HomeMy WebLinkAbout95-02003
.'
-c:1
tV
~
~
-
cD
cf
.
':!
RICHARD S. FILE,
PIa Intiff
I N TIlE COURT OF COMMON PL EAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
Civil Act Ion No '_,,_ of 1995
PENNSYLVANIA BLUE SIIIELD,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
NOW COMES the Plaintiff above-named I Richard S. File, by and through his
attorney, Keith E. Kendall, Esq., to file the within Complaint pursuant to the
Pennsylvania Human Relations Act of 1955, as amended, 43 Pa.C.S. ~~95I, et seq.,
and in support thereof. avers that:
1. The Plaintiff Is Richard S. File ("Plaintiff"), sui juris, currently
residing at 900 Humer Street, Enola, Cumberland County, Pennsylvania, 17025.
2. The Defendant I s Pennsylvania Blue Sh Ie ld ("Defendant") , a
corporat ion organized and ex Isting under the Bus Iness Corporat ion Law of
Pennsylvania, with a prine ipa 1 address of 1800 Center Street, Camp lillI,
Cumberland County, Pennsylvania, 17011.
3. The Defendant meets the definit ion of an "employer" set forth in the
Pennsylvania Human Relations Act of 1955 ("Act"), as amended, at Section 4(b) of
the Act, 43 Pa.C.S. ~954(b).
4. The Plaintiff is a white male, 48 years of age.
5. The Plaintiff was hired by the Defendant on September 9, 1981, as a
mallroom clerk/mail sorter.
6. At the time of his termination. On October 10, 1991. Plaintiff was
a service technician for Defendant, working at Defendant's Camp 11111 Office.
7. On August 2,1991, Plaintiff suffered a neck Injury while moving a
computer printer at work.
B. On August 5, 1991, the injury was aggravated when Plaintiff moved a
file cabinet at work.
9. The injury was reported to Defendant on August 13, 1991 (Exhibit Al.
10. Plaintiff ultimately received workers' compensation disability
benefits for the injury.
11. Despite his injury, Plaintiff continued to capably perform the duties
of his employment.
12. On October 10, 1991, Plaintiff was advised that his position was
eliminated as a result of a reorganization of Defendant's operations.
13. Defendant was aware, on October 10, 1991, that Plaintiff was 45 years
of age.
14. Defendant was aware, on October 10, 1991, that Plaintiff had suffered
a work-related Injury on August 2, 1991, which had been aggravated on August 5,
1991.
15. Plaintiff was not Initially selected by Defendant for separation, and
his name did not appear on the original list of names of employees separated as
a result of the reorganization.
16. Because of his age and/or disability, Defendant replaced a younger.
non-disabled employee on the termination list. with Plaintiff.
17. Plaintiff's position was not eliminated as a result of the
reorganization.
lB. Defendant terminated Plaintiff because of Plaintiff's disability, a
pinched nerve, or his age, 45 at the time of termination.
19. Defendant had no legitimate reason for terminating Plaintiff while
retaining younger, non.disabled employees.
2
20. Plaintiff's disability did not, and would not interfere wltb
Plaintiff's ability to perform tbe duti~s of his position.
21. As a result of Plaintiff's unjust and illegal termination by
Defendant, Plaintiff has sustained injury in the form of lost wages and loss of
employment and career opportunities.
22. Plaintiff has suffered extreme emotional and psychological distress
as a result of his unjust and illegal termination by Defendant.
23. Plaintiff has been damaged by Defendant's illegal acts and/or
omissions in an amount in excess of 510,000.00.
WHEREFORE. Plaintiff requests a jury trial in this matter. and such legal
and equitable relief as will make Plaintiff whole. including, but not limited to:
a. Reinstatement to his former position;
b. Lost wages, benefits and seniority from October 10,1991, with
interest;
c. Reasonable legal fees and the expenses of this action;
d. Compensatory and punitive damages.
Respectfully submitted.
April 17, 1995
& Jd t2tJ
eith E. Kendall, Esq.
Attorney for Plaintiff
3207 North Front Street
Harrisburg, PA 17110
(717)236-9539
(717)236-6602
Attorney 10 No. 42910
3
LIIC.1<&4I"11I1
CO~~ONWULT" or 'IN'NnLVANI4
DI.lAlTllL"ffOr UIOI AND lNDUITIY
II.:I1.4U ar WallUl' ooW'lNUnON
1171 IOlTTII CAWUON mar
IlUIUIUIC. rUfNIYLV.l.N14 IIIN-IMI
twrllONI7u.H11
LOxc DlST.utQ{TOU. rWI__-ISU
EMPLOYER'S REPORT
OF
OCCUPATIONAL INJURY
OR DISEASE
202-36-5745
1U,IlIO'I I/XW. IlCUll'" ........
23-1296123
lWLO"'" uc: IIII'QlrTf11Q NJMIIl
self-insured
*II.IIWCI POuCT ........
I, DAlI c>>1lUCI'If
L8ih;'-;:~: L_n..........~: .::.~,,~_IO_
r. 04l1lwynU llNIW or....., , ~n ~'" ..GAlII
.. AT IMII W'OIr
1'110 NOD
~DA' ,....0'"
e
!
'QIIW'\DYIA
; IL ADCNlUI,1JilICUq coum ~ ., COOl
i
our__
d
Barbara J We R H
17089 IL=~"".
Hi cumberland 71 -763-6630
,.. JlAT\.IIII (II........""" QfWG.., flW)l.COfIIInu:noN.lIJM(:I,lTC.
II. IW\OYII: Mil
a1chard S.Plle
...... WT
J I.'.~i ..~...t:_il".
~
.j
, .
'LIrQCNlI"'1JilICUq coum.. lIP COOl
J'........UlDl~
'11
!laa Bu.r St.,JSDola,ClrherJJuacl 1~015
aa. 0'11 OI_nt 11....
9/23/46'
M.'" ~ 1& ClkTf.:A11....U
f'lItl'\iI'~' I'"'.''' \'''' ,"':"\.,., :l"'ll) ..'
~oc.c:wA"*
.' "..
..
aD. If' fIIO.PAQ UXAl1OaI.tnlIlT, QTl'. COUNTY. NG I'1'A11
r" ,.. .'" ,I'. '
II. VIM' WAlIWlD1U DCIII<<I WH." lJUUIlID' . UlaAC. If' UIIMQ TOOLI D'lIQl.lJ'MlNT 011 tWCKJNQ ....T1MAL.~ MY oUIO nu. ~".., WAS ~ VIITM lMWol
Lifting a pratE for odCJinal 1Djury 8/2.
I
~ .._DCl......D<<\OII'__'..IVPl>_......l1lI"........._nu._'.........-_n- -....""""'...-
. ~1HI1'WPlIIM:I&.WD. OMI'UU.~OMAlJ,rACTOa~LlOOll~fOWUUllTOIlOdlAltJ
HoriDg pr1Dter froa 4eak ~ c:&rt..It:al1pped,X be vent to grab it
and tvbte4 ftIIClk (pulled neck IIIUIIOlea). Then oD8/S Uft6d . file
c:abiD.~ aDd pAiD r~",ad.
DD IIU.In' 011..... CIC:ClM
-'"
aa. "'""'*-ALDUu;1'
........."'"
.. 0tI0li . AwutAno.
~
~ICMI AIO'otI
..................-
TO .UI'lOYlIlII
"'I, copy mUI' bt Mnl 0' "'10"'"' handed I. Inlurld .mplo.... ImmMI"llw.
,-::'C<:CiG!l ..""a-... _. _h'__
DO ..Of warn ...
JMltCQLUtilII
OAn
HOUR' WORlID
R.PORr LAO
DIIAIIUTY
INDUITRY
IlK
AOI
OCCUPAnON
COUNTY
ACCIDINT TV,.
"""""--
UN"''' ACT
.._ DUI<T
NATUIII
LOCAnOH
INSUMMel
0
PAYMINT LAO
COWPI411Q111tMR
TO INJURIO I..PloVl'I,
WCMMIN"I CQIrII'IJII4no. -...we. COWNn' NIJ ADDMU
",..,.,...........'........IIC11Mt
" ,.. ' ,.,
".... ... "h.t lid. for' Import;"1 Inlo'mlllon' C~"Clr"lnt .you, wortm.n', Comp.nut1on
elllm.
. '1,.~Y~\NiJA 3LUe 6Hlao
..uraatl C>:ld'!l: l:X1l.21
. - - ..: ~ -'II met :}1 f'~n5\l1vani8. Inc.
" oW" 167~
'. "A 11l1J~
(lNJUlUD EM"LOVU'S COllY)
Dlolrib."" b" asc unlO
WOIlXr.Jl.5' COMPENSATION sElma
P.O. lOX Illl. UAUI.5IUIlG. PA 171DS
'.
'.
e,. ~
'-l1'
-<.:l .
-.::::r ~
lfl ~:! ~-
::c Ii:' p <S"
~ c.,l_ , G ff)
\q '.. ' .~ .
,I. '.L ~ ,..' r--- f{")
r":",
~ ....
E:3 C\~ ~~~
nc: ' . C)"" C3
u. ".
-... ",-
e
~
......1
~ ~
~Id
oil!
~ ~.
Kendal@w
KEITH E. KENDALL ,
f t Srrrtl
1101N.rth ""'......~. /1110
Harrisbu'f. hMI"...
"
JUN 1 10 04 AH '95
If riCE
l.;~ ! :1(. ; . ',.itlO!-t~TA'l'
CUH .!Eh: ',J C' ':\1 Y
jJf h "i ~'.' '. 'v ,'.11 I!.
Kendal@w
KlITH f. KfNOAll
J101 North franl Strut
Ho"lsburr. "''''',y#vonJo 1/ 110
2. Plaintiff alleges that the Defendant discharged him on
october 10, 1991 in whole or in part because of an injury he
suffered nine weeks before his termination. Appendix "A," ~~ 7-
8, 18.
3. Plaintiff also avers that his injury did not interfere
in any manner with the performance of his responsibilities and
duties during the period of time between his injury and the
termination of his employment. Appendix "A," ,~ 11, 20.
4. The attachment to the Complaint filed in this case
indicates that Plaintiff was not disabled by this injury.
5. Plaintiff has stipulated in a prior proceeding that he
became disabled on December 28, 1991 (more than two months after
his termination) as the result of the above-referenced injury,
and that he fully recovered from all effects of that injury by
February 26, 1992, less than two months later. See, Stipulation
of Facts ,~ 5, 7 (hereinafter, "StipUlation", a copy of which is
attached hereto as Appendix "B.")
6. Because this temporary disability occurred after his
termination from employment, the injury did not cause him to lose
any work time or compensation while employed by the Defendant.
Appendix "B," at ~ 3.
7. The Pennsylvania Human Relations Act ("PHRA"), 43 P.S.
~954, protects employees from discrimination on the basis of a
non-job related handicap or disability. In order to be disabled,
an employee must have a physical or mental impairment which
-2-
RICI/ARD S. FILE,
Plaintiff
vs.
PENNSYLVANIA BLUE SllIElD,
Defendant
I N TIlE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Civil Action No.
of 1995
JURY TRIAL DEMANDED
COMPLAINT
NOW COMES the Plaintiff above-named, Richard S. File, by and through his
attorney, Keith E. Kendall, Esq., to file the within Complaint pursuant to the
Pennsylvania Human Relations Act of 1955, as amended, 43 Pa.C.S. ~~951, et seq.,
and in support thereof, avers that:
1. The Plaintiff is Richard S. File ("Plaintiff"), sui juris, currently
residing at 900 Humer Street, Enola, Cumberland County, Pennsylvania, 17025.
2. The Defendant is Pennsylvania Blue Shield ("Defendant"), a
corporat ion organized and ex i st ing under the Bus lness Corporat ion law of
Pennsylvania I with a principal address of 1800 Center Street, Camp 11111,
Cumberland County, Pennsylvania, 17011.
3. The Defendant meets the definition of an "employer" set forth in the
Pennsylvania Human Relations Act of 1955 ("Act"), as amended, at Section 4(b) of
the Act, 43 Pa.C.S. ~954(b).
4. The Plaintiff is a white male, 48 years of age.
5. The Plaintiff was hired by the Defendant on September 9, 1981, as a
mailroom clerk/mail sorter.
6. At the time of his termination, On October la, 1991, Plaintiff was
a service technician for Defendant, working at Defendant's Camp Hill Office.
7. On August 2, 1991, Plaintiff suffered a neck injury while moving a
computer printer at work.
-1\-
B. On August 5, 1991, the injury was aggravated when Plaintiff moved a
file cabinet at work.
9. The injury was reported to Defendant on August 13, 1991 (Exhibit A).
10. PIa Int Iff ult Imately received workers' compensation dlsab lli ty
benefits for the Injury.
11. Despite his Injury, Plaintiff continued to capably perform the duties
of his employment.
12. On October 10, 1991, Plaintiff was artvlsed that his position was
eliminated as a result of a reorganization of Defendant's operations.
13. Defendant was aware, on October 10, 1991, that Plaintiff was 45 years
of age.
14. Defendant was aware, on October 10, 1991, that Plaintiff had suffered
a work-related Injury on August 2, 1991, which had been aggravated on August 5,
1991.
15. Plaintiff was not initially selected by Defendant for separation, and
his name did not appear on the original list of names of employees separated as
a result of the reorganization.
16. Because of his age and/or disability, Defendant replaced a younger,
non-disabled employee on the termination list, with Plaintiff.
17. Plaintiff's position was not eliminated as a result of the
reorganization.
lB. Defendant terminated Plaintiff because of Plaintiff's disability, a
pinched nerve, or his age, 45 at the time of termination.
19. Defendant had no legitimate reason for terminating Plaintiff while
retaining younger, non-disabled employees.
2
20. Plaintiff's disability did not, and would not interfere with
Plaintiff's ability to perform the duties of his position.
21. As a result of Plaintiff's unjust and illegal termination by
Defendant, Plaintiff has sustained Injury in the form of lost wages and loss of
employment and career opportunities.
22. Plaintiff has suffered extreme emotional and psychological distress
"
as a result of his unjust and illegal termination by Defendant.
23. Plaintiff has been damaged by Defendant's illegal acts and/or
omissions in an amount in excess of $10,000.00.
WHEREFORE, Plaintiff requests a jury trial in this matter, and such legal
and equitable relief as will make Plaintiff whole,including, but not limited to:
a. Reinstatement to his former position;
b. lost wages, benefits and seniority from October 10, 1991, with
interest;
c.
Reasonable legal fees and the expenses of this action;
Compensatory and punitive damages.
d.
April 17, 1995
Respectfully submitted,
./~ jdftJ
~l, Esq.
Attorney for Plaintiff
3207 North Front Street
Harrisburg, PA 17110
(717l236-9539
(717 236-6602
Attorney ID No. 42910
3
3. Claimant worked ilt his regular job without loss of
earnings or was paid his full salary from August 2, 1991, to
December 27, 1991, inclusive.
4. All weekly workers' compensation benefits shall be
suspended from August 2, 1991, to December 27, 1991, inclusive.
5. Claimant was totally disabled as a result of the
injury referred to in paragraph 1 from December 2S, 1991, to
February 25, 1992, inclusive.
6. Defendant shall pay to Claimant weekly workers'
compensation benefits at the rate of Four Hundred Twenty-Two and
08/100 ($422.08) Dollars per week commencing December 28, 1991,
and continuing to February 25, 1992, inclusive.
7. As evidenced by the Progress Report of Martin S.
Gildea, D.C., dated February 26, 1992, a copy of Which is attached
hereto as Exhibit A and hereby made a part hereof, Claimant com-
pletely recovered from all effects of the injury referred to in
Paragraph 1 as of February 26, 1992.
8. All liability of Defendant for workers' compensation
benefits of any nature as a result of the injury referred to in
Paragraph 1 shall terminate on February 26, 1992.
9. Claimant shall be paid interest in accordance with
the provisions of Act on all weekly workers' compensation benefits
payable in accordance with thc provisions of Paragraph 6.
10. Defendant shall pay directly to Martin S. Gildea,
D.C., the sum of 'l'hree 'I'housand Eight lIundred Fifty-'l'wo and 00/100
-;~ -
($3,852.00) Dollars in payment for services rendered to Claimant
for the period from August 7, 1991, to February 10, 1992, inclu-
sive. No interest shall be payable on the foregoing amount.
11. No hospital and medical expenses other than medical
expenses specified in paragraph 10 resulting from the injury to
Claimant referred to in paragraph 1 are unpaid. No other hospital
and medical expenses payable in accordance with the provisions of
Section 306(fl of Act resulting from the injury to Claimant
referred to in Paragraph 1 have been agreed to by Claimant and
Defendant or have been established at the time of any hearings
before the Referee.
12. Defendant had a reasonable basis for contesting
Claimant's Claim Petition.
13. Claimant has entered into a fee contract with his
counsel providing for the payment of counsel fees in the amount
of twenty (20%) percent of all weekly workers' compensation
benefits and interest payable to Claimant. Counsel fees in the
foregoing amount shall be deducted from the weekly workers'
compensation benefits and interest payable to Claimant and shall
be paid by Defendant directly to Serratelli, Schiffman, Goldberg
& Drown, P.C., counsel f:or Claimant, as counsel fees.
14. Claimant has been represented in this proceeding
by counscl selected and retained exclusively by him.
15. The provisions of this Stipulation of Facts have
been fully explained to the parties hereto by their respective
-3-
RICHARD S. FILE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
Civil Action No.
of 1995
PENNSYLVANIA BLUE SHIELD,
Defendant
JURY TRIAL DEMANDED
COMPLAINT
NOW COMES the Plaintiff above-named, Richard S. File, by and through his
attorney, Keith E. Kendall, Esq., to file the within Complaint pursuant to the
Pennsylvania Human Relations Act of 1955, as amended, 43 Pa.C.S. ~~951, et seq.,
and In support thereof, avers that:
1. The Plaintiff Is Richard S. File ("Plaintiff"), sui juris, currently
residing at 900 Humer street, Enola, Cumberland County, Pennsylvania, 17025.
2. The Defendant is Pennsylvania Blue Shield ("Defendant"), a
corporation organized and eXisting under the Business Corporation Law of
Pennsylvania, with a principal address of 1800 Center Street, Camp Hill,
Cumberland County, Pennsylvania, 17011.
3. The Defendant meets the definition of an "employer" set forth in the
Pennsylvania Human Relations Act of 1955 ("Act"), as amended, at Section 4(b) of
the Act, 43 Pa.C.S. ~954(b).
4. The Plaintiff is a white male, 48 years of age.
5. The Plaintiff was hired by the Defendant on Septembur 9, 1981, as a
mailroom clerk/mall sorter.
6. At the time of his termination, On October 10, 1991, Plaintiff was
a service technician for Defendant, working at Defendant's Camp Hill Office.
7. On August 2, 1991, Plaintiff suffered a neck Injury while moving a
computer printer at work.
. - --. .
"_. .' ,~. , . . -.,-'..
8. On August 5, 1991, the injury was aggravated when Plaintiff moved a
file cabinet at work.
9. The injury was reported to Defendant on August 13, 1991 (Exhibit A).
10. Plaintiff ultimately received workers' compensation disability
benefits for the injury.
II. Despite his injury, Plaintiff continued to capably perform the duties
of his employment.
12. On October 10, 1991, Plaintiff was advised that his position was
eliminated as a result of a reorganization of Defendant's operations.
13. Defendant was aware, on October 10, 1991, that Plaintiff was 45 years
of age.
14. Defendant was aware, on October 10, 1991, that Pla int iff had suffered
a work-related injury on August 2, 1991, which had been aggravated on August 5,
1991.
15. Plaintiff was not initially selected by Defendant for separation, and
his name did not appear on the original list of names of employees separated as
a result of the reorganization.
16. Because of his age and/or disability, Defendant replaced a younger,
non-disabled employee on the termination list, with Plaintiff.
17. Plaintiff's position was not eliminated as a result of the
reorganization.
18. Defendant terminated Plaintiff because of Plaintiff's disability, a
pinched nerve, or his age, 45 at the time of termination.
19. Defendant had no legitimate reason for terminating Plaintiff while
retaining younger, non-disabled employees.
2
20. Plaintiff's disability did not:, and would not interfere with
Plaintiff's ability to perform the duties of his position.
21. As a result of Plaintiff's unjust and illegal termination by
Defendant, Plaintiff has sustained injury in the form of lost wages and loss of
employment and career opportunities.
22. Plaintiff has suffered extreme emotional and psychological distress
as a result of his unjust and il~egal termination by Defendant.
23. Pla i nt iff has been damaged by Defendant's illega 1 acts and/or
omissions in an amount in excess of $10,000.00.
WHEREFORE, Plaintiff requests a jury trial in this matter, and such legal
and equitable relief as will make Plaintiff whole, including, but not limited to:
a. Reinstatement to his former position;
b. Lost wages, benefits and seniority from October 10, 1991, with
interestj
c.
Reasonable legal fees and the expenses of this action;
Compensatory and punitive damages.
d.
April 17, 1995
Respectfully submitted,
/~ ~~ftJ
~l, Esq.
Attorney for Plaintiff
3207 North Front Street
Harrisburg, PA 17110
(717)236-9539
(717)236.6602
Attorney YO No. 42910
3
Ll'C'~"11l'1I1
. COlll~ONWULTJI or 'lNNJYLYANU,
DU.lInlLVl 0' UIOI ANDINDUnJV
IL'lu'UO, WOIU&J'co..,lHunON
1U11OU11t C.U'UON ITUIT
tUllUIU.C, tlHNSVLV4HIAI'IH-1M1
. tllUlIONI ''''''''1
LO~C DISTAJI6CI(TOU, RU'......tsIJ
EMPLOYER'S REPORT
OF
OCCUPATIONAL INJURY
OR DISEASE
202-36-5745
IUMID'I 1000IoI, IIC\IIIn .......
23-129"23
IW\D"'" uc ~......
I. DAn c. MI'OIlT
8.1~-inaured
...-...wc:a f'OUt'f....l.
';iii~'~:se: ._.IA.........~: .~~n~....YO-
7. ClATI 'W\.Ol1JlllCW Of' PUJIl' I ClAl11QA11UlY llGAM
I AT ....... WAGlI
,u 0 NO 0
w. OA' !Y.D.CIATI
our not .....,
o B
,.. MAuG ADDIlIII.. DWUPff 'fHoIr,M AIM
Barbara J We R If
17089 "=--==-
Hi 1 CumberlaDd 717-763-6630
II. M~ CI' 1UlNaa."" fI WQ., TMOI. CClNInu:notI. IUMCl,ITC.
IlIW\D'l'll: NIT
Richard S.1'118
-. .....,
'J I'~. '.:1 ..~:~t'_" ....:
..
e
1
,.. ADoMII.1MCUClI CQUrftY NG _ COOl
JI....... C>> ctILDMJII
"'0"
900 D~r Bt. ,EDola,CuRber~ 1~025
u. ClAn 011 """ U. AQI
9/23/46'
14" LIrI)UIll tU'.CAn """ta
.rltf,l'J'~' I'..'..... \..., 1""1'101','0""'"
~ 0CCIIAlk* . .
. .' It ~
,.... 'h. .
VI'
III .. "".IXACT LOCAno..llNlT. aT1'~ NG "An
,., . ." . .l',
II. VltMT.... IW\D1U DCOI:J __II "....Im".. IIIOAC, .. \.-J TOOU DJllQI.II'MINT '* lWaJIrIQ ....TIMIl....... MY AND 1111 YlMAT" WAI DO..a WTN lHIMl
..... , .
Lift1D!l . printer for orlCJiDal injury 8/2.
'IlHOWDDlUJlylVJaa'PUC-.ruu..'1'THlIYIIifTI~.IU.IICI"trUI.Iri'OIlCllll.UL Y1LLWttAT~ONrGtcJIlIfnKUfUCD....... 0wJIm~~
, ~1HI'f...w.uWD. OI\IIM101TALlOHAU.'ACTOI'I....,.LlDOlI~TDIN.UftCM~
HoriDq printer f~ deak ~ ca.rt..Itallppod,X he wont: to grab it
and tvI.t:e4 JUlCk (pulled aack IlIlUIOleaJ. Tben OD 8/5 lift6d . tile
cab1Det aDd pAiD recui;...ad.
011 IIt.Ul'1' 0IlI OIIIAII 0CI:UIl II. "CWIiICA4 pOlCf
IICAUII 01 ...
.. ........"'"
.. tIKI.. AW\1fA1lOII
KIIICMI~I
TO IMItlOYl",
Thl. co,r m",. be ..,.1 0' ,-'lOn'lI, h'nd,d 10 InJultd .mplo.... Im,""II"I.,.
. -:':'C2t~..'l ..;dL_ _, __._.__
DO "of ...rn UII
TMII COLUM"
OATI
HOU"I WOIllKlD
IIlIPO"T LAG
DIIAIIUTY
INDUIT".,
IU
AO'
OCCurAllON
COUNn
ACeID.NT TV'"
-...--
UN....,. AcT
WIOt' NICM. DIIICT
NATUR.
LOCAnON
IHJUIlANCI
0
'4YMINT LAG
COWPIAlOI MTI
TO INJUftlD ''''''OVlI,
WClMJ4N'1 CQIftNIlI10N ~ COWNt'r NID ADC*II
~", h J t.A4 ..... c-..
. . . 'J .
".... ... oth., lIeN .Of 1"'1*1'"1 1"'Of",,,lo" conurnl,.. -your Wort""n', COlnpln..Uon
tlllm.
'...I..l.:)V!.\^'~JA aWe 6Htao
_uraau C.x!1J: l~.21
- - .:, -'n~ ~1 f'lml'svlv-o.lllia. tnc.
'- ~U' 161b
~ "A 17l1.l~
[INJURED rMIILOYU'S COPY)
Dhlribultd"11 ISC untO
WOUERS' COMPr.NUnON SEIlVIQ
r.o,lQx ISZI,lUJJU5IUac. PA 17105
'.
'.
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-2003 CIVIL TERM
RICHARD S. FILE,
Plaintiff
PENNSYLVANIA BLUE SHIELD,
Defendant
IN RE: DEFENDANT'S PREL!f!'I~ARY OBJEqt1QH
Before HOFFER,-". and OI"ER. J.
Qf!NIQti
HOFFER, J.:
On November 12, 1991, plaintiff, Richard S. File, filed a complaint with the
Pennsylvania Human Relations Commission ("PHRC") against his employer, the
defendant, Pennsylvania Blue Shield. Plaintiff alleged that his termination from
employment was based on his age or on a disability. The complaint was
dismissed by the PHRC for lack of probable cause on August 13, 1993. Plaintiff
filed the Instant complaint with this court on April 19, 1995, asserting claims under
the Pennsylvania Human Relations Act, 43 P.S. ~ 951-963.
Plaintiff was hired by the defendant on September 9, 1981 as a mall room
clerk/mall sorter. On August 2, 1991, plaintiff suffered a neck Injury while moving
a printer at work. The Injury was aggravated three days later when plaintiff moved
a filing cabinet. Plaintiff reported his Injury to the defendant on August 13, 1991,
and received worker's compensation disability benefits for the Injury. Plaintiff's
Injury did not Interfere with his performance of job responsibilities or duties during
95-2003 CIVIL TERM
the period of time between his Injury and the termination of his employment.
On October 10, 1991, plaintiff was advised that his position was eliminated
as a result of reorganization of the defendant's operation. At the time of his
termination, plaintiff was a service technician for the defendant. Plaintiff stipulated
that his Injury caused him to become disabled on December 28, 1991, two months
after his termination, and that he fully recovered from all effects of that Injury by
February 26, 1992.
In his complaint, plaintiff alleges that his termination was based on his age
and/or disability. Defendant flied a Preliminary Objection, seeking dismissal of
plaintiff's claim of disability discrimination on the basis that plaintiff failed to state
a cause of action with legal sufficiency because: 1) the complaint falls to assert
a physical or mental Impairment failing within the PHRA; 2) the complaint falls to
aver a condlllon which substanllally Impaired a major life activity; and 3) the
temporary nature of plaintiff's disability Indicates that It does not fall within the
parameters of the PHRA. We addre..s this Preliminary Objection.
DISCUSSION
Defendant Identified two distinct mollons In the preliminary objection. The
single question presented Includes a motion to strike the disability claim from the
complaint and a preliminary objection In the nature of a demurrer for plaintiff's
2
95-2003 CIVIL TERM
more of the following body systems: neurological; musculoskeletal; special sense
organs; respiratory, Including speech organs; cardiovascular; reproducllve;
digestive; genitourinary; hemic and lymphatic; skin, and endocrine or a mental or
psychological disorder, such as mental Illness, and specific learning disabilities.
16 Pa. Code ~44.4 (Ii) (a). 'Major life activity' means functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
leamlng and working. 16 Pa. Code ~ 44.4 (lI)(b).
Plaintiff's complaint falls to assert a physical or mental Impairment that would
render him handicapped or disabled within the meaning of the act. The Employer's
Report of Occupational Injury or Disease that was attached to the complaint
provides that plaintiff was not disabled, but suffered from a strain of the neck
muscles. This injury does not qualify as a physical or mental Impairment within the
meaning of the PHRA. Plaintiff has failed to aver a condition which substantially
Impaired a major life activity. Plaintiff's Injury did not hinder his work performance
In any way. Plaintiff's sole period of disablement, from December 1991, through
February 1992, occurred only after he was separated from the employment and
was only temporary In nature. We find that plainllff's original complaint Is
insufficient with regard to the disability claim.
Plalnllff requests the opportunity to amend his complaint to Include a specific
4
6. At the time of his termination, On October 10, 1991, Plaintiff was a service
technician for Defendant, working at Defendant's Camp Hill Office.
7. On August 2, 1991, Plaintiff suffered a neck injury while moving a computer
printer at work.
8. On August 5, 1991, the injury was aggravated when Plaintiff moved a file cabinet
at work.
9.
10.
The injury was reported to Defendant on August 13, 1991 (Exhibit A).
Plaintiff ultimately received workers' compensation disability benefits for the
injury.
11.
Despite his injury, Plaintiff continued to capably perform the duties of his
employment.
12. On October 10, 1991, Plaintiff was advised that his position was eliminated as a
result of a reorganization of Defendant's operations.
13. Defendant was aware, on October 10, 1991, that Plaintiff was 4S years of age.
14. Defendant was aware, on October 10, 1991, that Plaintiff had suffered a work-
related injury on August 2, 1991, which had been aggravated on August S, 1991.
IS. Plaintiff was not initially selected by Defendant for separation, and his name did
not appear on the original list of names of employees separated as a result of the reorganization.
16. Because of his age and/or being regarded by Defendant as having a disability,
Defendant replaced a younger, non-disabled employee on the termination list, with Plaintiff.
2
10.'11";'"441111'''
CU""WOHwULTII or ,lNNSrLV,UH4
DUA.lntL"fr or LAIOI AND LNDUrTU
ICauU or '~iOllUS' COW,lNUnON
IIJIM}UTUCAWUONITIUT
1l411JJIUIG, UNNIYLVA.NIA IJIIN.tMl
TlLUIIOHI,U.kll
LOse DlST4~CTOU. rl.ll1lOHa.b&I
EMPLOYER'S REPORT
OF
OCCUPATIONAL INJURY
OR DISEASE
:10:1-36-5745
~'~N""'" _\11III"
23-1:!94723
lW\.O'I1"" uc: N~ lei...,.
Btllf-ilUlured
IMIUAAM:lI'OUC"l' IIUI6Illl
, At LU.lI wAGU
to
I!!
~
a. Do\n Of IIIl..UIY NtO l\lotiI~ a. HOJIIoW, It.fJlnHQ n.wa ~ 4 "'Wl'\.DrlI ILf,CIl. to WOAA
2 . AM AM QM 04."
8/Xl91 214 ... PM
,. DAn tW\D1'I..atIIIW Of........Y , DAn c.......u", 1IQ,t,H
YES 0 NO 0
\,IJ,DAY MI),a..n
DATI
Dm lJUat ~ NIAll CICiCUIl
-..
II. "'OWICA,L OUICt
M. UMWt ACt
I PAn CTlIIlII'OItt
10 &w\D'I'I.
,.
00 "of WArn ...
~C:OWM"
OUT tMI '""""
HOU'" WOIIIUO
~
~
!
d
Barbara J
17089
CUlllberllUid
1a.'MI\.01'IJI~""""
-......""'"
717-763-6630
OI$AIIUTY
~
TO IU~OYl",
thl. COPY mUll" Mn'., ,.raon'lI, h.ndtd to Inluted employee Imm"I"tl"
TO INJUPlI!D ''''LOnl,
. , .
PI.... MI 11th" lid, tor' Impon;n' Inlor""llon' concer"lng -you, Wor'u"t"" Co"""t"uUo"
el,l""
(INJUIIIED E"U'LO'l'U'S CO'V1
Wert:
R N
U'DRT LAG
'1.'WlDTU:
ticbard s.rllo
....... loU'
, /',':i: ....,.,..11 ":
"'. ......"':j' .
IHOU""'l'
SIX
900 Du.ar st. ,JSDolA.~~ l~0:l5
u. """ 01 Ill'". U AGI a4. _I.WC)'JlI& CI<<tft:An H\MIU
9/23/." n'V'''''II,...,,'H ,'" 'lY:'yI',:I""'"
. OC:C""AfIO'I fOA MtICH IIIUID
",' I. ' to"'~, L"'I,111t ~1~11"1 ,.. t\:':.'" '~ll1"
I'uq
11, ......11 011 C*DrIUI
'"
~
,~
'!
I.. MlOMII.1fiIICl.I..UI COl.IfTY /IoIfIQ.. COOl
1& OCOIAnoM
11, WAII"'-"" 011 PMIIOlII MGUl.fJI&,T uu\01'lD
at. CHIca . /4JM'\JfAllQIr
AOI
OCCU'AnON
COUNTY
ACCIDINT TYPE
-.......-
UN""E ACT
"'_1lUI<T
HATU"1
LOCAnOH
IHSUAAIriICI
0
'A Y'UNT LAO
cowt....TIClII MT1
", ,.
" "
......... ..
... ..:J'lX.ACfLI)C.A1lCNI"lNn,arr~AIG If An
. '1' " ," . ,;'.
al. ~T WAS ~TQ DOlliCl-'H IIUUIlICU" 1"C1AC. . ~ TOOU OIl'QUI""-"" 011 ~ .....11"""'....... fHlM AIr60 nu. v.HAr .. WA.I DOlt<<) W1lItwull
s
~c aa. HOW'DIP '""'!rx:a.. PI~ MU M.........YlttOt MlI.LttD "INAIITDJl~ nLLWKl'HAI'f'IHlDNCJ HOW" twf'IlCD. ...... ANYOWlIctI OfII'-IIAHCU
~ hOW IHIT WWIlI WNOI.WD. GIYI "" DflALI 011 AU 'AC!'C)q WIeQI LID 011 a;wrNIVTID fO ~r 0. 0dLUU
Hoving printer froll dealt ~ ~t..It .allppod,X he vcmt to grAb it
and twbte4 neck (pulled DOck 1llU801oa). 'rhen on 8/5 l1ftlJd a tile
cabinet and paiD rec.........ad.
TI' 11'1
,~', .,,," .
YES
'",,0
Lifting a printer for odqinAl in:lIUY 8/2.
JllICMI AlCM:I
. ':'C<!CJG.'l ,,~tJ-..... _. __..,__
WOMMIN'I tOWlMJA.IlC* NlNrIC. COWAAT IJG ADOllUI
~ . 1uIt9.ws.a. ....11 c:.e..
. ! .. ~ \'!.~ANrA aLUe: 6Hlao
.;.uraau C\X!~: l&C:o/.21
., ':;, Jil!"i'lt'S =-1 f'~!'S\>w;;nia. toe.
... .:.... lo7~
" ..oJ. l7l1J~
Ohtrlbutrd bY' ISC unto
WOIlJ(ERS' COMPENSAnON SEIlVlCl.
P.O. aox Ill.. lIARJUSaURC. 'AI7IO)
10, II is udmillcd Ihal subscqucnllo his luyolT on October In, 1991 File tiled u c1uim
l'or workers' compensalion benelits und ullinmlcly received workers' compensation bene fils.
II. II is admilled Ihal File capubly performed his dulies after he allegedly pulled his
neck musclcs,
12. Admillcd.
13. Admilled.
14. II is admillcd Ihal us of OClober 10. 199\ llIue Shield wus aware Ihal File hud
purportedly suffered u work relaled injury on Augusl 2. \991 which he hud purporledly
aggravaled on AuguSI 5, \991. (See Complainl Exhibit A),
15. Admilled.
\6. It is denied that File was pluced on the list of employees 10 be luid off because of
his age and/or pcrceived disabilily. The relative qualilications of File and other similarly siluuted
employees wcre considered in adding employees to or deleling employees from the list of
employees to be laid off.
\7, Denied. File's position was eliminated as a result of Blue Shield's reorganization
in October, 1991.
\8. It is denied thai Filc was lerminatcd because of his age or his perceived disability.
19. It is denied that Blue Shield had no legitimule reason for lenninaling File. Ralher,
File was laid off as a resull of u legilimate, non.discriminalory business reorganizulion. File's
qualilicutions relativc 10 other similarly situuled employees were considcred whcn Blue Shield
determincd who 10 reluiu.
2
20, Fik's alleged perceived disability did not interfere with his ability to perlormthe
duties Ill' his position, and Blue Shield has no reason to believe thatthc alleged perceivcd
disability would interlcrc with File's ability to perform his duties,
21. It is dcnied that Filc was laid off unjustly or illegally by muc Shield. Bluc Shield
is without knowlcdge or inliJrmation sullieicntto limit a bclicf as to any purported injurics that
Filc may have surtcred as a result of his lawli.l. non-discriminatory layolf.
22. Dcnied.
23. Dcnicd.
WHEREFORE, Bluc Shield rcspcctfully rcqucsts that this Court dcny all rclicfsought by
Filc and dismiss Filc's Complaint in its cntircty as being wholly dcvoid ofmcrit.
NEW MAHER
I. Filc's Complaint fails to statc claims upon which relicI' can bc grantcd.
2, Filc's claims arc barred in wholc or in part by thc applicablc statute oflimitations.
3 File's claims arc barrcd in wholc or in part due to hb failure to exhaust his
administrative rcmcdics.
4. Filc has lililed to establish a prima faeic ease for his claims of agc and disability
discrimination.
5. Filc has titiled to establish any basis tiJr asscrting compcnsatory and punitivc
damages undcr thc Pennsylvania Human Relations Act.
6. Bluc Shield has acted reasonably and in good lilith,
7, Filc was laid off lor legitimatc. non-discriminatory rcasons.
3
n ." (")
I , (J' -,-,
.,., ~.= -:1
r )' 'in
,. _J '1~
t:. ::B
,
r' .,')
)fn
.. -:t
'D ::1
",
,..;\
."
OF 11~TMY
Cl1 HAY..6 Pli 3: 15
CUt.15;:11JJ'D t.,C;j:~iY
PENNSl'LVN-lIA
"
, '
I.
Kendall Millerl p.e.
3207 North Front Street
Harr15burg, Pennsylvania 17110
.......
. ~ - - -.. ."
-..,. .- ,-., . .....