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PHYLLIS A. CARNEY v. COMMONWEALTH PENNSYLVANIA (08/09/79)

decided: August 9, 1979.

PHYLLIS A. CARNEY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, HOMER C. FLOYD, EXECUTIVE DIRECTOR, RESPONDENT



Original jurisdiction in case of Phyllis A. Carney v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, Homer C. Floyd, Executive Director.

COUNSEL

Mark L. Silon, with him Paul N. Sandler, for petitioner.

Benjamin G. Lipman, for respondent.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 45 Pa. Commw. Page 11]

Phyllis A. Carney has filed a petition for review in the nature of mandamus seeking an order compelling the Pennsylvania Human Relations Commission (PHRC): to reopen its investigation of charges of sex discrimination against her by her employer; to grant her a preliminary hearing before three or more Commissioners at which she would be accorded the right to present and cross-examine witnesses and offer evidence; and to pay to her reasonable counsel fees and costs in this proceeding. The PHRC has filed preliminary objections in the nature of a demurrer asserting that the petition was not timely filed and that the petition failed to state a cause of action for mandamus.

Preliminary objections in the nature of a demurrer admit all well pleaded facts and inferences deducible therefrom, but not conclusions of law. Independent Association of Pennsylvania Liquor Control Board Employees v. Commonwealth, 35 Pa. Commonwealth Ct. 133, 384 A.2d 1367 (1978).

[ 45 Pa. Commw. Page 12]

Ms. Carney alleges that she filed a complaint with the PHRC charging that her employment at Magee Memorial Hospital had been terminated solely because of her sex; that her rate of compensation while employed was lower than that of male employees with similar responsibilities; and that the hospital had not, as required by law, provided posted notice of rights guaranteed by the Pennsylvania Human Relations Act. Other allegations are that the PHRC notified her by letter that it had dismissed her complaint because after investigation it believed that no probable cause existed to support her charges; that she filed a request for reconsideration; that this request was granted and that a conference was held on July 29, 1976 attended by her, her counsel, counsel for PHRC and an employer representative; that at the conference no participants testified under oath, no other evidence was received and no record of the proceedings made; and that a week later she was notified by letter that the PHRC had again determined that no probable cause for her complaint existed and reaffirmed its action dismissing the complaint.

Section 9 of the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. ยง 959, provides pertinently:

Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the Commission a verified complaint, in writing. . . .

After the filing of any complaint, or whenever there is reason to believe that an unlawful discriminatory practice has been committed, the Commission shall make a prompt investigation in connection therewith.

If it shall be determined after such investigation that no probable cause exists for crediting the allegations of ...


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