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ESPENSHADE v. PENNSYLVANIA STATE UNIV.

January 28, 1983

Donald Lee ESPENSHADE, Plaintiff,
v.
The PENNSYLVANIA STATE UNIVERSITY, et al., Defendants



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 Before us is the motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) filed on behalf of defendants Commonwealth of Pennsylvania and Homer C. Floyd, Executive Director of the Pennsylvania Human Relations Commission. For the reasons discussed hereinafter the motion is granted.

 I. Procedural History

 Plaintiff, proceeding pro se, filed the current action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.1 on August 18, 1982. Also named as defendants were Dauphin County Legal Service Association (DCLSA); Pennsylvania State University (PSU); John W. Oswald, University President; and Gaye W. Sheffler, formerly (or currently) on the office staff of sections within the Hershey Medical Center (PSU's medical school) located in Hershey, Pennsylvania. Following service, defendants Floyd and the Commonwealth filed their answer to the complaint on October 4, 1982, and defendants PSU, Oswald, and Sheffler answered on October 14, 1982. DCLSA filed a motion for a more definite statement, which motion was granted on November 24, 1982. Plaintiff complied with that order and provided the specific information DCLSA requested. DCLSA's answer was filed on December 10, 1982.

 In our order of November 23, 1982, pursuant to discussions at a pretrial/discovery conference held the previous day, we granted the Commonwealth (and implicitly Floyd) leave to file a motion for judgment on the pleadings prior to expiration of the discovery period. The motion and supporting brief were filed on December 17, 1982, and plaintiff has filed a timely opposing brief.

 II. Factual Background

 The main issue raised in plaintiff's complaint centers around his employment at PSU's "Capitol Campus," located in Middletown, Pennsylvania, where plaintiff had a part-time, fixed-term faculty appointment for the 1980 winter term. Plaintiff did not receive employment offers for the spring or fall terms of 1980 but did teach during the 1981 winter term. Plaintiff had been interviewed for a full time, one year appointment for the 1980-81 school year but was not the applicant selected. PSU has denied plaintiff's allegations that PSU indicated that plaintiff's age (forty-six) was influential in the hiring decision. PSU has also denied plaintiff's contention that a "much younger" man was hired. See complaint, para. 30, and PSU's answer.

 Plaintiff has also alleged that part of the reason for his problem is the retention and distribution of sham information in his university records dating to the late 1960's and/or early 1970's when plaintiff was a medical student at Hershey. This dispute seems to concern failing grades and is, of course, not within the ambit of the ADEA. At any rate, plaintiff filed complaints with the Pennsylvania Human Relations Commission (PHRC) in 1980 and 1981, and it appears that at least two of these complaints were assigned Equal Employment Opportunity Commission (EEOC) charge numbers. It is alleged that the PHRC complaints were all dismissed, after which the present action was filed.

 Plaintiff's original complaint and more definite statement contain allegations against DCLSA which, even if plaintiff could prove them, appear to be barred by the applicable statute of limitations. No contacts are alleged to have occurred with DCLSA after early 1973. See paras. 92 and 93 of plaintiff's more definite statement and DCLSA's answer to para. 93. Moreover, plaintiff's claim against DCLSA is unrelated to the ADEA claim and is actually a negligence or legal malpractice suit, arising out of DCLSA's representation of plaintiff during 1972 and 1973, when he allegedly had difficulties with the medical college in Hershey. At the present time, however, we are reserving final decision on the statute of limitations issue.

 III. The Claim Against Floyd

 Plaintiff's claims against defendant Floyd relate to his position as Executive Director of the PHRC. We observe initially that very little of plaintiff's complaint refers expressly or implicitly to this defendant, but plaintiff appears to complain that the PHRC complaints he filed in 1980 and 1981 were dismissed without face to face hearings being held at any time. Plaintiff cites no authority for his position, but we note that Section 9 of the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 959, provides that if the PHRC investigates and determines that "no probable cause exists for crediting the allegations of the complaint," the PHRC shall timely (within ten days) notify the complainant who then has ten days in which to file a written request for a preliminary hearing. Although the statute fails to indicate that not only a preliminary hearing request but also a request for reconsideration of the dismissal must be filed, the PHRC has adopted regulations to that effect at sub-chapter F, 16 Pa.Code § 42.62. A case considering these regulations, Carney v. Pennsylvania Human Relations Commission, 45 Pa. Commonwealth 10, 404 A.2d 760 (1979) held that a preliminary hearing was not required whenever requested. The court, however, concluded that prior to a final determination a full hearing with the opportunity to present evidence and for cross examination was required. Moreover, a complete record was to be made of this hearing and the testimony transcribed.

 Plaintiff's present arguments seem to be based on this case. However, he ignores the fact that section 10 of the PHRA, 43 P.S. § 960, was amended and deleted the portion of that section which led the Carney court to conclude that a hearing was necessary prior to a "no probable cause" determination. Plaintiff's cause of action arose after the amendment.

 Under the circumstances, plaintiff's claim against Floyd as Executive Director of the PHRC appears to be based solely on the failure to provide a hearing. As we have indicated, had plaintiff requested one, that request could be denied. Moreover, as section 12, 43 P.S. § 962(c), provides, claimants who follow the procedures set forth in ...


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