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December 5, 1974

NAN PENDRELL, Plaintiff,

The opinion of the court was delivered by: TEITELBAUM

On December 10, 1971, the plaintiff in these actions, a former associate professor of anthropology at Chatham College, filed suit under 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) alleging that her Constitutional rights under the First, Fifth and Fourteenth Amendments had been violated when her contract of employment with defendant college was not renewed ( Pendrell v. Chatham College, et al., 370 F. Supp. 494). On January 23, 1974, this Court entered an opinion (370 F. Supp. 494) on defendant's motion to dismiss in that case, holding that because Chatham College was a private institution the "state action" requisite of § 1983 was not met and plaintiff was unable to state a claim for relief under that section. The January opinion also held that plaintiff had stated a cause of action under § 1985(3).

 On June 24, 1974 plaintiff filed, under a new civil action number, what is captioned an Amended Complaint. The case is now before the Court on defendants' motion to dismiss plaintiff's amended complaint.

 Defendants originally moved to dismiss the amended complaint for lack of diversity jurisdiction. However, they withdrew that contention when plaintiff filed an affidavit stating that she is and has been a resident of the State of New York. The defendants are residents of the State of Pennsylvania. Therefore, the amount in controversy exceeding ten thousand dollars, the parties being citizens of different states, original diversity jurisdiction exists in this Court over this action. Of course, the fact that jurisdiction exists does not necessarily lead to the conclusion that plaintiff has stated at this number a claim upon which relief can be granted. It is to this latter point that the remainder of defendants' contentions in support of their motion to dismiss are directed.

 In order to provide a context for the discussion which will follow, the new "causes of action" alleged in plaintiffs' amended complaint will be listed seriatim. 1.) Paragraph 31 of the amended complaint alleges that the defendant violated plaintiffs' rights under the First and Fourteenth Amendments to the Constitution of the United States and Article I, Section 7 of the Constitution of Pennsylvania. *fn1" 2.) Paragraph 32 of the amended complaint purports to seek damages for the alleged violation of the Fifth and Fourteenth Amendments to the Constitution of the United States; 3.) Paragraph 33 of the amended complaint seeks damages based upon violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article One, Section Nine of the Constitution of Pennsylvania. *fn2" 4.) Paragraph 34 of the complaint alleges that this Court may permissibly exercise pendent jurisdiction over the State law claims made in the remaining paragraphs. The first of these state law claims is the allegation that defendant Eddy defamed plaintiff on or about October 30, 1971 and again on or about May 26, 1972; 5.) Paragraph 36 of the amended complaint alleges that a trespass actionable under state law was committed by defendants in the fall of 1971 when they failed to renew plaintiff's employment.


 Plaintiff's attempt to annex state law claims to this case will be discussed first. The Court is urged to exercise what plaintiff terms its "pendent" jurisdiction over the state law allegations of defamation and trespass made in the amended complaint. Both "pendent" and "ancillary" jurisdiction mean that a Federal District Court may acquire jurisdiction of a case or controversy as an entirety, and may, as an incident to disposition of a matter properly before it, exercise jurisdiction to decide other matters raised by the case, matters of which it could not take cognizance were they independently presented. Wright, LAW OF FEDERAL COURTS, § 9, p.19, (2d ed. 1970). Pendent jurisdiction exists where a Federal Court has Federal question jurisdiction over the original claim, whereas ancillary jurisdiction exists where the Court has exercised diversity jurisdiction over the original claim. Since plaintiff has urged and the Court has found that original jurisdiction exists in this action by virtue of the Court's diversity jurisdiction, plaintiff's urging that this Court hear her State law claims might be more properly labelled a request that the Court exercise ancillary rather than pendent jurisdiction. Under any circumstances, the exercise of ancillary or pendent jurisdiction is discretionary with the Court. That is to say, while it is Constitutionally permissible to look to considerations of judicial economy, convenience and fairness to litigants and hear appended state law claims, it is not Constitutionally required. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Wright, LAW OF FEDERAL COURTS, supra. §§ 9 and 20. With this background in mind, plaintiff's State law claims will be scrutinized.

 In the first place, it is readily apparent that plaintiff has stated no cause of action under the Pennsylvania Constitution. Article I, Section 7 of the Constitution of Pennsylvania, quoted above, a section of the Pennsylvania Bill of Rights, imposes a limitation upon the power of the State to interfere with freedom of the press and freedom of speech, but contains no self-executing private cause of action, express or implied. Moreover, plaintiff cites the Court to no Pennsylvania case law which implies such a cause of action from this section of the state Constitution.

 Article 1, Section 9 of the Pennsylvania Constitution, quoted above, also is devoid of any reference, express or implied, to a private cause of action for violation of the rights granted in that section. Moreover, by its express terms, Section 9 applies to criminal prosecutions. There is nothing in the original complaint, in the amended complaint, nor in the known facts surrounding this case which relate in any way whatsoever to a criminal proceeding. Plaintiff is clearly unable to state a cause of action under the two above cited sections of the Pennsylvania Constitution.


 Plaintiff's state law claims for defamation and trespass, present a closer and more difficult question. Defendant claims that plaintiff's defamation and trespass actions are barred by the one-year Pennsylvania statute of limitations for torts. 12 Pa. Stat. Ann. §§ 31, 32. Plaintiff, on the other hand, asserts that because she had filed another suit with this Court based upon the same general transaction or series of events which form the basis of the instant amended complaint, the Pennsylvania statute of limitations was tolled with the filing of the first case. The issue is not quite as simple as either party apprehends it to be.

 Rule 15(c) of the Federal Rules of Civil Procedure reads in relevant part as follows:

"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." *fn3"

 For purposes of this motion, and because plaintiff has captioned it as such, plaintiff's amended complaint filed in June of 1974 shall be deemed to be an amended pleading within the meaning of F.R.Civ. P. 15(c).

 Professors Wright and Miller at 6 FEDERAL PRACTICE AND PROCEDURE, § 1497 summarize the learning applicable to Rule 15(c) *fn4" ...

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