B. Novak v. Indiana University of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce Novak, :

:

Appellant :

:

v. : No. 1195 C.D. 2017

: Submitted: September 28, 2018

Indiana University of :

Pennsylvania :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK1 FILED: July 21, 2021

Bruce Novak (Novak), pro se, appeals from an order of the Court of

Common Pleas of Indiana County (trial court) sustaining Indiana University of

Pennsylvania’s (IUP) preliminary objections (POs) to Novak’s Second Revised

Complaint and dismissing the Second Revised Complaint with prejudice. For the

reasons that follow, we vacate and remand.

In February 2014, IUP2 notified Novak, an Assistant English Professor,

that it would not renew his 2014-2015 academic year employment contract, and that

1

This matter was reassigned to the author on April 16, 2019.

2

IUP is one of 14 state-owned universities operated by the Pennsylvania State System of

Higher Education (PASSHE). Section 2002-A of the Public School Code of 1949 (School Code),

(Footnote continued on next page…)

Novak’s employment would be terminated effective May 30, 2014. Two years later,

Novak initiated this action by filing a Complaint against IUP challenging his

termination. IUP filed POs asserting failure to effect proper service (Pa. R.C.P. No.

1028(a)(1)), insufficient specificity (Pa. R.C.P. No. 1028(a)(3)), and legal

insufficiency (Pa. R.C.P. No. 1028(a)(4) (demurrer)). In response, Novak withdrew

his original Complaint and filed a First Amended Complaint. IUP reasserted its

insufficient specificity and legal insufficiency POs and also objected on the basis

that Novak’s First Amended Complaint was time-barred by the statute of limitations.

The trial court sustained IUP’s insufficient specificity and legal insufficiency

objections and declined to address the statute of limitations objection stating there is

no statutory authority to sustain such an objection. The trial court afforded Novak

30 days to amend his complaint.

On January 20, 2017, Novak filed a 29-page, single-spaced Second

Revised Complaint, which reads more like a rambling dissertation than a concise

legal pleading (see Pa. R.C.P. No. 1019(a)), and is replete with references to movies

and fictional characters like It’s a Wonderful Life and Ebenezer Scrooge as well as

historical figures including Socrates, Jesus, Confucius, Buddha, Muhammad,

Cicero, Shakespeare, Emerson, Lincoln, Gandhi, Einstein, etc. As in his prior

complaints, Novak asserted that his termination was a violation of academic freedom

and, therefore, a violation of his constitutionally protected right to freedom of speech

guaranteed by the First Amendment to the United States Constitution, U.S. Const.

amend I. Novak alleged that IUP terminated his employment because IUP did not

Act of March 10, 1949, P.L. 30, as amended, added by the Act of November 12, 1982, P.L. 660,

24 P.S. §20-2002-A; see Pennsylvania State System of Higher Education v. Association of State

College and University Faculties, 142 A.3d 1023 (Pa. Cmwlth. 2016), appeal denied, 166 A.3d

1218 (Pa. 2017).

2

agree with his teaching style, which focused on the “Human Heart and Soul in

Courses in the Humanities and Liberal Studies.” Second Revised Complaint, ¶55.

According to Novak, IUP disliked his “‘personal approach’ to teaching classes in

‘liberal studies’ in the ‘humanities’ centering on the cultivation of unquantifiable

feelings, meanings, and purposes,” and the pursuit of happiness. Id., ¶¶16, 77. IUP

also disagreed with his assignment of grades and insisted that Novak needed to

“center on the production of hard ‘college-level work,’” rather than the “soft”

approach of “eliciting of personal heart and soul central to the humanities for

millennia.” Id., ¶¶54, 80 (emphasis omitted). He maintained that IUP’s decision not

to renew his employment constituted a violation of academic freedom of speech. Id.,

¶¶82, 83. IUP justified his removal based on his noncompliance with small

procedural negligence, namely failing to obtain a signature on a student teacher

form. Id., ¶¶71, 73, 76. Notably, Novak named IUP as the only defendant. Novak

requested the restoration of his employment and the award of monetary damages. In

response, IUP again reasserted its legal insufficiency and insufficient specificity

POs. Id., ¶97.

Following argument, the trial court sustained IUP’s legal insufficiency

demurrer and dismissed the Second Revised Complaint with prejudice. The trial

court accepted as true the few well-pleaded facts contained in the Second Revised

Complaint, namely that Novak was employed by IUP as an Assistant English

Professor and was terminated for exercising his “First Amendment [r]ight to

[a]cademic [f]reedom of [s]peech,” as well as any reasonable inferences deducible

therefrom. See Second Revised Complaint, ¶1. The trial court discerned a cause of

action pursuant to 42 U.S.C. §1983 (Section 1983), which is the manner by which

3

an aggrieved party challenges an act by an actor of a state or federal government for

violating the aggrieved party’s constitutional rights.

To sustain a Section 1983 claim, the trial court opined that the plaintiff

“must demonstrate a violation of a right protected by the Constitution or laws of the

United States that was committed by a person acting under the color of state law.”

Trial Court Op., 5/4/2017, at 5-6 (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d

Cir. 2000)). The trial court determined that IUP is not a “person” under Section

1983 because it is a state agency or instrumentality entitled to immunity under the

Eleventh Amendment.3 Trial Court Op., at 10 (citing federal precedent). On this

basis, the trial court sustained IUP’s demurrer for legal insufficiency and dismissed

Novak’s Second Revised Complaint with prejudice. In light of this disposition, the

trial court did not address IUP’s insufficient specificity objection.

Novak’s appeal to this Court followed.4, 5 Novak claims that the trial

court improperly dismissed his legal action because the Declaration of Independence

3

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI.

4

Novak initially filed his appeal with the Pennsylvania Superior Court, which transferred

the matter to this Court.

5

Our review of a trial court’s order sustaining POs and dismissing a complaint is limited

to determining whether the trial court abused its discretion or committed an error of law. Public

Advocate v. Brunwasser, 22 A.3d 261, 266 n.5 (Pa. Cmwlth. 2011). In reviewing POs, “we deem

all material facts averred in the complaint, and all reasonable inferences that can be drawn

therefrom, to be true.” Commonwealth by Shapiro v. Golden Gate National Senior Care LLC, 194

(Footnote continued on next page…)

4

is superior to the United States Constitution, and any subsequent law. He maintains

that, in his Second Revised Complaint, he “establish[ed] the right to [a]cademic

[f]reedom of [s]peech to teach centrally through humane principles and with humane

objectives in the fields of the Humanities and Liberal Arts.” Appellant Novak’s

Brief at 16 (emphasis omitted). He contends that the trial court erred when it

concluded that IUP is not a “person” subject to suit under Section 1983 and

dismissed his Second Revised Complaint.6

Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress[.]

A.3d 1010, 1022 (Pa. 2018). “The purpose of our inquiry is to determine the legal sufficiency of

the complaint and whether the pleading would permit recovery if ultimately proven.” Id. “When

sustaining the trial court’s ruling will result in the denial of claim or a dismissal of suit, [POs] will

be sustained only where the case is free and clear of doubt.” Id. (internal quotation and citation

omitted). “With regard to [POs] in the nature of demurrer, we consider ‘whether, on the facts

averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether

a demurrer should be sustained, this doubt should be resolved in favor of overruling it.’” Id.

(quoting Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005)).

“Such review raises a question of law as to which our standard of review is de novo and our scope

of review is plenary.” Public Advocate, 22 A.3d at 266 n.6 (internal quotation and citation

omitted).

6

Novak does not assert that he presented any other claims in his Second Revised

Complaint, focusing solely on whether the trial court erred in sustaining IUP’s PO on the basis

that his Section 1983 claim was legally insufficient. We also note that the trial court was under no

duty to scour Novak’s complaint to uncover any potential claims therein. Steiner v. Markel,

968 A.2d 1253, 1258 (Pa. 2009).

5

42 U.S.C. §1983. Section 1983 does not create substantive rights, but merely

provides a remedy for the violation of rights created under the federal constitution

or statutes. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); Wilson v.

Marrow, 917 A.2d 357, 362 n.4 (Pa. Cmwlth. 2007). Indeed, a plaintiff must

establish an underlying deprivation of a federal constitutional or statutory right. Id.

Novak claims that IUP violated his right to academic free speech arising

under the First Amendment to the United States Constitution by terminating him

from his teaching position. The Free Speech Clause of the First Amendment

provides, in pertinent part, “Congress shall make no law . . . abridging the freedom

of speech[.]” U.S. Const. amend. I. First Amendment claims are applicable to the

States by virtue of the Due Process Clause of the Fourteenth Amendment, U.S.

Const. amend. XIV. United Brotherhood of Carpenters and Joiners of America,

Local 610, AFL-CIO v. Scott, 463 U.S. 825, 831 (1983).

To determine whether a plaintiff has stated a cognizable cause of action

under Section 1983, we focus on two elements: “(1) whether the conduct

complained of was committed by a person acting under color of state law; and (2)

whether this conduct deprived a person of rights, privileges, or immunities secured

by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527,

535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986);

accord Flagg v. International Union, Security, Police, Fire Professionals of

America, Local 506, 146 A.3d 300, 305-06 (Pa. Cmwlth. 2016); Palmer v. Bartosh,

959 A.2d 508, 514 (Pa. Cmwlth. 2008).

In order to meet the first element of a Section 1983 action, the defendant

must qualify as a “person.” States are protected by the Eleventh Amendment and

are not “persons” under Section 1983. Will v. Michigan, 491 U.S. 58, 71 (1989);

6

Flagg, 146 A.3d at 307. However, not every government entity enjoys Eleventh

Amendment immunity. See Goldman v. Southeastern Pennsylvania Transportation

Authority, 57 A.3d 1154, 1173, 1175 (Pa. 2012) (citing Alden v. Maine, 527 U.S.

706, 756 (1999)) (immunity does not extend to counties, cities, municipal

corporations or other governmental entities that are not “arms of the state”). To

qualify for Eleventh Amendment immunity, the government agency or

instrumentality must be an “arm of the state.” Id.

The trial court, in determining that IUP was an arm of the state, relied

on federal precedent, which has consistently held that the Pennsylvania State System

of Higher Education (PASSHE) and its members are cloaked with Eleventh

Amendment immunity for Section 1983 purposes. See Bradley v. West Chester

University, 880 F.3d 643 (3d Cir. 2018); Skehan v. State System of Higher

Education, 815 F.2d 244, 247-49 (3d Cir. 1987) (holding that PASSHE was entitled

to Eleventh Amendment immunity); Toth v. California University of Pennsylvania,

844 F. Supp. 2d 611, 648 (W.D. Pa. 2012) (holding that one of PASSHE’s member

universities was entitled to Eleventh Amendment immunity from a Section 1983

suit); O’Hara v. Indiana University of Pennsylvania, 171 F. Supp. 2d 490, 495-98

(W.D. Pa. 2001) (holding that IUP enjoyed Eleventh Amendment immunity).

In Bradley, the Third Circuit Court of Appeals examined whether

PASSHE and West Chester University (WCU) are entitled to Eleventh Amendment

immunity. “Because of the ‘sweeping immunity from suit’ this Amendment

provides, and in order to ‘ensure that [the Amendment’s] reach does not extend

beyond proper bounds,’” the Court “developed a fact-intensive, three-step balancing

test to ascertain whether a [S]tate-affiliated entity is an arm of the State that falls

within the ambit of [that] Amendment.” 880 F.3d at 654 (internal quotation and

7

citation omitted). The Court then considered three factors, known as the Fitchik7

factors, when determining if a State-affiliated entity is an “arm of the State” entitled

to Eleventh Amendment immunity. Id. at 654. Those factors are: “(1) whether the

money that would pay any judgment would come from the state; (2) the status of the

agency under state law; and (3) the degree of autonomy possessed by the agency.”

Id. at 654-55. The Court ascribed equal weight to each of the factors. Id. at 655.

After applying the factors, the Court concluded that PASSHE and WCU were

entitled to Eleventh Amendment immunity. Id. at 660.

Although federal precedent specifically holds that PASSHE and its

universities are entitled to Eleventh Amendment immunity, this precedent, while

certainly persuasive and instructive, is not binding on this Court. See GGNSC

Clarion LP v. Kane, 131 A.3d 1062, 1069 n.15 (Pa. Cmwlth.), aff’d, 152 A.3d 983

(Pa. 2016) (“Generally, decisions of federal district courts and courts of appeals are

not binding on this Court, even where a federal question is involved, but they may

have persuasive value.”). Rather, this Court is constrained by the Pennsylvania

Supreme Court’s decisions and our own precedent.

The Courts of this Commonwealth have identified PASSHE and its

member universities as agencies or instrumentalities of the Commonwealth in some

circumstances. See Pennsylvania State University v. Derry Township School

District, 731 A.2d 1272, 1274 (Pa. 1999) (making distinction between PSU as “a

state-related institution of higher education” and the 14 universities of PASSHE that

“are owned and operated by the Commonwealth” and statutorily designated as

“government instrumentalit[ies]”); Bucks County Community College v. Bucks

County Board of Assessment Appeals, 608 A.2d 622, 624 (Pa. Cmwlth. 1992)

7

See Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989).

8

(recognizing for comparison purposes that PASSHE and its universities have

historically been considered agencies of the Commonwealth because they are

“owned and operated” by the Commonwealth). However, these decisions did not

determine whether PASSHE or its universities are “arms of the state” for Eleventh

Amendment immunity purposes.

In Goldman, the Pennsylvania Supreme Court considered the issue of

whether the Southeastern Pennsylvania Transportation Authority (SEPTA), a state-

created entity, was an “arm of the Commonwealth” within the meaning of the

Eleventh Amendment and entitled to immunity from negligence claims brought

under federal law. 57 A.3d at 1165. In reaching its determination, the Pennsylvania

Supreme Court reviewed United States Supreme Court jurisprudence and the Fitchik

factors and fashioned its own arm-of-the-state test for Eleventh Amendment

purposes. Id. at 1179. The Goldman test examined the various “‘indicators of

immunity’ as they relate to the organizational structure, powers, and obligations of

SEPTA under Pennsylvania law, in order to determine if, uniformly, they indicate

SEPTA was ‘structured . . . to enable it to enjoy the special constitutional protection

of the [Commonwealth.]’” Id. at 1179. These indicators include:

(1) the legal classification and description of SEPTA

within the governmental structure of Pennsylvania, both

statutorily and under our caselaw;

(2) the degree of control the Commonwealth exercises

over the SEPTA Board, both through the power of

appointment, and the power to subsequently veto its

actions;

(3) the power of the SEPTA Board to independently raise

revenue on its own;

9

(4) the degree of funding provided by the five counties

SEPTA serves relative to that provided by the

Commonwealth;

(5) whether any monetary obligation incurred by SEPTA

is binding on the Commonwealth; and

(6) whether the core function of SEPTA—providing

public transportation services—can be categorized as a

function which is normally performed by local

government or state government.

Id. The Court regarded each of these indicators “as being of equal importance.” Id.

However, the Court opined that, if these indicators of immunity did not all point

towards the same conclusion, then its determination would depend on whether

allowing a federal suit against a state-government entity would offend the dignity of

the Commonwealth, and, secondarily, whether the Commonwealth has any actual

legal liability for such suits. Id.

Applying this test to SEPTA, the Court reasoned that, although SEPTA

was statutorily classified by the legislature as an “agency” of the Commonwealth

and received a greater level of financial assistance from the Commonwealth than

from the counties in which it operates, it did not possess the other indicators of

immunity. Goldman, 57 A.3d 1179-81. Namely, the Commonwealth does not

exercise the necessary degree of control over SEPTA; SEPTA is empowered to raise

revenue on its own; and SEPTA may not legally bind the Commonwealth for any

debt or obligation. Id. As for whether transportation served a core function of state

government, the Court ruled that both state and local governments share

responsibilities in providing such services and that SEPTA’s provision of public

transportation services did not definitively point toward or away from a conclusion

that SEPTA is an arm of the state. Id. at 1181. The Court concluded that the test

10

was not dispositive because only a plurality of indicators pointed toward finding that

SEPTA is not immune. Id. at 1181-82.

Consequently, the Court turned its analysis to whether allowing SEPTA

to be sued under federal law would thwart the two principal purposes of the Eleventh

Amendment – dignity and solvency. Goldman, 57 A.3d at 1181-82. The Court

determined that allowing SEPTA to be sued under federal law would not pose a

threat to the Commonwealth’s dignity as a sovereign state because SEPTA is a

distinct legal entity with the power to sue and be sued in its own capacity. Id. at

1182. The Court also reasoned it would not pose a threat to the Commonwealth’s

solvency because the Commonwealth would not be legally liable for any judgment

rendered against SEPTA. Id. at 1184. Ultimately, the Court held that SEPTA was

not an arm of the Commonwealth and, therefore, not entitled to Eleventh

Amendment immunity. Id. at 1185.

Although Goldman did not involve PASSHE or its universities, the

Court addressed the critical question at hand – whether a governmental entity is

entitled to Eleventh Amendment immunity from federal claims in state courts. See

Kull v. Guisse, 81 A.3d 148, 160 (Pa. Cmwlth. 2013) (clarifying that “Goldman does

not address the Commonwealth’s sovereign right to determine whether, and to what

extent, it may be sued in its own courts on state law claims”). Thus, we believe this

test applies in determining IUP’s immunity status under the Eleventh Amendment

in a suit involving federal law in state court.

Here, the trial court dismissed Novak’s Section 1983 claims by relying

on Eleventh Amendment immunity under federal court jurisprudence without

conducting the Goldman test. Consequently, it is not clear whether or not IUP is a

“person” for Section 1983 purposes in this litigation or immune from liability under

11

controlling Pennsylvania Supreme Court precedent. Therefore, the trial court erred

by sustaining IUP’s PO on this basis.

Unfortunately, the trial court did not address the second prong

necessary to sustain a Section 1983 action, i.e., whether Novak has sufficiently stated

a claim that IUP’s conduct deprived Novak of “rights, privileges, or immunities

secured by the Constitution or laws of the United States,” Parratt, 451 U.S. at 535;

accord Flagg, 146 A.3d at 305-06, or IUP’s insufficient specificity PO.8 Because

the trial court has not provided this Court with an alternate basis upon which to

affirm its order sustaining the POs, we are constrained to vacate and remand the

matter to the trial court for further analysis in accordance with the foregoing opinion.

8

To survive this objection, Novak’s Second Revised Complaint must meet the specificity

requirements of Rule 1019 of the Pennsylvania Rules of Civil Procedure. As our Supreme Court

has explained:

Rule 1019(a) provides that in pleadings, “[t]he material facts on

which a cause of action or defense is based shall be stated in a

concise and summary form[.]” Pa. R.C.P. [No.] 1019(a). Rule

1019(b) requires that “[a]verments of fraud or mistake shall be

averred with particularity. Malice, intent, knowledge, and other

conditions of mind may be averred generally.” Pa. R.C.P. [No.]

1019(b). The purpose of these rules is to require the pleader to

disclose material facts sufficient to notify the adverse party of the

claims it will have to defend against.

Golden Gate, 194 A.3d at 1029 (citations omitted). Indeed, “[t]he pleadings must adequately

explain the nature of the claim to the opposing party so as to permit him to prepare a defense and

they must be sufficient to convince the court that the averments are not merely subterfuge.” Id.

(internal quotation and citation omitted).

This Court has held that a failure to adequately plead a claim “can, and typically does,

result in the dismissal of the claim and/or cause of action.” Brimmeier v. Pennsylvania Turnpike

Commission, 147 A.3d 954, 967 (Pa. Cmwlth. 2016), aff’d, 161 A.3d 253 (Pa. 2017) (quoting

Allen v. State Civil Service Commission, 992 A.2d 924, 927 (Pa. Cmwlth. 2010)).

12

MICHAEL H. WOJCIK, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bruce Novak, :

:

Appellant :

:

v. : No. 1195 C.D. 2017

:

Indiana University of :

Pennsylvania :

ORDER

AND NOW, this 21st day of July, 2021, the order of the Court of

Common Pleas of Indiana County, dated May 4, 2017, is VACATED, and this

matter is REMANDED for proceedings in accordance with the foregoing opinion.

Jurisdiction relinquished.

__________________________________

MICHAEL H. WOJCIK, Judge