Appeal from the Order of the Court of Common Pleas of Tioga County in case of Ruth H. Kovich v. Mansfield State College, Lawrence Park, Donald Darnton, Thomas Phinney, John Rigas, Ila Wiley, H. B. Strickland, Eugene Kelly, Monroe Blake, E. B. Watkins, F. Duane Van Noy and John Heim, No. 1480 Civil Division, 1977.
Joseph L. McCann, Deputy Attorney General, with him C. Glendon Frank, Assistant Attorney General, and Patricia A. Donovan, Deputy Attorney General, for appellants.
Ambrose R. Campana, with him Campana & Campana, for appellee.
Judges Blatt, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 46 Pa. Commw. Page 400]
The appellee, Ruth H. Kovich, filed a complaint with the Pennsylvania Human Relations Commission
[ 46 Pa. Commw. Page 401]
(Commission), in which she alleged sex discrimination in employment against Mansfield State College (College) and against its president, its past president and its Board of Trustees (individual defendants). When the Commission was unable to resolve the case within one year of the filing date, it informed the appellee of her right to institute an action in the appropriate court of common pleas, pursuant to Section 12(c) of the Pennsylvania Human Relations Act*fn1 (Human Relations Act). She then filed a complaint in the Court of Common Pleas in Tioga County. To this complaint the College and the individual defendants filed preliminary objections challenging the jurisdiction of that court, and, when these objections were overruled, the College and the individual defendants appealed here.
The College and the individual defendants argue that Section 5110 of the Judicial Code, 42 Pa. C.S. § 5110 (Act 152) bars the present action. This statute was enacted in response to the Supreme Court's decision in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) which abrogated sovereign immunity in the Commonwealth, and it specifically reaffirms and preserves the immunity of the state from suit except in eight delineated categories. We believe, however, that neither the decision in Mayle, supra, nor the subsequent enactment of Act 152 has any effect on the appellee's cause of action here under the Human Relations Act.
The Human Relations Act affords the appellee a private right of enforcement against her employer for alleged discriminatory practices. She is a public employee, of course, but the legislature obviously meant to allow an aggrieved public employee to bring
[ 46 Pa. Commw. Page 402]
an action against his or her employer, the Commonwealth, for it included the Commonwealth under the term "employer" in Section 2 of the Act, 43 P.S. § 954. The appellee's claim therefore is not one sounding in trespass and thereby affected by Act 152, the recent enactment as to sovereign immunity, but rather it is a statutorily created cause of action against the Commonwealth as an "employer," not the Commonwealth as a sovereign entity.
It should be noted also that Section 4 of Act 152, which addresses the subject of repeals effected by the reinstatement of sovereign immunity, refers only to Section 5.2 of the Human Relations Act. Section 12 of the Human Relations Act, under which the appellee is here proceeding is not mentioned. We must ...