Hull v. Rose, Schmidt, Hasley & DiSalle P.C.

Citation700 A.2d 996
PartiesJ. Daniel HULL, Appellant, v. ROSE, SCHMIDT, HASLEY & DiSALLE P.C., and Raymond G. Hasley, Richard DiSalle, Samuel L. Douglass, Roger Curran, Edmund M. Carney, Brian W. Ashbaugh, Gail L. Gratton, Susan H. Malone, Carl Andrew McGhee, Keitherley D. Mulvihill, Steven M. Petrikis, Kim D. Eaton, James W. Barson, R. Stanley Mitchell, Raymond N. Baum, and Charles L. Potter, Jr., trading and doing business as Rose, Schmidt, Hasley & DiSalle, a general partnership.
Decision Date19 September 1997
CourtSuperior Court of Pennsylvania

James B. Lieber, Pittsburgh, for appellant.

Lori D. Mendicino, Pittsburgh, for appellees.

Before CIRILLO, President Judge Emeritus, JOHNSON, J., and CERCONE, President Judge Emeritus.

CIRILLO, President Judge Emeritus.

J. Daniel Hull appeals from an order entered in the Court of Common Pleas of Allegheny County sustaining Appellees' (the Partnership's) preliminary objections in the nature of a demurrer and dismissing Hull's complaint. We affirm.

According to Hull's complaint, in 1981 he began working as an associate attorney for Rose, Schmidt, Hasley & DiSalle in the law firm's Washington, D.C. office. Rose, Schmidt, Hasley & DiSalle was, at that time, a general partnership. 1 In May of 1986, while still an associate, Hull voluntarily entered a 28-day rehabilitation program for treatment of alcohol abuse. Hull disclosed his alcoholism to certain partners prior to attending the rehabilitation program and has been sober since his treatment. In 1988, while located in the Washington D.C. office, Hull accepted the Partnership's invitation to become a partner. Shortly thereafter, Hull relocated to the firm's Pittsburgh office.

On February 27, 1992, two senior partners asked Hull to withdraw from the firm based on the fact that Hull had "no ties to Pittsburgh" and the partners "perceived real friction [between Hull and] other partners." Hull refused to withdraw. On March 23, 1992, the partnership voted to expel Hull from the firm. 2 Hull alleges he later discovered that other partners had made disparaging comments about his alcoholism, and had stated that he was not acceptable to the firm because he was a recovering alcoholic.

Hull filed a complaint against the Partnership seeking to recover "wage and income loss, compensatory and punitive damages," as well as equitable relief under the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq., for unlawful discrimination on the basis of a "disability." In response to Hull's complaint, the Partnership filed preliminary objections in the nature of a demurrer. The basis for the Partnership's preliminary objections was that because Hull was a "partner" of the Partnership, he was an "employer" and not a covered "employee" under the PHRA. The PHRA provides only for an "employee" to bring an action against an "employer" who has engaged in unlawful discriminatory practices. It does not permit an "employer" to allege unlawful discriminatory practices. See 43 P.S. § 955 et seq. The trial court sustained the Partnership's preliminary objections and dismissed Hull's complaint with prejudice. This appeal followed. Hull raises the following issues for our consideration:

(1) Did the trial court err in sustaining defendants' preliminary objections in the nature of a demurrer and dismissing the complaint with prejudice when sections 954 and 955 of the PHRA do not say with certainty whether a partner in a law firm is an "employee" with standing to sue under the PHRA?

(2) Did the trial court act in a manner that was erroneous, arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law by dismissing the complaint without at least directing the parties to conduct discovery upon the issue of whether plaintiff was in fact treated as an "employee" for purposes of sections 954 and 955 of the PHRA? 3

(3) Did the trial court's order deny plaintiff equal protection of the laws in violation of the Fourteenth Amendment of the U.S. Constitution?

Our standard of review in an appeal from an order sustaining a preliminary objection in the nature of a demurrer is well-settled.

[O]ur scope of review is plenary[;] preliminary objections which result in the dismissal of the suit or the denial of the claim should be sustained only in cases which are clear and free from doubt. Further, the facts that are well-pleaded, material, and relevant will be considered as true, together with such reasonable inferences as may be drawn from such facts.

[Moreover,] preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by a demurrer. In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.

Drain v. Covenant Life Ins. Co., 454 Pa.Super. 143, 147, 685 A.2d 119, 121 (1996) (citations omitted); see Ham v. Sulek, 422 Pa.Super. 615, 620 A.2d 5 (1993) (question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible).

Hull first argues that the trial court erred in dismissing his complaint because the PHRA does not explicitly state whether a "partner" in a law firm is an "employer" or an "employee" as defined under the Act. He specifically claims that, on the facts averred, the PHRA does not say with certainty that a partner is not entitled to recovery. Drain, supra; Ham, supra. The PHRA defines "employer" as follows:

The term "employer" includes the Commonwealth or any political subdivision or board, department, commission or school district thereof and any person employing four or more persons within the Commonwealth, but except as hereinafter provided, does not include religious, fraternal, charitable or sectarian corporations or associations, except such corporations or associations supported, in whole or in part, by governmental appropriations. The term "employer" with respect to discriminatory practices based on race, color, age, sex, nation origin or non-job related handicap or disability includes religious, fraternal, charitable and sectarian cooperations and associations employing four or more persons within the Commonwealth.

43 P.S. § 954(b). "The term 'employee' does not include (1) any individual employed in agriculture or in the domestic service of any person, (2) any individuals who, as a part of their employment, reside in the personal residence of the employer, (3) any individual employed by said individual's parents, spouse or child." 43 P.S. § 954(c).

As these definitions reflect, the PHRA is silent on whether a partner in a law firm is considered an "employee" or an "employer." Furthermore, our research has uncovered no Pennsylvania case law interpreting the definitions of employer/employee in the context of a general partnership under the PHRA. As we begin our analysis, we bear in mind the objective of the PHRA, which is expressed in section 953 of the Act as follows: "It is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their ... disability ... and to safeguard their right to obtain and hold employment without such discrimination...." 43 P.S. § 952(b). Guided by this objective, we employ a statutory construction analysis in resolving Hull's first issue.

The PHRA must be construed liberally for accomplishment of the purposes thereof. Jenks v. Avco Corp., 340 Pa.Super. 542, 490 A.2d 912 (1985). See General Elec. Corp. v. Commonwealth Human Rel. Comm'n., 469 Pa. 292, 302, 365 A.2d 649, 654 (1976) (after setting forth the purpose of the PHRA, the court noted that it must "adopt a construction which, without doing violence to the language of the statute, best promotes the goal of equal employment opportunities.").

According to the Statutory Construction Act, when interpreting a statute, words and phrases in any legislation are to be construed "according to their common meaning and accepted usage." 1 Pa.C.S. § 1903(a); see Fireman's Fund Insurance Company v. Nationwide Mutual Insurance Company, 317 Pa.Super. 497, 464 A.2d 431 (1983). Further, "statutes are presumed to employ words in their popular and plain everyday sense and the popular meaning of such words must prevail[.]" Treaster v. Township of Union, 430 Pa. 223, 229, 242 A.2d 252, 255 (1968)(citing Harris-Walsh, Inc. v. Borough of Dickson City, 420 Pa. 259, 271, 216 A.2d 329, 335 (1966)).

Hull has averred in his complaint that he was offered an opportunity to be a partner in the general partnership of Rose, Schmidt, Hasley & DiSalle. He accepted this offer and became one of twenty-two partners in a large firm with offices located in two major cities, Pittsburgh and Washington D.C. As evidenced in his complaint, Hull shared in the firm's profits (e.g., Hull's draw of $5,500.00 per month was increased to $8,250.00 per month in February of 1990) paid capital into the firm, managed and controlled significant portions of the Partnership's client business, generated new business for the Partnership, helped to develop departments in the firm, acquired voting privileges and, it can be reasonably inferred, was liable for Partnership debt.

Considering the approved usage and plain meaning of the word "partner" in the context of the facts averred, we are persuaded that Hull's unique position, increased earnings, ownership status, and exposure to liability and change in management control, are qualities that are commonly associated and used in conjunction with the term "employer." Fireman's Fund Ins. Co., supra; Treaster, supra. Our decision to equate Hull's status as a general partner to that of an employer...

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