700 A.2d 996 (Pa.Super. 1997), Hull v. Rose, Schmidt, Hasley & DiSalle P.C.

Citation700 A.2d 996
Opinion JudgeThe opinion of the court was delivered by: Cirillo
Party NameJ. 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
AttorneyJames B. Lieber, Pittsburgh, for appellant.
Case DateSeptember 19, 1997
CourtSuperior Court of Pennsylvania

Page 996

700 A.2d 996 (Pa.Super. 1997)

J. 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.

Superior Court of Pennsylvania.

September 19, 1997

Argued April 9, 1997.

Page 997

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

Page 998

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

Page 999

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...

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19 practice notes
  • 795 A.2d 1025 (Pa.Super. 2002), Commonwealth v. Murphy
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • March 25, 2002
    ...according to rules of grammar and according to their common and approved usage [.]"); Hull v. Rose Schmidt, Hasley and Disalle, 700 A.2d 996, 999 (Pa.Super.1997) ("[S]tatutes are presumed to employ words in their popular and everyday sense and the popular meaning of such words mus......
  • 44 Pa. D. & C.4th 553 (Pa.Com.pl. 1999), 99-CV-738, Fasula v. Hijazi
    • United States
    • August 20, 1999
    ...presented by a demurrer." Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa.Super 1999); Hull v. Rose, Schmidt, Hasley & Disalle, 700 A.2d 996, 998-99 (Pa.Super 1997). A demurrer should be granted " only when, under the facts alleged, the law states with certainty that no recovery ......
  • A union of formalism and flexibility: allowing employers to set their own liability under federal employment discrimination laws.
    • United States
    • William and Mary Law Review Vol. 44 Nbr. 3, February 2003
    • February 1, 2003
    ...the Subject of Employment Discrimination Suits, 65 FLA. B.J., Feb. 1991, at 27, 28-29. (63.) Caruso, 664 F. Supp. at 148. (64.) 700 A.2d 996 (Pa. Super. Ct. 1997). (65.) 100 F.3d 436 (6th Cir. 1996), cert. denied, 520 U.S. 1248 (1997). (66.) Hull, 700 A.2d at 1000. (67.) See, e.g., Fountain......
  • Issues In Law Office Employment
    • United States
    • Mondaq United States
    • November 19, 2001
    ...partner in a law firm has no claim under the P.H.R.A. for unlawful discrimination. Hull v. Rose, Schmidt, Hasley & DiSalle, P.C., 700 A.2d 996 (Pa. Super. 1997). But see Wolk v. Unum Life Insurance Co. of America, F.3d, 1999 WL 437286 (3d Cir.), holding that an equity partner in a law f......
  • Request a trial to view additional results
17 cases
  • 795 A.2d 1025 (Pa.Super. 2002), Commonwealth v. Murphy
    • United States
    • Pennsylvania Superior Court of Pennsylvania
    • March 25, 2002
    ...according to rules of grammar and according to their common and approved usage [.]"); Hull v. Rose Schmidt, Hasley and Disalle, 700 A.2d 996, 999 (Pa.Super.1997) ("[S]tatutes are presumed to employ words in their popular and everyday sense and the popular meaning of such words mus......
  • 44 Pa. D. & C.4th 553 (Pa.Com.pl. 1999), 99-CV-738, Fasula v. Hijazi
    • United States
    • August 20, 1999
    ...presented by a demurrer." Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa.Super 1999); Hull v. Rose, Schmidt, Hasley & Disalle, 700 A.2d 996, 998-99 (Pa.Super 1997). A demurrer should be granted " only when, under the facts alleged, the law states with certainty that no recovery ......
  • Marks v. Marmer, 041105 PACP, 0926
    • United States
    • April 11, 2005
    ...will not be sustained unless the law says with certainty that no recovery is possible. Hull v. Rose, Schmidt, Hasley & DiSalle P.C., 700 A.2d 996, 998 (Pa. Super. 1997). All material facts set forth in the complaint, as well as inferences reasonably deducible therefrom, are admitted as ......
  • Reardon v. Allegheny College, 100406 PACP, GD05-10205
    • United States
    • October 4, 2006
    ...[I]f there is any doubt, it should be resolved by the overruling of the demurrer." Hull v. Rose, Schmidt, Hasley & DiSalle, P.C., 700 A.2d 996, 998-99 (Pa. S.Ct. 1997). III. Count 1 of Plaintiff's complaint asserts a claim for breach of contract as to Allegheny College for failing ......
  • Request a trial to view additional results
1 firm's commentaries
  • Issues In Law Office Employment
    • United States
    • Mondaq United States
    • November 19, 2001
    ...partner in a law firm has no claim under the P.H.R.A. for unlawful discrimination. Hull v. Rose, Schmidt, Hasley & DiSalle, P.C., 700 A.2d 996 (Pa. Super. 1997). But see Wolk v. Unum Life Insurance Co. of America, F.3d, 1999 WL 437286 (3d Cir.), holding that an equity partner in a law f......
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