Hoy v. Angelone

McEWEN, President Judge,

concurring.

After careful review of the entire transcript, I am unable to conclude that the trial court committed an abuse of discretion when it denied the motion for counsel fees filed by Mrs. Hoy. I, therefore, concur in the decision of the majority to affirm that order, but must depart from the rationale of my colleagues in the majority, since I do not view the fact that “Shop-Rite expended a substantial sum of money in defending this suit” as relevant to the question of the entitlement of Mrs. Hoy to counsel fees.

Rather, I am of the mind that where a violation of the PHRA has been found, counsel fees should, in most instances, be awarded to the prevailing plaintiff, but that where the question of violation was fairly debatable counsel fees should not be imposed.

Mrs. Hoy established a violation of the PHRA under the “hostile work environment” theory of harassment, establishing, by a preponderance of the evidence:

“1. That she suffered intentional discrimination because of her gender,

2. That the discrimination was regular and pervasive,

3. That the discrimination detrimentally affected her,

4. That the discrimination would detrimentally affect a reasonable person of the same gender in the same position, and

5. That Weis Markets knew or reasonably should have known that she was subjected to intentional discrimination because of her gender.”

Stewart v. Weis Markets, Inc., 890 F.Supp. 382, 389-390 (M.D.Pa.1995) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Andrews v. Philadelphia, 895 F.2d 1469, 1482 (3rd Cir.1990); and Drinkwater v. Union Carbide Corporation, 904 F.2d 853, 860 (3rd Cir.1990). While the evidence produced by Mrs. Hoy as to the knowledge of Shop-Rite was sufficient to withstand a motion for judgment n.o.v., the evidence was not overwhelming and did not establish a pattern or practice on the part of Shop-Rite.

Thus, the trial eourt, which weighed the evidence against the amount of the verdict returned against Shop-Rite could reasonably determine, in the exercise of its discretion¹, that an award of counsel fees was not warranted under the circumstances of this case. Thus, I concur in the decision of the majority which affirms that order.

1 . In light of the absence of any right to a jury trial under the PHRA, Murphy v. Cartex Corp., 377 Pa.Super. 181, 192-94, 546 A.2d 1217, 1223 (1988), and the express statutory direction that the trial court is to rule on any request for counsel fees, the verdict of the jury was simply another factor to be considered by the trial court in determining whether to award counsel fees to Mrs. Hoy.