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LINDA ZICCARDI v. COMMONWEALTH PENNSYLVANIA (06/08/87)

decided: June 8, 1987.

LINDA ZICCARDI, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF GENERAL SERVICES, BUREAU OF BUILDINGS AND GROUNDS ET AL., DEFENDANTS



Original Jurisdiction in case of Linda Ziccardi v. Commonwealth of Pennsylvania, Department of General Services, Bureau of Buildings and Grounds, et al.

COUNSEL

Andrew F. Erba, with him, Louis S. Rulli, for plaintiff.

Robert J. Schwartz, Assistant Counsel, for defendant, Commonwealth of Pennsylvania, Department of General Services, Bureau of Buildings and Grounds, et al.

Alaine S. Williams, Kirschner, Walters, Willig, Weinberg & Dempsey, for defendants, American Federation of State, County and Municipal Employees, Council 13 and District Council 88, AFL-CIO.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig.

Author: Craig

[ 109 Pa. Commw. Page 631]

On November 18, 1986, the Pennsylvania Supreme Court granted Linda Ziccardi's petition for the exercise of plenary jurisdiction and remanded this case to the Commonwealth Court for disposition of the Commonwealth's motion for judgment on the pleadings.

According to the pleadings, the Department of General Services of the Commonwealth of Pennsylvania employed Linda Ziccardi as a Clerk-Typist I until November 23, 1972. Ms. Ziccardi alleges that her supervisor, on more than one occasion, urged her to purchase a ticket to a "One Hundred Dollar Dinner" fundraiser sponsored by the Democratic Campaign Committee of Philadelphia. After she refused to purchase a ticket, the department terminated her employment, purportedly for "unsatisfactory work habits."

Ms. Ziccardi contacted her union representative and commenced grievance proceedings in accordance with the collective bargaining agreement then in effect. After exhausting the grievance procedures, the union and the Commonwealth proceeded to arbitrate Ms. Ziccardi's claim of wrongful termination. After an arbitrator determined that Ms. Ziccardi had been a permanent employee entitled to the protections of the collective bargaining agreement at the time of her dismissal, the union withdrew its request for arbitration, allegedly without securing Ms. Ziccardi's consent or giving her written notice.

On November 16, 1978, Ms. Ziccardi filed an original jurisdiction complaint in this court against the Commonwealth, the Secretary of General Services and her union. That complaint, as amended on February 26, 1979, contained seven counts as follows: Count 1 -- Action in assumpsit for breach of a collective bargaining agreement against the Commonwealth and the secretary; Count 2 -- Action in trespass for violation of

[ 109 Pa. Commw. Page 632]

    federal and state constitutional rights against the Commonwealth and the secretary; Count 3 -- Action in trespass for violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, against the Commonwealth and the secretary; Count 4 -- Action in trespass for wrongful discharge against the Commonwealth and the secretary; Count 5 -- Action in equity for violation of 42 U.S.C. § 1983 against the Commonwealth and the secretary; Count 6 -- Action in trespass for breach of duty of fair representation against the union; and Count 7 -- Action in trespass for discrimination against the union. In her counts against the Commonwealth and the secretary, Ms. Ziccardi demanded back pay, punitive damages and reinstatement. In her counts against the union, Ms. Ziccardi sought compensatory and punitive damages.

From that point, this case has had a lengthy procedural history. This court originally dismissed Ms. Ziccardi's complaint on the grounds that she had failed to exhaust administrative remedies (as against the Commonwealth) and that this court lacked jurisdiction (as against the union). We held that the Pennsylvania Labor Relations Board (PLRB) was the proper forum to compel the Commonwealth to arbitrate Ms. Ziccardi's claim of wrongful termination and that the PLRB had original jurisdiction over her claims against the union as an unfair labor practice under the Public Employment Relations Act (PERA).*fn1 Ziccardi v. Pennsylvania Department of General Services, 50 Pa. Commonwealth Ct. 367, 413 A.2d 9 (1980).

The Pennsylvania Supreme Court reversed this court's ruling in part in Ziccardi v. Pennsylvania Department of General Services, 500 Pa. 326, 456 A.2d 979 (1982), and remanded the case for further proceedings.

[ 109 Pa. Commw. Page 633]

Specifically, that court held that Ms. Ziccardi was not entitled to bring an action in equity and assumpsit against her employer for breach of the collective bargaining agreement (thus affirming the dismissal of counts 1 and 5) but that PERA did not bar counts 6 and 7 against the union; consequently, this court could not dismiss those counts for lack of jurisdiction. The Supreme Court also remanded this case for further consideration of the federal and constitutional issues in counts 2, 3 and 4 against the Commonwealth and the secretary.

In January, 1984, this court denied the union's motion for judgment on the pleadings and overruled the Commonwealth's preliminary objections in an unreported opinion.

In September, 1984, Senior Judge Kalish denied the Commonwealth's motion for judgment on the pleadings and ruled that the statute of limitations did not preclude Ms. Ziccardi's cause of action. In November, 1984, this court granted reargument as to the Commonwealth's motion for judgment on the pleadings. On April 8, 1985, before the motion was reargued, the Commonwealth Court sua sponte transferred this case to the Court of Common Pleas of Dauphin County in light of the Supreme Court's ruling in Balshy v. Rank, 507 Pa. 384, 490 A.2d 415 (1985).*fn2

In June, 1985, the Supreme Court, as noted above, granted Ms. Ziccardi's petition for the exercise of extraordinary jurisdiction and remanded the case to this court. Accordingly, we now reconsider the Commonwealth's motion for judgment on the pleadings.

[ 109 Pa. Commw. Page 634]

In review, we note that the Supreme Court's remand of this case, as it relates to the Commonwealth and the secretary, is for the consideration only of counts 2, 3, and 4 of Ms. Ziccardi's amended complaint. The Commonwealth's motion states four reasons why Ms. Ziccardi's complaint should be dismissed: (1) the statute of limitations precludes Ms. Ziccardi's cause of action because her complaint was not timely filed; (2) her "appeal" should be "quashed" for failure to petition for review within thirty days of the department's final order with regard to Ms. Ziccardi's discharge; (3) sovereign immunity; and (4) official immunity.*fn3

A. Statute of Limitations

The United States Supreme Court ruled, in Wilson v. Garcia, 471 U.S. 261 (1985), that the state limitation period for a personal injury action controls causes of action brought under section 1983. The Commonwealth contends that Wilson requires the dismissal of Ms. Ziccardi's cause of action under Pennsylvania's two-year statute of limitation for personal injury actions.*fn4 Ms. Ziccardi, however, argues that Wilson should not be applied retroactively to bar her complaint, which was filed at a time when she reasonably believed that the six-year statute of limitations applied.*fn5

The Supreme Court has announced in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the criteria by which to judge whether its ...


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