(57) Pennsylvania law does not resolve the issue in this case to plaintiff's satisfaction, as in Georgevich. 772 F.2d at 1094-95. Consequently, because the state system is not in a position to safeguard the rights of JoAnn DeLong, federal action is necessary.
(58) Plaintiff has failed to establish that 42 Pa.C.S.A. § 4502 is unconstitutional on its face because the statute is neither substantially overbroad nor invalid in every application, and therefore judgment will be entered for defendants on that claim. New York State Club Assoc. v. City of New York, 487 U.S. 1, 108 S. Ct. 2225, 2233, 101 L. Ed. 2d 1 (1988); Carter v. Jury Commission, 396 U.S. 320, 24 L. Ed. 2d 549, 90 S. Ct. 518 (1969).
(59) Plaintiff's constitutional claims against the Commonwealth of Pennsylvania for equitable relief, predicated on the Fourteenth Amendment and 42 U.S.C. § 1983, are barred by the Eleventh Amendment. Alabama v. Pugh, 438 U.S. 781, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1978).
(60) Plaintiff's constitutional claims against the Commonwealth of Pennsylvania for declaratory relief, predicated on the Fourteenth Amendment and 42 U.S.C. § 1983, are barred by the Eleventh Amendment. Helfrich v. Commonwealth of Pennsylvania, 660 F.2d 88 (3d Cir. 1981).
(61) Plaintiff's claims against the Commonwealth of Pennsylvania for declaratory and injunctive relief, predicated on the Rehabilitation Act, are barred by the Eleventh Amendment. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-246, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1984). Pennsylvania has not consented to be sued in federal court, 42 Pa.C.S.A. § 8521 (b), and therefore the claims of plaintiff that pre-date October 21, 1986 are not actionable.
(62) Congress abolished Eleventh Amendment immunity under the Rehabilitation Act on October 21, 1986. 42 U.S.C. § 2000d-7. However, we find that plaintiff has failed to establish a nexus between the challenged conduct and the Commonwealth of Pennsylvania subsequent to that date. Judgment will be entered for the Commonwealth on all claims of plaintiff.
(63) Plaintiff's claims against the individual defendant are barred neither by the Eleventh Amendment, Everett v. Schramm, 772 F.2d 1114, 1118-1119 (3d Cir. 1985), nor the doctrine of judicial immunity. Pulliam v. Allen, 466 U.S. 522, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1983). The Court of Appeals has instructed that judicial immunity is no defense to declaratory relief where, as here, judges are sued as enforcers of statutes, or "where a suit challenges statutes related to the judicial process or statutes previously enforced by the particular judge against the plaintiff." Georgevich v. Strauss, 772 F.2d 1078, 1088 (3d Cir. 1985). In short, we find that the individual defendant was not sued as a neutral adjudicator of the law.
(64) Plaintiff has filed a motion for class certification post trial on behalf of 150 deaf persons in Blair County. Approximately 75 percent are conversant in Pidgin Sign Language, although plaintiff's evidence is far from precise.
(65) While Rule 23 authorizes class certification post trial, under appropriate circumstances, we are not satisfied that there are questions of fact that are common to all deaf persons in Blair County. JoAnn DeLong is a unique, competent and courageous woman. She is highly skilled in Pidgin Sign Language. Some deaf persons may be more or less skilled than plaintiff in American Sign Language. Others may communicate by Signed English or Manually Coded English. A fact that can only be determined by a judge following a hearing with evidence and appropriate findings, after the array is summoned to the courthouse. We will therefore deny the motion for class certification.
(66) We have declined to reach the constitutional claims of plaintiff that are not essential to our judgment. The declaratory relief is bottomed on the Rehabilitation Act and, as the Court of Appeals has instructed, the "general rule, based upon overriding policy considerations, is to avoid constitutional issues unless essential to the decision of a case." Spicer v. Hilton, 618 F.2d 232, 240 (3d Cir. 1980).
(67) A written order will follow granting plaintiff declaratory relief against defendant, Honorable R. Bruce Brumbaugh, under the Rehabilitation Act, and denying the motion of JoAnn DeLong for class certification. Judgment will be entered for the Commonwealth of Pennsylvania on all claims of plaintiff.
DATED: January 12, 1989
ORDER of COURT
AND NOW, this 12th day of January 1989, in accordance with the findings of fact and conclusions of law of record.
IT IS ORDERED that judgment be and hereby is entered on behalf of defendants, Commonwealth of Pennsylvania and Hon. R. Bruce Brumbaugh, on the claim of plaintiff that 42 Pa.C.S.A. § 4502 is unconstitutional on its face.
IT IS FURTHER ORDERED that judgment be and hereby is entered on behalf of defendant, Commonwealth of Pennsylvania, on all other claims of plaintiff.
IT IS FURTHER ORDERED that judgment be and hereby is entered on behalf of plaintiff, JoAnn DeLong, and against defendant, Hon. R. Bruce Brumbaugh, declaring that the exclusion of JoAnn DeLong from the jury array of the Court of Common Pleas of Blair County, Pennsylvania, on October 6, 1986, solely because she was deaf, violated Section 504 of the Rehabilitation Act of 1973.
IT IS FURTHER ORDERED that the remaining constitutional claims of plaintiff against the individual defendant shall be and hereby are deferred as a result of our findings with respect to the federal statutory claim of plaintiff.
IT IS FURTHER ORDERED that the motion of plaintiff for class certification be and hereby is denied.
IT IS FURTHER ORDERED that counsel for plaintiff shall file a motion for counsel fees with supporting affidavit, within 30 days, setting forth (a) the date of the service, (b) the nature of the service, (c) the hourly rate, (d) the specific fee for each service, (e) the total fee requested at the end thereof, and (f) costs, if any.
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