485 F. Supp. 410 (E.D. Pa. 1980), it would be inappropriate to decide that issue on the present limited record.
GAI's contention that plaintiff's action is barred by the statute of limitations raises initially the question of the accrual date of plaintiff's cause of action. GAI contends that plaintiff's action accrued on August 23, 1976, the date of his discharge, or in the alternative, on November 17, 1977, one year after plaintiff filed his complaint with the Commission. Plaintiff, on the other hand, contends that his cause of action did not accrue until the fall of 1980, when the Commission last notified him that it was continuing its attempts to conciliate his case. Fortunately, I need not resolve this novel question of Pennsylvania law, for I conclude that a private cause of action under the PHRA is subject to the six-year limitations period set forth in 42 Pa. Cons. Stat. § 5527(6). Therefore, even assuming that plaintiff's action accrued on the earliest possible date, August 23, 1976, the action is timely under the six-year statute.
As discussed earlier, the PHRA sets forth with particularity the prerequisites to an individual's right to seek relief in the courts for a violation, but it does not provide a statute of limitations on the right of action. Accordingly, the applicable statute of limitations must be found in chapter 55 of title 42 of the Pennsylvania Consolidated Statutes. 42 Pa. Cons. Stat. § 5501(a).
GAI contends that the limitations period that applies to plaintiff's claim is supplied by 42 Pa. Cons. Stat. § 5524(2), which places a two-year limitation on actions "to recover for injuries to the person . . . ." Reasoning that plaintiff is seeking to enforce a personal right, the right to be free from discrimination, GAI argues that plaintiff's action is most closely akin to an action for personal injury. Moreover, GAI asserts that a two-year statute is sensible because it is consistent with (1) the two-year limitation applicable to suits under Pennsylvania's Equal Pay Act, 43 P.S. § 3365(b), and (2) Pennsylvania's policy of applying a relatively shorter statute of limitations to causes which are provable primarily by live testimony.
Webster disputes GAI's characterization of his age discrimination suit as an action to recover damages for injury to the person. He argues that his employment discrimination suit under the PHRA does not fall neatly within one of the categories for which a specific statute of limitations is prescribed, and that, therefore, his cause of action is subject to the six-year residual statute of limitations codified at 42 Pa. Cons. Stat. § 5527(6).
Although the Pennsylvania state courts have not addressed the issue, based upon Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978), and my recent decision in Clyde v. Thornburgh, 533 F. Supp. 279 (E.D. Pa. 1982), I hold that the six-year statute of limitations contained in 42 Pa. Cons. Stat. § 5527(6) applies to employment discrimination suits under the PHRA. In Davis, suit was brought under 42 U.S.C. § 1981 for discrimination in employment based on race. While the instant case is predicated on state law, Davis is nevertheless instructive because one of the issues there was which state law statute of limitations would apply if the plaintiff's § 1981 action had been brought under Pennsylvania law seeking similar relief. Thus, the Davis court was confronted with the task of determining the most appropriate forum statute of limitation to apply to a suit for employment discrimination. This is essentially the task now before me.
Before discussing Davis, I must point out that the holding in that case is not dispositive of this motion. Davis was decided under Pennsylvania's old scheme of statutes of limitations, under which all actions for damages for personal injuries were subject to a two-year limitations period, 12 P.S. § 34 (Purdon 1953), and virtually all other claims (with exceptions not pertinent herein) were subject to the six-year period contained in 12 P.S. § 31 (Purdon 1953). Clyde v. Thornburgh, supra, 533 F. Supp. at 285. Nevertheless, Davis provides valuable insights because the defendant in that case made the same argument GAI now advances, namely, that a claim for employment discrimination is most akin to an action for injury to the person. The Davis court rejected the argument, stating that the injury to the person language of 12 P.S. § 34 was intended to encompass only bodily injury. Davis v. United States Steel Supply, supra, 581 F.2d at 338. The court reasoned that the plaintiff's employment discrimination suit was more closely analogized to a cause of action for either the wrongful discharge of an at-will employee or the tortious interference with another's contractual or economic relationships, but the court declined to classify the plaintiff's claim as a contract action or a tort action not involving bodily injury because, in either event, the six-year limitation period of 12 P.S. § 31 would apply. Id. at 341.
Applying the teaching of Davis to the limitations scheme presently in force in Pennsylvania, leads me to conclude that the two-year limitation for actions to recover damages for injuries to the person, 42 Pa. Cons. Stat. § 5524(2), does not pertain to employment discrimination suits under the PHRA.
42 Pa. Cons. Stat. § 5524(2) is derived from 12 P.S.§ 34, 42 Pa. Cons. Stat. § 5524(2), Official Source Note, and continues to use the injury to the person language construed in Davis to mean "bodily injury."
Hence, I cannot accept GAI's argument that plaintiff's action is essentially one for personal injury.
The only remaining point which bears discussion is whether a suit under the PHRA does indeed fall within the residual provision or whether such a suit may be characterized as an action for breach of a contract implied by law and therefore subject to the four-year limitation of 42 Pa. Cons. Stat. § 5525(4). On the basis of my decision in Clyde v. Thornburgh, supra, I conclude that plaintiff's action falls within the six-year residual statute of limitations contained in 42 Pa. Cons. Stat. § 5527(6). In Clyde, I determined that a claim under 42 U.S.C. § 1983 for unconstitutional discharge was "most akin to the tort cause of action for wrongful discharge of at-will employees." 533 F. Supp. at 285. In addition, I examined the relevant case law under Pennsylvania's new statutes of limitations scheme and concluded:
Review of the Pennsylvania limitations scheme fails to reveal any specific period applicable to claims for the specific tort of wrongful discharge or the more generalized species of tort for interference with contractual or economic relations. See Riccobono v. Whitpain Township, 497 F. Supp. 1364, 1375 (E.D. Pa. 1980). Further, those cases which have considered such torts have looked to the residuary statutes for the applicable period. See, e.g., Riddick v. Cuyler, slip op. No. 81-246 (E.D. Pa. July 16, 1981) (§ 1983 action for unconstitutional discharge); Culbreth v. Simone, 511 F. Supp. 906, 916 (E.D. Pa. 1981) (diversity action for fraud and tortious interference with business relationships); Riccobono v. Whitpain Township, supra, 497 F. Supp. at 1374-75 (§ 1983 action analogized to "malicious interference with a prospective contractual relation").
Id. at 286. Thus, in determining that the Pennsylvania common law cause of action for wrongful discharge is subject to the residual statute of limitations,
I implicitly held that such an action should not be characterized as one for the breach of a contract implied by law. The result should be the same with respect to a suit under the PHRA. Like the judicially created cause of action for wrongful discharge, the private right of action under the PHRA is intended to impose some restraints on the historical rule that, in the absence of a contractual or statutory provision to the contrary, employment is terminable at will. See Bonham v. Dresser Industries, Inc., 569 F.2d 187, 195 (3d Cir. 1977), cert. denied, 439 U.S. 821, 58 L. Ed. 2d 113, 99 S. Ct. 87 (1978). Since the common law action is clearly tortious in character, Clyde v. Thornburgh, supra, there is no reason to treat the statutory right created by the PHRA any differently.
Having concluded that plaintiff's cause of action under the PHRA is subject to the six-year statute of limitations contained in 42 Pa. Cons. Stat. § 5527(6), I hold that plaintiff's complaint was timely filed and GAI's motion to dismiss will be denied.
This 2nd day of August, 1982, it is
ORDERED that defendant's Motion to Dismiss Plaintiff's Complaint for Failure to State a Claim, Fed.R.Civ.P. 12(b) (6), is DENIED.