The opinion of the court was delivered by: SNYDER
Plaintiff, Philip F. Scasserra, in propria persona, filed a "Complaint in Action for Violation of Constitutional Rights and for Conspiracy to Violate Civil Rights" alleging jurisdiction in this court under the due process and equal protection clause of the Fourteenth Amendment to the Constitution of the United States, and pursuant to 28 U.S.C.A. Section 1343,
42 U.S.C.A. Section 1983,
and 42 U.S.C.A. Section 1985.
In Count Two of the complaint, the plaintiff alleged that the defendants conspired with each other, and possibly with others, to violate the plaintiff's civil service rights in not permitting him to subpoena more than four witnesses; in permitting an attorney to whisper into the ear of a sworn witness subpoenaed and called by the plaintiff; in rendering a final adjudication on the plaintiff's appeal on July 15, 1971, and not sending it to him until August 10, 1971 within two days of the expiration of a thirty day period allowed for appeal; in denying the plaintiff a transcript of the testimony taken at his hearing before the Commission; in making erroneous findings of fact. All the foregoing allegations are stated to be as a result of a conspiracy, and in this portion of the complaint the plaintiff asks judgment against the defendants, jointly or severally, in the amount of $60,000.
There then is a conclusory section of the complaint which asks for judgments against the defendants, jointly or severally, in the total amount of $100,000; prays that an order will issue reversing the Civil Service Commission's Adjudication and Order; requests punitive damages and injunctive relief to insure the future discontinuation of similar violations against the plaintiff by the defendants; requests an order to reinstate the plaintiff to employment as a Case Worker, permanent status, and to pay plaintiff compensatory back wages from the date of the removal to the date of his reinstatement; and demands immediate separation from the service of all persons holding a position in the classified service who, in this instant case, allegedly violated the provisions of the Civil Service Act and the rules made thereunder.
A brief examination of the history of the case shows that the plaintiff, Philip Scasserra, was appointed a Case Worker Trainee, on a probationary status, by the Fayette County Board of Assistance in October of 1970. Prior to the expiration of the probationary period, plaintiff was informed that his employment had been terminated because of unauthorized absence from work. The plaintiff appealed to the Civil Service Commission and the Commission dismissed the appeal, after hearing, and found that he had been removed for cause. On appeal to the Commonwealth Court, the decision of the Commission was upheld. Scasserra v. Pennsylvania State Civil Service Commission, 4 Pa. Cmwlth. 283, 287 A. 2d 158 (1972). A petition for allowance of appeal to the Pennsylvania Supreme Court was denied on September 19, 1973. Finally, a petition for certiorari to the United States Supreme Court was also denied in March of 1973.
On February 2, 1973, the plaintiff herein filed an action in this court (C.A. 73-107) against the Uniontown Newspapers, Inc., the members of the Fayette Board of Assistance, a member of the Bureau of Employment Security, and the members of the State Civil Service Commission (hereinafter called Commission). This was, also, a civil rights complaint pursuant to the same statutory sections as herein involved. The factual basis for that complaint also arose out of the same dismissal from his position with the Fayette County Board of Assistance. In addition to numerous other allegations, the plaintiff alleged in that proceeding as well, that the Fayette County Board of Assistance had unlawfully conspired to violate his right to equal protection of the law by removing him from his employment as a Case Worker Trainee. While there is greater specificity and detail in the present pleading, the alleged violation of civil rights are the same. That matter was argued before the Honorable Herbert P. Sorg, and in his order of April 19, 1973, Judge Sorg cited the decision of the Commonwealth Court and stated that those issues "are res judicata in that they have been litigated and adjudicated adversely to the plaintiff with respect to plaintiff's allegations of discrimination". Scasserra v. Uniontown Newspapers, Inc., et al (C.A. 73-107, April 19, 1973).
Plaintiff's present complaint at Civil Action 73-359 was filed May 3, 1973 and we can only conclude that the plaintiff filed this new action because of the dismissal of Count Two of the civil action at No. 73-107. The defendants have filed a motion to dismiss under Rule 12(b)(6) of the Rules of Civil Procedure for failure to state a claim upon which relief can be granted.
After an independent review of the proceedings, the opinion of the Commonwealth Court, the record of the proceedings at Civil Action 73-107 and Civil Action 73-359, we hold that the plaintiff's complaint at Civil Action 73-359 must be dismissed.
The instant complaint is concerned with the same alleged irregularities in proceedings before the Commission which the plaintiff complained of in his appeal to the Commonwealth Court of Pennsylvania. Scasserra v. Pennsylvania State Civil Service Commission, supra. The Commonwealth Court's determination against the plaintiff may not be relitigated in this court. In the case of Rodes v. Municipal Authority of the Borough of Milford, 409 F.2d 16 (3d Cir. 1969) it was held that the Civil Rights Act may not be used as a device for federal review of a state judgment, or for litigating state claims cognizable only in the state court. In Rodes, the petitioner had problems concerning water rights and the transfer of a deed which plaintiff claimed had been given involuntarily. Relief was sought in the state court and after the petition to vacate judgment was dismissed, an appeal was taken to the Supreme Court and was later discontinued. The plaintiff, some time later, filed a civil rights action alleging that the Borough had wrongfully diverted her water supply. The District Court dismissed the complaint and the Circuit Court affirmed and stated:
"We have observed that the preparation of the complaint in this case and the perfection of this appeal have both been accomplished without the assistance of a lawyer. The appellant's kinswoman who has served as her "attorney in fact" has diligently expended much time and effort in this matter. However, the failure of the complaint to disclose any federal wrong indicates the wisdom of the district court's suggestion to the plaintiff that professional counsel should be retained, especially where, as here, the controversy has involved many transactions and no tenable theory of federal wrong is apparent."
"The present action is plainly barred by the final judgment in the state litigation, which is res judicata. . . it is clear that the plaintiff is seeking merely to relitigate the entire case in this Court, in the hope of a more favorable result. Needless to say, there is no ...