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FARRELL AREA SCHOOL DISTRICT AND FARRELL AREA DAY CARE CENTER v. ROBERT D. DEIGER AND COMMONWEALTH PENNSYLVANIA (04/01/85)

decided: April 1, 1985.

FARRELL AREA SCHOOL DISTRICT AND FARRELL AREA DAY CARE CENTER, PETITIONER
v.
ROBERT D. DEIGER AND COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENTS



Appeal from the Order of the Pennsylvania Human Relations Commission in case of Robert D. Deiger v. Teeny Tot Day Care Center, et al., No. E-10182.

COUNSEL

Michael I. Levin, Cleckner and Fearen, for petitioners.

Michael L. Foreman, Assistant General Counsel, for respondents.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Williams, Jr. Concurring and Dissenting Opinion by Judge Doyle.

Author: Macphail

[ 88 Pa. Commw. Page 433]

Farrell Area School District and Farrell Area Day Care Center (Petitioners) appeal here from the opinion and order of the Pennsylvania Human Relations Commission dated July 5, 1983, which adopted the opinion, findings of fact and conclusions of law of the Hearing Commissioner who found that Petitioners had violated Section 5 of the Pennsylvania Human Relations Act (Act)*fn1 by discriminating against Robert D. Deiger (Complainant) by refusing to hire him.

The findings of fact, as adopted by the Commission, were that in December 1975, Complainant, a white male, applied for a position as teacher-director for Teeny Tot Day Care Center (Teeny Tot). At that time, Teeny Tot was a subcontractor day care program funded by the Pennsylvania Department of Public Welfare (DPW). The prime contractor was the Farrell Area School District.

Several other persons applied for the position of teacher-director including Patricia Woodbridge, a

[ 88 Pa. Commw. Page 434]

    black female. Ms. Woodbridge was hired as teacher-director on or about February 2, 1976.

Complainant met the basic requirements to qualify for the position of teacher-director. He had a college degree in elementary education with several courses in early childhood education. Complainant had previous experience working with preschool children, including a college course which required him to work one day per week in a day care center and a summer job at a day camp where he worked with five year old children.

Ms. Woodbridge had a college degree in art education. Teeny Tot contacted DPW to verify Ms. Woodbridge's qualifications for the position of teacher-director.*fn2 Ms. Woodbridge had prior experience working with young children at a family guidance center. Ms. Janis Rubeo, who interviewed Ms. Woodbridge for the teacher-director position, stated that she recommended Ms. Woodbridge because of Ms. Woodbridge's intelligence, self-assurance and familiarity with community social service resources. In addition, Teeny Tot stated that Ms. Woodbridge was hired instead of Complainant because of her prior experience working with parents in a supervisory capacity.

In 1978 Teeny Tot stopped providing day care services. Subsequently, the Farrell Area Day Care Center began providing day car services to an additional number of children equal to the number previously served by Teeny Tot. Day care services continued to be funded by DPW.

[ 88 Pa. Commw. Page 435]

Complainant filed a complaint before the Commission on or about March 11, 1976, alleging that Teeny Tot violated Section 5 of the Act by refusing to hire him as teacher-director on the basis of his race and sex. On March 30, 1981, the complaint was amended to add the present Petitioners as respondents. In finding that Petitioners had discriminated against Complainant, the Commission adopted the Hearing Commissioner's conclusion of law that successor liability could be imposed upon Petitioners because there was continuity of operation between Teeny Tot and Petitioners which was sufficient as a matter of law to operate as a consolidation or merger.

Petitioners raise several issues before us.*fn3 We will consider first whether the Commission erred in failing to dismiss the amended complaint filed March 30, 1981, on the basis of laches.*fn4 We hold that it did not. "The question of laches is factual and is determined by examining the circumstances of each case." Leedom v. Thomas, 473 ...


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