The opinion of the court was delivered by: SNYDER
This Civil Rights action was brought by LeRoy W. deMarrais against the Community College of Allegheny County (College), John B. Hirt, President of the Board of Trustees and chief executive officer of the College, and the Members of the Board of Trustees, as a result of his termination of employment with the College. Defendants have filed a Motion to Dismiss, and the same will be granted in part.
deMarrais was hired by the College in March of 1967 as Vice President and was given the task of organizing a West Mifflin campus. His title was changed in September of 1967 to Campus Vice President and his annual salary was fixed at $25,000.00. In October of 1972, deMarrais was informed that the College was reorganizing its staff and that his services would no longer be needed. After he was notified of his termination, deMarrais entered into an oral contract with John Hirt on behalf of the College whereby deMarrais would serve as President of the South Campus from December 1972 through November 1973. deMarrais alleges that contrary to an agreement that he would make the public announcement of the reorganization plans, Hirt made the public announcement; furthermore, on or about March 30, 1973, Hirt, in a letter to deMarrais, informed deMarrais that his services with the College would be terminated as of July 1, 1973. When the College refused to pay him for the balance due on his alleged contract and when it failed to rehire him, deMarrais filed a Writ of Mandamus in the Court of Common Pleas of Allegheny County at No. 2105, January Term, 1974A, on November 21, 1973. The Writ was denied on March 8, 1974 by Judge Weir, who found that there was no existing contract between the parties; that termination of employment was proper and that the Plaintiff had no common law or statutory right to tenure; and that deMarrais was therefore subject to termination at will. (See Appendix A) The Commonwealth Court of Pennsylvania affirmed per curiam whereupon deMarrais instituted this Civil Rights action on June 12, 1975. (See Appendix B)
The Defendants' Motion to Dismiss raises the bar of the statute of limitations and that of res judicata or collateral estoppel arising from the decision of the Commonwealth Court.
I. THE STATUTE OF LIMITATIONS.
Clearly, the defense of the statute of limitations can be raised in a motion to dismiss, Harrington v. Yellin, 158 F. Supp. 456 (E.D.Pa.1958); Hankinson v. Pennsylvania Railroad Company, 160 F. Supp. 709 (E.D.Pa.1958), and actions in Federal Court under the Civil Rights Act are governed by the statute of limitations of the State on the most analogous cause of action. Thus, the Court in Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974) said (at p. 814):
"Since there is no federal statute of limitations with respect to civil rights actions arising out of 42 U.S.C.A. § 1983, the court below properly held that the Pennsylvania statute of limitations for analogous actions should be applied." (Citations omitted)
In the instant proceedings, the Plaintiff alleges a cause of action in which Hirt, on August 21, 1973 purportedly telephoned other college employees to tell them that deMarrais was behaving in an irrational manner and was returning to South Campus without authority, and further alleging that Hirt wrote a letter to the Trustees on August 21, 1973 stating that deMarrais had behaved irrationally and had mentioned something about a gun in talking with Hirt.
This cause of action is construed to be that of slander and the applicable Pennsylvania Statute is provided in 12 P.S. § 31:
See Loughrey v. Landon, 381 F. Supp. 884 (E.D.Pa.1974).
This cause of action for slander will, therefore, ...