            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sonya Edmonds,                                :
                       Appellant              :
                                              :
                v.                            : Nos. 742, 764 C.D. 2017
                                              : Argued: March 8, 2018
Corizon Health, Inc. and                      :
City of Philadelphia                          :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                        FILED: March 28, 2018


                Sonya Edmonds (Edmonds) appeals the orders of the Court of
Common Pleas of Philadelphia County (trial court) granting Corizon Health, Inc.
(Corizon) and the City of Philadelphia’s (City) unanswered motions for summary
judgment pursuant to Pennsylvania Rule of Civil Procedure No. 1035.3(d).1


      1
          Pa.R.C.P. No. 1035.3 provides, in pertinent part:

                (a) Except as provided in subdivision (e), the adverse party may
                not rest upon the mere allegations or denials of the pleadings but
                must file a response within thirty days after service of the motion .
                ...

                                                   ***

(Footnote continued on next page…)
                                          I.
             Corizon is a private corporation that provides healthcare within the
Philadelphia Prison System (PPS). The City has final decision-making authority as
to who can enter the PPS facilities, and Corizon employees must obtain a security
clearance from the City as a condition to their employment.


             On June 2, 2014, Corizon made an offer to hire Edmonds as a
Registered Nurse (RN) in the PPS, contingent upon her successful completion of
pre-hire background checks as well as obtaining a security clearance from the City.
However, because the City did not grant Edmonds a security clearance due to a
prior arrest and criminal charges, Corizon subsequently rescinded its offer of
employment.


             On July 8, 2015, Edmonds filed a complaint against Corizon and the
City, later amended. In her amended complaint, Edmonds averred that she was
arrested as a juvenile over 30 years ago, that the charges were eventually
dismissed, and that her juvenile record was expunged. Despite her history, “[f]rom
1998 to 2004, Ms. Edmonds had worked for Corizon under its former name, Prison
Health Services, Inc., and was assigned to a worksite within the [PPS]. During that
time, she satisfactorily performed the duties of her job.” (Reproduced Record
(R.R.) at 81a.)


(continued…)

             (d) Summary judgment may be entered against a party who does
             not respond.



                                          2
                 Given her prior satisfactory employment with the PPS, Edmonds
contends that Corizon violated Section 9125 of the Criminal History Record
Information Act (CHRIA)2 when denying her employment based on her expunged
criminal record. She did not assert any violation of CHRIA by the City.


                 Edmonds further asserts that Corizon and the City (by “aid[ing] and
abet[ing]” Corizon) violated Sections 5(a) and (e) of the Pennsylvania Human
Relations Act (PHRA)3 because “[s]tatistics show African-Americans are arrested

       2
           Section 9125 of CHRIA, 18 Pa.C.S. §9125, provides, in relevant part:

                 (a) General rule.--Whenever an employer is in receipt of
                 information which is part of an employment applicant’s criminal
                 history record information file, it may use that information for the
                 purpose of deciding whether or not to hire the applicant, only in
                 accordance with this section.

                 (b) Use of information.--Felony and misdemeanor convictions may
                 be considered by the employer only to the extent to which they
                 relate to the applicant’s suitability for employment in the position
                 for which he has applied.

       3
           Section 5(a) of PHRA states that it shall be unlawful:

                 (a) For any employer because of the race …, to refuse to hire or
                 employ or contract with, or to bar or to discharge from
                 employment such individual or independent contractor, or to
                 otherwise discriminate against such individual or independent
                 contractor with respect to compensation, hire, tenure, terms,
                 conditions or privileges of employment or contract, if the
                 individual or independent contractor is the best able and most
                 competent to perform the services required. . . .

         Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a). Section 5(e) of PHRA
states that it shall be unlawful:

(Footnote continued on next page…)
                                                  3
in numbers disproportionate to their representation in the general population.” (Id.
at 83a, 86a.) “Studies also show that person[s] who have not had a criminal history
within seven (7) years have low recidivism rates and are as likely to be charged as
a person with no criminal history. These studies support a finding that criminal
record exclusions have a disparate impact based on race.” (Id. at 83a.)


                  Edmonds also alleges that Corizon violated Article I, Sections 1 and
26 of the Pennsylvania Constitution.4


(continued…)

                  For any person, employer, employment agency, labor organization
                  or employe, to aid, abet, incite, compel or coerce the doing of any
                  act declared by this section to be an unlawful discriminatory
                  practice, or to obstruct or prevent any person from complying with
                  the provisions of this act or any order issued thereunder, or to
                  attempt, directly or indirectly, to commit any act declared by this
                  section to be an unlawful discriminatory practice.

Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(e).

        4
            Article I, Section 1 of the Pennsylvania Constitution provides:

                  All men are born equally free and independent, and have certain
                  inherent and indefeasible rights, among which are those of
                  enjoying and defending life and liberty, of acquiring, possessing
                  and protecting property and reputation, and of pursuing their own
                  happiness.

Pa. Const. art. I, § 1. Article I, Section 26 of the Pennsylvania Constitution provides:

                  Neither the Commonwealth nor any political subdivision thereof
                  shall deny to any person the enjoyment of any civil right, nor
                  discriminate against any person in the exercise of any civil right.

Pa. Const. art. I, § 26.


                                                   4
             On September 6, 2016, Corizon and the City filed separate motions
for summary judgment, and Edmonds responded that she had not had the
opportunity to take discovery.     The trial court denied those motions without
prejudice, granting Edmonds’ request for more time to complete discovery.


             After discovery was completed, Corizon and the City filed renewed
motions for summary judgment along with supporting evidence.                Corizon
contended that Edmonds failed to support her constitutional claim with evidence
that Corizon was a state actor. With regard to Edmonds’ PHRA claim, Corizon
argued that Edmonds offered no evidence that its employment practices had a
disparate impact on African-American employees. Finally, Corizon argued that it
was entitled to summary judgment on Edmonds’ CHRIA claim because she
presented no evidence that Corizon possessed her criminal history record
information or terminated her employment based on that information.


             The City’s motion for summary judgment asserted that Edmonds’
“aiding and abetting” claim against the City under PHRA failed as a matter of law
because the City was not Edmonds’ employer. Moreover, Edmonds presented no
evidence that the City participated in Corizon’s alleged discriminatory intent or
that Corizon was liable for a discriminatory practice.


             In support of its summary judgment motion, Corizon submitted a
declaration of Amina Calland (Calland), the company’s human resources officer.
She stated that Corizon is an “equal opportunity employer” that maintains a
“company-wide policy” prohibiting racial discrimination. (R.R. at 252a.) Due to


                                          5
the “obvious security concerns,” every Corizon employee must obtain, inter alia,
security clearance from the City to work at a correctional facility, and Corizon is
unable “to override the decision of [the City] with respect to a security restriction.”
(R.R. at 252-53a.) Edmonds knew of that policy.


             Calland stated that on June 19, 2014, she received an email from
Eileen McGinnis (McGinnis), a correctional officer at the PPS. Without giving an
explanation, McGinnis stated that “Deputy Commissioner Gainey did not approve
[] Edmonds’ security clearance.” (R.R. at 254a.) Calland encouraged Edmonds to
contact McGinnis “to see if the issue could be resolved.” (Id.) On June 24, 2014,
Edmonds told Calland that she had contacted McGinnis. Calland then emailed
McGinnis asking “whether the issue of [] Edmonds’ security clearance was open
for discussion.” (Id.) McGinnis replied that Edmonds had submitted all of the
requested paperwork, but her clearance was still denied.              Based on that
information, Calland informed Edmonds that her conditional offer was rescinded.
“Corizon has always rescinded offers of employment in cases where applicants are
denied a security clearance by the City of Philadelphia. Corizon has never made
an exception to this practice.” (Id. at 255a.)


             Calland stated that Corizon later hired Victor Kak, an African-
American, to fill the position “that [] Edmonds would have been hired into if she
had [been] granted a security clearance.” (R.R. at 255a.) Calland further stated
that at the time Edmonds applied for employment in May 2014, Corizon employed
104 registered nurses; 13 are Asian, 45 are African-American, and 46 are




                                           6
Caucasian. A copy of the company policies and email correspondence were also
submitted into the record.


              Because Edmonds did not respond to either motion, the trial court
granted both motions for summary judgment as uncontested and dismissed
Edmonds’ complaint. As the trial court reasoned:

              This Court granted the twin motions for summary
              judgment because they were uncontested. [Edmonds]
              completely failed to raise an issue of material fact for a
              determination by a fact-finding body. In the absence of a
              coherent legal argument explaining why this matter
              should proceed to trial, this Court granted summary
              judgment and disposed of the above-captioned case.

                                             ***

              Pennsylvania Rule of Civil Procedure 1035.3(d)
              specifically permits the entry of summary judgment
              against a party who fails to file a response to a motion for
              summary judgment.


(R.R. at 424a.) Edmonds filed timely appeals from those orders to the Superior
Court, which were then transferred to this Court.5




       5
         On April 20, 2017, Edmonds filed requests for reconsideration of the February 15, 2017
orders, which the trial court denied. Edmonds then appealed the denial regarding the City to this
Court, which we quashed because it was untimely and an order denying reconsideration is not an
appealable order. See Edmonds v. Corizon Health, Inc., (Pa. Cmwlth., 599 C.D. 2017, filed June
15, 2017).



                                               7
                                          II.
             On appeal, Edmonds contends that the trial court erred in granting
what is essentially a default judgment against her on the basis that she failed to file
a timely response to Corizon and the City’s motions for summary judgment
because, on the merits, there are outstanding unresolved issues of material fact.


                                          A.
             Pennsylvania Rule of Civil Procedure No. 1035.2 provides:

             After the relevant pleadings are closed, but within such
             time as not to unreasonably delay trial, any party may
             move for summary judgment in whole or in part as a
             matter of law

                    (1) whenever there is no genuine issue of any
             material fact as to a necessary element of the cause of
             action or defense which could be established by
             additional discovery or expert report, or

                   (2) if, after the completion of discovery relevant to
             the motion, including the production of expert reports, an
             adverse party who will bear the burden of proof at trial
             has failed to produce evidence of facts essential to the
             cause of action or defense which in a jury trial would
             require the issues to be submitted to a jury.


The non-moving party may not rest upon the mere allegations or denials of the
pleadings but must file a response within 30 days after service of the motion for
summary judgment, identifying:

             (1) one or more issues of fact arising from evidence in
             the record controverting the evidence cited in support of


                                          8
             the motion or from a challenge to the credibility of one or
             more witnesses testifying in support of the motion, or

             (2) evidence in the record establishing the facts essential
             to the cause of action or defense which the motion cites
             as not having been produced.


Pa.R.C.P. No. 1035.3(a).      Rule 1035.3(d) further provides that “[s]ummary
judgment may be entered against a party who does not respond.” Pa.R.C.P. No.
1035.3(d).


             Rule 1035.3 imposes upon the non-moving party “a clear duty to
respond to a motion for summary judgment.” Harber Philadelphia Center City
Office v. LPCI Limited Partnership, 764 A.2d 1100, 1104 (Pa. Super. 2000). If the
non-moving party does not respond, the trial court may grant summary judgment.
Pa.R.C.P. No. 1035.3(d). However, just because a motion for summary judgment
is uncontested does not mean that the trial court has authority to enter a default
judgment, regardless of the underlying merits of that motion.           As we have
explained:

             Philadelphia County Local Rule of Civil Procedure
             1035.2(a) provides that “the adverse party . . . must file a
             response to the motion for summary judgment” that

                shall be divided into paragraphs, numbered
                consecutively, corresponding to the numbered
                paragraphs of the motion for summary judgment.
                The response shall state whether each of the
                allegation [sic] is admitted or denied. No general
                denial is acceptable. The factual reasons for the
                denial or dispute must be specifically stated and
                the “record,” (as that term is defined in Pa.R.C.P.


                                          9
                No. 1035.1) supporting the denial or dispute must
                be attached as an exhibit.

            Phila. R.C.P. No. 1035.2(a)(4). Failure to comply with
            applicable rules for responding to a summary judgment
            motion can constitute a basis for concluding that there is
            no genuine dispute of material fact and for granting
            summary judgment against the non-compliant party. See
            Pa.R.C.P. No. 1035.3(d) (providing that “[s]ummary
            judgment may be entered against a party who does not
            respond” to the motion); [Harber, 764 A.2d at 1104-05].
            Accordingly, where a summary judgment motion subject
            to Philadelphia Local Rule 1035.2(a) clearly identifies
            paragraphs as setting forth the facts that it claims are
            undisputed, a trial court may properly apply
            Philadelphia Local Rule 1035.2(a)(4) to hold that the
            adverse party’s failure to specifically respond to those
            paragraphs constitutes an admission that the facts set
            forth by those paragraphs are undisputed.


Evans v. Thomas Jefferson University, 81 A.3d 1062, 1069 (Pa. Cmwlth. 2013)
(emphasis added). A non-moving party’s failure to file a response also waives all
defenses and grounds for relief on appeal. Harber, 764 A.2d at 1105.


                                       B.
            On appeal, it is clear that the trial court issued the equivalent of a
default judgment in reaction to Edmonds’ failure to timely answer Corizon’s and
the City’s motions for summary judgment. Notwithstanding, because we may
affirm on any grounds that have been raised below, we will review whether the
trial court could properly grant summary judgment based upon the factual
averments contained in Corizon’s and the City’s motions.




                                       10
                                                C.
               Reaching the underlying merits of this appeal, Edmonds first contends
that the trial court erred in granting summary judgment in favor of Corizon because
questions of material fact still exist as to whether Corizon is a state actor.
However, even assuming Corizon is a state actor, any right to relief is entirely
dependent on establishing that unlawful discriminatory conduct took place.


               Edmonds contends that the trial court erred in granting summary
judgment in favor of Corizon and the City as it relates to her claim of disparate
impact under the PHRA.6 However, Edmonds has entirely failed to provide any
statistical evidence demonstrating a significantly discriminatory hiring pattern by
Corizon and/or the City. In fact, all evidence proffered in Corizon’s and the City’s
motions for summary judgment points to the contrary that the City’s practices
regarding granting security clearances had a disparate impact. When Edmonds
applied for employment in May 2014, out of the 104 registered nurses employed
by Corizon, 13 were Asian, 45 were African-American, and 46 were Caucasian. In

       6
          The United States Supreme Court in Connecticut v. Teal, 457 U.S. 440 (1982), held that
it is not necessary to prove that a specific practice had a “racial purpose or invidious intent;” a
practice can be “invalid because [it] had a disparate impact.” Id. at 446 (citing Griggs v. Duke
Power Co., 401 U.S. 424 (1971)); see also Girard Finance Co. v. Pennsylvania Human
Relations Commission, 52 A.3d 523 (Pa. Cmwlth. 2012). A plaintiff establishes a prima facie
case for disparate impact by “demonstrat[ing] that application of a facially neutral standard has
caused a ‘significantly discriminatory hiring pattern.’” Newark Branch, NAACP v. City of
Bayonne, N.J., 134 F.3d 113, 121 (3d Cir.1998) (quoting Newark Branch, NAACP v. Town of
Harrison, N.J., 940 F.2d 792, 798 (3d Cir.1991)). This prima facie showing requires the
plaintiff to prove a significant statistical disparity and to “demonstrate that the disparity [she]
complain[s] of is the result of one or more of the employment practices that [she is] attacking.”
City of Bayonne, 134 F.3d at 121 (quoting Wards Cove Packing Co., Inc. v. Atonio, 490 U.S.
642, 657 (1989)).



                                               11
addition, when Corizon rescinded its conditional offer of employment because
Edmonds failed to obtain security clearance, it subsequently “hired Victor Kak,
who is African-American, to fill the RN position that Ms. Edmonds would have
been hired into if she had be[en] granted a security clearance.” (R.R. at 202a.)


             Edmonds next contends that the trial court erred in granting summary
judgment in favor of Corizon for alleged CHRIA violations. Edmonds’ complaint
does not contend that Corizon’s conduct violated CHRIA.


             Contrary to Edmonds’ assertions, the uncontested factual averments in
Corizon’s motion for summary judgment as well as other evidence attached thereto
demonstrate that it did not violate CHRIA. The offered evidence and uncontested
factual averments by Corizon repeatedly demonstrate that “Corizon did not
complete a criminal background check on Ms. Edmonds and never received any
criminal record history related to Ms. Edmonds from any entity.” (R.R. at 204a)
(emphasis added).     Obviously, because Corizon did not consider Edmonds’
criminal history record when rescinding its offer to employ her, it could not have
violated CHRIA.


             Accordingly, for the foregoing reasons, we affirm the trial court’s
orders granting Corizon’s and the City’s separate motions for summary judgment.



                                       _____________________________
                                       DAN PELLEGRINI, Senior Judge



                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sonya Edmonds,                      :
                   Appellant        :
                                    :
            v.                      : Nos. 742, 764 C.D. 2017
                                    :
Corizon Health, Inc. and            :
City of Philadelphia                :




                                  ORDER


            AND NOW, this 28th day of March, 2018, it is hereby ordered that the
orders of the Court of Common Pleas of Philadelphia County in the above-
captioned matters are affirmed.



                                    _____________________________
                                    DAN PELLEGRINI, Senior Judge
