for personal injuries to further "the federal interests in uniformity, certainty, and the minimization of unnecessary litigation." U.S. at , S. Ct. at , 85 L. Ed. 2d at 266. In Smith, supra, the court held that two of these goals, promoting uniformity and the minimization of unnecessary litigation, "would be served by applying the two-year statute of limitations to all plaintiffs, whether or not their claims are already in litigation, if the other Chevron factors favor such a result." Id., 764 F.2d at 196. The court went on to state that although we cannot say that the policies referred to in Wilson v. Garcia militate clearly in favor of retrospective application, neither do they militate against such application." Id. (brackets added). The second part of the Chevron test therefore does not favor plaintiff.
3. The Equities of Retroactive Application.
The third part of the Chevron test often involves the same factors as the first part. Thus, plaintiff argues that the equities are in her favor because she justifiably relied upon Knoll, supra, and Fitzgerald, supra. We have rejected this argument in discussing the first part of the test. The judgments in Knoll and Fitzgerald had never become final. The defendants, noting that fact, raised the statute of limitations defense at an appropriate time. We conclude that we would not be penalizing plaintiff, see Marino v. Bowers, 657 F.2d 1363 (3d Cir. 1981), if we applied Wilson retroactively.
B. Plaintiff's Cause of Action Accrued on the Date of Her Discharge and the Discovery Rule is Inapplicable to This Case.
Pennsylvania has adopted the so-called discovery rule in connection with the personal injury statute of limitations. The statute will begin to run from the time the plaintiff has discovered or reasonably should have discovered the cause of harm. See Hunsicker v. Connor, 318 Pa. Super. 418, 465 A.2d 24 (1983). We apply the discovery rule here because state law also governs in a civil rights action whether the state statute of limitations has been tolled. See Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974); Gee v. CBS, Inc., 471 F. Supp. 600 (E.D. Pa. 1979), aff'd mem., 612 F.2d 572 (3d Cir. 1979). Plaintiff argues that she could not have reasonably discovered her federal cause of action until at least October 4, 1983. On that date, in connection with plaintiff's unemployment compensation claim, the Pennsylvania Commonwealth Court, rejecting a claim of attorney client privilege by Dunbar and PHFA, ruled that she could have access to correspondence between Dunbar and Robert Ross, a deputy general counsel in the Governor's office. Okum v. Commonwealth, Unemployment Compensation Board of Review, 77 Pa. Commw. 386, 465 A.2d 1324 (1983). The correspondence allegedly revealed for the first time that Ross had authorized Dunbar to fire Braderman. Hence, the requisite "state action" for a section 1983 claim, the authorization from the deputy general counsel, was only discovered or discoverable at the earliest on October 4, 1983. Plaintiff's complaint, filed on September 19, 1984, was accordingly timely under Wilson.
We could argue with plaintiff's tacit assumption that defendants' conduct did not constitute state action for the purposes of section 1983 and that only conduct by someone clearly representing the state, in this case someone from the executive branch, could do so.
Instead of getting into a lengthy analysis of what constitutes "state action" or action "under color of state law," however, we believe that we need only look as far as plaintiff's complaint to dispose of her discovery argument. In paragraph 25 she alleges the following (emphasis added):
Mrs. Braderman had no further discussions with her PHFA employers about this transfer until Friday, August 7, 1981 at approximately 4:15 P.M., when she was told that Mr. Dunbar had written a letter to Robert Ross, General Counsel Office, Commonwealth of Pennsylvania, requesting authority to fire her; that Mr. Ross had given Dunbar permission to do so ; and that she would be fired by Dunbar before close of that business day.