No. 76 E.D. Appeal Docket 1982, Appeal from the Order of the Commonwealth Court of Pennsylvania in Case No. 2320 C.D. 1980, Pa. Commw. Ct. ,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Hutchinson, J., files a concurring opinion in Flaherty, J., joins.
Appellant, Prakash C. Kapil, was hired by Bloomsburg State College (Bloomsburg) in 1967 and became a tenured faculty member in 1972. He became eligible for a sabbatical leave in 1974 and each year since 1974 has applied for sabbatical to complete work on his doctorial degree so that he would be eligible for a promotion. Mr. Kapil has consistently been denied sabbatical leave since 1974 and alleges the reason for this denial is discriminatory based on his national origin.
In July, 1979 appellant filed a grievance with his collective bargaining representative, the Association of Pennsylvania State College and University Faculties (APSCUF). APSCUF is the certified, exclusive collective bargaining agent for the employee unit of which Kapil is a member, the professional employees of the state college system, although Kapil is not a member of APSCUF itself. The grievance was filed pursuant to the collective bargaining agreement in effect between APSCUF and Bloomsburg State College. APSCUF refused to process this complaint and refused to take the matter to arbitration.*fn1
Appellant filed a complaint in equity consisting of two counts in the Commonwealth Court, 68 Pa. Commw. 287, 448 A.2d 717. Appellees filed preliminary objections*fn2 which were sustained and as to the governmental defendants, the Department of Education (Department) and the trustees of Bloomsburg, the complaint was dismissed. As to the remaining
defendants, the matter was transferred to the Court of Common Pleas of Columbia County.
In Count I appellant avers that Bloomsburg's denial of sabbatical leave was arbitrary and discriminatory. He contends that APSCUF and its agents breached its duty of fair representation and that the trustees of Bloomsburg State College and its president as well as the Pennsylvania Department of Education participated in this breach of duty. He asserts the "trustees of Bloomsburg State College, McCormick and Department participated in APSCUF's breach of its duty of fair representation in that they encouraged, permitted and condoned APSCUF's discriminatory refusal to process plaintiff's grievance to binding arbitration". He further alleges that APSCUF and the Department conspired to violate his constitutional rights by agreeing to deprive him of his right to fair representation. He claims that these acts violated his equal protection and due process rights under the Fourteenth Amendment to the U.S. Constitution and were remedial under the provisions of 42 U.S.C.A. sections 1983*fn3 and 1985.*fn4
Appellant is asking for compensatory damages in excess of $20,000; punitive damages in excess of $10,000; plaintiff costs and reasonable attorney's fees as against all parties.
In Count II he averred the refusal to grant him a sabbatical was a breach of Article III*fn5 of the collective bargaining agreement by the College, its President and the Department of Education. He further averred the refusal of APSCUF and its agents to process his grievance was also a breach of Article III of the collective bargaining agreement. He prayed for specific performance of the collective bargaining agreement including granting of his request for sabbatical leave and consequential damages in excess of $20,000.
We will first address the propriety of the Commonwealth court's order as it relates to ...