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decided: June 5, 1989.


Appeal from the Order of the Superior Court dated January 28, 1988 under No. 01212 Philadelphia 1986. Nix, C.j., and Larsen, Flaherty, Zappala, Papadakos and Stout, JJ. McDermott, J., did not participate in the consideration or decision of this case. Stout, Former J., did not participate in the decision of this case. Nix, C.j., files a concurring opinion. Zappala, J., joins the majority opinion and files a concurring opinion which is joined by Larsen, J.

Author: Flaherty

[ 522 Pa. Page 88]


This is an appeal by allowance from an en banc order of the Superior Court, 370 Pa. Super. 497, 536 A.2d 1375 (1988) which affirmed in part and reversed in part an order of the Court of Common Pleas of Bucks County which dismissed claims asserted by appellees, Jeffrey and Mary Clay, seeking damages for alleged wrongful discharges from employment with Advanced Computer Applications, Inc. The Superior Court reversed the trial court's ruling that subject matter jurisdiction was lacking with respect to a claim that appellees were terminated from employment under improper discriminatory circumstances.*fn1 The trial court had ruled that, because it was alleged that the firings were connected with sexual harassment and discrimination in the workplace, the Pennsylvania Human Relations Commission (hereinafter PHRC) had initial jurisdiction over the matter.

[ 522 Pa. Page 89]

The essence of appellees' allegation was that their at-will employment had been terminated, in November, 1984, because Mary Clay rebuffed sexual advances made by one of the employer's management level employees. Because appellees failed to seek redress for their grievances through the PHRC, the trial court held that they were barred from judicial recourse. We agree.

In reversing the trial court's action, the Superior Court held that the existence of administrative remedies available through the PHRC did not prevent appellees from seeking judicial remedies instead, based upon alleged common law rights. In so holding, it expressly overruled its recent decision in Householder v. Kensington Manufacturing Co., 360 Pa. Super. 290, 520 A.2d 461 (1987), appeal denied, 516 Pa. 629, 532 A.2d 1137 (1987), wherein it was held that, in order to assert a claim for wrongful discharge from employment which is cognizable under the Pennsylvania Human Relations Act (hereinafter PHRA), 43 P.S. § 951 et seq., an aggrieved party must utilize administrative remedies available through the PHRC before asserting a cause of action in court. The overruling of Householder was also contrary to Commonwealth Court decisions requiring exhaustion of PHRC administrative remedies prior to seeking judicial recourse. See, e.g., Carney v. Commonwealth, Pennsylvania Human Relations Commission, 45 Pa. Commw.Ct. 10, 17-18, 404 A.2d 760, 764 (1979). We believe the Householder decision was correct, and that the Superior Court erred in declining to follow it.

As stated in Householder, 360 Pa. Super. at 294, 520 A.2d at 464, the PHRA provides a statutory remedy that precludes assertion of a common law tort action for wrongful discharge based upon discrimination. It should be noted that, as a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would

[ 522 Pa. Page 90]

    threaten clear mandates of public policy. E.g., Reuther v. Fowler & Williams, Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978) (employee cannot be discharged for serving on a jury). Nevertheless, inasmuch as appellees failed to pursue their exclusive statutory remedy for sexual harassment and discrimination in the workplace, they are precluded from relief. This result is indicated by express provisions of the PHRA, as well as established judicial interpretations of legislative intent.

The PHRA provides that it is an unlawful practice for any employer to discharge from employment or otherwise discriminate against an employee on the basis of sex. 43 P.S. § 955(a). A right to a remedy for discrimination in employment is established by the PHRA, 43 P.S. § 953, where it is provided, "The opportunity for an individual to obtain employment for which he is qualified . . . without discrimination because of . . . sex . . . is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act." (Emphasis added). Thus, the PHRA both bestows a right to be free from discrimination based on sex, and prescribes procedures whereby the right "shall" be vindicated. The use by the legislature of the word "shall," as opposed to "may," expresses an intent to make administrative procedures under the PHRA a mandatory rather than discretionary means of enforcing the right created thereby. Clearly, too, the right in question is of purely statutory origin, for, as discussed supra, common law rights to be free from termination of at-will employment are not generally recognized, and we have never held that at-will employment terminations arising from sex discrimination are actionable at common law. In short, the remedy that should have been invoked by appellees was the one provided by the PHRA.

[ 522 Pa. Page 91]

Allowing a discharged employee to commence an action in the courts without first exhausting administrative remedies would be logically inconsistent with the legislature's having created the PHRC to function as an efficient mechanism for handling such disputes. In Pennsylvania Human Relations Page 91} Commission v. Alto-Reste Park Cemetery Association, 453 Pa. 124, 133-34, 306 A.2d 881, 887 (1973), this Court described the intent of the legislature regarding the PHRC:

[T]he Legislature recognized that only an administrative agency with broad remedial powers, exercising particular expertise, could cope effectively with the pervasive problem of unlawful discrimination. Accordingly, the Legislature vested in the Commission, quite properly, maximum flexibility to remedy and hopefully eradicate the "evils" of discrimination . . . .

We thus recognize that the expertise of the Commission in fashioning remedies is not to be lightly regarded.

The legislative intent that the PHRC would bring to bear particular expertise in handling discrimination cases was further noted in Commonwealth, Pennsylvania Human Relations Commission v. Feeser, 469 Pa. 173, 178, 364 A.2d 1324, 1326 (1976), where we stated, "The Legislature has chosen, in the PHRA, to charge an administrative agency with the jurisdiction initially to receive, investigate, conciliate, hear, and decide complaints alleging unlawful discrimination." (Footnote omitted). In Feeser, the inadvisability of having courts of common pleas decide discrimination cases was expressly noted, and this Court rejected an interpretation of the PHRA that would have allowed a scheme whereby the "court of common pleas, which has no experience handling PHRA complaints, would resolve the dispute, while PHRC, the agency created for this purpose by the Legislature, would be denied an opportunity to hear and decide the case." 469 Pa. at 179, 364 A.2d at 1327. We stressed that the "expertise" which the PHRC has and the courts of common pleas do not have in this area motivated the legislature to limit aggrieved parties from seeking remedies in the courts. Id. at n. 10. See also Fye v. Central Transportation Inc., 487 Pa. 137, 142, 409 A.2d 2, 5 (1979) ("It is clear from the legislation that the General Assembly was of the view that the procedures provided by the

[ 522 Pa. Page 92]

[PHRA] represented the most effective approach to the problem of ...

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