Petition — Maylie v. National Railroad Passenger Corp.

Otiice- Si prone Court, U

FILED

JAN 14 1984

ALEXANDER LL. STEVASS

CLERK

IN THE

Supreme Court of the United States

January Term, 1954

ROBERT J. MAYLIEF, JR.,

Petitioner

t

NATIONAL RAILROAD PASSENGER CORPORATION

wk/a AMTRAK,

Respondent

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

Joseph Smukler

Attorney for Petitioner

and Counsel of Record

1200 One East Penn Square Bldg.

Philadelphia, PA 19107

(212) 564-1040

Of Counsel

MEYER, LASCH, HANKIN & POUL

TWE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA. PA 19123 (215) 236-2000

QUESTION PRESENTED FOR REVIEW

Where a trial court has made a finding of fact that the ac-

tions of the defendant railroad brought about an atmosphere and

environment of constraint in the freely giving of testimony by

railroad employees at trial, in violation of Sections 55 and 60 of

the Federal Employers’ Liability Act, was it error to fail to grant

a new trial?

LIST OF ALL PARTIES

All parties appear in the caption of the case in the Court.

TABLE OF CONTENTS

Question Presented for Review a re i

meee nepees oj ww wt ees id ars i

Table of Citations NS oe aap . a iN

Opinions Below .......... els Shea ome | ]

Jurisdiction ...... ea ae ae se

Statutes Involved ......... ig I aE ae 2

Statement of the Case

A. Summary of Proceedings tao eteae

B. Statement of Facts. . 3

Reasons for Granting the Writ. : 7

Appendices

Appendix A — Order of District Court, March 15, 1982 A-1

Appendix B — Order of District Court, February $8, 1983 A-2

Appendix C — Order of District Court, March 14, 1983 A-3

Appendix D — Order of District Court, May 13, 1983 \-4

Appendix E — Order of District Court, June S, 1983 A-5

Appendix F — Statement from the Bench in support of

Order of February 8, 1983... A-6

Appendix G — Statement from the Bench in support of

NE ....A-18

Appendix H — Judgment Order of Court of Appeals dated

ar 4-21

Appendix I — Order of Court of Appeals denying Petition

tor Rehearing dated October 17, 1983... .. 2 ee

Appendix J — Federal Employers’ Liability Act, Section 1

ee -. A

TABLE OF CONTENTS — (Continued)

Page

Appendix K — Federal Emplovers’ Liability Act. Section 5

BA. Be ogsn 4 Chearere Wipes eirbaneeeeeaiaa 4-23

Appendix L. — Federal Employers’ Liability Act, Section

ft). gies | ee RAN A ee A-24

Appendix M \ffidavit of Daniel Sinisi dated June 16,

1952 sha Sacrpyecern mc uaeth yaaa es gh alee . » A-25

Appendix N — Affidavit of Robert J. Maylie, Jr.. dated

eg err oA ee ee \-26

Appendix O — Letter from Robert J. Maylie, Jr. to union

representative dated February 12, 1981... 2 2... A-27

Appendix P — Affidavit of Daniel Sinisi dated February 14,

Eee a so eater Cah aera at era een .. . A-28

Appendix Q — Form letter forwarded to railroad employ-

ees dated February 12, 198] .............. 04 4-36

TABLE OF CITATIONS

Case Citations Page

Bell v. Hood, 327 U.S. 678. 66 S Ct. 773 90 L.Ed. 939

| ere

Dugger v. Baltimore & Ohio Railroad Company, 5 F.R.D

334 (E.D.N.Y.) 0... Pa J

Hendley v. Central of Georgia R.R. Co.. 609 F.2d 1146,

rehearing den. 614 F.2d 294. cert. den HY US

ence te OP Ass ae ¥,

J.1. Case Cov. Borak, 377 U.S. 426. 84 S.Ct 1555. 12

L.Ed.2d 423 (1964

Kozar v. Chesapeake and Ohio Railway Company, 320

F.Supp. 335 (W.D. Mich., $.D.. 1970 7, 9, 10,

Marbury v. Madison, 1 Cranch 137, 2 L.Ed 60 (1803

Stack v. Chicago, Milwaukee. St Paul and Pacific R.R

Co., 615 P.2d 457, 94 Wash.2d 155 (1980 9.

Stark v. Burlington Northern, 338 F Supp. 1061 (D. Co.,

roc I pore 10.

Statutes.

Federal Employers’ Liability Act:

Section 1 (45 U.S.C. $5]

Section 35 (45 U.S.C. 855) . es 2

Section 10 (45 U.S.C §60)

28 U.S.C. §1254/1)

to

!

St

o~

~

Other Authority:

Senate Rpt. No. 661, 76th Cong... Ist Sess 2.5 (1939

1]

1]

1]

1]

Y

No.

IN THE

SUPREME COURT OF THE UNITED STATES

January Term, 1954

ROBERT J. MAYLIE, JR.

Petitioner

Cc.

NATIONAL RAILROAD PASSENGER CORPORATION

wka AMTRAK,

Respondent

On Petition tor a Writ of Certiorari to the United States Court of

Appeals for the Third Circuit.

OPINIONS BELOW

There were no written opinions delivered in the courts be-

low. Orders of Court were filed by the United States District

Court for the Eastern District of Pennsylvania on March 15.

1982, February $, 1983, March 14, 1983. May 13, 1983, and

June 5, 1983. These Orders appear as Appendices A through E.

According to the Orders of February $8, 1983, and May 13, 1953.

they were issued for reasons stated from the bench. The state-

ments from the bench in support of the Order of February 8,

1953, appears as Appendix F. The statements from the bench in

support of the Order of May 13, 1983, appears as Appendix G.

The Judgment Order of the United States Court of Appeals

for the Third Circuit, dated September 13, 1983, appears as Ap-

pendix H, and the Order of the Court of Appeals denying the

Petition for Rehearing, dated October 17, 1983, appears as Ap-

pendix I. None of the Orders were reported.

JURISDICTION

The Judgment Order of the United States Court of Appeals

for the Third Circuit was entered on September 13, 1983 (Ap-

pendix H) and the Petition for Rehearing was denied by Order

entered October 17, 1983. (Appendix I).

The Jurisdiction of the Supreme Court is invoked under 28

U.S.C. Section 12541).

The basis for Federal Jurisdiction in the District Court was

the Federal Emplovers’ Liability Act (45 U.S.C. §§51-56).

STATUTES INVOLVED

The subject action arose and was determined under the

provisions of the Federal Employers’ Liability Act (45 U.S.C.

$51) which is set forth in Appendix J.

Petitioner claims violation by Respondent of the Federal

Employers’ Liability Act, 45 U.S.C. 855 and §60, which are set

forth in Appendix K and L respectively.

STATEMENT OF THE CASE

A. Summary of Proceedings:

This action was instituted by plaintiff Robert J. Mavlie. Jr.,

to recover under the Federal Employers’ Liability Act for per-

sonal injuries sustained in the course of his employment with

the defendant, National Railroad Passenger Corporation, a/k/a

AMTRAK. A jury trial was held, and after testimony and charge

of the Court, the jury returned a verdict in favor of the defend-

ant on March 15, 1952. The plaintiff timely filed a Motion for a

New Trial.

After a hearing on plaintiff's Motion, there were several

evidentiary hearings and on February $8, 1983, the Court or-

dered that the jury verdict in favor of the defendant be set aside

and plaintiffs Motion for a new trial be granted. Upon defend-

ant’s Motion for Reconsideration, argument was reopened,

there were further evidentiary hearings, and on May 17, 1953.

the Court vacated the order granting a new trial and reinstated

the jury verdict in favor of defendant. Plaintiff's Motion for Re-

consideration was denied on June 8, 1983. Plaintiff thereafter

timely filed an appeal which was denied on September 13, 1983.

and Petition for Rehearing which was denied on October 17,

1983.

B. Statement of Facts:

On February 17, 1951 plaintiff was emploved by defendant

as a machinist helper, and he was ordered by his supervisor to

help him empty the contents of a metal open-topped 35 gallon

drum into a dumpster. All plaintiff could see located in the top of

the drum was trash, bottles, and paper. While lifting the drum

with his supervisor there was, unknown to him, liquid in the

bottom of the drum which shifted toward plaintiff, his feet then

slipped on grease, oil and diesel fuel on the ground in that area

(concerning which he had notified defendant) and he injured his

back. As a result of this he had a surgical laminectomy and disc

excision, and he has been unable to work at all since his injury.

Subsequent to the verdict, plaintiff presented the Court

with affidavits from seven employees of the defendant at the

Bristol Shop, Bristol, Pennsylvania, where the accident oc-

curred, including two foremen, confirming that the actions of

Steve Scott, Supervisor of the Bristol Shops, were such as to

threaten, frighten, and coerce employees at that shop from

bringing claims under the Federal Employers’ Liability Act

(hereinafter, the F.E.L.A.), or from testifying in their behalf.

Plaintiff also filed the affidavit of Mr. Daniel Sinisi, who had

been one of the men who assisted in lifting the drum at or about

the time of the accident and who stated:

I had been asked by Bob Maylie to testify at trial since

I was one of the men on the barrel when he got hurt. I told

him I did not want to get involved, that I only have five

years left to go on Amtrak before I can retire, and knowing

the way things are in the shops, I was very afraid to make

waves. (Appendix M).

It was only on June 16, 1952, subsequent to trial, that plaintiff

was able to get an affidavit from Mr. Sinisi relating to the facts

contained therein. Plaintiff filed his own affidavit that prior to

trial he had attempted to obtain testimony for use at trial from

fellow employees at the Bristol Shop as to the condition at the

location where the accident occurred, and:

They said they don’t want to get involved because of

the way things were at the Bristol Shops, that if they testi-

fied for me there would be holy hell for them at work, that

they had to feed their families and they didn't want to lose

their jobs. (Appendix N).

This was supported by letter from Maylie to his union represen-

tative, dated February 12, 1981, prior to his injury, stating that

he, Maylie, had testified for a fellow worker at a trial and that

“ever since I have testified for this man — that Steve Scott said

that everyone that testified for him — had put one foot in their

grave.” (Appendix O).

Defendant filed a counter-affidavit from Supervisor Steve

Scott denying any harrassment or coercion.

At the end of that testimony on February 4, 1983, the Court

granted a new trial, stating:

I concluded that there was an atmosphere of constraint

which operated within the Bristol Shop where Mr. Scott

had substantial supervisory authority that was generated at

least in very large measure by Mr. Scott's remarks to rail-

way personnel, and which led or was likely to have led to at

least a number of persons to conclude that it was threaten-

ing to their job security to either file claims or support

claims growing out of accident in the work situation. (See

Appendix F).

The Court also made certain findings of fact relating to that

“atmosphere of constraint”:

(1) Ido, however, conclude that the message which it

is common ground that Mr. Scott delivered was one which

could, as to some members of the work force, carry with it a

sense of very serious caution about the freely giving of testi-

mony in a lawsuit, such as Mr. Maylie’s.

(2) | am bound to conclude that I would think it not

unreasonable for some employees of lesser stamina and oth-

ers of perceived vulnerable status to be anxious about being

placed in the kind of context that one might be placed in,

would be placed in, by a request to testify with respect to

an injury claim brought by a member of the Bristol Shop,

such as Mr. Maylie’s was.

(3) What I do conclude is that in the context of the at-

mosphere at the Bristol Shops among personnel, who have

been so emphatically advised by Mr. Scott of the link be-

tween injury claims and the budgetary wholeness of the

shops and the implication that that linkage has for hazard to

the security of the working at the Bristol Shops.

4) The trial of Mr. Mavlie’s suit against Amtrak took

place under a constraint that is inappropriate for any Court.

it is inappropriate for this Court, and is a constraint that a

Federal Court must pay special heed to when the cause of

action is Federal in nature, and nurtured by Congress, as

claims under the Federal Employers Liability Act have

been for three-quarters of a century. (See Appendix F).

The defendant then filed a Motion for Reconsideration

appending thereto a second affidavit of Mr. Sinisi. (Appendix P).

On March 14, 1983, the Court granted defendant's Motion

to reopen argument and thereafter, on May 12, 1953, after hear-

ing testimony from Mr. Sinisi and Mr. Maylie, the Court va-

cated its earlier order granting a new trial and entered a judg-

ment on the jury's verdict for the defendant railroad. (Appendix

G).

This decision was made despite the finding by the Court

that:

I had concluded earlier in this proceeding and find no

reason to retreat from it that there has been within the Bris-

tol Shop from a period prior to and contemporaneous with

Mr. Maylie’s accident an environment of constraint gener-

ated in very considerable part by Mr. Scott's statements

that the constraint related particularly to claims against the

railroad arising out of accidents and increased costs that this

would impose and I have concluded that it was certainly

reasonable within that environment for personnel to feel

that testimony adverse to the railroad would or at least

could lead to some form of reprisal or detriment at Mr.

Scott's hands. (Appendix G).

The plaintiff thereafter filed a Motion for Reconsideration,

enclosing 341 letters forwarded on December 16, 1975 by Mr.

McKinley Scott, Division Engineer, National Railroad Passen-

ger Corporation, to defendant's maintenance of way employees,

including the employees at defendant's Bristol Shops, and espe-

cially to plaintiff herein and fellow employees (Appendix Q, be-

ing one of 341 identical letters). This accusation of unsatisfactory

records and threats of disciplinary action contained in these let-

ters without regard to the cause or responsibility for such inju-

ries was an obvious device to prevent defendant's maintenance

of way employees, including those at the Bristol Shops, from fil-

ing, reporting, pursuing, or assisting others in filing, reporting

or pursuing claims for on-duty accidents.

REASONS FOR GRANTING THE WRIT

This Honorable Court should grant a Writ of Certiorari be-

cause on an important question of substantive law under the

Federal Employers’ Liability Act, the United States Court of

Appeals for the Third Circuit rendered a decision in conflict

with the decisions of other federal and state courts on the same

matter. Where, as here, a finding has been made of coercive

practices by the defendant which resulted in an environment of

constraint in the freely giving of testimony, it was error to fail to

grant a new trial.

After the presentation of numerous affidavits and the hold-

ing of evidentiary hearings, the District Court had made the

findings enumerated on pages 5 & 6 supra. (Appendix F).

Sections 55 and 60 of the F.E.L.A. are specifically designed

to prevent the actions found by the District Court to have been

perpetrated by the defendant.

Plaintiff made numerous attempts prior to trial and during

trial to obtain information from fellow employees which could

lead to their testifving during the pendency of the trial. ‘Appen-

dix M; Appendix N). Plaintiff was met with refusal based on fear

of harassment or reprisal by the superintendent of the Shop.

The problem of a plaintiff such as Mr. Maylie is best spelled

out by the court in Kozar v. Chesapeake and Ohio Railway

Company, 320 F.Supp. 335, at page 368 (WD. Mich.. §.D..

1970), rev'd on other grounds:

Experience with Federal Employers’ Liability Act

cases has carried with it many lessons. One is that the bulk

of testimony usually comes from employees of the defend-

ant. thus rendering advisable the sequestration of witnesses

in order to preserve intact their individual recollection of

facts and events. Another, more painful. reality is that these

witnesses — a railroad’s own employees — often appear

feartul to testify. This obvious anxiety is not merely the

product of a shy or nervous personality. it is the kind of fear

that comes from the belief that one's words may affect job

financial security. family and future

The court goes on to say, at page 369:

. railroad employees are subject to considerable pres-

sure if called to give testimony against their employer. This

pressure need not be the result of direct threats or arm-

twisting; it is not necessarily the object of deliberate

railroad policy. But whether by design or accident, the fact

remains that these working men, through numerous con-

tacts with supervisors and claim agents during the discov-

ery process, often believe that a wrong step — defined by

railroad rules (real or apparent) and interpreted by railroad

officials — may result in sanctions, and that the wrong testi-

mony — potentially costing the railroad large amounts of

money — might arouse the displeasure of those in control

of their livelihood. The tremendous power of a corporation

like the Chesapeake and Ohio Railroad, coupled with its ag-

gressive efforts to defeat the claims of those injured by its

activities — even when the victims are their most valuable

employees — can overawe and even cower those individu-

als upon whom an opposing party must rely to substantiate

his claim. Defendant's attempt to minimize these pressures

by claiming inability, in the face of the railroad unions, to

sanction its employees is not convincing. No one in the po-

sition of these men can be expected to take a position op-

posing their employer without considerable anxiety. This is

a fact of human nature which defendant cannot so cavalierly

ignore.

The words of the Court below expressed the underlying

anxiety and fear, but the reason the phintiff had no other wit-

ness testimony was not only because of the underlying fear re-

ferred to above by the court, but also because of the actions of

defendant as found to exist by the District Court.

The authors of the F.E.L.A. understood that to permit tac-

tics such as these would be abhorrent and in order to insure un-

inhibited exercise of the rights granted by the F.E.L.A., they

included in the statute the provisions of §55 and §60. These

were designed to protect the federally created rights.

As stated in Kozar, supra, at page 355:

To the extent coercive tactics are used by railroads

against their injured employees to discourage resort to Fed-

eral Employers’ Liability Act litigation, the result is an im-

permissible chill on rights created by Congress, and which

as matter of public policy and natural law inheres in each

employee as a human being. Any chilling effect can be ex-

pected to extend not only to prospective Federal Employ-

ers’ Liability Act plaintiffs, but to all employees and their

families, it could be expected to prevent untavorable testi-

mony as well as the filing of lawsuits. This result is intoler-

able.

The defendant having been found to have violated the

rights of Mr. Mavlie, by the actions of its Supervisor, Steve

Scott, the verdict should not be permitted to stand. This Honor-

able Court has the responsibility to prevent such a blatant injus-

tice. The failure to grant a new trial was improper as a matter of

law.

The Statute, 45 U.S.C. §60, provides that any device is

void that is intended or has the effect of preventing employees of

a common carrier from voluntarily furnishing information to a

person in interest as to the facts incident to the injury or death of

an emplovee. Hendley v. Central of Georgia R.R. Co., 609 F.2d

1146, rehearing den. 614 F.2d 294, cert. den. 449 U.S. 1093.

As stated in Dugger v. Baltimore and Ohio Railroad Com-

pany, 5 F.R.D. 334 (E.D.N.Y.), “It was the intent of Congress

to see to it that an injured employee could readily obtain all the

available information from witnesses, particularly employees of

the railroad company.

The intent of this section was to attempt to equalize the ac-

cess to information available to the highly efficient) claim

departments of the railroads and to the individual F.E.L.A.

claimants, and to prohibit actions which would inhibit the free

flow of information to clients. See Senate Report No. 661, 76th

Congress, Ist Sess. 2, 5 (1939).

In Stack v. Chicago, Milwaukee, St. Paul and Pacific R.R.

Co., 615 P.2d 457, 94 Wash.2d 155 (1980), the court stated:

We also note Section 60 of the FELA prohibits any de-

vices which has the effect of inhibiting the voluntary fur-

nishing of information by an employee. Thus it is apparent

Section 60 focuses on the result of employer action, not on

the precise nature of the conduct itself. Rather than unduly

restrict the scope of Section 60, we interpret it to prohibit

any action by an employer which effectively restricts em-

ployee information as to the facts incident to an employee's

injury or death.

In Stark v. Burlington Northern, 535 F.Supp. 1061 (D.

Co., 1982), the court stated:

The broad prohibition by threat, intimidation, order,

rule, contract, regulation or device, indicates that §60 was

designed to prevent any direct or indirect chill on the activ-

ity of information to any party in interest in an FELA claim.

Therefore, the act is to be read liberally.

Speaking of what the court should do when it detects coer-

cive tactics in violation of §55 and §60, the court in Kozar,

supra, at pages 355 to 386, stated:

Any such situation that comes before this Court will re-

ceive the closest attention. Every remedial weapon (includ-

ing contempt) will be available to insure uninhibited exer-

cise of federal rights. To the extent allowed by law, other

agencies of government will be advised and requested to

take appropriate action. These practices to the extent they

exist and are detected, will not be allowed to continue.

The remedies granted are not limited to the criminal process but

the greatest latitude of equitable and other relief. As stated in

Kozar, supra, on page 370 at Footnote 17;

Obviously, any direct attempt by the Chesapeake and

Ohio Railroad to prevent employees from giving statements

or conferring with opposing attorneys would be in violation

of this section. Such a violation of federally created rights

can be remedied not only through the criminal process but

in an action for equitable or other relief. It has been clear

10

since Marbury v. Madison, supra, that the logic of the com-

mon law of remedies and the equitable power of the Court

combine to allow maximum flexibility in adjusting the qual-

ity of remedy to the nature of the right involved. Bell v.

Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). J.T.

Case Co. v. Borak, 377 U.S. 426, S4 S.Ct. 1555, 12

LL. Ed.2d 423 (1964),

Despite the finding of coercive practices by the defendant,

the court did nothing to insure the unhibited exercise of Mr.

Mavlie’s rights.

Plaintiff is unaware of a single case where a determination

has been made by a court that there was a restraint on the unin-

hibited exercise of federal rights and where it permitted the per-

petrator of such acts of emerge the victor in the unequal contest.

In Kozar, Stark, Hendley, Stack, and Dugger, supra, each

of the courts where a constraint was found to exist granted an

appropriate remedy to protect the F.E.L.A. process from in-

fringement by the carrier.

Having once found the constraint to exist, the court has

placed on the plaintiff the impossible burden of proving that this

affected the trial of his case. If there is a constraint, as the trial

court indeed found there to be in this case, no one can be ex-

pected to come forward voluntarily and speak up. The court in

essence has found that such constraint is permissible and hence

not the basis of a new trial so long as the plaintiff cannot meet

the almost impossible task of learning of a witness who might

have knowledge of tacts and refused to come forward because of

the threat. How can a plaintiff know whether others are possible

witnesses or not, given the “atmosphere of constraint’? It must

be remembered that evidence is clear that all the events oc-

curred in a relatively small railroad shop with approximately one

hundred employees and in which very little occurs which is not

known.

The plaintiff made every effort to secure witnesses for trial

on the issue of the unsafe ground conditions. The prevailing atti-

tude of prospective witnesses was: “No way, I don't want to get

involved in any of that. Lam not losing my job for nobody”. \Ap-

pendix N).

Here the trial court found the constraint, yet the courts be-

low intolerably allow the carrier, which was found by the trial

court to have violated the statute, to go unscathed and Mr.

Maylie to bear the surgical scars. unrecompensed. This is con-

trary to the decisions of the federal and state courts cited herein

and for this reason it is respectfully submitted that this Petition

for Writ of Certiorari should be granted.

Respectfully submitted,

BY. ff htnuhle a ete

Joseph’Smukler

Counsel of Record and

Attorney for Petitioner

Of Counsel:

MEYER, LASCH, HANKIN & POUL

1200 One East Penn Squar Bldg.

Philadelphia, PA 19107

12

APPENDICES

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT J. MAYLIE, JR. : Civil Action

C.

NATIONAL PASSENGER RAILROAD _ : No. 51-1964

CORP., vwk/a AMTRAK

CIVIL JUDGMENT

Before POLLAK, J;

AND NOW, this 15th day of March 1982, in accordance with

the jury's answers to interrogatories and the direction of the

Court,

IT IS ORDERED that Judgment be and the same is hereby

entered in favor of Defendant, National Passenger Railroad Cor-

poration, aka AMTRAK, and against Plaintiff, Robert J. Maylie,

Jr., together with costs.

BY THE COURT:

ATTEST: AMELIA FEARS

Deputy Clerk

A-l

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT J. MAYLIE, JR. Civil Action

v.

NATIONAL RAILROAD PASSENGER; No. 51-1964

CORPORATION, aka AMTRAK

ORDER

For the reasons stated from the bench of February 4, 1983,

it is ORDERED that the jury verdict in favor of defendant is

hereby SET ASIDE and plaintiffs motion for a new trial is

GRANTED.

February 8, 1983.

POLLAK, J

A-2

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT J. MAYLIE, JR. Civil Action

v.

NATIONAL RAILROAD No. 51-1964

PASSENGER CORPORATION

ORDER

Upon consideration of defendant's motion for reconsider-

ation, and plaintiff's response thereto, it is hereby ORDERED

that defendant's motion to reopen argument is GRANTED. A

hearing in this matter will be held in Courtroom 13B on Friday,

March 25, 1983, at 10:00 A.M. Counsel are requested to have

Mr. Daniel Sinisi present at that hearing to testify.

March 14, 1983

POLLAK, J.

A-3

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT J. MAYLIE, JR. : Civil Action

v.

NATIONAL RAILROAD PASSENGER ; No. 81-1964

CORPORATION, a/k/a AMTRAK

ORDER

For the reasons stated from the bench on May 5 and on

May 12, 1983, it is hereby ORDERED that the Order of Febru-

ary 5, 1983 granting plaintiffs motion for a new trial is VA-

CATED and that the jury verdict in favor of defendant and

against plaintiff is reinstated.

May 13, 1983 '

POLLAK, J. 4

At

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT J. MAYLIE, JR. - Civil Action

NATIONAL RAILROAD PASSENGER |: No. 51-1964

CORPORATION, waka AMTRAK

ORDER

Upon consideration of plaintiffs motion for reconsideration,

and defendant's response thereto, it is hereby ORDERED that

plaintiff s motion is DENIED

June 5, 1983

POLLAK, J.

APPENDIX F

CLOSING ARGUMENTS OF COUNSEL

AND DECISION OF THE

HONORABLE LOUIS H. POLLAK

MR. SMUKLER: I would just make one statement, if I may

on this. I'm sure that on this issue, at least, the question is not

someone meeting the burden of proof of whether it’s believed or

not believed as to what the men thought. What we are talking

about here is what this gentleman did, what Mr. Scott did. Did

it so act upon the men so that any of the men were chilled be-

cause of what he said from coming forward to testify? So the only

point I want to make is I don't think we are talking about meet-

ing the burden of proof whether it’s more likely or less.

The question is did his actions make it so that individuals

felt harassed and fearful of coming forward with testimony in this

case. I just wanted to make that statement. I think it’s impor-

tant, what I’m trying to say, at least, on this one issue.

JUDGE POLLAK: I understand.

Mr. Goerwitz.

MR. GOERWITZ: No. I think on the contrary. What, basi-

cally, he is charging is a criminal violation. I think the issue here

really for the Court is the Plaintiffs burden in this matter of

showing what nefariousness was done. I think all he’s managed

to show is, first of all, there are some disgruntled number of peo-

ple, that is, quite a number of people who don't like Scott. That

Maylie approached them about taking their affidavits to get

Steve Scott's job and, as a matter of fact, in any event, none of

this would have really mattered.

No one here has testified or indicated to the Court in any

way their presence would have affected this trial in any manner.

Gibson was the only witness they approached. He was properly

refused to testify by the Court. And there really hasn't been any-

thing else. He wasn't called here, as a matter of fact.

Another witness, there was some indication in the affidavit,

may have known something from the indication — there was an

indication that he probably would have known. There was no in-

dication that he was ever approached by the Plaintiff until after-

wards for an affidavit. There is no indication that his testimony

A-6

was as a result of a conscious act on the part of the Defendant.

MR. SMUKLER: When the Defendant says, “the con-

scious act on the part of the Defendant,” I would just point out

to Your Honor the Kozar case and extensive discussion in that.

The real question is were coercive tactics used. I don't think

they have to be intentional.

Ifa man is standing in front of the boss of the shop and the

boss says to him — and we are getting close to that even from

Mr. Scott — if there were accidents at this shop and if we have

to pay money, that money is going to come out of this shop and

this can affect jobs.

Questions. Some said he said jobs. Some said he said mon-

ies in the job. That that’s going to affect vou. It is going to affect

the money we have for the shop. Questionable jobs. We have

evidence it was jobs. He said it wasn't jobs. What is a man sup-

posed to do?

A man finds himself in a position where he certainly feels

that he should not come forward and there is a great reluctance

to come forward. It was very difficult to get people to come for-

ward in this case at all. No one likes to come in and talk in front

of the boss whom they may be working for. That's what hap-

pened here. And I think that the words in Kozar that there was a

chilling effect, and, if there is a chilling effect on any employees

who might have testified — and it doesn't have to be all of them,

and it doesn't have to be the ones that the Defendant brought in

— if there is a chilling effect, that affects the Plaintiff's rights.

And I think this Court has the duty, if it feels that there was

such a chilling effect on other employees and this employee, to

give the remedy that Kozar talks about which is equitable reme-

dies. It’s not only criminal remedies. It is equitable remedies to

see that justice is done.

That's our argument.

JUDGE POLLAK: This hearing has covered a pretty wide

range of activity, only a small portion of which perhaps is central

to our inquiry.

We have an affidavit from one person, Mr. Sinisi, who says

he declined Mr. Maylie’s request that he appear as a witness be-

cause of his essential concern for maintaining his own status quo

A-7

in the few years before retirement. I think he’s the only affiant

who has asserted that he didn't take some course of action that

would have led him to be a witness in Mr. Mavylie’s lawsuit.

MR. SMUKLER: I think that’s true.

JUDGE POLLAK: That's your recollection.

Is it also your recollection, Mr. Goerwitz?

MR. GOERWITZ: Yes, sir.

JUDGE POLLAK: With respect to Mr. Sinisi, I take it to

be the Railroad's position that, (a), it isn't new evidence in the

sense that he was known about pretrial, and, (b), it’s not very

significant testimony that he was prepared to give or, to be more

precise, was not prepared to give. Mr. Sinisi does not say that

Mr. Scott frightened him out of testifying or, indeed, that any

particular person did.

MR. SMUKLER: I think that’s true. He did not mention

Mr. Scott to my recollection.

JUDGE POLLAK: What he said exactly was, “I have been

asked by Bob Maylie to testify at his trial since I was one of the

men on the barrel when he got hurt. I told him that I did not

want to get involved. That I only have five vears left to go on

Amtrak before I can retire and, knowing the way things are in

the shop, I was very afraid to make waves.”

That's not addressed to Mr. Scott or any other particular

person in management or otherwise.

The range of other claims, that Mr. Scott was oppressive.

coercive, harassed those under him, either disciplined people or

threatened them with discipline for activity adverse to what Mr.

Scott perceived as the interest of Bristol Shops, including testi-

fying on behalf of others who file claims or were the subject of

disciplinary proceedings, that range of allegations I regard as for

the most part beyond anything that I need to resolve for our

present purposes.

What I think I have to focus on is whether there is some

substantial ground to think that Mr. Sinisi is telling the truth. In

effect, saying I would have come forward to be a witness but I

was anxious about what that would do to my own status. That's

an inquiry that doesn't go to the question, assuming the answer

is yes. Mr. Sinisi could reasonably have had such an anxiety. It

A-8

doesn't go to the question whether, in fact, anything bad would

have happened to Mr. Sinisi.

The concern that I think has to be pursued is whether a trial

on a Federal cause of action has been subjected at a proved stage

to some constraint which was untoward in that evidence for one

party or for the other was less full than it might have been

because a witness felt in fear.

Now, it’s in that perspective that I have been reviewing

these affidavits and listening to the witnesses.

Clearly, Mr. Scott is a controversial figure. I hope, Mr.

Scott, vou will at least accept that finding of fact. There are a

number of witnesses who think very highly of Mr. Scott and it’s

most evident from Mr. Scott's rapid rise at Amtrak that he must

be a person of very considerable ability.

It's also evident that there are a number of people who do

work or have worked at Amtrak who are not among Mr. Scott's

great admirers. I will acknowledge that some of the people who,

at least from the witness stand, liked Mr. Scott the least or have

given the least flattering profile of him are people that I do not

find very compelling. I do not find myself overwhelmed by con-

fidence in what Mr. Cappecci had to say, what Mr Boeta had to

say, what Mr. Wilks had to say. Indeed, I guess with Mr.

Capecci it was about all that we collectively could do to get some

testimony out of him. However, I don't regard it as my function

to be conducting a popularity contest among witnesses. What |

do distill out of the testimony which I think is clearly credible is

this. Mr. Scott himself has told us that he pointed out to the

members of the shop that injuries cost money to the budget of

the Bristol Shops. And that a blow to the budget of the Bristol

Shops is something that raises questions as to how it conducts its

operations.

I'm not pretending that these are Mr. Scott's words; but, in

substance, I understood Mr. Scott to have been acknowledging

that was a message that he communicated to his people as part of

an effort to instill safety lessons in them. Mr. Scott quite vigor-

ously denied saying that he had said anything to the effect that

the burden on the budget of Bristol Shops caused by injuries

could reflect itself in layoffs.

A-9

Now, several witnesses testified to hearing Mr. Scott speak-

ing at a meeting of the shop personnel and delivering a message

which sounds very much like the message which Mr. Scott him-

self recalls having conveyed. I find that all our talking about at

least one common meeting on the steps adjacent to Mr. Scott's

office, there may well have been more than one such occasion,

but it seems to me clear that there was at least one. There are

variations in the reporting as to just how far Mr. Scott did go in

delivering his message. We have Mr. Cunha and Mr. Leach ex-

plicitly drawing a connection between the cost to the Bristol

Shops of recoveries by personnel for injuries and lay-offs.

Mr. Leach went further contributing to Mr. Scott's state-

ment by helping them, that is to say, claimants for injuries, you

are hurting yourself. By my recollection of the witnesses today

we have substantial confirmation of Mr. Cunha’s understanding

of Mr. Scott's words.

From Mr. Ketterer and, perhaps, from Mr. Romano, nei-

ther Mr. Ketterer nor Mr. Romano committed themselves to a

particular form of words. Mr. Ketterer did seem to recall a link-

ing of reduced budgets at the work shop, at the shop, to possible

lay-offs. Mr. Romano seemed in general to accept a formulation

pretty much like Mr. Cunha’s recital, but did not come to rest

on a particular form of words.

Mr. Frankenfield did recall some linking of losses due to in-

juries with an impact on the budget. Frederick Kiernan recalled

Mr. Scott saving we have to really come to grips with this acci-

dent problem.

It seems to have been an agreement that Mr. Scott was talk-

ing in the context of what has been characterized as a rash of

accidents. But Mr. Kiernan had no recollection about any con-

nection with the budget.

Out of this I draw the conclusion that Mr. Scott spoke em-

phatically about the threat to the physical integrity of the work

shops, of the Bristol Shops, due to the claims which were likely

to arise from injuries, and gave the impression to his listeners

whom he had gathered together to give this message to that a

threat to the Bristol Shops’ budget might have deleterious con-

sequences for collective interest of those working there.

A-10

I don't think I can confidently make a finding that Mr. Scott

did say lay-offs may follow. 1 certainly don't think I can confi-

dently make a finding that he did not say that lay-offs will follow.

Nor do I feel that I can confidently make a finding one way or

another as to Mr. Scott's having gone on to say, as Mr. Leach

says he said, if you help those people, you are hurting your-

selves. It seems to me entirely possible that Mr. Scott spoke

more emphatically than he now recollects. He clearly meant to

give them a significant message to his listeners

The weight of that message is clear from the fact that up-

wards of two vears later several persons, including detractors of

Mr. Scott, to be sure, or persons who perceive themselves in an

adversary relationship to Mr. Scott, as Mr. Cunha does, but also

including persons, such as Mr. Ketterer and Mr. Romano. who

plainly think very highly of Mr. Scott, all remember this forceful

talk. All received the lesson that Bristol Shops might well be ad-

versely affected in a way that personnel should take serious note

of by further injury claims

Now, we have heard testimony from some people who, as I

have made plain, I find of marginal reliability; Wilks, Cappecci,

Boeta, about reprisal carried out by Mr. Scott or threatened by

Mr. Scott or those working under him for persons somehow per-

ceived as hostile to the good interests of the Bristol Shops,

whether through breaches of discipline or safety violations or

testimony in support of personnel involved in one or another of

those activities, or both.

We have heard much testimony from numbers of persons

Who said that not only did they themselves not suffer any such

adversity, although some of them have been injured and filed

claims, others have been subject to discipline or whatever, but

they knew of no such activity or attitude on Mr. Scott's part. |

certainly do not feel on the basis of the record before me that

there is a ground for concluding that Mr. Scott has been and is

now the kind of supervisor that carries out such vindictive and

really lawless behavior as disciplining emplovees for the pursuit

of their rights or the proper support of fellow employees.

I find no basis for attributing that kind of activity to Mr.

Scott. I do, however, conclude that the message which it is com-

A-1]

mon ground that Mr. Scott delivered was one which could, as to

some members of the work force, carry with it a sense of very

serious caution about the freely giving testimony in a lawsuit,

such as Mr. Maylie’s.

Though it is quite plain to me that many stalwart persons

wouldn't be deterred at all, have indeed filed claims and gave

testimony, | am bound to conclude that I would think it not un-

reasonable for some employees of lesser stamina and others of

perceived vulnerable status to be anxious about being placed in

the kind of context that one might be placed in, would be placed

in, by a request to testify in an injury with respect to an injury

claim brought by a member of the Bristol Shop, such as Mr.

Mavlie was.

Now, all this comes to a focus in my mind with Mr. Sinisi.

We have Mr. Sinisi’s uncontradicted affidavit from which I have

already read. Confirmation that he was approached by Mr.

Maylie and that he declined Mr. Maylie’s request that he testify

comes from Mr. Cunha who heard Mr. Maylie approach several

people, one of them was Mr. Sinisi, and heard Mr. Sinisi say |

would rather not get involved. Now, whether Mr. Sinisi’s testi-

mony would be significant or not in enlarging the present rec-

ord, that is the present trial record, I don't find easy to assess. |

think there are persuasive reasons for saving that Mr. Sinisi’s ad-

ditional testimony would have been merely cumulative.

Mr. Maylie testified to the events which led to his injury.

Mr. Warden was a witness and, if the only issue before this

Court were the discovery of a Mr. Sinisi who was out there but

simply wasn't identified in time for trial and who now wishes to

come forward to testify as to his observations, the events of Mr.

Maylie's accident and of the physical environment, the ground

contours and so forth, I think I would probably conclude that the

additional testimony was not of such consequence as to raise a

serious likelihood that it would have affected the jury's decision.

But the problems I tried to suggest at the beginning of my

remarks doesn't seem to me to be limited in that way. What |

conclude we have here is that Mr. Sinisi did not testify at the

trial out of anxiety about what such activity on his part might

lead to. I have no basis for measuring Mr. Sinisi’s stamina: but.

A-12

by his own representation, he is close to retirement and it is fair

to attribute to him also it’s a very compelling reason not to take

actions which would possibly lead to the erosion of what clearly

is his major asset, his expectation of retirement benefits, and in

good order, and staying employed until retirement comes

about.

I repeat that I do not find a basis for saying that anything

maligned would have happened to Mr. Sinisi had he come for-

ward to testify. Indeed. my confident expectation is that nothing

would have happened except that he would have been subjected

to the pitiless and very likely effective cross-examination of Mr.

Georwitz. But that certainly nothing would have happened to

him affecting his career in any adverse sense.

What I do conclude is that in the context of the atmosphere

at the Bristol Shops among personnel, who have been so em-

phatically advised by Mr. Scott, of the link between injury

claims and the budgetary wholeness of the shops and the impli-

cation that that linkage has for hazard to the security of those

working at the Bristol Shops.

In that context I think it is a reasonable conclusion, and it is

my reasonable conclusion, that Mr. Sinisi could have under-

standably felt that it was not in his interests to be a witness on

Mr. Mavylie’s behalf. That conclusion leads me to the further

conclusion that the trial of Mr. Maylie’s suit against Amtrak took

place under a constraint that is inappropriate for any Court, it

is inappropriate for this Court. and is a constraint that a Fed-

eral Court must pay special heed to when the cause of action is

Federal in nature, and nurtured by Congress, as claims under

the Federal Employers Liability Act have been for three-quar-

ters of a century. (Emphasis supplied).

The Kozar case referred to in Mr. Smukler’s submission

and part of the line of discussion among counsel and with the

Court gives strong emphasis to what the Federal interest is in

avoiding any kind of constraining impact on the proper presenta-

tion of Federal claims. But, in referring to Kozar, which is 320

Fed. Supp. 335, I want to make it as clear as | can that Lam not

purporting to make any findings here in this context that go in

any way bevond the findings that I have identified. Findings

A-13

that come to focus in what I perceive may have been the reason-

able, even if from a predictive sense, unwarranted anxiety that

led Mr. Sinisi, according to his own affidavit, not to come for-

ward on Mr. Maylie’s behalf. I regard it as sufficient for me to

bring all of the matters that have been addressed in this rather

extended hearing to a focus as thev relate to Mr. Sinisi’s

* nontestimony and the occasion for it.

For these reasons | have concluded that the judgment in

Amtrak's favor and against Mr. Maylie which was entered pursu-

ant to the jury's verdict should be set aside and a new trial had.

And I will enter an order of which, for the reasons that I have

undertaken to outline from the Bench, accomplished that.

MR. GOERWITZ: Could I say something?

JUDGE POLLAK: Yes, indeed.

MR. GOERWITZ: I must have misunderstood the Court. I

thought the Court had this evidentiary hearing but the Court

did not want to make a determination of this seriousness based

on simple, unsupported affidavits. The Court has now relied

principally on just that in deciding this.

1 understood Mr. Smukler was going to bring these wit-

nesses in for cross-examination. We have the Court now relying

upon the affidavit of a witness who was not brought in, whose

absence was totally unexplained, who, as far as I know, has been

available at each hearing date. I would ask the Court at least

leave to bring Mr. Sinisi in. I had assumed Mr. Smukler was go-

ing to bring in those people that were important. The one wit-

ness the Court relies on, he didn't bring in. Now the Court is

making a decision in that, (a), he was intimidated by Steve Scott,

and (b), his testimony would be relevant and pertinent.

Could we subpoena him and bring him in, Your Honor, be-

fore this, I think, rather serious determination is made on the

basis of an affidavit?

JUDGE POLLAK: Mr. Goerwitz, Mr. Sinisi’s affidavit has

been part of this record. I think its purport was plain. We have

confirmation from another witness that he heard a conversation

between Mr. Sinisi and the plaintiff Mr. Maylie.

MRO GOERWITZ. That was after the trial, though, Your

Honor

JUDGE POLLAK: However that may be, I don't think

from the perspective of the determination | was making that it’s

necessary to have Mr. Sinisi. Obviously, I would not have ob-

jected had he been brought forward as a witness, but I certainly

supposed his affidavit for what it said was part of the record in

this case. Mavbe I'm missing something here.

MR. GOERWITZ: I was misled, Your Honor. It was per-

haps my fault. I thought the purpose of these hearings was be-

cause the Court did not wish to rely on mere affidavits.

JUDGE POLLAK: I did not wish to rely on affidavits to ad-

dress what seemed to be a strongly mounted set of charges

which, at their farthest edge, kind of went to the integrity of the

processes governing the Bristol Shops. I think I have made it

plain that I do not find a basis for concluding that the coercion,

the malign activity attributed to Mr. Scott, abusing his responsi-

bilities, was sustained. But what I hoped this hearing would

help me establish, I'm not setting myself up as some far-reach-

ing Grand Jury with figuring how to administer the Bristol

Shops, was a far narrower issue.

As certainly as the hearing came into focus and as it became

plainer and plainer that I shouldn't be policing the whole issue.

Far narrower when an affiant says that he was afraid to make

waves or whatever the formula was that Mr. Sinisi used, there

was a context within which that was said that was comprehensi-

ble. And I have concluded from the testimony of the witnesses I

have heard as I do not think I could have confidently concluded

on the basis simply of affidavits and cross-affidavits, had you sub-

mitted them, that that environment was there.

Now, Mr. Sinisi did not assert in his affidavit that Mr. Scott

had threatened him in any way, nor did he even say that he was

present at the meeting to which there has been so very much

reference to which Mr. Scott testified and Mr. Cunha and Mr.

Leach and Mr. Ketterer and Mr. Romano and Mr.

Frankenfield. Even Mr. Kiernan. And I have not in my determi-

nation this afternoon made any finding that Mr. Sinisi had ever

been told anything directly by Mr. Scott in an apparent conver-

sation, or even that he was present when this general statement

A-15

was made. So I have not thought for the purposes of the findings

I was making that I needed to examine Mr. Sinisi himself.

As I say, I wouldn't have been adverse to hearing him if you

or Mr. Smukler wanted to bring him forward.

MR. GOERWITZ: I wasn't the one bringing forward this

issue. I thought Mr. Smukler would call him. We will trv this

case and Mr. Sinisi says I don’t know very much about this and

we have tried this case all over again. I think there has to be

some testimony that his testimony would be significant in the

outcome and there is none.

JUDGE POLLAK: Obviously, it's not detailed. but he is

apparently prepared to give testimony as to what happened in

the lifting of this very heay y vessel and also testimony as to the

unevenness of the ground on which various people were work-

ing, including Mr. Maylie, Mr. Warden and himself, Mr. Sinisi.

MR. GOERWITZ: May all be true. May not be. What I'm

saying, you are making a determination to try the case all over

again without knowing it. That is a sine qua non.

JUDGE POLLAK: I think that much I find set out in Mr.

Sinisi's affidavit. And, as I say, if that were all simply presented

as “newly discovered evidence” in a context in which there was

no ground for thinking that there was any inappropriate con-

straint — I mean inappropriate in the received sense. not any-

thing that was done to Mr. Sinisi — I do not find that was a

ground for setting a trial aside. But in this context that we have

this matter presented, I mean received. that it’s an appropriate

exercise of my discretion to direct a new trial.

MR. GOERWITZ: I would think. Judge, if this constraint

existed, when Mr. Maylie asked the witness to testifv, he would

have told Mr. Smukler and Mr. Smukler should have brought

that out here, not wait till after the verdict when he loses — I'm

sorry.

JUDGE POLLAK: I appreciate vour disagreement with my

ruling. I will enter an order to that effect.

MR. SMUKLER: Thank you, Your Honor.

CERTIFICATE

I hereby certify that the proceedings, evidence and objec-

tions noted, are contained fully and accurately in the notes taken

by me on the hearing in this matter; and that this is a correct

transcript of the same.

AREA-WIDE FEDERAL REPORT-

ING, INC.

By:

Loretta Melling

A-17

STATEMENT FROM THE BENCH

In Support of Order of May 13, 1983

APPENDIX G

THE COURT. I'm gratified to have heard from Mr. Sinisy

and also to have heard again from Mr. Mavlie. In hearing from

Mr. Sinisy, I was undertaking at Mr. Shestack’s suggestion with

a View to confirming or rebutting the inferences that I have

drawn from his affidavits and his deposition, | was undertaking

to focus on the question which seemed to me and continues to

seem to me critical, namely, whether Mr. Sinisy’s acknowl-

edged wish not to get involved through testimony was a reflec-

tion of fear that something detrimental would happen to his job

status including his anticipated retirement and the benefits con-

nected therewith. | had concluded earlier in this proceeding and

find no reason to retreat from it that there has been within the

Bristol Shop from a period prior to and contemporaneous with

Mr. Maylie’s accident an environment of constraint generated in

very considerable part by Mr. Scott's statements that the con-

straint related particularly to claims against the railroad arising

out of accidents and increased costs that this would impose and I

have concluded that it was certainly reasonable within that envi-

ronment for personnel to feel that testimony adverse to the

railroad would or at least could lead to some form of reprisal or

detriment at Mr. Scott's hands.

Paralleling, that. | concluded that I had no ground tor sup-

posing that that would in fact have happened but only that per-

sonnel might reasonably have supposed something of that sort

might have followed but I felt and continue to feel that the par-

ticular question before me was whether Mr. Sinisy was a person

who would have retrained from testifving out of such fear. I ex-

pressed the view earlier and I continue to add here to the view

that one may well have a spectrum of personnel some of stronger

fiber than others and the issue for me was how about Mr. Sinisy.

Was his desire not to be involved one that derived from this

sense of fear that some might have had that testifving for Mavlie

would be or could be detrimental to their own individual inter-

ests in their job and job related benefits?

I concluded last week on the basis of the affidavits and de-

A-15

position and after substantial argument that I could not so find

with respect to Mr. Sinisy, that he had expressed himself as not

wishing to be involved quite clearly but had not said that it was

out of fear of Mr. Scott or for his job situation and indeed had in

his deposition expressly denied that. I have now heard Mr.

Sinisy. I have questioned him and I have listened to the ques-

tions put to him by Mr. Shestack and I remain persuaded that

the inferences I drew last week were the proper ones.

Mr. Sinisy has reaffirmed that he did not then wish to be

involved and that he so made plain to Mr. Maylie and has con-

tinued so to do. Mr. Sinisy has testified today consistently with

his deposition testimony that he advised Mr. Maylie that if it

were absolutely necessary, he would testify. He has testified to-

day that he felt that he should testify under subpoena, not as a

volunteer. Mr. Maylie in his testimony today recounts much of

what Mr. Sinisy has said about not wanting to be involved and

indeed recalls Mr. Sinisy saying to him, Mr. Mavylie, essentially

the things that were said by Mr. Sinisy in his first affidavit about

his five vears left on the job and his wish not to make waves, his

determination not to make waves. Mr. Maylie has not in his tes-

timony recalled Mr. Sinisy’s statement that he, Mr. Sinisy,

would if — Mr. Maylie has not denied such may have been said

by Mr. Maylie.

I find no reason to — There is in effect no square conflict of

testimony here. I can understandably conclude that Mr. Mavlie

drew the inference which was explicitly supported that Mr.

Sinisy did not wish to testify but I see no reason to discredit Mr.

Sinisy's statement under oath today and before Judge Hall that

he did acknowledge that he would testify if it were absolutely

necessary.

Mr. Sinisy’s statement that his testimony would have been

unnecessary, wouldn't have added anything was, of course, an

observation which may have seemed to have been a matter of

common sense but obviously was no substitute for a lawver's

perception, most particularly Mr. Smukler’s perception as to

what would have added to the trial.

Atall events, the short of it is that I find no reason to change

my conclusion that Mr. Sinisy whom I have listened to and ob-

served has been telling the truth in saving that he is nondesired

A-19

to be involved though clearly it reflected a disinclination to get

into an adversary relationship with his employer on a voluntary

basis was not grounded in a fear that if he did testify most espe-

cially under the compulsion of a subpoena that something ma-

lign would happen to him in his job situation. He has repeated

clearly that he did not so fear and that he remains ready to speak

truthfully throughout. I find no reason to disbelieve him and so I

reaffirm my conclusion announced last week but essentially put

into suspense on the basis of Mr. Shestack’s request that I hear

from Mr. Sinisy in person, that I have no proper basis for direct-

ing a new trial for the purpose of including the testimony of Mr.

Sinisy and, therefore, I will now enter an order vacating my ear-

lier decision directing a new trial and entering a judgment on

the jury's verdict for the defendant railroad.

I thank vou all.

(The plaintiff 's wife raised her hand.

THE COURT: Mrs. Mavlie —

THE PLAINTIFF'S WIFE: You haven't read them letters

that was sent to them and there were 25 letters that were in my

pocketbook. They were dated before my husband's injury and I

don't — Mr. Sinisy wasn't one of the men who wrote that letter.

If vou ll read those letters, there was a lot of men in that shop.

You could read them letters and it was said it was fear and

harassment in that.

THE COURT: Mrs. Mavylie, I have no reason to doubt that

those letters say what you say they did. I have already come to

the conclusion and I think I mentioned it a few minutes ago that

there was an atmosphere of constraint within which railroad per-

sonnel could be expected, some of them to be in fear and I said

against that background that the question for me was was Mr.

Sinisy within that group. I didn't read these letters that Mr.

Smukler has put into the record because they only go to the very

point that I've already found to be true, this atmosphere of con-

straint and fear and so they don't add anything to a determina-

tion that I've already made.

A-20

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. $3-1412

ROBERT J. MAYLIE, JR.,

Appellant

D.

NATIONAL PASSENGER RAILROAD

CORPORATION aka AMTRAK

(Civil No. $1-1964 — E.D. Pa.)

District Judge: Honorable Louis H. Pollak

Submitted Under Third Circuit Rule 12:6

September 13, 1953

Before: SEITZ, Chief Judge, GIBBONS and

ROSENN, Circuit Judges.

JUDGMENT ORDER

After consideration of the contentions raised by appellant,

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

Costs taxed against appellant.

BY THE COURT,

Chief Judge

Sally Mrvos, Clerk

Dated: September 15, 1983

A-21

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 53-1412

ROBERT J. MAYLIE, JR.,

Appellant

v.

NATIONAL PASSENGER RAILROAD

CORPORATION awk/a AMTRAK

(Civil No. 51-1964 — E.D.Pa.)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH.

HIGGINBOTHAM, SLOVITER, BECKER.

and ROSENN, Circuit Judges,

The petition for rehearing filed by appellant in the above

entitled case having been submitted to the judges who partici-

pated in the decision of this court and to all the other available

circuit judges of the circuit in regular active service, and no

judge who concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in regular active

service not having voted for rehearing by the court in banc, the

petition for rehearing is denied.

By the Court,

Collins J. Seitz

Chief Judge

Dated: October 17, 1983

APPENDIX J

§ 51. Liability of common carriers by railroad, in interstate or

foreign commerce, for injuries to employees from negli-

gence; definition of employees

Every common carrier by railroad while engaging in com-

merce between any of the several States or Territories, or be-

tween any of the States and Territories, or between the District

of Columbia and any of the States or Territories, or between the

District of Columbia or any of the States or Territories and any

foreign nation or nations, shall be liable in damages to any per-

son suffering injury while he is employed by such carrier in such

commerce, or, in case of the death of such employee, to his or

her personal representative, for the benefit of the surviving

widow or husband and children of such employee; and, if none,

then of such employee's parents; and, if none, then of the next of

kin dependent upon such employee, for such injury or death re-

sulting in whole or in part from the negligence of any of the offi-

cers, agents, or employees of such carrier, or by reason of any

defect or insufficiency, due to its negligence, in its cars, engines,

appliances, machinery, track, roadbed, works, boats, wharves,

or other equipment.

Any employee of a carrier, any part of whose duties as such

employee shall be the furtherance of interstate or foreign com-

mence; or shall, in any way directly or closely and substantially,

affect such commerce as above set forth shall, for the purposes of

this chapter, be considered as being employed by such carrier in

such commerce and shall be considered as entitled to the bene-

fits of this chapter.

Apr. 22, 1905, ¢.149, § 1, 35 Stat. 65, Aug. 11, 1939, c. 685. § 1.

53 Stat. 1404.

APPENDIX K

§55. Contract, rule, regulation, or device exempting from li-

ability; set-off

Any contract, rule, regulation, or device whatsoever, the

purpose or intent of which shall be to enable any common car-

rier to exempt itself from any liability created by this chapter,

A-23

shall to that extent be void: Provided, That in any action brought

against any such common carrier under or by virtue of any of the

provisions of this chapter, such common carrier may set off

therein any sum it has contributed or paid to any insurance, re-

lief benefit. or indemnity that may have been paid to the injured

emplovee or the person entitled thereto on account of the Injury

or death for which said action was brought.

Apr. 22. 1908, ¢. 149, § 5, 35 Stat. 66.

APPENDIX L

§ 60. Penalty for suppression of voluntary information. inci-

dent to accidents; separability of provisions

Any contract, rule, regulation, or device whatsoever, the

purpose, intent, or effect of which shall be to prevent emplovees

of any common carrier from furnishing voluntarily information

to a person in interest as to the facts incident to the iniury or

death of any employee, shall be void. and whoever, by threat.

intimidation, order, rule, contract, regulation, or device whatso-

ever, shall attempt to prevent any person from furnishing volun-

tarily such information to a person in interest, or whoever dis-

charges or otherwise disciplines or attempts to discipline any

emplovee for furnishing voluntarily such information to a person

in interest, shall, upon conviction thereof, be punished by a fine

of not more than $1,000 or imprisoned for not more than one

vear, or by both such fine and imprisonment, for each offense:

Provided, That nothing herein contained shall be construed to

void any contract, rule, or regulation with respect to any infor-

mation contained in the files of the carrier, or other privileged or

confidential reports.

If any provision of this chapter is declared unconstitutional

or the applicability thereof to any person or circumstances. is

held invalid, the validity of the remainder of the chapter and the

applicability of such provision to other persons and circum-

stances shall not be affected thereby.

Apr. 22, 1908, c. 149, § 10, as added Aug. 11, 1939, ¢. 685. § 3.

53 Stat. 1404.

A-24

ee

APPENDIX M

Affidavit

I, Daniel Sinisi, make the following statement.

Taman M. W. Repairman at the Bristol Shops, working for

AMTRAK and have been working there since July 23, 1979. I

am still working there.

I had been asked by Bob Maylie to testify at his trial since I

was one of the men on the barrel when he got hurt.

I told him I did not want to get involved, that I only have

five (5) vears left to go on AMTRAK before I can retire and

knowing the way things are in the Shops, I was very afraid to

make waves.

As I said, I was the man who came over when Jimmy War-

den and Bob Maylie were lifting a barrel into a dumpster. The

barrel was very. heavy and they couldn't get it up into the

dumpster. I had to help tip it over into the dumpster because

they couldn't get it all the way over.

The conditions in that area between the track and Jimmy

Warden's trailer was not smooth. It has stones, ballast and areas

of grease and oil. There was no defined walkway or pathway be-

tween the track and Jimmy Warden’s trailer.

s/ Daniel Sinisi

DANIEL SINISI

I, Daniel Sinisi, hereby declare that the statement which I

made above is true and correct. I understand that these state-

ments are made subject to the penalties of 1S Pa. C. §. §4904,

relating to unsworn falsification to authorities.

6/16/82 Daniel T. Sinisi

Date

A-25

APPENDIX N

Affidavit

I, Robert J. Maylie, Jr.. make the following statement.

Betore my trial, I made attempts to see people who worked

at the Bristol Shops to testify as to the conditions where I was

hurt.

On several occasions, | parked my car off AMTRAK prop-

erty to trv to talk to men coming into work at the Shops. Work

started at 7:00 A.M. and I was there before 6:30 A.M. to talk to

the men about this. A number of cars stopped and I asked the

men if they would come into Court to testify at trial as to condi-

tions Where I was working. They said they don’t want to get in-

volved because of the way things were at Bristol Shops. that if

they testified for me there would be holy-hell tor them at work.

that they had to feed their families and they didn't want to lose

their jobs.

One time, when I was parked out there. a car of men from

the Shops stopped and when I started to talk to them a foreman.

Mike “Sisco”, was driving up and the men in the car said. “Here

come one of the bosses. We can't be talking to you.”

s Robert J. Maylie. Jr

Robert J. Maylie. Jr.

I, Robert Maylie, hereby declare that the statement which

I made above is true and correct. | understand that these state-

ments are made subject to the penalties of IS Pa. ©. S. $4904.

relating to unsworn falsification to authorities.

61652 Robert J. Mavlie. Jr.

Date

APPENDIX O

Letter

Ernie

First complaint is — that the union representative Mike

Philips is never around when you want him and that I have at

least called him 20 times and have never got my phone messages

returned.

Second complaint is — | am always at work between 6:15 &

6:30 A. M. I had testified at one of the workers trial that they

had charged him for being late for work — and I saw him in work

on time.

Ever since | have testified for this man — that Steve Scott

said that everyone that testified for him — had put one foot in

their grave. On February 11, 1951 1 got called into the office by

Steve Scott and he said to me that I was standing around doing

nothing. He is a liar, because | was working.

Iam not the only one that is being harassed, at least ten (10)

other people are being harassed too.

Third complaint is — That Warren Goodman & Mike Cisco

— who are General Foreman’s are also harassing the man.

Mike Cisco does not know how to talk to the men he treats

them like dirt, and uses foul language when he talks to them.

and that Steve Scott knows it.

Robert J. Maylie, Jr.

A-27

APPENDIX P

Affidavit

I, Daniel Theodore Sinisi, am 5S vears of age. my date of

birth is January 6th, 1925. My social security number is 210-12-

0733. L reside at 236 Glouster Road, Fairless Hills, Pennsylvania

19030. My home telephone number is 943-8027. T have lived

here for approximately 4 years. I live here with my wife

Clorrine, age 50, and my son Daniel Sinisi, Jr.. age 23. Prior to

this I lived at 12 East Lane. Levittown, Pennsylvania. I lived

there for about 9 vears. [can always be reached by calling my

wife's sister Nancy Estadt at 295-6317. Im employed by

AMTRAK. Tam a repairman. [| repair heavy equipment for

AMTRAK. I have worked there for last 4 vears in the same

working capacity. Prior to AMTRAK | worked for Morrisville

Motors located on Bridge Street in Morrisville. LE was a body and

fender repairman there. I worked there for about 12 years. Prior

to that I worked for Pennsylvania Railroad as a repairman and |

was there for 20 years. At my present job at AMTRAK my gang

foreman is Arnold Cunha. I earn about $23,000 per annum but

this does vary from year to year. 1 have a valid Pennsylvania

driver's license 05363201 and it expires January 31st, 1987. Be-

fore we start this statement I want it to be perfectly clear that {1

have never been atraid to give a statement to anyone involving

any accidents as long as it contains and is the truth. | Sometime

during the summer of 1952, I went shopping by myself and 1

remembered it was a Saturday at the Roosevelt Drive-In, Flea

Market. As I pulled into the Flea Market to park. I noticed a

man struggling to get out of his van. I parked and went to him on

foot to see if could help him in any way. By the time I got there

he was already out of his van and then I saw it was Bob Maylie,

“my former co-worker. He and I chatted awhile and then he told

me he had items to sell there. He said that this was his only

means of livelihood. The best way Lean describe his physical be-

ing is that he was having some difficulty in getting around. I do

not wish to comment any further on that. While talking with

Bob he told me that his lawyer, a Mr. Schmuckler called him

and told him he was going to reopen his accident case against

AMTRAK and would I give a statement to his lawyer. I said

A-28

there was nothing I really knew in addition that I thought could

help him in his case, but he insisted and kept telling me any lit-

tle thing would help. I said I would give him his statement if he

wanted it but [ would only tell the truth. It should also be noted

that prior to this time the summer of 1952 I never gave any

statement to anvone nor was I ever interviewed or made any

comments to either the compony or Bob or his attorney or any-

one. However the accident had been openly discussed by all

employees at our shop and only there did I discuss it as did ev-

eryone else. After | did my shopping and left the Flea Market I

had no further contact with either Bob or his lawyer. About or

rather within a time frame of several weeks as I was leaving work

and on the access road from my work I saw Bob stopping several

cars and I then stopped too. Bob approached and asked me tor

my home phone number. I was reluctant to give him my num-

ber as it is unlisted. I really do not remember it I gave him my

number or not but IT must have because I got a phone call from

Bob about a week or so after | stopped at that access road. Bob

requested a meeting with his attorney and I agreed. We made

arrangements to meet at the DeGrand Diner on Rt. 13 near

Bath Road near the Turnpike entrance. Betore I forget I remem-

ber that on the access road also stopped was Arnold Cuna, Tim,

I forget his last name but he was an AMTRAK truck driver and

several others of whom I forget just now. At the DeGrand Diner

I met Bob and a Mr. Schmuckler Bob's lawyer. He was white

male of medium height about near 50 vears of age. We sat down

the three of us, there was no one else present and the lawver

asked about Bob's accident and I told him what I knew. He did

ask If I was ever harrassed by the company to not make any

statements and I replied, “no”. We then got down to the busi-

ness at hand in my making a statement about Bob's accident

which was hand written by Mr. Schmuckler, Esq. [Several of

my statements in the statement were scratched and rewritten

because I took offense as to the way it was worded. | |The third

paragraph states I said I was very afraid to make waves.| I got

tired of rewriting this above short statement or rather the lawyer

rewriting the statement and I got disgusted and finally settled

for the “wave” word signed the thing and left. [The lawver was

constantly making suggestions that I was afraid of Steve Scott my

A-29

superintendent which was positively not so.| Lam not afraid of

anybody. Tam only afraid of making an untrue statement. To

me. “that would make waves’. I did sign one affidavit or state-

ment. Ido not remember signing anv more than one, but Tam

not sure. LT remember about the time frame of Bob's accident our

supervisor Steve Scott gave a speech about cutting down on ac-

cidents and law suits going on. Mr. Scott would on occasion give

talks of different kinds to help improve our company and so

forth. He used to stand on a sort of plattorm that has steps lead-

ing to the lunchroom and when he was giving a speech we called

it going to the steps. We would cut off the fans and shut down

equipment and go to the steps and listen to Mr. Scott make his

announcements. Now about the time of Bob's accident I remem-

ber a black man who had about 3 lawsuits going against the com-

pany and I would judge that is what sparked his speech. The

talks was going around the shop about the black guy and his acci-

dents. He has long since left the company and I do know his

name but I'd rather not divulge it. Mr. Scott never made any

comments or statements to me not to talk to anyone about any

accidents. [Ive never had any problems with Mr. Scott either. |

I cannot afford a comment about anvone not liking Mr. Scott be-

cause in every business and always with management there is

conflict. Before we get into the story itself | must admit that it

was two years ago and my recall is a little fuzzy. My hours at

work are always the same. I work from 7:00 a.m. until 3:30 p.m.

Monday through Friday. I do not remember the day or date but

in any event [arrived for work at 7:00 a.m. and I would guess

somewhere around 9:00 a.m. or so | must have seen Bob and

Jim Warden struggling with a trash barrel. I also want to add

that the above word “struggling” is incorrect to sav as Tam not

sure what they were doing but Lam basically a helpful individual

and in any event I went to help them lift the barrel. I worked as

a Burro Crane repairman adjacent to the access door which leads

out to the trailer which is about 635’ long and was converted to an

office. It is not there at this writing. I want to describe the build-

ing | worked in. It is a metal frame building high enough to

house the cranes. There is a railroad track that runs completely

through my building that we call the house track. The house

track exits a large door that slides up and down electrically. This

A-30

house track runs through our building out the door between the

office trailer and a dumpster about 40 vards or so to what we call

five track I believe. To best describe our house track is to sav it

is not like a normal railroad track. It is more like a trolley track.

that is to say it has been used so much it is flush with the ground.

The ground itself between the trailer and the dumpster is plain

dirt fairly level. Originally the dirt ground was ballast but over

the vears it has been pounded and wore down. You also have to

know that the equipment we repaired is used for laving ties or

cleaning ballast. or etc. So when a piece of equipment comes to

us for repair | would imagine that on occasion that some ballast

does drop off and to the ground there. We all on occasion police

the area by removing stones or things that we think can cause an

accident. There is also an occasional oil dropped by the equip-

ment and [we normally put “oil dry” on the oil to prevent a slip

and fall.} Many many people have walked over this area — the

accident locus — many times over the vears. Also to my knowl-

edge I never knew of anyone suffering any injury at the above

described location. As vou leave my work building the office

trailer is to your left and the dumpster is to vour right. My build-

ing is Hush with the ground or at least reasonably fush with the

ground. To better describe at 10:00 a.m. a lunch truck drives up

the house track and parks at the big door between the trailer and

dumpster. Also the dumpster’s location is altered slightly when

the new dumpster is brought and the old taken they go side by

side. So they are always in the same place but next to each other

as they are moved. Also when they take away the full one they

drag it thus causing the ground to be somewhat uneven. Now

when we are to repair trucks which are around and next to main

office which sits next to trailer and runs the length of my build-

ing, one could walk out and down the house track or rather be-

tween the track and the trailer as we all mostly do. Also at times

we exit our building and then go to right to repair equipment

around the right side of our building. To get back to the grease I

would also like to explain it this way. There is grease and oil on

and about the above described area but it would be like if a

neighbor continually parked his truck in front of your house. It

would naturally leave droppings of grease and oil, so since we

have many hydraulically operated pieces of equipment it is cer-

A-31

tainly natural that there would be evidence of grease or oil. It

should be reminded that oil is quickly absorbed into the ground

— and the oil in question acts that way and we further help it by

placing oil dry on the spots also. I want to also sav that the area

from exit door of my building and between Jimmy Warden's

trailer and dumpster cannot be described as a walkway or path-

way as in my opinion a walkway or pathway is too loose a term to

completely describe. Now back to the story. [remember exiting

my building and seeing Bob and Jim Warden in the process of

dumping a barrel into a small portable shop dumpster which was

sitting on the forks of the fork lift and then lowering the barrel

back to the ground. It was then that I went to them to help as-

sist. Now Tam not exactly sure where Bob and Jim were at this

writing but I would logically judge them to be at the right of the

house track looking from my building and at the end of Jim War-

dens trailer. My reasoning is based on the fact that when Jim

left his trailer the steps do bend thereby causing one to face

away from my building as he leaves the step — so if Jim were to

help Bob lift the trash barrel it would be only normal for Bob to

stop the tork lift at the above described location. I walked the

63' or so to the end of the trailer and helped them lift the trash

barrel. The trash barrel is a regular old 55 gallon metal barrel

with the top cut out. For me to define how heavy it was I simply

cannot due to the fact that Iam fairly strong and usually lift

heavy things all day long so I cannot fairly give an opinion as to

the approximate weight. [All I can sav is the two men were hav-

ing some difficulty lifting the barrel] and I helped. [also cannot

honestly say what the contents of the barrel were because of the

time lapse. The barrel normally and always sits at the end of

Jim's trailer next to the steps. I also cannot recall as to how |

went to their aid. I do not remember if I was called or if I simply

saw them and went on my own or what. Ido not even remember

if the barrel was full or not. In any event all three of us did even-

tually empty the barrel. I also want to mention I do not remem-

ber what happened to the barrel after we emptied it. That is who

took the barrel where? I remember nothing else. Also after we

emptied the barrel I do not remember if Bob mentioned if he

was hurt or not. What I do remember is about 15 minutes later

or thereabouts someone came to me and told me Bob was hurt. I

A-32

do not remember who that someone was. I do not remember

any dates to that either what I remember is that I was told Bob

went into the office and made an accident statement out. This is

all I know that is the end of the story. I do wish to add that be-

tore Bobs first trial I was asked by Bob if | would testify if neces-

sary. I said ves but only tell what I know — I would only tell the

truth. | would not lean to favor either Bob's side or the com-

pany s side. but [if at all possible I would not rather get involved

and that is a quote.| Those were the exact words | told Bob be-

fore his trial. Only last summer as noted in above did I sign a

statement as I already told and and when I sat at the Diner I was

told the statement I gave them was all they needed but there

was a faint possibility | would be Subpoenaed but they did say

they didn't think so. I have read these 13 pages and they are true

and correct

Daniel T. Sinisi

WITNESS

Helen J. Wolf

Notary Public

The above signed statement was taken between the hours

of 2:00 p.m. and 7:00 p.m. on 5 February, 1983 at 236

Gloucester Road, Fairless Hills, Pa.

I Daniel Theodore Sinisi do attest to making the above 9

page statement. I have also read the statement and I do attest to

it being true and factual to the best of my knowledge and recall.

DANIEL T. SINISI

WITNESS

Sworn to and subscribed

before me this 14th day

of February 1983.

Helen J. Wolf Notary Public

My Commission Expires April 2, 1985.

A-33

COMMONWEALTH OF PENNSYLA ANIA

SS

COUNTY OF PHILADELPHIA

I, BRUCE REED, being duly sworn according to law

depose and say that I took the foregoing statement signed by

Daniel T. Sinisi, on February 5, 1953 at 236 Gloucester Road.

Fairless Hills, Pennsylvania

Sworn to and subscribed

before me this 9th day

of February, 1983

NOTARY PUBLIC

A-34

COMMONWEALTH OF PENNSYLVANIA

SS

COUNTY OF PHILADELPHIA

1 DANIEL T. SINISI, being duly sworn according to law,

depose and say that the foregoing statement Is true and factual to

the best of mv knowledge, information and belief and that I

made said statement in good faith

DANIEL T. SINISI

Sworn to and subscribed

before me this 4th day

of February _ 1983

NOTARY PUBLIC

My Commission Expires April 2, 1955

A-35

APPENDIX Q

Form Letter

Robert Maylie Jr

12441 Balston Rd

Philadelphia, PA

Dear Mr. Maytlie

Your personal injury record since vour hiring date has been

less than satisfactory. To date, our records show that your have

had two injuries. Our main concern ts to send our employees

home in the same physical condition as when the arrived for

duty. Safety is of the utmost in the discharge of duty, and it is

something that cannot be ignored, even for a moment

Be advised that any further personal injuries resulting trom

unsafe working practices on your part will result in disciplinary

action.

M. Scott

Division Engineer

A-36