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PIERCE v. CATALYTIC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 26, 1977

WELTON PIERCE
v.
CATALYTIC, INC.

The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

 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 application of the two-year statute because the Circuit Court was applying state law:

 

"* * * [We] are not persuaded that the Court of Appeals was mistaken in applying the two-year state statute. * * * We are not disposed to displace the considered judgment of the Court of Appeals on an issue whose resolution is so heavily contingent upon an analysis of state law, particularly when the established rule has been relied upon and applied in numerous suits filed in the federal district courts in Virginia. In other situations in which a federal right has depended upon the interpretation of state law, 'the Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state law issue without such guidance might have justified a different conclusion' * * *". Id. at 181.

 In the instant case, the Circuit Court has implied that the six-year statute applies. Thus, the Runyon case does not require us to apply the personal injury statute of limitations.

 We are aware that the law in this area is still in a state of flux and that the Third Circuit in Wilson v. Sharon Steel Corporation, supra, provided only a guideline, not a rule of law. Therefore, we hold that the six-year statute is applicable to § 1981, but realize that further developments in the law could mandate an opposite ruling. Accordingly, we will deny the defendant's motion to dismiss the § 1981 action, without prejudice to renewing the motion upon the occurrence of such further developments.

 PLAINTIFF'S TITLE VII ACTION

 Defendant also moves to dismiss plaintiff's action under Title VII as time barred by the personal injury statute. However, it is clear that while plaintiff did institute proceedings over two years after the discharge date, he also filed within 90 days of receipt of his "Conciliation Failure, Notice of Right to Sue", which is the time period set forth in 42 U.S.C. § 2000e-5(f)(1). As we noted in our prior decision of Pinckney v. County of Northampton, et al., C.A. No. 75-2770 (E.D.Pa. 1976), this type of provision "is extensive and detailed statutory treatment of the timing of Title VII actions" which "is inapposite to the situation prevailing in actions based on 42 U.S.C. § 1983 because § 1983 is silent on the question of the period of limitations". § 1981 is also silent, so Title VII is inapposite to § 1981 situations as well. In other words, we look to state statutes of limitations in § 1981 actions but not Title VII actions. Title VII has its own time limitations, and plaintiff in this case has satisfied those limitations.

 Accordingly, defendant's motion to dismiss plaintiff's Title VII action will also be denied.

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 430 F. Supp.]

 ORDER

 TROUTMAN, J.

 AND NOW, this 26th day of April, 1977, IT IS ORDERED that defendant's motion to dismiss:

 1. plaintiff's actions under 28 U.S.C. § 1332, 28 U.S.C. § 1361 and 28 U.S.C. §§ 2201 and 2202, is GRANTED;

 2. plaintiff's action under 42 U.S.C. § 1981 is DENIED without prejudice;

 3. plaintiff's action under 42 U.S.C. § 2000e is DENIED.

 E. MAC TROUTMAN / J.


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