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RICHARD E. LAW v. GERY J. FISHER AND JAMES B. WILSON (03/27/79)

decided: March 27, 1979.

RICHARD E. LAW, PLAINTIFF
v.
GERY J. FISHER AND JAMES B. WILSON, SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, DEFENDANTS



Original jurisdiction in case of Richard E. Law v. Gery J. Fisher and James B. Wilson, Secretary of the Pennsylvania Department of Transportation.

COUNSEL

John E. Domalakes, with him Rubright, Domalakes, Troy & Miller, for plaintiff.

Clifford B. LePage, Jr., and Frank A. Fisher, Jr., Assistant Attorney General, with them Robert W. Cunliffe, Deputy Attorney General, and Gerald Gornish, Acting Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 41 Pa. Commw. Page 390]

Defendants Gery J. Fisher and James B. Wilson, the former Secretary of the Pennsylvania Department of Transportation (PennDOT), have filed preliminary objections in the nature of a demurrer, inter alia, to a complaint in equity filed by Richard E. Law (Plaintiff), a former PennDOT employee.*fn1

The complaint, which invokes our original jurisdiction, alleges that Plaintiff's removal from his appointed position as a Highway Maintenance Superintendent V was the result of a practice of patronage that runs afoul of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985(3), and resulted in a deprivation of his right of freedom of association, due process and equal protection. He seeks reinstatement to his former position, backpay dating from his unlawful dismissal, and an injunction against defendants' firing him in the future for any reason other than substandard work performance.

[ 41 Pa. Commw. Page 391]

The factual averments of Plaintiff's complaint indicate that he was a PennDOT employee who performed his duties in an exemplary manner and was dismissed from his position as a result of "pressure" exerted by Gery J. Fisher, the Chairman of the Democratic Committee of Berks County, because of Plaintiff's association with a "rival faction" of the Democratic Party in Berks County. Plaintiff further alleges that he was informed of his dismissal via a letter from John Harhigh, Director of PennDOT's Bureau of Personnel, which dismissed him ostensibly for substandard work performance.

Although the complaint does not specify whether this action is being brought against Defendant Wilson in his official or individual capacity, our original jurisdiction is limited to civil actions or proceedings brought against a state officer acting in his official capacity, 42 Pa. C.S. § 761(a)(1), and we will so limit our consideration of the sufficiency of this complaint.*fn2

42 U.S.C. § 1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the ...


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