Summary
In Mansfield State College v. Kovich, 46 Pa. Commw. 399, 407 A.2d 1387 (1979), this court held that Act 152, the 1978 statute which was enacted in response to our supreme court's reaffirmance of sovereign immunity in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978), did not preclude an action under the PHRA.
Summary of this case from City of Philadelphia v. Pennsylvania Human Relations CommissionOpinion
Argued June 8, 1979
October 11, 1979.
Sovereign immunity — Employment discrimination — Sex discrimination — Pennsylvania Human Relations Act, Act 1955, October 22, P.L. 744 — Judicial Code, 42 Pa. C.S. § 5110 — Statutory cause of action — Jurisdiction of the court of common pleas.
1. The doctrine of sovereign immunity reestablished by amendments to the Judicial Code, 42 Pa. C.S. § 5110, does not bar an action brought by a Commonwealth employe against the Commonwealth, as her employer not as the sovereign, under the Pennsylvania Human Relations Act, Act 1955, October 22, P.L. 744, for alleged sex discrimination, as such action asserts a cause of action created by a statute wherein the legislature gave to an aggrieved public employe the right to bring such an action. [401]
2. The Pennsylvania Human Relations Act, Act 1955, October 22, P.L. 744, permits an aggrieved employe of a state college to institute an action in a court of common pleas when the Pennsylvania Human Relations Commission is unable to resolve the case of alleged sex discrimination by the employer within one year of its filing. [402]
Argued June 8, 1979, before Judges BLATT, DiSALLE and CRAIG, sitting as a panel of three.
Appeal, No. 2244 C.D. 1978, from the Order of the Court of Common Pleas of Tioga County in case of Ruth H. Kovich v. Mansfield State College, Lawrence Park, Donald Darnton, Thomas Phinney, John Rigas, Ila Wiley, H. B. Strickland, Eugene Kelly, Monroe Blake, E. B. Watkins, F. Duane Van Noy and John Heim, No. 1480 Civil Division, 1977.
Complaint in the Court of Common Pleas of Tioga County seeking to enjoin discriminatory practices, to compel rehiring and for back pay and attorney fees. Defendants filed preliminary objections. Preliminary objections overruled. KEMP, P.J. Defendants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Joseph L. McCann, Deputy Attorney General, with him C. Glendon Frank, Assistant Attorney General, and Patricia A. Donovan, Deputy Attorney General, for appellants.
Ambrose R. Campana, with him Campana Campana, for appellee.
The appellee, Ruth H. Kovich, filed a complaint with the Pennsylvania Human Relations Commission (Commission), in which she alleged sex discrimination in employment against Mansfield State College (College) and against its president, its past president and its Board of Trustees (individual defendants). When the Commission was unable to resolve the case within one year of the filing date, it informed the appellee of her right to institute an action in the appropriate court of common pleas, pursuant to Section 12(c) of the Pennsylvania Human Relations Act (Human Relations Act). She then filed a complaint in the Court of Common Pleas in Tioga County. To this complaint the College and the individual defendants filed preliminary objections challenging the jurisdiction of that court, and, when these objections were overruled, the College and the individual defendants appealed here.
Act of October 27, 1955, P.L. 744, as amended, added by Section 6 of the Act of December 19, 1974, PL. 966, 43 P. S. § 962 (c).
The College and the individual defendants argue that Section 5110 of the Judicial Code, 42 Pa. C.S. § 5110 (Act 152) bars the present action. This statute was enacted in response to the Supreme Court's decision in Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978) which abrogated sovereign immunity in the Commonwealth, and it specifically reaffirms and preserves the immunity of the state from suit except in eight delineated categories. We believe, however, that neither the decision in Mayle, supra, nor the subsequent enactment of Act 152 has any effect on the appellee's cause of action here under the Human Relations Act.
The Human Relations Act affords the appellee a private right of enforcement against her employer for alleged discriminatory practices. She is a public employee, of course, but the legislature obviously meant to allow an aggrieved public employee to bring an action against his or her employer, the Commonwealth, for it included the Commonwealth under the term "employer" in Section 2 of the Act, 43 P. S. § 954. The appellee's claim therefore is not one sounding in trespass and thereby affected by Act 152, the recent enactment as to sovereign immunity, but rather it is a statutorily created cause of action against the Commonwealth as an "employer," not the Commonwealth as a sovereign entity.
It should be noted also that Section 4 of Act 152, which addresses the subject of repeals effected by the reinstatement of sovereign immunity, refers only to Section 5.2 of the Human Relations Act. Section 12 of the Human Relations Act, under which the appellee is here proceeding is not mentioned. We must therefore conclude that Section 12 has not been repealed by the enactment of Act 152.
As to the College's argument that the court of common pleas lacks jurisdiction over it because the Commonwealth Court has exclusive jurisdiction over actions brought against the Commonwealth or its agencies, 42 Pa. C.S. § 761, we note that the Human Relations Act is clearly applicable to the College and specifically permits a complainant to bring an action in the court of common pleas.
The order of the court of common pleas will be affirmed.
ORDER
AND NOW, this 11th day of October, 1979, the order of the Court of Common Pleas of Tioga County overruling the preliminary objections of Mansfield State College et al. is hereby affirmed.