Carney v. Com., Pennsylvania Human Relations Commission

• Citation: 45 Pa.Cmwlth. 10,404 A.2d 760
• Parties: Phyllis A. CARNEY, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS COMMISSION, Homer C. Floyd, Executive Director, Respondent.
• Decision Date: 09 August 1979
• Court: Pennsylvania Commonwealth Court

404 A.2d 760

45 Pa.Cmwlth. 10

Phyllis A. CARNEY, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA HUMAN RELATIONS

COMMISSION, Homer C. Floyd, Executive Director, Respondent.

Commonwealth Court of Pennsylvania.

August 9, 1979

Argued June 4, 1979.

Paul N. Sandler, Mark L. Silow, Hovsepian &amp Sandler, Philadelphia, for petitioner.

Benjamin G. Lipman, Asst. Gen. Counsel, Philadelphia, for respondent.

Before WILKINSON, ROGERS and MacPHAIL, JJ.

OPINION

ROGERS Judge.

Phyllis A Carney has filed a petition for review in the nature of mandamus seeking an order compelling the Pennsylvania Human Relations Commission (PHRC): to reopen its investigation of charges of sex discrimination against her by her employer; to grant her a preliminary hearing before three or more Commissioners at which she would be accorded the right to present and cross-examine witnesses and offer evidence; and to pay to her reasonable counsel fees and costs in this proceeding. The PHRC has filed preliminary objections in the nature of a demurrer asserting that the petition was not timely filed and that the petition failed to state a cause of action for mandamus.

Preliminary objections in the nature of a demurrer admit all well pleaded facts and inferences deducible therefrom, but not conclusions of law. Independent Association of Pennsylvania Liquor Control Board Employees v. Commonwealth, 35 Pa.Cmwlth. 133, 384 A.2d 1367 (1978).

Ms. Carney alleges that she filed a complaint with the PHRC charging that her employment at Magee Memorial Hospital had been terminated solely because of her sex; that her rate of compensation while employed was lower than that of male employees with similar responsibilities; and that the hospital had not, as required by law, provided posted notice of rights guaranteed by the Pennsylvania Human Relations Act. Other allegations are that the PHRC notified her by letter that it had dismissed her complaint because after investigation it believed that no probable cause existed to support her charges; that she filed a request for reconsideration; that this request was granted and that a conference was held on July 29, 1976 attended by her, her counsel, counsel for PHRC and an employer representative; that at the conference no participants testified under oath, no other evidence was received and no record of the proceedings made; and that a week later she was notified by letter that the PHRC had again determined that no probable cause for her complaint existed and reaffirmed its action dismissing the complaint.

Section 9 of the Pennsylvania Human Relations Act (PHRA), Act of October 27, 1955, P.L. 744, As amended, 43 P.S. § 959, provides pertinently:

"Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the Commission a verified complaint, in writing . . ..

After the filing of any complaint, or whenever there is reason to believe that an unlawful discriminatory practice has been committed, the Commission shall make a prompt investigation in connection therewith.

If it shall be determined after such investigation that no probable cause exists for crediting the allegations of the complaint, the Commission shall, within ten days from such determination, cause to be issued and served upon the complainant written notice of such determination, and the said complainant or his attorney may, within ten days after such service, file with the Commission a written request for a preliminary hearing before the Commission to determine probable cause for crediting the allegations of the complaint. . . .

The Commission shall establish rules or practice to govern, expedite and effectuate the foregoing procedure and its own actions thereunder. Three or more members of the Commission shall constitute the Commission for any hearing required to be held by the Commission under this act . . ."

PHRC has adopted regulations under Section 9 to be found at Subchapter F, 16 Pa.Code §§ 42.61, 42.62 and 42.63. These, pertinent to this case are the following:

"42.62. Request for reconsideration of dismissal.

(a) If the complaint is dismissed, the complainant may request reconsideration of the dismissal of the complaint.

(b) The request for reconsideration of the dismissal of a complaint may be made only once for each ground of dismissal.

(c) A request for reconsideration of dismissal shall be in writing, shall state specifically the grounds relied on, and may contain new evidence not previously considered by the Commission.

(d) A request for reconsideration of dismissal and a request for a preliminary hearing shall be filed within ten days of the receipt of the notice of dismissal of the complaint."

" § 42.63. Reconsideration of dismissal.

(a) If the request for reconsideration of dismissal is granted, the matter will be referred to staff counsel who will consider any new evidence and secure new information as may be necessary and appropriate and who may convene a preliminary hearing if requested by the complainant in a timely manner.

(b) When a preliminary hearing is convened by staff counsel, the testimony taken at such preliminary hearing will not be transcribed or under oath. The staff counsel will hear the evidence, reinvestigate the facts if necessary, and file a report and recommendation with the Commission.

(d) If, upon reconsideration of a complaint dismissed upon a finding of no probable cause, Commission staff determines that no probable cause exists to credit the allegations of the complaint, a finding of no probable cause will be made and reported to the Commissioners, and the Commissioners may reaffirm their dismissal of the complaint or take such other action as the Commissioners may deem appropriate."

It will be noted that while Section 9 of PHRA provides only for a preliminary hearing, the regulations provide for an additional procedure called a request for reconsideration, presumably to be accompanied by the statutory request for preliminary hearing. By § 42.63(a), apparently the request for reconsideration is not intended to entail the participation of the complainant but is an entirely internal matter, one result of which may be the convening of a preliminary hearing. Further, under § 42.63(b) of the regulations, the preliminary hearing consists only of what the petitioner here has properly described as the conference she attended on July 29, 1976, at which there was no testimony under oath, evidence or record made.

Ms. Carney alleges that following the conference of July 29, 1976, and after being told for the second time that PHRC would dismiss her complaint, the Commission (apparently in response to her further request) notified her by letter dated August 23, 1977 that the conference she had attended Was the preliminary hearing. She contends here that this was no hearing; that PHRC by Section 9 is required to have a preliminary hearing upon her request; and that such preliminary hearing by the same Section 9 must be conducted by three or more members of the Commission. PHRC answers that Section 9 gives it sole and unfettered discretion to have a preliminary hearing or not to have one and that hence even if the events of July 29, 1976 did not constitute a preliminary hearing, the petition does not describe a ministerial duty necessary for mandamus to lie. We agree with PHRC that Section 9 does not mandate a preliminary hearing whenever requested. Therefore, since this preliminary hearing is not a hearing "required to be held by the Commission", no commissioner is required to be present at the preliminary hearing.

We have concluded, however, that PHRC was, as a prerequisite to a valid determination that no probable cause existed, to afford Ms. Carney a hearing conforming to the requirements of the Administrative Agency Law (AAL), Act of June 4, 1945, P.L 1388, As amended, 71 P.S. § 1710.1 et seq., which was in effect at the time of the PHRC actions complained of. ^[1] Although Section 51 of the AAL did not name PHRC as an agency to which the Act applied the same Section...