Appeal from the Order of the Commonwealth Court, Entered on August 31, 1988 at No. 1830 C.D. 1988.
Elisabeth S. Shuster, Chief Counsel, Michael Hardiman, Asst. Chief Counsel, Pa. Human Relations Comm., Philadelphia, for appellant.
Harry S. Tischler, Asst. Gen. Counsel, School Dist. of Philadelphia, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Zappala, J., files an Opinion In Support of Affirmance joined by McDermott and Papadakos, JJ. Larsen, J., files an Opinion In Support of Reversal joined by Nix, C.j., and Flaherty, J.
[EDIT ] The court being equally divided, the decision of the Commonwealth Court is affirmed.
[EDIT ] OPINION IN SUPPORT OF AFFIRMANCE
I would affirm on the reasoning of the court below. As that reasoning was set out in an unpublished Memorandum Opinion, I will, at the risk of plagiarizing, paraphrase it here.
On or about July 1, 1986, the Human Relations Commission received a completed Commission questionnaire from Sandra Lewis alleging that the School District of Philadelphia had discriminated against her son because of his race, in that he had been subjected to racial slurs and had been disciplined more harshly than white students in his class. The questionnaire was dated May 14, 1986, and although no specific dates were given for the alleged discriminatory events, they could have occurred no later than May 8, 1986, when Tyrone Lewis transferred from the school. A complaint containing these same allegations, verified on November 13, 1986, was mailed to the Commission on November 24, 1986, and received a day later. It was also served on the School District on November 25, 1986.
The School District moved to dismiss the complaint as untimely filed. At the time, Section 9(g) of the Pennsylvania Human Relations Act, Act of December 27, 1965, P.L. 1225, as amended, 43 P.S. § 959(g), provided that "[a]ny complaint filed pursuant to this section must be so filed within ninety days after the alleged act of discrimination." A hearing officer denied the motion, citing 16 Pa.Code § 42.11(d), which provides that "complaints that do not fully conform with § 42.31 . . . will be considered filed on the date received by the Commission ...