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July 15, 1993


The opinion of the court was delivered by: BY THE COURT; ANITA B. BRODY

 In this motion for summary judgment by the defendant Philadelphia County Court of Common Pleas, I am being called upon to decide whether a Pennsylvania court of common pleas is an "arm of the state" for Eleventh Amendment purposes and therefore entitled to sovereign immunity in the federal courts. I find that it is. Once granted sovereign immunity, the court cannot be sued in federal court without its consent under either ERISA or any state law claims, nor can it be sued at all under 42 U.S.C. § 1983. Eleventh Amendment immunity does not apply to claims under ADEA, however.

 Plaintiff Dolores Reiff brought this action against the Court of Common Pleas of Philadelphia County on August 27, 1992, after she was terminated from her job as a social worker with the Adoptions Branch of the Family Division of the Court. Ms. Reiff alleges that the Court violated the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, as amended, et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, as amended, the Pennsylvania Human Relations Act ("PHRA"), Section 5A, as amended, 43 P.S. § 951, et seq., and the common law of Pennsylvania. Subsequently, the Court of Common Pleas filed this motion for summary judgment on all of the claims of the plaintiff.

 In a motion for summary judgment, the moving party must establish that no genuine issues of material fact remain in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine issue exists if there is sufficient evidence for a reasonable jury to find for the non-movant; the issue is material if it could affect the outcome of the action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In this context, the evidence must be viewed in the light most favorable to the non-movant. Mellon Bank Corp. v. First Union Real Estate Equity and Mortg. Invest., 951 F.2d 1399, 1404 (3rd Cir. 1991).

 The material facts are as follows: Ms. Reiff, the plaintiff, first began working for the Family Court in 1957, and after several promotions, she became Chief of the Adoptions Branch in 1980. (Reiff Deposition, A-76, A-58). When the Adoptions Branch was merged with the Medical Branch in late 1989, Dr. M. Jean Sosnowski, Assistant Branch Chief of the Medical Branch, became Ms. Reiff's supervisor. Ms. Reiff remained in charge of the Adoption Branch, however. (Plaintiff's Answer to Motion for Summary Judgment, P.6). In May, 1991, Ms. Reiff, then fifty-five years old, was informed that she was being terminated as part of a budgetary staff reduction. (Reiff Deposition at A-158-59). Ms. Reiff's last day of work at the court was in June, 1991. (Plaintiff's Answer at 6).

 The defendant claims that it sought to eliminate employees who were least productive and who held positions which could be eliminated without disruption of the unit, and it claims that Ms. Reiff fit this description. (Defendant's Memorandum of Law in Support of Motion for Summary Judgment, p.12). Ms. Reiff, however, consistently received excellent evaluations and was never disciplined or criticized about her work during her thirty-four years with the court. (Plaintiff's Answer at 5-6). Within six months after the plaintiff's dismissal, Andrea Hoffman Jelin, a forty-one year old Deputy Court Administrator, was given Ms. Reiff's position. (Plaintiff's Answer at 8).

 At the time the plaintiff was fired the only other social worker in the Adoptions Branch, Bernadine McLaughlin, thirty-seven, was retained. (Plaintiff's Answer at 16). The Family Court let sixty-nine employees go during the staff reduction; forty-seven of them were over the age of forty, and thirty of those forty-seven were over fifty. (Plaintiff's Answer at 17).


 A. Eleventh Amendment immunity

 The Eleventh Amendment of the United States Constitution provides that:

 Sovereign immunity also prevents a citizen from bringing a suit in federal court against his or her own state, unless the state consents to suit and thus waives its immunity. Pennhurst State School v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984) (quoting Employees v. Missouri Department of Public Health and Welfare, 411 U.S. 279, 280, 36 L. Ed. 2d 251, 93 S. Ct. 1614 (1973)). The bar operates not only when the state is the party named, but whenever "the state is the real, substantial party in interest." Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). "Eleventh Amendment immunity does not extend, however, to municipalities, counties, and other units of local government that are not agencies, instrumentalities, or arms of the state." Mt. Healthy City School Dist. Board of Educ. v. Doyle, 429 U.S. 274, 280, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). The plaintiff claims that the Court of Common Pleas of Philadelphia County is part of the Philadelphia municipal government and thus not entitled to Eleventh Amendment immunity. In distinguishing between state and local entities for Eleventh Amendment purposes, the relevant determination is whether the entity is an "alter ego" of the state entitled to the protection of state immunity, or a distinct agency not so entitled. Colon v. Hart, 114 Bankr. 890 (E.D. Pa. 1990). See also Flesch v. Eastern Pa. Psychiatric Inst., 434 F. Supp. 963, 976 (E.D. Pa. 1977).

 An important factor in deciding if an agency is the "alter ego" of the state is whether state law views the agency as a part of the "state." Mt. Healthy, 429 U.S. at 280. See also Kovats v. Rutgers, the State University, 822 F.2d 1303, 1307 (3d Cir. 1987). The state law of Pennsylvania views the courts of common pleas as an arm of the judicial branch of the state government. Article V, § 1 of the Pennsylvania Constitution provides:

The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth court, courts of common pleas, community courts, municipal and traffic courts in the city of Philadelphia, such other courts as may be provided by law and ...

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