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PENNSYLVANIA v. GLICKMAN

January 15, 1974

Commonwealth of Pennsylvania et al., Plaintiffs
v.
Stephen A. Glickman et al., Defendants


Teitelbaum, District Judge.


The opinion of the court was delivered by: TEITELBAUM

Plaintiffs seek to enjoin the defendants from allegedly engaging in unlawful racial discrimination in the recruiting, testing and hiring of applicants for the position of firefighter with the City of Pittsburgh Bureau of Fire. Jurisdiction is properly invoked under 28 U.S.C. § 1343(3) and (4) in that plaintiffs' complaint states a claim for relief under 42 U.S.C. § 1981 and § 1983 and the Fourteenth Amendment to the Constitution.

On June 4-8, 1973, a hearing was held on plaintiffs' request for a preliminary injunction. *fn1" Before the findings of fact made upon the evidence introduced at that hearing can be summarized, it is necessary that several preliminary matters be dealt with.

 Class Determination

 The defendants contend that the named plaintiff, Alvin Bailey, properly represents only a very small class, namely those black persons who share with him the history of dealings with the Bureau of Fire set out below. Bailey himself applied for the position of firefighter with the City in 1966, failed the written test given in that year, reapplied in 1972 and passed the written test, but failed the physical performance test.

 The Court would not have been justified in imposing the restrictive limitations defendants suggest in determining the class. In the first place, it must be recognized that the plaintiff Bailey, as a black who alleges injury in fact by virtue of defendants' discriminatory policies, has standing before the court to bring this action. Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Assoc. of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). Named plaintiff's satisfaction of the standing element, along with a showing that the requirements of Rule 23(a) and 23(b) (2) *fn2" have been met, assures that the litigation may proceed as a class action. Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968). Once these basic requirements have been shown to be satisfied, the Court may then, in its discretion, ascertain the scope and extent of class membership, bearing in mind, in this instance, that subdivision (b) (2) was added to Rule 23 primarily to facilitate the bringing of civil rights class actions. See Advisory Committee's Note reprinted at 39 F.R.D. 98, 102. Of course, even before the 1966 Amendments (e.g., Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)), and even without an allegation or finding that a Rule 23(b) (2) class is involved (e.g., Penn v. Stumpf, 308 F. Supp. 1238 (D.C. Cal. 1970)), class actions challenging racially motivated discrimination have been permitted. The class action is a vehicle uniquely suited to the resolution of civil rights issues. The Order of June 6, 1973 will not be revised or amended.

 COMMONWEALTH AS PLAINTIFF

 Defendants assert that the Commonwealth of Pennsylvania has no standing to maintain this action and must be dismissed. They allege that no injury to the Commonwealth has been demonstrated in this case and that the Commonwealth's participation serves only to further a tendency toward hypothetical lawsuits tried without real parties in interest.

 Whatever the merits of the policy considerations defendants forward, they are without a basis in case law for their insistence that the Commonwealth be dismissed as party plaintiff. The Supreme Court, in Hawaii v. Standard Oil Co., 405 U.S. 251, 92 S. Ct. 885, 31 L. Ed. 2d 184 (1972), after outlining the expansion of the concept from its beginnings in medieval England, held that the right to sue as parens patriae includes the right to recover for damages to the state's quasi-sovereign interests -- defined generally as the health and welfare of its citizens. Racially discriminatory employment practices would unquestionably impair the welfare of Pennsylvania's citizenry. In accord with Com. ex rel. Rafferty v. Phila. Psychiatric Center, 356 F. Supp. 500 (E.D. Pa. 1973), I hold that the Commonwealth of Pennsylvania has standing in this case under the doctrine of parens patriae.

 THE CITY AS DEFENDANT

 In City of Kenosha v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973), the Supreme Court held that a municipal corporation is not a "person" within the meaning of 42 U.S.C. § 1983 when equitable relief is sought under that statute. Earlier, it had been held in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961) that a municipal corporation was not a "person" under the statute when damages were sought under Section 1983. Therefore, as is conceded by plaintiffs, their Section 1983 cause of action against the City of Pittsburgh must be dismissed.

 Plaintiffs contend, however, that the city must remain a party to the suit because relief is also sought under 42 U.S.C. § 1981. While it is true that private racial discrimination in employment by corporations and unions is actionable under Section 1981, Young v. ITT, 438 F.2d 757 (3d Cir. 1971), in the context of this case it is unnecessary to decide whether a municipal corporation can be liable under Section 1981, or alternatively whether federal question jurisdiction exists over the city under the Fourteenth Amendment. The City of Pittsburgh, therefore, will be dismissed as a party defendant.

 Little or no prejudice can result to the plaintiffs by virtue of the city's dismissal because the various city employees who exercise responsibility over the testing and hiring of Pittsburgh firefighters have been named as defendants in this action. The granting of equitable relief will be just as effective applied to the defendant city employees, as it would if the city per se were retained. Neither Kenosha nor Monroe preclude holding a municipal corporation liable under Sections 1983 or 1981 by means of an action against its employees. Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973).

 Statute of Limitations

 Since the Civil Rights Act neither contains nor refers to a provision limiting the time within which an action may be brought, the applicable statute of limitations for Section 1983 actions is that which would be applied had similar relief been sought in state court, the most nearly analogous state statute of limitations. Henig v. Odorioso, 385 F.2d 491, 493 (3d Cir. 1967), cert. denied, 390 U.S. 1016, 88 S. Ct. 1269, 20 L. Ed. 2d 166 (1969). It has been held that the Pennsylvania two-year statute of limitations for personal injuries is applicable to civil rights actions. Gozdanovic v. Civil Service Commission, 361 F. Supp. 504 (W.D. Pa. 1973).

 The majority of cases which have dealt with employment discrimination problems have devoted little attention to the problem of the statute of limitations to be applied. The question is seemingly discussed most often, for example, only when the back pay award is at issue. The unusual circumstances of this case, however, render the problem of the statute of limitations of some importance. Because the named plaintiff, Alvin Bailey, failed the written examination given in 1966 but passed the 1972 examination (only to fail the physical examination, which employment requirement is not at issue in this case), this case would have to be dismissed as barred by the statute, if a strict two-year statute of limitations were to be applied, or if Bailey were the only black applicant for the position in 1972 who was before the Court.

 But militating against dismissal is the concept of continuing injury, which has traditionally served to limit the application statutes of limitations. As explained in 51 Am. Jur. 2d § 135, p. 705:

 
"As another qualification of the general rule, in case the wrongful act is continuous or repeated, so that separate and successive actions may be instituted for the damages as they accrue, the statute of limitations does not run, as to such actions for subsequently accruing damages, from the date when the first wrong was suffered, but only from the successive dates."

 Although application of the concept of continuing wrong to the case sub judice requires one to visualize the abstraction of defendants' allegedly discriminatory conduct as being visited upon named plaintiff and the other blacks in the class over a period from 1966 until the filing of the complaint in this action, this is no more difficult an example of abstract conceptualization than is often required in legal reasoning. No more difficult, for example, than that ...


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