The opinion
J-A27019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JEFFREY H. SORKIN IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
PAUL J. SEDACCA
Appellant No. 649 EDA 2018
Appeal from the Judgment Entered April 16, 2018
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 03513
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 15, 2019
Appellant, Jeffrey H. Sorkin (“Sorkin”), appeals from the judgment
entered on April 16, 2018 in the Court of Common Pleas of Philadelphia County
following denial of Sorkin’s motion for post-trial relief relating to his age
discrimination claim against Appellee, Paul J. Sedacca (“Sedacca”). Sorkin
contends the trial court, which found a prima facie case of age discrimination,
erred by refusing to enter a verdict in his favor in light of admissions made by
Sedacca as well as other evidence admitted at trial. Following review, we
affirm.
The trial court provided the following summary of evidence presented at
Sorkin’s bench trial:
[Sorkin], a state licensed chiropractor with an additional license
for adjunctive procedures, began working for [Appellee] Paul J.
Sedacca, M.D. [] in 2010 for an hourly wage of $80/hour.
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[Sedacca] owns a medical practice at 2300 S. Broad Street in
Philadelphia, Pennsylvania. From 2010 to 2013, [Sedacca’s]
practice revenues dropped 30% and [Sedacca] determined that
cost reductions were necessary to maintain his practice.
In February 2013, [Sedacca] met with [Sorkin] to discuss the
situation. [Sorkin] agreed to accept a reduced hourly rate of
$55/hour. During the discussion, [Sedacca] testified that [Sorkin]
“clearly stated he could not and would not go lower.” Alan Spiegel
(“Spiegel”), [Sedacca’s] practice management consultant, was
present during the meeting and testified that [Sorkin] “made it
very clear that he could not go any lower.”
[Sorkin] went on vacation in late April 2013. During his absence,
his patients were seen by Brielle Dudek (“Dudek”) of ChiroCover.
Dudek, a 28 year old licensed chiropractor with an additional
license in adjunctive procedures, was familiar with [Sedacca’s]
practice. With the understanding that [Sorkin] would not accept
another salary reduction, [Sedacca] offered Dudek full-time
employment at an annual salary of $60,000.1 On or about May 5,
Spiegel call [Sorkin] to inform him that his services were no longer
needed. On May 24, 2013, [Sorkin] received an email and letter
detailing the terms of his severance and termination of
employment. The letter stated that [Sorkin’s] termination was
“solely the result of the financial troubles that the practice has
experienced through the last few years.”
1
Dudek’s salary was later reduced to $52,000.00 in 2014 due to
financial circumstances.
Trial Court Opinion, 5/9/18, at 1-2 (references to notes of testimony and trial
exhibits omitted).1
____________________________________________
1 Sorkin, who was born on January 8, 1953, was sixty years of age when he
was terminated in 2013 and had practiced chiropractic medicine since 1994.
He testified at trial that his annual compensation at $80 per hour totaled
approximately $150,000. That annual total was reduced to a little more than
$100,000 when he agreed to accept the $55 hourly rate. He accepted the
lower rate with the understanding it would return to the higher rate once the
practice’s financial condition rebounded. See N.T., 9/25/17, Trial, at 11, 13,
17-18.
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Sorkin filed an age discrimination claim on July 23, 2013. On July 29,
2016, after exhausting his administrative remedies, he filed a complaint in the
Philadelphia County Court of Common Pleas. On September 25, 2017, a bench
trial was held on his claim under the Pennsylvania Human Relations Act
(“PHRA”), 43 P.S. § 955. Pursuant to Section 955(a), it is unlawful “[f]or any
employer because of the . . . age . . . of any individual[,] to . . . discharge
from employment such individual[,] if the individual . . . is the best able and
most competent to perform the services required.”
On September 29, 2017, the trial court issued its findings of fact and
conclusions of law, determining that Sorkin “failed to prove, by a
preponderance of the evidence, that age was a motivating or determinative
factor in [Sedacca’s] decision to terminate [Sorkin’s] employment.” Trial
Court Opinion, 5/9/18, at 2 (citing Conclusions of Law, 9/29/17, at ¶ 6). The
order announcing the verdict in favor of Sedacca and against Sorkin was
entered on the docket on October 2, 2017. Order, 10/2/17. Sorkin filed a
timely post-trial motion requesting a new trial. The trial court denied the
motion on February 7, 2018 and judgment was entered on April 16, 2018.
Sorkin filed a timely appeal to this Court and a 15-paragraph Rule 1925(b)
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statement of errors complained of on appeal.2 In response, the trial court
issued a Rule 1925(a) opinion, condensing Sorkin’s claims into three claims.
Sorkin asks us to consider the following three issues, which essentially
parallel the issues as framed in the trial court’s Rule 1925(a) opinion:
I. After correctly finding that [Sorkin] established a prima facie
case of age discrimination, should the trial court have
entered a verdict in favor of [Sorkin] on his [PHRA] claim
given the admissions of [Sedacca] and the other evidence
submitted at trial?
II. Did [Sedacca’s] admitted refusal to give [Sorkin] an
opportunity to maintain his position at the lower salary
offered to his replacement (even after [Sorkin] asked), and
his awarding of [Sorkin’s] position to a younger employee,
violate the plain language of the PHRA in light of [Sedacca’s]
admissions at trial that [Sorkin] had no performance issues
and was the best able and most competent to perform the
chiropractic services [Sedacca] required?
III. Should the United States Supreme Court’s decision in Gross
v. FBL Financial Services, Inc., 557 U.S. 167 (2009)[,]
and its more stringent “but-for” burden of proof for [Age
Discrimination in Employment Act (“ADEA”)[3]] cases be
followed in age discrimination claims under the PHRA given
the fact that this leads to an utterly absurd result requiring
the “because of” language in section 955(a) of the PHRA to
be interpreted differently depending on the particular type
of discrimination at issue?
Appellant’s Brief at 4-5 (some capitalization omitted).
____________________________________________
2 While Sorkin did include his Rule 1925(b) statement and the trial court
opinion in Volume I of the Reproduced Record, we remind counsel that
Pa.R.A.P. 2111(a)(11) and (b) direct that those filings be included in or
appended to an appellant’s brief.
2 29 U.S.C. § 621 et seq.
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As this Court recently reiterated:
Our standard for reviewing non-jury verdicts is as follows:
Our appellate role in cases arising from non-jury trial
verdicts is to determine whether the findings of the trial
court are supported by competent evidence and whether the
trial court committed error in any application of the law. The
findings of fact of the trial judge must be given the same
weight and effect on appeal as the verdict of a jury. We
consider the evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its findings of
fact are not supported by competent evidence in the record
or if its findings are premised on an error of law. However,
where the issue concerns a question of law, our scope of
review is plenary.
The trial court’s conclusions of law on appeal originating
from a non-jury trial are not binding on an appellate court
because it is the appellate court’s duty to determine if the
trial court correctly applied the law to the facts of the case.
Ferraro v. Temple Univ., 185 A.3d 396, 401 (Pa. Super. 2018) (quoting
Bank of N.Y. Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super. 2017)). As an
appeal from the denial of a motion seeking a new trial, our review
is limited to determining whether the trial court acted capriciously,
abused its discretion, or committed an error of law that controlled
the outcome of the case. In making this determination, we must
consider whether, viewing the evidence in the light most favorable
to the verdict winner, a new trial would produce a different verdict.
Consequently, if there is any support in the record for the trial
court’s decision to deny a new trial, that decision must be
affirmed.
Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1148 (Pa. Super.
2013) (citations omitted).
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In his first issue, Sorkin argues he was entitled to a verdict in his favor
because the trial court correctly concluded Sorkin established a prima facie
case of age discrimination under the PHRA. In his second issue, he asserts
Sedacca violated the plain language of the PHRA by not offering Sorkin the
lower salary offered a younger employee and by awarding Sorkin’s position to
the younger employee, even though Sorkin was “the best able and most
competent” to perform the chiropractic services Sedacca required. We
consider these issues together.
As reflected above, the PHRA dictates that it is unlawful for an employer,
because of the age of an individual, to discharge that individual from
employment if the individual is the best able and most competent to perform
the services required. See 43 P.S. § 955(a). As this Court has explained,
Generally, claims brought under the PHRA are analyzed under the
same standards as their federal counterparts. Therefore, though
not binding on our state courts, federal court interpretations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
serve to inform this Court’s interpretations of the PHRA.
Established for Title VII cases, where, as here, direct evidence of
discriminatory treatment is lacking, is “an allocation of the burden
of production and an order for the presentation of proof” according
to which a court may assess a plaintiff’s indirect evidence of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This Title VII burden-
shifting framework as developed in McDonnell Douglas is a
three-part one. First, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. The burden on
the plaintiff of presenting a prima facie case under McDonnell
Douglas is minimal. If the plaintiff cannot meet this minimal
burden, the employer is entitled to judgment as a matter of law.
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Kroptavich v. Pennsylvania Power and Light Co., 795 A.2d 1048, 1055
(Pa. Super. 2002) (additional citations and internal quotations omitted).
Under McDonnell Douglas,
an age discrimination plaintiff may make a prima facie case with
evidence showing that the plaintiff at the relevant time: (i)
belonged to a protected class, i.e., was at least 40 years of age;
(ii) was qualified for the position; (iii) was dismissed despite being
qualified; and (iv) suffered dismissal under circumstances giving
rise to an inference of discrimination, such as the fact that the
plaintiff was replaced by someone substantially younger.
Kroptavich, 795 A.2d at 1056 (citations omitted). Here, the trial court
correctly determined that Sorkin established a prima facie case of age
discrimination. Trial Court Opinion, 5/9/18, at 5 (citing Conclusions of Law/
9/29/17, at ¶ 2).
In Allegheny Housing Rehabilitation Corp. v. Pennsylvania
Human Relations Commission, 532 A.2d 315 (Pa. 1987), which involved a
claim of sex discrimination under the PHRA, our Supreme Court explained:
It was never intended, however, that the [McDonnell Douglas]
analytical method would immunize members of “protected
classes” from adverse employment decisions simply by dint of
their class membership. Nothing about the Human Relations Act
removes its operation from the bedrock concept of our
jurisprudence that one who alleges wrongdoing must supply the
proof. The stated analysis is no more than an aid to evaluating
the proof. If the plaintiff produces sufficient evidence that, if
believed and otherwise unexplained, indicates that more likely
than not discrimination has occurred, the defendant must be
heard in response.
Id. at 319. Because Sorkin established a prima facie case of age
discrimination,
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a presumption of discrimination arises, and the burden of
production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the challenged employment
decision. The employer’s burden in this second part is one of
production, not persuasion, and thus involves no credibility
assessment. If the employer articulates a legitimate business
explanation, then the presumption of discriminatory intent created
by the employee’s prima facie case is rebutted and the
presumption simply drops out of the picture.
Ferraro, 185 A.3d at 400 (quoting Kroptavich, 795 A.2d at 1055).
Accordingly, Sedacca bears the burden of production and must “articulate a
legitimate, nondiscriminatory reason for terminating” Sorkin. Kroptavich,
795 A.2d at 1059.
Here, the trial court found that Sedacca “advanced a legitimate non-
discriminatory reason for [Sorkin’s] termination, namely the financial
struggles of the practice, which were not pretextual.” Trial Court Opinion,
5/9/18, at 5 (citing trial exhibits). “Instead of negotiating a lower salary for
[Sorkin], [Sedacca] relied on previous conversations in which [Sorkin]
expressed an unwillingness to accept less money.” Id. (citing Notes of
Testimony, Trial, 9/25/17, at 59). As the trial court recognized, Sedacca
testified that Sorkin’s termination was “solely a financial decision” so that
Sedacca would no longer have to pay practice expenses out of his own pocket.
Id. at 6. As such, the court concluded, Sedacca “presented a legitimate, non-
discriminatory reason to terminate [Sorkin’s] employment.” Id.
Sedacca and Spiegel offered testimony, supported by documentation,
chronicling the practice’s decline. While Sorkin suggested that his patient load
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increased—and even doubled—during his time with the practice, the financial
statements did not reflect an increase but, rather, a continuing decline. As
Sedacca explained, the practice’s financial picture worsened and his own
earnings from his practice fell as well, to the point he was earning less than
he was paying Sorkin. We agree with the trial court’s conclusion that Sedacca
met its burden of production, articulating a legitimate, nondiscriminatory
reason for terminating Sorkin.
Under McDonnell Douglas, therefore, the burden shifts back to Sorkin
to show that Sedacca’s “purportedly legitimate reason was but a pretext for
what was actually a motive to discriminate on the basis of age.” Kroptavich,
795 A.2d at 1059.
To discredit an employer’s articulated reason, a plaintiff need not
produce evidence that necessarily leads to the conclusion that the
employer acted for discriminatory reasons[.] Nor, as a matter of
law, must a plaintiff produce evidence in excess of that produced
in his prima facie case in order to prevail, although inferences
acceptable at the prima facie stage may not satisfy the higher
level of specificity usually required at the pretext stage.
In the pretext stage, the plaintiff must, however, point to
“weaknesses, implausibilities, inconsistencies, incoheren-
cies, or contradictions in the employer’s proffered legitimate
reasons such that a reasonable factfinder could rationally
find them ‘unworthy of credence’” and hence infer that the
proffered nondiscriminatory reason “did not actually
motivate” the employer's action.
Simpson[ v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir. 1998)
(quoting Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir.
1994))].
To show that discrimination was more likely than not a cause
for the employer’s action, the plaintiff must point to
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evidence with sufficient probative force that a factfinder
could conclude by a preponderance of the evidence that age
was a motivating or determinative factor in the employment
decision.
Simpson, 142 F.3d at 644-45 (quoting Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir.1997)).
Kroptavich, 795 A.2d at 1059-60 (alterations and some citations omitted).
Based on its examination of the third prong of the analysis, the trial
court concluded:
In support of his claim that [Sedacca’s] reason was pretextual,
[Sorkin] offered only that [Sedacca] once referred to himself and
[Sorkin] as “old guns.” [Sorkin] also noted the age difference
between himself and Dudek. She was 28, he was 60. However,
[Sedacca] testified that age was not a concern or motivating factor
to replacing [Sorkin] with Dudek. [Sorkin] offered no evidence to
rebut [Sedacca’s] claim that he was motivated solely by financial
need and instead relied on age disparity as conclusive evidence of
discrimination. As discussed supra, age and salary are analytically
distinct considerations. While age disparity is a relevant
consideration in determining whether [Sorkin] established a prima
facie case of discrimination under the first prong of the
McDonnell Douglas framework, it does not undermine the
legitimate reason provided by [Sedacca]. See Kroptavich, [795
A.2d] at 1059.
[Sedacca’s] evidence of his practice’s financial downturn was not
successfully rebutted by [Sorkin’s] evidence. As a result, the
[c]ourt found that [Sorkin] failed to prove that [Sedacca’s]
proffered reason for termination was not a legitimate reason or
pretextual. [Sorkin’s] claim is without merit[.]
Trial Court Opinion, 5/9/18, at 6-7 (references to notes of testimony omitted).
We find no abuse of discretion in the trial court’s factual findings, its
analysis, or in its conclusion that Sorkin failed to establish an age
discrimination claim, despite satisfying the prima facie prong of the test.
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Because the trial court’s factual findings are supported by the record and the
trial court correctly applied the law, Sorkin’s first two claims fail for lack of
merit.
In his third claim, Sorkin asks this Court to consider whether a
“motivating factor” rather than “but-for” test should be applied to age
discrimination cases under the PHRA. However, this Court has determined
that the McDonnell Douglas framework is appropriately applied to age
discrimination claims under the PHRA, see, e.g., Kroptavich and Ferraro,
supra, and our Supreme Court has likewise employed the framework in a sex
discrimination claim, see Allegheny Housing Rehabilitation, supra.
Moreover, Sorkin has failed to demonstrate that age was a “motivating factor”
in Sedacca’s decision to terminate him. As the trial court noted, Sedacca
“testified that age was not a concern or motivating factor in replacing [Sorkin]
with Dudek. [Sorkin] offered no evidence to rebut [Sedacca’s] claim that
[Sedacca] was motivated solely by financial need[.]” Trial Court Opinion,
5/9/18, at 7 (reference to notes of testimony omitted). Whether analyzed
under a “motivating factor” or a “but-for” test, Sorkin cannot prevail. Sorkin’s
third issue affords him no basis for relief.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/19
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