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decided: July 22, 1982.


Appeal from the Order of the Pennsylvania Human Relations Commission in case of Barbara Jean Cadile v. Robertshaw Controls Company, Indiana Division, No. E-12008-P.


Martha Hartle Munsch, with her Tracey G. Benson, Reed, Smith, Shaw & McClay, for petitioner.

Ellen M. Doyle, Assistant General Counsel, with her Robert S. Mirin, General Counsel, for respondents.

President Judge Crumlish and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge Rogers.

Author: Rogers

[ 67 Pa. Commw. Page 614]

In April, 1977, Barbara Jean Cadile filed a complaint with the Pennsylvania Human Relations Commission (PHRC) alleging a violation of the Pennsylvania Human Relations Act*fn1 by Robertshaw Controls Company. Specifically, Ms. Cadile, a welder employed by Robertshaw at its Indiana, Pennsylvania plant, averred that Robertshaw had refused to authorize payment to her and others similarly situated for leave due to disability related to pregnancy and childbirth while granting to other employees payment for periods of disability related to causes other than pregnancy; and that this conduct violated Section 5(a) of the Act, 43 P.S. § 955(a) declaring it to be an unlawful discriminatory practice

For any employer because of the . . . sex . . . of any individual to . . . discriminate against such

[ 67 Pa. Commw. Page 615]

    individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment.

See Anderson v. Upper Bucks County Area Vocational Technical School, 30 Pa. Commonwealth Ct. 103, 110, 373 A.2d 126, 130 (1977) allocatur refused May 2, 1978.

On September 15, 1980, a subpoena duces tecum was issued by the PHRC requiring Robertshaw to assemble and produce certain documents including a description of the applicable employee benefit plan and certain employee personnel records assertedly relevant to the Cadile complaint. Robertshaw's objections to the subpoena were dismissed by the PHRC in two orders dated January 26, 1981 and April 6, 1981 and review of these orders is here sought by Robertshaw and addressed to the appellate jurisdiction of this court. At the same time, Robertshaw, invoking our original jurisdiction, filed a "Petition to Quash Subpoena Duces Tecum And To Enjoin Prosecution of PHRC Proceedings" which it asserts is in the nature of an application for the issuance of a writ of prohibition. The PHRC has filed an Answer, New Matter and a Counterclaim asking for enforcement of its subpoena. Robertshaw filed an Answer to the PHRC's New Matter and Counterclaim. Before us are the parties' cross-motions for summary judgment.

Robertshaw's principal contention is that the PHRC is without jurisdiction to act in the matter of the Cadile complaint; its jurisdiction having been preempted by the terms of Section 514 of the federal Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1144. See International Ladies Garment Workers Union v. Human Relations Commission, 53 Pa. Commonwealth Ct. 229, 417 A.2d 1279 (1980) (ILGWU). But see Lukus v. Westinghouse Electric Corporation, 276 Pa. Superior Ct. 232, 419 A.2d 431 (1980). Additionally, it is argued that certain

[ 67 Pa. Commw. Page 616]

    of the employee records required to be produced are irrelevant to the determination of any issue raised by the complaint.

On the issue of federal preemption, the PHRC argues that this Court ought to overrule ILGWU on the basis of the summary dispositions by the United States Supreme Court in two recent cases.*fn2 The PHRC also argues that Robertshaw's contentions on this score as well as its attack on the scope of the subpoena are premature and that the anticipatory nature of Robertshaw's request for relief compels our denial of the prayer of its petition in the nature of an application for a writ of prohibition. For the reasons that follow we agree with the PHRC that no relief can be granted to Robertshaw at this stage of the proceeding.

We first reject Robertshaw's attempt to now seek review of the PHRC's January 26, 1981, and April 6, 1981, orders dismissing the objections to the September 15, 1980 subpoena duces tecum. This Court's appellate jurisdiction with respect to government agencies of the Commonwealth is limited to final orders, 42 Pa. C.S. § 763(a), which class of orders has been defined as those "which end . . . the litigation, or alternatively dispose . . . of the entire case. . . . Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant 'out of court.'" T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 714, 724 (1977). See also, In Re: Alexander Estate, 414 Pa. 474, 200 A.2d 865 (1964); City of Philadelphia v. Belmont Fund, Inc., 56 Pa. Commonwealth Ct. 185, 424 A.2d 631 (1981); Widoff v. Pennsylvania Public Utility Commission, 42 Pa. Commonwealth Ct. 216, 400

[ 67 Pa. Commw. Page 617]

A.2d 676 (1979). Here there is no sense in which Robertshaw has been placed "out of court" by the PHRC's action or in which the litigation was thereby ended. Indeed, the dismissal by the PHRC of Robertshaw's objections to the subpoena was, in fact, intended to have just the oposite effect; that of compelling Robertshaw to provide materials necessary for the commencement of investigatory proceedings. Orders compelling compliance with a subpoena or refusing to quash a subpoena have consistently been held to be interlocutory and unappealable. In Re: Petition of Arlen Specter, 455 Pa. 518, 317 A.2d 286 (1974); Commonwealth v. Mellon National Bank and Trust Co., 360 Pa. 103, 61 A.2d 430 (1948); Fox v. Pa. Securities Commission, 17 Pa. Commonwealth Ct. 72, 328 A.2d 573 (1974). No greater finality is embodied in the orders here challenged. We therefore quash Robertshaw's appeal.

As we have indicated, Robertshaw also invokes our original jurisdiction and requests the issuance of a writ of prohibition enjoining the PHRC from further action with respect to the Cadile complaint. The nature and availability of the prerogative writ of prohibition was set forth in the leading case of Carpentertown Coal & Coke Company v. Laird, 360 Pa. 94, 102, 61 A.2d 426, 430 (1948):

[ 67 Pa. Commw. Page 618]

    writ of error, injunction, or otherwise: . . . As pointed out in [United States Alkali Export Association, Inc. v. United States, 325 U.S. 196, 203 (1944)], "appellate courts are reluctant to interfere with decisions of lower courts, even on jurisdictional questions, which they are competent to decide and which are reviewable in the regular course of appeal. . . . The [extraordinary] writs may not be used as a substitute for an authorized appeal." (Citations omitted.)

We agree with the PHRC that Robertshaw has failed to establish a necessity for the writ. A writ of prohibition will issue only in the clearest cases of action by an inferior tribunal in usurpation of its lawful jurisdiction. Carpentertown Coal & Coke Co. v. Laird, 360 Pa. at 100, 61 A.2d at 428. The PHRC's jurisdiction over the subject of the Cadile complaint is a matter concerning which the intermediate appellate courts of this Commonwealth have issued contradictory rulings and on which our Supreme Court has not yet spoken. We do not believe that this is such a clear case of unauthorized administrative action as will justify the extraordinary relief requested.

Moreover, in Troiani Brothers, Inc. v. Pennsylvania Public Utility Commission, 488 Pa. 386, 395, 412 A.2d 562, 567 (1980) it was held that a writ of prohibition could not issue at an early stage in the proceedings where the administrative "tribunal is merely considering the question of its jurisdiction to act." To the same effect the Court in Carpentertown Coal & Coke Company held that prohibition was unavailable where the action of the administrative tribunal did "not necessarily indicate that the . . . Commission itself may not on argument directed to it, ultimately conclude that it is without jurisdiction. . . ." Id. at 102, 61 A.2d at 430. In the instant case we are asked to prevent the acquisition by the PHRC of information

[ 67 Pa. Commw. Page 619]

    necessary to decide, inter alia, whether Robertshaw's jurisdictional objections are factually supported.*fn3 We decline to infer, as Robertshaw suggests, that the PHRC has already decided the jurisdictional issue after confirming by some means apart from receipt of the information sought by its subpoena, including a copy of Robertshaw's plan itself, that the Cadile complaint relates to a benefit plan governed exclusively by ERISA.

Should the PHRC, following its investigation, decide that it has jurisdiction in this matter and that Robertshaw has violated the Act, complete review of the jurisdictional issue may be obtained on appeal. We will not interfere by means of a writ of prohibition with the due course of administrative action where, as here, there is an adequate appellate remedy and no evidence of extreme necessity or irreparable harm.*fn4 Calantoni v. State Horse Racing Commission, 37 Pa. Commonwealth Ct. 520, 391 A.2d 36 (1978).

Finally, it is crystal clear that a writ of prohibition is unavailable to contest the jurisdictional validity of an administrative subpoena where, as in the case of the Human Relations Commission, the issuing agency

[ 67 Pa. Commw. Page 620]

    has no power itself to enforce compliance with the subpoena but must instead invoke enforcement proceedings in the Courts of Common Pleas or in this Court.*fn5 In Re: Reyes, 476 Pa. 59, 381 A.2d 865 (1977);

[ 67 Pa. Commw. Page 621]

Pennsylvania Crime Commission Subpoena, 453 Pa. 513, 309 A.2d 401 (1973). If enforcement is sought, Robertshaw offers no reason why the complex jurisdictional issues it here raises cannot be adequately adjudicated in the forum then provided.

The PHRC's motion for summary judgment is granted; Robertshaw's overruled. The writ of prohibition is refused.


And Now, this 22nd day of July, 1982, the Motion for Summary Judgment of Robertshaw Controls Company is overruled; the Motion for Summary Judgment of the Pennsylvania Human Relations Commission is hereby granted. Robertshaw's appeal from the Orders of the Pennsylvania Human Relations Commission dated January 26, 1981, and April 6, 1981, is quashed. The writ of prohibition sought by Robertshaw is refused. The counterclaim of the Pennsylvania Human Relations Commission is refused without prejudice to its right to commence or to continue enforcement proceedings as authorized by Section 7(g) of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 957(g).


Motion of defendant employer overruled. Motion of Commission for summary judgment granted. Writ of prohibition refused. Appeal quashed. Counterclaim dismissed without prejudice.

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