears that double recovery would otherwise result, to reduce either the award of damages or of back pay." See also Greminger v. Seaborne, 584 F.2d 275, 278 (8th Cir. 1978) ("to the extent the sums granted included lost earnings, plaintiffs would not be entitled to an overlapping award of back pay"). We choose to follow the direction the Courts of Appeals for the Eighth and Ninth Circuits have taken, and refuse to speculate as to the bases for the two awards. Accordingly, because we agree that the awards may overlap, we will vacate both Savarese's compensatory damage award and the equitable award of back pay for Savarese and remand to the district court for a new trial on compensatory damages and a recalculation of back pay by the district judge.¹⁹ 

Following the verdict in their favor, the plaintiffs moved to recover from the defendants damages for delays in bringing the case to trial pursuant to Pennsylvania Rule of Civil Procedure 238. On September 9, 1988, the district court awarded Savarese and Flaxman a total of $5,966.07 in delay damages pursuant to Rule 238.

In briefing the issue, neither party questions whether Pennsylvania substantive law applies with regard to the determination of prejudgment interest, and both parties proceed on the assumption that it does apply. The parties devote much attention to the issue of which version of the Pennsylvania Rule applies.²⁰  However, the assumption that Pennsylvania law applies is contrary to our decision in Poleto v. Consolidated Rail Corp., 826 F.2d 1270 (3d Cir. 1987), where we held that "the availability of interest in an action arising under a federal statute is governed by federal law, not the law of the forum state." Id. at 1274 (citing Carver v. Consolidated Rail Corp., 600 F. Supp. 125, 125-26 (E.D. Pa. 1984)); see also Garrick v. City and County of Denver, 652 F.2d 969, 971 (10th Cir. 1981) ("Federal standards govern the determination of damages under the federal civil rights statutes.") (citations omitted).²¹  The plaintiffs in Poleto similarly urged this Court to apply Pennsylvania Rule of Civil Procedure 238 which allows prejudgment interest. 826 F.2d at 1274. We held that " [b]ecause [the plaintiff's] claim ... is predicated upon a violation of a federal statute, state substantive law, particularly Pennsylvania Rule of Civil Procedure 238, is not implicated." (citation omitted). Instead, we stated that " [a]ny claim to prejudgment interest must therefore be derived from federal statutory sources." 826 F.2d at 1274.

More particularly, this Court has on a prior occasion noted the importance of federal uniformity in awarding damages under section 1983. See Basista v. Weir, 340 F.2d 74 (3d Cir. 1965). In Basista, we stated that:

We believe that the benefits of the [Civil Rights] Acts were intended to be uniform throughout the United States, that the protection to the individual to be afforded by them was not intended by Congress to differ from state to state, and that the amount of damages to be recovered by the injured individual was not to vary because of the law of the state in which the federal court suit was brought. Federal common law must be applied to effect uniformity, otherwise the Civil Rights Acts would fail to effect the purposes and ends which Congress intended.

340 F.2d at 86. Consequently, our holding is consistent with our announced policy of striving for federal uniformity in the area of damages in civil rights cases.

While Pennsylvania law permits delay damages only for delay caused by the defendants, see Craig v. Magee Memorial Rehab. Center, 512 Pa. 60, 515 A.2d 1350 (Pa.1986)²² , we have stated that in federal question cases, an award of prejudgment interest "would generally be committed to the discretion of the district court." Poleto, 826 F.2d at 1279 n. 16.²³  Accordingly, because we find the district court erred in applying Pennsylvania law in awarding delay damages, we will vacate the award and remand the issue to the district court for redetermination.

The plaintiffs filed a motion asking the district court to enjoin two state court actions instituted against the plaintiffs by the MCTA.²⁴  The plaintiffs based the motion on the argument that these actions should have been brought as compulsory counterclaims pursuant to Rule 13 of the Federal Rules of Civil Procedure. The plaintiffs argued further that 28 U.S.C. § 2283 authorizes federal courts to protect or to effectuate federal judgments and that a stay is the proper remedy to prevent relitigation of such claims.²⁵  They argue here that " [t]he trial court should have issued an injunction to bar relitigation of the compulsory counterclaim defendants failed to bring." Appellees' Brief at 49. Because of the nature of the state and federal claims, we reject the plaintiffs' arguments.

The district judge, in ruling on the motion, noted that the purpose of an injunction in such circumstances is to prevent relitigation in state courts of issues which the federal courts have fully and finally adjudicated. In denying the motion, the judge found that "the parties are not the same since many of the Defendants in the federal claim are not named parties at all in the state claims." See Appellee's Addendum E at 2. Secondly, he found that it was not necessary for the jury in the federal case to decide the issues upon which the defendants' claim are based in the state court actions. Id. Finally, the district judge concluded that:

The Plaintiffs make a long argument to the effect that their victory here in the Federal Court signaled agreement with their argument that the Defendants carried out a long vendetta against them because of their political affiliation. They argued, too, that this vendetta included many of the items referred to in the State Court action. While some of that may be accurate, nonetheless, the issues and the parties in the State Court actions are much different from what was at stake in the Federal Court action and thus, we decline to grant the motion to enjoin the State Court actions.

Id.

We agree that the state actions are sufficiently distinct so as to conclude that they are not the proper subjects for compulsory counterclaims under Fed. R. Civ. P. 13. In Great Lakes Rubber Corp. v. Herbert Cooper Co., 286 F.2d 631 (3d Cir. 1961), we stated that "a counterclaim is compulsory if it bears a 'logical relationship' to an opposing party's claim." Id. at 634 (citations omitted). We stated further that "a counterclaim is logically related to the opposing party's claim where separate trials on each of their respective claims would involve a substantial duplication of effort...." 286 F.2d at 634. In the federal action, the cause of action is against not only the MCTA, but six of its members, its solicitor and two members of the Board of County Commissioners of Monroe County and it complains of a violation of federally protected interests. In the state action, the sole plaintiff is the MCTA. The other parties defending in the federal action are not involved in the state case. Consequently, there would be no substantial duplication of effort.

The elements of the claims are likewise distinct. On the one hand are federally protected interests of fundamental constitutionally protected rights and the alleged violation of those rights by unlawful termination from employment. On the other hand, the state action deals with funds and assets of the MCTA by which the plaintiffs were employed, as the MCTA's state court actions against the plaintiffs are for recoupment of funds expended by them while serving in office and without authorization. Thus, based on the record before us, we will affirm the judgment of the district court with respect to this issue.

F. The Inclusion of Marc Wolfe in the Order Granting Equitable Relief

Mr. Wolfe is the Solicitor of the MCTA. He claims that he should not be named in the order "because he has neither the power nor legal authority to carry out [the July 6, 1988] Court order." Appellant's Brief at 6c. Wolfe argues that it is significant that the MCTA hired outside counsel to handle this case. Id. He also argues that since he is not a board member of the MCTA, he has no legal power or right to vote for or against the plaintiffs' reinstatement. Id.²⁶  The jury found that Wolfe was liable to both plaintiffs for improper firing.

On the basis of Fed. R. Civ. P. 65(d), we hold that the district judge did not abuse his discretion in this regard. Rule 65(d) states:

Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

Generally, "persons who are not actual parties to the action or in privity with any of them may not be brought within the effect of a decree merely by naming them in the order." 11 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2956 at 555-56 (1973) (footnote omitted). Furthermore, " [t]he only significant exception to this rule involves nonparties who have actual notice of an injunction and are guilty of aiding or abetting or acting in concert with a named defendant or his privy in violating the injunction. They may be held in contempt." Wright & Miller, supra at Sec. 2956 at 556-57 (footnote omitted). In this case, Wolfe is a party and the jury found that he took overt steps to effect the politically motivated terminations of Flaxman and Savarese. We find these facts to be controlling.

The Supreme Court has indicated that the policy underlying Rule 65(d) is "to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood." Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 715, 38 L. Ed. 2d 661 (1974). In Golden State Bottling Co. v. NLRB, 414 U.S. 168, 180, 94 S. Ct. 414, 423, 38 L. Ed. 2d 388 (1973), the Supreme Court stated that Rule 65(d) "is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in 'privity' with them, represented by them or subject to their control." (citing Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14, 65 S. Ct. 478, 481, 89 L. Ed. 661 (1945)). While, as Golden State Bottling Co. indicates, control may be a basis for including someone within an order, we do not find the lack of control over the parties dispositive if there is another basis for including the subject in the order. In this case, the fact that Wolfe may not have "control" over the defendants is not a sufficient basis for excluding him as he is a party to the litigation. Moreover, he is also an attorney to a party. Consequently, we do not find any of the policies underlying Rule 65(d) to be offended by including Wolfe in the order. Therefore, it was not an abuse of discretion for the district judge to have included Wolfe in the order.²⁷ G. The Award of Attorneys Fees

On July 7, 1988, the district court considered the plaintiffs' request for attorneys fees and expenses and issued an order directing the defendants to reimburse the plaintiffs for reasonable attorneys fees in the total amount of $149,382.08. Rec.Doc. No. 197. The defendants then moved to correct and amend the order to reflect a payment of $36,272.72 by three of the defendants, Cadue, Joyce and the County of Monroe, who obtained a release from the judgment by paying this sum. This sum represented a portion of the plaintiffs' counsel fees and expenses. Rec.Doc. No. 204. On July 25, 1988, the parties stipulated that the order awarding expenses of litigation entered July 7, 1988 be amended in accordance with the motion of the defendants to provide that the award be in the amount of $113,109.36 to reflect credit for the previous payment by defendants Cadue, Joyce and the County of Monroe. Rec.Doc. No. 213.

Appellants have protectively appealed the order for attorneys fees in the event that the liability determination is reversed on appeal. Because we will affirm the determination of liability, we will affirm the order for attorneys fees in the amount of $113,109.36.²⁸ 

We hold that the district court did not err in admitting the statements made by defendant Bogen as we find the statements to be admissible under Fed.R.Evid. 801(d) (2) (A). We do, however, hold that the district court erred with respect to Savarese's award of compensatory damages and we will, accordingly, vacate this award and remand the issue to the district court for a new trial. Additionally, we will vacate and remand the award for delay damages based on erroneous application of Pennsylvania law by the district court. We will affirm both the order denying the injunction barring the state court actions and the order including defendant Wolfe. Finally, we will affirm the award of attorneys fees in light of our disposition affirming defendants' liability.

Based on the foregoing, we will affirm, in part, and reverse in part, the judgment of the district court.

Four-fifths of the costs taxed against appellants and one-fifth, against Savarese.