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decided: July 26, 1988.


Appeal from the Order of the Pennsylvania Human Relations Commission, in the case of Frank Lexie v. Commonwealth of Pennsylvania, Department of Labor & Industry, Office of Vocational Rehabilitation, Docket No. E-29999-A, dated January 6, 1987.


Richard C. Lengler, Assistant Counsel, with him, Sandra S. Christianson, Chief Counsel, for petitioner.

Sallie A. Rodgers, Assistant Chief Counsel, with her, Ellen K. Barry, Assistant Chief Counsel, and Elisabeth S. Shuster, Chief Counsel, for respondent, Pennsylvania Human Relations Commission.

Judges Doyle, Palladino and Smith, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 118 Pa. Commw. Page 164]

The Office of Vocational Rehabilitation (OVR) appeals the January 6, 1987 interlocutory order of the Human Relations Commission (HRC) denying OVR's motion to dismiss a discrimination complaint filed against it

[ 118 Pa. Commw. Page 165]

    by Frank Lexie (Complainant). This Court granted OVR's petition for review and permitted the instant appeal from HRC's interlocutory order pursuant to Section 702(b) of the Judicial Code, 42 Pa. C.S. § 702(b).*fn1 We reverse HRC's denial of the motion to dismiss, and order the matter transferred to OVR pursuant to 42 Pa. C.S. § 5103.

[ 118 Pa. Commw. Page 166]

Our scope of review in the case at bar is analogous to the review we would apply to a lower court's order overruling preliminary objections in the nature of a demurrer challenging subject matter jurisdiction. In such a case, our review is limited to a determination of whether or not the lower court abused its discretion or committed an error of law. Babjack v. Mt. Lebanon Parking Authority, 102 Pa. Commonwealth Ct. 499, 504 n.2, 518 A.2d 1311, 1313 n.2 (1986) (citing Pennsylvania Department Page 166} of Environmental Resources Appeal, 91 Pa. Commonwealth Ct. 381, 497 A.2d 284 (1985)). In order to make this evaluation, we must consider as true all well-pleaded material facts of the complaint and every inference reasonably deducible therefrom. Babjack; see also Martino v. Transport Workers' Union, 301 Pa. Superior Ct. 161, 447 A.2d 292 (1982), aff'd, 505 Pa. 391, 480 A.2d 242 (1984) (where the Superior Court accepted as true an appellee's averments of fact contained in his complaint in order to decide whether the lower tribunal had subject matter jurisdiction over appellee's complaint).

In the matter before us, Complainant, a disabled individual, avers that on or about May 14, 1984, he conferred with the foreman at the United Rehabilitation Workshop (Workshop), and he learned that part-time work was available in the carpentry shop. Complainant further avers that he spoke with a woman in the personnel department of the workshop concerning the part-time position, and she referred him to OVR. Complainant asserts that on or about May 29, 1987, he met with Mr. Nygren at OVR to inquire about the part-time carpentry job. Complainant contends that in the course of this initial contact, Mr. Nygren refused to give Complainant an application, and, further, that Mr. Nygren told Complainant that he could not refer him for work because Complainant was "too old," "disabled," and would be expected "to work eight hours a day." Complainant alleges that OVR refused to refer him for the position he sought because he is sixty-six years old and because he suffers from a non-job related disability, i.e. partial paralysis.

The sole question presented, therefore, is whether or not HRC has the proper subject matter jurisdiction over Complainant's complaint to adjudicate his allegations

[ 118 Pa. Commw. Page 167]

    of employment discrimination based upon age and physical disability.

Section 3 of the Pennsylvania Human Relations Act (Act)*fn2 establishes the right to be free from discrimination in employment as an enforceable civil right. Moreover, Section 4 of the Act, 43 P.S. § 954, sets forth the definitions which control how its provisions will be applied. Thus, our analysis of whether or not HRC has subject matter jurisdiction over an employment discrimination complaint, brought against OVR by an individual who alleges that OVR discriminatorily refused to refer him, must begin with an analysis of the definitions of "employee" and "employment agency" under Section 4 of the Act.

In its brief, HRC contends that OVR is subject to its jurisdiction as an employer of Complainant. We disagree. As the Act states:

The term 'employer' includes the Commonwealth or any political subdivision or board, department, commission or school district thereof and any person employing four persons or more within the Commonwealth, . . . .

[ 118 Pa. Commw. Page 168]

Section 4(b) of the Act, 43 P.S. § 954(b). Thus, OVR, as a Commonwealth agency, is an employer under Section 4(b) of the Act; it does not follow, however, that OVR was ever Complainant's employer. In the present case, Complainant never alleged that he sought employment with OVR and was denied a job because of his age or non-job related handicap. Rather, Complainant averred that OVR refused to refer him to a part-time position in a carpentry shop which was available and for which he was fully qualified. As this Court observed in Harmony Volunteer Fire Company and Relief Association v. Pennsylvania Page 168} Human Relations Commission, 73 Pa. Commonwealth Ct. 596, 459 A.2d 439 (1983), the Act fails to define "employment," and so a court faced with the question of whether or not an employment relationship was contemplated by the parties must look to the common law principles governing master-servant relationships. As the Harmony Court explained:

In a 1906 case, our Supreme Court discussed the standard which is still in effect. '"The relation of master and servant exists where the employer has the right to select the employee, the power to remove and discharge him, and the right to direct both what work shall be done, and the way and manner in which it shall be done."'

Id. at 601, 459 A.2d at 442 (quoting McColligan v. Pennsylvania Railroad Co., 214 Pa. 229, ...

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