author: HERMAN, District Judge.

text:
    Edward B. PORTNOY, Plaintiff, v. Daniel W. PENNICK, Ralph O. Barnett, Mario Mele, John T. Hale, and Robert J. Israel, Defendants.
    Civ. A. No. 84-0573.
    United States District Court, M.D. Pennsylvania.
    Oct. 17, 1984.

      Edward S. Finkelstein, Harrisburg, Pa., for plaintiff.
    John G. Knorr, Daniel R. Schuckers, Deputy Attys. Gen., Harrisburg, Pa., for Pennick, Barnett, Mele, Israel.
    Bruce H. Bikin, Asst. Counsel, Liquor Control Bd., Harrisburg, Pa., for John T. Hale only.
   MEMORANDUM

HERMAN, District Judge.

I. BACKGROUND

On April 24, 1984, Plaintiff initiated this action by filing a complaint. The Defendants, on May 25, 1984, filed a motion to dismiss. The motion has been fully briefed and is now ripe for our consideration.

The Plaintiff is a former investigator for the Pennsylvania Liquor Control Board (“LCB”). He was an Assistant Supervisor of Investigations in the LCB’s Philadelphia District. On May 11, 1983, he was called to testify before the Pennsylvania Senate Law and Justice Committee, which was investigating possible misconduct by LCB employees. On advice of counsel, Plaintiff asserted his Fifth Amendment privilege against self-incrimination and declined to answer any questions relating to his official duties.

On May 26, 1983, Plaintiff was suspended from his duties by the LCB. He then fully cooperated with an internal LCB investigation concerning his conduct. That investigation disclosed no misconduct by the Plaintiff. Consequently, Plaintiff was later reinstated by the LCB.

In December of 1983, Plaintiff was notified that he was being transferred to the Allentown District, effective January 19, 1984. Then, in January, 1984, Plaintiff was transferred to the Punxsutawney District. Plaintiff alleges that these transfers were ordered in retaliation for Plaintiffs exercising his constitutionally-protected right against self-incrimination. Plaintiff, rather than accepting the transfers, resigned, effective February 24, 1984. He filed a complaint, with this court, in April of 1984, seeking compensatory and punitive damages, injunctive relief, costs, and attorney’s fees. The Defendants’ motion to dismiss was filed in May, 1984, and raised numerous grounds justifying dismissal of this action.

On a motion to dismiss, we must accept all of the allegations of a complaint as being true, and must construe the complaint liberally in the light most favorable to Plaintiff. Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921 n. 3, 64 L.Ed.2d 572 (1980); Robb v. City of Philadelphia, No. 83-1578, slip op., at 7 (3d Cir. May 7, 1984); Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir.1977).

II. DISCUSSION

A. Plaintiffs Right To Remain Silent

The threshhold issue to be addressed here is: did the Defendants violate the Plaintiff’s constitutional rights by disciplining him for exercising his Fifth Amendment right against self-incrimination? Since we are considering a motion to dismiss, we will presume Plaintiffs assertions to be true and accurate. Therefore we will presume that Plaintiff can prove that the Defendants did indeed transfer him in retaliation for Plaintiff’s asserting his Fifth Amendment rights. We will further presume that the transfer can be shown to be disciplinary in nature.

Initially, we recognize that the issue presented is neither novel nor unaddressed by the United States Supreme Court. The Supreme Court, on several occasions, has had opportunities to review, and rule on, cases with substantially the same facts and issues as are presented here. See Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Assoc., Inc. v. Comm’r of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).

The parties apparently agree that these Supreme Court cases are relevant to the case at hand. The parties disagree, however, on the impact of the decisions on this case. Plaintiff believes that they show that he cannot be disciplined for the exercise of his Fifth Amendment rights, while Defendants argue that the cases allow an employee to be disciplined. We believe that Defendants are correct in this respect, but that the Supreme Court has established safeguards to protect individuals’ exercise of their constitutional rights.

Under the analysis developed by the Supreme Court in the relevant decisions, an employee may properly be discharged or disciplined for refusal to answer pertinent questions concerning his official conduct. Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). However, such discharge is not allowed when the employee is forced to decide between his job and his right to refuse to answer questions which could subject him to legal sanctions. Garrity v. New Jersey, 385 U.S. 493, 495, 87 S.Ct. 616, 617, 17 L.Ed.2d 562 (1967). The state could not act as both employer and as prosecutor. National Acceptance Co. Of America v. Bathalter, 705 F.2d 924, 928 (7th Cir.1983). Instead, the state/employer must “immunize” the employee; i.e., not make the answers available for subsequent state criminal prosecution. Only then could the employer require the employee to disclose information, or subject the employee to disciplinary action for refusal to answer. Id. Therefore, Plaintiff here could only be disciplined or discharged by his employer, the LCB, if, prior to questioning, Plaintiff was assured that any answers given by him to the senate committee would be used solely in determining his status within the LCB, and that such responses would not be used against him in a criminal proceeding. Any alternative approach would have forced the Plaintiff to choose between his job and a right guaranteed him by the Constitution.

Additionally, we recognize that Plaintiff, as an enforcement officer, is entitled to no less protection under the Constitution, than other citizens. “[P]olicemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967). Therefore, even though the community, and commonwealth, may have an interest in maintaining an image of integrity and excellence in its enforcement organizations, such an image may not be maintained through the degradation of an individual’s constitutional rights.

Here, Plaintiff was subpoenaed to testify before a government body investigating wrongdoing within the LCB. No evidence has been offered by Defendants that this investigating body, or the LCB, offered any guarantees to Plaintiff that his responses would not be used against him in any potential criminal proceedings against him. Indeed, the purpose of the investigation appears likely to have been to investigate the possibility of criminal charges against LCB employees. The transcript of the hearing indicates that, at that time, an investigation into allegations of wrongdoing by Plaintiff and others was already being conducted by the state Attorney General’s office. Tr. of Law and Justice Committee Public Hearing of May 11, 1983, at 52. Any testimony offered at the hearing would most likely have been forwarded to the Attorney General. Senator Greenleaf even requested that the LCB forward any information obtained through the LCB’s internal investigation to the Attorney General’s office.

These factors, combined with the fact that the hearing was conducted publicly, clearly indicate that any statements given by Plaintiff could have been used against him in a subsequent criminal proceeding. Absent any indication of assurances of immunity being offered, we believe that his exercise of his right to remain silent was proper and that any punishment for such exercise was prohibited. His claim that he was so disciplined cannot, therefore, be dismissed for failure to state a claim upon which relief can be granted.

B. Immunity of Defendants

The Defendants assert a qualified, or “good faith” immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). That case established that a Plaintiff, to overcome an assertion of immunity, must set forth more than “bare allegations of malice.” Id., at 817, 102 S.Ct. at 2738. Additionally, the Supreme Court pointed out that the qualified immunity granted officials who perform discretionary functions can be avoided only if the officials act contrary to clearly established statutory or constitutional law of which a reasonable person would have known. Id., at 818, 102 S.Ct. at 2738.

The Plaintiff has responded to Defendants’ arguments by, initially, pointing out that qualified immunity is an affirmative defense which must be raised by the Defendants and need not be overcome by allegations in the complaint. We agree and will consider the merits of Defendants’ arguments in light of Plaintiff’s opposition brief.

The Plaintiff argues that 1) the law is quite clear with respect to Plaintiff’s right to exercise his Fifth Amendment right against self-incrimination when he reasonably believes that the testimony may be used against him in a subsequent criminal proceeding; and 2) the Defendants were informed by their counsel of the law prior to suspending Plaintiff. We must agree with Plaintiff that the law with respect to disciplining an employee has a long history, and is not a novel issue. Even though the law is constantly being refined and adjusted, the basic principle has remained intact: that an employer may not penalize a non-immunized refusal to answer potentially incriminating questions.

With respect to the Defendants’ knowledge of the law, we believe that the affidavit submitted by John Reiley (Exhibit “A” to Plaintiffs Brief in Opposition to Defendants’ Motion to Dismiss) raises a sufficient question regarding the knowledge of the Defendants for the Plaintiff to survive a motion to dismiss. The affidavit clearly indicates, that counsel to the LCB warned Defendants prior to their disciplining of Plaintiff that Plaintiff could not be disciplined for exercising his Fifth Amendment rights. The conveyance of this accurate statement of the law to the Defendants removed any doubt regarding their ignorance of the law. They cannot now plead confusion. Defendants’ motion to dismiss on this ground will be denied.

C. Count II Property Interest

Defendants assert that Plaintiff's Count II, alleging conduct which “clearly adversely affected Plaintiff’s property right in his employment,” Plaintiffs Brief in Opposition to Motion to Dismiss, at 18, should be dismissed. They argue first that no action taken by Defendants adversely affected Plaintiff’s property right. In particular, Defendants allege that Plaintiff had no property interest in employment as an assistant supervisor for the LCB. Reply Brief, at 1. Plaintiff responds by arguing that 1) his suspension and 2) his transfer to Punxsutawney, were each deprivations of his property rights.

Property interests arise out of state, and not federal, law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Therefore, any interest Plaintiff may have with respect to continued employment with the LCB must be found in Pennsylvania law. Under Pennsylvania statutory law, an employee of the LCB may be removed or suspended only for “just cause.” 71 P.S. §§ 741.803 and 741.807. A “just cause” statute has been interpreted by federal courts sitting in Pennsylvania, and elsewhere, to “imply a right not to suffer from governmental action without due process guarantees.” Bagby v. Beal, 439 F.Supp. 1257, 1260 (M.D.Pa.1977). See also Thurston v. Dekle, 531 F.2d 1264 (5th Cir.1976); Riddick v. Cuyler, 523 F.Supp. 258 (E.D. Pa.1981). We, therefore, agree with Plaintiff that he had a right not to be suspended or removed, except for “just cause.”

Additionally, 71 P.S. § 741.803 provides that any disciplinary suspension “shall not exceed in the aggregate thirty working days in one calendar year,” and that a copy of a report as to the reason(s) for suspension shall be given to the suspended employee. 71 P.S. § 741.803. These provisions clearly and unequivocally grant an employee additional rights.

Defendants’ argument that they are entitled to qualified immunity because the recent Pennsylvania Supreme Court decision in Sterling v. Commonwealth, 504 Pa. 7, 470 A.2d 101 (1983), creates an ambiguity as to the property rights created by Pennsylvania, is without merit. In that decision, the Supreme Court observed that no per se property interest in public employment exists, but that the legislature must define such rights. Here, the legislature has unambiguously spoken through statutes and has affirmatively set forth certain rights possessed by Pennsylvania government employees. The clarity of the sections at issue are not in dispute and we do not believe that the Defendants could have, based upon the Sterling decision, questioned the sections’ applicability. They are not, therefore, entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396.

Our determination that the Plaintiff possessed certain property interests under Pennsylvania law does not completely resolve the issue. The Defendants have also argued that, even if Plaintiff did possess property rights, none were improperly taken through the Defendants’ conduct. To resolve this issue, we must examine each of the incidents in which Plaintiff has alleged that his property interests were infringed upon by Defendants.

1. Suspension

Plaintiff’s suspension lasted approximately two months. At its end, Plaintiff was reinstated with full back pay. Defendants argue that this payment of wages remedied any deprivation caused by the suspension. We cannot agree. An initial issue raised by Defendant is whether the suspension was for good cause. If it was, and a suspension during the pendency of an investigation is allowed if good cause exists to justify an investigation, Jacobs v. Dept. of Public Welfare, 32 Pa.Commw.Ct. 101, 104, 377 A.2d 1289, 1291 (1977), then § 741.803 is applicable. If the suspension was not for good cause, but occurred for the purpose of disciplining Plaintiff for exercising his Fifth Amendment rights, then a constitutional violation has occurred.

Even if the suspension was for good cause, however, Plaintiff’s claim for violations of due process may survive. Plaintiff states that he was never notified of the reason for his suspension. This is in clear violation of the procedural requirement of § 741.803. Additionally, Plaintiff was suspended for more than thirty consecutive days in one year, again in clear violation of § 741.803. We believe that the thirty-day limitation provided Plaintiff with the legitimate expectation that he would not be suspended for a longer length of time. Such an expectation was intruded upon by Defendants apparently without due process of any type. The lack of notice clearly violates any contemporary standards with respect to due process requirements.

These violations of state law, if proven, amount to a taking of a property interest without due process of law. The subsequent payment of back wages cannot negate what had already occurred. The violation had already taken place and an appropriate remedy may or may not be limited to back wages. Regardless, we do not believe Plaintiff’s claim under Count II, for his suspension, should be dismissed.

2. Transfer

The Plaintiff’s second claim with respect to a property deprivation without due process of law concerns Plaintiff’s transfer away from the Philadelphia District. The Defendants argue that this claim should be dismissed since Plaintiff possessed no property interest in remaining in the Philadelphia District.

On this issue, we must agree with Defendants. Plaintiff has alleged no property interest in remaining with the Philadelphia District. As stated above, a property interest must be created by the state, and not by the federal courts. Here, Plaintiff has offered no evidence that he had a right to work solely in the Philadelphia District. Absent such a right, no deprivation could have occurred when Plaintiff was transferred, at the same pay level, to Allentown, and then to Punxsutawney. Consequently, no due process was required prior to the .transfer. This claim must be dismissed.

D. Count III Liberty Interest

Plaintiff has also alleged a deprivation of a liberty interest under the Fourteenth Amendment. He states that the Defendants improperly inflicted a stigma upon him and impugned his honesty, integrity, and competence. Paragraph 22 of Plaintiffs Complaint. He further alleges that this stigma, combined with his being disciplined, served to deprive him of a protected liberty interest. Plaintiff also argues that as a consequence of the Defendants’ conduct, Plaintiff is unable to obtain comparable employment.

On this issue, we cannot agree with the Plaintiff. Although Plaintiff may have been disciplined through suspension, his reinstatement with full back pay served to restore any possible “change in legal status.” This reinstatement provided Plaintiff with a full remedy for any possible deprivation alleged under this count. As such, we find that no protected liberty interest of Plaintiff resulted from his suspension.

Additionally, the transfer of Plaintiff to Punxsutawney, even if it were disciplinary in nature, does not constitute a change in legal status. Hughes v. Whitmer, 714 F.2d 1407, 1414 (8th Cir.1983). We have stated above that Plaintiff enjoyed no protected right to employment in the Philadelphia District or in any neighboring District. Absent such a right, a transfer without pay or rank reduction, does not constitute a change in legal status, or a loss of government employment. Absent such harm, Plaintiff cannot recover under this claim. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).

We, therefore, find that Plaintiff cannot recover under his claim for violation of a liberty interest without due process of law. This claim is clearly inappropriate to Plaintiff’s cause of action. The Defendants motion to dismiss this claim will be granted.

E. Count IV: Plaintiffs Pendent Defamation Claim

In Count IV of his Complaint, Plaintiff alleges that the Defendants defamed him by releasing false and defamatory information about Plaintiff. The Defendants now argue that this claim is brought under state law, and that it is actually directed against the Commonwealth. If so, the claim must be dismissed pursuant to the recent Supreme Court decision in Pennhurst State School And Hospital v. Halderman, — U.S. -, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984).

In Pennhurst, the Supreme Court ruled that a Plaintiff could not sue a state in federal court to enforce a state law. While that particular case involved injunctive relief, it is clear that a Plaintiff cannot obtain damages against a state in federal court, under either a federal or state claim. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1971). Additionally, the Eleventh Amendment further bars any actions in federal court directly against a state for injunctive relief. Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982).

Historically, however, Plaintiffs have been able to obtain injunctive relief against states by suing under a fiction first recognized in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Such actions are brought against a state official to enforce a federal constitutional law. Edelman, 415 U.S. at 664, 94 S.Ct. at 1356. Even then, however, when the relief sought indicates that “the state is the real, substantial party in interest,” Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945), then the Eleventh Amendment bars even that action. Pennhurst, 104 S.Ct. at 908; Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1053, 10 L.Ed.2d 191 (1963) (per curiam); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Pennhurst has clarified this approach by concluding that “a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when — as here — the relief sought and ordered has an impact directly on the State itself.” Id., 104 S.Ct. at 917.

Here, Defendants argue that Pennhurst is specifically applicable to this case since the Plaintiff, in his Complaint, has alleged that the Defendants acted within their official capacity. Any relief would have to come from the state. Plaintiff disagrees and argues that he is suing the Defendants only in their individual capacity. Hence, the state is not involved. On this point, we agree with Plaintiff. His Complaint, while ambiguous, can be interpreted to allege claims against the Defendants in both their individual and official capacities. As such, we further believe that a defamation claim against the Defendants in their official capacity would be equivalent to a suit against the state under state law. That claim must, pursuant to Pennhurst, be dismissed. On the other hand, allegations that the Defendants acted in their individual capacities does not involve the state. That claim seeks no damages or injunctive relief from the state. It is merely a pendent defamation claim against three individuals who happen to be employed by the state. We will allow Plaintiff to proceed on this claim against the Defendants only to the degree it alleges conduct committed in their individual capacities.

F. Eleventh Amendment Immunity of Defendants

As stated-above, individuals may not be sued for damages in federal court when the real party in interest is the state. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Similarly, “an award of retroactive monetary damages or back pay against the officials in their official capacity is barred because it necessarily would be paid from the state treasury.” Helfrich v. Commonwealth of Pennsylvania, 660 F.2d 88, 90 (3d Cir.1981) (emphasis in original text). See also Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Skehan v. Board of Trustees, 590 F.2d 470, 485-91 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979); West v. Keve, 571 F.2d 158 (3d Cir.1978). Consequently, any claim presented here for monetary relief against the Defendants in their official capacity must and will be dismissed.

The Plaintiff, however, argues that his claims are against the Defendants in their individual capacities. The distinction between individual and official capacities is often ambiguous or blurred. In Pennhurst, the Supreme Court offered a lengthy discussion of different approaches to the difficulty of distinguishing the two concepts. What has apparently emerged is the view that an individual state official may be sued for damages if the relief would not be paid from the state treasury; if the official acted beyond the sphere of his official responsibilities, if the official violated federal law; and, if he did not act in good faith.

Here, the Plaintiff alleges that the Defendants acted improperly in suspending and then transferring Plaintiff. While this appears to the court to be acts which occurred within thé official duties of the Defendants, we can perceive of evidence and testimony being admitted to show that the Defendants acted in bad faith and beyond their authority.

In particular, the Defendants’ knowledge of the law, as set forth in case and statutory form, is relevant. Pennhurst made clear the view that an individual is not personally liable for a wrong decision, if the official was empowered to make the decision. Pennhurst, 104 S.Ct. at 918, n. 22. However, when that official is clearly aware that his decision is wrong, but proceeds to so decide, he cannot then hide behind his official status. While it is incorrect to assert that “an officer given the power to make decisions is only given the power to make correct decisions,” Larson v. Domestic And Foreign Commerce Corp., 337 U.S. 682, 695, 69 S.Ct. 1457, 1464, 93 L.Ed. 1628 (1949), it is also incorrect to assert that an official with the power to decide is free to consciously disregard the correct decision. Plaintiff is, here, free to submit evidence that Defendants were informed of the law prior to their decision-making, and that they then proceeded to ignore the law. If Plaintiff does indeed prove such facts, he will have shown that the Defendants acted ultra vires and in their individual, as opposed to official capacities. Dismissal of such a claim is not appropriate at this time.

G. Pennsylvania’s Statute of Limitations

The Defendants have raised the defense of the applicable statute of limitations. They argue that Pennsylvania’s law providing a six-month statute of limitations for actions against public officials is applicable under 42 Pa.C.S. § 5522(b). However, the recent Third Circuit decisions in Fitzgerald v. Larson, 741 F.2d 32 (3d Cir. 1984), and Knoll v. Springfield Township School District, 699 F.2d 137 (3d Cir.1983) make it clear that the applicable statute of limitations here is Pennsylvania’s omnibus six-year statute for actions brought against public officials under 42 U.S.C. § 1983. 42 Pa.C.S. § 5527. Since Plaintiff filed his action well within this statute, we will not dismiss on this ground.

III. CONCLUSIONS

To summarize, we believe that Plaintiff should be allowed to proceed and attempt to prove most of his allegations. He may seek damages against the Defendants for conduct occurring within their individual capacities. He may further seek injunctive relief for conduct committed by the Defendants in their official capacities. However, all claims for damages caused by conduct within the Defendants’ official capacities will be dismissed, as will Plaintiffs Count III, asserting a liberty interest deprivation. Additionally, Plaintiff’s claim under Count II for a property interest deprivation by his transfer must be dismissed since he possessed no property interest in any particular district. The remainder of Defendants’ motion to dismiss will, however, be denied.

An appropriate order will be entered.

      . Senator Greenleaf stated to an LCB official: "It would seem to me that it would be incumbent upon you to conduct your own internal investigation. Fine. I think you should forward the information to the Attorney General's office whenever there’s suspected criminal activity.” Tr., at 53.

      . “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

      . The back pay, while serving as a mitigating factor in an award of damages, does not close the issue. Plaintiff would be free to argue for additional applicable compensatory and/or punitive damages.

      . A common practice not to transfer employees further than one district from prior employment is insufficient to establish a definite property right in not being transferred.

      . This determination, however, does not relate to Count I, in which Plaintiff alleges that the transfer was in retaliation for his exercise of his constitutional right. That count, in itself, is not being specifically challenged by Defendants.

      . In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) the court states that "Ex Parte Young teaches that when a state officer acts under a state law in a manner violative of the Federal Constitution, he
      ‘comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.’ "

        Scheuer, at 237, 94 S.Ct. at 1687, quoting Ex Parte Young, 209 U.S. 123, 159-160, 28 S.Ct. 441, 453-454, 52 L.Ed. 714 (1908).


source: Caselaw Access Project

author: WEBER, District Judge.

license: Public Domain

text:
    Carolyn PLACE and Edward Place, Plaintiffs, v. ORTHO PHARMACEUTICAL CORPORATION, Defendant.
    Civ. A. No. 83-227 ERIE.
    United States District Court, W.D. Pennsylvania.
    Oct. 17, 1984.

      Andrew J. Conner, Erie, Pa., for plaintiff.
    Robert C. Tucker, Cleveland, Ohio, James D. McDonald, Jr., Erie, Pa., for defendant.
   OPINION

WEBER, District Judge.

This is a diversity product liability case arising out of plaintiff’s exposure to an intra-uterine device (IUD) known as Lippes Loop, manufactured and sold by defendant Ortho Pharmaceutical Corporation. Suit was commenced on June 15, 1982 by a writ of summons in the state court. A complaint was filed on July 21, 1983, and thereafter the case was removed to this court.

Defendant has moved for summary judgment based on the bar of the Pennsylvania two year statute of limitations in personal injury actions. In an action such as this, where the cause of an injury or disease may not be readily apparent, the Pennsylvania courts apply the “discovery rule”, under which the two years begin to run from the time that the plaintiff knows or reasonably should know the cause of an injury or disease. Bayless v. Philadelphia National League Club, 579 F.2d 37 (3d Cir.1978); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).

Of course, this “discovery rule” has accumulated a considerable gloss of judicial interpretation. The case law has developed the requirements that before the two year bar can be applied, the party asserting the defense must show;

(1) that claimant knew of the injury or disease; and
(2) that claimant knew of the operative cause of the injury or disease; and
(3) that claimant knew of the causal connection between the injury and the medical device involved more than two years before commencing the lawsuit.

See, O’Brien v. Eli Lilly Co., 668 F.2d 704, 706 (3d Cir.1981), and its analysis of the cases cited therein, particularly Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phila.Co. CP 1980).

With these standards set, and mindful that the statute of limitations is an affirmative defense on which the proponent has the burden of proof, and further mindful that on a motion for summary judgment all inferences are to be construed in favor of the non-moving party, Landtect Corp. v. State Mutual Life Assurance Co., 605 F.2d 75 (3d Cir.1979), we will consider the evidence as submitted by the parties to determine whether there exists a genuine issue of material fact with respect to these requirements which precludes summary judgment.

The moving party relies entirely on the deposition testimony of wife-plaintiff. The plaintiff relies on her extensive affidavit and supporting medical and hospital reports.

There is little dispute as to the chronology of events here. In 1972 a Lippes Loop intra-uterine device (IUD) was inserted into wife-plaintiff by Dr. Hipps, her family physician. She only knew it by the description “Loop IUD”. It remained in place for several years without trouble.

In December 1977 she experienced nausea and flu-like symptoms and consulted Dr. Hipps who gave her a diagnosis of gall bladder problems or flu. Her symptoms worsened and she returned to Dr. Hipps’ office where she was given an internal examination by a paramedic. He told plaintiff that the IUD had moved out of position and had punctured the wall of the vagina. She was given antibiotics and told to return the next day for an examination by Dr. Semple, a gynecologist. On December 28, 1977, Dr. Semple examined her, removed the IUD and directed her to report to his office for further care. She was admitted to a hospital under Dr. Semple’s care on January 12, 1978 for further diagnostic work. An abdominal hysterectomy was planned but postponed because plaintiff had pneumonia and she was discharged from the hospital with orders to return on January 31, 1978. Dr. Semple performed exploratory surgery, opened and drained a tubovarian abscess, but did not perform a hysterectomy. She was discharged from the hospital on February 11, 1978 and continued under out patient care by Dr. Semple until July 4, 1978. She was referred by Dr. Semple to Dr. Leach, a urologist, for consultation during this time.

According to plaintiff’s affidavit the above series of events ended in a recovery from the symptoms in 1978. However, it is with reference to this period that defendant relies in establishing plaintiff’s knowledge to bring the “discovery rule” into operation.

From page 50 through page 53 of her deposition plaintiff admitted that on December 27, 1977 she was told that the IUD had moved in her cervix and had punctured the vaginal wall; that on the next day she saw Dr. Semple, a gynecologist; that she was given antibiotics for the infection resulting; that on December 28, 1977 Dr. Semple confirmed that she had a severe pelvic inflammation in the cervix; that the IUD had come down through the wall of the vagina and that he was going to remove it, which he did. He put her on antibiotics and arranged for a hospital admission.

In light of these admissions by plaintiff there can be no doubt that plaintiff was aware that the IUD had punctured the wall of the vagina, that she had an infection because of this, and that the infection led to hospitalization, exploratory surgery and drainage of the infected area.

It is sufficient that the plaintiff know the cause or source of her injury; it is not necessary that she know the legal basis for the prospective claim. U.S. v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); DeMato v. Turner & Newell, 651 F.2d 908 (3d Cir.1981), affirming p.c. 516 F.Supp. 114 (E.D.Pa.1980). Knowledge of defendant’s negligence is not a required element of the discovery rule. DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 460 A.2d 295 (1983).

We conclude therefore, that the two year statute of limitations under the discovery rule began to run in January 1978 on all immediate consequences of the movement of the IUD, the puncture of the vaginal wall, and the resultant infection and treatment. Action on all these matters would be barred after January 30, 1980.

However, we find a second cause of action that is not so barred.

According to the plaintiffs affidavit she began developing new internal symptoms in November 1979, and for the next eleven months she had several hospital admissions under the care of a variety of medical specialists, including an internist, two general surgeons, a gastric specialist, and others. The general diagnosis for these admissions included chronix hepatitis, cause unknown, and chronic colocystitis. A colon resection was performed.

These medical episodes from November 1979 through October 1980 appear to be different from those experienced from December 1977 through July 1978. Whether or not they are related to the IUD appear to be contested issues of fact. There is no evidence in this record that supports any conclusion that the uterine problems of 1977 and 1978 and the gastric problems of late 1979 and 1980 were the product of the same chain of causation. Plaintiff may contend that the two conditions were caused independently by the same IUD.

Plaintiff is not entitled to a new limitations period to begin with the appearance of each new injury or complication. The limitations period begins to run when damage is inflicted which is “physically objective and ascertainable.” Ragan v. Steen, 229 Pa.Super. 515, 520, 331 A.2d 724 (1974). Although the limitations period is tolled until an action is discoverable, once that occurs and the cause of action has become a reality, the injured party may not then sleep on that cause of action until further injuries appear. An injured party “may not unduly postpone an action until the full extent of his damage is ascertained.” Shadle v. Pearce, 287 Pa.Super. 436, 441, 430 A.2d 683 (1981); Caldwell v. A.H. Robins Co., 577 F.Supp. 796 (W.D.Pa. 1984), aff'd 3d Cir., May 25, 1984, 735 F.2d 1347. While Shadle noted a different result for a separate and distinct injury, 287 Pa.Super. p. 441, n. 3, 430 A.2d 683, in Caldwell we noted at p. 798, f.n. 1, that we “conclude[d] that plaintiffs alleged injuries are sufficiently similar, all arising with plaintiffs reproduction organs, that they do not justify any exception to the holding described above.” However, the nature of the complaints, diagnoses, and treatments between the two episodes in the present case differ.

It is still a genuine issue of material fact whether plaintiff knew that she might have a claim against the manufacturer of the IUD for her illness of November 1979 to October 1980. Her suit was filed June 15, 1982, and the statute would bar injuries or disease manifested before June 15, 1980, unless the causal element were discovered later. There is no evidence in this record to establish that the plaintiff knew or by the exercise of reasonable diligence should have known that the symptoms which she began to suffer in November 1979 and which caused her to be hospitalized for substantial periods through October 1980 were related to the IUD. While both diseases may be attributable to the same exposure, they are separate and distinct. There is nothing here to show that the second disease could be a reasonably certain consequence of the first such as to allow damages for future consequences in a timely suit for the first injury, or in the alternative to deny recovery on the second illness because of an award in a suit on the first illness.

Because plaintiff has set forth distinct and separable causes of action, suit on the second illness would not be barred by the statute of limitations. See, Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982); Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976). A genuine issue of material fact exists.

An appropriate order will be entered.

ORDER

AND NOW this 17 day of October, 1984, having reviewed defendant’s motion for summary judgment and plaintiffs’ response thereto and the supporting evidentiary material,

IT IS ORDERED that in the trial of the within action claims for damages for wife-plaintiff’s illness during 1977 and 1978 are barred by the statute of limitations, but that the action may proceed on the claims for illness and disability beginning November 1979 and thereafter in accordance with Fed.R.Civ.P. 56(d).


author: RUSSELL E. SMITH, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Carol Dubay PASTOS and John W. Pastos, dba Carol’s Country Corner; Security State Bank of Poison; and Lake County, Montana, Defendants.
    No. CV 82-85-M.
    United States District Court, D. Montana, Missoula Division.
    Oct. 17, 1984.
    Allen R. McKenzie, Asst. U.S. Atty., Butte, Mont., for plaintiff.
    J.A. Turnage, Turnage & McNeil, Poison, Mont., for Sec. State Bank.

      Paul C. Meismer, Garlington, Lohn & Robinson, Missoula, Mont., for Pastos.
   OPINION AND ORDER

RUSSELL E. SMITH, District Judge.

Carol and John Pastos (Defendants) have filed a motion to redeem from a judicial sale made by the United States Marshal pursuant to a decree foreclosing a mortgage. They have deposited the redemption money. There was no timely motion to amend the judgment under Fed.R.Civ.P. 59, and there was no appeal from the judgment.

On April 2, 1976, Defendants borrowed from the Small Business Administration (SBA) and gave a promissory note to evidence the loan. The note was secured by a mortgage of real estate to the SBA. Both the note and the mortgage discuss the right of redemption. The note provides: “The undersigned signed hereby waives all right of redemption or appraisement whether before or after sale.” The note further refers to 13 C.F.R. § 101.1(d). The mortgage provides: “In addition to said real property, this mortgage also covers ... all rights of redemption____” It also provides that in the event of foreclosure the property would be sold “at a judicial sale pursuant to the provisions of 28 U.S.C. 2001(a) ...” and that “[i]n compliance with section 101.1(d) of the Rules and Regulations of the Small Business Administration (13 C.F.R. 101.1(d)), this instrument is to be construed and enforced in accordance with applicable Federal law.” The note and the mortgage appear to be on standard SBA forms with no changes in the printing and with the blanks filled in by typewriter.

Defendants became delinquent, and on July 15, 1982, the SBA filed an action to foreclose the mortgage. The prayer of the complaint, among other things, requests:

(2) That ... upon such sale, purchaser or purchasers be led into possession of said real property and improvements and that ownership of said real estate and improvements thereon pass to said purchaser or purchasers subject only to the mortgage lien of the Security State Bank of Poison under the terms of that Mortgage held by said Bank dated June 8, 1976, in the original amount of $18,-000.00, recorded under Microfile # 227799, Lake County,
(3) No redemption period shall be allowed for either the real property, improvements thereon requested be foreclosed,
(5) That the Plaintiff, United States, or any other party to this cause, may become the purchaser at the sale of said real property by the United States Marshal that the United States Marshal execute the usual Certificate of Sale conveying said real property to the purchaser, and shall deliver to the purchaser, upon payment of the purchase price, a Deed of the Marshal to said real estate and improvements thereon and deliver the purchase price to the plaintiff, less the Marshal’s costs of sale____

At the trial Defendants appeared by their attorney. At no time, either before or during trial, did Defendants request any rights of redemption.

On April 3, 1984, this court entered a decree of foreclosure and order of sale. The Marshal’s Deed, so entitled, provides:

AND WHEREAS, at such sale said real estate and premises were fairly sold to the Small Business Administration for the sum of Forty-one Thousand Eighty-three and 39/ioo Dollars ($41,083.39), being the highest bidder, and that sum the highest bid therefor, and the United States Marshal thereupon issues a Marshal’s Certificate of Sale and a Marshal’s Report of Sale;
NOW, THEREFORE, in consideration of the premises, and of the sum so paid as aforesaid, and in compliance with the statute, said grantor, as United States Marshal aforesaid, does hereby grant, bargain, sell and convey to said grantee, all that real property situated in the County of Lake, State of Montana, described as follows, to-wit:
[Legal description of property.]

Defendants take three positions: one, that the Montana laws creating a year’s right of redemption are applicable; two, that by the language used in the decree the court did create a right of redemption; and, three, that the Government is estopped from denying a right of redemption.

As to their first position, Defendants rely on the cases of United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 16 L.Ed.2d 404 (1966), and United States v. MacKenzie, 510 F.2d 39 (9th Cir.1975), and claim that Montana law controls the rights of redemption in this federal foreclosure. In Yazell, the Court held that the Government was precluded by Texas coveture law from recovering on a loan to a husband and wife where the SBA had executed on the wife’s separate property. The Court said that it was dealing with a contract which was “negotiated in painfully particularized detail,” (Yazell, 382 U.S. at 345-46, 86 S.Ct. at 503) and that both parties entered into the contract “without any thought that the defense of coverture would be unavailable to Mrs. Yazell with respect to her separate property as provided by Texas law ____” Id. at 346. Further, the Court observed:

It is an appropriate inference from the Government’s brief that its position is that the Federal Government, in order to collect on a negotiated debt, may override all such state arrangements despite the absence of congressional enactment or agency regulation or even any stipulation in the negotiated contract or any warning to the persons with whom it contracts.
We do not here consider the question of the constitutional power of the Congress to override state law in these circumstances by direct legislation or by appropriate authorization to an administrative agency coupled with suitable implementing action by the agency.

Id. at 351-52, 86 S.Ct. at 506-07. (Footnotes omitted.)

Apparently in response to Yazell, administrative regulations were promulgated to avoid the problem that had arisen in Yazell. See 31 Fed.Reg. 10,466 (1966) (codified at 13 C.F.R. § 101.1(d)). 13 C.F.R. § 101.1(d) provides:

(2) ... mortgages, deeds of trust, and other evidences of debt or security shall be construed and enforced in accordance with applicable Federal law.
(3) ... However, the use of local procedures shall not be deemed or construed to be any waiver by SBA of any Federal immunity from any local control, penalty, or liability.
(4) Any person, corporation, or organization that applies for and receives any benefit or assistance from SBA shall not be entitled to claim or assert any local immunity to defeat the obligation such party incurred in obtaining or assuring such Federal benefit or assistance.

Defendants’ note and mortgage specifically referred to this regulation.

In MacKenzie, the Ninth Circuit held that debtors could assert in an SBA foreclosure action Nevada law limiting deficiency judgments and Arizona law providing for a period of redemption. The court stated that it was following the decision in Yazell and quoted the language of Yazell relative to the “painfully particularized” contract. MacKenzie, 510 F.2d at 41. The court also said that “no federal statute nor regulation nullifies these debtor protections in the SBA context, and no provision in the underlying contracts purported to do so.” Id. at 40. (Footnote added.)

The case at bar is distinguishable from Yazell and MacKenzie. In this case the note, the mortgage, the regulation, and the statute notified Defendants, in one way or another, that the mortgage would be foreclosed under federal law and that Defendants could not rely on any local immunity. Under these circumstances, the Montana laws relating to rights of redemption on a foreclosure sale are not applicable. United States v. Gish, 559 F.2d 572 (9th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978).

As to Defendants’ second position: Did the court provide a period of redemption?

28 U.S.C. § 2001(a), which authorizes judicial sales of realty, provides that: “Such sale shall be upon such terms and conditions as the court directs.” This language empowers a court to fashion a right of redemption. United States v. Montgomery, 268 F.Supp. 787 (D.Kan.1967). Thus, while the Montana law of redemption did not automatically apply in the case at bar, the court did have the power to fashion a right of redemption. The court did not exercise its discretion under 28 U.S.C. § 2001(a), however, to fashion such a right.

The court’s decree provides:

That the United States Marshal, upon payment of the purchase price, [shall] execute the usual certificate of sale conveying said real property and possession thereof to the purchaser or purchasers;
That the United States Marshal shall deliver to the purchaser or purchasers, upon payment of the purchase price, deed of the Marshal to said real estate and improvements thereon____

Under the decree, the certificate of sale and the Marshal’s deed were to be issued simultaneously on the payment of the purchase price. A Marshal’s deed was issued; a certificate of sale was not.

The words “certificate of sale” generally and in Montana denote a sale which is subject to redemption. The use of those words in the complaint and the decree is confusing, but the words, in and of themselves, did not create a right of redemption.

The final contention of Defendants is that the Government is estopped from denying a right of redemption. On June 1, 1984, the SBA offered to pay Defendants $8,000 if they would waive their rights of redemption and move their personal property. In July Defendants refused the offer. It is noted that the offer relative to redemption came long after Defendants’ rights to move to amend the judgment and to appeal from it had expired. I am unable to see how an offer to pay Defendants for a right of redemption which they never had can constitute an estoppel.

If the court erred (and this is not argued) in failing to exercise its discretion to fix a right of redemption under 28 U.S.C. § 2001(a), in the absence of any request, such an error does not subject the decree to collateral attack.

IT IS ORDERED that Defendants’ motion to redeem property from the Marshal’s sale held on May 22, 1984, is denied, and the clerk is directed to release the deposit to Defendants upon their request.

      . The note is undated, but the mortgage was given on April 2, 1976.

      . I am at a loss to understand this statement in light of 28 U.S.C. § 2001(a) and 13 C.F.R. § 101.1(d).

      . Defendants’ mortgage provided that in the event of foreclosure the property would be sold “at a judicial sale pursuant to the provisions of 28 U.S.C. 2001(a)."

      . See Black's Law Dictionary 206 (5th ed. 1979).

      . See Mont.Code Ann. § 25-13-711 (1983).


author: BARBOUR, District Judge.

text:
    Robert TISDALE, Plaintiff, v. STONE & WEBSTER ENGINEERING CORPORATION and Employers Casualty Company, Defendants.
    Civ. A. No. J83-0222(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Oct. 17, 1984.

      James Phyfer, Jackson, Miss., for plaintiff.
    Clifford B. Ammons, Watkins & Eager, Jackson, Miss., for defendants.
   ORDER AND MEMORANDUM OPINION

BARBOUR, District Judge.

This matter is before the Court on the Motion to Dismiss, or in the alternative, for change of venue filed by the Defendants, Stone & Webster Engineering Corporation and Employers Casualty Company. This action was originally filed on February 24, 1983, in the Chancery Court of Copiah County, Mississippi, and was subsequently removed to this Court. The Plaintiff’s Complaint alleges that he was injured while working for his employer, Stone & Webster, on July 6, 1982. The Complaint seeks recovery under the Louisiana Workers’ Compensation statutes. Prior to July 1, 1983, the Workers’ Compensation scheme of Louisiana entailed judicial determination of controversies arising under the Workers’ Compensation statutes. Since July 1, 1983, however, Louisiana has adopted the “administration” form of procedure requiring the initial filing of any claim in the office of the Workers’ Compensation Administration, rather than in a court. R.S. 23:1310 (effective July 1, 1983). If the Plaintiff seeks recovery for an injury, or re-injury which occurred after July 1, 1983, his exclusive remedy would be filing a claim with the office of the Workers’ Compensation Administration in Louisiana, rather than by proceeding in a court, whether in Mississippi or Louisiana. Mississippi courts have long held that actions governed by Louisiana Workers’ Compensation law could be prosecuted in the Mississippi courts, applying Louisiana law. The basis for this holding is that Mississippi courts are fully capable of applying another state’s law where the action was judicially cognizable in the foreign state. See, e.g., Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395 (1930). Mississippi courts will not exercise jurisdiction over a workers’ compensation proceeding governed by another state’s law where that state requires the proceeding to be brought before an administrative agency. See, e.g., Green v. J.A. Jones Const. Co., 161 F.2d 359 (5th Cir.1947); Bethlehem Steel Company v. Payne, 183 So.2d 912 (Miss.1966). In Green, the Fifth Circuit held that the Mississippi courts would not exercise jurisdiction to enforce Georgia’s Workmens’ Compensation Act where the exclusive forum was the Georgia State Board of Workmens’ Compensation. In Bethlehem, the Mississippi Supreme Court, declining to exercise jurisdiction over a workmens’ compensation proceeding governed by North Dakota law stated as follows:

It follows that the above stated general rule would preclude recovery under the North Dakota statute since the remedy under North Dakota Law is administrative rather than judicial. Appellee’s claim could be filed only with the North Dakota Bureau of Compensation and could not be heard for the first time in any court, including the courts of North Dakota.

183 So.2d at 915 (emphasis added).

Although the Plaintiff is a Mississippi resident and the Mississippi courts have an interest in protecting the rights of Mississippi citizens, even when those rights arise under the law of a sister state, the Court is of the opinion that a Mississippi court, if faced with this issue, would dismiss this action to allow it to proceed before the appropriate administrative agency in Louisiana.

The Defendants’ Motion to Dismiss under the theory of forum non conveniens, or in the alternative, for change of venue under 28 U.S.C. Section 1404(a) (1976) is based upon two principle grounds:

1. The fact that the accident occurred in Louisiana and numerous witnesses are from Louisiana make the trial one which would be easier to try in Louisiana than in Mississippi;
2. Due to the complex nature of the recent statutory procedures for dealing with Louisiana Workers’ Compensation claims, and due to the continuing nature of the remedy which requires an open file, as opposed to a single determination with respect to the Plaintiff’s claim, the Louisiana Workers’ Compensation Administration would be the appropriate forum to decide the Plaintiff’s claim.

The rationale for the doctrine of forum non conveniens was discussed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947):

The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.

Id. at 507, 67 S.Ct. at 842. Gilbert established two areas of consideration in determining whether to dismiss an action upon the grounds of forum non conveniens. Prior to reaching these grounds, of course, the doctrine requires that the Plaintiff have an alternative forum in which the action may be brought. The first area of consideration involves the “private interest” of the litigants.

An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial.

Id. at 508, 67 S.Ct. at 843. In the instant case, the facts indicate that the Plaintiff has one witness from the State of Mississippi, his treating physician, and the possibility of another witness, his wife. On the other hand, the Defendant has claimed that the Plaintiffs co-workers, supervisors and bookkeepers for the employer, and insurance company personnel all would be essential in this cause. All of these witnesses reside in Louisiana, beyond the process of this Court. Furthermore, the Plaintiffs accident occurred in Louisiana and a view of the premises would be impractical if the proceeding were held in Mississippi.

The second area of consideration involves the “public interest” involved in choosing a situs for the litigation.

Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than have a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Id. at 508-09, 67 S.Ct. at 843. Accord, Koster v. Lumbermens Mutual Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). As Professor Larson pointed out in his treatise on workmen’s compensation law, the different workmen’s compensation schemes enacted by the several states are complex and are best administered by the individual state’s agencies or courts.

The point at which these commentators go wrong is in underestimating how ‘special’ the special remedy afforded by a modern compensation act is. If there were no more to compensation administration than handing the claimant a sum of money and being done with him, the matter might be different. But a highly developed compensation system does far more than that. It stays with the claimant from the moment of the accident to the time he is fully restored to normal earning capacity. This may involve supervising an on-going rehabilitation program, perhaps changing or extending it, perhaps providing, repairing and replacing prosthetic devices, and supplying a vocational rehabilitation. Apart from rehabilitation, optimum compensation administration may require re-opening of the award from time to time for change of condition or for other reason.

Larson, h Workmen’s Compensation Law § 84.20, 16-10, 11 (1984). Under the facts in the instant case, it appears that the Plaintiff was injured on or about July 6, 1982, and returned to work on or about February 4, 1983. It appears that the Plaintiff continued at his job until June 9, 1984, when he left his job to have additional surgery performed upon his back. Certainly, if the Plaintiff reinjured his back in June of 1984, the new Louisiana workers’ compensation statute, which places exclusive jurisdiction for Louisiana workers’ compensation claims in the Workers’ Compensation Administration would govern. See Green and Bethlehem supra. Even if the Plaintiff did not reinjure his back in June of 1984 (a fact the Plaintiff neither admits nor denies in his brief in opposition to the Motion to Dismiss), the continuing nature of a workers’ compensation proceeding makes it one more suitable for determination in Louisiana, the state whose workers’ compensation law is being applied, than in the State of Mississippi.

The Gilbert and Koster standards for invocation of dismissal under the doctrine of forum non conveniens are still applicable today. In Piper Aircraft Company v. Reyno, 454 U.S. 285, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), the Supreme Court, citing to Gilbert and Koster, upheld the dismissal of an action filed in California, where the plaintiff had an alternative forum in Scotland, where the accident occurred and the majority of the parties and witnesses resided. The Court allowed this dismissal, even though the law of Scotland was significantly less beneficial to the plaintiff than the law of the United States. See also, American Rice, Inc. v. Arkansas Rice Growers Coop Association, 701 F.2d 408 (5th Cir.1983). In the instant case, of course, it would appear that a Louisiana proceeding allowing for the constant monitoring of the Plaintiff’s needs and condition, would be more favorable to the Plaintiff than an action in Mississippi which could be modified as conditions changed only with great difficulty, if at all.

The Court concludes that the Plaintiff has an alternative forum, the Louisiana Courts or the Louisiana Workers’ Compensation Administration, in which to proceed with this action.

The Court has weighed the private interests, including the access to witnesses, evidence and a view of the premises and is of the opinion that the balance of interests favor dismissing this action so that it may proceed in the appropriate Louisiana court or office of the Workers’ Compensation Administration. The Court has weighed the public interests in this case, including the relevant law and burden upon the court system, and is of the opinion that the balance of public interests favor the dismissal of this action to allow it to be refiled in the appropriate Louisiana court or office of the Workers’ Compensation Administration.

This Court has full authority to dismiss this action under the doctrine of forum non conveniens, conditioned on the submission of the Defendants to the jurisdiction of the appropriate Louisiana court or office of the Workers’ Compensation Administration, and upon their waiver of any statute of limitations considerations. See, e.g., Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir.1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 781 (1976); Farmanfarmaian v. Gulf Oil Corp., 437 F.Supp. 910 (S.D.N.Y.1977), aff'd. 588 F.2d 880 (2d Cir.1978); Paterson, Zochonis (U.K.) Ltd. v. Compania United Arrows, S.A., 493 F.Supp. 626 (S.D.N.Y. 1980). In Fitzgerald, the district court conditioned its dismissal upon the agreement of the Defendants to submit to the jurisdiction of the courts in England and to waive any defense of statute of limitations which they might have there. In Farmanfarmaian, the following language in the district court dismissal was upheld on appeal:

Accordingly, the complaint is dismissed. This dismissal is conditioned on two requisites: (1) That the defendants waive any defense that they might have relating to any statute of limitations that did not exist prior to the initiation of suit in this district; (2) that the defendants consent to the jurisdiction of the Iranian courts, and that they submit to service of process in Iran, which shall take place within 90 days from the filing of this opinion.

437 F.Supp. at 928.

The Court finds that the Defendants have agreed by stipulation to submit to the jurisdiction of the appropriate Louisiana court or office of the Workers’ Compensation Administration, and have agreed to waive any statute of limitations considerations which might exist in this case.

It is, therefore, ordered that this action be, and it is hereby, dismissed, and the Plaintiff is given a reasonable time to refile his action in the appropriate Louisiana court or office of the Workers’ Compensation Administration. This dismissal is conditioned upon the express stipulation of the Defendants to submit to the alternative forum and to waive any statute of limitations issue which exists in this case, and this dismissal is being made without prejudice to insure that the terms of this dismissal are fully complied with.


author: REYNOLDS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. The CONTINENTAL GROUP, U.S.A., d/b/a Continental Can Company, U.S.A., Defendant.
    Civ. A. No. 84-C-886.
    United States District Court, E.D. Wisconsin.
    Oct. 17, 1984.
    Allen W. Williams, Jr., Mark A. Thimke, Attys. at Law, Milwaukee, Wis., for defendant.
    F. Henry Habicht, II, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., Mary Ellen Leahy, Environmental Enforcement Section, Land & Natural Resources Div., Dept, of Justice, Washington, D.C., Anne Swofford, U.S. Environmental Protection Agency, Chicago, 111., for plaintiff.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This is a civil action under § 113(b) of the Clean Air Act (“the Act”), 42 U.S.C. § 7413(b). Federal jurisdiction derives from 28 U.S.C. § 1345 and 42 U.S.C. § 7413. Presently before the Court is the defendant Continental Can Company’s (“Continental’s”) motion for a stay of proceedings. The motion will be denied.

Continental operates a food and beverage can manufacturing plant in Glendale, Wisconsin. In the process, coatings, varnishes and end seam compounds are applied to the metal used in the manufacture of the cans, to ensure that the cans are properly sealed and that the contents of the finished can do not come in contact with the metal. For ease of application, these coatings, varnishes and end seam compounds are dissolved in a blend of liquids that later evaporates into the atmosphere and generates emissions of volatile organic hydrocarbons (“VOCs”). The interaction of VOCs and oxides of nitrogen following exposure to strong sunlight creates ozone.

Congress passed the Clean Air Act Amendments to enhance local efforts to abate air pollution. The legislation creates a strong federal enforcement presence, reflecting federal concern that progress towards meeting abatement goals not be delayed. See H.R.Rep. No. 294, 95th Cong., 1st Sess. 2, 53-57, reprinted in 1977 U.S. Code Cong. & Ad.News 1077, 1079-80, 1131-36. Under the Act, as amended, state agencies are to develop State Implementation Plans (“SIPs”), which include emission limits, schedules and timetables for these limits, and other provisions calculated to ensure the timely attainment and maintenance of the national ambiant air quality standards set by the Environmental Protection Agency (“the EPA”). The SIPs are submitted for EPA approval. 42 U.S.C. § 7410(a). The EPA retains power independently to promulgate a SIP if a state fails to do so or does not submit one that is adequate. 42 U.S.C. § 7410(c). States may revise their SIPs, but only after EPA approval is sought and obtained. 42 U.S.C. § 7410(a)(3). Once a SIP is in effect, its terms can be enforced by the federal government or the states. 42 U.S.C. §§ 7413(b), 7416.

Administration of Wisconsin’s approved SIP was undertaken by the Wisconsin Department of Natural Resources (“the DNR”). In 1979, the DNR adopted rules regulating the emission of VOCs from the can manufacturing process. Wis.Admin. Code § 154.13(4)(c)1.-2. [NR] 633 (1983). The DNR also has adopted a regulation whereby a manufacturer may submit an alternate compliance plan in the event that federal regulatory approval procedure delays compliance with the SIP’s emission limits. Wis.Admin.Code § 154.13(12)(e)2. [NR] 646-10 (1984).

Continental responded to the DNR’s regulatory efforts by submitting on August 27, 1979, an alternate compliance plan request. Continental therein stated its intention to develop new coatings and end seam compounds with a low VOC content. Because these compounds come in contact with the contents of the cans, they require the Food and Drug Administration’s (“the FDA’s”) approval. Continental stated its intention to achieve final compliance with the DNR regulations by December 31, 1985. The DNR has not made a formal decision on Continental’s request.

From the time it made its request for an alternative compliance plan, Continental has devoted approximately 50,000 man-hours to development of new low-VOC coatings and end seam compounds. However, Continental asserts that it will not be able to comply with the DNR’s final emission limits before the end of 1985, due in part to testing by the FDA and by Continental’s customers.

On October 28, 1983, the EPA issued a Notice of Violation to Continental pursuant to 42 U.S.C. § 7413(a), for generating VOC emissions in excess of the limits permitted under DNR regulations governing can coatings and end seam compounds. The present action was filed on June 29, 1984.

In support of its motion for a stay, Continental seeks to portray itself as snared in the tangled web of state-federal relations created by the Act. Continental emphasizes that the State of Wisconsin has not joined in the action, and argues that the DNR should be given the opportunity to review and rule upon Continental’s request before the federal government intervenes. Continental also states that it has substantially complied with the DNR’s interim emission limits promulgated in August, 1983. It professes disbelief and bemusement with respect to the government’s contentions that the DNR’s regulatory efforts have been lax and federal intervention is necessary.

First, the mere fact that Continental has submitted an alternative compliance plan request to the DNR does not provide a basis for abstention. Burford v. Sun Oil Co., 319 U.S. 315, 345, 63 S.Ct. 1098, 1112, 87 L.Ed. 1424 (1943), upon which Continental relies, is inapposite. The doctrine of abstention announced in that case contemplates wholesale abdication of federal jurisdiction, not merely the postponement of its exercise. Burford-type abstention is appropriate in circumstances where the federal judiciary’s intervention in a particular area would impermissibly disrupt state efforts to establish a coherent policy with respect to a matter of public concern. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-815, 96 S.Ct. 1236, 1244-1245, 47 L.Ed.2d 483 (1976). Yet the legislative scheme under which the present action was brought expressly provides that the federal government may enforce a state’s plan in federal court, a valid, approved SIP having the force and effect of federal law. See Union Electric Co. v. Environmental Protection Agency, 515 F.2d 206, 211 (8th Cir.1975), aff'd, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976). It would be anomolous to hold that Burford requires me to refrain from exercising jurisdiction in view of such an explicit Congressional directive.

Second, the facts alleged in the pleadings and set forth in the parties’ briefs on the present motion persuade me that this case presents precisely the sort of situation Congress contemplated when it provided for federal enforcement in the federal courts. Continental requested an alternative compliance plan, and five years have passed with no ruling on the request from the DNR. To stay this action pending completion of administrative proceedings, assuming any such proceedings are taking place at all, would make a mockery of Congress’s efforts to correct the problem of the states’ delay in carrying out pollution control responsibilities.

Whether Continental is presently in substantial compliance with the DNR’s interim emission limits is not relevant because the EPA has not approved these regulations. Additionally, whether the DNR has a reputation for strictly enforcing Wisconsin laws is of no pertinence here, where it is undisputed that the DNR has not ruled on Continental’s request for five years. In the absence of compelling circumstances, I am under a duty scrupulously to exercise the jurisdiction conferred by Congress.

THEREFORE, IT IS ORDERED that Continental Can Company’s motion for a stay of proceedings is hereby denied.


author: LATCHUM, Senior District Judge.

text:
    Robert A. WHALEY and Barbara J. Whaley, his wife, Plaintiffs, v. ALLSTATE INSURANCE COMPANY, Defendant.
    Civ. A. No. 83-846-JLL.
    United States District Court, D. Delaware.
    Oct. 17, 1984.

      Frederick T. Haase, Jr., of Roeberg & Associates, P.A., Wilmington, Del., for plaintiffs.
    Dennis D. Ferri of Ferri & Doelze, Wilmington, Del., for defendant.
   MEMORANDUM OPINION

LATCHUM, Senior District Judge.

This is a civil action based on diversity of citizenship brought by the plaintiffs, Robert Whaley and his wife, Barbara, against defendant, Allstate Insurance Company (“Allstate”). (Docket Item [“D.I.”] 1.) The Whaleys seek a declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring that they have $100,000 per person, $300,-000 per accident of uninsured motorist insurance (“UM”) under their Allstate automobile insurance policy, No. 0 08 464109 (“Policy”). (D.I. 1 at 1-2.) The Whaleys also seek to recover money judgments against Allstate, under the UM coverage, as a result of an automobile collision which occurred on February 1, 1983, and in which Mr. Whaley was allegedly seriously injured. Presently before this Court is plaintiffs’ Motion for Partial Summary Judgment in their favor and against Allstate declaring that the Policy includes $100,000 per person and $300,000 per accident of UM due to Allstate’s failure to offer plaintiffs higher limits of UM as required by 18 Del. C. § 3902(b). (D.I. 25.)

I. FACTS

The facts relevant to plaintiffs’ motion for partial summary judgment are not in dispute. They are as follows: on February 1, 1983, a collision occurred at the intersection of Rysing Drive and N. Cannon Drive, Edgemoor Gardens, Wilmington, Delaware, involving an automobile operated by Mr. Whaley and an automobile operated by Cecilia Wyatt.

On February 1, 1983, the Policy was in full force and effect. As written, the Policy provided bodily injury liability limits and UM limits, as follows: (1) Bodily Injury Liability Limits: $100,000/person, $300,-000/accident; (2) UM limits: $10,000/person, $20,000/accident. (D.I. 26A at 19.) The Whaleys were insured under the Policy; Mr. Whaley was the named insured.

Although Mr. Whaley purchased the Policy sometime between 1956 and 1963, since at least April 1980, the Policy has been one of automatic renewal. (D.I. 17 at 1, 2.) The Policy renewal periods are six months each and run from April 25 to October 25, and then from October 25 to April 25. (Id.)

Originally, for the period October 25, 1980 to April 25, 1981, Mr. Whaley had three automobiles insured under the Policy: 1980 Chevette; 1967 Volkswagen; and 1979 AMC Spirit. (D.I. 26A at 7, 8.) A daughter of the Whaleys, Cynthia, was listed as the principal driver of the 1979 AMC Spirit.

On October 1, 1980, Cynthia Whaley purchased her own separate automobile insurance policy for the 1979 AMC Spirit. (D.I. 26A at 9-15.) The 1979 AMC Spirit and Cynthia were removed from Mr. Whaley’s Policy effective October 25, 1980. These changes resulted in a reduced premium. Moreover, when the 1979 AMC Spirit and Cynthia were removed from the Policy, Allstate credited the Whaleys with $26.40 for a premium refund applicable to the 1979 AMC Spirit for the period October 2, 1980 to October 25, 1980. (D.I. 26 at 13-15.)

On October 9, 1981, Mr. Whaley eliminated the 1980 Chevette, one of the two remaining vehicles insured under his Policy and added a 1981 Chevette thereto. As a result, Allstate increased plaintiffs’ premium.

According to Allstate, on May 3, 1980, it mailed a “Customer News Bulletin” to Mr. Whaley. (D.I. 12.) For purposes of the instant motion only, plaintiffs concede that the mailing took place, and that the purpose of this mailing was an attempt to discharge Allstate’s duty to offer Mr. Whaley uninsured motorist limits equal to his bodily injury liability limits, under 18 Del. C. § 3902(b) in effect in May 1980. Additionally, for purposes of the instant motion only, plaintiffs concede that Mr. Whaley received this mailing. Mr. Whaley, however, did not respond to this mailing. After May 3, 1980, Allstate did not offer the Whaleys UM limits equal to the bodily injury liability limits in the Policy.

II. APPLICABLE LAW

The Delaware Supreme Court has ruled that pursuant to 18 Del. C. § 3902(b), every insurer must offer additional UM coverage up to a ceiling of the lesser of $300,000 or the particular policy’s bodily injury liability limits whenever the automobile policy is changed in such respects as the vehicle insured, the coverage provided, and/or the identity of the named insured. State Farm Mutual Automobile Insurance Co. v. Arms, 477 A.2d 1060, 1066 (Del.1984). The defendant, in order to avoid the Arms case, advances two arguments. First, that no changes were made to the Policy with regard to the vehicle involved in the accident and therefore those changes that were made should not be deemed “material” requiring a renewed policy offer by Allstate of the option to purchase increased limits of UM coverage. (D.I. 29.) Second, defendant argues that 18 Del.C. § 3902, as recently amended, should be applied retroactively and/or interpreted by this Court to limit the application of the Arms case to the precise facts present in that suit and not extend it to the facts of the present case.

The plaintiffs, on the other hand, argue that: (1) the October 1,1980 changes to the Policy concerning the vehicles insured under the Policy constituted a “replacement” or “new” policy and not a “renewal” thereby imposing on Allstate a duty to offer higher limits of UM coverage; (2) there is no “unmistakable legislative intent” to apply the amendments to section 3902(b) retroactively; and (3) the Delaware Supreme Court did not limit its holding to the particular facts of the case before it. (D.I. 26.)

A. Renewal — Materiality

The threshold issue is whether the Whaleys’ Policy after October 1, 1980 and again on October 9, 1981 remained a “renewal” policy or whether it became a “new” or “replacement” policy. This is important because the gravamen of Arms is that 18 Del.C. § 3902(b) imposes a duty to offer additional UM coverage whenever a new policy, other than a renewal, is issued. 477 A.2d at 1064.

Under 18 Del.C. § 3903(a)(2), a “renewal” is defined as “the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term.” In Arms, the court noted that “the statute clearly contemplates that a renewal is merely the automatic continuation of the preceding policy, identical in form and substance, except as to date, and perhaps, the premium. (Citations omitted; emphasis added.) It is the change in the basic legal relationships between the parties which connotes a new policy, rather than a renewal, and thus triggers the offer requirement of section 3902(b).” (Citations omitted.) 477 A.2d at 1065.

In this case, for purposes of 18 Del. C. § 3902(b), Mr. Whaley’s Policy was no longer a “renewal” but a new or replacement policy, at least as of October 25, 1980, when Mr. Whaley eliminated: (1) the 1979 AMC Spirit from the Policy as an insured vehicle; and (2) Cynthia Whaley as a principal driver of an insured vehicle (the 1979 AMC Spirit). Additionally, the Policy was not a “renewal” but a new or replacement policy on October 9, 1981, when Mr. Whaley substituted a 1981 Chevette for a 1980 Chevette. When the plaintiff made material, substantive changes to the Policy on October 25, 1980 and October 9, 1981, comparable to the changes set forth in Arms, the Court finds that these changes to the Policy constituted a new or replacement policy, not a renewal policy, thereby triggering Allstate’s obligation to offer additional uninsured motorist insurance.

B. Changes to Policy — Vehicle Involved

In an attempt to distinguish the Arms case, Allstate argues that none of the changes that were made after the May 3, 1980 “Customer News Bulletin” were in connection with the 1967 Volkswagen which was the insured vehicle involved in the accident. The Court is not persuaded by Allstate’s argument because there is no indication in the Arms case that the court intended to limit its application to automobile insurance policies in which the changes relate specifically to the insured automobile involved in a collision. The Delaware Supreme Court in Arms focused on substantive changes to the policy, not upon a particular insured automobile, irrespective of the number of automobiles insured or whether the insured was injured in one of the insured automobiles. In this case, Mr. Whaley was occupying one of the three insured vehicles at the time of the collision. Under his Policy, UM coverage existed at all times on Mr. Whaley, except when he occupied an uninsured vehicle owned by him or a vehicle owned by him which was insured by another automobile insurance company. (D.I. 26A at A3-6.)

Inasmuch as Mr. Whaley was occupying one of the three vehicles insured under the Policy at the time of the collision, the Policy, therefore, provided UM coverage to him. Because the changes involved only one Policy, the Court concludes that the changes as to the insured vehicles are changes to the policy itself, within the meaning of the Arms case, regardless of whether the changes related to the vehicle involved in the accident.

C. Retroactivity

Allstate argues that the decision of the Delaware Supreme Court in the Arms case should not be extended to cover the factual situation in the present action because 18 Del. C. § 3902, as amended on July 20, 1984 (“64 DeLL.Ch. 426”), which limits the holding in Arms, should be applied retroactively. The parties do not dispute that the Delaware Legislature attempted to limit the holding of the Arms case by enacting an amendment which, among other things, provides that UM insurance is not required in (1) an automobile insurance policy; (2) a renewal of such policy; or (3) a reinstatement, substitution, amendment, alteration, modification, transfer or replacement of such policy, when the insured rejects UM coverage in writing on a form furnished by the insurer, unless the insured then requests UM coverage in writing. 18 Del. C. § 3902(a)(1). (D.I. 29 at 5; D.I. 30 at 3.) The question therefore becomes whether or not the amended statute should be applied retroactively to the facts of this case.

Delaware courts have held that whether or not a statute is to be given retroactive effect is a matter of legislative intent and courts will be reluctant to arrive at such a construction unless the language of the statute permits of no doubt as to the meaning of the Legislature. If there is any doubt whether an amendment was intended to operate retrospectively, the doubt must be resolved against such operation. DiStefano v. Lamborn, 7 Terry 195, 46 Del. 195, 83 A.2d 300, 301 (Del.Super.1951). See also Wilmington Medical Center v. Bradford, 382 A.2d 1338 (Del.1978); Price v. All American Engineering Co., 320 A.2d 336 (Del.1974).

Since Allstate urges this Court to apply 64 Del.L.Ch. 426 retroactively, the burden rests with Allstate to show the “unmistakable retrospective legislative intent,” as required by Price v. All American Engineering Co. Allstate, however, fails to meet this burden in that it points to no language in the statute concerning retroactive application. Furthermore, upon review of the amended statute, the Court perceives nothing which indicates a legislative intent that it be applied retroactively. Indeed, the operative verbs of 64 Del.L.Ch. 426, “shall be delivered,” “shall offer,” and “shall include” are future tense not past tense verbs. This language reveals that the legislators considered the amended statute to have prospective not retrospective application.

This Court therefore concludes that the cause of action stated by the Whaleys in their complaint filed on December 6, 1983, arising out of an automobile accident on February 1, 1983 and Allstate’s failure to offer the Whaleys higher UM limits between October 1, 1980 and the date of the accident, is controlled by 18 Del.C. § 3902 as it existed at that time.

D. Continuing Offer

If an insurer fails to offer additional UM coverage pursuant to section 3902(b), then the insurer is deemed to have made to the insured a continuing offer of such additional coverage which offer remains open even after an accident occurs, absent compliance with section 3902(b). State Farm v. Arms, 477 A.2d 1060, 1064. Because Allstate failed to comply with the statutory requirements and because the plaintiffs accepted Allstate’s continuing offer when they made a demand for additional UM coverage even though the demand was made after the accident, this Court must conclude, based on the controlling law of Delaware, that the Policy should be revised so as to provide $100,000 per person, $300,-000 per accident of UM coverage.

Accordingly, the Court will grant the plaintiffs’ motion for partial summary judgment on the issue framed by Count I of the Complaint, relating to the issue of the limit of uninsured motorist insurance in the Policy under consideration.

An order will be entered in accordance with this opinion.

      . Plaintiffs are citizens of the State of Delaware and the defendant is a corporation organized and existing by virtue of the laws of the State of Illinois. Jurisdiction is based on 28 U.S.C. § 1332.

      . The status of Cecilia Wyatt as an uninsured motorist; the issue of liability for the collision; and the extent of Mr. Whaley’s injuries remain at issue.

      . In 1980, 18 Del.C. § 3902(b) read:
      The amount of coverage to be so provided shall not be less than the maximum limits for bodily injury, death and property damage liability insurance provided for under the motorist financial responsibility laws of this State.
      The coverage for property damage shall be subject to a $250 deductible for property damage arising out of any 1 accident unless the insurer and the insured agree in writing to a different deductible. Each insured shall be offered the option to purchase additional coverage for personal injury or death up to a limit of $300,000, but not to exceed the limits for personal injury set forth in the basic policy.

        . Monacelli v. Grimes, 9 Terry 122, 48 Del. 122, 99 A.2d 255, 266-67 (1953), DiStefano v. Lamborn, 7 Terry 195, 46 Del. 195, 83 A.2d 300, 301 (1951); State v. Mills, 44 Del. 125, 57 A.2d 99, 102 (1947); Bowing v. Delaware Rayon Co., 8 W.W.Harr. 111, 38 Del. 111, 188 A. 769, 770 (1937).

      . At oral argument, the defendant contended that it satisfied 18 Del.C. § 3902(b)’s requirement of offering UM coverage limits equal to the insured’s bodily injury liability limits, by including in its Customer News Bulletin, among other things, the following statement: "You can get more information about Coverage SS (Uninsured Motorist Insurance), the available limits and their cost and how you can add them to your policy by contacting your agent ____” (D.I. 26A at A-1.) In Morris v. Allstate Insurance Co., C.A. No. 82C-0C-23, Taylor, J. (July 10, 1984) (Del.Super.), the Delaware Superior Court noted that one of the objectives of section 3902(b) is:
      to give to those who carry liability coverage in excess of the minimum statutory amount the full opportunity to carry uninsured (and now underinsured) coverage in an equal amount. The duty which is imposed by statute is the duty to offer such insurance so that the insured can make an informed decision. [Citation]. An informed decision can be made only if all of the facts reasonably necessary for a person to be adequately informed to make a rational, knowledgeable and meaningful determination have been supplied. This test has been applied in determining whether an insurance option has been validly offered. [Citations]. One element which is essential to the exercise of meaningful choice is the cost of the coverage. [Citations].
      Slip Opinion at 3-4 (emphasis added). For the purposes of this motion, however, the question concerning the statutory requirements and the Customer News Bulletin issued by Allstate to Mr. Whaley on May 3, 1980, becomes irrelevant. The statute requires the insurer to offer additional uninsured motorist coverage for each new or replacement policy. Because this Court has already determined that the October 25, 1980 policy and the October 9, 1981 policy are new or replacement policies and that Allstate failed to offer additional coverage on these dates, the status of the May 3, 1980 bulletin becomes immaterial.


author: TELESCA, District Judge.

text:
    Susan WRAY, as President of the Student Association of the State University of New York, Inc., Jerome C. Dixon, J. Dean Rowlison, and Lauren Heller, on behalf of themselves and all persons similarly, situated, Plaintiffs, v. MONROE COUNTY BOARD OF ELECTIONS, Marguerite L. Toole, and V. James Chiavaroli, Individually and as Commissioners of the Monroe County Board of Elections, Defendants.
    No. CIV-84-1114T.
    United States District Court, W.D. New York.
    Oct. 18, 1984.

      Ronald H. Sinzheimer, Albany, N.Y., for plaintiffs.
    John D. Doyle, County Atty., Rochester, N.Y. (Christine E. Burke, Asst. County Atty., Rochester, N.Y., of counsel), for defendants.
   DECISION and ORDER

TELESCA, District Judge.

Plaintiffs seek a preliminary injunction restraining the defendants from requiring any additional documentation, verification, or hearing as to college students’ status as a resident of Monroe County “beyond that required of all other applicants unless the defendants have reasonable grounds [upon] which to base a belief that the individual applicant’s claim of residency is untrue”. The defendants oppose the motion claiming that they are obligated pursuant to Section 5-104 of the New York State Election Law to determine whether or not an individual is a bona fide resident.

The issue had been previously met and decided in Palla v. Suffolk County Board of Elections, 31 N.Y.2d 36, 334 N.Y.S.2d 860, 286 N.E.2d 247 (1972) which held that Section 150 of the Election Law was constitutional, holding in part “... the statutory scheme does not run afoul of recited constitutional strictures, but represents, at most, merely a permissible effort to insure that all applicants for the vote actually fulfill the traditional requirements of bona fide residence”. Palla, supra, p. 46, 334 N.Y. S.2d 860, 286 N.E.2d 247. In short, Palla held that no additional voter qualifications were imposed. “In its operation and effects therefore, the statute is entirely neutral and has always been construed as such; it disenfranchises no one, but merely determines the place where one may legally vote.” (emphasis added) Palla, supra, p. 48, 334 N.Y.S.2d 860, 286 N.E.2d 247.

What complicates the situation and what brings the parties to this Court with renewed vigor is the holding in Auerbach v. Kinley, 594 F.Supp. 1503 (Oct. 1984) (N.D.N.Y.), which held that Section 5-104 of the New York State Election Law and Article 2, Section 4 of the New York State Constitution are “unconstitutional on their face and as applied in that students are denied the fundamental right to vote in their college communities when the burden placed on their right to vote is unnecessary to the advancement of any compelling governmental interest”. I respectfully disagree with that conclusion and hold that the current state of the law is the principle announced in Palla.

Auerbach, in my view, incorrectly held that the conclusion reached by the New York State Court of Appeals in Palla created a presumption against student residency. Auerbach recognized that New York State had a right to ascertain whether applicants for registration to vote are bona fide residents, but that it must do so in a way that does not violate the applicant’s constitutional right to be treated on an equal basis with other citizens.

Auerbach further held that Section 5-104 “creates a rebuttable presumption that students are not residents of New York State”, based on its reading of Palla. On the contrary, as the Court of Appeals correctly observed in Palla, Section 5-104 creates “no presumption for or against student residency”. Palla, supra, 31 N.Y.2d p. 48, 334 N.Y.S.2d 860, 286 N.E.2d 247 (emphasis added). By its express terms, the statute provides that, for the purposes of voting and registration, no person shall be deemed to have gained or lost their residence by the mere fact of their presence or absence while a student of any institution of learning. The statute is thus quite unlike the one overturned in Bright 3court placed great reliance in Auerbach — since the Kentucky laws operated to create an affirmative presumption that all students intended to return to their parents’ or previous homes, until they could come forward with evidence to the contrary.

In the present ease, on the other hand, the New York Legislature has simply taken legislative notice of the undeniable fact that students — like servicemen, prisoners, seamen, and other transients — are often present in a county or state for reasons quite unrelated to any long-term plans to make some area their “home”. Consequently, the mere presence of such individuals in a certain place, without more, is not particularly probative evidence one way or the other as to whether they possess the requisite intention to make that place their legal “residence”. As the Court of Appeals noted, Section 5-104 only “requires that students along with other transients point to facts extrinsic of their residence at an institution in support of their declaration of domicile”, Id., 31 N.Y.2d p. 50, 334 N.Y.S.2d 860, 286 N.E.2d 247 (emphasis added) — not to overcome any presumption against their residence, but simply to furnish the evidence of intention which their presence alone does not indicate.

In actuality, therefore, plaintiffs in this case are not asking for relief from a statute which erects an impermissible presumption against them with respect to residence. On the contrary, they argue in effect that they should be granted a presumption which neither common sense nor the New York Legislature extends to them: namely, that their mere presence at college, without more, is adequate evidence of their intention to stay here for the foreseeable future, just as much as if they were any other resident of the community. The defendants’ practices may routinely extend that presumption to others who have apparently made their homes here, but the Constitution does not require the state to grant the same indulgence to those who have no logical claim to it. “The Constitution does not require things which are different in fact ... to be treated in law as though they were the same.” Tigner v. State of Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940).

The point is that by making inquiry into a student’s residence status as required by the law, no additional qualifications are being imposed upon him than any other voter. The only thing being inquired into is residence, i.e. residence in the sense of whether he or she has the intent to make his college residence his domicile. “By decisional law in this State, residence for the purpose of registration and voting imports not only an intention to reside at a fixed place, but also personal presence in that place coupled with conduct which bespeaks with such an intent.” Palla, supra, 31 N.Y.2d p. 47, 334 N.Y.S.2d 860, 286 N.E.2d 247.

I hold, as the court did in Palla, that Section 5-104 of the New York State Election Law and the inquiry made thereunder by the Commissioners of Election, is not an undue or unconstitutional burden upon an applicant. The defendants are charged with the responsibility to determine residence of the applicant which is an obligation placed on all applicants. College students are not, as they claim, singled out and discriminated against to the extent that an undue burden is placed on them which in effect disenfranchises them. They have two options: (1) to register and vote at their permanent home address, or (2) to register at their college address away from home if they satisfy the residency requirements imposed by Section 5-102 of the New York Election Law.

In making my decision, I have considered the students’ claim that attending a residency hearing at the Board of Election offices (some 20 miles from campus) imposes an undue burden upon them. It may well be that the scheduled times and location of the hearings is inconvenient, but these factors do not render this procedure constitutionally infirm. The papers before me indicate a willingness by the defendants to hold on-campus residency hearings. I would encourage (without requiring that they do so) the Monroe County Board of Elections to schedule on-campus hearings.

Accordingly, the plaintiffs motion for preliminary injunctive relief “enjoining the defendants from making inquiry to determine status of persons as students, non-students, dormitory residents, or non-dormitory residents at the College of Arts and Science at Brockport”, is denied.

ALL OF THE ABOVE IS SO ORDERED.

      . Election Law Section 150 was the predecessor to Section 5-104 which is challenged in this action. The statutory language passed upon by the New York Court of Appeals in Palla is identical to Section 5-104.

      . Plaintiff’s counsel apparently misread the significance of a line in which the Court of Appeals held that "in situations involving students, however, physical presence without moré' is deemed evidence "merely of an intention to reside temporarily in a particular district” (emphasis mine). A full reading of the entire opinion in Palla makes it unmistakable that the quoted language raises no presumptions against students asserting residence here, but simply acknowledges that their presence alone does not justify the inference that this is their intended legal domicile. The New York statute challenged here does not presume that students intend to stay here "merely” on a temporary basis, although it recognizes that no more than a temporary intention to remain can be necessarily presumed from the mere presence of a student here.