Sule, M. v. Echenberg, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELISSA SULE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT J. ECHENBERG M.D. - WOMEN'S
HEALTH, PELVIC PAIN AND SEXUAL
WELLNESS, P.C. AND ECHENBERG
INSTITUTE FOR PELVIC AND SEXUAL
PAIN, P.C. AND ROBERT J. ECHENBERG,
M.D.
Appellee No. 3035 EDA 2015
Appeal from the Order Entered September 17, 2015
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2014-C-3549
BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 22, 2016
Appellant Melissa Sule appeals from the order granting the summary
judgment motion filed by Appellees Robert J. Echenberg, M.D. – Women’s
Health, Pelvic Pain and Sexual Wellness, P.C. (“WHPPSW”), Echenberg
Institute for Pelvic and Sexual Pain, P.C. (“Echenberg Institute”), 1 and
Robert J. Echenberg, M.D. We affirm.
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1
Echenberg Institute was formed as a Pennsylvania Corporation after Ms.
Sule’s employment with WHPPSW ended. Answer and New Matter,
3/13/2015, at ¶ 10. Ms. Sule alleged Dr. Echenberg transferred all business
interests and assets of WHPPSW to Echenberg Institute and therefore
Echenberg Institute was a successor in interest to WHPPSW. Complaint,
filed 11/6/2014, at ¶ 14.
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Ms. Sule was a medical receptionist and/or office administrator for
WHPPSW. Complaint, filed 11/6/2014, at ¶¶ 20-22; Answer and New
Matter, filed 3/13/2015, at ¶¶ 20-22. She alleges that in January of 2013,
she was diagnosed with a medical condition that required her to take
medical leave for surgery and recovery. Id. at ¶¶ 23-25. She alleges she
informed Dr. Echenberg of the serious medical condition and required
medical leave. Id. Ms. Sule maintains that she contacted WHPPSW and Dr.
Echenberg on March 25, 2013 regarding the reasonable accommodations
she would require when she returned to work. Id. at ¶ 28. She alleges
WHPPSW and Dr. Echenberg terminated her employment at that time,
claiming they no longer needed her. Id. at ¶ 29.
In June of 2013, Ms. Sule had contact with the Pennsylvania Human
Relations Commission (“PHRC”), which resulted in an assigned claim number
of 201204579. In a letter dated June 7, 2013, Sheldon N. Murray of the
PHRC enclosed a complaint and informed Ms. Sule of the following:
[F]or the Commission to proceed with its investigation, you
must:
1. Review the complaint. If there are any errors in the
facts as stated, cross through the errors, write in the
corrections and put your initials beside the changes you
have made.
2. Sign the two signature pages and return them with the
Complaint within ten (10) working days of the letter.
If the complaint is not returned signed on or before June
21, 2013, I will assume that you no [sic] longer interested
in pursuing this matter, [then] your complaint will be
submitted for suspension of processing.
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However, if because of an emergency and/or reasons of
hardship, you are unable to return the complaint on or
before June 21, 2013, please contact me IMMEDIATELY,
and appropriate and/or reasonable allowances will be
made to return your complaint. If you have any questions,
please contact me.
Defendant’s Motion for Summary Judgment Filed Pursuant to Rule 1035.2 of
the Pennsylvania Rules of Civil Procedure, Exh. A (“June 7, 2013 Letter”).
Ms. Sule did not return a signed complaint or contact the PHRC following
receipt of this letter.
On August 5, 2013, Mr. Murray sent Ms. Sule another letter, which
stated:
The complaint[] I sent out for your review on June 7, 2013
has not been returned to me. If the complaint is not
returned signed on or before August 19, 2013, I will
assume that you’re no longer interested in pursuing this
matter, [then] your complaint will be submitted for
suspension of processing. However, if because of an
emergency and/or reasons of hardship, you are unable to
return the complaint on or before August 19, 2013, please
contact me IMMEDIATELY, and appropriate and/or
reasonable allowances will be made to return your
complaint. If you have any questions, please contact me.
Plaintiff’s Reply to Defendant’s Motion for Summary Judgment, Exh. B
(“August 5, 2013”). Ms. Sule also did not return a signed complaint or
contact the PHRC following receipt of this letter.
On October 17, 2013, Ms. Sule filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) asserting the same
claims of disability-based discrimination as were previously asserted in her
June 2013 PHRC claim. This EEOC charge was dually filed with the PHRC.
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On November 6, 2014, Ms. Sule filed a complaint in the court of
common pleas alleging violations of the Pennsylvania Human Relations Act,
43 P.S. § 952, et al., which, inter alia, prohibits discrimination based on a
person’s disability. On July 15, 2015, Appellees filed a motion for summary
judgment, alleging, inter alia, that Ms. Sule failed to file a timely complaint
with the PHRC and therefore failed to exhaust her administrative remedies
as required by the PHRA. Ms. Sule filed a response. On September 11,
2015, the trial court conducted a hearing. On September 17, 2015, the trial
court granted Appellees’ motion for summary judgment and dismissed
Appellant’s complaint. On September 28, 2015, Ms. Sule filed a timely
notice of appeal.
Ms. Sule raises the following issues on appeal:
Whether the [c]ourt of [c]ommon [p]leas erred in placing
the burden of proving that Appellant’s PHRC [c]omplaint
had not been dismissed by the PHRC before her EEOC
[c]harge was filed, in light of the [c]ourt’s finding that
Appellees had not met their initial burden to establish that
Appellant’s PHRC [c]omplaint was never dismissed by the
PHRC?
Whether the [c]ourt of [c]ommon [p]leas erred in holding
that Appellant’s EEOC [c]harge filed with the EEOC did not
relate back to the filing date of the timely filed PHRC
[c]omplaint and therefore, did not cure the defective
verification of the PHRC [c]omplaint?
Appellant’s Brief at 8. Ms. Sule’s issues are interrelated, and we will address
them together.
“[S]ummary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of material fact
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and that the moving party is entitled to judgment as a matter of law.”
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.2010) (quoting
Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221
(Pa.2002)). A “trial court must take all facts of record and reasonable
inferences therefrom in a light most favorable to the non-moving party” and
“must resolve all doubts as to the existence of a genuine issue of material
fact against the moving party.” Id. (citing Toy v. Metropolitan Life Ins.
Co., 928 A.2d 186, 195 (Pa.2007)). Therefore, a trial court “may only grant
summary judgment ‘where the right to such judgment is clear and free from
all doubt.’” Id. (quoting Toy, 928 A.2d at 195). This Court “may reverse a
grant of summary judgment if there has been an error of law or an abuse of
discretion.” Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926
A.2d 899, 902–03 (Pa.2007)).
Ms. Sule alleged Appellees violated the PHRA. A person cannot file a
cause of action alleging a violation of the PHRA in the court of common pleas
unless he or she first exhausts his or her administrative remedies. 43 P.S. §
962. If a complaint is filed with the PHRC or EEOC, but not resolved by the
PHRC or the EEOC within one year of the filing of the complaint, the
individual can file a complaint in the court of common pleas. 43 Pa.C.S. §
962(c).
The PHRA provides:
(a) The complaint shall be filed [with the PHRC] within 180
days from the occurrence of the alleged unlawful
discriminatory practice, but the computation of the 180
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days does not include a period of time which is excludable
as a result of waiver, estoppel or equitable tolling. If the
alleged unlawful discriminatory practice is of a continuing
nature, the date of the occurrence of the practice will be
deemed to be any date subsequent to the occurrence of
the practice up to and including the date upon which the
unlawful discriminatory practice shall have ceased.
...
(c) A complaint will be deemed filed on the date received
by the Commission.
(d) Complaints that are not verified or that do not
otherwise fully conform with a requirement of a complaint
before the Commission will be considered filed on the date
received by the Commission but may be quashed, as
justice may require, if the nonconformity is not remedied
by amendment or otherwise within a reasonable time. Prior
to the quashing of a complaint, the Commission will notify
the complainant, in writing, and will provide an opportunity
to explain why the complaint should not be quashed under
this section.
16 Pa.Code § 42.14.
The trial court found:
Here, Appellant argues that she has satisfied the
requirements of the PHRA by filing a [c]harge of
[d]iscrimination with the EEOC that was jointly filed with
the PHRC against WHPPSW and Dr. Echenberg on October
17, 2013, and that more than one year has elapsed since
the filing of the [c]harge with the EEOC. Appellees claim
that Appellant has failed to exhaust her administrative
remedies as the [c]harge of [d]iscrimination was filed
outside of the statutorily mandated 180 day time limit
from the date of the alleged discrimination and that she is
thus, “barred from seeking judicial relief on each count of
the [c]omplaint.” Appellant admits that October 17, 2013,
was outside of the 180 days, but argues that the filing date
of her [c]harge of [d]iscrimination should be considered to
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be June of 2013, when she filed an initial charge with the
PHRC, but failed to verify and return the [c]omplaint
mailed to her by the PHRC.[2] The PHRC initially gave
Appellant’s Claim the Number of 201204579. The October
17, 2013, filing received the EEOC Number of
530201400603 and the PHRC Number of 201400574. It is
unknown whether PHRC claim Number 201204579 was
dismissed.
...
Appellant argues that her initial charge was filed with the
PHRC in June of 2013, and that [] the October 17, 2013,
filing was simply a revised charge that was filed to correct
the defects of the initial charge, namely the lack of a
verification attached to the [c]omplaint. In order to
commence proceedings under the PHRA the complainant
must file “a verified complaint with the Commission. The
Commission will, thereafter, enter the complaint on its
official docket and serve the complaint by sending a copy
to each named respondent, within 30 days of the date of
the entry of the complaint on its docket.” 16 Pa. Code
§42.31 (emphasis added); see also Pa.C.S. § 959 (“Any
person claiming to be aggrieved by an alleged unlawful
discriminatory practice may make, sign and file with the
Commission a verified complaint, in writing . . .”). Further,
"[t]he filing of a Charge Questionnaire with the Equal
Opportunity Commission was not sufficient to constitute
the filing of a verified complaint with the Pennsylvania
Human Relations Commission.” Standard Pa. Pract. 2d §
166.869; Kellam v. Independence Charter Sch., 735
F. Supp. 2d 248, 254-55 (E.D. Pa. 2010) . . . . Federal
Courts have distinguished the filing date of the initial
questionnaire which would then be incorporated into a
formal complaint and the filing date of the formal verified
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2
“The complaint may be amended [at any time prior to the approval of a
hearing on the merits] to cure technical defects or omissions, to clarify or
amplify allegations made therein, or add material allegations which are
related to or grow out of the subject matter of the original complaint and
these amendments shall relate back to the original filing date of the
complaint.” 1925(a) Opinion, at 11 (quoting 16 Pa.Code 43.35).
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written complaint with the PHRC for purposes of the
statute of limitations. Altopiedi v. Memorex Telex
Corp., 834 F. Supp. 800, 806-07 (E.D.Pa.1993) (Permitting
a Complaint filed on the 181st day after Plaintiff was fired
when he had returned the questionnaire to the PHRC on
the 178th day after he was fired and it was the
bureaucratic delay of the PHRC which prevented him from
filing on time.).[3]
Here, Appellant never signed and returned the written
complaint regarding Case No. 201204579, mailed to her by
Sheldon N. Murray, Human Relations Specialist, from the
PHRC on June 7, 2013, in response to her initial interaction
with the PHRC. Appellant failed to sign and return the
written complaint regarding Case No. 201204579 even
after receiving a second August 5, 2013, letter from
Sheldon N. Murray. Thus, the PHRC had no complaint to
enter on its official docket, no complaint to serve on the
respondents, and no authority to begin its investigation
into Appellant’s claims. 16 P[.S.] §959. Without an
originally filed [c]omplaint, Appellant has nothing for her
October 17, 2013, filing to amend. 16 Pa. Code §
42.35(b)(“original filing date of the complaint.”).
Generally, if “the facts alleged by a plaintiff claiming
discrimination should reasonably have led the agency to
investigate a claim, he must not lose his day in court
because he stubs his toe on a procedural doorstep.”
Bailey [v. Storlazzi], 729 A.2d [1206,] 1217
[(Pa.Super.1999)]. Indeed, “under the principles of
‘equitable tolling,’ a claim filed beyond the 180-day time
limit may be permitted where the defendant misleads the
plaintiff regarding the cause of action; where extraordinary
circumstances prevent the plaintiff from asserting his
rights, and where a plaintiff has asserted his right in a
timely fashion, but in the wrong forum.” Uber v. Slippery
Rock Univ. of Pa., 887 A.2d 362, 366 (Pa.Cmwlth.2005).
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3
Decisions from the federal courts, other than the United States Supreme
Court, are not binding on this Court, but may be considered persuasive
authority. Stone Crushed Partnership v. Kassab Archbold Jackson &
O’Brien, 908 A.2d 875, 883 n.10 (Pa.2006).
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However, “[c]ourts generally disfavor equitable tolling
where the plaintiff missed the deadline because of a lack of
due diligence.” Altopiedi, 834 F. Supp. at 806, relying on
Irwin v. Veterans Affairs, 498 U.S. 89, 96 (1990).
Here, Appellant has not alleged any of the foregoing
exceptions. Instead, Appellant demonstrated a lack of due
diligence by twice ignoring the requests for her signature
on the [c]omplaint generated by the PHRC in response to
her initial charge. Appellant’s failure to file a written
verified complaint with the PHRC was not the result of
bureaucratic delay inside the PHRC in generating the
[c]omplaint, but rather was “the result of unexcusable
neglect” on the part of Appellant. Altopiedi, 834 F. Supp.
at 806. Without a properly verified complaint, the PHRC
could proceed no further with investigation or serving the
complaint on the appellees. 43 Pa.C.S.[] §959. Thus, the
[c]ourt granted [s]ummary [j]udgment favor of the
Appellees as the October 17, 2013, [c]harge of
[d]iscrimination with the EEOC was filed outside the 180
day[] statute of limitations for the PHRA claims.
Appellant’s claims are time-barred and the [c]ourt has no
jurisdiction because Appellant failed to exhaust her
administrative remedies.
Opinion, filed 12/10/2015, at 9-13 (“1925(a) Opinion”) (internal citations to
record omitted) (emphasis in original).4
The trial court did not abuse its discretion or commit an error of law.
Ms. Sule did not file a complaint with the PHRC, and did not respond to two
requests from the PHRC to do so. Without such a complaint, the PHRC could
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4
Ms. Sule maintains the trial court placed the burden of demonstrating the
original filing had been dismissed on her, which, she argues, was error.
Appellant’s Brief at 15-16. The trial court, however, found Ms. Sule failed to
file a complaint with the PHRC prior to the October 17, 2013 dual filing.
1925(a) Opinion at 14. The disposition of the PHRC case number assigned
in June, and any burden associated therewith, is irrelevant. Id. at 14.
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not investigate the matter or serve Appellees with the allegations, and there
was no prior filing with the PHRC to which the EEOC complaint could relate
back.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2016
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