Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The state agency that prosecutes discrimination claims in Pennsylvania pursued a “frivolous” action in bad faith for eight years against a Germantown condo association — entitling the defense attorney to at least $38,500 in fees and costs, the Commonwealth Court has ruled. A state agency that prosecutes actions at no charge to complainants, the Hu-man Rights Com-mission “must be held to the same standard as attorneys are when suit is filed against citizens of this commonwealth,” Senior Judge James J. Flaherty wrote in a recent opinion. The commission is “compelled to make a reasonable investigation prior to filing suit not only of the facts asserted by it in the complaint about the defendant’s conduct, but it must also investigate facts a complainant relates about himself when those facts . . . are essential elements to make a prima facie case of the cause of action,” Flaherty said. At trial, the Commonwealth Court found the commission had not fulfilled this mandate in prosecuting Human Relations Commission v. Robert H. Wise Management. Thus, under a provision of the state Human Relations Act, a finding that the commission filed a complaint in bad faith is sufficient for awarding attorney fees to the condo association’s lawyer, Karen Kress Weisbord of Weisbord & Weisbord, Flaherty explained. But Flaherty also found the complaint frivolous and said the commission had dealt with the Gypsy Lane Owners Association in a “willful, wanton and oppressive manner.” This behavior alternatively justified the fees award under the act, Flaherty said. The commission had objected to Weisbord’s request for attorney fees, arguing that the attorney had provided low-quality representation, had duplicated work she’d previously done, and had refused to cooperate with the commission, according to the opinion. Flaherty disagreed, saying that Weisbord’s fees request was reasonable under the circumstances, that her quality of work was “superior” and that the record lacked any evidence of her being uncooperative. The commission has appealed Flaherty’s decision on attorney fees to the Pennsylvania Supreme Court, but it has not appealed the underlying decision on the discrimination claim. A spokeswoman for the commission declined to comment last week. In 1995, a condo resident named Brian C. Davis filed a complaint with the commission, alleging the owners’ association and the on-site managers of the Gypsy Lane Condominiums had discriminated against him on the basis of his “familial status,” according to the opinion. Davis said the association refused to give him more than four pool passes when he had requested six, according to the opinion. The condo association’s pool usage policy discriminated against Davis, his wife and the children as members of a large family, Davis alleged. The commission investigated the pool usage policy but didn’t check on the validity of Davis’ claim to “familial status,” the opinion said. Six years later, the commission finally filed a formal complaint against the condo association. It demanded more than $20,000 in damages for embarrassment and humiliation Davis had suffered, according to the opinion. After filing the complaint, the condo association requested that the Commonwealth Court compel discovery because the commission had failed to answer interrogatories and discovery requests, according to the opinion. Shortly before a hearing scheduled before the commission’s administrative tribunal, counsel for the commission decided to prosecute the claim before the Commonwealth Court instead. The case went to trial, and Commonwealth Court Senior Judge Eunice Ross found that the commission hadn’t fully investigated the complaint and that witnesses representing the commission had testified falsely about Davis’ family situation. The witnesses testified that Davis was married to the woman he lived with, when, in fact, he wasn’t, and that the four children of the household were his legal charges, when they weren’t, according to the opinion. The commission argued that the court couldn’t hold it liable for not correctly judging the credibility of people who file complaints with the commission. Flaherty rejected this explanation, saying the commission’s judgment failure wasn’t in assessing credibility but in accepting Davis’ story without checking it out. In Flaherty’s opinion, he repeatedly said that the commission should have known that continuing with the lawsuit was “unfounded.” The commission’s behavior was “willful” in its knowing and deliberate continuance of the prosecution, “wanton” in that its evidence was incompetent and unsubstantial, and “oppressive” because it failed to cooperate in discovery and presented false pleadings at trial. “To continue to prosecute its case for Davis based upon baseless allegations in order to obtain a significant sum of money is certainly additional evidence of oppressive conduct to the residents of the other 283 condominiums who have to pay the financial obligations of Gypsy Lane arising out of its defense of a frivolous claim filed in bad faith with a reckless disregard of the consequences,” Flaherty wrote. “[The commission] has caused the members of the Gypsy Lane community to pay significant sums of money (almost $40,000) in attorney’s fees and costs, which are always painful, but here the aggravation has been continually endured for a period exceeding eight years to date.” Flaherty said that Weisbord could also request attorney fees for the time she spent seeking attorney fees. Weisbord plans to do exactly that, she said. In its appeal to the Supreme Court, the commission challenges Flaherty’s finding that the complaint was frivolous or filed in bad faith, claiming that the alleged discrimination against Davis was on a basis of “familial status” at a time when he was living with his common law wife and her children. At the time of the decision, the appeal states, state law did not differentiate between common law and formal marriage. The commission also claims that the proper interpretation of “familial status” is an issue of first impression and that it shouldn’t be subject to an award of attorney fees for filing a frivolous complaint or bringing a claim in bad faith. (Copies of the 17-page opinion in Human Relations Commission v. Robert H. Wise Management , PICS No. 04-0262, are available from The Legal Intelligencer . Please refer to the order form on Page 7.)

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.