20, Topolski sent plaintiff a letter confirming that he was terminated from employment effective May 3, 1979. Plaintiff received this letter April 24, 1979. (Plaintiff's Answers to Defendants' Interrogatories, No. 19, Document No. 11.) No reason for the termination was given in this letter other than the fact that the decision to terminate plaintiff was made after "a review of key personnel of the Department" had been conducted. (Defendants' Motion for Summary Judgment, Exhibit B.) On April 26, 1979, plaintiff wrote to Topolski requesting information about the review which allegedly led to his termination. Plaintiff specifically requested information such as who conducted the review and when it took place, what criteria were used, whether his personnel file had been used, etc. (Id.) On May 3, 1979, Topolski wrote to plaintiff informing him that he was being terminated because, inter alia, complaints had been received concerning the upkeep of the Philadelphia State Office Building. It is undisputed that plaintiff was not given a hearing.
During the next two years plaintiff explored various ways to secure legal redress for his termination.
He filed the instant action on May 1, 1981, seeking, inter alia, reinstatement, restoration of "full pay and benefits", and "other further legal and equitable relief as may be deemed just under the circumstances." (Complaint P 14).
I. Eleventh Amendment
The eleventh amendment, which bars suit against a state in federal court, "partakes of the nature of a jurisdictional bar." Alabama v. Pugh, 438 U.S. 781, 782 & n.1, 98 S. Ct. 3057, 3058 & n.1, 57 L. Ed. 2d 1114, quoting Edelman v. Jordan, 415 U.S. 651, 678, 94 S. Ct. 1347, 1363, 39 L. Ed. 2d 662 (1974); Savage v. Commonwealth, 475 F. Supp. 524, 528 (E.D.Pa.1979), aff'd 620 F.2d 289 (3d Cir. 1980). Accordingly, I will first consider defendants' argument that the eleventh amendment requires that their motion for summary judgment be granted.
Although by its terms the eleventh amendment applies only to the states, it is now well settled that an "action in federal court for damages or back pay against a state official acting in his official capacity is barred because such retrospective relief necessarily depletes the state treasury, Edelman v. Jordan, 415 U.S. 651 (94 S. Ct. 1347, 39 L. Ed. 2d 662) (1974); but the amendment does not bar a suit seeking declaratory or injunctive relief against the same officials, Ex parte Young, 209 U.S. 123 (28 S. Ct. 441, 52 L. Ed. 714) (1908)." Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981). Helfrich v. Commonwealth, 660 F.2d 88, 90 (3d Cir. 1981). In the instant case, therefore, the eleventh amendment does not bar plaintiff's claim for declaratory and injunctive relief, i.e., reinstatement. The amendment does, however, bar plaintiff's claim for back pay, accrued monetary benefits and damages from defendants in their official capacities.
Recognizing that the eleventh amendment presents a serious obstacle to his request for monetary relief from defendants in their official capacities, plaintiff now contends, in what appears to be an afterthought, that he is also seeking damages against defendants as individuals. It is well settled that "the eleventh amendment does not bar an action for damages against an official sued in his individual capacity." Laskaris v. Thornburgh, supra, 661 F.2d at 26.
The complaint does not state whether defendants are being sued in their official or individual capacities. Since plaintiff specifically requested only back pay and reinstatement, it is highly doubtful that he intended to sue defendants in their individual capacities, nevertheless, despite my doubts as to plaintiff's intention at the time he filed his complaint, "I will construe the complaint in his favor and conclude that this action is prosecuted against (defendants) in their individual capacities."
Savage v. Commonwealth, supra, 475 F. Supp. at 532. See Laskaris v. Thornburgh, supra, 661 F.2d at 26-27. Accordingly, insofar as plaintiff seeks damages against defendants as individuals, the complaint is not barred by the eleventh amendment.
Defendants' motion for summary judgment on eleventh amendment grounds will be granted only as to plaintiff's claims against them in their official capacities for back pay and damages. The motion will be denied as to the claims for declaratory and injunctive relief, and for money damages from defendants in their individual capacities.
II. Procedural Due Process
Defendants move for summary judgment on plaintiff's claim that they violated his fourteenth amendment rights to procedural due process. They contend that plaintiff did not have a property interest in continued employment cognizable under the due process clause. Whether a public employee has a property interest in continued employment must be determined by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684 (1976); Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir.), cert. denied, 434 U.S. 892, 98 S. Ct. 268, 54 L. Ed. 2d 178 (1977).
Plaintiff was appointed to his position as Administrative Officer by the Governor without confirmation of the Senate. Pa.Stat.Ann. tit. 71, § 67.1(a). His position was not covered by the Pennsylvania Civil Service Act, see 71 P.S. § 741.1 et seq., and he was, therefore, an at will employee of the Commonwealth. See, e.g., Scott v. Philadelphia Parking Authority, 402 Pa. 151, 155, 166 A.2d 278 (1960); Miller v. Commonwealth of Pennsylvania Department of Transportation, 38 Pa.Cmwlth. 361, 393 A.2d 53, 54 (1978). In Pennsylvania a public employee has "no contractual entitlement to dismissals only for cause unless the legislature has expressly provided tenure for a given class of employees." Rosenthal v. Rizzo, supra, 555 F.2d at 392, citing Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459 (1974), cert. denied, 419 U.S. 1122, 95 S. Ct. 806, 42 L. Ed. 2d 822 (1975). Plaintiff points to no legislative enactment granting him tenure, but he argues that a departmental personnel handbook gave him an expectation that he would be dismissed only for cause.
Plaintiff's position is untenable. Under Pennsylvania law it is well settled that, absent authority from the legislature, agencies cannot confer a property interest in continued employment on their employees. See, e.g., Banks v. Redevelopment Authority, 416 F. Supp. 72, 73 (E.D.Pa.1976), aff'd, 556 F.2d 564 (3d Cir.), cert. denied, 434 U.S. 929, 98 S. Ct. 414, 54 L. Ed. 2d 288, reh. denied, 434 U.S. 1003, 98 S. Ct. 650, 54 L. Ed. 2d 500 (1977); Pagano v. Pennsylvania State Horse Racing Commission, 50 Pa.Cmwlth. 499, 413 A.2d 44, 45 (1980); Mahoney v. Philadelphia Housing Authority, 13 Pa.Cmwlth. 243, 320 A.2d 459, 460 (1974). Miller v. Commonwealth Department of Transportation, 38 Pa.Cmwlth. 361, 393 A.2d 53 (1978), cited by plaintiff, is not to the contrary. In that case the Department of Transportation agreed that a hearing was required for disciplinary actions taken for just cause but denied that the demotion of the plaintiff was a just cause disciplinary action. The Commonwealth Court refused to accept PennDot's characterization and remanded the matter to PennDot to determine the reason for the demotion. The court did not, however, address the question whether agency regulations or policies can give rise to a constitutionally protected property interest under state law absent legislative authority, a question it expressly answered in the negative in Mahoney v. Philadelphia Housing Authority, supra. The Commonwealth Court has recently cited Mahoney with approval in Pagano v. Pennsylvania State Horse Racing Commission, supra, a 1980 case in which the court rejected plaintiff's claim of a property interest in continued employment based on an executive order. Accordingly, I do not view Miller as being contrary to well settled Pennsylvania law in this regard, and it does not compel the finding of a property interest in this case.
I have reviewed the legislative grant of powers to the Department of General Services, Pa.Stat.Ann. tit. 71, § 631.1, and there is nothing in that provision which grants the department the authority to give tenure to its appointed employees. I conclude, therefore, that plaintiff had no entitlement to continued employment and that defendants are entitled to summary judgment on his claim that they violated his rights to procedural due process.
III. Statutes of Limitations/Laches
Defendants also seek summary judgment on the ground that plaintiff's complaint is untimely. Before addressing the merits of defendants' motion, I must first consider their argument that, because plaintiff seeks both legal and equitable relief, the timeliness of his complaint must be determined solely by reference to the appropriate statute of limitations, and that the equitable doctrine of laches does not apply.
In Gruca v. United States Steel Corporation, 495 F.2d 1252 (3d Cir. 1974), the court held that where plaintiff makes claims for legal and for equitable relief, and where the grant of equitable relief is necessary to make plaintiff whole, the statute of limitations applies to the legal claims and laches applies to the equitable claims.
Id. at 1256. See Churma v. United States Steel Corporation, 514 F.2d 589 (3d Cir. 1975). The instant case falls squarely within this principle since plaintiff cannot be reinstated to his position, an essential element of the relief he seeks, without an equitable decree. Although I note that the approach taken by the Gruca court has been criticized, see Saffron v. Department of the Navy, 183 U.S. App. D.C. 45, 561 F.2d 938, 943 & n.40 (D.C.Cir.1977), cert. denied, 434 U.S. 1033, 98 S. Ct. 765, 54 L. Ed. 2d 780, and that other courts have applied only the statute of limitations to claims seeking both legal and equitable relief, see, e.g., id.; Swan v. Board of Higher Education, 319 F.2d 56, 59-60 (2d Cir. 1963), I am bound by Gruca.
See Morgan v. Sharon Pennsylvania Board of Education, 472 F. Supp. 1157 (W.D.Pa.1979) (applying laches and statute of limitations in § 1983 action seeking legal and equitable relief). Accordingly, the timeliness of plaintiff's claims for damages against defendants in their individual capacities will be determined by applying the statute of limitations, and his claims against defendants in their official capacities for equitable relief will be considered under the doctrine of laches.
(a) Statute of Limitations
Because 42 U.S.C. § 1983 "contains no statute of limitations, the limitation to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law." Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974) (en banc); Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S. Ct. 1790, 1794-95, 64 L. Ed. 2d 440 (1980); Skehan v. Board of Trustees, 590 F.2d 470, 476 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41 (1979).
Until recently the issue of which statute of limitations applied to claims of unconstitutional discharge was well settled in this circuit. In Skehan v. Board of Trustees, supra, the Court of Appeals held that a claim seeking relief for a discharge from employment in violation of the employee's first amendment rights was best analogized to an action for wrongful interference with economic relations and that the six year period contained in 12 P.S. § 31 for, inter alia, contract or trespass actions, controlled. 590 F.2d at 477. See also Davis v. United States Steel Supply, 581 F.2d 335, 337 (3d Cir. 1978) (discriminatory discharge in violation of 42 U.S.C. § 1981). Skehan, however, was handed down in 1978 and was decided under Pennsylvania's old limitations scheme under which all actions for damages for personal injuries were subject to a two year limitations period, 12 P.S. § 34, and virtually all other claims (with exceptions not pertinent herein) were subject to the six year period contained in 12 P.S. § 31. See Davis v. United States Steel Supply, 581 F.2d at 337.
In 1978, as part of its enactment of a Judicial Code, Pennsylvania repealed the old limitations scheme and completely revised its statutes of limitation. Defendants contend that under the new limitations scheme, the instant case is governed by the six month period contained in 42 Pa.Cons.Stat.Ann. § 5522(b) (1), which provides:
(b) Commencement of action required-The following actions and proceedings must be commenced within six months:
(1) An action against any officer of any government unit for anything done in the execution of his office, except an action subject to another limitation specified in this subchapter.