Ziccardi v. Com., Dept. of General Services, Bureau of Bldgs. and Grounds

• Decision Date: 06 August 1987
• Citation: 527 A.2d 183,109 Pa.Cmwlth. 628
• Court: Pennsylvania Commonwealth Court
• Parties: Linda ZICCARDI, Plaintiff, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF GENERAL SERVICES, BUREAU OF BUILDINGS AND GROUNDS et al., Defendants. 2701 C.D. 1978

Page 183

527 A.2d 183

109 Pa.Cmwlth. 628

Linda ZICCARDI, Plaintiff, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF GENERAL SERVICES, BUREAU OF BUILDINGS AND GROUNDS et al Defendants.

2701 C.D. 1978

Commonwealth Court of Pennsylvania.

Submitted on Briefs Feb. 23, 1987.

Decided June 8, 1987.

Reargument Granted Aug. 6, 1987.

Andrew F. Erba, Marjorie A. Janoski, Community Legal Services, Inc., Philadelphia, Pa., Louis S. Rulli, for plaintiff.

Robert Schwartz, Asst. Counsel, Office of Admin., Nathan C. Pringle, Jr., Harrisburg, for respondents.

Bruce M. Ludwig, Stephen A. Sheller & Assoc., Philadelphia, for Joint Bargaining Committee.

Stephen H. Jordan, Louis B. Kushner, Rothman Gordon Foreman and Groudine, Pittsburgh, for Pennsylvania Federation of Teachers.

Robert J. Schwartz, Office of Admin., Harrisburg, for Com. of Pa.

Alaine S. Williams, Philadelphia, for AFSCME.

Robert J. Schwartz, John Raup, Lee Strickler, Harrisburg, for Dept. of General Services and Ronald E. Lench.

Before CRAIG and DOYLE, JJ., and KALISH, Senior Judge.

CRAIG, Judge.

On November 18, 1986, the Pennsylvania Supreme Court granted Linda Ziccardi's petition for the exercise of plenary jurisdiction and remanded this case to the Commonwealth Court for disposition of the Commonwealth's motion for judgment on the pleadings.

According to the pleadings, the Department of General Services of the Commonwealth of Pennsylvania employed Linda Ziccardi as a Clerk-Typist I until November 23, 1972. Ms. Ziccardi alleges that her supervisor, on more than one occasion, urged her to purchase a ticket to a "One Hundred Dollar Dinner" fundraiser sponsored by the Democratic Campaign Committee of Philadelphia. After she refused to purchase a ticket, the department terminated her employment, purportedly for "unsatisfactory work habits."

Ms. Ziccardi contacted her union representative and commenced grievance proceedings in accordance with the collective bargaining agreement then in effect. After exhausting the grievance procedures, the union and the Commonwealth proceeded to arbitrate Ms. Ziccardi's claim of wrongful termination. After an arbitrator determined that Ms. Ziccardi had been a permanent employee entitled to the protections of the collective bargaining agreement at the time of her dismissal, the union withdrew its request for arbitration, allegedly without securing Ms. Ziccardi's consent or giving her written notice.

On November 16, 1978, Ms. Ziccardi filed an original jurisdiction complaint in this court against the Commonwealth, the Secretary of General Services and her union. That complaint, as amended on February 26, 1979, contained seven counts as follows: Count 1--Action in assumpsit for breach of a collective bargaining agreement against the Commonwealth and the secretary; Count 2--Action in trespass for violation of federal and state constitutional rights against the Commonwealth and the secretary; Count 3--Action in trespass for violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, against the Commonwealth and the secretary; Count 4--Action in trespass for wrongful discharge against the Commonwealth and the secretary; Count 5--Action in equity for violation of 42 U.S.C. § 1983 against the Commonwealth and the secretary; Count 6--Action in trespass for breach of duty of fair representation against the union; and Count 7--Action in trespass for discrimination against the union. In her counts against the Commonwealth and the secretary, Ms. Ziccardi demanded back pay, punitive damages and reinstatement. In her counts against the union, Ms. Ziccardi sought compensatory and punitive damages.

From that point, this case has had a lengthy procedural history. This court originally dismissed Ms. Ziccardi's complaint on the grounds that she had failed to exhaust administrative remedies (as against the Commonwealth) and that this court lacked jurisdiction (as against the union). We held that the Pennsylvania Labor Relations Board (PLRB) was the proper forum to compel the Commonwealth to arbitrate Ms. Ziccardi's claim of wrongful termination and that the PLRB had original jurisdiction over her claims against the union as an unfair labor practice under the Public Employment Relations Act (PERA). ¹ Ziccardi v. Pennsylvania Department of General Services, 50 Pa.Commonwealth Ct. 367, 413 A.2d 9 (1980).

The Pennsylvania Supreme Court reversed this court's ruling in part in Ziccardi v. Pennsylvania Department of General Services, 500 Pa. 326, 456 A.2d 979 (1982), and remanded the case for further proceedings. Specifically, that court held that Ms. Ziccardi was not entitled to bring an action in equity and assumpsit against her employer for breach of the collective bargaining agreement (thus affirming the dismissal of counts 1 and 5) but that PERA did not bar counts 6 and 7 against the union; consequently, this court could not dismiss those counts for lack of jurisdiction. The Supreme Court also remanded this case for further consideration of the federal and constitutional issues in counts 2, 3 and 4 against the Commonwealth and the secretary.

In January, 1984, this court denied the union's motion for judgment on the pleadings and overruled the Commonwealth's preliminary objections in an unreported opinion.

In September, 1984, Senior Judge Kalish denied the Commonwealth's motion for judgment on the pleadings and ruled that the statute of limitations did not preclude Ms. Ziccardi's cause of action. In November, 1984, this court granted reargument as to the Commonwealth's motion for judgment on the pleadings. On April 8, 1985, before the motion was reargued, the Commonwealth Court sua sponte transferred this case to the Court of Common Pleas of Dauphin County in light of the Supreme Court's ruling in Balshy v. Rank, 507 Pa. 384, 490 A.2d 415 (1985). ²

In June, 1985, the Supreme Court, as noted above, granted Ms. Ziccardi's petition for the exercise of extraordinary jurisdiction and remanded the case to this court. Accordingly, we now reconsider the Commonwealth's motion for judgment on the pleadings.

In review, we note that the Supreme Court's remand of this case, as it relates to the Commonwealth and the secretary, is for the consideration only of counts 2, 3, and 4 of Ms. Ziccardi's amended complaint. The Commonwealth's motion states four reasons why Ms. Ziccardi's complaint should be dismissed: (1) the statute of limitations precludes Ms. Ziccardi's cause of action because her complaint was not timely filed; (2) her "appeal" should be "quashed" for failure to petition for review within thirty days of the department's final order with regard to Ms. Ziccardi's discharge; (3) sovereign immunity; and (4) official immunity. ³

A. STATUTE OF LIMITATIONS

The United States Supreme Court ruled, in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), that the state limitation period for a personal injury action controls causes of action brought under section 1983. The Commonwealth contends that Wilson requires the dismissal of Ms. Ziccardi's cause of action under Pennsylvania's two-year statute of limitation for personal injury actions. ⁴ Ms. Ziccardi, however, argues that Wilson should not be applied retroactively to bar her complaint, which was filed at a time when she reasonably believed that the six-year statute of limitations applied. ⁵

The Supreme Court has announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the criteria by which to judge whether its decisions are to be applied retroactively:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that 'we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Finally, we have weighed the inequity imposed by retroactive application, for '[where] a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for voiding the "injustice" by a holding of nonretroactivity.'

404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). Accordingly, we must evaluate Ms. Ziccardi's claim in light of these factors.

1. The Change from Previous Law

We first examine the treatment of section 1983 claims under Pennsylvania's statutes of limitations scheme during the six years after Ms. Ziccardi's cause of action arose. Initially, federal courts split on the question of whether the two-year statute of limitations for personal injury actions or the six-year general statute of limitations applied to employment discrimination cases. ⁶ However, in 1977, the Third Circuit Court of Appeals announced that the two-year statute of limitations should apply only to those actions seeking damages for bodily injuries and that the six-year statute of limitations applied to a section 1982 housing discrimination claim. Meyers v. Pennypack Woods Home Ownership Association, 559 F.2d 894 (3rd Cir.1977).

Subsequently, the court of appeals relied on the Meyers decision to uphold the six-year statute of limitations in a section 1983 case in which the plaintiff alleged that he had been wrongfully dismissed from his employment in violation of his First Amendment rights. Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470 (3rd Cir.1978). Although the Third Circuit Court of Appeals decided Skehan, which is analogous to Ms. Ziccardi's case, just after the six-year statute of limitation would have expired on her cause of action, Meyers was a sufficiently clear pronouncement by the Third Circuit to alert the parties that Ms. Ziccardi's cause of action could be subject to a six-year, and not the two-year, ...