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JAMES P. POLISKIEWICZ v. EAST STROUDSBURG UNIVERSITY (01/22/88)

decided: January 22, 1988.

JAMES P. POLISKIEWICZ, APPELLANT
v.
EAST STROUDSBURG UNIVERSITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County in the case of James P. Poliskiewicz v. East Stroudsburg University, No. 1559 Civil -- 1985.

COUNSEL

Leonard N. Zito, Zito, Martino and Karasek, for appellant.

Michael B. Sutton, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellee.

Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 113 Pa. Commw. Page 14]

This is an appeal by James P. Poliskiewicz (Appellant) from an order of the Court of Common Pleas of Monroe County, which sustained a preliminary objection in the nature of a demurrer filed by East Stroudsburg University (Appellee) and dismissed Appellant's complaint.

In his complaint and amended complaint, Appellant alleged that he was employed by the Police Department of the Borough of Bangor and by Appellee as a police officer when, on February 10, 1985, he was involved in an incident in a bar in Monroe County, which resulted in his being arrested for disorderly conduct and public

[ 113 Pa. Commw. Page 15]

    drunkenness. On February 12, 1985, Appellant was suspended from both jobs pending the outcome of the criminal proceedings instituted against him. Appellant further avers that on April 4, 1985 all criminal charges against him were dismissed; thereafter, Appellant was reemployed by the Borough, but not by Appellee. He further averred that Appellee has refused to reemploy him. Appellant maintains that his discharge by Appellee and the subsequent refusal to reemploy him is violative of Sections 9124 and 9125 of the Criminal History Record Information Act (Record Act), 18 Pa. C. S. §§ 9124, 9125. He further argues that his discharge was based upon mere unproven accusations; that Appellee's reasons for discharging him are not legitimate; that he has suffered damages in that he has been unable to secure comparable employment; and that his discharge was in violation of the personnel manual issued to him by Appellee. As a remedy, Appellant seeks monetary damages.

Appellee, in its preliminary objection in the nature of a demurrer, raises the defense of sovereign immunity.*fn1 Trial Judge Peter J. O'Brien, citing Allio v. Department of Transportation, (No. 84-C-723 filed October 30, 1984), an opinion of President Judge Backenstoe of the Court of Common Pleas of Lehigh County, held that sovereign immunity did operate to bar the instant suit. He, therefore, sustained the preliminary objection and dismissed the complaint.

Section 8522 of the Judicial Code, 42 Pa. C. S. § 8522, represents the current statute which pertains

[ 113 Pa. Commw. Page 16]

    generally to the waiver of sovereign immunity. It ...


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