[J-98-2019][M.O. - Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
KAREN HARRISON, : No. 51 MAP 2019
:
Appellee : Appeal from the Order of the Superior
: Court at No. 365 EDA 2018 dated
: 12/12/18 affirming in part and vacating
v. : in part the order of the Lehigh County
: Court of Common Pleas, Civil Division,
: at No. 2016-C-1469 dated 12/19/17 and
HEALTH NETWORK LABORATORIES : remanding
LIMITED PARTNERSHIPS, AND LEHIGH :
VALLEY HEALTH NETWORK, INC., :
:
Appellants : ARGUED: November 19, 2019
CONCURRING OPINION
CHIEF JUSTICE SAYLOR DECIDED: June 16, 2020
I join the majority opinion and write only to clarify that I find no material distinction
between the forms of discrimination discussed in Section 3 of the PHRA, id. §953, and
retaliation claims. In this regard, I simply don’t believe that the Legislature intended for
exclusivity to be determined according to Section 3’s depiction of the “[r]ight to freedom
from discrimination in employment, housing and public accommodation.” Id. Rather, to
the degree that the PHRA’s remedies are meant to be exclusive, I would look to Section
12, which is entitled, “[c]onstruction and exclusiveness of remedy.” Id. §962(b)
(emphasis added).
Unfortunately, the Court in Clay v. Advanced Computer Applications, 552 Pa. 86,
559 A.2d 917 (1989), derived an exclusivity requirement from Section 3, because that
provision both declares a right to be free from specified forms of discrimination and
prescribes that such right “shall be enforceable as set forth in this act.” 43 P.S. §953.
The Court then translated the word “enforceable” into “vindicated,” and thus concluded
that the Legislature actually meant that rights arising under Section 3 must be enforced
exclusively through the enactment. See Clay, 522 Pa. at 90, 559 A.2d at 919. The
word that the General Assembly actually employed, however -- enforceable -- is distinct
from “enforced,” and it simply does not carry the same connotation of exclusivity.
To the extent that one must rely on Section 953’s “shall be enforceable”
language as the source of exclusivity, this gives rise to an inconsistency, given that
Section 5 delineates a broader list of unlawful discriminatory practices, which includes
retaliation. See 43 P.S. §955. The question then becomes whether the Legislature
intended exclusivity to apply in the first instance only to the forms of discrimination set
forth in Section 3.
It should be noted, however, that there was no need for the Clay Court to
reinterpret the word “enforceable” to support a view that the PHRA is generally
exclusive in the first instance. Rather, this Court recognizes a general presumption that
statutory remedies are exclusive, unless the Legislature explicitly reveals a contrary
intention. See, e.g., White v. Conestoga Tile Ins. Co., 617 Pa. 498, 519, 53 A.3d 720,
733 (2012) (citations omitted). Accordingly, from my point of view, the PHRA’s
remedies for unlawful discriminatory practices under Section 5 are just as presumptively
exclusive as its remedies for violations of the civil rights established under Section 3.
And the sole determinant of actual exclusivity should be the provision in which the
Legislature sketched out the boundaries of its limited, contrary intentions, i.e., Section
12.
Consistent with the above reasoning, I believe that the General Assembly -- in
Section 12 -- sufficiently conveyed its design that an aggrieved person should have an
[J-98-2019][M.O. – Dougherty, J.] - 2
election of remedies relative to any of the unlawful discriminatory practices set forth in
Section 5. In this regard, Section 12 specifically refers to those practices, see 43 P.S.
§962(b) (“as to acts declared unlawful in section five of this act the procedure herein,
when invoked, [shall] be exclusive” (emphasis added)), and bars recourse to PHRA
remedies, “[i]f the complainant institutes any action based upon such grievance[, i.e., a
grievance arising under Section 5,] without resorting to the procedure provided in this
act.” Id.(emphasis added). Manifestly, I believe, this language conveys the
Legislature’s intention to permit recourse under other laws of the Commonwealth,
relative to claims of unlawful discrimination that could be raised under Section 5.
Certainly, the statute could be clearer, particularly given Section 12(b)’s previous
reference to Section-3 rights in connection with the preservation of other anti-
discrimination laws. See 43 P.S. §962(b). Nevertheless, the specific reference to
Section 5 in close association with an election-of-remedies overlay persuades me that
the Legislature did not intend to preempt or supersede other laws per which the full
panoply of unlawful practices delineated in Section 5 could be redressed. To the extent
Clay militates to the contrary, I would take the opportunity to limit its holding to the
proposition that the PHRA preempts pertinent common-law claims.
Justice Wecht joins the substance of this concurrence but does not join the
majority opinion.
Justice Mundy joins this concurring opinion.
[J-98-2019][M.O. – Dougherty, J.] - 3