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August 1, 1979


The opinion of the court was delivered by: NEWCOMER


Before this Court for the third time, plaintiffs seek the same relief they sought in 1972, and were granted in 1975. See Zichy v. City of Philadelphia, 392 F. Supp. 338 (E.D.Pa.1975). They ask this Court to hold that defendant's pre-March 1975 maternity leave policy for its employees violated their rights and the rights of the class they represent. *fn1" After again reviewing the merits of their claim, the Court has decided to grant plaintiffs the relief requested as to their federal claims and reserve decision on the remaining state law issues.

 As the Court found in its earlier opinion, prior to March 1975, defendant distinguished maternity leave from sick leave. Under its sick leave policy,

". . . a city employee continue(d) to earn his or her normal salary and to accrue seniority, (did) not lose the privilege of taking promotional examinations for the time out, ha(d) the time out credited for service and . . . receive(d) the same raises as other employees in his or her classification who were not on sick leave. In addition, the employee continue(d) to accumulate sick leave while on leave, . . . suffer(ed) no adverse effect on promotions, . . . resume(d) the same position held prior to the commencement of such sick leave upon return, and . . . ha(d) no change in anniversary date of employment, pension plan, vacation time, and other fringe benefits as a result of using the sick leave." Id. at 340-41.

 Maternity leave was without pay and only entitled the employee to retain the same position upon returning to the job, if the leave did not exceed six months. A woman who was absent from work because of a pregnancy that did not have complications was eligible solely for maternity leave.

"For such women, the consequences of having to take maternity leave rather than using sick leave (were) significant. Besides receiving no pay for the period of absence, the employee on maternity leave los(t) the benefits, mentioned above, which she enjoy(ed) in the use of sick leave. During maternity leave, the employee accumulate(d) neither seniority, sick leave, nor vacation time, her time required for annual increment and anniversary date (was) deferred for the period of the maternity leave, and the annual rate of pay for her pension purposes (was) lowered for that particular year by the period of leave." Id. at 341-42.

 Based upon these facts, this Court found that defendant's policy of denying the use of sick leave for pregnancy-related disabilities violated Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C. § 2000e Et. seq.

 The reason why the Court must decide plaintiffs' claim anew is explained by a brief review of the history of this case. During the pendency of the defendant's appeal from this Court's 1975 decision, the Supreme Court issued General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), its first major decision in the Title VII pregnancy benefits area. Based on that decision and its own ruling in EEOC v. Children's Hospital of Pittsburgh, 556 F.2d 222 (3d Cir. 1977), Cert. denied, 434 U.S. 1009, 98 S. Ct. 718, 54 L. Ed. 2d 751 (1978), the Court of Appeals reversed this Court's decision and dismissed all of plaintiffs' Title VII claims. The case was remanded to this Court to allow plaintiffs to seek amendment of their complaint by adding a state law claim under the Pennsylvania Human Relations Act, 43 P.S. § 955. Zichy v. City of Philadelphia, 559 F.2d 1210 (3d Cir. 1977). This Court denied plaintiffs' motion to amend their complaint, declining to exercise pendent jurisdiction over the state claim. Zichy v. City of Philadelphia, 444 F. Supp. 344 (E.D.Pa.1977). Plaintiffs appealed that decision and argued on appeal that the previous decision of the Court of Appeals was overly broad; they contended that Gilbert did not require dismissal of all Title VII claims. In December 1977, the Supreme Court had decided Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S. Ct. 347, 54 L. Ed. 2d 356 (1977), its second major case in the Title VII pregnancy benefits field, and based on that opinion, plaintiffs argued that with the exception of their complaint concerning lack of pay during maternity leave, the Court of Appeals was required to reverse its prior decision and to reinstate this Court's decision. After considering plaintiffs' argument, the Court of Appeals, on January 5, 1979, reversed this Court's denial of plaintiff's motion to amend to add a claim based on state law and remanded the case for reconsideration of plaintiffs' motion to amend and plaintiffs' Title VII claims in light of Satty and Eberts v. Westinghouse Electric Corp., 581 F.2d 357 (3d Cir. 1978). Zichy v. City of Philadelphia, 590 F.2d 503 (3d Cir. 1979).

 Returning to step one, this Court must now rule on plaintiffs' motion for summary judgment, which addresses the merits of their Title VII and state law claims. But before doing so, it is necessary to address the motion to amend the complaint.

 Motion to Amend the Complaint

 It its earlier decision, this Court found that although Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend the complaint shall be freely given when justice so requires, denial of plaintiffs' motion was necessary. Plaintiffs sought to add a claim under the Pennsylvania Human Relations Act, and since there was no independent basis for the Court's jurisdiction they asked it to invoke its pendent jurisdiction over the state law claim. The request was refused and the motion was denied because the Court did not believe that in its discretion pendent jurisdiction should be exercised.

 When a federal court is asked to assume pendent jurisdiction over a state law claim, it must address two issues, one of power, the other of discretion. With regard to the question of power to hear a state law claim, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), instructs that a court has the power to assume pendent jurisdiction when substantial federal issues exist and the plaintiff's claims, without regard to their federal or state character, "are such that he would ordinarily be expected to try them in one judicial proceeding." Id. at 725, 86 S. Ct. at 1138. The question of discretion is one of whether the policies of pendent jurisdiction would be served if the Court assumed jurisdiction over the state law claims. Id. United Mine Workers v. Gibbs, supra. Although doubting its power to entertain pendent jurisdiction, since all federal claims had been dismissed at that stage, this Court declined to exercise pendent jurisdiction for discretionary reasons. It found that the essence of plaintiffs' case was their claim under the Pennsylvania Human Relations Act and that, since the state law issue was unclear, it would be more appropriate for the state claim to be resolved by a Pennsylvania court.

 But circumstances have changed rendering the exercise of pendent jurisdiction over the state law claim within the Court's power and appropriate. As explained below, the Court finds that plaintiffs are entitled to recover on their federal claims. Therefore, as substantial federal issues exist, the Court has the power to hear state law claims arising from the same facts and that would be expected to be tried together. Id. United Mine Workers v. Gibbs, supra. Discretion also directs accepting pendent jurisdiction. The objections voiced by this Court to its exercise no longer have a basis in fact. The state law claims do not constitute the body of the case. And the Pennsylvania Supreme Court has taken action which relieves most of the doubts the Court had as to state law.

 The Pennsylvania Human Relations Act, 43 P.S. § 955, provides, in part, that it shall be an ...

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