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KATHRYN F. FLEMING AND STEVEN J. HANSEN AND WESLEY J. VANZILE v. DONALD D. ROCKWELL (11/21/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 21, 1985.

KATHRYN F. FLEMING AND STEVEN J. HANSEN AND WESLEY J. VANZILE, APPELLANTS
v.
DONALD D. ROCKWELL, MAYOR ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Bradford County in the case of Kathryn F. Fleming and Steven J. Hansen and Wesley J. VanZile v. Donald Rockwell, Mayor, Paul Reynolds, Borough Council President, John Parsell, Borough Manager, James Bruce, Walter Corbett, Richard Garrison, Wayne McClure, Harry Ross, and Gerald Vollmer, Councilmen, both individually and as the Elected Government of the Borough of Troy, a Pennsylvania Corporation, No. 84-14, 719 Mandamus.

COUNSEL

John S. Hollister, for appellants.

George J. Meng, with him, William A. Jones, Sherr, Moses & Zuckerman, P.C., for appellees.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 93 Pa. Commw. Page 92]

This appeal is brought by Kathryn F. Fleming, Steven J. Hansen and Wesley J. VanZile (Appellants) from an order of the Court of Common Pleas of Bradford County dismissing Appellants' action in

[ 93 Pa. Commw. Page 93]

    mandamus against the Borough of Troy, et al.*fn1 (Borough) for lack of jurisdiction. We affirm.

The facts as pled aver that Hansen was employed by the Borough as a police officer until the end of 1980, when he learned that he had been permanently removed from the police duty roster. Fleming was employed as a police officer until July 18, 1981, at which time she was terminated as an officer and given a position as a "meter maid", a job from which she was later discharged on December 29, 1981.*fn2

Both Hansen and Fleming thereafter sought a statement of charges against them and an opportunity for a hearing pursuant to Section 4 of the Police Tenure Act*fn3 (Act). The Borough denied their requests, however, on the grounds that Hansen and Fleming were not regular full-time police officers and that, therefore, their dismissals were not within the purview of the Act. On March 13, 1984, Appellants brought an action in mandamus seeking to compel the Borough to comply with the provisions of the Act. Sustaining the Borough's preliminary objections as to the lateness of the suit, the trial court held that, because

[ 93 Pa. Commw. Page 94]

Appellants were dismissed from their employment more than six months prior to the filing of their complaint, they are time-barred by the six-month statute of limitations under 42 Pa. C.S. ยง 5522(b)(1).*fn4

On appeal to this Court, Appellants have attempted to characterize their suit as not only an action in mandamus but also a civil rights action, to which the six-month statute of limitations does not apply. Moreover, they contend that, as long as the Borough denies them their constitutional right to a hearing, the statute of limitations has not yet run because there is a continuing constitutional violation which engenders a new cause of action daily. Finally, Appellants argue that the Borough has engaged in dilatory tactics in the course of this suit and that such conduct itself constitutes a continuing constitutional tort.

In addressing Appellants' contentions, we begin by noting that their argument as to the existence of a continuing violation that precludes the running of the statute of limitations is totally without merit. Appellants cite no case law in support of their position and, indeed, it is well settled that a statute of limitations begins to run when the cause of action accrues. Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 31 Pa. Commonwealth Ct. 212, 217, 375 A.2d 890, 892 (1977), aff'd 482 Pa. 615, 394 A.2d 491 (1978). Accrual occurs at the time when the plaintiff could have first maintained the action to a successful conclusion.

[ 93 Pa. Commw. Page 95]

    of action under Section 1983, any such civil rights action Appellants could have brought is also time-barred because, in Pennsylvania, a two-year statute of limitations applies to civil rights actions brought under Section 1983.*fn5

As for Appellants' allegation that the Borough has engaged in dilatory tactics, we have reviewed the record thoroughly and find this allegation to be without merit.

Order

And Now, November 21, 1985, the decision of the Court of Common Pleas of Bradford County, at No. 84-14, 719, dated December 19, 1984, is affirmed.

Disposition

Affirmed.


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