The opinion of the court was delivered by: LUONGO
The complaint reveals that plaintiff was employed by GAI as a claims adjuster from April 1970 until his discharge on August 23, 1976. Plaintiff was 55 years of age when his employment with GAI was terminated. He was replaced by a man 30 years of age. On November 17, 1976, within ninety days of the alleged discriminatory firing, plaintiff filed a complaint with the Pennsylvania Human Relations Commission (the Commission). One year elapsed and the Commission still had not dismissed or conciliated plaintiff's claim. The Commission, however, "annually notified the plaintiff of its continuing attempts to conciliate" his case. (Complaint para. 23). Finally, on February 19, 1982, plaintiff filed the instant complaint seeking (1) to enjoin GAI from further violations of the PHRA, (2) reinstatement, and (3) "damages." For the reasons hereinafter stated, I will deny GAI's motion to dismiss the complaint.
The PHRA makes it unlawful for an employer, except where "based upon a bona fide occupational qualification," to discriminate in employment on the basis of race, color, religious creed, ancestry, age, sex, national origin or any other non-job related handicap or disability. 43 P.S. § 955. The PHRA creates a private right of action, but before an aggrieved individual may seek relief in the courts, he must first resort to the administrative procedures set forth in the PHRA. Id. § 962(c). Specifically, the individual must file, within ninety days of the alleged discriminatory act or practice, a complaint with the Commission, id. § 959, which then has exclusive jurisdiction over the matter for a period of one year to investigate the charges and, if possible, conciliate the complainant's claim. Lukus v. Westinghouse Electric Corp., 276 Pa. Super. 232, 419 A.2d 431 (1980). Only after the one year period has elapsed may the aggrieved party seek relief in the courts:
If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act.
Webster did file an administrative complaint within ninety days of the alleged discriminatory firing as required by the PHRA, and he did refrain from filing this court action until after he was notified by the Commission that it had been unsuccessful in conciliating his claim. The problem is that plaintiff did not institute these legal proceedings until nearly five and one-half years after the date of his discharge. GAI contends that this delay bars the plaintiff from recovery under the applicable statute of limitations or the doctrine of laches.
GAI's contention that laches bars plaintiff's action can be disposed of readily. There are two elements to the defense of laches, inexcusable delay in instituting suit, and prejudice to the defendant. See In re Marushak's Estate, 488 Pa. 607, 413 A.2d 649 (1980). Whether plaintiff is guilty of laches is a factual question which can be determined only upon an examination of all the circumstances surrounding the case. See Mulholland v. Pittsburgh National Bank, 418 Pa. 96, 209 A.2d 857 (1965). Thus, as a general rule, the issue of laches is not properly decided on the basis of pleadings alone. See Muia v. Fazzini, 416 Pa. 377, 205 A.2d 856 (1965). Since laches is addressed primarily to the court's discretion, Anaconda Co. v. Metric Tool & Die Co., 485 F. Supp. 410 (E.D. Pa. 1980), it would be inappropriate to decide that issue on the present limited record.
GAI's contention that plaintiff's action is barred by the statute of limitations raises initially the question of the accrual date of plaintiff's cause of action. GAI contends that plaintiff's action accrued on August 23, 1976, the date of his discharge, or in the alternative, on November 17, 1977, one year after plaintiff filed his complaint with the Commission. Plaintiff, on the other hand, contends that his cause of action did not accrue until the fall of 1980, when the Commission last notified him that it was continuing its attempts to conciliate his case. Fortunately, I need not resolve this novel question of Pennsylvania law, for I conclude that a private cause of action under the PHRA is subject to the six-year limitations period set forth in 42 Pa. Cons. Stat. § 5527(6). Therefore, even assuming that plaintiff's action accrued on the earliest possible date, August 23, 1976, the action is timely under the six-year statute.
As discussed earlier, the PHRA sets forth with particularity the prerequisites to an individual's right to seek relief in the courts for a violation, but it does not provide a statute of limitations on the right of action. Accordingly, the applicable statute of limitations must be found in chapter 55 of title 42 of the Pennsylvania Consolidated Statutes. 42 Pa. Cons. Stat. § 5501(a).
GAI contends that the limitations period that applies to plaintiff's claim is supplied by 42 Pa. Cons. Stat. § 5524(2), which places a two-year limitation on actions "to recover for injuries to the person . . . ." Reasoning that plaintiff is seeking to enforce a personal right, the right to be free from discrimination, GAI argues that plaintiff's action is most closely akin to an action for personal injury. Moreover, GAI asserts that a two-year statute is sensible because it is consistent with (1) the two-year limitation applicable to suits under Pennsylvania's Equal Pay Act, 43 P.S. § 3365(b), and (2) Pennsylvania's policy of applying a relatively shorter statute of limitations to causes which are provable primarily by live testimony.
Webster disputes GAI's characterization of his age discrimination suit as an action to recover damages for injury to the person. He argues that his employment discrimination suit under the PHRA does not fall neatly within one of the categories for which a specific statute of limitations is prescribed, and that, therefore, his cause of action is subject to the six-year residual statute of limitations codified at 42 Pa. Cons. Stat. § 5527(6).
Although the Pennsylvania state courts have not addressed the issue, based upon Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978), and my recent decision in Clyde v. Thornburgh, 533 F. Supp. 279 (E.D. Pa. 1982), I hold that the six-year statute of limitations contained in 42 Pa. Cons. Stat. § 5527(6) applies to employment discrimination suits under the PHRA. In Davis, suit was brought under 42 U.S.C. § 1981 for discrimination in employment based on race. While the instant case is predicated on state law, Davis is nevertheless instructive because one of the issues there was which state law statute of limitations would apply if the plaintiff's § 1981 action had been brought under Pennsylvania law seeking similar relief. Thus, the Davis ...