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LEWIS v. KELCHNER

October 30, 1986

Dr. Harry Lewis, Plaintiff
v.
Rod C. Kelchner, Mansfield State College, now Mansfield University, and the Commonwealth of Pennsylvania, State System of Higher Education, Defendants


Edwin M. Kosik, United States District Judge.


The opinion of the court was delivered by: KOSIK

EDWIN M. KOSIK UNITED STATES DISTRICT JUDGE

 On December 9, 1985 the plaintiff, Dr. Harry Lewis, instituted this action pursuant to 42 U.S.C. § 1983 alleging that he was wrongfully discharged by Mansfield State College [hereinafter Mansfield]. *fn1" On June 30, 1986 the plaintiff filed a motion for summary judgment with respect to the liability issues in this case. Also on June 30, 1986 the defendants jointly filed a motion for summary judgment. All of the supporting and opposing briefs for both plaintiff and defendants' motions have been submitted by counsel. Therefore the motions for summary judgment are ripe for disposition.

 Specifically in his three [3] count complaint the plaintiff states that in October of 1980 he was hired by Mansfield as the Director of Grants and Contracts. Plaintiff worked for Mansfield until August 31, 1985 when his employment was terminated. As a result of this discharge from employment the plaintiff filed this action essentially claiming that he was not given any notice of hearing, or opportunity to be heard in connection with said discharge in violation of his civil rights. Plaintiff also raises a pendent state law claim for breach of contract. Plaintiff basically seeks reinstatement of his position with Mansfield along with money damages, both compensatory and punitive. The defendants on the other hand claim that the plaintiff's position was eliminated because of financial reasons and that this action should be dismissed for a number of reasons including the contention that it is barred by the Eleventh Amendment to the United States Constitution.

 At the outset it should be noted that the plaintiff seeks to dismiss the defendants' motion for summary judgment with prejudice on grounds that said motion violated various sections of this Court's practice order dated December 16, 1985. However, the dismissal of this motion for violating the practice order is not available to the Court in this case as an option because the defendants' motion goes to the subject matter jurisdiction of the Court.

 We need not address the other issues raised by defendants in their motion for summary judgment and the issues set forth in plaintiff's summary judgment motion, for we find the Eleventh Amendment challenge dispositive.

 The Eleventh Amendment provides:

 
"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state." U.S.C.A. Const. Amend. 11.

 The interpretation of this amendment was expanded to include the notion that a federal court also could not entertain a suit brought by a citizen of a state against his own state. Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). Further, while a state may consent to suit against it in federal court, thus waiving its sovereign immunity, Pennhurst, supra, there is no question that the Commonwealth of Pennsylvania has not waived its rights under the Eleventh Amendment. 42 Pa. C.S.A. § 8521(b) provides:

 
"Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in federal court guaranteed by the Eleventh Amendment to the Constitution of the United States."

 Moreover, in certain circumstances Congress has abrogated a state's Eleventh Amendment immunity. See Hutto v. Finney, 437 U. S. 678, 693-94, 98 S. Ct. 2565, 2574-75, 57 L. Ed. 2d 522 (1978). However, when Congress enacted 42 U.S.C. § 1983 it did not eliminate the state's immunity. Quern v. Jordan, 440 U. S. 332, 340-41, 99 S. Ct. 1139, 1145, 59 L. Ed. 2d 358 (1979).

 Having determined that the Commonwealth has not waived its sovereign immunity and that Congress has not abrogated the Eleventh Amendment immunity in § 1983 actions, we must next consider whether the instant suit against Mansfield, Kelchner and the Pennsylvania State System of Higher Education is in fact an action against the Commonwealth.

 In support of their proposition that the Eleventh Amendment bars the instant suit the defendants cite the case of Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (3d Cir. 1978), cert. denied, 444 U. S. 832, 62 L. Ed. 2d 41, 100 S. Ct. 61 (1979). In Skehan, the court held that a "state college" is an entity of the Commonwealth for Eleventh Amendment purposes. Id. at 491. *fn2" Based upon Skehan, there is no question that a suit against a state college is prohibited by the Eleventh Amendment. In fact the plaintiff does not attempt to challenge the Skehan decision. Rather, the plaintiff contends that through the enactment of the State System for Higher Education, 24 P. S. §§ 20-2001-A et seq., *fn3" the Pennsylvania legislature established an independent education system and one which is not a Commonwealth agency. *fn4" Thus plaintiff argues that this statute had the effect of abolishing the Eleventh Amendment protection, which was afforded to state colleges, for state universities. *fn5" This exact same contention which plaintiff now raises was recently rejected by this Court in Wynne v. Shippensburg University, ct al, 639 F. Supp. 76 (M. D. Pa. 1985). *fn6"

 The plaintiff in Wynne alleged that Shippensburg State College, which was afforded the Eleventh Amendment's immunity by virtue of the Skehan case, was a different entity than Shippensburg University due to the enactment of 24 P. S. §§ 20-2001-A et seq. and that this statute changed the relationship between the Commonwealth and Shippensburg such that the university was not an agency of the state as was the college. Id. Slip op. at p. 5. However, the court found no merit to this argument. In Wynne, the court applied the factors set out in Urbano v. Board of Managers of N. J. State Prison, 415 F.2d 247, 250-51 (3d Cir. 1969), cert. denied, 397 U. S. 948, 25 L. Ed. 2d 128, 90 S. Ct. 967, to determine whether or not Shipppensburg University was an agency of the state for Eleventh Amendment purposes. After analyzing the Urbano factors in order to determine if state universities are exempt from suit by the Eleventh Amendment, the Wynne Court concluded that Shippensburg University was an arm or an alter ego of the Commonwealth of Pennsylvania and thus protected by the Eleventh ...


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