478 Pa. 454, 387 A.2d 70, 73 (1978).
On May 5, 1983 we denied defendant's motion to dismiss Counts II and III, holding that we had pendant jurisdiction over both claims and that Count III stated a claim on which relief could be granted.
A. Count II
Defendant now moves, pursuant to Fed. R. Civ. P. 56, for summary judgment on Count II for three reasons, two of which were relied on at oral argument. Defendant first asserts that because plaintiff's action, when filed with the Pennsylvania Human Relations Commission, was dismissed on statute of limitations grounds, that plaintiff is now barred from judicially asserting his cause of action under the PHRA. Second, defendant argues that section 633(a) of the ADEA, 29 U.S.C. § 633(a), which provides that federal action under the ADEA shall supercede state action applied to bar both existing and potential causes of action based on state law. Defendant's third reason in support of summary judgment on Count II is that the plaintiff's claim under the PHRA seeks exemplary damages and a jury trial, and that since this relief extends beyond the scope of relief under the ADEA, the court should not exercise pendant jurisdiction to expand the scope of relief available to plaintiff under federal law.
On a motion for summary judgment, the court is required to ascertain the existence of any disputed issues of material fact by viewing the record in the light most favorable to the party opposing the motion. All inferences, doubts, and issues of credibility are resolved against the party moving for summary judgment. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Ely v. Hall's Motor Trans. Co., 590 F.2d 62, 66 (3d Cir. 1978).
We will first address defendant's argument that plaintiff is barred from proceeding judicially under the PHRA because the Commission dismissed the complaint as time-barred by the 90-day statute of limitations for filing with the Commission. 43 P.S. 959 (g). We first note that the language of the section relates only to the Commission and nowhere refers to a judicial statute of limitations under the Act. For several reasons, we hold that the 90-day statute of limitations governs Commission jurisdiction over alleged violations of the PHRA.
In Fye v. Central Transp., Inc., 487 Pa. 137, 409 A.2d 2 (1979), the Supreme Court of Pennsylvania held that the PHRA is not necessarily the exclusive remedy for violations set out by the Act, and that plaintiffs may have other common law remedies available to them. However, the Fye court held that once a complainant initiated one course of action, he could not seek relief under the other remedy. Id. at 140-41, 409 A.2d at 4. In Fye, plaintiff had filed a complaint with the PHRC, but had withdrawn the complaint, and was attempting to proceed judicially under the Act. In refusing to allow plaintiff to assert her rights judicially, the Supreme Court of Pennsylvania cited to and narrowly interpreted the language of section 962(c) of the PHRA. The Court stated,
Specifically, appellant argues that section 12(c) should be construed to permit recourse to the courts of common pleas under the facts of this case. Prior to 1974, a complainant invoking the procedure of this act was barred from seeking any other remedy for redress of the asserted grievance. And this rule was without exception. By the 1974 amendment to section 12, a narrow exception was carved in the rule of exclusivity. Section 12(c) provides that the rights of a complainant invoking the procedures under the PHRA shall not be foreclosed from resort to the courts "if within (1) year after filing 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, . . ." Here, appellant's file with the PHRC was closed at his request, therefore neither of the conditions provided by section 12(c) have been met.