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ROSENBAUM v. LARSON

November 2, 1982

Robert S. ROSENBAUM, Plaintiff,
v.
Dr. Thomas D. LARSON, James I. Scheiner, John J. Zogby, Robert P. Spena, Frank P. Gaffney, in their official and individual capacities, Defendants



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 This civil rights action involves a claim that the plaintiff was wrongfully discharged from employment with the Commonwealth based upon his political party affiliation. The case was assigned to the writer in April 1982. Previously Judge Herman dismissed the claim against the Commonwealth and the individual defendants in their official capacities. *fn1" Judge Herman has also stricken plaintiff's demand for a jury trial. *fn2" The case is again before the court on the motion of the individual defendants for summary judgment. The grounds upon which judgment is sought include the following contentions:

 
1) The action is barred by the doctrine of laches.
 
2) Plaintiff has not met the "threshold" necessary to establish an actionable case of political discrimination.
 
3) Defendants have shown that plaintiff's discharge resulted from proper consideration.
 
4) Plaintiff has not shown the defendants acted with malice, which is required for liability in their individual capacities.

 We need address only the first two of these issues.

 Defendants contend that because plaintiff's claim was not filed until after the expiration of the applicable statute of limitations it should be dismissed. As to the equitable claims defendants ask for dismissal based on laches.

 The appropriate period of limitations for legal actions pursuant to 42 U.S.C. § 1983 has been the subject of considerable debate, due to the absence of any limitation in the statute itself. Generally, federal courts apply the period of limitations that would be appropriate to plaintiff's claim if it had been filed in the court of the state in which the federal court sits. The difficulty arises from the fact that federal courts do not always agree on the 'applicable' state statute, and the periods can differ depending on the nature of the complaint voiced by a plaintiff. In this district Judge Herman, in two analogous cases, has ruled that the six year period set forth in 42 Pa.C.S.A. § 5527(6) is applicable. In Demarco v. Ingaglio, (Civil No. 81-6, M.D.Pa., Jan. 29, 1982) the court concluded that the nature of plaintiff's complaint (which sought damages for the improper revocation of a license to practice medicine) was in essence a claim for tortious interference with business or economic relationships and that the six year period of limitations under 42 Pa.C.S.A. § 5527(6) applied. In Eshmont v. Commonwealth, et al., (Civil No. 81-715, M.D.Pa., April 9, 1982) Judge Herman dealt with a case alleging a political firing in which plaintiff sought reinstatement and back pay. Adhering to the Third Circuit decision of Skehan v. Board of Trustees, 590 F.2d 470 (3d Cir.1978) cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41 (1979), the court concurred that a complaint of political firing resembles the common law tort of wrongful interference with economic rights or interest. The Court again applied the six year period provided for in 42 Pa.C.S.A. § 5527(6).

 We turn now to the defendant's contention that the plaintiff has failed to marshal evidence sufficient to cross the factual threshold for maintaining an action of this type. In Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1975), the Supreme Court established the criteria upon which the defendants rely. In Elrod, several non-civil-service employees of the Cook County, Illinois Sheriff's Office brought suit alleging that they were discharged or threatened with discharge solely because they were not affiliated with or sponsored by the Democratic Party. Writing for the plurality, Justice Brennan held the practice of patronage dismissals unconstitutional under the First and Fourteenth Amendments. Justice Stewart, in a concurring opinion joined by Justice Blackmun, described the issues presented by the Elrod case in less sweeping terms:

 
The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.

 427 U.S. at 375, 96 S. Ct. at 2690 (Stewart, J., concurring) (citation omitted). The holding in Elrod was further defined by the Court in Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). In Branti, the Court ...


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