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MAZUR v. DEPARTMENT OF REVENUE

June 30, 1981

John MAZUR, Plaintiff,
v.
DEPARTMENT OF REVENUE, COMMONWEALTH OF PENNSYLVANIA; Commonwealth of Pennsylvania and Milton Lopus, Defendants



The opinion of the court was delivered by: RAMBO

MEMORANDUM

In the complaint of the captioned matter, which was filed on January 5, 1981, plaintiff alleges he was improperly discharged from his employment and that the defamatory statements allegedly made by the defendants resulted in the imposition of a stigma that has seriously damaged his ability to take advantage of other employment opportunities. On February 23, 1981, defendants filed a motion to dismiss, which was supported by a brief filed on March 4, 1981. After requesting and receiving an extension of time in which to file a response, plaintiff filed his response brief on April 28, 1981, followed by defendants' reply brief filed on May 11, 1981. The motion to dismiss is ripe for disposition.

 Defendants allege, as the basis for their motion to dismiss, the following:

 
1. The court lacks subject matter jurisdiction:
 
a. The Eleventh Amendment bars this action against the Commonwealth and its Department of Revenue;
 
b. The Eleventh Amendment bars this action against Milton Lopus, a Commonwealth official sued in this official capacity since any such recovery must be satisfied out of the state treasury;
 
2. This action must be dismissed since plaintiff has failed to state a claim upon which relief can be granted under 42 U.S.C. § 1983: plaintiff did not have a property interest in his continued employment with the Department of Revenue; plaintiff has failed to allege the existence of a protected liberty interest; assuming that plaintiff had a property or liberty interest he was not deprived of it without due process.
 
3. Plaintiff's claims are barred by the statute of limitations.

 After considering the arguments of both parties as well as the applicable case law, the court is of the opinion the motion to dismiss should be granted for the reasons set forth below.

 Defendants assert as their first line of defense that the court lacks subject matter jurisdiction of plaintiff's claims because of the immunity provided by the Eleventh Amendment. In order to properly address this issue, the defendants must be divided into two groups: (1) Department of Revenue, Commonwealth of Pennsylvania; and Milton Lopus in his official capacity, and (2) Milton Lopus, as an individual. *fn1"

 Contrary to defendants' position, the immunity afforded to states, and indirectly to individuals sued in their official capacities, does not preclude all forms of relief. It is uncontestable that prospective equitable relief may be had by an individual from the state under a § 1983 action. Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 98 S. Ct. 3057, 57 L. Ed. 2d 1114 (1978); Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Spicer v. Hilton, 618 F.2d 232 (3d Cir. 1980); Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41 (1979). It is not clear, however, whether plaintiff's request for reinstatement with seniority constitutes prospective equitable relief as envisioned by the Court. Because of this court's findings on defendants' other arguments, however, this question need not be resolved. Suffice it to say that it is not certain plaintiff's entire claim against defendants Department of Revenue, Commonwealth of Pennsylvania, and Milton Lopus in his official capacity would be precluded by the Eleventh Amendment bar.

 With regard to plaintiff's claims against Milton Lopus as an individual, it is clear there is no Eleventh Amendment bar and the motion to dismiss could not be granted on that basis.

 Defendants' second basis for the motion to dismiss is that plaintiff has failed to state a claim upon which relief can be granted. Defendants contend that plaintiff did not have a "property" or "liberty" interest which was protected by the due process clause of the Fourteenth Amendment. Furthermore, assuming one did exist, defendants contend plaintiff received all the process that was required.

 As defendants properly point out, the gravamen of a claim under the due process clause is a protected "property" or "liberty" interest. Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The Court in Roth stated that while " "(Liberty)' and "property' are broad and majestic terms.", the range of ...


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