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LEONA HOUSEHOLDER v. KENSINGTON MANUFACTURING COMPANY (01/20/87)

filed: January 20, 1987.

LEONA HOUSEHOLDER, APPELLANT,
v.
KENSINGTON MANUFACTURING COMPANY, APPELLEE



Appeal from the Judgment entered December 4, 1985 in the Court of Common Pleas of Westmoreland County, Civil No. 4609 of 1985.

COUNSEL

Lawrence R. Chaban, Washington, for appellant.

Sidney Zonn, Pittsburgh, for appellee.

Rowley, McEwen and Tamilia, JJ.

Author: Mcewen

[ 360 Pa. Super. Page 291]

This appeal has been taken from an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint which sought damages for the allegedly wrongful discharge of appellant, an at-will employee. Appellant argues that the trial court erred in holding that, under the facts alleged, her sole avenue of recourse was to proceed pursuant to the provisions of the Pennsylvania Human Relations Act (hereinafter "PHRA"), Act of October 27, 1955, P.L. 744, §§ 1 et seq., as amended, 43 P.S. §§ 951 et seq.

The standard of review which we apply when examining a challenge to an order sustaining preliminary objections in the nature of a demurrer is well-settled:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Mahoney v. Furches, 503 Pa. 60, 64-67, 468 A.2d 458, 461-462 (1983) quoting Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983). Accord: Kyle v. McNamara & Criste, 506 Pa. 631, 633, 487 A.2d 814, 815 (1985); Judge v. Allentown and Sacred Heart Hospital Center, 506 Pa. 636, 638, 487 A.2d 817, 818

[ 360 Pa. Super. Page 292]

(1985). See also: Baker v. Magnetic Analysis Corp., 347 Pa. Super. 188, 191, 500 A.2d 470, 472 (1985).

When so viewed, the averments contained in the complaint filed by appellant disclose that appellant was an at-will employee of appellee from September of 1975 until her discharge in March of 1984. Appellant was stricken with a severe asthma attack on October 14, 1982, which required hospitalization and prevented her return to work until November 8, 1982. Appellant was again hospitalized for asthma some fifteen months later, on February 7, 1984. When she returned to work, five weeks later, on March 12, 1984, she was informed that she was being discharged from her employment for the sake of her health.

Appellant could, of course, have sought redress under the Pennsylvania Human Relations Act which provides that it is an unlawful discriminatory practice for any employer to discharge from employment any individual because of his "non-job related handicap or disability". 43 P.S. § 955(a). A remedy for wrongful discharge is conferred by Section 953 of that Act when it states, in relevant part, that "[t]he opportunity for an individual to obtain employment for which he is qualified, . . . without discrimination because of . . . handicap or disability . . . [is] hereby recognized as and declared to be [a] civil [right] which shall be enforceable as set forth in this act. . . ." 43 P.S. § 953 (emphasis supplied).*fn1 Thus, the Act both bestows the right to be free from discrimination by reason of handicap or disability, and prescribes the procedures by which those rights shall be vindicated. Section 959 of the Act specifically states that a complaint alleging such discrimination may be filed with the Pennsylvania Human ...


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