J-A27019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEFFREY H. SORKIN                                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellant

                        v.

PAUL J. SEDACCA

                             Appellant                No. 649 EDA 2018


              Appeal from the Judgment Entered April 16, 2018
            In the Court of Common Pleas of Philadelphia County
                         Civil Division at No: 03513


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 15, 2019

      Appellant, Jeffrey H. Sorkin (“Sorkin”), appeals from the judgment

entered on April 16, 2018 in the Court of Common Pleas of Philadelphia County

following denial of Sorkin’s motion for post-trial relief relating to his age

discrimination claim against Appellee, Paul J. Sedacca (“Sedacca”).      Sorkin

contends the trial court, which found a prima facie case of age discrimination,

erred by refusing to enter a verdict in his favor in light of admissions made by

Sedacca as well as other evidence admitted at trial. Following review, we

affirm.

      The trial court provided the following summary of evidence presented at

Sorkin’s bench trial:

      [Sorkin], a state licensed chiropractor with an additional license
      for adjunctive procedures, began working for [Appellee] Paul J.
      Sedacca, M.D. [] in 2010 for an hourly wage of $80/hour.
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       [Sedacca] owns a medical practice at 2300 S. Broad Street in
       Philadelphia, Pennsylvania. From 2010 to 2013, [Sedacca’s]
       practice revenues dropped 30% and [Sedacca] determined that
       cost reductions were necessary to maintain his practice.

       In February 2013, [Sedacca] met with [Sorkin] to discuss the
       situation. [Sorkin] agreed to accept a reduced hourly rate of
       $55/hour. During the discussion, [Sedacca] testified that [Sorkin]
       “clearly stated he could not and would not go lower.” Alan Spiegel
       (“Spiegel”), [Sedacca’s] practice management consultant, was
       present during the meeting and testified that [Sorkin] “made it
       very clear that he could not go any lower.”

       [Sorkin] went on vacation in late April 2013. During his absence,
       his patients were seen by Brielle Dudek (“Dudek”) of ChiroCover.
       Dudek, a 28 year old licensed chiropractor with an additional
       license in adjunctive procedures, was familiar with [Sedacca’s]
       practice. With the understanding that [Sorkin] would not accept
       another salary reduction, [Sedacca] offered Dudek full-time
       employment at an annual salary of $60,000.1 On or about May 5,
       Spiegel call [Sorkin] to inform him that his services were no longer
       needed. On May 24, 2013, [Sorkin] received an email and letter
       detailing the terms of his severance and termination of
       employment. The letter stated that [Sorkin’s] termination was
       “solely the result of the financial troubles that the practice has
       experienced through the last few years.”
              1
                Dudek’s salary was later reduced to $52,000.00 in 2014 due to
              financial circumstances.

Trial Court Opinion, 5/9/18, at 1-2 (references to notes of testimony and trial

exhibits omitted).1


____________________________________________


1 Sorkin, who was born on January 8, 1953, was sixty years of age when he
was terminated in 2013 and had practiced chiropractic medicine since 1994.
He testified at trial that his annual compensation at $80 per hour totaled
approximately $150,000. That annual total was reduced to a little more than
$100,000 when he agreed to accept the $55 hourly rate. He accepted the
lower rate with the understanding it would return to the higher rate once the
practice’s financial condition rebounded. See N.T., 9/25/17, Trial, at 11, 13,
17-18.

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      Sorkin filed an age discrimination claim on July 23, 2013. On July 29,

2016, after exhausting his administrative remedies, he filed a complaint in the

Philadelphia County Court of Common Pleas. On September 25, 2017, a bench

trial was held on his claim under the Pennsylvania Human Relations Act

(“PHRA”), 43 P.S. § 955. Pursuant to Section 955(a), it is unlawful “[f]or any

employer because of the . . . age . . . of any individual[,] to . . . discharge

from employment such individual[,] if the individual . . . is the best able and

most competent to perform the services required.”

      On September 29, 2017, the trial court issued its findings of fact and

conclusions of law, determining that Sorkin “failed to prove, by a

preponderance of the evidence, that age was a motivating or determinative

factor in [Sedacca’s] decision to terminate [Sorkin’s] employment.”       Trial

Court Opinion, 5/9/18, at 2 (citing Conclusions of Law, 9/29/17, at ¶ 6). The

order announcing the verdict in favor of Sedacca and against Sorkin was

entered on the docket on October 2, 2017. Order, 10/2/17. Sorkin filed a

timely post-trial motion requesting a new trial.   The trial court denied the

motion on February 7, 2018 and judgment was entered on April 16, 2018.

Sorkin filed a timely appeal to this Court and a 15-paragraph Rule 1925(b)




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statement of errors complained of on appeal.2 In response, the trial court

issued a Rule 1925(a) opinion, condensing Sorkin’s claims into three claims.

       Sorkin asks us to consider the following three issues, which essentially

parallel the issues as framed in the trial court’s Rule 1925(a) opinion:

       I.     After correctly finding that [Sorkin] established a prima facie
              case of age discrimination, should the trial court have
              entered a verdict in favor of [Sorkin] on his [PHRA] claim
              given the admissions of [Sedacca] and the other evidence
              submitted at trial?

       II.    Did [Sedacca’s] admitted refusal to give [Sorkin] an
              opportunity to maintain his position at the lower salary
              offered to his replacement (even after [Sorkin] asked), and
              his awarding of [Sorkin’s] position to a younger employee,
              violate the plain language of the PHRA in light of [Sedacca’s]
              admissions at trial that [Sorkin] had no performance issues
              and was the best able and most competent to perform the
              chiropractic services [Sedacca] required?

       III.   Should the United States Supreme Court’s decision in Gross
              v. FBL Financial Services, Inc., 557 U.S. 167 (2009)[,]
              and its more stringent “but-for” burden of proof for [Age
              Discrimination in Employment Act (“ADEA”)[3]] cases be
              followed in age discrimination claims under the PHRA given
              the fact that this leads to an utterly absurd result requiring
              the “because of” language in section 955(a) of the PHRA to
              be interpreted differently depending on the particular type
              of discrimination at issue?

Appellant’s Brief at 4-5 (some capitalization omitted).


____________________________________________


2 While Sorkin did include his Rule 1925(b) statement and the trial court
opinion in Volume I of the Reproduced Record, we remind counsel that
Pa.R.A.P. 2111(a)(11) and (b) direct that those filings be included in or
appended to an appellant’s brief.
2 29 U.S.C. § 621 et seq.


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     As this Court recently reiterated:

     Our standard for reviewing non-jury verdicts is as follows:

        Our appellate role in cases arising from non-jury trial
        verdicts is to determine whether the findings of the trial
        court are supported by competent evidence and whether the
        trial court committed error in any application of the law. The
        findings of fact of the trial judge must be given the same
        weight and effect on appeal as the verdict of a jury. We
        consider the evidence in a light most favorable to the verdict
        winner. We will reverse the trial court only if its findings of
        fact are not supported by competent evidence in the record
        or if its findings are premised on an error of law. However,
        where the issue concerns a question of law, our scope of
        review is plenary.

        The trial court’s conclusions of law on appeal originating
        from a non-jury trial are not binding on an appellate court
        because it is the appellate court’s duty to determine if the
        trial court correctly applied the law to the facts of the case.

Ferraro v. Temple Univ., 185 A.3d 396, 401 (Pa. Super. 2018) (quoting

Bank of N.Y. Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super. 2017)). As an

appeal from the denial of a motion seeking a new trial, our review


     is limited to determining whether the trial court acted capriciously,
     abused its discretion, or committed an error of law that controlled
     the outcome of the case. In making this determination, we must
     consider whether, viewing the evidence in the light most favorable
     to the verdict winner, a new trial would produce a different verdict.
     Consequently, if there is any support in the record for the trial
     court’s decision to deny a new trial, that decision must be
     affirmed.

Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1148 (Pa. Super.

2013) (citations omitted).




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     In his first issue, Sorkin argues he was entitled to a verdict in his favor

because the trial court correctly concluded Sorkin established a prima facie

case of age discrimination under the PHRA. In his second issue, he asserts

Sedacca violated the plain language of the PHRA by not offering Sorkin the

lower salary offered a younger employee and by awarding Sorkin’s position to

the younger employee, even though Sorkin was “the best able and most

competent” to perform the chiropractic services Sedacca required.            We

consider these issues together.

     As reflected above, the PHRA dictates that it is unlawful for an employer,

because of the age of an individual, to discharge that individual from

employment if the individual is the best able and most competent to perform

the services required. See 43 P.S. § 955(a). As this Court has explained,

     Generally, claims brought under the PHRA are analyzed under the
     same standards as their federal counterparts. Therefore, though
     not binding on our state courts, federal court interpretations of
     Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
     serve to inform this Court’s interpretations of the PHRA.

     Established for Title VII cases, where, as here, direct evidence of
     discriminatory treatment is lacking, is “an allocation of the burden
     of production and an order for the presentation of proof” according
     to which a court may assess a plaintiff’s indirect evidence of
     discrimination. McDonnell Douglas Corp. v. Green, 411 U.S.
     792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This Title VII burden-
     shifting framework as developed in McDonnell Douglas is a
     three-part one. First, the plaintiff bears the initial burden of
     establishing a prima facie case of discrimination. The burden on
     the plaintiff of presenting a prima facie case under McDonnell
     Douglas is minimal. If the plaintiff cannot meet this minimal
     burden, the employer is entitled to judgment as a matter of law.




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Kroptavich v. Pennsylvania Power and Light Co., 795 A.2d 1048, 1055

(Pa. Super. 2002) (additional citations and internal quotations omitted).

      Under McDonnell Douglas,

      an age discrimination plaintiff may make a prima facie case with
      evidence showing that the plaintiff at the relevant time: (i)
      belonged to a protected class, i.e., was at least 40 years of age;
      (ii) was qualified for the position; (iii) was dismissed despite being
      qualified; and (iv) suffered dismissal under circumstances giving
      rise to an inference of discrimination, such as the fact that the
      plaintiff was replaced by someone substantially younger.

Kroptavich, 795 A.2d at 1056 (citations omitted).          Here, the trial court

correctly determined that Sorkin established a prima facie case of age

discrimination. Trial Court Opinion, 5/9/18, at 5 (citing Conclusions of Law/

9/29/17, at ¶ 2).

      In Allegheny Housing Rehabilitation Corp. v. Pennsylvania

Human Relations Commission, 532 A.2d 315 (Pa. 1987), which involved a

claim of sex discrimination under the PHRA, our Supreme Court explained:

      It was never intended, however, that the [McDonnell Douglas]
      analytical method would immunize members of “protected
      classes” from adverse employment decisions simply by dint of
      their class membership. Nothing about the Human Relations Act
      removes its operation from the bedrock concept of our
      jurisprudence that one who alleges wrongdoing must supply the
      proof. The stated analysis is no more than an aid to evaluating
      the proof. If the plaintiff produces sufficient evidence that, if
      believed and otherwise unexplained, indicates that more likely
      than not discrimination has occurred, the defendant must be
      heard in response.

Id. at 319.       Because Sorkin established a prima facie case of age

discrimination,


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      a presumption of discrimination arises, and the burden of
      production shifts to the employer to articulate a legitimate,
      nondiscriminatory reason for the challenged employment
      decision. The employer’s burden in this second part is one of
      production, not persuasion, and thus involves no credibility
      assessment. If the employer articulates a legitimate business
      explanation, then the presumption of discriminatory intent created
      by the employee’s prima facie case is rebutted and the
      presumption simply drops out of the picture.

Ferraro, 185 A.3d at 400 (quoting Kroptavich, 795 A.2d at 1055).

Accordingly, Sedacca bears the burden of production and must “articulate a

legitimate, nondiscriminatory reason for terminating” Sorkin.     Kroptavich,

795 A.2d at 1059.

      Here, the trial court found that Sedacca “advanced a legitimate non-

discriminatory reason for [Sorkin’s] termination, namely the financial

struggles of the practice, which were not pretextual.” Trial Court Opinion,

5/9/18, at 5 (citing trial exhibits). “Instead of negotiating a lower salary for

[Sorkin], [Sedacca] relied on previous conversations in which [Sorkin]

expressed an unwillingness to accept less money.”         Id. (citing Notes of

Testimony, Trial, 9/25/17, at 59).    As the trial court recognized, Sedacca

testified that Sorkin’s termination was “solely a financial decision” so that

Sedacca would no longer have to pay practice expenses out of his own pocket.

Id. at 6. As such, the court concluded, Sedacca “presented a legitimate, non-

discriminatory reason to terminate [Sorkin’s] employment.” Id.

      Sedacca and Spiegel offered testimony, supported by documentation,

chronicling the practice’s decline. While Sorkin suggested that his patient load


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increased—and even doubled—during his time with the practice, the financial

statements did not reflect an increase but, rather, a continuing decline. As

Sedacca explained, the practice’s financial picture worsened and his own

earnings from his practice fell as well, to the point he was earning less than

he was paying Sorkin. We agree with the trial court’s conclusion that Sedacca

met its burden of production, articulating a legitimate, nondiscriminatory

reason for terminating Sorkin.

      Under McDonnell Douglas, therefore, the burden shifts back to Sorkin

to show that Sedacca’s “purportedly legitimate reason was but a pretext for

what was actually a motive to discriminate on the basis of age.” Kroptavich,

795 A.2d at 1059.

      To discredit an employer’s articulated reason, a plaintiff need not
      produce evidence that necessarily leads to the conclusion that the
      employer acted for discriminatory reasons[.] Nor, as a matter of
      law, must a plaintiff produce evidence in excess of that produced
      in his prima facie case in order to prevail, although inferences
      acceptable at the prima facie stage may not satisfy the higher
      level of specificity usually required at the pretext stage.

         In the pretext stage, the plaintiff must, however, point to
         “weaknesses, implausibilities, inconsistencies, incoheren-
         cies, or contradictions in the employer’s proffered legitimate
         reasons such that a reasonable factfinder could rationally
         find them ‘unworthy of credence’” and hence infer that the
         proffered nondiscriminatory reason “did not actually
         motivate” the employer's action.

      Simpson[ v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir. 1998)
      (quoting Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir.
      1994))].

         To show that discrimination was more likely than not a cause
         for the employer’s action, the plaintiff must point to

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         evidence with sufficient probative force that a factfinder
         could conclude by a preponderance of the evidence that age
         was a motivating or determinative factor in the employment
         decision.

      Simpson, 142 F.3d at 644-45 (quoting Keller v. Orix Credit
      Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir.1997)).

Kroptavich, 795 A.2d at 1059-60 (alterations and some citations omitted).

      Based on its examination of the third prong of the analysis, the trial

court concluded:

      In support of his claim that [Sedacca’s] reason was pretextual,
      [Sorkin] offered only that [Sedacca] once referred to himself and
      [Sorkin] as “old guns.” [Sorkin] also noted the age difference
      between himself and Dudek. She was 28, he was 60. However,
      [Sedacca] testified that age was not a concern or motivating factor
      to replacing [Sorkin] with Dudek. [Sorkin] offered no evidence to
      rebut [Sedacca’s] claim that he was motivated solely by financial
      need and instead relied on age disparity as conclusive evidence of
      discrimination. As discussed supra, age and salary are analytically
      distinct considerations.     While age disparity is a relevant
      consideration in determining whether [Sorkin] established a prima
      facie case of discrimination under the first prong of the
      McDonnell Douglas framework, it does not undermine the
      legitimate reason provided by [Sedacca]. See Kroptavich, [795
      A.2d] at 1059.

      [Sedacca’s] evidence of his practice’s financial downturn was not
      successfully rebutted by [Sorkin’s] evidence. As a result, the
      [c]ourt found that [Sorkin] failed to prove that [Sedacca’s]
      proffered reason for termination was not a legitimate reason or
      pretextual. [Sorkin’s] claim is without merit[.]

Trial Court Opinion, 5/9/18, at 6-7 (references to notes of testimony omitted).

      We find no abuse of discretion in the trial court’s factual findings, its

analysis, or in its conclusion that Sorkin failed to establish an age

discrimination claim, despite satisfying the prima facie prong of the test.


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Because the trial court’s factual findings are supported by the record and the

trial court correctly applied the law, Sorkin’s first two claims fail for lack of

merit.

      In his third claim, Sorkin asks this Court to consider whether a

“motivating factor” rather than “but-for” test should be applied to age

discrimination cases under the PHRA. However, this Court has determined

that the McDonnell Douglas framework is appropriately applied to age

discrimination claims under the PHRA, see, e.g., Kroptavich and Ferraro,

supra, and our Supreme Court has likewise employed the framework in a sex

discrimination claim, see Allegheny Housing Rehabilitation, supra.

Moreover, Sorkin has failed to demonstrate that age was a “motivating factor”

in Sedacca’s decision to terminate him.        As the trial court noted, Sedacca

“testified that age was not a concern or motivating factor in replacing [Sorkin]

with Dudek.    [Sorkin] offered no evidence to rebut [Sedacca’s] claim that

[Sedacca] was motivated solely by financial need[.]”        Trial Court Opinion,

5/9/18, at 7 (reference to notes of testimony omitted). Whether analyzed

under a “motivating factor” or a “but-for” test, Sorkin cannot prevail. Sorkin’s

third issue affords him no basis for relief.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19




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