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February 11, 1980

Edward J. WEST
The WILLIAMSPORT AREA COMMUNITY COLLEGE by its Board of Trustees et al.

The opinion of the court was delivered by: NEALON


The above-captioned action, filed on November 10, 1977, asserts separate federal causes of action under 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and the Fourteenth Amendment, and a pendent state law claim for breach of contract. *fn1" Plaintiff, a former professor at the Williamsport Area Community College (WACC), contends that he was unconstitutionally denied a pre-termination hearing and that his discharge violated his employment contract. Defendants, WACC, past and present members of WACC's Board of Trustees, and several past and present administrative officials of the College, *fn2" have moved for dismissal *fn3" of all or part of plaintiff's amended complaint on four grounds: (1) plaintiff's federal claims are barred by the applicable statute of limitations; (2) those defendants who were not associated with WACC at the time plaintiff was discharged cannot be held individually liable on plaintiff's damage claims; (3) plaintiff has failed to allege a cause of action under 42 U.S.C. § 1985(3); and (4) defendant WACC is not subject to suit under the Civil Rights statutes pursuant to which plaintiff proposes to proceed. *fn4"

 Each of the grounds asserted by defendants is amenable to summary adjudication. Resolution of individual questions does not turn upon particular findings of fact and it is not essential to examine information dehors the pleadings. Full consideration of each ground, however, is unnecessary. The statute of limitations defense, the one totally dispositive issue defendants have raised, is meritorious. *fn5" Accordingly, the federal claims will be dismissed as time-barred and I will decline to exercise pendent jurisdiction over plaintiff's state law claim. *fn6"


 On February 9, 1973, plaintiff accepted reappointment to the WACC staff for the 1973-74 academic year as an allegedly tenured associate professor in the School of Applied Arts and Sciences. On May 29, 1973, plaintiff was notified that his employment with the college was being terminated effective August 31, 1973. The letter from the Office of the President of the College advised plaintiff that he was being retrenched because of declining enrollments. On July 3, 1973, plaintiff requested the College Board of Trustees to "reconsider" his termination. *fn7" No action was taken on this request and plaintiff was discharged from the College on August 31, 1973.

 This action was instituted more than four years later. Plaintiff contends that defendants denied him due process by terminating his position with the College without prior notification and without an opportunity for a hearing. *fn8" As relief for this purported denial of due process plaintiff seeks reinstatement to his former position with back pay, reinstatement of pension benefits, punitive damages, a declaratory judgment, and reasonable attorney's fees.


 Because Congress has not prescribed a limitation period for actions under the Civil Rights statutes, federal courts apply the state statute of limitations that would be applicable "had an action seeking similar relief been brought under state law." Polite v. Diehl, 507 F.2d 119, 122 (3rd Cir. 1974) (en banc ). Defendants content that the procedural due process claim falls squarely within the Pennsylvania two-year personal injury statute of limitations. *fn9" Plaintiff, on the other hand, argues that the general six-year statute of limitations *fn10" governs the instant action. *fn11"

  In arguing that the six-year limitations period applies, plaintiff cites as dispositive Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3rd Cir. 1977), and Davis v. United States Steel Supply, 581 F.2d 335, 337 (3rd Cir. 1978). Those cases, however, are factually inapposite and do not control the limitations defense raised here. In Meyers, the court held that the six-year limitations period applied to an action under 42 U.S.C. §§ 1981 and 1982 charging racial discrimination in housing because the federal cause of action was analogous to the common law tort of wrongful interference with another's economic rights or interests, to which the Pennsylvania courts have applied Pa.Stat.Ann. tit. 12, § 31. In Davis, the court, declaring that a claim under 42 U.S.C. § 1981 for racial discrimination in employment practices resembled state law causes of action for violation of the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43, §§ 953, 955 (Supp.1980) (Purdon), or breach of an at-will employment contract, also applied the six-year statute of limitations. *fn12" In neither case did the court purport to rule that the six-year limitations period applies to all civil rights actions. Indeed, in each action the court specifically restricted its ruling to the facts before it and emphasized that other federal claims may be governed by different limitation periods. Meyers, 559 F.2d at 903, n.27; *fn13" Davis, 581 F.2d at 341 n.8. *fn14"

  Although not dispositive of the statute of limitations defense, Meyers and Davis do establish the method by which the courts of this circuit are to determine which of the several state statutes of limitations should be applied to a federal cause of action under the Civil Rights statutes. *fn15" A two-pronged inquiry is to be pursued. First, the essential nature of the federal claim must be characterized. For example, does the federal cause of action sound in tort or in contract? And second, the specific state cause of action most similar to the acts alleged in the complaint must be identified. Meyers, 559 F.2d at 900-01; Davis, 581 F.2d at 338-39. That is, if the action sounds in tort, does it most nearly resemble wrongful interference with economic interests or intentional infliction of mental distress?

 Resolution of the first of the two inquiries, the characterization of plaintiff's federal claim, is aided by reference to the Supreme Court's extended procedural due process discussion found in Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978), which raised the issue of whether damages should be presumed from a failure to provide students with a hearing prior to their suspension from school. The Court, after noting that 42 U.S.C. § 1983 "was intended to "create a species of tort liability ' in favor of persons who are deprived of "rights, privileges, or immunities secured' to them by the constitution," id. at 253, 98 S. Ct. at 1047 (emphasis added), rejected the argument that damages should be presumed and held that "the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law." Id. at 259, 98 S. Ct. at 1050. The Court concluded that, since procedural due process, a highly elastic constitutional right, seeks to minimize wrongful deprivations of protected interests, *fn16" and "to convey to the individual a feeling that the government has dealt with him fairly," id. at 262, 98 S. Ct. at 1051, mental and emotional distress caused by the denial of procedural due process would be compensable under 42 U.S.C. § 1983.

 It is evident from a reading of Carey that a procedural due process action sounds in tort. See Burt v. Abel, 585 F.2d 613, 616 (4th Cir. 1978). Contract damages are not awardable simply because a person has been denied an opportunity for a hearing. Before such damages may be awarded, the deprivation of a protected interest must be unjustified, i.e., substantively unsupportable. But a denial of procedural due process by itself, even though the deprivation of the protected interest is justified, will sustain a damage action for mental and emotional distress, injuries compensable under the law of torts but not the law of contracts. See Restatement (Second) of Torts § 47, Comment b (1965); Restatement (Second) of Torts § 903 (1979). *fn17"

 Viewing the instant action from these three perspectives compels the conclusions that the appropriate common-law tort analogue here is intentional infliction of mental distress and, therefore, that the two-year limitations period applies. *fn19" Unlike Meyers, *fn20" defendants' conduct in the matter sub judice did not cause an unjustified termination of the employment contract. See Unified School District No. 480 v. Epperson, 583 F.2d 1118, 1121 (10th Cir. 1978); Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, 577-78 (7th Cir. 1975) cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976); Zimmerer v. Spencer, 485 F.2d 176, 179 (5th Cir. 1973). If the retrenchment was unjustified, it is because some substantive right had been violated and not because the plaintiff was denied the opportunity for a pretermination hearing. *fn21" Second, again unlike Meyers, the complaint here directly concerns emotional or psychic injury that is primarily intangible rather than tangible. Finally, the relief properly awardable for denial of due process approximates that which is available for intentional infliction of mental distress. The denial itself gives rise to substantial non-punitive damages if plaintiff proves mental or emotional distress. While equitable relief is available, it is not as broad and as encompassing as that which is available where the claimant has been discriminatorily discharged or fired on grounds violating his First Amendment rights. *fn22" Since proof that a person has been deprived of a property interest without due process does not establish that his claim of entitlement is meritorious, see Perry v. Sindermann, 408 U.S. 593, 603, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570 (1972), but simply means that official action may not be taken until constitutionally required hearings have been afforded, equitable relief is ordinarily limited to having the dispute resolved through the necessary proceedings. *fn23" Such equitable relief does not seek to reinstate the contractual relationship but to further the twin aims undergirding procedural due process: minimizing wrongful deprivations and conveying a feeling of fairness. Thus, although the ...

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