Pa. Cons. Stat. Ann. § 5524(7) (Purdon Supp. 1984).
We consider first whether Pennsylvania's six-month statute of limitations for bringing a suit against government officials should apply to this case and conclude that the application of this provision to § 1983 actions has been foreclosed. In Knoll v. Springfield Township, 699 F.2d 137 (3d Cir. 1983), cert. granted, 468 U.S. 1204, 104 S. Ct. 3571, 82 L. Ed. 2d 870 (1984), the Court of Appeals for the Third Circuit held that the six-month period does not serve the remedial purposes of the Civil Rights Acts, and that decision was emphatically reaffirmed recently in Fitzgerald v. Larson, et al., supra.
In Fitzgerald, the court noted the similarity of its reasoning to that of the Supreme Court in Burnett v. Grattan, supra. There, in a case analogous to Knoll and Fitzgerald, the court rejected as a § 1983 statute of limitations Maryland's six-month time period for filing an administrative complaint for employment discrimination.
Although the holding in Burnett focused in part upon the practical differences between pursuing a claim in a state administrative agency and preparing to litigate a full-blown civil rights case in federal court, the opinion also considered the twin goals of the Civil Rights Acts: to compensate victims of civil rights violations and to prevent abuse of state power. The court emphasized that those goals must be served when selecting a statute of limitations for § 1983 actions.
Thus, the Third Circuit concluded once again that, ". . . the six month limitation period governing actions against government officials cannot be applied to § 1983 actions because it is too short to serve the remedial purposes of the federal civil rights statutes". Fitzgerald at 34. Following the unequivocal law of the Circuit, we find that the six-month statute of limitations is inappropriate for this civil rights action so we must now determine the most analogous state claim and apply its statute of limitations. Accordingly, we consider both defendants' contention that it can be most nearly characterized as an action for defamation, and plaintiff's arguments that the gravamen of the complaint is interference with economic rights, or in the alternative, the intentional infliction of emotional distress.
It is undisputed that the events culminating in plaintiff's loss of position climaxed in December, 1979, when the Bi-City Health Board was dissolved. (Deposition of James Schultz, Vol. I at 47; Affidavit of James Bartholomew at 8). The instant suit was filed on September 10, 1981. If the claim is analyzed as plaintiff contends, the suit was timely, having been brought within two years of the injury. However, if defendant's argument prevails, the action is barred.
Both our present analysis of the complaint and the history of the case compel the conclusion that plaintiff has essentially brought a defamation action. Plaintiff alleges that, ". . . Defendants engaged in a retaliatory, protracted public dialogue, including defamatory accusations against the Plaintiff, in order to obtain his firing by the Bi-City Health Bureau and in order to destroy Plaintiff's professional career in public health". (Amended Complaint para. 14); "As a result of the retaliatory campaign . . . Plaintiff lost his position with the Bi-City Health Bureau". (Amended Complaint para. 16); "The termination of Plaintiff's employment was caused solely and exclusively because of the retaliatory campaign . . .". (Amended Complaint para. 18); and "As a result of this slanderous, libelous, defamatory campaign, Plaintiff's career in public health has been destroyed". (Amended Complaint para. 22).
That the actions complained of resulted in economic consequences for the plaintiff does not alter the nature of the complaint but serves merely to allow what would normally be a state defamation action to be maintained as a federal civil rights claim. We previously declined to dismiss the complaint for failure to state a claim because, "while 'mere defamation' is insufficient to invoke the aegis of the Fourteenth Amendment, the contested activity is actionable in federal court where there is 'an accompanying loss of government employment'". Bartholomew v. Fischl, supra, at 163, quoting Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). Thus, we have already characterized the claim, if sub silentio.
Moreover, the only means by which defendants could affect plaintiff's employment were indirect, through a campaign such as plaintiff alleges. Since the Bi-City Health Board was an independent agency, neither defendant Fischl or any other Allentown official had the power to fire plaintiff. All parties agree that the Board had hired Bartholomew and it alone could fire him. (Amended Complaint para. 7, Deposition of James Schultz, Vol. I at 88). Although defendant Fischl attempted to interfere with Bartholomew's appointment as permanent director of the Bi-City Health Bureau by lobbying the Allentown board members whom he had appointed, he was unsuccessful. (Deposition of James Schultz, Vol. I, pp. 22-23, Vol. II, pp. 47-57; Affidavit of James Bartholomew para. 127). Thereafter, Fischl began a campaign to abolish the Bi-City Board itself, which was successful. Again, however, he did not have the power to obtain that result directly. He could do so only by persuading a majority of city council members in Allentown and the City administration of Bethlehem that each city should establish its own health agency. If Bartholomew had been an Allentown employee and Fischl had abolished his position or simply fired him, the claim may have been analogous to interference with economic rights, but that is not the situation here. As plaintiff himself has alleged, the economic injuries he suffered were necessarily incident to the public statements of Mayor Fischl and other City officials that the Bi-City Health Bureau was inefficient and costly due in large part to plaintiff's failings as Executive Director. (See Deposition of James Schultz, Vol. I, 43-47, and Plaintiff's Exhibit C to his memorandum in opposition to the motion to dismiss).
In addition, the allegations of the amended complaint are not primarily concerned with any personal injury plaintiff may have suffered as a result of defendant's actions. Although one of the damage demands is for pain and suffering, (Amended Complaint para. 25(c)), there are no specific averments that the campaign against the plaintiff caused any physical or mental distress comparable to the assertions in para. 16 and para. 34 of the Amended Complaint that plaintiff lost his position and that his career was destroyed. Consequently, the personal injury claim is incidental; it cannot support the proposition that the claim as a whole is more analogous to the intentional infliction of emotional distress than to defamation.
The only remaining question is whether the one-year period allowed for defamation actions in Pennsylvania is long enough to allow the federal interest in the enforcement of the Civil Rights Acts to be vindicated. In light of the fact that the only Civil Rights Act provision to contain a statute of limitations, 42 U.S.C. § 1986, has a one-year limit and that the Third Circuit has itself applied a one-year statute of limitations to claims analogized to false arrest, Fitzgerald, supra, at 35, it is apparent that a one-year period is sufficient. Accordingly, because plaintiff's complaint was filed more than one year after his cause of action accrued, it is barred by the applicable statute of limitations and should be dismissed. Since the basis of defendant's motion is failure to state a claim upon which relief may be granted and the Court has considered matters outside the pleadings to reach its conclusion, the motion is converted to and considered as one for summary judgment under Fed. R. Civ. P. 12(b). Gee v. CBS, 471 F. Supp. 600 (E.D. Pa. 1979). An appropriate order follows.
AND NOW, this 20th day of November, 1984, upon consideration of plaintiff's motion for reconsideration of the Court's order of June 19, 1984, and defendants' response thereto, IT IS ORDERED that the motion is DENIED.
IT IS FURTHER ORDERED that, upon consideration of the defendants' motion to dismiss the amended complaint for failure to state a claim upon which relief may be granted and the plaintiff's response thereto, the motion is GRANTED. The complaint is DISMISSED as to the City of Allentown, and judgment is entered in favor of the defendant, Frank Fischl, and against the plaintiff.