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ALAN J. JENKS v. AVCO CORPORATION (03/29/85)

filed: March 29, 1985.

ALAN J. JENKS
v.
AVCO CORPORATION, APPELLANT. ALAN J. JENKS, APPELLANT, V. AVCO CORPORATION



No. 01436 Philadelphia 1983, No. 01982 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Lycoming County at No. 79-3474.

COUNSEL

Karl K. Baldys, Williamsport, for appellant (at 1982) and appellee (at 1436).

Charles J. McKelvey, Williamsport, and Francis J. Naphin, Williamsport, for appellant (at 1436) and appellee (at 1982).

Wieand, Del Sole and Popovich, JJ.

Author: Popovich

[ 340 Pa. Super. Page 545]

This case involves two appeals from an order of the Court of Common Pleas of Lycoming County dismissing the exceptions of both parties and entering a judgment absolute.

Alan J. Jenks, "Jenks", filed a complaint with the Pennsylvania Human Relations Commission, "HRC", alleging that Avco Corporation, "Avco", had unlawfully discriminated against him under the Pennsylvania Human Relations Act, "Act", by denying equal employment opportunities for the handicapped. Jenks suffers partial paralysis below his waist as a result of an automobile accident which occurred when Jenks was in high school. Within one year of the filing of the complaint before them, the HRC entered a certification conferring jurisdiction in the Court of Common Pleas. 43 P.S. § 962(c). Jenks then filed the instant action seeking that the Court order Avco to hire him, and award

[ 340 Pa. Super. Page 546]

    him inter alia seniority privileges, back pay, and counsel fees.*fn1

The issues of liability and damages were bifurcated, and, following a non-jury trial, the court found Jenks' handicap not to be job-related and held that Avco must accommodate Jenks by permitting him to use his own hydraulic cart while working. The judge ordered Avco to hire Jenks in either of two specific jobs, specifying Jenks would be subject to the time production requirements and general job discipline requirements applicable to all other employees. Following the litigation of the issue of damages, the trial court entered an award in favor of Jenks in the amount of $25,108.36 plus costs and 6% interest and stated Jenks should have job seniority and related benefits consistent with a hiring date of August 23, 1977.

Both Avco and Jenks have filed appeals in this court. Avco raises eight issues: (1) whether Jenks can function properly in either of the two jobs; (2) whether the handicap is a job-related handicap; (3) whether Jenks is the best able and most competent applicant; (4) whether the regulations of the HRC are in direct conflict with the express provisions of the Human Relations Act; (5) whether the court-ordered accommodation permitting Jenks to use a hydraulic cart violates the seniority provisions of Avco's Labor Agreement; (6) whether this same accommodation violates OSHA Standards; (7) whether Avco's refusal to hire Jenks was justifiable by a legitimate business necessity; and, (8) whether Avco is entitled to a set-off against the back pay wages for an amount equal to Jenks' earning potential. On the other hand, Jenks' appeal is concerned only with the amount of his award and he alleges the trial court erred in failing to award him: (1) counsel fees; (2) expert witness fees and costs; (3) damages for embarrassment and humiliation; and, (4) additional prejudgment interest. Jenks further

[ 340 Pa. Super. Page 547]

    contends the trial judge erred in applying the principle of ...


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