Articles by Our Attorneys

Why are employment discrimination claims based on Pennsylvania state law primarily filed in federal court? This counter-intuitive practice arises from how Pennsylvania appellate and federal courts have interpreted the Commonwealth’s civil rights law, specifically with respect to the availability of a right to a trial by jury.

What is the PHRA?

The Pennsylvania Human Relations Act (“PHRA”), Title 43 P.S. §§ 951-963 (2020), is the Commonwealth’s employment, housing, and public accommodation anti-discrimination, civil rights law.  Among other things, PHRA provides that an individual has a right to obtain employment for which he or she is qualified without discrimination because of, inter alia, race, color, religious creed, handicap or disability, age, sex, national origin and a few other protected class characteristics.[1]  However, while state employment anti-discrimination laws are often broader than their federal counterparts in a number of respects,[2] the PHRA has been interpreted by the Supreme Court of Pennsylvania to bar the availability of a jury trial to plaintiffs.

Where do PHRA plaintiffs have a right to a jury trial and how does this affect litigation?

The plaintiffs’ right to a state court jury trial under the PHRA was at issue in the Pennsylvania Supreme Court case Wertz v. Chapman Township.[3]  The relevant provision of the PHRA states:

(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 [sic], granting of back pay, or any other legal or equitable relief as the court deems appropriate . . . .[4]

After an exhaustive interpretation of this provision, the Court concluded that the Pennsylvania General Assembly did not intend for a plaintiff to have a right to a jury trial for PHRA claims.[5]

However, federal courts in the Third Circuit Court of Appeals have reached different conclusions with respect to jury trials, pursuant to federal procedural law.  Specifically, the Third Circuit concluded that the right to a jury trial in federal court—even for state law substantive claims—presents a question of federal law under the Seventh Amendment.[6]  Consequently, Third Circuit courts have clearly held that the Seventh Amendment presents a right to a jury trial for plaintiffs seeking compensatory relief under the PHRA.[7]

Due to the importance that many plaintiffs and their counsel place on jury trials, much of the PHRA litigation has been brought in the federal courts.  However, this has led to two specific concerns and strong pushes to amend the PHRA to permit state court jury trials.

First, rural employment-discrimination plaintiffs with valid PHRA claims may be unable to secure legal representation from local counsel who do not want to travel long-distances if practically forced to file in a federal court.  Second, federal jury panels are less racially diverse than state court juries, which may be a particular problem when dealing with employment racial discrimination claims.  Without access to the comparatively more racially diverse state court jury panels, minorities throughout the Commonwealth could be denied the opportunity to litigate their claims before jurors who share their racial and ethnic makeup and sensitivity to acts of racial discrimination.[8]

Efforts to amend the PHRA to permit jury trials

Even prior to the Supreme Court decisions, the Philadelphia Bar Association was urging the Pennsylvania legislature to amend the PHRA to permit state jury trials and make the statute consistent with federal civil rights laws.[9]  More recently, a bill was introduced in the Pennsylvania State Senate’s 2019-2020 Regular Session seeking to amended the PHRA in order to expressly permit the right to a jury trial in state courts for PHRA-based employment discrimination claims.[10]  The bill was last referred to the Labor and Industry Committee on April 18, 2019 without any further action taken.  However, there are currently discussions within the Philadelphia Bar Association to make yet another push to have the Pennsylvania legislature amend the PHRA to permit the right to a jury.

How would state court jury trials impact PHRA employment discrimination claims?

Permitting plaintiffs a right to state court jury trials for PHRA employment discrimination claims would certainly impact employers defending against such claims within the Commonwealth.

In September 1999, the U.S. Department of Justice, Bureau of Justice Statistics, published a report titled “Civil Trial Cases and Verdicts in Large Counties, 1996” (“BJS Report”).[11]  The BJS Report focused on the nation’s 75 largest counties’ state courts—including Philadelphia and Allegheny counties in Pennsylvania.  The BJS Report analyzed how these counties disposed of tort, contract, and real property cases, including employment discrimination cases, in the year 1996.

The BJS Report’s analysis determined that, despite plaintiffs generally finding greater success in bench trials than jury trials across all cases (61% in bench trials compared to 48.7% in jury trials), employment discrimination plaintiffs actually fared worse in bench trials than jury trials.  Specifically, such plaintiffs only prevailed in 26% of bench trials compared to 47.6% in jury trials.[12]

Such plaintiffs were also likely to recover more in damages from juries (median $250,000) than judges (median $75,000).  Further, such plaintiffs were much more likely to receive a large damages award over $250,000 and $1,000,000 from juries (48% and 14.1%, respectively) than from judges (11.7% and 0%, respectively).[13]  Juries were also much more likely than judges to award punitive damages (24 times vs. 1 time) and higher amounts of such damages ($259,000 (median) to $38,000 (actual)).[14]

While the survey is somewhat dated,[15] the disparity in statistics on plaintiffs’ successes with bench and jury trials is quite stark.  This makes it critical to track whether the Pennsylvania legislature will eventually amend the PHRA and practically ensure that Pennsylvania state court juries have the primary say over future employment discrimination claims.  Such a move may significantly shake up employment discrimination in the Commonwealth.  For one, it could certainly lead to an exodus of such litigation from federal courts to state courts.  Second, it could also impact the business climate in the Commonwealth and help alter the risk-benefit calculus of Pennsylvania businesses and employers.

Felix Yelin is an attorney at MacElree Harvey, Ltd., working in the firm’s Litigation practice groups.  Felix has experience across a number of diverse practice areas, including appellate, first party insurance coverage, class actions, construction defect, construction accident, products liability, insurance defense, toxic torts, and some employment-related issues.  He has been a part of a number of high-profile tort trials across the United States involving national litigation. Felix Yelin has also drafted winning appellate briefs filed before the United States Court of Appeals for the Third Circuit and the Superior Court of Pennsylvania. 

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups.  Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters.  Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels businesses on commercial contract matters.

[1]   43 Pa. Stat. Ann. § 953 (West) (2020).

[2] NCSL, “Discrimination – Employment Laws,” https://www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx, July 27, 2015.

[3] 559 Pa. 630, 741 A.2d 1272 (1999).

[4] 43 Pa. Stat. Ann. § 962.

[5] Wertz, 741 A.2d at 1275.

[6] Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 313 (3d Cir. 2007), as amended (Aug. 28, 2007); see also U.S. Const. amend. VII.  The Seventh Amendment guarantees the right to a trial by jury for controversies that exceed twenty dollars.

[7] Jones v. Amerihealth Caritas, 95 F.Supp.3d 807, 815 (E.D. Pa. 2015) (internal citations omitted).

[8] “Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System,” (“Final Report”) 2001, available at < https://files.deathpenaltyinfo.org/legacy/documents/PAFinalReport.pdf>, p. 252.

[9] See Philadelphia Bar Association Board of Governors Resolution, “Supporting Amendments to the Pennsylvania Human Relations Act,” June 1993, available at < https://www.philadelphiabar.org/page/BoardResolution1313202252000?appNum=3>.

[10] S.B. 490, 2019 Leg. Sess. (Pa. 2019).  S.B. 40 was initially only sponsored by Democrats, but eventually added a Republican co-sponsor.  In addition to permitting the right to a jury trial, the bill would also amend the PHRA to provide the availability of punitive damages against private employers, provide reasonable attorneys’ fees and costs, expand the scope of the bill to generally cover employers with as a little as one employee (previously, the threshold was four), and expand the time to file a complaint from 180 to 300 days.

[11]  Available at , < https://bjs.ojp.gov/content/pub/pdf/ctcvlc96.pdf>.

[12] See ibid., p. 6, Table 5.

[13] See ibid., pp. 8-9, Table 7.

[14] See ibid., p. 10, Table 9.

[15] Subsequent BJS Reports did not appear to engage in the same statistical breakdown as the 1999 BJS Report.  Therefore, their more recent statistical findings are less relevant for the purposes of this article.

In today’s world, the traditional family structure continues to change and now takes many different forms.  Unfortunately, many grandparents have been faced with becoming the primary custodian of their grandchildren when parents become unavailable to raise their children due to mental health, addiction, abuse, incarceration or other issues. Grandparents are bearing the financial burden of raising their grandchildren in their golden years and while on a fixed income.  However, when a grandparent is caring for or has been awarded custody of their grandchild, they have the right to seek child support from the parents.

Under the Pennsylvania Code, parents have a statutory duty to financially support their children.  Parents are liable for the support of their children who are unemancipated and 18 years of age or younger, and in certain circumstances, may even be liable for the support of their children who are more than 18 years of age.  A grandparent that has custody of a grandchild or is caring for the child, regardless of whether a court order has been issued granting custody, may commence a support action on behalf of the grandchild seeking child support from the parents.

The Pennsylvania Code does not impose a statutory duty on grandparents, as non-parents, to financially support their grandchildren.  However, as the traditional family structure continues to evolve, the Court has been faced with support claims asserted against grandparents having custody.

In 2015, the Pennsylvania Supreme Court determined that a stepparent who aggressively litigated for custody of the biological children of his former spouse, who was a fit mother, and who took affirmative legal steps to assume the same parental rights as a biological parent, would likewise assume parental obligations including the payment of child support.  This Supreme Court decision finding a non-parent’s obligation to pay child support has been relied on to argue a support obligation of a grandparent in cases involving support claims asserted between two grandparents having custody but living in separate households and in cases where the grandparents have actively litigated for custody.

While the Court has struggled with addressing the various fact scenarios presented, the Court has continued to determine that the grandparents in these cases did not to have a duty to financially support the grandchild.  The Court relied primarily on the lack of statutory duty.  The Court also recognized the potential impact of requiring a grandparent who steps in to act as custodian of a grandchild when their parents are unable to properly care for them, and the possible reluctance to take on that role when also required to assume the financial responsibility of child support.  Even in a recent case involving custody litigation between divorcing grandparents, the Court found no duty to support by the grandparent existed because the grandparents had assumed custody from the parents due to their unavailability and no action was taken to terminate the rights of the parents.

If you are involved in a custody or support action, it is important to consult with a family law attorney knowledgeable with the Pennsylvania Code to ensure that you fully understand your rights.

The opinions expressed in this article are for general information purposes only and are not intended to provide specific legal advice or recommendations.  Ashley B. Stitzer handles a variety of divorce, custody, alimony/support, marital agreements and other family law matters ranging from mediating small disputes to complex litigation.  To schedule a consultation, contact Ashley B. Stitzer at (610) 840-0243 or [email protected].

Private school tuition can be allocated in child support cases if certain criteria are met. First, the Court will determine whether the parents have adequate financial resources. As a general matter, parents have less disposable income after divorce. This is because many costs, such as housing, utilities, and groceries now must be duplicated. Just because an intact family could afford private school tuition does not necessarily mean the parents will be able to afford it post-divorce.

Assuming the parents have adequate financial resources, the Court will consider whether there was a prior agreement to send the child to private school, whether the child has special needs that cannot be accommodated in a public school setting, and whether family history suggests continued attendance in private school but for the parents’ separation. No one factor is dispositive, but as a general matter, it is difficult to compel a parent to contribute to private school tuition when they have joint legal custody and did not agree to send the child to private school. Whether private school tuition is included in the child support calculation is determined on a case by case basis.

Private school is also something that is negotiated over in the broader context of property division, alimony, custody, and child support. Our family law attorneys can assist you in arriving at a resolution that is holistically best for you and your children, including where your children attend school and how tuition, if any, is paid. If you are facing a challenge involving the attendance and payment of private school for your child, you should contact one of our Family Law attorneys.

Yes. Divorce can be granted on fault and no fault grounds, and property division and alimony are determined without regard to marital misconduct. While divorce can be granted on fault grounds, such as adultery, most divorces are granted on no fault grounds, such as the marriage being irretrievably broken and 6 months of separation.
Delaware’s property division and alimony statutes expressly exclude consideration of fault in the division of marital property and the determination of alimony. Rather, property division and alimony are based upon enumerated statutory considerations. There is however, an important caveat to the general rule that fault is not considered in property division. The Family Court will consider whether and to what extent a spouse dissipated assets, or put differently, engaged in financial waste that did not benefit the marriage. Examples can include, but are not necessarily limited to, hotel bills pursuing affairs, excessive gambling, or drug abuse.

If you have a question about divorce, including whether conduct qualifies as dissipation, you should contact one of our Family Law attorneys.

Your engineer calls you as you’re standing over two alternative site plans one afternoon, deciding which you want to submit to the municipality for your project. Your engineer tells you that the municipality is planning to change its zoning ordinance and map in a way that will not permit your project. However, your project is permitted under the current zoning ordinance and map. Will you be able to develop your property as you planned? Because of the “Pending Ordinance Doctrine”, the answer depends on the type of approval you are seeking.

So, what is the “Pending Ordinance Doctrine”? In brief, it is a rule that allows a municipality to deny a building permit for a use (and, by extension, applications for zoning relief required for issuance of a building permit) if that use will be prohibited under an ordinance change that is “pending.” An ordinance change is “pending” once the municipality’s governing body: (1) proposes a new zoning ordinance; (2) makes the proposed change available for the public to inspect; and (3), advertises in an area newspaper of general circulation that the proposed change will be discussed at a future public meeting. If all three of those things have occurred, the municipality may deny an application for a use that will be prohibited by the ordinance change, even if the change has not yet been formally enacted into law.

However, there are important statutory exceptions to this general rule. First, the doctrine does not apply to subdivision and land development applications if the preliminary plan is submitted before the formal enactment of the ordinance change. If the preliminary plan is submitted before the formal enactment of an ordinance change, the entire subdivision or land development application will be shielded from the ordinance change, even if the final plan is submitted after the change is enacted. However, all aspects of the application and plan must conform to the municipality’s technical and design requirements in order for this protection to apply. In municipalities which require the submission of a sketch plan prior to a preliminary plan, the submission of the sketch plan is sufficient to protect the entire application from the ordinance change. Submitting a sketch plan will not shield you from a pending ordinance change if the municipality merely recommends a sketch plan rather than requiring it, so your attorney should take care to confirm the local plan requirements.

Another exception to the Pending Ordinance Doctrine is if an applicant applies for certain types of zoning relief for a project that would ultimately qualify as either “subdivision” or “land development.” For example, if an applicant files an application for a “special exception” to build multi-family homes before an ordinance change is enacted, then both the special exception application and the future land development application and plan will be shielded from the ordinance change if the land development application is submitted within six months of the special exception’s approval.

Unfortunately for property owners and developers, not all types of zoning relief applications submitted before the start of the land development or subdivision process are exempted from the Pending Ordinance Doctrine. Similarly, applications for special exceptions and conditional uses are not exempted where the project would not eventually require land development or subdivision approval. In both these situations, the new “pending” ordinance or zoning map would apply.

If you plan on submitting an application for zoning relief or subdivision/land development, you may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

Developments in the employment world happened in April that could impact everything from mandatory employee onboarding documents to the price of your favorite cup of coffee.  Read about a few of them below.

Employers should be Aware of Significant Changes are Coming for the Form I-9

The Form I-9, an HR onboarding document used to record employment eligibility verification as required by the federal government, is slated to undergo a significant overhaul when the current form expires on Oct. 31.  The Department of Homeland Security is reportedly attempting to simplify the form, with proposed changes including:

• Compressing Sections 1 and 2 from two pages to one page to reduce paper use.
• Moving Section 3 to a separate Reverification and Rehire Supplement, making it a stand-alone section.
• Updating the List of Acceptable Documents to include a link to List C documents (on the U.S. Citizenship and Immigration Services website) issued by DHS. Some List C documents were unlisted.
• Reducing and simplifying the form’s instructions from 15 pages to 7 pages.

Employers can take advantage of the opportunity to submit public comment by May 31. In the past, DHS has implemented suggestions based on public comments, and therefore interested employers should take advantage.

Pittsburgh Starbucks the First Pa. Cafe to Vote for Union

Starbucks employees in a Pittsburgh café unanimously voted to unionize on Wednesday, becoming the first of the coffee chain’s shops in Pennsylvania to organize.  Five additional Starbucks stores in Pittsburgh are in the middle of unionization efforts, and cafes in Massachusetts, New York, Washington state, Arizona and Tennessee have also recently voted to unionize.  The unionization process has reportedly been tense at times, with employees accusing Starbucks of trying to stifle their efforts.

However, in response to the unionization efforts, Starbucks CEO Howard Schultz issued a seemingly positive statement: “We will become the best version of Starbucks by co-creating our future directly as partners, and we will strengthen the Starbucks community by upholding each other’s dreams, upholding the standards and rituals of the company, celebrating partner individuality and voice, and upholding behaviors of mutual respect and dignity.”

Time will tell whether the unionization will impact Starbucks’ already-premium prices.

Pittsburgh Commission, Post-Gazette Drop Racial Bias Dispute over Black Lives Matters Coverage

The Pittsburgh Commission on Human Relations announced will drop its investigation into allegations of racial bias over the Pittsburgh Post-Gazette’s reassignment of reporters covering Black Lives Matter protests, and the newspaper will drop a lawsuit claiming the First Amendment bars such an investigation, the parties told a Pennsylvania federal court.

The Post-Gazette employee, who is African-American, had claimed in June 2020 that she was barred from covering the nationwide Black Lives Matter protests after she posted a message on Twitter sarcastically comparing property damage from the protests to the trash left behind by a country music concert in Pittsburgh.  The Pittsburgh Commission on Human Relations had launched an investigation into the Post-Gazette’s actions after the employee complained that she and other reporters who shared her tweet in solidarity had been barred from further protest coverage, which the Post-Gazette justified under the rationale that coverage she could not provide unbiased coverage.  The Post-Gazette and its parent company, Block Communications Inc., then filed a lawsuit against the commission, claiming its reassignment of reporters was an editorial decision protected by the First Amendment and not subject to second-guessing by the commission or courts.

The case is PG Publishing Co. et al. v. Pittsburgh Commission on Human Relations, case number 2:20-cv-01222, in the U.S. District Court for the Western District of Pennsylvania.  The case presented interesting issues in the overlap of First Amendment law and personnel decisions.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.