of improper performance. Because defendant has not adequately shown the reasons for the discharge, it has not sustained its burden necessary for the grant of summary judgment with respect to this issue.
II. Lack of Jurisdiction over Count II of plaintiff's complaint
Defendant also alleges that summary judgment should be granted in its favor with respect to Count II, plaintiff's claim under the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. Defendant notes that plaintiff filed his complaint with the PHRC on the 181st day after the alleged discriminatory act occurred, and therefore failed to timely file a complaint within 180 days of the alleged discriminatory act as required by the PHRA. 43 P.S. § 959(h) (Supp. 1993). As such, defendant argues that this Court does not have jurisdiction over this matter because plaintiff failed to exhaust his administrative remedies before filing a complaint with this Court.
Section 959(h) of the PHRA states "Any complaint filed pursuant to this section must be so filed within one hundred eighty days after the alleged act of discrimination, unless otherwise required by the Fair Housing Act." 43 P.S. § 959(h) (Supp. 1993). Further, the statute states that "the time limits for filing under any complaint or other pleading under this act shall be subject to waiver, estoppel and equitable tolling." 43 P.S. § 962(e) (Supp. 1993). Thus, even though plaintiff missed the 180 day deadline by filing his complaint on the 181st day, the clear language of the statute allows for equitable tolling.
Defendant argues that the statute does not permit equitable tolling, but rather, that the timely filing of a complaint is a jurisdictional requirement to bringing a civil action under the PHRA. Defendant relies on Vincent v. Fuller Co., 532 Pa. 969, 616 A.2d 969 (1992) and Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1989) to support its position. These cases are not applicable to this situation, however. In both Vincent and Clay, the courts were applying the pre-amended version of the statute which did not include the above language in section 962(e).
Thus, the courts did not even consider whether or not equitable tolling was permissible under the statute. Moreover, in Clay, the plaintiffs did not file a complaint with the PHRC at all before filing a complaint alleging sexual harassment and discrimination with the Court of Common Pleas of Bucks County. On that basis, the Supreme Court of Pennsylvania held that plaintiffs could not bring an action seeking judicial recourse because they had not availed themselves of the procedures set out in the PHRA, which initially gave the PHRC jurisdiction over these matters.
Unlike the plaintiffs in Clay, plaintiff in the present matter did file a complaint with PHRC, albeit untimely, before seeking judicial recourse in this Court. Thus, the only issue is whether or not equitable tolling should be permitted to apply in this case.
There are basically three reasons for allowing equitable tolling. First, it is allowed where the plaintiff actively pursues his judicial remedies but files a defective pleading during the statutory period, such as filing in the wrong forum. Irwin v. Veterans Admin., 111 S. Ct. 453, 457-58 (1990); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 753 (3rd Cir. 1983), cert. denied, 464 U.S. 852, 104 S. Ct. 164 (1983). Second, it is allowed where the deadline for filing has passed due to the plaintiff's reliance on his adversary's misconduct or misrepresentation. Irwin, 111 S. Ct. at 458; Kocian, 707 F.2d at 753. Finally, it is allowed where the plaintiff has been prevented from asserting his rights in some "extraordinary way." Kocian, 707 F.2d at 753. Courts generally disfavor equitable tolling where the plaintiff missed the deadline because of a lack of due diligence. Irwin, 111 S. Ct. at 458 (holding that where plaintiff filed Title VII complaint with district court late because his attorney was out of town when the E.E.O.C.'s right to sue letter was delivered to his office was not an adequate reason to justify equitable tolling).
Plaintiff states that he is entitled to equitable tolling because he made good faith efforts to file his complaint in a timely manner, but that the complaint was filed untimely due to the error and inefficiency of the PHRC. Plaintiff states that he originally went to the PHRC sometime in March 1991 after being fired on October 10, 1990. At that time, the PHRC told him to fill out a questionnaire, which would be incorporated into a formal complaint (or charge). The questionnaire was sent to plaintiff on April 1, 1991 and he was told to fill it out and return it to the PHRC within five days. Plaintiff filled out the questionnaire and gave it to the PHRC on April 6, 1991, which was the 178th day after he was fired. On April 9, 1991, plaintiff was requested by the PHRC to sign the formal charge, which was the 181st day after his firing.
Defendant urges that this case is similar to Kocian, where equitable tolling was not allowed. In Kocian, the plaintiff went to the E.E.O.C. to file a complaint of discrimination and began drafting a charge with the E.E.O.C. counselor. On the 178th day after plaintiff's discharge, the counselor called plaintiff to review the proposed charge and told her he would send it to her for signing. He did not send it to her until the 181st day, whereupon she took it to her lawyer and together they made corrections for over a week. After plaintiff sent the proposed charge back to the E.E.O.C. counselor, the counselor revised it and sent it to plaintiff for signing on the 201st day, which plaintiff returned on the 205th day. The plaintiff claimed that because the E.E.O.C. counselor sent her letters and the charges after the 180 day period of limitations had ended, she was misled into believing that the E.E.O.C. was applying the 300 day limitation period to her instead of the 180 day period.
The court rejected this argument, and stated that this was not a case of extraordinary circumstances which prevented plaintiff from filing the complaint, particularly because she admitted to knowing about the 180 day period before she went to the E.E.O.C. Moreover, the E.E.O.C. did not mislead her in any way. The court noted that after receiving the proposed charge the first time:
had Ms. Kocian simply signed and returned the charge to the E.E.O.C. without further delay, a different picture might have been presented. [Plaintiff] could have argued that the fact that the charge was several days past the 180 limit was more because of bureaucratic delay than because of her own neglect. Indeed she would have essentially completed all of her responsibilities in filing the charge, except for formally signing it, within 180 days.
Id. at 754.
Defendant is incorrect in its assertion that this case is similar to Kocian. Unlike the plaintiff in Kocian, plaintiff here made a good faith effort to file the charge within the 180 day time period. In effect, everything except signing the charge had been completed within that time period. Thus, plaintiff successfully asserts that there were extraordinary circumstances that prevented him from filing on time. In this case it was the bureaucratic delay of the PHRC which requested plaintiff to sign the charge on the 181st day. Plaintiff's failure to file was not the result of unexcusable neglect. As such, equitable tolling is justified in this case and this Court has jurisdiction because plaintiff has exhausted his administrative remedies. See also Nestor v. Quaker State Coca-Cola Bottling Co., 579 F. Supp. 289 (W.D. Pa. 1984) (plaintiff complied with administrative remedies even though PHRC dismissed plaintiff's complaint as untimely, therefore defendant's motion for summary judgment concerning court's lack of jurisdiction over claim arising under PHRA was rejected).
In conclusion, defendant's motions for summary judgment will be denied. First, Pennsylvania does recognize a cause of action for wrongful discharge with specific intent to harm, and defendant has not shown that no genuine issue of material fact exists entitling it to summary judgment on that claim. Second, this Court has jurisdiction over the claim arising under the PHRA because the doctrine of equitable tolling applies in this case, so that plaintiff was not time-barred for filing the complaint with the PHRC after the 180 day limitation. An appropriate order follows.
AND NOW, this 27th day of September, 1993, upon consideration of defendant's Motion for Summary Judgment on Count III of plaintiff's complaint, and defendant's Supplemental Motion for Summary Judgment on Count II of plaintiff's complaint, and all responses thereto, it is hereby ORDERED that both of defendant's motions are DENIED.
BY THE COURT:
J. Curtis Joyner, J.