              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


H. Edwin Rodrock,                       :
                 Appellant              :
                                        :   No. 998 C.D. 2017
            v.                          :
                                        :   Argued: December 13, 2018
Commonwealth of Pennsylvania,           :
Public Utility Commission               :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge


OPINION BY
JUDGE McCULLOUGH                                          FILED: January 9, 2019


            H. Edwin Rodrock (Appellant) appeals from the June 26, 2017 order of
the Court of Common Pleas of Dauphin County (trial court) sustaining the
preliminary objections of the Public Utility Commission (PUC) and dismissing
Appellant’s complaint with prejudice.


                          Facts and Procedural History
            The underlying facts of this case are not in dispute. Appellant has been
employed with the PUC since December 17, 1973. (Reproduced Record (R.R.) at
61a.) Appellant was first employed as an Accountant II. Id. In 2002, Appellant
became employed as a fixed utility financial analyst supervisor. (R.R. at 62a.) In
2005, the PUC advertised an available position as a fixed utility manager.        Id.
Appellant applied for this position but learned that he was rejected in May 2006. Id.
Appellant was 59 years old at the time of this rejection. Id. Paul Diskin, a 51-year-
old male, was hired for this position. Id.
               On November 6, 2006, Appellant filed a complaint with the
Pennsylvania Human Relations Commission (Commission) alleging that he was
denied the aforementioned fixed utility manager position due to unlawful age
discrimination. (R.R. at 61a.) By letter dated July 21, 2008, the Commission advised
Appellant that the matter was “closed administratively” for reasons which “[y]ou
have been informed by your investigator.” (R.R. at 73a.) This letter stated that both
the complainant (Appellant) and respondent (PUC) had the opportunity to provide
comments regarding the investigation of the complaint after “final disposition” of the
same. Id. This letter also included a document entitled “NOTICE OF RIGHTS OF
COMPLAINANTS AFTER DISMISSAL OF COMPLAINT,” which advised
Appellant of his right to request a preliminary hearing in accordance with section
42.62 of the Commission’s regulations, 16 Pa. Code §42.62,1 or to file a complaint in


      1
          Section 42.62 of the Commission’s regulations provides as follows:

               (a)      If a case is closed under §42.61 (relating to dismissal of
                     complaints), the complainant may file a request for a preliminary
                     hearing within 10 days of receipt of the notice of the closing of
                     the complaint.

               (b)      The request for a preliminary hearing may be made only once
                     for each ground of closing.

               (c)     A request for a preliminary hearing shall be in writing, state
                     specifically all grounds on which the complainant disputes the
                     Commission’s stated reasons for closing the case, and may
                     contain new evidence not previously considered by the
                     Commission.

(Footnote continued on next page…)

                                                  2
the common pleas court under section 12(c) of the Pennsylvania Human Relations
Act (Act).2 (R.R. at 74a.) This “NOTICE OF RIGHTS” provided, in pertinent part,
as follows:

               The complainant has the right to request a preliminary
               hearing in this matter, pursuant to the Commission’s
               Special Rules of Administrative Practice and Procedure, 16
               ADMIN CODE Section 42.62. Should the complainant
               desire to file such a request, it must be in writing and it
               must state specifically the grounds upon which the
               complainant disputes the Commission’s findings. It may
               contain new evidence not previously considered. If the
               Request for a Preliminary Hearing is based upon new or
               previously unconsidered evidence, the nature, location, and
               form of the evidence in issue must be explicitly set forth in
               the request.

               The purpose of the hearing, should the Commission grant
               one, will be to decide whether the Commission has properly
               dismissed the complaint. The Commission may also decide
               to reopen the complaint for further investigation instead of
               conducting a hearing.

                                                 ...



(continued…)

               (d)      The Commission will forward a copy of the request for a
                     preliminary hearing and material in support thereof to the
                     respondent, who shall have the right to respond thereto within 10
                     days of receipt of the copy.

16 Pa. Code §42.62(a)-(d).

       2
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §962(c). Section 12(c)(2) of the
Act specifically provides for a two-year statute of limitations within which to bring such a claim in
the common pleas court, stating “[a]n action under this subsection shall be filed within two years
after the date of notice from the Commission closing the complaint.” 43 P.S. §962(c)(2).



                                                  3
             In addition, you are hereby notified, as required by Section
             12(c) of the Pennsylvania Human Relations Act, 43 P.S.
             Section 962(c), that you have the right, upon the dismissal
             of your case, to file a complaint in the courts of common
             pleas of the Commonwealth based on the right to freedom
             from discrimination granted by the Act. Section 962(c)(1).
             If you wish to file a complaint in the court of common
             pleas, the complaint must be filled [sic] within two (2)
             years after the date of the notice from the Commission
             closing the complaint. Section 962(c)(2). You may also
             wish to consult a private attorney about this right and about
             any other rights you may have in this matter.
(R.R. at 57a.)
             Appellant requested a preliminary hearing. By letter dated March 27,
2009, the Commission notified Appellant that his case would be reopened and would
be “forwarded to the Commission’s Regional Office for further investigation.” (R.R.
at 71a.) By letter/notice dated June 3, 2011, the Commission notified Appellant that,
after further investigation, it determined “that the complaint should be dismissed
because the facts of the case do not establish that probable cause exists to credit the
allegations of unlawful discrimination.”        (R.R. at 69a.)    This letter included a
“NOTICE OF RIGHTS OF COMPLAINANTS AFTER DISMISSAL OF
COMPLAINT,” which was identical to the one attached to the Commission’s earlier
letter. (R.R. at 70a.) Appellant again requested a preliminary hearing.
             However, by letter dated July 27, 2011, the Commission notified
Appellant that his request was denied.         (R.R. at 68a.)    This letter also advised
Appellant that his case was “closed” and that he had “no further appeal rights with
the Commission.” Id. Further, the letter reminded Appellant of his right to file a
complaint with the common pleas court under section 12(c) of the Act, stating that,

             You are reminded that pursuant to Section 12(c) of the
             [Act], 43 [P.S.] Section 962(c), you have the right, upon the
             dismissal of your case, to file a complaint in the Court of


                                           4
             Common Pleas of the county where the alleged unlawful
             discriminatory practice took place. If you desire to do this,
             and have not already done so, you should file the complaint
             as soon as possible.
Id.
             On July 26, 2013, Appellant filed a complaint with the trial court
reiterating his claim that he was not hired for the fixed utility manager position due to
unlawful age discrimination. (R.R. at 61a-64a.) Appellant alleged in this complaint
that he was more qualified for that position than Diskin, the 51-year-old male who
was eventually hired, and had more experience performing many of the duties of that
position.   (R.R. at 62a.)    The PUC filed preliminary objections asserting that
Appellant did not aver that a complaint had been first filed with the Commission,
after which Appellant filed an amended complaint on July 22, 2014, addressing this
error. The PUC filed preliminary objections to the amended complaint alleging that
Appellant failed to state a claim because his original complaint filed on July 26,
2013, was untimely. The PUC noted that Appellant had two years to initiate a claim
in the trial court in accordance with section 12(c)(2) of the Act. The PUC stated that
the two-year period began to run with the June 3, 2011 right-to-sue letter/notice
provided to Appellant, and not with its July 27, 2011 letter, which merely denied
Appellant’s request for a preliminary hearing due to a lack of new evidence.
             In the interim, Appellant filed another complaint with the Commission,
alleging that he was denied a second newly-advertised fixed utility manager position
due to unlawful age discrimination. (Supplemental Reproduced Record (S.R.R.) at
6b.) Appellant was 65 years of age at the time this position was advertised and it was
eventually filled by Darren Gill, a 44-year-old male.         Id.   Appellant’s second
complaint was dismissed and closed on December 17, 2012. Less than two years
later, on December 12, 2014, Appellant filed a second complaint with the trial court,


                                           5
again alleging that he was not hired for the fixed utility manager position due to
unlawful age discrimination. Appellant also alleged that he was more qualified than
Gill because he had more supervisory experience and training in the area of
emergency preparedness. (S.R.R. at 3b-8b.) By order dated February 22, 2017, the
trial court consolidated Appellant’s cases. (R.R. at 17a.)
                By order dated June 26, 2017, the trial court sustained the PUC’s
preliminary objections and dismissed Appellant’s amended complaint with
prejudice.3 (R.R. at 10a-11a.) The trial court agreed with the PUC that Appellant
failed to state a claim because his original complaint was untimely filed. (R.R. at
10a.) The trial court explained that the Commission issued its dismissal and right-to-
sue letter/notice on June 3, 2011, which initiated the two-year statute of limitations
under section 12(c)(2) of the Act, but Appellant did not file his original complaint
until July 26, 2013. Id.
                The trial court also relied on sections 42.61 and 42.63 of the
Commission’s regulations in support of its opinion. Section 42.61 addresses the
dismissal and closing of complaints when the Commission finds that no probable
cause exists to credit the allegations of a complaint, as well as the procedure for
notifying parties of such decisions, including written notification.                      16 Pa. Code
§42.61.4 The trial court reiterated that the Commission’s June 3, 2011 letter/notice

       3
         Although the cases were consolidated, the trial court’s order only addressed Appellant’s
original complaint, which was subsequently amended. The trial court’s order did not address
Appellant’s second complaint which was timely filed on December 12, 2014. In its brief, the PUC
notes that the second complaint remains pending before the trial court.

       4
           Section 42.61 provides as follows:

                (a)      If, after investigation, the staff determines that no probable
                      cause exists to credit the allegations of the complaint or if, during
(Footnote continued on next page…)

                                                     6
constituted the required written notification to Appellant of the dismissal of his case.
(R.R. at 10a.)        Section 42.63 of the regulations addresses the actions of the
Commission on a request for a preliminary hearing, including the decision on


(continued…)

                    or after investigation, the staff determines that the case is
                    untimely filed, that the case is moot, that the Commission lacks
                    jurisdiction, that the parties have reached an agreement adjusting
                    the complaint or that another reason exists which legally justifies
                    the dismissal of the complaint, the staff will make a finding
                    reflecting that determination.

              (b)      A staff finding will be reported to the Executive Director, who
                    may close the case or take other action as may be deemed
                    necessary or appropriate. The Executive Director may appoint, in
                    writing, another staff person who is authorized to close cases in
                    the Executive Director’s absence.

              (c)      Whenever a case is closed, the Commission will notify all
                    parties in writing of the following:

                       (1)      The closing, together with a statement of the
                             reason therefor.

                       (2)       The right of the complainant to request a
                             preliminary hearing in accordance with §42.62
                             (relating to request for a preliminary hearing).

                       (3)      The right of the complainant to bring an action
                             in the court of common pleas of the county
                             wherein the alleged unlawful discriminatory
                             practice took place. The duty of the complainant to
                             serve a copy of the court complaint on the
                             Commission, in an action so brought, at the same
                             time the complaint is filed in court.

16 Pa. Code §42.61(a)-(c).




                                                   7
whether to grant or deny the same and the requirement for written notification to the
parties. 16 Pa. Code §42.63.5 The trial court stated that section 42.63 supports the


      5
          Section 42.63 states as follows:

                (a)        A request for a preliminary hearing will be referred to a staff
                      counsel who will review the file, consider new evidence, secure
                      new information as may be necessary or appropriate, and who
                      shall recommend one of the following:

                         (1)     That the request be denied.

                         (2)     That probable cause exists to credit the
                         allegations of the complaint, on the record currently
                         before staff counsel, without the need for a preliminary
                         hearing.

                         (3)     That the case should be reopened for further
                         investigation or other appropriate action, without the
                         need for a preliminary hearing.

                         (4)    That a preliminary hearing is necessary or
                         appropriate under §42.65(a) (relating to conduct of
                         preliminary hearing).

                (b)       If the staff counsel recommends that a request for a
                      preliminary hearing be granted, and that a preliminary hearing be
                      convened under subsection (a)(4), the recommendation shall be
                      made and reported to the Executive Director, who may grant the
                      request and convene a preliminary hearing, or take other action as
                      the Executive Director may deem necessary or appropriate.

                (c)       If the staff counsel recommends that a request for a
                      preliminary hearing be granted, because probable cause exists
                      under subsection (a)(2), the recommendation shall be made and
                      reported to the Executive Director, who may grant the request,
                      reopen the case, and approve a finding of probable cause, or take
                      other action as the Executive Director deems necessary or
                      appropriate. If a finding of probable cause is made, the case will
(Footnote continued on next page…)

                                                     8
conclusion that the present case was closed before the July 27, 2011 letter, since one
of the actions the Commission could take on a request for a preliminary hearing is to
reopen a case. (R.R. at 11a.) The trial court noted that the July 27, 2011 letter denied
Appellant’s preliminary hearing request and merely reminded him of his “rights and
the running of the statute [of limitations].” Id.
              Appellant thereafter filed a notice of appeal with the trial court, as well
as a concise statement of errors complained of on appeal.                          (R.R. at 5a-9a.)
Specifically, Appellant alleged that the trial court erred in concluding that the


(continued…)

                    thereafter proceed in accordance with § 42.71 (relating to finding
                    of probable cause).

              (d)       If the staff counsel recommends that a request for a
                    preliminary hearing be granted, and that further investigation or
                    other action take place under subsection (a)(3), the
                    recommendation will be made and reported to the Executive
                    Director, who may grant the request, reopen the case, and institute
                    further investigation, or take other action the Executive Director
                    deems necessary or appropriate.

              (e)       If the staff counsel recommends that a request for a
                    preliminary hearing be denied, or if the Executive Director
                    determines that a recommendation to grant a request for a
                    preliminary hearing should be denied under subsection (b), (c) or
                    (d), the recommendation or determination will be made and
                    reported to the Commissioners, who may grant or deny the
                    request for a preliminary hearing or take other action as they may
                    deem necessary or appropriate.

              (f)       The Commission will notify all parties, in writing, of its action
                    in either granting or denying the request for a preliminary hearing.

16 Pa. Code §42.63(a)-(f).




                                                   9
Commission’s June 3, 2011 letter/notice, rather than its July 27, 2011 letter,
constituted notice of the closing of his case and, hence, that his complaint was
untimely filed. (R.R. at 5a.) Appellant also alleged that the trial court erred in
finding that notice of dismissal of a complaint and notice of closing the case are the
same action. (R.R. at 6a.) The trial court did not issue a supplemental opinion in
support of its June 26, 2017 order but instead found that the issues raised by
Appellant were adequately addressed in the opinion accompanying that order.


                                            Discussion
               On appeal,6 Appellant reiterates his argument that the trial court erred
and/or abused its discretion in concluding that his complaint was untimely filed under
section 12(c)(2) of the Act. We agree.
               Section 12(c) of the Act provides as follows:

               (1) In cases involving a claim of discrimination, if a
               complainant invokes the procedures set forth in this act, that
               individual’s right of action in the courts of the
               Commonwealth shall not be foreclosed. 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.

       6
          In reviewing a trial court’s order sustaining preliminary objections, the standard of review
is de novo and the scope of review is plenary. Williams v. City of Philadelphia, 164 A.3d 576, 584
(Pa. Cmwlth. 2017), aff’d, 188 A.3d 421 (Pa. 2018). In order to sustain preliminary objections, it
must appear with certainty that the law will not permit recovery and, where any doubt exists as to
whether the preliminary objections should be sustained, that doubt should be resolved by a refusal
to sustain them. Id.



                                                 10
             (2) An action under this subsection shall be filed within
             two years after the date of notice from the Commission
             closing the complaint. Any complaint so filed shall be
             served on the Commission at the time the complaint is filed
             in court. The Commission shall notify the complainant of
             this requirement.

             (3) 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 employes, granting of
             back pay, or any other legal or equitable relief as the court
             deems appropriate. Back pay liability shall not accrue from
             a date more than three years prior to the filing of a
             complaint charging violations of this act.

             (4) The court shall serve upon the Commission any final
             order issued in any action brought under this subsection.
43 P.S. §962(c)(1)-(4) (emphasis added).
             Appellant alleges that the trial court’s interpretation of the terms
“closed” and “dismissed” as related to section 12(c)(2) of the Act, and its reliance
upon the Commission’s regulations for support, violates the Statutory Construction
Act of 1972 (Statutory Construction Act), 1 Pa.C.S. §§1501-1991. Appellant avers,
contrary to the rules of statutory construction, that the trial court’s interpretation
“fails to give full effect to the provisions of the [Act] enacted by the General
Assembly, usurps the legislative prerogative, impermissibly alters the framework set
in the statute, and treats the General Assembly’s language regarding the statute of
limitations as mere surplusage.” (Appellant’s brief at 7-8) (emphasis in original).
Appellant further describes section 42.61 of the Commission’s regulations as
“confused, defective, and fatally flawed.” (Appellant’s brief at 12.) We agree with
Appellant.


                                           11
             Certainly, the focus of any statutory construction analysis is the
legislative intent behind the enactment.        Indeed, section 1921 of the Statutory
Construction Act provides, in pertinent part, as follows:

             (a)     The object of all interpretation and construction of
                   statutes is to ascertain and effectuate the intention of
                   the General Assembly.         Every statute shall be
                   construed, if possible, to give effect to all its
                   provisions.

             (b)     When the words of a statute are clear and free from
                   all ambiguity, the letter of it is not to be disregarded
                   under the pretext of pursuing its spirit.
1 Pa.C.S. §1921(a), (b).
             In the present case, the words of the statute are clear. Section 12(c)(2)
of the Act states that the two-year time period within which a complainant must
initiate an action in the common pleas court begins to run from “the date of notice
from the Commission closing the complaint.” 43 P.S. §962(c)(2) (emphasis added).
This language is included in the Commission’s regulations cited and relied on by the
trial court. Specifically, section 42.61(c) of these regulations provides, “[w]henever a
case is closed, the Commission will notify all parties in writing of . . . [t]he closing,
together with a statement of the reason therefor.” 16 Pa. Code §42.61(c) (emphasis
added).
             The Commission’s June 3, 2011 letter/notice states as follows:

             This letter will notify you that the [Commission] has
             investigated the above referenced complaint of unlawful
             discrimination and has determined that the complaint
             should be dismissed because the facts of the case do not
             establish that probable cause exists to credit the allegations
             of unlawful discrimination. Enclosed is a Notice of the
             complainant’s further rights in this matter.



                                           12
               The Pennsylvania Human Relations Act affords the
               complainant and the respondent the opportunity for
               comments after the final disposition of the complaint. If
               you wish to make written comments regarding the
               investigation of the complaint, please send them to Edward
               Rogers, the Director of Compliance, at the above address.
               Your comments will be provided to the Commission
               members.
(R.R. at 43a) (emphasis added).     Nowhere in this letter/notice does the Commission
advise Appellant that his case was closed.        Rather than simply indicating that
Appellant’s complaint is dismissed, the Commission opts to inform Appellant that his
complaint “should be dismissed.” Id. At the very least, the Commission’s use of the
words “should be” renders the letter itself somewhat ambiguous.           Further, this
language, coupled with the language of the second paragraph of the letter, i.e., “after
the final disposition of the complaint,” seemingly implies that the matter was not in
fact closed.    The second paragraph notes the opportunity of a complainant and
respondent to provide comments after final disposition of the complaint, which
comments will be provided to the members of the Commission. Such language
suggests that the Commission members could take further action in response to the
comments.
               Moreover, although the “NOTICE OF RIGHTS OF COMPLAINANTS
AFTER DISMISSAL OF COMPLAINT” that was attached to the June 3, 2011 letter
advised Appellant of his right to file a complaint with the common pleas court “upon
the dismissal of your case,” this notice goes on to state that such complaint “must be
filed within two (2) years after the date of the notice from the commission closing the
complaint.” (R.R. at 44a) (emphasis added). This language suggests that the terms
“dismissal” and “closing” reflect separate events, i.e., the Commission will take
further action to close a case. At the very least, this language is ambiguous and
confusing to complainants, especially in light of the fact that said notice also advises

                                          13
complainants of their right to request a preliminary hearing, which, as noted above,
suggests that the matter is not in fact closed.
             Importantly, we note that Appellant’s complaint was originally closed
by the Commission by letter/notice dated July 21, 2008. The 2008 letter specifically
advised Appellant that his complaint was “closed administratively.” (R.R. at 73a.)
However, following Appellant’s request for a preliminary hearing, the Commission
reopened the case and noted that further investigation would follow.                Upon
completion of that investigation, the Commission issued the June 3, 2011 letter/notice
to Appellant. Nevertheless, the Notice of Rights that was included with this letter,
which was identical to the one attached to the 2008 letter, references the right of a
complainant to request a preliminary hearing in the matter. Appellant requested
another preliminary hearing, but this request was denied. The Commission advised
Appellant of this denial in its July 27, 2011 letter. This letter provided as follows:

             The [Commission] has completed its review of your
             Request for a Preliminary Hearing. Based upon that
             review, the Commission voted to deny your request at its
             July 25, 2011 Commission meeting of [sic] on the grounds
             that you presented no facts or evidence not considered at
             the time of the original finding or no facts or evidence that
             would alter the original finding.

             As a result of this decision, the Commission has closed
             your case. You have no further appeal rights with the
             Commission.

             You are reminded that pursuant to Section 12(c) of the
             Pennsylvania Human Relations Act, 43 [P.S.] Section
             962(c), you have the right, upon dismissal of your case, to
             file a complaint in the Court of Common Pleas of the
             county where the alleged unlawful discriminatory practice
             took place. If you desire to do this, and have not already
             done so, you should file the complaint as soon as possible.
             You may also wish to consult a private attorney about this


                                            14
              right and about any other rights you may have in this
              matter.
(R.R. at 68a) (emphasis added). The July 27, 2011 letter from the Commission, for
the first time, advises Appellant in clear and definitive language that his case was
closed. According to section 12(c)(2) of the Act, it is the closing of the complaint
that initiates the two-year statute of limitations for filing a complaint with the
common pleas court.         Given the express language of the statute, it was not
unreasonable for Appellant to believe that the two-year period for filing a complaint
with the trial court began as of the date of this letter.


                                        Conclusion
              Based upon the clear language of section 12(c)(2) of the Act, along with
the language used by the Commission in its July 27, 2011 letter, the trial court erred
in sustaining the PUC’s preliminary objections and dismissing Appellant’s amended
complaint, originally filed on July 26, 2013, as untimely.
              Accordingly, the order of the trial court is reversed, and the matter is
remanded to the trial court for further proceedings relative to Appellant’s amended
complaint.




                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge



Judge Fizzano Cannon did not participate in this decision.




                                             15
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


H. Edwin Rodrock,                          :
                 Appellant                 :
                                           :    No. 998 C.D. 2017
             v.                            :
                                           :
Commonwealth of Pennsylvania,              :
Public Utility Commission                  :


                                          ORDER


             AND NOW, this 9th day of January, 2019, the order of the Court of
Common Pleas of Dauphin County (trial court), dated June 26, 2017, is hereby
reversed. The matter is remanded to the trial court for further proceedings consistent
with this opinion.
             Jurisdiction relinquished.



                                               ________________________________
                                               PATRICIA A. McCULLOUGH, Judge
