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BEAVER CEMETERY AND JAMES I. WALLOVER v. COMMONWEALTH PENNSYLVANIA (06/30/87)

decided: June 30, 1987.

THE BEAVER CEMETERY AND JAMES I. WALLOVER, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Human Relations Commission, in case of Kathryn Berardi v. The Beaver Cemetery and James I. Wallover, Docket No. E-13152.

COUNSEL

Robert X. Medonis, for petitioners.

William R. Fewell, Jr., Assistant General Counsel, with him, Elisabeth S. Shuster, General Counsel, for respondent.

Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 107 Pa. Commw. Page 192]

The Beaver Cemetery (Cemetery) has appealed from the decision and order of the Pennsylvania Human Relations Commission (Commission) which adopted the recommendation of the Hearing Examiner who found that the Cemetery had discriminated against Kathryn Berardi (Berardi) on the basis of her sex by demoting her from the position of manager and replacing her with a male, in violation of Section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. ยง 955.

We must decide three issues: whether the complaint should have been dismissed on the grounds of laches, whether the Hearing Examiner committed an error of law in her allocation of the burden of proof and whether her findings are supported by substantial evidence.

The Cemetery is a non-profit, non-sectarian cemetery located in Beaver, Pennsylvania. It is directed by a Board of Managers, which appoints a manager to handle the day-to-day operations.

In 1968, the Board appointed Mr. Albaugh as manager. Berardi had been Albaugh's secretary at his previous position, and she accepted his offer to become the Cemetery's secretary. She served in this capacity from 1968 until Albaugh's death in 1970.

From 1970 to 1973, the Board of Managers took no action to replace Albaugh. His tasks were assumed by

[ 107 Pa. Commw. Page 193]

Berardi, however, and in 1973, the Board officially appointed her as manager, and increased her salary. In October of 1977, Berardi was replaced by Mr. Cornell as manager of the Cemetery. Although her salary was not decreased, Cornell's salary was higher.

Berardi filed a complaint with the Pennsylvania Human Relations Commission on November 17, 1977. Hearings were held in June 1985 before a Hearing Examiner, who determined that there was a violation of the Act. The Hearing Examiner's findings were adopted by the Commission, which entered its final ...


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