Opinion
No. 904 C.D. 2014
06-25-2015
Bryan Garner, Appellant v. Southeastern Pennsylvania Transportation Authority
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Bryan Garner appeals pro se from the order of the Court of Common Pleas of Philadelphia County (trial court) that granted the motion for summary judgment filed by the Southeastern Pennsylvania Transportation Authority (SEPTA) and dismissed Garner's action against SEPTA. We reject SEPTA's argument that Garner's appeal should be dismissed as untimely. We conclude that the trial court did not abuse its discretion in granting SEPTA's motion for summary judgment as uncontested and that Garner was barred from seeking judicial remedies due to his failure to timely avail himself of the administrative process. Accordingly, we affirm.
The record reveals the following facts. Garner began his employment with SEPTA as a bus driver in June 1999. In February 2000, he sustained a work-related back injury and began receiving workers' compensation benefits. He returned to work in August 2000 and signed a final receipt in September 2000. In August 2002, he called in sick and stopped working. In January 2003, his physician diagnosed him with sleep apnea and disallowed him to work as a driver. SEPTA then placed him on a waiting list for a cashier position. While waiting for a position to be available, he was on a sick leave. Under the collective bargaining agreement between SEPTA and the union, he was entitled to a certain number of sick days.
In a letter dated February 27, 2003, SEPTA's director of transportation, Michael Liberi, informed Garner that his remaining sick days would expire on March 29, 2003. Liberi told him to report to SEPTA's medical department by March 28 for a return-to-work physical examination. Liberi advised him that if he did not return to work on or before March 29, his employment would be terminated for expiration of sick leave entitlement. When he did not return to work as directed, Liberi sent him a letter on March 29, 2003, informing him that his employment was terminated as of March 29 due to the expiration of sick leave entitlement. Liberi prepared paper work indicating that he was ineligible for rehire under the standard practice because he was discharged for the expiration of sick leave entitlement.
In May 2003, Garner filed a petition to set aside a final receipt and reinstate workers' compensation benefits, alleging that he suffered from an enlarged liver caused by medications taken for the 2000 work injury. The Workers' Compensation Judge awarded him disability benefits from July 28, 2002 to July 28, 2003. The Workers' Compensation Appeal Board reversed, and this Court affirmed in Garner v. Workers' Compensation Appeal Board (Southeastern Pennsylvania Transportation Authority) (Pa. Cmwlth. No. 1559 C.D. 2007, filed February 25, 2008). In 2004 and 2008, Garner applied for positions with SEPTA and was not hired. The last time he applied for a position with SEPTA was on October 27, 2008.
On December 31, 2009, Garner filed a discrimination charge with the United States Equal Employment Opportunity Commission (EEOC), alleging that SEPTA discriminated against him based on his disability in failing to rehire him. He dual-filed the discrimination charge with the Pennsylvania Human Relations Commission (Commission). The Commission closed the case and informed him on January 6, 2011 that he had a right to file an action against SEPTA within two years. On March 24, 2011, the United States Department of Justice also notified him that he had the right to file an action against SEPTA within 90 days.
On January 7, 2013, Garner pro se commenced the instant action against SEPTA. He alleged that SEPTA violated the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951 - 963, by discriminating against him based on his perceived disability. He stated that SEPTA failed to offer him an alternative position before his entitlement to sick leave expired and that he was subject to a disparate treatment. He sought compensatory and punitive damages against SEPTA.
Section 5(a) of the Act, 43 P.S. § 955(a), prohibits employers from discriminating against employees on the basis of non-job related disability.
On December 13, 2013, SEPTA filed a motion for summary judgment, arguing that Garner's claims were time-barred under Section 9(h) of the Act, 43 P.S. § 959(h), which requires a complaint to be filed with the Commission within 180 days "after the alleged act of discrimination." SEPTA averred that Garner filed the discrimination charge with the Commission on December 31, 2009, more than 180 days after he last applied for a position with SEPTA on October 27, 2008. SEPTA further argued that he failed to state a valid discrimination claim. When Garner did not timely file a response to the motion for summary judgment, the motion was assigned to a trial judge for disposition on January 15, 2014. In an order dated January 15, 2014, the trial judge granted the motion for summary judgment and dismissed Garner's action against SEPTA. On the same day, Garner filed a response to the motion. On February 18, 2014, Garner appealed the trial court's order to the Superior Court which transferred the appeal to this Court.
In the subsequently filed opinion, the trial court stated that it properly granted the motion for summary judgment as uncontested when Garner failed to timely file a response to the motion within 30 days after service of the motion. As to the merits of the motion, the court stated that he was precluded from pursuing the disability discrimination claim in the court because he failed to file the complaint with the Commission within 180 days after SEPTA's last alleged act of discrimination. The court further stated that he failed to establish a prima facie case of disability discrimination.
To establish a prima facie case of disability discrimination, a plaintiff must show that he or she (1) is disabled within the meaning of the Act, (2) is otherwise qualified for the job, with or without reasonable accommodations, and (3) was subjected to an adverse employment decision as a result of discrimination. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010).
We will first consider SEPTA's argument that Garner's appeal filed on February 18, 2014 should be quashed as untimely because it was filed more than 30 days after the trial court's January 15, 2014 order.
An appeal period is jurisdictional and may not be extended as a matter of grace or mere indulgence; otherwise there would be no finality to judicial action. City of Phila. v. Tirrill, 906 A.2d 663, 665 (Pa. Cmwlth. 2006). The timeliness of an appeal may be raised by any party or by the court sua sponte at any stage of the proceeding. City of Phila. v. Frempong, 865 A.2d 314, 317 (Pa. Cmwlth. 2005).
The time period for filing an appeal with appellate courts is "governed by general rules." Section 5571(a) of the Judicial Code, as amended, 42 Pa. C.S. § 5571(a). Rule 903(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 903(a), provides that "[e]xcept as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken." [Emphasis added.] The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure is "the date on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b)." Pa. R.A.P. 108(b). Although an appellate court for good cause shown may upon application enlarge the time prescribed by the appellate rules, "the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review." Pa. R.A.P. 105(b).
Pa. R.A.P. 107 incorporates by reference Sections 1901 through 1991 of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1901 - 1991, for the interpretation of the rules of appellate procedure, so far as they are not inconsistent with any express provision of the rules. Under Sections 1908 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1908, any period of time in the rules of appellate procedure must be computed by excluding the first day and including the last day of the period. See Note to Pa. R.A.P. 903. In addition, "[w]henever the last day of any ... period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation" of the period. 1 Pa. C.S. § 1908.
The trial court's docket entry shows that the court's January 15, 2014 order was entered in the docket on January 16. The docket entry made on January 17 states that notice of the entry of order required by Rule 236 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 236, was "GIVEN ON 17-JAN-2014." When the 30-day appeal period is computed excluding the first day of the period, the last day of the appeal period would usually fall on February 16, 2014. We take judicial notice that February 16, 2014 was Sunday and that Monday, February 17 was President's Day, which is a federal holiday and also a state holiday under Section 1 of the Act of May 31, 1893, P.L. 188, 44 P.S. § 11 (holidays designated). The last day of the 30-day appeal period, therefore, fell on Tuesday, February 18, 2014. Garner's appeal filed on February 18, 2014, therefore, was timely.
Garner argues that the trial court erred in granting the motion for summary judgment on the basis that he failed to timely file a response to the motion. He further argues that the trial court improperly granted the motion for summary judgment when there were genuine issues of material fact.
Our review of the trial court's order in this matter is limited to determining whether the trial court abused its discretion in granting the motion for summary judgment as uncontested. Harris v. Hanberry, 613 A.2d 101, 102 (Pa. Cmwlth. 1992). --------
Any party may move for summary judgment in whole or in part after the close of relevant pleadings under the following circumstances:
(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, orPa. R.C.P. No. 1035.2. The nonmoving 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 for summary judgment, identifying:
(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.
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, orPa. R.C.P. No. 1035.3(a).
(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.
SEPTA filed the motion for summary judgment and the certificate of service of the motion on December 13, 2013. Certified Record, Item 12. When Garner failed to timely file a response to the motion within 30 days, the motion was assigned to the trial judge for disposition on January 15, 2014. Pa. R.C.P. No. 1035.3(d) provides that "[s]ummary judgment may be entered against a party who does not respond" to the motion for summary judgment. It is within the discretion of the trial court sua sponte to decide whether the non-moving party should be allowed to respond to the motion for summary judgment after expiration of the 30-day period to respond. Commonwealth ex rel. Fisher v. Jash Int'l Inc., 847 A.2d 125, 130 (Pa. Cmwlth. 2004). In this matter, the trial court exercised its discretion in deciding to grant the motion as uncontested and dismiss Garner's action without giving him an opportunity to respond to the motion. We will not disturb the court's exercise of its discretion.
Although it is unnecessary to further discuss Garner's argument, we must note that under the undisputed facts, Garner's action was barred due to his failure to timely file the discrimination charge with the Commission. One who has claims cognizable under the Act must avail himself or herself of the administrative process of the Commission or be barred from seeking the judicial remedies provided in the Act. Vincent v. Fuller Co., 616 A.2d 969, 974 (Pa. 1992). By necessary implication, "one who files a complaint with the Commission that is later found to be untimely cannot be considered to have used the administrative procedures provided in the Act." Id. Consequently, if a plaintiff fails to timely file a complaint with the Commission within 180 days after the alleged act of discrimination, as required by Section 9(h) of the Act, the plaintiff "is precluded from judicial remedies under the [Act]." Yeager v. UPMC Horizon, 698 F. Supp.2d 523, 535 (W.D. Pa. 2010).
SEPTA's last alleged act of discrimination occurred on October 27, 2008, when Garner applied for a position with SEPTA and was not hired. He filed the discrimination charge with the Commission on December 31, 2009, more than 14 months after the last alleged act of disability discrimination. He was, therefore, precluded from seeking judicial remedies under the Act. He argues, however, that his discrimination claim was not time-barred because SEPTA's alleged discrimination was of a continuing nature. Where a plaintiff challenges not just one unlawful incident of conduct, but an unlawful practice that continues into the limitations period, the complaint is timely when it is filed "within 180 days of the last asserted occurrence of that practice." Girard Fin. Co. v. Pa. Human Relations Comm'n, 52 A.3d 523, 532 (Pa. Cmwlth. 2012) [quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 381 (1982)]. Assuming arguendo that Garner was subject to SEPTA's discriminatory practice, Garner was still required to file a complaint with the Commission within 180 days of the last occurrence of such practice on October 27, 2008.
Accordingly, the trial court's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of June, 2015, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge