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In a pair of recent decisions, federal judges in the Eastern District of Pennsylvania have split on the question of whether there is a private right of action under the Pennsylvania Equal Rights Amendment in a suit in which the defendant is not a state actor. Now both judges have dug in their heels. The judge who greenlighted the plaintiff’s PERA claim has refused to certify the issue for an immediate appeal, and the judge who dismissed the claim has rejected a motion urging him to reconsider. In her Aug. 19 opinion in Barrett v. The Greater Hatboro Chamber of Commerce, U.S. District Judge Petrese B. Tucker cleared the way for a plaintiff to pursue a claim of sexual harassment under PERA after concluding that it created a cause of action for sexual harassment independent of the Pennsylvania Human Relations Act. The plaintiff, Dolores Barrett, was unable to sue under the PHRA because her employer has just four employees and therefore is not covered by the state discrimination law. In the same decision, Tucker dismissed Barrett’s claim for wrongful discharge after finding that it was barred by the PHRA’s exclusivity provisions and its narrow definition of what constitutes an employer. Just two days after Tucker’s opinion was handed down, U.S. District Judge Michael M. Baylson handed down a decision in Ryan v. General Machine Products, in which he dismissed a claim under PERA but allowed the plaintiff to pursue claims under PHRA, Title VII and the Equal Pay Act. Plaintiff’s attorneys Ralph E. Lamar IV of Collegeville and Martha Sperling of Silver & Sperling in Doylestown urged Baylson to reconsider his dismissal of the PERA claim, citing Tucker’s opinion in the Barrettcase. Meanwhile, the defense lawyer on the Barrettcase, Sidney L. Gold of Gold & Associates, asked Tucker to certify the issue for an immediate appeal to the 3rd U.S. Circuit Court of Appeals. Now the judges have rejected both motions. In an order handed down on Sept. 11, Tucker said that “the controlling question of law in this case, for purposes of certification . . . is whether there is a requirement of state action under Article I Section 28 of the Pennsylvania Constitution (the ‘PERA’) before an individual can file a claim.” Tucker refused to certify the appeal after finding that there was “no substantial ground for difference of opinion” since her August decision relied on decisions from the 3rd Circuit and the Pennsylvania Supreme and Superior courts. In her August decision, Tucker cited the Pennsylvania Supreme Court’s 1984 decision in Hartford Accident and Indemnity Co. v. Insurance Commissioner of Pennsylvania; the Superior Court’s 1985 decision in Welsch v. Aetna Insurance Co.; and the 3rd Circuit’s 1990 decision in Pfeiffer v. Marion Center Area School District. But Baylson, in a memorandum handed down last week, said he “respectfully disagrees with Judge Tucker.” In his August opinion, Baylson quickly rejected the PERA claim, noting that the Pennsylvania Supreme Court had not ruled on the issue of whether there is a private cause of action for damages under the state constitution, but that the federal courts within the 3rd Circuit consistently “have concluded that there is no such right.” Now, in a six-page memorandum denying the plaintiff’s motion for reconsideration, Baylson said he believes that Tucker misinterpreted the state and federal appellate decisions she relied on. The Pennsylvania courts, Baylson said, “have consistently permitted a cause of action under the PERA only where a defendant was a state actor, acting pursuant to authority ‘under the law.’” In Hartford, Bay-lson noted, the state Supreme Court af-firmed an adjudication of the insurance commissioner that the PERA required a finding that Hartford’s gender-based rate plan was “unfair.” As a result, Baylson said, the Hartfordcourt’s holding “has nothing to do with allowing a private right of action against a private party.” The Hartforddecision, Baylson said, “did not even discuss anything about private rights of action. By requiring the insurance commissioner to follow the PERA, the court only required what the state’s constitution required, because, undisputedly, the insurance commissioner is acting ‘under the law.’ Purely private actors are unaffected by this ruling.” For similar reasons, the Superior Court’s decision in Welschis also inapposite, Baylson found. In Welsch, the plaintiff, instead of suing the insurance commissioner, brought suit directly against the insurance company. Baylson found that the Superior Court “ruled that the lower court had lacked jurisdiction, and plaintiff must first petition the insurance commissioner.” The Welschcourt “never reached the pertinent issue of whether or not the plaintiffs could sue for damages under PERA,” Baylson found. Instead, he said, the Superior Court’s holding rested on its finding that, pursuant to the Rate Act, the plaintiff had to “first seek relief from the commissioner himself.” As for the 3rd Circuit’s decision in Pfeiffer, Baylson found that it, too, was inapposite, since the defendant in that case was a governmental entity. In a footnote, Baylson found that Tucker was alone in holding that a private right of action exists to pursue claims for damages under the Pennsylvania Constitution. In the footnote, Baylson cited five decisions from his Eastern District colleagues, as well as two decisions from the Western District of Pennsylvania, that rejected other state constitutional claims, such as free speech and freedom of expression. In one 1986 case, Baylson said, the court wrote: “We have found no Pennsylvania case law or statute which implies a private right of action under the state constitution.” (Copies of the six-page opinion inRyan v. General Machine Products , PICS NO. 03-1892, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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