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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 AND
MERCER COUNTY COMMUNITY FEDERAL
CREDIT UNION

                                                  No. 1899 WDA 2017


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


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

MEMORANDUM BY KUNSELMAN, J.:                 FILED OCTOBER 31, 2018

     Appellant, Louann Mergl, appeals from the order of court granting

summary judgment in an employment discrimination case. We reverse and

remand.

     The underlying facts of this case are largely irrelevant, but set the

stage for the procedural issue before us.   Mergl was terminated from her

position at the Mercer County Community Credit Union after being employed

there from October 1, 2006 to January 10, 2011. Following her termination,

Mergl filed a discrimination complaint with the Pennsylvania Human

Relations Commission (PHRC). The exact date on which she filed her claim

is in dispute, but the trial court believed she unequivocally filed it on

December 12, 2011. The PHRC dismissed Mergl’s complaint on November
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19, 2012 because it found no probable cause that any discrimination

occurred.

        Mergl initiated her civil action in the Court of Common Pleas of Mercer

County on November 19, 2014. Appellees, Mercer County Community Credit

Union, David Killa, and Anita Churlik, filed a motion for summary judgment

on August 30, 2017.           Mergl did not file a response to the motion for

summary judgment, but she did file a brief in opposition. She attached an

affidavit to her brief, in which she claims that the PHRC received her charge

of discrimination before July 11, 2011. In her affidavit, she maintains the

complaint was filed with the PHRC within the statutory 180 day time period.

Despite the affidavit, the trial court granted the motion for summary

judgment because it found that there were no genuine issues of material

fact regarding the untimeliness of the PHRC filing.1        Mergl appealed this

decision.

        Mergl raised the following issues on appeal:

        Did the trial court abuse its discretion and commit an error of law in
        granting summary judgment for failure to respond and for failing to
        consider [Mergl’s] affidavit as part of the record because [Mergl’s]
        Brief in Opposition of Summary Judgment was a response to the
        Motion for Summary Judgment and the affidavit part of the record?

        Did the trial court abuse its discretion and commit an error of law in
        granting summary judgment because the existence of [Mergl’s]
        affidavit created a genuine issue of material fact as to the timeliness of

____________________________________________


1   Trial Court Memorandum Opinion, 11/21/17 at 1-2.



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      the filing of the complaint with the Pennsylvania Human Relations
      Commission?

      Did the trial court abuse its discretion and commit an error of law by
      determining that [Mergl’s] charge of discrimination filed with the PHRC
      is not a complaint pursuant to 43 Pa.C.S. § 959 and by failing to find
      that the complaint filed with the PHRC within 180 days exhausts the
      statutory remedy?

Mergl’s Brief at 2-3. All three issues are closely related, but we will address

them individually.

      Our standard of review of an order granting summary judgment is well

settled. We review the record in the light most favorable to the non-moving

party, and all doubts regarding the existence of a material fact must be

resolved against the movant. Sicliano v. Mueller, 149 A.3d 863, 864 (Pa.

Super. 2016) citing Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179

(Pa. 2012). Our scope of review is plenary and we must reverse the trial

court order where there was an abuse of discretion or an error of law. Id.

The question of whether there are material facts at issue is a question of

law, and our review of questions of law is de novo, therefore we need not

defer to the trial court’s determinations. Summers v. Certainteed Corp.,

997 A.2d 1152, 1159 (Pa. 2010).

      With respect to Mergl’s first issue, she challenges the court’s grant of

summary judgment based on her failure to file a “response”, even though

she filed a brief in opposition and attached a supporting affidavit.     Mergl

argues that the court’s policy is to give the parties an opportunity to plead

their cause of action and not turn a party out because of a technical error,



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and, therefore, entry of summary judgment should be cautiously exercised.

Ehrenzeller v. Chubb, 90 A.2d 286 (1952). She asserts that the Pa.R.C.P.

1035.3 requirement for a “response” to a motion for summary judgment is

not statutorily defined, and a party “opposing a motion for summary

judgment is not required to file a responsive pleading…” Kelly by Kelly v.

Ickes, 629 A.2d 1002, 1005 (Pa. Super. 1993).

      The Rules of Civil Procedure allow a trial court to enter summary

judgment against a party who does not file a response. Pa. R.C.P.

1035.5(d). This decision is left to the discretion of the trial court. The trial

court decided that Mergl’s affidavit was not properly part of the record

because it was attached to her brief in opposition, and the parties’ briefs are

not considered part of the record. Trial Court Opinion, 11/21/2017 at 3;

Scopel v. Donegal, 698 A.2d 602 (Pa. Super. 1997).            However, Mergl’s

brief in response, with the affidavit in question attached, was filed with the

prothonotary and entered on the docket, thereby entering the affidavit into

the official record.     Furthermore, the record expressly includes any

affidavits.   Pa. R.C.P. 1035.1 (2); See also Bailets v. Pennsylvania

Turnpike Com’n, 123 A.3d 300, 301 (Pa. 2015). As such, the trial court

should have considered the affidavit, and the information contained therein,

in deciding whether to grant summary judgment. The trial court abused its

discretion by not considering the brief in opposition and the affidavit.

      In her second issue, Mergl claims the trial court abused its discretion

and committed an error of law by granting summary judgment, because her

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affidavit created a genuine issue of material fact regarding the timeliness of

her complaint with the PHRC.

        Here, we agree that the affidavit raised a genuine issue of material

fact.   Mergl’s sworn affidavit states, “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.”                  Supplemental

Reproduced Record at 416b.         Clearly, the best way to prove that the

complaint was filed within the 180 day time requirement would be to present

some document or intake form from the PHRC, but Mergl indicated at oral

argument that the PHRC has been uncooperative with her attempts to obtain

a copy of her file.    Because of this, she claims summary judgment was

premature. She should have been given more time to obtain documentation

from the PHRC. Essentially Mergl maintains she filed a timely charge with

the PHRC, but the agency was delayed in producing the actual complaint.

        Mergl also argues that while a trial court is permitted to disregard an

affidavit when it is not wholly credible, this trial court did not bother to make

a credibility determination with respect to the affidavit. See Gruenwald v.

Advanced Comput. Applications, Inc., 730 A.2d 1004, 1009 (Pa. Super.

1999) (holding where the trial court was permitted to rely solely on an

affidavit to create a genuine issue of material fact, while recognizing that an

affidavit may be disregarded when it is not wholly credible).      Notably, the

PHRC did not dismiss Mergl’s complaint for lack of timeliness, instead it

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determined the facts indicated a lack of probable cause to pursue the

allegations of wrongful discrimination.   The PHRC’s decision to investigate,

rather than dismiss the claim outright for lack of timeliness, allows a

reasonable inference that Mergl filed her complaint within the 180 time

period required by the statute.       Despite this, the trial court simply

disregarded the affidavit based on semantics. See Trial Court Memorandum

Opinion, 11/21/17 at 3.

      If the trial court considered the affidavit, a genuine issue of material

fact would have been raised because the affidavit claimed the complaint was

filed with the PHRC in a timely manner, contrary to the date on the

complaint contained in the record. Mergl explained there was a discrepancy

between the dates because the PHRC generated the document in December,

thus the timestamp indicated the generation date, not the filing date. We

agree that under the circumstances, based on the record, the trial court

abused its discretion by determining that Mergl’s affidavit did not raise a

genuine issue of material fact, and summary judgment was premature at

this juncture.

      Finally, in her third issue, Mergl claims the trial court abused its

discretion and committed an error of law by determining that there was a

difference between a complaint filed with the PHRC and a “charge of

discrimination.”

      The Pennsylvania Code does not require a PHRC complaint to be

labelled as such in order to be considered a complaint under the statute,

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merely that it contain certain information. See 16 Pa. Code § 42.32. The

complaint, or charge of discrimination, must contain: the name and address

of the complainant, the names and addresses of the individual(s) and/or

institution that has allegedly committed the discrimination, the particulars of

the unlawful discrimination, a verification consisting of a sworn oath or

affirmation or an unsworn statement by the signer indicating that the

complaint is made subject to the penalties outlined in 18 Pa.C.S. § 4904,

and any other information requested by the PHRC.        16 Pa. Code § 42.32.

Federal case law also indicates the terms “complaint” and “charge of

discrimination”   are   interchangeable    with   respect    to   employment

discrimination. See e.g. Federal Exp. Corp. v. Holowecki, 552 U.S. 389

(2008) (holding that a filing, taken as a whole, must be able to be construed

as a request for the agency to take whatever action necessary to vindicate

the employee’s rights); Pizio v. HTMT Global Solutions, 555 Fed. Appx.

169, 171 (3d Cir. 2014) (holding that an intake questionnaire qualifies as a

charge of discrimination).

      Based on the legal flexibility of the terms “charge” and “complaint”,

the trial court’s grant of summary judgment because of Mergl’s choice of

verbiage was also an abuse of discretion. The substance of the filing is what

is most important, not how the aggrieved party to labels the document.

Construing all relevant facts, including those in the affidavit, against the

movant requires the conclusion that a genuine issue of fact exists as to when




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Mergl filed her complaint with the PHRC. Thus, summary judgment at this

juncture was inappropriate.

      In sum, we find that summary judgment was inappropriate and

premature because Mergl’s affidavit should have been considered by the trial

court, and it raised a genuine issue of material fact with respect to the

timeliness of her PHRC complaint.

      We reverse without prejudice and remand for further proceedings.

Jurisdiction relinquished.

      Judge Musmanno joins in this Memorandum.

      Judge Ott files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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