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PIERCE v. CATALYTIC

April 26, 1977

WELTON PIERCE
v.
CATALYTIC, INC.



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 Plaintiff, a black male, is bringing this action alleging unlawful racial discrimination by his employer, Catalytic, Inc. *fn1" Plaintiff asserts jurisdiction under 28 U.S.C. § 1332, 28 U.S.C. § 1361, 28 U.S.C. § 2201 and § 2202, 28 U.S.C. § 1331, 28 U.S.C. § 1343(4) and 42 U.S.C. § 2000e-5(f), charging that defendant violated his rights under 42 U.S.C. § 1981 and § 2000e (§ 1981 and Title VII) by discriminatorily terminating his employment.

 Plaintiff alleges that he was employed by defendant from January 22, 1974, to March 15, 1974, at which time he was discharged. On June 25, 1974, plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that his termination was due to defendant's unlawful discrimination against blacks. On September 19, 1975, the EEOC issued a determination and found that there was "reasonable cause" to believe that race was a factor in plaintiff's discharge. On May 6, 1976, however, the EEOC advised both parties that efforts at conciliation had failed, and on July 27, 1976, it issued a "Conciliation Failure, Notice of Right to Sue" to plaintiff. On October 5, 1976, plaintiff instituted this action.

 Defendant is moving to dismiss all counts.

 DISCUSSION

 Defendant is unquestionably entitled to dismissal on three counts. First, it quite properly asserts that there is no diversity between the parties because plaintiff is a Pennsylvania resident and defendant is a corporation with its principal place of business in Pennsylvania. Thus, there is no jurisdiction under 28 U.S.C. § 1332. Also, there is no jurisdiction under 28 U.S.C. § 1361 because that section deals with mandamus actions and there are no government figures involved in this case. Thirdly, there is no jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 because those sections only create a remedy and do not confer jurisdiction.

 Defendant is also moving to dismiss the § 1981 and Title VII actions, claiming that they are barred by the applicable Pennsylvania Statute of Limitations. Plaintiff instituted proceedings in this Court over two and one-half years after his discharge and defendant now argues that Pennsylvania's personal injury limitations statute, 12 P.S. § 34, applies, barring this action after the expiration of two years. *fn2"

 PLAINTIFF'S § 1981 ACTION

 Because 42 U.S.C. § 1981 does not contain a period of limitations, we must look to the limitations period which would be applied to a similar action under state law. Johnson v. Railway Express Agency, 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). Defendant argues that 12 P.S. § 34 applies, while plaintiff counters that 12 P.S. § 31 is applicable and that the period should be six years. *fn3"

 The courts have been divided on this matter. *fn4" Recently, the Third Circuit in Wilson v. Sharon Steel Corporation, 549 F.2d 276 (3d Cir. 1977) issued the following guideline:

 
"* * * In determining the applicable limitation period, we call the attention of the district court and counsel to the authorities cited in 22 Pennsylvania Law Encyclopedia, Limitation of Actions, §§ 31, 32, including Haefele v. Davis, 399 Pa. 504, 160 A. 2d 711, 714 (1960) * * * which might be helpful in determining the applicable period of limitations * * *". Id. at 280.

 The Haefele case held that the filing of the suit in that case "would have satisfied the statutory requirements. It was filed within six years of the original hearing". Haefele v. Davis, supra, at 511. This case was cited in 22 Pennsylvania Law Encyclopedia, Limitation of Actions § 31 supplement, note 85, as illustrative of application of the six-year limitations period. By citing this authority, the Third Circuit has vaguely suggested that the six-year period is applicable to actions brought under § 1981.

 We are not unmindful of defendant's arguments that the Supreme Court, by applying Virginia's two-year statute in the case of Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976), has made the personal injury statute applicable to § 1981 actions. However, Runyon is distinguishable. The Court was affirming a Circuit Court ...


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