Appeal from the Order of the Court of Common Pleas of Dauphin County, Civil Division at No. 4690 S 1987.
Robert S. Mirin, Harrisburg, for appellant.
Michael L. Solomon, Harrisburg, for appellee.
Rowley, Popovich and Johnson, JJ. Johnson, J., files a dissenting opinion.
[ 389 Pa. Super. Page 263]
This case involves an appeal by the plaintiff/appellant, Gerald A. Snyder, from the August 29, 1988, order*fn1 of the Court of Common Pleas of Dauphin County sustaining a preliminary objection raising a question of jurisdiction. We affirm in part and reverse in part.
Following the presentment of a praecipe for the issuance of a writ of summons and a rule to file a complaint by the plaintiff and the defendants,*fn2 respectively, a complaint was filed on January 11, 1988. Therein, it was alleged that the plaintiff applied for the position of executive director of the Pennsylvania Association of School Retirees (PASR) after reading about the opening in the PASR's summer newsletter for 1985.
The plaintiff was interviewed for the job in November of 1985, and, within a short time thereafter, was notified that he was not selected to fill the vacancy. It was the plaintiff's belief that the "age" of the prospective candidates (five males to one female) was among the "prime factors" considered by the PASR selection committee, and that PASR "arbitrarily designated sex-female" as a criterion for the job. As a result, on or about February 3, 1986, the plaintiff submitted a complaint to the Pennsylvania Human
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Relations Commission (PHRC) charging the defendants with age and sex discrimination.*fn3
Additionally, the plaintiff averred that during April of 1987, the PASR replaced its executive director without contacting him for the post, or without ascertaining his interest in and/or availability for the position. This, the plaintiff contended, constituted a continuing course of conduct premised upon his age and sex, and that such (in)action on the part of the PASR was in "retaliation" for the pursuit of his legal remedies before the PHRC and the federal Equal Employment Opportunity Commission (EEOC).*fn4 Such an allegation of "retaliation" was added to the plaintiff's PHRC complaint, as well as to his EEOC file in Philadelphia.
Thereafter, even though the charges had yet to be resolved, the plaintiff notified the PHRC and EEOC by letter that he was "inten[ding] to pursue th[e] matter through litigation in the state court system." See Complaint, paragraph 21.
Of interest to this Court is the averment in paragraph 22 of the complaint, wherein the plaintiff wrote that he "anticipate[d]" that the PHRC would close its file on the pending charges because of his "request" to do so. As such, averred the plaintiff, "[a]ll conditions precedent to the maintenance of th[e instant] litigation [in Common Pleas Court] have been satisfied." See Complaint, paragraph 23.
In response, the defendants filed preliminary objections raising, inter alia, the jurisdiction of Common Pleas Court
[ 389 Pa. Super. Page 265]
to entertain the suit. It did so on the basis that the PHRC was the exclusive means through which the plaintiff could seek to redress his claim(s), unless within one year of filing the complaint the PHRC dismissed it or had not entered into a conciliation agreement involving the plaintiff.
Specifically, the defendants asserted that Common Pleas Court lacked jurisdiction to hear the matter since the plaintiff's amended complaint (alleging "retaliation") had been issued October 20, 1987, and neither a year had elapsed therefrom nor had the amended complaint been the subject of a conciliation agreement. Further, the defendants argued that the exclusivity of the remedies and procedures of the Pennsylvania Human Relations Act*fn5 (PHRA) barred the plaintiff from proceeding in Common Pleas Court. The court below agreed, and, by order dated August 29, 1988, granted the defendants' preliminary objections raising a question of jurisdiction. Accordingly, the complaint was dismissed.
With the record, as reconstructed supra, before the court below, the order of August 29, 1988, was upheld*fn6 and a timely appeal was filed with this Court.
The central issue posited for our review, which hereinbefore has yet to be addressed on its merits by a Pennsylvania appellate court, is a very straightforward one. The question (as we distill the assertions of the appellant on appeal) is one of whether the PHRC's failure to act within
[ 389 Pa. Super. Page 266]
the statutorily created one year time limit for dealing with complaints filed with it (i.e., by either dismissal or conciliation) availed the complainant/Snyder the option to seek redress of his grievance(s) in another forum; precisely, Common Pleas Court?
Before deciding the merits of the issue posed, we need to discuss the method by which the "jurisdictional" question was resolved by the court below. On this exact point, we have had the occasion to comment upon the procedure to be followed in such a situation in Matter of D.L.S., 278 Pa. Super. 446, 448, 420 A.2d 625, 626 (1980), wherein we stated:
(Emphasis in original; citations omitted)
Instantly, as in Matter of D.L.S., the pleadings placed sufficient information before the court below for it to determine the subject matter jurisdiction issue.
Since the court below was provided with the essential facts to resolve the question of jurisdiction, and there being no dispute over these facts, the reception of further evidence was unnecessary, and the court properly disposed of the objections in a prompt manner as mandated by Pa.R.Civ.P. 1028(c).
Having dealt with the "procedural" context in which a decision on "jurisdiction" was decided by the court below, our inquiry now turns to the merits of the appellant's
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assault on the Common Pleas Court's subject matter jurisdiction over the matter in dispute.
Our inquiry commences with an examination of the relevant portions of the PHRA, which here consist of subsections (b) and (c); to-wit:
(b) Except as provided in subsection (c), nothing contained in this act shall be deemed to repeal or supercede any of the provisions of any existing or hereafter adopted municipal ordinance, municipal charter or of any law of this Commonwealth relating to discrimination because of race, color, religious creed, ancestry, age, sex, national origin or handicap or disability, but as to acts declared unlawful by section five of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil, or criminal, based on the same grievance of the complainant concerned. If such complainant institutes any action based on such grievance without resorting to the procedure provided in this act, he may not subsequently resort to the procedure herein. . . .
(c) In cases involving a claim of discrimination, if a complaint invokes the procedures set forth in this act, that individual's right of action in the courts of the Commonwealth shall not be foreclosed. If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act.
43 P.S. § 962(b) and (c) (Emphasis added).
All parties concerned, including the court below, rely on Fye v. Central Transportation, Inc., 487 Pa. 137, 409 A.2d 2 (1979), to support their respective, albeit contrary, positions. We ...