*1 92 stated;
ry damages. Nothing more is more is nothing meant. 238 make delay damages damages
Rule
are
awarded to
a
Laudenberger
v.
Alle
Authority
Port
plaintiff
whole.
gheny County,
Marrazzo v. Scranton
supra.
also:
See
Co.,
72,
Bottling
Nehi
(1970).
Pa.
I dissent.
AND Appellees. UNIVERSITY et Supreme Court of Pennsylvania.
Submitted Oct. Dec. Decided *3 Tait, Jr., Williamsport, William R. appellant. for Schwartz, Gerber, J. Harrisburg, Robert Jerome H. for appellees. ROBERTS, C.J., NIX, LARSEN,
Before and FLAHER- jj. TY, McDermott, zappala, hutchinson and OPINION NIX, Justice. Bloomsburg Kapil, C. was hired Prakash
Appellant, a in 1967 and beсame tenured College (Bloomsburg) State for a eligible sabbati- in 1972. He became faculty member has applied in each since 1974 year leave 1974 and cal degree his so work on doctorial complete sabbatical consist- Kapil for a Mr. has eligible promotion. he would be alleges leave since 1974 and been denied sabbatical ently based on discriminatory this denial is the reason for origin. national grievance with his collec-
In filed July, appellant of Pennsyl- the Association bargaining representative, tive (APSCUF). University Faculties State vania certified, bargaining exclusive collective is the APSCUF member, the is a Kapil unit of which agent employee system, al- college the statе employees of professional itself. not a member APSCUF though Kapil pursuant was filed grievance Bloomsburg APSCUF and in effect between
agreement this process complaint APSCUF refused College. the matter to arbitration.1 refused to take two consisting complaint equity filed a Appellant Court, 287, 448 68 Pa.Cmwlth. counts the Commonwealth objections2 which Apрellees preliminary A.2d 717. filed defendants, governmental sustained and as were (Department) Education trustees Department of *4 As re- complaint dismissed. to the Bloomsburg, one, through grievance steps Appellant processed his two and three 1. agreement without success. He was not of the collective binding V permitted D of Article arbitration under sеction to initiate bargaining agreement. of the collective question jurisdiction; objections a of failure to raised were 2. demurrer; remedies; remedy is statutory a the exclusive exhaust Board; Pennsylvania failure Labor Relations to exhaust before the remedies; standing lack of to seek review of a collec- administrative provide required bargaining agreement; statutorily to failure tive fashion; and, join timely indispensable an a failure to notification in party. defendants, the matter maining was transferred to the Court of Common Pleas of County. Columbia
In Count I appellant avers that Bloomsburg’s denial of sabbatical arbitrary leave was and discriminatory. He con- tends agents that and its its APSCUF breached of duty fair representation and that the trustees of Bloomsburg State president and its well as as the De- partment of Education in participated this breach of duty. He asserts of “trustees Bloomsburg College, and Department McCormick in participated APSCUF’s breach of of duty its fair in representation they that encour- aged, permitted and condoned discriminatory APSCUF’s refusal to process plaintiff’s grievance binding arbitra- tion”. He alleges further and the Depart- APSCUF ment conspired rights violate his by constitutional agree- ing him deprive right of his to fair representation. He claims that these acts violated his equal protection and due process under the rights Fourteenth Amendment to the U.S. provisions Constitution were remedial under the of 42 U.S.C.A. sections 19833 19854.
Appellant asking for compensatory damages in excess $20,000; of in punitive $10,000; excess of damages plaintiff costs attorney’s fees reasonable all parties. 3. deprivation rights action for Civil of who, statute, Every person any regula- under color of ordinance tion, custom, usage, any Territory оr of State or or the District of Columbia, subjects, subjected, any or causes to be citizen of the person jurisdiction United or other within the States thereof to the deprivation any rights, privileges, of or immunities secured laws, injured be party constitution and shall liable to the in an law, equity, proper proceeding action at suit in or other for redress. seсtion, any purposes Congress For applicable of this Act of exclusively District of Columbia shall be considered to be District of statute of the Columbia. Conspiracy rights to interfere with civil § 1985. persons rights privileges Depriving of or (3) persons any Territory or more conspire If two State or or another, go disguise highway premises on the or on the of depriving, purpose directly indirectly, any person either or or laws, protection persons equal class of equal or of laws; privileges and immunities under purpose or for the preventing hindering the constituted any authorities of State or *5 him grant a sabbati- II he the refusal In Count averred bargaining of III5 of the collective cal a breach Article wаs Department the its President and the agreement by College, the refusal of APSCUF of He further averred Education. of also a breach process grievance his agents and its He bargaining agreement. III of the Article specific performance of the collective prayed agreement including his for sabbatical granting request of $20,000. and consequential damages leave excess of I. propriety We will first address the of the Commonwealth order as it I of complaint. court’s relates to Count the Territory giving securing persons all within such State or from or laws; Territory equal protection the or if two or more of threat, force, intimidation, any persons conspire prevent by or votе, giving support or lawfully citizen who is entitled to from manner, advocacy legal or in of the election of in a toward favor lawfully any qualified person an elector for President or Vice as States; President, Congress or to of United or as a Member of support any injure person property citizen in on account of such or section, advocacy; any if conspiracy set forth in this or case of do, done, any persons or be engaged more cause to one or therein whereby object conspiracy, another of of such act in furtherance having person deprived injured property, or in his or States, exercising any right privilege a citizen United or in the recovеry injured deprived may an party so or have action deprivation, against any damages by injury one occasioned or such conspirators. more of the or 5. Fair Practices MEMBER, any shall dis- party nor FACULTY A. Neither hereto against any candidate for MEMBER or criminate other FACULTY status, race, creed, color, sex, family employment on the basis of membership activity origin, or lack there- age, of, or national APSCUF political belief affiliation. or and/or parties be either B. There shall no discrimination against any members of the same MEMBER hereto family regarding FACULTY employment any at COLLEGE. concurrent Agreement is with any provision in conflict Federal If of this C. amended, Orders, and the Civil Executive relating to the Common- Rights laws and rules Act of and all orders, provisions Program, of such Affirmative Action wealth’s prevail. shall laws and rules discuss, during term of this parties D. The shall meet inter- that are of mutual Agreement aspects such of this Article on est.
Commonwealth Court dismissed the complaint *6 Department Bloomsburg sovereign on the of basis Department v. Mayle immunity. In of Highways, 384, of (1978) 479 Pa. 388 the doctrine A.2d 709 sovereign However, immunity abrogated. General of Assembly enacted Act 152 reinstated the doctrine which sovereign setting eight in 1978 forth immunity September specific instances in which suits the Commonwealth could be maintained.6 The cause of action set forth under I eight categories. Count would not fall of any within those Thus, it would have been barred if the of Act 152 immunity applied.
This Court subsequently ruled Act 152 may not constitu- tionally govern actions which became prior actionable to the effective date of the Act.7 Brungard, v. Mansfield College, 114, 491 Gibson v. Pa. 419 (1980); A.2d 1171 Commonwealth, 156, 490 Pa. 415 (1980). A.2d 80 There- fore, we must determine appellants’ when alleged 1983 and 1985 claims accrued.
Appellees contend that appellants’ cause of action arose on 27, June 1979 after the effective date of Act 152. He eight categories 6. The listed in Act are: 152 (1) liability Vehicle (2) professional liability Medical Care, (3) custody personal property or control of (4) estate, highways Commonwealth real and sidewalks (5) dangerous Potholes and other Care, conditions (6) custody and control of animals (7) Liquor store sales (8) National Guard activities 28, 1978, 788, 152, 2, September Act of P.L. No. 42 § Pa.C.S.A. reenacted §5110 at 42 Pa.C.S.A. § legislature expressly provided application for the retroactive application Act 152. This Court denied the retroactive of Act 152 as extinguishment an unconstitutional of a cause of action which has Commonwealth, accrued to a claimant. Gibson v. 490 Pa. 415 (1980). еxpressed Bershefsky A.2d 80 This writer his dissent Commonwealth, 102, 105, Department Welfare, Public 491 Pa. 418 (1980). A.2d operated therefore asserts that Act 152 aas bar to a suit on this claim.8 a cause of action determining
The true test when the plaintiff is to the time when arises or accrues establish con successful could first maintained the action to a have (1970). Am.Jur.2d, Limitation of Actions сlusion. 51 bargaining agreement appellant Under in 1974. leave eligible contends he became sabbatical then which applied year He has for a each since sabbatical has denied.9 Therefore his of action accrued been cause sovereign immunity Act and prior passage Therefore, not a bar. the Commonwealth Court’s dismissal *7 agencies as to the improper.10 of the count state
II. appellant’s complaint of II of The matter Count subject employ- that dispute. Appellant avers involves a labor under the collective rights ers and APSCUF breached his agreement. dispute clearly Such a falls within Act Employee of the Public Relations public policy the 23, 1970, 563, 195, (PERA), of P.L. No. 43 Pa.C. July Act § 1101.101, seq. S.A. et expressed perti- of PERA has public policy been part
nent as follows: Assembly of the Commonwealth of Penn- The General it is the of this Com- public policy declares that sylvania purpose promote orderly and the of this act to monwealth relationships public employ- between all and constructive however, subject, para- to the employes their ers and keep of of the citizens this Commonwealth right mount stage any before us at this assertion of a bar We do not have 8. of limitations. virtue of the statute 27, appel- for Appellee that June 1979 was the denial date claims claim, repeated- indicates that this claim has been but the record lant’s ly year since 1974. denied each conclusion, we need not consider the of this In view Common- Bloomsburg State that the President of Court’s conclusion wealth Commonwealth. College an officer of the was not 100 health, for guarantees
inviolate the their safety and wel- fare. the disputes public employer Unresolved between its employes injurious and are the public and the Assembly General therefore adequate aware that means be must established for minimizing them and their providing for resolution. Within the limitations imposed the upon governmental processes by rights these public of the at large recognizing and that harmonious are relationships required public between employer and its employes, Assembly General has determined that policy may overall aсcomplished best be by ... (2) requiring public employers to negotiate bargain and employe organizations with representing public employes agreements enter into written evidencing re- (3) sult of such bargaining; establishing procedures provide the protection rights public employe, public employer public large. and the at
From
it is
foregoing
аpparent
the legislature
recognized
has
the relationship
public
between the
employer
employee
unique
deserving
is a
one and
See Pennsylvania Labor Relations
special
treatment.
District,
Board v. Altoona Area School
148,
480 Pa.
389
Hollinger Department
Public Wel
(1978);
A.2d 553
fare,
(1976);
Pa.
It is clear here that Count II is in complaint essence a which traditionally has recognized been as falling within the panoply of labor disputes. II charges Count merely employer with enumerated breaches of the collective bar gaining agreement then in existenсe. The fact that one of the alleged breaches relates to Article III paragraph A prohibits which discrimination upon based national origin does not transform the entire count and its removal justify from under the terms of PERA.
In Count I the same racial discrimination was alleged and on the basis of that racial discrimination allegation, we recognizеd in our discussion of I appellant’s right Count sue at law.12 The further reference to the violation of Article III section A in II repetitious Count is and would seek the same damages which are claimed Count I. II Count extends far beyond the racial complaint and as stated is in general fact charges of violations of the collec- tive bargaining agreеment.
For the foregoing reasons we are satisfied that Count II must be whole, read as a and so read its true intendiment 11. § 4651-4. Powers of board The Board jurisdiction of Claims shall have exclusive to hear and determine all claims arising the Commonwealth from con- Commonwealth, tracts hereafter entered into with the where the more____ controversy amount in amоunts $300.00 12. The reinstatement of Count I complaint which addresses the racial *9 appellant assures day his in court as to that issue. put issue asserted violations of the labor contract should appropriately
which be disposed under the provi- sions of PERA. the order of
Accordingly, the is Commonwealth Court reversed. of Pennsylvania, Commonwealth Depart- ment of Education and the Board of Trustees of Blooms- are burg reinstated defendants under I complaint Count of the I is complaint Count remanded to the Commonwealth Court for further proceed- ings consistent herewith. II of complaint Count is dismissed. J.,
HUTCHINSON, files a concurring opinion in FLAH- ERTY, J., joins. Justice,
HUTCHINSON, concurring. I agree appellant’s with the majority that U.S.C. (Count I) 1983 claim is nоt sovereign immunity. barred by Moreover, I majority’s holding also concur with the complaint Count II of must it is be dismissed because original not within the of either jurisdiction exclusive Board of Claims Court. or Commonwealth however,
I
separately,
holding
write
our
to reiterate
Commonwealth,
Ziccardi v.
General
Department
Ser
vices,
(1982),
500 Pa.
FLAHERTY, J., in this joins opinion.
Argued April 1983.
Decided Dec. Reargument May Granted March 6 &