J-A17021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 LOUANN M. MERGL                         :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 DAVID G. KILLA, ANITA H. CHURLIK        :   No. 1899 WDA 2017
 AND MERCER COUNTY COMMUNITY             :
 FEDERAL CREDIT UNION                    :

                  Appeal from the Order November 20, 2017
               In the Court of Common Pleas of Mercer County
                   Civil Division at No(s): No. 2014-03528


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY OTT, J.:                FILED OCTOBER 31, 2018

      Because I am of the view that the trial court correctly concluded the

affidavit of LouAnn M. Mergl does not create a genuine issue of material fact

precluding entry of summary judgment in favor of David G. Killa, Anita H.

Churlik, and Mercer County Community Federal Credit Union (“Appellees”), I

respectfully dissent.

      Our scope and standard of review of a motion granting summary

judgment is well settled:

       ‘[S]ummary judgment is appropriate only in those cases where
      the record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment as
      a matter of law.’ Atcovitz v. Gulph Mills Tennis Club, Inc., 571
      Pa. 580, 812 A.2d 1218, 1221 (2002); Pa.R.C.P.No. 1035.2(1).
      When considering a motion for summary judgment, the trial court
      must take all facts of record and reasonable inferences therefrom
      in a light most favorable to the non-moving party. Toy v.
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        Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 195
        (2007). In so doing, the trial court must resolve all doubts as to
        the existence of a genuine issue of material fact against the
        moving party, and, thus, may only grant summary judgment
        “where the right to such judgment is clear and free from all
        doubt.” Id. On appellate review, then

           an appellate court may reverse a grant of summary
           judgment if there has been an error of law or an abuse of
           discretion. But the issue as to whether there are no genuine
           issues as to any material fact presents a question of law,
           and therefore, on that question our standard of review is de
           novo. This means we need not defer to the
           determinations made by the lower tribunals.

           Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458,
           926 A.2d 899, 902-03 (2007) (internal citations omitted).
           To the extent that this Court must resolve a question of law,
           we shall review the grant of summary judgment in the
           context of the entire record. Id. at 903.

Yenchi v. Ameriprise Fin., Inc., 161 A.3d 811, 818 (Pa. 2017), quoting

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).

        Relevant to the issue at hand, a person cannot file a cause of action

alleging a violation of the Pennsylvania Human Relations Act1 (PHRA) in the

court of common pleas unless he or she first exhausts his or her administrative

remedies. 43 P.S. § 962. In order to proceed with an action under the PHRA,

a person claiming to be aggrieved by an alleged unlawful discriminatory

practice must file a complaint with the Pennsylvania Human Relations

Commission (PHRC) within 180 days after the alleged discriminatory act

occurred. 43 Pa.C.S. § 959(h). The complaint must be verified and “state


____________________________________________


1   43 P.S. § 951 et seq.

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the name and address of the person, employer, labor organization or

employment agency alleged to have committed the unlawful discriminatory

practice complained of, and which shall set forth the particulars thereof and

contain such other information as may be required by the Commission.” 43

Pa.C.S. § 959(a).      See also 16 Pa. Code § 42.32.

       Here, the record contains Mergl’s PHRC complaint that bears a time-

stamp of December 12, 2011, 336 days after her termination date of January

10, 2011. The PHRC dismissed Mergl’s complaint on November 19, 2012,

indicating it found no probable cause for the discrimination claim. Mergl then

initiated this action in the Court of Common Pleas of Mercer County on

November 19, 2014.

       On August 30, 2017, Appellees filed a motion for summary judgment,

arguing, inter alia, Mergl had failed to exhaust mandatory statutory remedies

under the PHRA because she filed an untimely complaint with the PHRC on

December 12, 2011. Mergl did not file a response to the motion, but did file

of record a brief with an attached affidavit.    In the sworn affidavit, Mergl

stated:

       I, LouAnn M. Mergl, hereby verify to the best of my knowledge,
       information, and belief that my charge of discrimination filed with
       the Pennsylvania Human Relations Commission was received by
       them and accepted on July 11, 2011.[2]


____________________________________________


2 The 180th day after January 10, 2011, fell on Saturday, July 9, 2011.
Therefore, the filing deadline expired on Monday, July 11, 2011. See 1 Pa.C.S.
§ 1908 (Computation of time).

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Affidavit, dated 9/12/2017, attached as Exhibit 1 to Plaintiff’s Brief in

Opposition to Summary Judgment, filed 9/13/2017.

      Based on this record, the trial court determined Mergl had not

demonstrated any genuine issue of fact as to whether or not she exhausted

her statutory remedies in a timely manner on her claims for disability

discrimination and retaliation. The trial court reasoned:

      Even if this Court could consider [Mergl’s] affidavit, the evidence
      would still fail to indicate the existence of a genuine issue of
      material fact. The PHRA specifically requires the timely filing of a
      “complaint,” not a “charge of discrimination,” as alleged in the
      affidavit. Any other document [Mergl] may have sent to the PHRC
      was not a substitute for a proper complaint. Although a PHRC
      regulation allows a [p]laintiff to benefit from the filing date of a
      prior complaint that did not fully satisfy the statute’s
      requirements,1 [Mergl] has neither averred that she filed a prior
      complaint nor presented a copy of any prior filing from which this
      Court could determine the applicability of this regulation.
      Similarly, [Mergl] has not argued that the time limit for filing her
      PHRC complaint was subject to waiver, estoppel, or equitable
      tolling, pursuant to 43 P.S. § 962(e).

         _____________________
         116 Pa. Admin. Code 42.14(d) states, “Complaints that are
         not verified or that do not otherwise fully conform with a
         requirement of a complaint before the Commission will be
         considered filed on the date received by the Commission but
         may be quashed, as justice may require, if the
         nonconformity is not remedied by amendment or otherwise
         within a reasonable time.”

         _____________________

Trial Court Opinion, 11/21/2017, at 3-4 (some footnotes omitted). I agree

with the trial court.

      Pennsylvania Rule of Civil Procedure 1035.4 states:



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      Supporting and opposing affidavits shall be made on personal
      knowledge, shall set forth such facts as would be admissible in
      evidence, and shall show affirmatively that the signer is
      competent to testify to the matters stated therein. Verified or
      certified copies of all papers or parts thereof referred to in
      an affidavit shall be attached thereto or served therewith.
      The court may permit affidavits to be supplemented or opposed
      by depositions, answers to interrogatories, or further affidavits.

Pa.R.C.P. 1035.4 (emphasis and underlining supplied).

      Here, Mergl’s sworn affidavit reveals nothing about what was filed and

received by the PHRC by July 11, 2011. Ignoring the requirements of Rule

1035.4, supra, Mergl, while referring to her “charge of discrimination” in the

affidavit, did not attach a copy of the “charge of discrimination,” or any other

documentation, for that matter. As such, the affidavit did not create a genuine

issue as to whether Mergl initiated an action under the PHRA by July 11, 2011.

See 43 P.S. § 959(a); 16 Pa. Code § 42.32.

      Accordingly, I would affirm the grant of summary judgment on the basis

of the trial court’s rationale that the affidavit fails as a matter of law and,

therefore, there is no genuine issue of material fact regarding Mergl’s failure

to exhaust her administrative remedies.

      Thus, I respectfully dissent.




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