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CLARKE v. WHITNEY

July 25, 1996

GEORGE H. CLARKE
v.
JANI B. WHITNEY and TRI-STAR PACKAGING, INC.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 JULY 25, 1996

 This action comes before us on the motion of Defendants Tri-Star Packaging, Inc. ("Tri-Star") and its principal shareholder, Jani B. Whitney, for summary judgment. In 1993, Plaintiff George H. Clarke was terminated from his position at Tri-Star, allegedly because of a heart attack he suffered earlier that year. Plaintiff claims that his discharge violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (1995) ("ADA"), and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§ 951-63 (1991 & Supp. 1994) ("PHRA"). In addition, Plaintiff claims that Defendant failed to pay his final wages in violation of the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. Ann. §§ 260.1-.45 (1992) ("PWPCL"). Defendant now moves for summary judgment pursuant to Fed. R. Civ. P. 56(c).

 Standard of Review

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 Discussion

 1. Americans with Disabilities Act

 Defendant seeks summary judgment on this claim on the ground that it is not an "employer" under the ADA. An ADA employer is:

 42 U.S.C. § 12111(5)(A) (emphasis added). It is uncontested that Defendant employed fewer than 25 total employees in both 1992 and 1993, the relevant years for this action. If the 25 employee minimum applies, then, Defendant is not an ADA employer, and therefore not liable under Plaintiff's ADA claim.

 Plaintiff, however, maintains that the relevant number for this action is 15, not 25, and claims that he can show that Defendant employed at least 15 employees in the requisite years. Plaintiff argues that because this action was filed after the number changed to 15, that this number should be used, even though the 25 employee limit was in place when the discrimination occurred.

 Plaintiff asserts that the employee minimum is merely remedial or procedural in nature, and that therefore, it may be applied retroactively. Clark v. Sears, Roebuck & Co., 827 F. Supp. 1216 (E.D. Pa. 1993); In re Gailey, Inc., 119 Bankr. 504 (Bankr. W.D. Pa. 1990). According to Plaintiff, the change does not affect Defendant's rights because Defendant had no right to discriminate against people with ...


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