Wertz v. Chapman Tp.

• Decision Date: 20 February 1998
• Parties: Sherry WERTZ, Appellant, v. CHAPMAN TOWNSHIP; Chapman Township Supervisors; Robert Walizer; Dean Scott; and Robert Young.
• Court: Pennsylvania Commonwealth Court

Page 428

709 A.2d 428

Sherry WERTZ, Appellant, v. CHAPMAN TOWNSHIP; Chapman Township Supervisors; Robert

Walizer; Dean Scott; and Robert Young.

Commonwealth Court of Pennsylvania.

Argued Sept. 10, 1997.

Decided Feb. 20, 1998.

Jeffrey C. Dohrmann, Williamsport, for appellant.

Anthony R. Sherr, West Conshohocken, for appellees.

Before FLAHERTY and LEADBETTER, JJ., and SILVESTRI, Senior Judge.

FLAHERTY, Judge.

Sherry Wertz appeals from the orders of the Court of Common Pleas of Clinton County (trial court) which (1) denied her motion for a jury trial of her sexual discrimination suit pursuant to the Pennsylvania Human Relations Act (PHRA) ¹ and (2) found in favor of Chapman Township, Chapman Township Supervisors, and Supervisors Robert Walizer, Dean Scott and Robert Young (defendants). ² We vacate in part and affirm in part.

The questions presented on appeal are (1) whether the trial court erred by excluding certain evidence, (2) whether the trial judge exhibited a bias in favor of defendants to warrant reassigning the case to a different judge and (3) whether the PHRA creates the right to demand a jury trial.

FACTS

In December of 1989, defendant Young ³ hired Wertz to be a road crew laborer. At trial, Wertz and her mother Patricia Stevenson, also a road crew laborer testified that Wertz was hired to replace two unreliable employees. In contrast, defendants maintained On April 9, 1990, Wertz informed foreman Fred Gummo that she was pregnant and that she could not lift items in excess of 25 pounds. Wertz testified that in spite of this warning, or because of it, Gummo continuously harassed her by directing her to lift heavy items, making sexually degrading remarks, threatening to terminate her, isolating her from the rest of the work crew, denying her breaks, and making unfounded and unwarranted complaints about her work.

through Young's deposition testimony, that she was hired temporarily to replace her mother who was on medical leave. The trial judge resolved this factual dispute in favor of defendants stating: "there is no doubt in my mind ... that [Wertz] was hired to take her mother's place...." (R.R. at 99a).

On April 15, 1990, Wertz provided defendant Walizer with typewritten notes of Gummo's discriminatory conduct. At a Township Supervisor meeting the following day, the Township Supervisors agreed that Gummo's conduct was inappropriate and instructed him to correct his behavior. After this meeting, according to Wertz's testimony, Gummo's harassment of her increased. On May 11, 1990, Wertz was terminated.

PROCEDURAL HISTORY

Wertz originally filed an action on June 5, 1992, in the United States District Court for the Middle District of Pennsylvania, alleging various federal and state sexual employment discrimination claims. ⁴ On June 30, 1994, Wertz's federal claims were dismissed as time-barred, and the matter was subsequently transferred to the trial court for resolution of the remaining state law claims pursuant to the PHRA, which included: (1) discriminatory termination of Wertz because of her sex and pregnancy; (2) harassment and hostile atmosphere because of Wertz's sex and pregnancy; and (3) retaliation. ⁵

On March 13, 1995, Wertz filed a motion for a jury trial, which the trial court dismissed on April 12, 1995. Immediately following the non-jury trial, held on September 25, 1996, the trial judge issued his decision in favor of defendants and granted defendants leave to file motions regarding counsel fees. On October 7, 1996, Wertz moved for post-trial relief seeking a new trial, recusal and reassignment. The trial court denied Wertz's motion on October 29, 1996. Judgment in favor of the defendants was entered on December 16, 1996. This appeal followed. ⁶

ISSUES

The Appellant presents the following issues for this court's review.

I. Jury Trial:

Did the trial court err by denying Wertz's demand for a jury trial?

II. Evidentiary Issues:

a. Did the trial court err by excluding as irrelevant budget documents, which indicated an increase in budgetary items encompassing wages, from years subsequent to Wertz's termination when admission of the documents would undermine the Township's defense that Wertz was hired to temporarily replace her mother?

b. Did the trial court err by excluding, pursuant to the Dead Man's Act, testimony of statements made by Young, even though Young had no interest in the outcome of the case c. Did the trial court err by excluding as irrelevant testimony of other employees regarding a hostile work environment or discrimination or harassment against them?

d. Did the trial court err by excluding, on the basis of hearsay, Wertz's medical excuse even though it was not offered for the truth of its contents, but rather to show that Wertz had obtained the excuse and was prepared to give it to the defendants?

III. Bias of Trial Judge:

Did the trial judge exhibit a bias in favor of the defendants to warrant reassigning the case to another judge in the event that a new trial is granted?

Jury Trial

We first consider Wertz's claim that she was entitled to have a jury trial. Wertz essentially argues that because the PHRA provides for "legal" remedies, i.e., monetary damages, she is entitled to a jury. Additionally, she argues that a claim of discrimination under the PHRA is like a tort claim for personal injuries analogous to a "wrongful discharge" suit, and as such, she is entitled to a jury because tort suits were suits at law which could be heard by a jury in England.

We understand Wertz's argument to be that she has a Constitutional right to a jury trial based upon Article I, Section 6 of the Pennsylvania Constitution which provides in pertinent part that

Trial by jury shall be as heretofore and the right thereof shall remain inviolate.

However, it is a cardinal principle of jurisprudence that where decision can be had on other than constitutional grounds, the court should decide the case on the nonconstitutional grounds. Barasch v. Bell Telephone Co., 529 Pa. 523, 605 A.2d 1198 (1992). Thus, we look first to the PHRA to discern whether the statute itself provides a right to a jury. See, e.g., Cox v. Keystone Carbon, Co., 861 F.2d 390, 392-93 (3d Cir.1988)(first look to the statute to determine whether the statute provides a right to a jury and only if the statute does not, then analyze whether the constitution requires a jury trial); Lubin v. American Packaging Corp., 760 F.Supp. 450 (E.D.Pa.1991).

As with all statutory construction, the starting point of analysis is with the language of the statute. The PHRA provides in relevant part that

If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act. If the court finds that the respondent has engaged in or is engaging in an unlawful discriminatory practice charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employees, granting of back pay, or any other legal or equitable relief as the court deems appropriate.

(emphasis added). We note initially that the legislature was free to provide the right to a jury trial under the PHRA. See, e.g., Hoops v. United Telephone Co. of Ohio, 50 Ohio St.3d 97, 100, 553 N.E.2d 252, 255-56 (1990) ("Where a statute sets forth a new civil right, the legislature may grant a concomitant right to jury trial, but need not do so.") However, the plain words of the PHRA do not provide to complainants a right to a jury trial. Certainly, the legislature knew how to provide for the right to a jury trial in clear and unambiguous terms. See, e.g., Section 4 of the Act of May 28, 1907, P.L. 292, 50 P.S. § 944 ("If the person against whom the proceedings are taken shall demand in writing, ... a trial by jury, it shall thereupon be the duty of the said court to award an issue, framed to determine the question of fact involved, and such trial shall be granted."); 23 Pa.C.S. § 4343 ("Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury unless either party demands a trial by jury.")

If anything, the legislature's use of the language "court" in the PHRA, to indicate its intention that the "court" is to make findings whether the respondent is engaged in a discriminatory practice and that the "court shall ... order affirmative action which may include ... any other legal ... relief as the court deems appropriate", at the very least suggests that there is no right to a jury trial. In this regard, we find the reasoning of the Court in Younis Bros. & Co. Inc. v. Cigna Worldwide Ins. Co., 882 F.Supp. 1468 (E.D.Pa.1994) persuasive. The Court therein stated that

The Pennsylvania legislature has enacted several statutes where the function of the "jury" and "court" (meaning judge) are specifically distinguished. See, e.g., 50 P.S. § 944 and 42 Pa.C.S.A. § 5327(c). The language of these statutes leads me to conclude that the term "court" does not include "jury" and the legislature specifically includes the term "jury" in a statute when it wants the jury to serve as a decision maker under the statute.

Id. at 1474 (footnotes omitted)(construing 42 Pa.C.S. § 8371). This reasoning was also applied by the court in Cahall v. Westinghouse Electric Corp., No. 86-4183, at 2, 1986 U.S. Dist. LEXIS 16543, at

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(E.D.Pa. Dec. 15, 1986) when it construed the PHRA and found that the use of the word "court" evinced a legislative intent not to grant a right to a jury: "[f]rom...