J-S38045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MELISSA SULE                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

ROBERT J. ECHENBERG M.D. - WOMEN'S
HEALTH, PELVIC PAIN AND SEXUAL
WELLNESS, P.C. AND ECHENBERG
INSTITUTE FOR PELVIC AND SEXUAL
PAIN, P.C. AND ROBERT J. ECHENBERG,
M.D.

                            Appellee              No. 3035 EDA 2015


              Appeal from the Order Entered September 17, 2015
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2014-C-3549


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED AUGUST 22, 2016

       Appellant Melissa Sule appeals from the order granting the summary

judgment motion filed by Appellees Robert J. Echenberg, M.D. – Women’s

Health, Pelvic Pain and Sexual Wellness, P.C. (“WHPPSW”), Echenberg

Institute for Pelvic and Sexual Pain, P.C. (“Echenberg Institute”), 1 and

Robert J. Echenberg, M.D. We affirm.

____________________________________________


1
   Echenberg Institute was formed as a Pennsylvania Corporation after Ms.
Sule’s employment with WHPPSW ended.           Answer and New Matter,
3/13/2015, at ¶ 10. Ms. Sule alleged Dr. Echenberg transferred all business
interests and assets of WHPPSW to Echenberg Institute and therefore
Echenberg Institute was a successor in interest to WHPPSW. Complaint,
filed 11/6/2014, at ¶ 14.
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     Ms. Sule was a medical receptionist and/or office administrator for

WHPPSW.     Complaint, filed 11/6/2014, at ¶¶ 20-22; Answer and New

Matter, filed 3/13/2015, at ¶¶ 20-22. She alleges that in January of 2013,

she was diagnosed with a medical condition that required her to take

medical leave for surgery and recovery. Id. at ¶¶ 23-25. She alleges she

informed Dr. Echenberg of the serious medical condition and required

medical leave. Id. Ms. Sule maintains that she contacted WHPPSW and Dr.

Echenberg on March 25, 2013 regarding the reasonable accommodations

she would require when she returned to work.       Id. at ¶ 28.   She alleges

WHPPSW and Dr. Echenberg terminated her employment at that time,

claiming they no longer needed her. Id. at ¶ 29.

     In June of 2013, Ms. Sule had contact with the Pennsylvania Human

Relations Commission (“PHRC”), which resulted in an assigned claim number

of 201204579.   In a letter dated June 7, 2013, Sheldon N. Murray of the

PHRC enclosed a complaint and informed Ms. Sule of the following:

        [F]or the Commission to proceed with its investigation, you
        must:

        1. Review the complaint. If there are any errors in the
        facts as stated, cross through the errors, write in the
        corrections and put your initials beside the changes you
        have made.

        2. Sign the two signature pages and return them with the
        Complaint within ten (10) working days of the letter.

        If the complaint is not returned signed on or before June
        21, 2013, I will assume that you no [sic] longer interested
        in pursuing this matter, [then] your complaint will be
        submitted for suspension of processing.


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          However, if because of an emergency and/or reasons of
          hardship, you are unable to return the complaint on or
          before June 21, 2013, please contact me IMMEDIATELY,
          and appropriate and/or reasonable allowances will be
          made to return your complaint. If you have any questions,
          please contact me.

Defendant’s Motion for Summary Judgment Filed Pursuant to Rule 1035.2 of

the Pennsylvania Rules of Civil Procedure, Exh. A (“June 7, 2013 Letter”).

Ms. Sule did not return a signed complaint or contact the PHRC following

receipt of this letter.

      On August 5, 2013, Mr. Murray sent Ms. Sule another letter, which

stated:

          The complaint[] I sent out for your review on June 7, 2013
          has not been returned to me. If the complaint is not
          returned signed on or before August 19, 2013, I will
          assume that you’re no longer interested in pursuing this
          matter, [then] your complaint will be submitted for
          suspension of processing.     However, if because of an
          emergency and/or reasons of hardship, you are unable to
          return the complaint on or before August 19, 2013, please
          contact me IMMEDIATELY, and appropriate and/or
          reasonable allowances will be made to return your
          complaint. If you have any questions, please contact me.

Plaintiff’s Reply to Defendant’s Motion for Summary Judgment, Exh. B

(“August 5, 2013”).       Ms. Sule also did not return a signed complaint or

contact the PHRC following receipt of this letter.

      On October 17, 2013, Ms. Sule filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”) asserting the same

claims of disability-based discrimination as were previously asserted in her

June 2013 PHRC claim. This EEOC charge was dually filed with the PHRC.



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      On November 6, 2014, Ms. Sule filed a complaint in the court of

common pleas alleging violations of the Pennsylvania Human Relations Act,

43 P.S. § 952, et al., which, inter alia, prohibits discrimination based on a

person’s disability. On July 15, 2015, Appellees filed a motion for summary

judgment, alleging, inter alia, that Ms. Sule failed to file a timely complaint

with the PHRC and therefore failed to exhaust her administrative remedies

as required by the PHRA.     Ms. Sule filed a response.    On September 11,

2015, the trial court conducted a hearing. On September 17, 2015, the trial

court granted Appellees’ motion for summary judgment and dismissed

Appellant’s complaint.   On September 28, 2015, Ms. Sule filed a timely

notice of appeal.

      Ms. Sule raises the following issues on appeal:

         Whether the [c]ourt of [c]ommon [p]leas erred in placing
         the burden of proving that Appellant’s PHRC [c]omplaint
         had not been dismissed by the PHRC before her EEOC
         [c]harge was filed, in light of the [c]ourt’s finding that
         Appellees had not met their initial burden to establish that
         Appellant’s PHRC [c]omplaint was never dismissed by the
         PHRC?

         Whether the [c]ourt of [c]ommon [p]leas erred in holding
         that Appellant’s EEOC [c]harge filed with the EEOC did not
         relate back to the filing date of the timely filed PHRC
         [c]omplaint and therefore, did not cure the defective
         verification of the PHRC [c]omplaint?

Appellant’s Brief at 8. Ms. Sule’s issues are interrelated, and we will address

them together.

      “[S]ummary judgment is appropriate only in those cases where the

record clearly demonstrates that there is no genuine issue of material fact

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and that the moving party is entitled to judgment as a matter of law.”

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

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221

(Pa.2002)). A “trial court must take all facts of record and reasonable

inferences therefrom in a light most favorable to the non-moving party” and

“must resolve all doubts as to the existence of a genuine issue of material

fact against the moving party.” Id. (citing Toy v. Metropolitan Life Ins.

Co., 928 A.2d 186, 195 (Pa.2007)). Therefore, a trial court “may only grant

summary judgment ‘where the right to such judgment is clear and free from

all doubt.’” Id. (quoting Toy, 928 A.2d at 195). This Court “may reverse a

grant of summary judgment if there has been an error of law or an abuse of

discretion.”   Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926

A.2d 899, 902–03 (Pa.2007)).

      Ms. Sule alleged Appellees violated the PHRA. A person cannot file a

cause of action alleging a violation of the PHRA in the court of common pleas

unless he or she first exhausts his or her administrative remedies. 43 P.S. §

962. If a complaint is filed with the PHRC or EEOC, but not resolved by the

PHRC or the EEOC within one year of the filing of the complaint, the

individual can file a complaint in the court of common pleas. 43 Pa.C.S. §

962(c).

      The PHRA provides:

          (a) The complaint shall be filed [with the PHRC] within 180
          days from the occurrence of the alleged unlawful
          discriminatory practice, but the computation of the 180

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        days does not include a period of time which is excludable
        as a result of waiver, estoppel or equitable tolling. If the
        alleged unlawful discriminatory practice is of a continuing
        nature, the date of the occurrence of the practice will be
        deemed to be any date subsequent to the occurrence of
        the practice up to and including the date upon which the
        unlawful discriminatory practice shall have ceased.

        ...

        (c) A complaint will be deemed filed on the date received
        by the Commission.

        (d) 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. Prior
        to the quashing of a complaint, the Commission will notify
        the complainant, in writing, and will provide an opportunity
        to explain why the complaint should not be quashed under
        this section.

16 Pa.Code § 42.14.

     The trial court found:

        Here, Appellant argues that she has satisfied the
        requirements of the PHRA by filing a [c]harge of
        [d]iscrimination with the EEOC that was jointly filed with
        the PHRC against WHPPSW and Dr. Echenberg on October
        17, 2013, and that more than one year has elapsed since
        the filing of the [c]harge with the EEOC. Appellees claim
        that Appellant has failed to exhaust her administrative
        remedies as the [c]harge of [d]iscrimination was filed
        outside of the statutorily mandated 180 day time limit
        from the date of the alleged discrimination and that she is
        thus, “barred from seeking judicial relief on each count of
        the [c]omplaint.” Appellant admits that October 17, 2013,
        was outside of the 180 days, but argues that the filing date
        of her [c]harge of [d]iscrimination should be considered to




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          be June of 2013, when she filed an initial charge with the
          PHRC, but failed to verify and return the [c]omplaint
          mailed to her by the PHRC.[2] The PHRC initially gave
          Appellant’s Claim the Number of 201204579. The October
          17, 2013, filing received the EEOC Number of
          530201400603 and the PHRC Number of 201400574. It is
          unknown whether PHRC claim Number 201204579 was
          dismissed.

                                           ...

          Appellant argues that her initial charge was filed with the
          PHRC in June of 2013, and that [] the October 17, 2013,
          filing was simply a revised charge that was filed to correct
          the defects of the initial charge, namely the lack of a
          verification attached to the [c]omplaint.       In order to
          commence proceedings under the PHRA the complainant
          must file “a verified complaint with the Commission. The
          Commission will, thereafter, enter the complaint on its
          official docket and serve the complaint by sending a copy
          to each named respondent, within 30 days of the date of
          the entry of the complaint on its docket.” 16 Pa. Code
          §42.31 (emphasis added); see also Pa.C.S. § 959 (“Any
          person claiming to be aggrieved by an alleged unlawful
          discriminatory practice may make, sign and file with the
          Commission a verified complaint, in writing . . .”). Further,
          "[t]he filing of a Charge Questionnaire with the Equal
          Opportunity Commission was not sufficient to constitute
          the filing of a verified complaint with the Pennsylvania
          Human Relations Commission.” Standard Pa. Pract. 2d §
          166.869; Kellam v. Independence Charter Sch., 735
          F.Supp. 2d 248, 254-55 (E.D. Pa. 2010) . . . . Federal
          Courts have distinguished the filing date of the initial
          questionnaire which would then be incorporated into a
          formal complaint and the filing date of the formal verified
____________________________________________


2
   “The complaint may be amended [at any time prior to the approval of a
hearing on the merits] to cure technical defects or omissions, to clarify or
amplify allegations made therein, or add material allegations which are
related to or grow out of the subject matter of the original complaint and
these amendments shall relate back to the original filing date of the
complaint.” 1925(a) Opinion, at 11 (quoting 16 Pa.Code 43.35).



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          written complaint with the PHRC for purposes of the
          statute of limitations.   Altopiedi v. Memorex Telex
          Corp., 834 F.Supp. 800, 806-07 (E.D.Pa.1993) (Permitting
          a Complaint filed on the 181st day after Plaintiff was fired
          when he had returned the questionnaire to the PHRC on
          the 178th day after he was fired and it was the
          bureaucratic delay of the PHRC which prevented him from
          filing on time.).[3]

          Here, Appellant never signed and returned the written
          complaint regarding Case No. 201204579, mailed to her by
          Sheldon N. Murray, Human Relations Specialist, from the
          PHRC on June 7, 2013, in response to her initial interaction
          with the PHRC. Appellant failed to sign and return the
          written complaint regarding Case No. 201204579 even
          after receiving a second August 5, 2013, letter from
          Sheldon N. Murray. Thus, the PHRC had no complaint to
          enter on its official docket, no complaint to serve on the
          respondents, and no authority to begin its investigation
          into Appellant’s claims. 16 P[.S.] §959.         Without an
          originally filed [c]omplaint, Appellant has nothing for her
          October 17, 2013, filing to amend. 16 Pa. Code §
          42.35(b)(“original filing date of the complaint.”).

          Generally, if “the facts alleged by a plaintiff claiming
          discrimination should reasonably have led the agency to
          investigate a claim, he must not lose his day in court
          because he stubs his toe on a procedural doorstep.”
          Bailey [v. Storlazzi], 729 A.2d [1206,] 1217
          [(Pa.Super.1999)].       Indeed, “under the principles of
          ‘equitable tolling,’ a claim filed beyond the 180-day time
          limit may be permitted where the defendant misleads the
          plaintiff regarding the cause of action; where extraordinary
          circumstances prevent the plaintiff from asserting his
          rights, and where a plaintiff has asserted his right in a
          timely fashion, but in the wrong forum.” Uber v. Slippery
          Rock Univ. of Pa., 887 A.2d 362, 366 (Pa.Cmwlth.2005).
____________________________________________


3
  Decisions from the federal courts, other than the United States Supreme
Court, are not binding on this Court, but may be considered persuasive
authority. Stone Crushed Partnership v. Kassab Archbold Jackson &
O’Brien, 908 A.2d 875, 883 n.10 (Pa.2006).



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          However, “[c]ourts generally disfavor equitable tolling
          where the plaintiff missed the deadline because of a lack of
          due diligence.” Altopiedi, 834 F. Supp. at 806, relying on
          Irwin v. Veterans Affairs, 498 U.S. 89, 96 (1990).
          Here, Appellant has not alleged any of the foregoing
          exceptions. Instead, Appellant demonstrated a lack of due
          diligence by twice ignoring the requests for her signature
          on the [c]omplaint generated by the PHRC in response to
          her initial charge. Appellant’s failure to file a written
          verified complaint with the PHRC was not the result of
          bureaucratic delay inside the PHRC in generating the
          [c]omplaint, but rather was “the result of unexcusable
          neglect” on the part of Appellant. Altopiedi, 834 F. Supp.
          at 806. Without a properly verified complaint, the PHRC
          could proceed no further with investigation or serving the
          complaint on the appellees. 43 Pa.C.S.[] §959. Thus, the
          [c]ourt granted [s]ummary [j]udgment favor of the
          Appellees as the October 17, 2013, [c]harge of
          [d]iscrimination with the EEOC was filed outside the 180
          day[] statute of limitations for the PHRA claims.
          Appellant’s claims are time-barred and the [c]ourt has no
          jurisdiction because Appellant failed to exhaust her
          administrative remedies.

Opinion, filed 12/10/2015, at 9-13 (“1925(a) Opinion”) (internal citations to

record omitted) (emphasis in original).4

       The trial court did not abuse its discretion or commit an error of law.

Ms. Sule did not file a complaint with the PHRC, and did not respond to two

requests from the PHRC to do so. Without such a complaint, the PHRC could

____________________________________________


4
   Ms. Sule maintains the trial court placed the burden of demonstrating the
original filing had been dismissed on her, which, she argues, was error.
Appellant’s Brief at 15-16. The trial court, however, found Ms. Sule failed to
file a complaint with the PHRC prior to the October 17, 2013 dual filing.
1925(a) Opinion at 14. The disposition of the PHRC case number assigned
in June, and any burden associated therewith, is irrelevant. Id. at 14.




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not investigate the matter or serve Appellees with the allegations, and there

was no prior filing with the PHRC to which the EEOC complaint could relate

back.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2016




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