decided: October 1, 1987.
LINDA ZICCARDI, PLAINTIFF
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.
Andrew F. Erba, Esq., Marjorie A. Janoski, Esq., and Louis S. Rulli, Esq., for plaintiff.
Robert Schwartz, Asst. Counsel and Nathan C. Pringle, Esq., for respondents.
Bruce M. Ludwig, Esq. of Stephen A. Sheller & Assoc., for Joint Bargaining Committee.
Stephen H. Jordan, Esq., and Louis B. Kushner, Esq., of Rothman Gordon Foreman and Groudine, for Pennsylvania Federation of Teachers.
Robert J. Schwartz, Esq. for the Commonwealth of Pennsylvania.
Alaine S. Williams, Esq., for AFSCME.
Robert J. Schwartz, Esq. and John Raup, Esq., and Lee Strickler, Esq., for Dept. of General Services and Ronald E. Lench.
Opinion by Judge Craig.
[ 109 Pa. Commw. Page 644]
This court has reconsidered the sovereign immunity basis on which the court's opinion and order of June 8, 1987 granted the Commonwealth's motion for judgment in its favor on the pleadings, with respect to Petitioner Ziccardi's state and federal law claims against the Commonwealth, other than those based on Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Counts 2 and 4 of Ziccardi's original jurisdiction petition are the counts under reconsideration.
Not being reconsidered, and therefore confirmed, are this court's holdings in the June 8, 1987 opinion and order (1) that the § 1983 claims in Counts 3 and 5
[ 109 Pa. Commw. Page 645]
against the Commonwealth and its department secretary are not barred by any statutory time limitation, (2) that those claims are barred against the Commonwealth because it is not a "person" within the meaning of § 1983, and (3) that such claims are subject to the secretary's qualified immunity.
Earlier the Supreme Court of Pennsylvania affirmed, on different grounds, this court's dismissal of Count 1, filed by Ziccardi against the Commonwealth for breach of a collective bargaining agreement. Ziccardi v. Pennsylvania Department of General Services, 500 Pa. 326, 456 A.2d 979 (1982), rev'g in part Ziccardi v. Pennsylvania Department of General Services, 50 Pa. Commonwealth Ct. 367, 413 A.2d 9 (1980).
The two remaining counts of the seven-count petition, Counts 6 and 7 raising claims of inadequate representation and discrimination against the petitioner's union, are here by remand order of the Supreme Court, being triable in this court so long as pendent jurisdiction continues to be applicable to them by reason of any viable action against the Commonwealth or the secretary in this court.
Hence the sole question upon reconsideration is:
Where, on a cause of action which arose November 23, 1972, a petitioner has filed suit in this court on November 16, 1978, is the bar of the Commonwealth's common-law sovereign immunity absent by virtue of Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) and Gibbon v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980)?
In our opinion of June 8, 1987, this court correctly held that, under Gibson, the statutory sovereign immunity enacted by Act 152, Act of September 18, 1978, P.L. 788 §§ 1 et seq., could not be applied retrospectively to
[ 109 Pa. Commw. Page 646]
causes of action which arose before the September 18, 1978 effective date of that statute.
However, that June 8, 1987 opinion failed to note that the Supreme Court, in Gibson, clearly held that the abrogation of the judicial doctrine of sovereign immunity in Mayle operated retrospectively so that causes of action which accrued before the Mayle decision are not subject to common law sovereign immunity.
Specifically, in Gibson, the Supreme Court stated
[T]his Court has already applied Mayle to those cases pending in the court on the date of the Mayle decision. . . . There is no principled reason to discriminate now against appellants whose causes also accrued before Mayle, but whose complaints were filed post-Mayle. . . .
490 Pa. at 165, 415 A.2d at 85. That language is precisely applicable to the present case, in which the cause of action arose in 1972, before the July 14, 1978 date of the Mayle decision, and in which the date of filing came after Mayle, on November 16, 1978.
Therefore, with respect to the status of the Commonwealth under the doctrine of sovereign immunity in this case, these statements replace contrary statements in our June 8, 1987 opinion. The order of this court must be modified accordingly, to deny the Commonwealth's motion for judgment on the pleadings not only as to the Secretary, but also as to the Commonwealth itself.
Now, October 1, 1987, the order of this court dated June 8, 1987 is hereby amended to order that the Commonwealth's motion for judgment on the pleadings is denied as to the Commonwealth of Pennsylvania, Department of General Services, as well as to the Secretary of General Services.
© 1998 VersusLaw Inc.