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Drexelbrook Associates v. Pennsylvania Human Relations Commission

June 27, 2012

DREXELBROOK ASSOCIATES, AND L. WILLIAM KAY, II, PETITIONERS
v.
PENNSYLVANIA HUMAN RELATIONS COMMISSION, RESPONDENT



The opinion of the court was delivered by: Anne E. Covey, Judge

: Argued: June 6, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

Drexelbrook Associates and L. William Kay, II (Kay) appeal the July 25, 2011 Final Order of the Pennsylvania Human Relations Commission (PHRC) requiring Drexelbrook Associates and Kay to cease and desist from retaliation against anyone having filed a discrimination claim and ordering various monetary damages in favor of In-grid Dotson Luderman (Dotson). There are essentially two issues before the Court: (1) whether Dotson timely filed her action against Drexelbrook Associates, and (2) whether Dotson timely filed her action against Kay. We affirm in part, and reverse in part.

Drexelbrook Associates is a Limited Partnership with approximately 80 partners. Drexelbrook Associates owns an apartment complex. Kay is Drexelbrook Associates' general partner. Drexelbrook Associates also owns LWK Corporation d/b/a Drexelbrook (Drexelbrook), a banquet and catering business. Kay is the

president of Drexelbrook. Drexelbrook rents space from Drexelbrook Associates for its banquet and catering business. Kay is the operating supervisor over the apartment complex and Drexelbrook. Drexelbrook Associates' offices are located at 4812 Drexelbrook Drive, a few hundred yards from Drexelbrook's catering facility.

In July 1995, Dotson became a tenant of Drexelbrook Associates' apartments. In November 2001, Dotson was hired to be a part-time bartender at Drexelbrook's banquet facility. Dotson left her employment with Drexelbrook in September 2002 and subsequently filed an Equal Employment Opportunity Commission (EEOC) sexual harassment claim against Drexelbrook. On January 9, 2006, the sexual harassment claim was settled during a settlement conference at which Dotson and Kay were both in attendance.*fn1 Approximately three months later, on April 19, 2006, Kay advised Dotson by letter that her lease was terminated effective June 24, 2006. By letter dated August 3, 2006, Dotson's attorney advised Drexelbrook that Kay's action of terminating the lease was considered a retaliatory action.

On October 16, 2006, Dotson filed a complaint with the PHRC alleging unlawful retaliation naming LWK Corporation d/b/a Drexelbrook, 4812 Drexelbrook Drive, Drexel Hill, PA 19026, and d/b/a Drexelbrook Caterers, and Drexelbrook Catering, Drexelbrook Drive and Valley Road, Drexel Hill, PA 19026, as

Respondents. On December 27, 2006, Dotson filed an amended complaint changing the name of Respondents to Drexelbrook Associates, Drexelbrook Apartments, & L. William Kay, II et. al. The amended complaint added a claim against Kay for aiding and abetting.

A hearing was held before a Permanent Hearing Examiner on April 11, 2011. During the hearing, Drexelbrook Associates and Kay renewed a motion they had filed previously, which was denied by the Motions Commissioner, concerning the naming of Drexelbrook Associates and Kay as Respondents outside the 180 day statute of limitations. On July 8, 2011, the Permanent Hearing Examiner recommended a finding that Drexelbrook Associates and Kay did unlawfully discriminate against Dotson by terminating her lease in retaliation for the sexual harassment claim. On July 25, 2011, the PHRC entered a Final Order adopting the Permanent Hearing Examiner's Recommendation. Drexelbrook Associates and Kay appealed to this Court.*fn2

Drexelbrook Associates and Kay argue that Dotson did not timely file her action against Drexelbrook Associates pursuant to Section 9(h) of the

Pennsylvania Human Relations Act (PHRA).*fn3 Drexelbrook Associates and Kay specifically contend that Dotson did not file her original complaint until the 180th day, and waited approximately 70 days thereafter before terminating her action against her employer and proceeding against her landlord, and its general partner, Kay.

Section 9(h) of the PHRA provides that "[a]ny complaint filed pursuant to this section must be so filed within one hundred eighty days after the alleged act of discrimination . . . ." This Court in Vintage Homes, Inc. v. Pennsylvania Human

Relations Commission, 581 A.2d 1014 (Pa. Cmwlth. 1990), held that "the act of permitting [a party] to amend her complaint with the [PHRC] for the purpose of correcting the corporate name of the respondent did not have the effect of enlarging the time limitations set forth in the [PHRA] . . . ." Id., 581 A.2d at 1017.

This Court cited the Pennsylvania Supreme Court in Vintage Homes, stating: "If the right party was in court as a result of the service of process and it was merely his or its designation which was sought to be changed, we would be prone to permit the amendment." Id., 581 A.2d at 1017 (quoting Saracina v. Cotoia, 417 Pa. 80, 84, 208 A.2d 764, 766 (1965)). The Court in Vintage Homes specifically concluded that "the right party was brought within the [PHRC's] jurisdiction by the original complaint, but under the wrong corporate designation" based upon the close relationship of the corporate entities. Id., 581 A.2d at 1017. Factors relied on by the Court included the fact that the initial complaint was served at the correct mailing address, and that the allegations made in both complaints were identical.

Here, although Dotson technically named her former employer in the original complaint, and her former landlord in the amended complaint, the cause of action was the same, i.e., retaliatory eviction from her residence, in both the complaint and the amended complaint. In addition, although Drexelbrook Associates, and Drexelbrook have two different addresses, Dotson used the address of the correct party in her original complaint, and the original complaint was served at the correct address. Moreover, the original complaint named LWK d/b/a Drexelbrook as a Respondent, and the amended complaint named Drexelbrook Associates as a Respondent. Finally, in both the complaint and the amended complaint Dotson referred to her employer and her landlord interchangeably as Respondent, indicating further that she believed they were both the same entity. See Certified Record (C.R.) at 4a, 4b. Accordingly, the facts herein show that the right party was brought before the PHRC but under the wrong corporate designation.

"The purpose of the pleadings is to place a defendant on notice of the claims that he will have to defend." Com. v. Percudani, 844 A.2d 35, 48 (Pa. Cmwlth. 2004). Clearly, Drexelbrook Associates was on notice. Drexelbrook Associates owns Drexelbrook, and Kay is both Drexelbrook Associates' general partner, and Drexelbrook's president. The same attorney represents Drexelbrook Associates, Drexelbrook, and Kay. Kay participated in the settlement of the sexual harassment suit, Kay signed the letter terminating Dotson's lease, and Dotson's attorney advised Drexelbrook that Kay's action of terminating the lease was considered an unlawful retaliatory action.

This Court notes that Drexelbrook Associates and Kay contend that Murphy v. Commonwealth, 506 Pa. 549, 486 A.2d 388 (1985) is controlling, as opposed to Vintage Homes. Specifically, Drexelbrook Associates and Kay cite Murphy for the proposition that notice is irrelevant to the determination of timeliness. However, the facts in Murphy are clearly distinguishable. In that case the original complaint was dismissed as a nullity for failure to state the particulars of the discriminatory practice. The Court specifically held:

Since the [original] complaint was defective, the [PHRC] was without jurisdiction to rule on the merits of this case until the properly pleaded 'Amended Complaint,' and thus we find no merit in appellant's tolling argument. Similarly we dismiss their contention that the second pleading corrected the first, since the 'Amended Complaint' could not properly be construed to convey ex post facto jurisdiction for a period beyond the statutory limit.

Murphy, 506 Pa. at 557, 486 A.2d at 392. In the instant case, the original complaint was not defective, thus giving the PHRC jurisdiction to hear the matter. The language in the complaint and the amended complaint both state a cause of action for retaliatory eviction. Although the complaint misstates the sections of the PHRA that ...


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