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June 9, 1989


The opinion of the court was delivered by: CONABOY


 Presently before the Court is Defendants' motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56. The Plaintiffs have filed a brief in opposition to which the Defendants have replied. Local Rule 401 et seq. This court has taken into consideration the arguments presented by counsel in this matter and, for the following reasons, shall grant in part Defendants' motion for summary judgment and proceed to trial on the remaining allegations.


 Kathleen Handley began her employment with Luzerne County on or about July 1, 1980, when she was hired as a matron at the county prison. Funding for her position was provided by the federal job training program known as CETA until October of 1981, when she was given regular county employment as a prison matron. She continued in this position until indefinitely suspended by the Warden on or about September 2, 1985.

 On December 30, 1985, upon the Warden's recommendation, the Luzerne County Prison Board voted three to one in favor of terminating Kathleen Handley's employment. *fn1" As required by the collective bargaining agreement in effect during the years of her employment, Kathleen Handley's suspension in September of 1985 and subsequent termination in December were the subject of mandatory and binding arbitration. *fn2" See Pennsylvania Public Employees Relations Act, 43 P.S. Section 1101.903. A hearing was held before Arbitrator Perry Zirkel on December 13, 1987, and an award in favor of the Luzerne County Prison Board was handed down on April 21, 1987.

 A petition to vacate and/or modify the arbitrator's award was subsequently filed with the Luzerne County Court of Common Pleas by Plaintiff Handley's union, the Public Service Employees Union Local 1300. By a decision and order of Judge Patrick J. Toole, Jr., dated January 11, 1988, the Union's petition to vacate the award was denied and the matter dismissed.

 Prior to the Court of Common Pleas' decision upholding the arbitration award, Plaintiffs filed this suit in federal court on August 20, 1987, after receiving a right to sue notice from the Equal Employment Opportunity Commission (EEOC).

 At the completion of discovery, the Defendants filed a motion for summary judgment asserting that (1) the full faith and credit clause of the United States Constitution precludes this court from acting under the circumstance of this case; (2) the Plaintiffs have failed to state a claim against any of the moving Defendants under 42 U.S.C. § 1983, the First, Fifth and Fourteenth Amendments to the Constitution, and 42 U.S.C. § 2000e et seq. ; (3) this court should not retain the pendent state claims upon the dismissal of the federal question issues; and (4) that the Political Subdivision Tort Claims Act of Pennsylvania cited at 42 Pa. C.F.A. § 8541 et seq. provides immunity as to the alleged state law claims.

 The Plaintiffs have filed a brief in opposition challenging the movants' dispositive motion and a reply brief has been submitted pursuant to Local Rule 401.7, making this matter ripe for consideration.


 Federal Rule of Civil Procedure 56(c) provides that "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact". (emphasis in original). Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 If the Court finds that there is a material issue of fact in dispute, its inquiry does not end and the motion denied. Rather, it must proceed to determine that this material issue in dispute is genuine in nature. As stated in, Anderson, ". . . summary judgment will not lie if the dispute about a material fact is genuine, if the evidence is such that a reasonable jury would return a verdict for the non-moving party." Id. at 2512. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If evidence is "merely colorable" or "not significantly probative," summary judgment may be appropriate. Id. at 2511. In this sense, summary judgment mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), in that the inquiry under each is whether the evidence presents a sufficient disagreement to require submission to a jury. Anderson at 2512; Hankins v. Temple University, et al., 829 F.2d 437 (3d Cir. 1987); Sonenshein, State of Mind and Credibility in the Summary Judgment Context: A Better Approach, 78 N.W.U.L. Rev. 774 (1983).

 The Complaint

 1. Jurisdiction

 According to the complaint, this is a civil rights action brought under 42 U.S.C. § 1983 and 42 U.S.C. § 2000e to redress violations of Plaintiffs' rights under the First, Fifth and Fourteenth Amendments of the United States Constitution as well as matters raised under "the Common Law of Pennsylvania." Complaint at para. 1. Although provisions other than jurisdictional statutes are cited in the complaint, the court's authority over these matters is based on Title 28 United States Code §§ 1331 and 1343, as well as pendent jurisdiction.

 2. Claims Presented.

 The initial pleading consists of an eleven count complaint outlining claims brought by Kathleen Handley and/or Frank Handley against all of the defendants. The allegations in Count I begin with a claim that Kathleen Handley's "constitutional rights" were violated since she did not receive notice or a meaningful hearing before her suspension and eventual termination (Complaint at para. 28); that officials violated her due process rights by either delaying or not processing her grievances (Complaint at para. 29); that her termination for being "physically unable to perform her required duties" was in violation of due process since based on "vague and overbroad language" in the collective bargaining agreement and an invalid Code of Ethics (Complaint at para. 30); that her termination "based on a violation of the prison's "yard-out procedure" was invalid (Complaint at para. 31); that her liberty interest has been violated since the defendants' actions reflect badly on her, have stigmatized her by loss of good name, reputation, honor and integrity, resulting in difficulty in obtaining employment in the field of criminal justice (Complaint at para. 32 and 33); and finally, that the defendants' statements that she was terminated for good and proper cause are false and malicious (Complaint at para. 34).

 Although counsel for the Plaintiffs was not specific in any of the above cited paragraphs as to which provision of the Constitution was violated, it would appear that a § 1983 claim for an infringement of the Fifth and Fourteenth Amendment due process clauses has been attempted.

 The Plaintiffs allegations in Count II of the complaint invoke familiar terms for a cause of action under 42 U.S.C. § 1983. Specifically, Plaintiff Kathleen Handley claims that the defendants, "while acting under color of state law," deprived her of the constitutional rights to be free from interference with her "contractual rights". Handley claims, once again, a violation of her "rights not to be deprived of liberty and property without due process of law as guaranteed by the Fifth and Fourteenth Amendments of the Constitution." (Complaint at para. 36).

 In Count III of the complaint, there is a repeat of the allegations of delay engendered by the defendants in processing the Plaintiff's grievances, including the failure of the defendants to participate in arbitration hearings required under the collective bargaining agreement. Such actions were allegedly taken to deprive the Plaintiff of her constitutional rights of free speech and the ability to petition the government for redress of grievances. (Complaint at para. 39).

 The allegations in Count IV are challenges to the various disciplinary actions taken against Kathleen Handley throughout her employment. Specifically, Plaintiff disputes the validity of the county's disciplinary actions as to uniform and grooming requirements, the enforcement of a "yard-out" procedure, and suspension for "physically being unable to perform required duties." Complaint at para. 41-45. It is Plaintiff's belief that the named governmental officials acted out of "personal animosity" resulting in a violation of her "rights to equal protection of the laws, including but not limited to, her right to the equal opportunity to hold public employment and her right not to be discriminated against in regard to that employment as well as her right to be free from unreasonable and/or arbitrary government interference with her liberty." Complaint at para. 46.

 The allegations under Count V of the complaint presents a traditional claim of gender discrimination by averring that Plaintiff and members of her class have been discriminated against by the defendants "in respect to terms, conditions and privileges of employment because of sex . . ." Complaint at para. 54. Specifically, Plaintiff Kathleen Handley claims the failure of prison authorities to hire her or someone in her class to the position of corporal or sergeant was based on gender and violative of Title 42 United States Code Section 2000e.

 Count VI asserts a state claim for breach of contract for defendants' failure to deal fairly and in good faith in processing grievances and providing proper hearings under the terms of the collective bargaining agreement.

 The sole claim for relief in Count VII is that the vindictive action of the defendants in dismissing Kathleen Handley was "in violation of public policy." *fn3"

 Count VIII is another allegation of breach of contract, only unlike Count VI, it is alleged that defendants' actions were a malicious and improper interference with her contractual rights and prospective contractual relations. (Complaint at para. 66).

 Because of the Defendants' "willful, wanton, and malicious" conduct in terminating her employment, Kathleen Handley asserts a claim for emotional distress in Count IX of the complaint.

 Count X is brought by Frank and Kathleen Handley claiming that the defendants have portrayed them "in a false light" by accusations of being "regular users and sellers of drugs." As a result of such "slanderous remarks", the Handleys claim "severe emotional anguish, humiliation and emotional distress, loss of her job and wages."

 In the last count of the complaint, Plaintiff Frank Handley claims that as a result of the Defendants' actions, he has been deprived of his wife's consortium, society and services.

 Plaintiffs seek compensatory and punitive damages; *fn4" the reinstatement of Kathleen Handley; retroactive restoration of all benefits and pay; an expunged personnel record of all incidents occurring in 1985; reasonable attorney fees and costs of Plaintiffs; as well as any further relief as deemed necessary and proper.

 Suit Precluded Under 28 U.S.C. Section 1738

 1. Arguments Presented.

 Prior to addressing the merits of Plaintiffs' allegations, the Defendants argue that the matters raised in this suit are precluded by 28 U.S.C. § 1738 in light of past administrative and judicial adjudications. Citing the cases of Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984) and McDonald v. City of West Branch, 466 U.S. 284, 104 S. Ct. 1799, 80 L. Ed. 2d 302 (1984), the Defendants maintain that "based upon the judicial affirmation of the arbitrator's award, the female Plaintiff is precluded by 28 U.S.C. Section 1738 from instituting the action at barr (sic) or those individual Counts of her Complaint which are based upon those matters considered and ruled upon by the arbitrator . . ." Doc. No. 33 at 15.

 In opposition, counsel for Plaintiffs recognize the authority of the Migra and McDonald cases, however, they challenge their applicability to the facts of this case. For the first time in these proceeding, rather than cite to the general statutory provision of 28 U.S.C. § 1738, Plaintiffs' counsel properly invokes the doctrine of "res judicata" and attempts to distinguish this case from that doctrine's preclusive effects.

 After reviewing the arguments presented, it is the finding of this court that the wide preclusive effect of res judicata advocated by the Defendants to dismiss this federal cause of action is inapplicable. As to the state claims for breach of contract or any issue accusing the Defendants of violating the terms of the collective bargaining agreement, however, this court finds the doctrine of collateral estoppel applies and precludes any challenge of these issues based on the prior adjudication in the Court of Common Pleas. See Public Service Employees' Union Local 1300 v. Luzerne County, Civ. No. 53-E 1987, attached to Doc. No. 14, Exhibit 4.

 2. Court's Analysis.


 On May 26, 1790, Congress enacted legislation requiring all federal courts to give such preclusive effect to state court judgments "as they have by law or usage in the courts of the state from [which they are] taken." Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n.5, 72 L. Ed. 2d 262, 102 S. Ct. 1883, reh'g denied, 458 U.S. 1133, 73 L. Ed. 2d 1405, 103 S. Ct. 20 (1982); U.S. Const. Art. IV, Sec. 1. This concept of giving deference to state judicial adjudications has been codified under Title 28, United States Code, Section 1738:

The . . . judicial proceedings of any court of such State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . .

 Under the full faith and credit clause, federal courts are required to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged. Accordingly, the federal courts consistently have applied res judicata and collateral estoppel to causes of action and issues decided by state courts. Kremer v. Chemical Construction Corp., supra, at 466, citing Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980); Montana v. United States of America, 440 U.S. 147, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979); Angel v. Bullington, 330 U.S. 183, 91 L. Ed. 832, 67 S. Ct. 657 (1947).

 This court recognizes that the terminology engendered by the full faith and credit clause and its application relating to the preclusive effect of earlier litigation can be confusing, however, the concepts of res judicata and collateral estoppel with their associated vocabulary of merger, bar, claim and issue preclusion, all have one common purpose -- to ensure that there will be a point at which litigation ends. *fn5" Allen v. McCurry, 449 U.S. 90, 94, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1978); United States v. Mendoza, 464 U.S. 154, 78 L. Ed. 2d 379, 104 S. Ct. 568 (1984).

 As to the specific doctrines involved in this case, the Supreme Court explained in Parklane Hosiery Co. v. Shore, supra, 439 U.S. 322, 326 n.5 99 S. Ct. 645, 58 L. Ed. 2d 552 (1978) that:

under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. (citations omitted).

 Moreover, in Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980), the United States Supreme Court held that section 1738 requires federal courts adjudicating an action under 42 U.S.C. § 1983 to give issue and claim preclusive effect to the previous judgment made with respect to the same claim by the state court. The court in Allen made clear that issues actually litigated in a state-court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was rendered.

 As for cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Court held in Kremer v. Chemical Constr. Co., 456 U.S. 461, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982), reh'g denied, 458 U.S. 1133, 73 L. Ed. 2d 1405, 103 S. Ct. 20 (1982), that these same preclusive doctrines apply. Specifically, section 1738 requires federal courts to give preclusive effect to a state court decision reviewing a state administrative agency's determination of an employment discrimination claim. See also, Kelley v. TKY Refractories Company, 860 F.2d 1188, 1193 (3d Cir. 1988).


 When determining whether a prior proceeding should bar a federal court from taking action in a subsequent suit, the court must look to the law of the state where the initial proceeding took place to determine what effect that state would give to the prior judgment. Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir. 1985). In Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 574, 345 A.2d 664 (1975), the Pennsylvania Supreme Court held:

it is well settled that for the doctrine of res judicata to prevail there must be a concurrence of four conditions: 1) identity of issues, 2) identity of causes of action, 3) identity of persons and parties to the action, and 4) identity of the quality or capacity of the parties suing or sued. (citations omitted). With respect to collateral estoppel we have recently stated that a plea of collateral estoppel is valid if 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. In Re Estate of Ellis, 460 Pa. 281, 333 A.2d 728, 731 (1975) . . .

 See also, Kelley v. TKY Refractories Co., 860 F.2d 1188, 1194 (3d Cir. 1988); Jalil v. Avdel Corporation, 87 ...

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