*1 is affirmed ingly, the order of the Board OLESKI, Appellant, William did not
as to its conclusion that the WCJ reinstatement granting err Claimant’s v. petition. The Board’s order is reversed regard the Board and remanded to DEPARTMENT PUBLIC WEL- OF to its conclusion that SEPTA is not enti- FARE, Center, Common- Western pay- for pension tled to an offset credit Pennsylvania. wealth ments made to Claimant. The Board shall remand the case to the WCJ for Pennsylvania. Court of Commonwealth computation in accordance with Section 8, 2002. Argued Oct.
204 of the Act. April Decided 2003. ORDER NOW, 14th day April AND this Compensation
the order of the Workers’ regard to
Appeal Board is affirmed with affirming
the Board’s decision the order of Compensation Judge grant-
the Workers’
ing petition. reinstatement Claimant’s and re-
The Board’s order is reversed regard
manded with to its conclusion that
SEPTA is not entitled to an offset credit pension payments
for to Claimant. The
Board is directed to remand this case to under
the WCJ to make a determination
Section 204 of the Act as to the amount of
credit to which is entitled and the SEPTA weekly
amount of benefits compensation pay shall
SEPTA Claimant. relinquished.
Jurisdiction is thereafter, language contemporaneously receiving indicates that SEPTA Rather money deduct from an compensation payments from the will not be entitled to workers’ carrier, employee’s pension payments to reflect work- Employer insurance or from its makes to compensation] compensation payments SEPTA amount of such er’s [workers’ employee. pension plan amend- payments shall not reduce the amount simply provision payable un- ment’s offset dictates Retirement Benefits otherwise pension payments to injury if an SEPTA cannot reduce der this Plan to such member compensation SEP- compensation a credit for benefits is be- effect for which workers’ August pays employee under the Act. That ing paid TA an was suffered on after provision relinquish SEPTA's statu- does not added.) tory right under Section 204 to receive (Emphasis proffered inter- SEPTA’s compen- plan from workers’ pretation pension credit to be deducted of this section of the payments the payments pension provision does not direct that sation correct. This makes, employer provided for under Sec- employer pension should be deducted credits the Act. compensation payments. tion 204 of from worker’s *2 Porach, Carnegie, appel-
Richard A. for lant. Eddy, Pittsburgh, appel-
Thomas G. lee. SMITH-RIBNER, Judge, and
Before: LEADBETTER, Judge, and McCLOSKEY, Judge. Senior Judge BY OPINION SMITH- RIBNER. appeals from an order of
William Washington Pleas of Court of Common objec- preliminary County sustained to his second amended tions Welfare, of Public against (Department) and dis- Western Center prejudice.1 missed the trial erred questions ski whether the action under the dismissing his cause of reassigned February 1. This case was to this author on
Pennsylvania Human Relations Act April asserting only the FMLA claim (PHRA), 27,1955, timely Act of averring October P.L. that he filed a discrim- amended, 951-963, §§ Pennsylvania charge P.S. when the ination Hu- Commission, originally timely action upon the man Relations based court of it was removed Department’s rescission accommo- *3 Department the to federal district court dations made for mental condition. Oleski’s pursuant to 28 U.S.C. it was later 5, 1999, On March Department the filed at Department’s request dismissed the for 12(b) pursuant a motion to to F.R.C.P. subject jurisdiction, lack of matter Oleski remaining dismiss the claims in the federal filed a copy certified of the district court’s court; prelimi- on same date it filed 5103(b) pursuant order to Section of the nary objections in original complaint to the Code, 5103(b), 42 Judicial and pleas. court of common On October only pleading filed in both courts was 21, 1999, the federal court denied the mo- original complaint. claim, tion to ADA dismiss the but it did 22, 1998, May On Oleski filed an action dismiss PHRA due to lack of in the Court of Washing- subject Common Pleas of preju- matter without County ton that raised claims under the right pursue dice to Oleski’s to this claim PHRA, the Americans pleas with Disabilities in common court. On November 1990CADA), §§ Act of U.S.C. 12101- 1999 filed Oleski a certified of the Family and the and Medical Leave federal court order with the court of com- (FMLA), Act 12, 2000, §§ of 1993 pleas. September 29 U.S.C. 2601- mon On he complaint 2654. The alleged one set of filed a in complaint second amended facts, operative generally, that has incorporated Oleski court of common which been diagnosed suffering as from a allegations severe of the complaint first amended disorder; depressive that the Department and II” only restated “Count the claim granted knew of his condition and had a under the PHRA. The Department condition; request to accommodate preliminary objections, his and moving to strike Department rescinded the accom- the second amended on the basis placed modation and in Oleski back that it was filed without leave of the court environment in which he was unable to or consent of the required defendants as operate. by Oleski was terminated or con- Pa. R.C.P. No. 1033 and that the stat- structively discharged or forced resign to ute of limitations had run on PHRA in May 1997. claim. Department secured removal pleas The court of common an issued Court,
case to the United States District
sustaining
pre-
order on June
Pennsylvania,
July
objections
Western District of
on
liminary
dismissing
and
the sec-
2, 1998.
filed a petition
Oleski
to remand
ond amended complaint
prejudice
be-
January
the action.
1999 the federal
cause it was filed without consent and
court dismissed
FMLA
claim due to without leave of court and because Oleski
subject
jurisdiction
lack of
matter
and re-
failed to file a certified transcript of the
manded it to the court of common pleas.
pleadings from the federal action in accor-
5103(b)(2)
It retained
over the ADA claim dance with Section
of the Judi-
5103(b)(2).
Code,
supplemental
asserted
cial
42 Pa.C.S.
pursuant
over the PHRA claim
to 28 court denied Oleski’s motion for
leave
1367(a).
U.S.C.
filed an
complaint,
Oleski
amended
file an amended
and on Febru-
ary
the court of common
granted
Department’s
2002 it
(relating to limitation
summary judgment
Chapter
for
as to the
under
motion
time),
litigant
timely
who
com-
timely appealed
FMLA claim. Oleski
any
challenging only
sustaining pre-
proceeding
mences an action or
court’s
objections
States court
a district em-
liminary
as to the PHRA claim.2
United
for
this
bracing any part
Commonwealth
asserts that if the court of
required
protective
to commence a
is not
pleas’
entire dismissal of his
before a district
action
a court or
stand,
PHRA claim is
then
permitted
justice of this Commonwealth. Where
“pro
from the
will benefit
matter
United States
by
cedural minefield” that it created
re
any part
embracing
a district
for
court, then
moving the action to federal
this
and the matter is
Commonwealth
in that
moving for dismissal
court due
dismissed
the United States court
*4
seeking
lack of
and then
dis
in the
jurisdiction, any litigant
lack of
court
pleas.
missal
of common
He
may
matter filed
transfer the matter to
that the crux of this case is the
contends
magisterial
a court or
district of this
§
application of
Pa.C.S.
some
by complying
Commonwealth
with
the Pennsylvania
times known as
Transfer
provisions
para-
transfer
set forth in
He
that
the second
Statute.
maintains
(2).
graph
amended
required
was not
(2)
by
Except
prescribed
as otherwise
merely
attempted
was filed
as an
accom
rules,
by
general
or
order of the United
modation for the
based on
court,
may be ef-
States
such transfer
procedures followed in connection with the
by filing
transcript
fected
a
FMLA claim.
certified
judgment
United States
final
Section 5103 relates to transfer of erro-
pleadings
court and the related
a
matters,
(a)
neously filed
and subsection
magisterial
court or
district of this Com-
provides
general
appeal
rule that if an
pleadings
monwealth. The
shall have
or
brought
other matter is taken or
in a
practice
the same effect as under the
magisterial
or
district of the Com-
court,
but the trans-
United States
monwealth that does not have
justice may
feree court or district
re-
it,
over
magistrate
court or
shall not
to conform
quire
they
that
be amended
dismiss the matter but shall transfer the
practice
in this Commonwealth.
tribunal,
record to the proper
where it
5535(a)(2)(i) (relating to termi-
Section
if originally
shall be treated as
filed on the
matter)
ap-
prior
nation of
shall
be
(b)
it
date when was first filed. Subsection
a matter transferred under
plicable to
relates to federal cases:
added.)
(Emphasis
this subsection.
(1)
(a)
apply
Subsection
shall also
notes,
any
not com-
by
matter transferred or remanded
As Oleski
this case was
Rather,
it
any United States court for a district menced in federal court.
was
§
embracing any part of this Common-
removed there under 28 U.S.C.
generally.3
preserve
relating
wealth.
In order to
a claim
to actions removable
(a)
provides
sustaining
28 U.S.C. 1441
Court’s review of an order
3. Subsection
any
brought
preliminary objections
civil action
in a state court
is to determine wheth
that
origi-
courts have
er
committed an
of which the federal district
of common
jurisdiction may be
the defen-
law an
discretion. Mun
nal
removed
error of
abuse of
embracing
place
cy
Township
Ship
v.
dants to the district court
Creek
Committee
Citizens
(b)
man,
pending.
action is
Subsection
132 Pa.Cmwlth.
brought. provides Subsection when dominates.” transcript of only pleading origi- therefore the was the file in state court a certified of the federal court and complaint, already nal which was on file the final revive and pleas. pleadings with the court of common He notes related in order to in plaintiffs original that the return of a case to the claim preserve court, pre- the circumstances pleas following removal to the state under federal court is in this case the finds that different from the situation sented Court Specifi- where a case in does not originally requirement apply. federal this In cally, original complaint court. the latter case the in is al- pleadings where ready federal court would have to be filed of record state court and they remaining pleadings pertain only of common because would contrast, already be on its docket. than state court original claims other revived, origi- because Oleski’s sought plaintiff was filed to be nally and docketed in the court of common need do no more than to file a certified required he was not to file a certi- copy of the federal court order the state Therefore, transcript fied of the federal court plead- court to revive the action. ings viable, original when federal court dismissed his PHRA claim ski’s is still PHRA Department’s claim. The by entire and the merits must be decided position, upon pleas. rests the distinc- court of common tion between a remand dismissal alternative, In the Oleski’s cause a federal court of a removed cause of in September action was not time barred action.4 initially 2000. The federal court retained agrees
The Court Depart pursuant over the PHRA claim 1367(a), ment that 42 directly 5103 is not providing part to 28 U.S.C. applicable because the matter was not that in civil action which district originally original jurisdiction federal court. As courts have “the dis *6 argues, policy juris ex trict supplemental courts shall have pressed in that section apply should with diction over all that are so other claims even more force to a circumstance where related to claims the action within such the error part was on the of a original jurisdiction they part defendant that form of who removed the to controversy case federal court and the same under Article ease then challenged in that court. III of the United States Constitution.” The Court therefore concludes that as a After the district court dismissed law, claim, matter highly of Department argued unusual situa PHRA that tion where a defendant removes case to the of limitations on the PHRA statute federal court and then Department’s secures dismissal of claim had run. The brief aspect some preliminary objections the case based on lack of its support rep jurisdiction, policy period behind Section resented that is limitations 5103(b) apply. years should While subsection two from the date the Human Rela (b)(2) ordinarily requires plaintiff that a tions that his Commission notified Oleski 4. The Court notes that had the federal court lack of then subsection action for 1447, (c) disposed relating procedure § of the PHRA 28 claim under U.S.C. of 28 U.S.C. to 1441(c), removal, relating separate indepen- applied. and have Under after would action, subsection, any dent causes of it final would have had no if at time before choice under the that it Rule to remand. See n. a federal court determines case, Similarly, 2 above. over a if federal court had lacks removed agreed Department’s pursu- may court shall remand it and the state court motion 12(b) thereupon proceed ant to with the case. F.R.C.P. and dismissed the entire 126 closed,
complaint pursuant to legislative history was Section court.... The indi- 12(c)(2) Pennsylvania provision’s purpose Human Rela- cates that the is to Act, 27, 1955, tions Act prevent of October P.L. the loss of claims statute of 744, amended, 962(c)(2). might as limitations if state law fail to P.S. As- suming running peri- toll the of the limitation that the was closed be- filed, claim is original supplemental pend- fore the court od while a complaint was ing in two-year period federal court. would extend until no May later than al., (quoting Id. James Wm. Moore et ¶ (3d Moore’s Federal Practice recognize 106.05[5] fails to ed.1999)). 1367(d): effect of 28 U.S.C. period any of limitations for 1367(d) period of limi- Under Section (a),
asserted under subsection
and for
July
tations was tolled from the
any other claim in the action that
removal to federal district
until
voluntarily dismissed at the same time
plus thirty
October
1999 dismissal
as or after the dismissal of the claim days.5
tolling
This
of the statute of limita-
(a),
under subsection
shall be tolled
year
tions for
approximately one
four
pending
while the claim is
and for a months meant that the
complaint filed
period
days
of 30
after it is dismissed
September
if viewed
an
initial
provides
unless State law
a longer
event,
complaint,
timely.
was
tolling period.
ski filed
state court a certified
court dismissal order within 30
Co.,
The court in Parrish v.
&HBO
12, 1999,
days, on
which un-
November
(S.D.Ohio 1999),
F.Supp.2d
795-796
questionably
original
meant that his
state
1367(d)
explained Section
as follows:
effectively
revived.
recognized
Numerous authorities have
Accordingly, under either
circumstance
1367(d)
the purpose of
towas
court of
committed an error
plaintiffs
ensure that
did not lose their
Department’s
of law when it sustained the
right
pursue
their state law claims in
preliminary objections and dismissed Ole-
state court in the event that the federal
ski’s entire PHRA claim. The
or-
court’s
court failed
supplemental
to exercise
reversed,
der is
and this matter is remand-
jurisdiction over those claims. As stat-
ed
proceedings.
for further
ined Moore’s Federal Practice:
*7
(d)
Subsection
supplemental
of the
ORDER
salutary
statute
enacts
NOW,
tolling provision
2003,
supplemental
day April,
to save
AND
this 23nd
of
claims that have been dismissed in the order of the Court of Common Pleas of
reversed,
federal court for
in
Washington County
assertion
state
is
and this
deed,
Raygor Regents
readily
5.
v.
the Univ. Minneso
such circumstances are
distin-
of
of
ta,
534 U.S.
122 S.Ct.
152 L.Ed.2d
guishable
from
limited situations where
(2002),
Supreme
27
Court held that 28
suit,
this Court has found a State consented to
1367(d)
§
U.S.C.
does not toll the statute of
voluntarily
such as where a State
invoked
against
limitations for claims
a non-consent
jurisdiction....” Raygor,
federal court
534
ing
subsequent
state
filed in federal
hut
Here,
Depart-
at U.S.
S.Ct. 999.
ly
on
dismissed
Eleventh Amendment
non-consenting
ment was
when
re-
not
it
grounds.
agency
Where the state
raised an
court,
moved the case to federal
and this
Eleventh Amendment defense in its answers
principle does not shield it from the conse-
complaints
shortly
after
were
quences of its actions.
court,
Supreme
federal
Court stated: "In-
Appellant
that
It is inconceivable
PHRA.
proceed-
for further
matter is remanded
a second amendment
foregoing opinion.
with the
now be allowed
ings consistent
could
PHRA cause
to include a
complaint
his
to
relinquished.
Jurisdiction
the statute
expiration
of
of action after
BY
DISSENTING OPINION
Senior
of limitations.
Judge McCLOSKEY.
that,
majority,
concludes
I
respectfully
disagree
I
dissent as
1367(d),
§
statute of
under 28 U.S.C.
conclusion that
majority’s
William
the time
expired
at
limitations had
claim under the
(Appellant’s) original
ski’s
his PHRA
attempted to re-file
Appellant
Human Relations Act
Pennsylvania
court, in
county
September,
(PHRA)1
viable.
I further dis-
remains
raised an
party
neither
ever
Interestingly,
that
agree
majority’s
conclusion
of 28 U.S.C.
applicability
as to the
issue
only
needed to file a
Appellant
1367(d)
proceed-
these
any stage
at
of
with the Court of
federal
this issue is
ings.
importantly,
More
County
Washington
Pleas of
Common
fact that the constitu-
complicated by the
court)
origi-
to
his
(county
order
revive
1367(d)
has been
tionality of 28 U.S.C.
filed with that court. To the
nal claim
challenged in other states
successfully
contrary,
Appellant’s
I
that
failure
believe
Pennsyl-
constitutionality
applied
its
transcript
file a certified
promptly
very
arguable
at the
least an
vania law is
from the federal action
pleadings
Raygor Regents
v.
the Uni-
issue. See
5103(b)(2),
with 42
accordance
Pa.C.S.
Minnesota,
533, 122
versity
534 U.S.
county
at the
court.
bars further action
(2002);
v.
reinstated. trans- Once the 5103(b)(2) transfer to effecting proper court, any ferred to federal number of statute of limitations county court and the at fed- changes place could have taken sought Appellant time expired had why, proper eral level. That is to effect a amended add- to file his second court, county plead- transfer back to claim, I affirm the the PHRA would ing to be certi- ings át the level need objections preliminary grant Appellee’s fied. by the trial court. law, statutory in the nothing
There is law, “reac- provide
the case that would *8 county of a first filed
tivation” had been transferred to federal
court that Additionally, original complaint
court. once already been amended
had complaint did This amended
Appellant. action under the contain a cause of amended, 27, 1955, 43 P.S. 951-963. P.L.
1. Act Oct.