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POWELL v. PENNSYLVANIA HOUS. FIN. AGENCY

March 4, 1983

JACK POWELL, Plaintiff
v.
PENNSYLVANIA HOUSING FINANCE AGENCY, Defendant



The opinion of the court was delivered by: RAMBO

 Jack Powell, the plaintiff, has filed an action alleging that the Pennsylvania Housing Finance Agency discriminated against him by rejecting his applications for employment because of his race, sex and religion. The discrimination is allegedly in violation of 42 U.S.C. §§ 1981, 1983, 42 U.S.C. § 2000e and the fourteenth amendment.

 On January 3, 1983, the defendant moved to strike the plaintiff's demand for a jury trial. A pretrial conference was held in this case on Friday, January 4, 1983. At the pretrial conference the issue of the jury demand was discussed, but was left unresolved pending the filing of the plaintiff's response to the defendant's motion. Local Rule 401.6 gives a party opposing a motion fifteen (15) days from service of the movant's brief to file a response. The plaintiff's time to file his response was up on or about January 21, 1983 (three days for service by mail plus fifteen days by the Local Rule). No response was filed by January 21, 1983. Technically, the defendant's motion to strike jury demand should be deemed as unopposed. Local Rule 401.6. On February 7, 1983, the plaintiff filed a document entitled "Brief in Support of Plaintiff's Request for Compensatory Damages, Punitive Damages, Trial by Jury." In part, this brief responded to the defendant's motion to strike the plaintiff's jury demand. Although the response is untimely this court will consider it in making a decision on the defendant's motion. Local Rule 103.

 The issue of whether the plaintiff is entitled to a jury trial will be resolved by determining whether the relief sought raises legal as opposed to equitable claims. If the plaintiff is seeking equitable relief only, then he is not entitled to a jury trial. Dairy Queen v. Wood, 369 U.S. 469, 477-78, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962).

 The plaintiff's claims under Title VII, 42 U.S.C. § 2000e et seq., are equitable in nature and do not raise a jury trial right. Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 375, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). The claim for instatement as an employee of the defendant is a form of injunction and therefore equitable. Gurmankin v. Costanzo, 626 F.2d 1115, 1120-21 (3d Cir. 1980). The request for fringe benefits and attorney's fees are also equitable. See Id.

 In the plaintiff's second amended complaint filed on August 18, 1981, he requested the following relief:

 
1. Back wages from June 1979 to present together with all fringe benefits due Plaintiff from that date;
 
2. Employment of Plaintiff as an Affirmative Action Officer;
 
4. Reasonable attorney's fees and all cost;
 
5. Any other and different relief which the Court may deem equitable, necessary or appropriate.

 The claims in 2 and 4 above are equitable and do not raise a right to a jury trial.

 The defendant argues that the claim for punitive damages is so insubstantial that the request for punitive damages should be stricken. The defendant cites to the case of Hildebrand v. Board of Trustees of Michigan State University, 607 F.2d 705 (6th Cir. 1979), in which the district court struck a punitive damage claim because it had become clear that no genuine issue of material fact existed and summary judgment should be granted in favor of the defendant. Id. at 710. Once the claim was stricken, then no legal issue remained and the jury demand was also deleted. Id.

 The Court of Appeals for the Sixth Circuit assumes that the district court was correct in determining that the damages were insubstantial. Id. at 709. It goes on to say that the plaintiff's right to control the question of whether a jury trial must be conducted does "not extend to a case where the actual or punitive damages counts are frivolous or clearly not meritorious." Id. The standard the Sixth Circuit adopted to determine whether a damages count was substantial or not was the one contained in Rule 56 of the Federal Rules of Civil Procedure. Id. at 710. *fn1" The Rule is, of course, that if no issues of ...


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