Opposition Brief — Crown Cork v. McNasby

2) we oD |

No. 89-1264 1st! SPANIOL, dRe

- —_

IN THE ————

Supreme Court of the United States

OcToser TERM, 1989

Crown Cork & SEAL Co., INC.,

Petitioner,

Vv. + eal

ELIZABETH MCNASBY, CATHERINE BERES,

HENRIETTA ELLIOTT, MARGARET FELMEY,

ANN JACYSZYN, VIRGINIA KNOWLES,

LorRAINE MASon, EpirH McGropy,

Betty (PONATH) Moyer, JoAN MurPHY,

ELEANOR NEYER, MARIE PEKALA and

Doris Yocum, on behalf of themselves

and all others similarly situated,

Respondents.

RESPONDENTS’ BRIEF

IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ALAN M. LERNER

(Counsel of Record)

JEFFREY IVAN PASEK

STEPHEN V. YARNELL

JOHN F. LicarI

Cohen, Shapiro, Polisher,

Shiekman and Cohen

22nd Floor, PSFS Building

12 South 12th Street

Philadelphia, PA 19107

(215) 922-1300

and

Seth F. Kreimer

3400 Chestnut Street

Philadelphia, PA 19107

(215) 898-7447

Counsel for Respondents

BEST AVAILABLE COPY

COUNTER STATEMENT OF THE QUESTIONS

PRESENTED FOR REVIEW

. SHOULD THE COURT REVIEW A DETERMINA-

TION OF PENNSYLVANIA LAW MADE BY THE

COURT OF APPEALS FOR THE THIRD CIRCUIT,

WITHOUT DISSENT, WHERE THE COURT OF AP-

PEALS’ DECISION IS CONSISTENT WITH PRIOR

DECISIONS OF PENNSYLVANIA APPELLATE

COURTS AND THERE ARE NO MORE RECENT

CONTRARY DECISIONS BY THOSE COURTS?

. SHOULD THIS COURT CONSIDER WHETHER

THE FULL FAITH AND CREDIT ACT, 28 U.S.C.

§1738, OR TITLE VII OF THE CIVIL RIGHTS ACT

OF 1964, REQUIRE OR PERMIT THE APPLICA-

TION OF CLAIM PRECLUSION BASED UPON PRI-

OR PROCEEDINGS UNDER THE PENNSYLVANIA

HUMAN RELATIONS ACT EVEN WHERE PENN-

SYLVANIA COURTS WOULD NOT APPLY CLAIM

PRECLUSION?

. SHOULD THIS COURT CONSIDER WHETHER

THE EXCLUSIVITY PROVISION OF THE PENN-

SYLVANIA HUMAN RELATIONS ACT DENIED

PETITIONER EQUAL PROTECTION OF THE

LAWS BECAUSE IT APPLIES CLAIM PRECLUSION

TO SUBSEQUENT ACTIONS ARISING UNDER

STATE LAW, BUT DOES NOT APPLY CLAIM PRE-

CLUSION TO SUBSEQUENT ACTIONS ARISING

UNDER FEDERAL LAW?

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF THE QUESTIONS PRESENTED FOR

TS PR es a i

TABLE OF CONTENTS .....--+eeeccececrcercrcecececes ii

TABLE OF AUTHORITIES .....cccccccccccccccscccccess

COUNTER STATEMENT OF THE CASE ......---+++++e00

REASONS FOR DENYING THE WRIT ......-.---+-eeee8:

Ww Wm <

I REVIEW OF THE DECISION OF THE

COURT OF APPEALS FOR THE THIRD

CIRCUIT INTERPRETING PENNSYIL-

VANIA LAW IS NOT WARRANTED

UNDER ANY PRINCIPLE PREVIOUSLY

ENUNCIATED BY THIS COURT .........-. 3

A tetorbeiad | .oac cc cccexceuuwesewannesene+« 3

B

. This Court should not review the decision be-

low because it rested on the sound applica-

tion of Pennsylvania law derived from a rea-

sonable reading of existing state appellate

court GOGO coo vcsccsvcsceccecscesncsces 4

C. The court of appeals’ interpretation of section

962(b) of the Pennsylvania Human Relations

Act WHE CONDE on ovnscccecsnthaueesaagecneds 5

1. Section 962(b) does not purport to pre-

clude, or otherwise relate to, actions aris-

ing under federal law ...........--+++++: 5

Il.

ili

TABLE OF CONTENTS (Continued)

2. Pennsylvania may, and does, interpret its

Human Relations Act differently from the

interpretation applied by other states to

similar language in their civil rights stat-

Ge Se OeaahGeheUhcnccecwesébeeckcebesece

3. Pennsylvania’s common law of preclusion

would not apply claim preclusion to pre-

vent litigation of a Title VII claim because

no adjudicatory body in Pennsylvania in

which the Respondent litigated her claims

under the PHRA ever had jurisdiction

OVOP TT TEED VEE GOMER, 2... ccccnccccess

THIS CASE IS SINGULARLY INAPPROPRI-

ATE AS A VEHICLE TO ADVANCE THE

NOVEL THEORY THAT SECTION 1738

AND TITLE VII REQUIRE BROADER PRE-

CLUSION THAN THAT PROVIDED BY THE

LAW OF PENNSYLVANIA..................

A. The language and purpose of section 1738 re-

quire that the preclusive effect be the same as

that applied by state law...................

B. Petitioner’s contention that an aberrant pre-

clusion rule be imposed upon Title VII cases

contradicts an unbroken line of cases, includ-

ing those of this Court, applying the Full

Faith and Credit Statute, 28 U.S.C. §1738, as

well as this Court’s decision in Kremer y.

Chemical Construction Corp. ...............

Page

10

12

12

15

iv

TABLE OF CONTENTS (Continued)

Page

Ill. THE COURT OF APPEALS’ DECISION IN-

TERPRETING SECTION 962(b) DOES NOT

VIOLATE THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMEND-

BIE cccnacsnnccssvasvadsvectnenccecedeesees 18

TABLE OF AUTHORITIES

CASES: | Page

Albemarle Paper Co. v. Moody, 422 U.S. 405

Si dadinhndeaisuaictade needs cake cues 6

Alexander v. Gardner-Denver Co., 415 U.S. 36

EP 65 Crakk Cakan cam eae eaados 13,15,17

Allen v. McCurry, 449 U.S. 90 (1980) ........... 16,18

Anderson v. Upper Bucks County Area Vocational

School, 30 Pa. Commw. 103, 373 A.2d 126

(RPP ian vciabccunvcbandesnteckiieseeccaess 7

Bishop v. Wood, 426 U.S. 341 (1976)............ a

BMY v. Commonwealth of Pennsylvania Unem-

ployment Compensation Board of Review, 94

Pa. Commw. 579, 504 A.2d 946 (1986)..... 11

Bradshaw y. General Motors Corp., 805 F.2d 110

Ge ee: SE sso wvnedakdbekate chentecuaskns 12

Buck v. Bell, 274 U.S. 200 (1927) ............... 18

City of Philadelphia v. Stradford Arms, Inc., \ Pa.

Commw. 190, 274 A.2d 277 (1971) ........ 11

Clay v. Advanced Computer Applications, Inc., ____

oe 6h SU ee 8

Davis v. U.S. Steel Supply, 688 F.2d 166 (3d Cir.

1982) (en banc), cert. denied, 460 U.S. 1014

GRE ebb a 5a hcacobas ueessse eee 5

Eichman v. Fotomat Corp., 759 F.2d 1434 (9th Cir.

SR etxnsisdiesvaaclascecnacns sean 10

General Electric Corp. v. Gilbert, 429 U.S. 125

SOs bic bubieeanscueds necked eee. 7

Gregory v. Chehi, 843 F.2d 111 (3d Cir. 1988)... 5

vi

TABLE OF AUTHORITIES (Continued)

CASES:

Haring v. Prosise, 462 U.S. 306 (1983) ..........

Kadrmas vy. Dickinson Public Schools, __— USS.

___, 101 L.Ed.2d 399 (1988)...........008-

Kelley v. TYK Refractories, Inc., 860 F.2d 1188 (3d

¢ ,. PePPePrrerrrer es Te ree

Kremer y. Chemical Construction Corp., 456 U.S.

ri Gi, >: PRET TETerIe eee

Kusnir v. Leach, 64 Pa. Commw. 65, 439 A.2d 223

(1982).... sense eee e tees ee neeeeeeeneeeenaee es

Lukus v. Westinghouse Electric Corp., 276 Pa.

Super. 232, 419 A.2d 43 (1980)...........4.

Marrese v. American Academy of Orthopaedic Sur-

geons, 470 U.S. 373 (1985) 0.0... eee eee eees

McCarter v. Mitcham, 883 F.2d 196 (3d Cir. 1989)

McNasby v. Crown Cork & Seal Co., Inc., 656 F.

Supp. 206 (B.D. Pa. 1987) ........sesceceees

McNasby v. Crown Cork & Seal Co., Inc., 832 F.2d

47 (3d Cir. 1987), cert. denied, ___ U.S. —__,

ee & Peeks, Serer re

McNasby v. Crown Cork & Seal Co., Inc., 888 F.2d

rq it to Mo | Seeeryrerer rrr sr

Migra v. Warren City School District Board of Edu-

eation, 465 US. TS CiFO® oocccccvecsccsenes

Murphy v. Commonwealth of Pennsylvania Human

Relations Commission, 506 Pa. 549, 486

A.2d 388, appeal dismissed, 471 U.S. 1132

Page

16,18

19

5,11

passim

8,11

passim

passim

5,10

9,10

16,18

CRDBS) onc ccecsccecesssescesccescaschecccess 6,7,15,19

TABLE OF AUTHORITIES (Continued)

CASES: Page

Nanavati v. Burdette Tomlin Memorial Hospital,

857 F.2d 96 (3d Cir. 1988), cert. denied, ____

U.S. ___, 103 L.Ed.2d 834 (1989) ......... 5,10

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

(HUMES buecews Onnwnsdcnnssecateanaeeiona 15

Ostroff v. Yaslyk, 204 Pa. Super. 66, 203 A.2d 347

(1964), rev'd on other grounds, 419 Pa. 183,

rine © £5 RRR ee ee eae 11

Parsons Steel, Inc. v. First Alabama Bank, 474 U.S.

Pee GE bbb seid anderen eee coe 16,18

Pennsylvania Department of Aging v. Lindberg, 503

Pa. 423, 469 A.2d 1012 (1983) ............. 11

Pennsylvania Human Relations Commission v. St.

Joe Mineral Corp., 476 Pa. 302, 382 A.2d 732

(EPMD Sins naicdsioddtaxuvapeueewmeuuececcs 7

Placid v. Commonwealth of Pennsylvania Unem-

ployment Compensation Board of Review, 58

Pa. Commw. 250, 427 A.2d 748 (1981)..... 8,11

Yellow Freight System, Inc. v. Donnelly, No. 89-

431, 1989 Oct. Term (argued February 28,

POON 40 4trasdeaknsnncible cee 12

Thomas v. Washington Gas Light Co., 488 U.S.

OPt BEE AS ee 7,14,16

University of Tennessee v. Elliott, 478 U.S. 288

CRED viwsaenkaiaundsanuieeche cere 14,17

Zahorian v. Russell Fitt Real Estate Agency, 62

ee Se OF Fe eee 10

Vill

TABLE OF AUTHORITIES (Continued)

CASES: Page

Zamantakis yv. Pennsylvania Human Relations

Commission, 10 Pa. Commw. 107, 301 A.2d

612, aff'd, 478 Pa. 454, 387 A.2d 70 (1978) 10

STATUTES:

OR ae ee eee passim

fs ao Eres 11

42 Pa. Cons. Stat. Ann. §722 ............... 6,11

42 Pa. Cons. Stat. Ann. §724 ............... 6,11

42 Pa. Come. Stat. Amm. $742 ........000005: 5

42 Pa. Cons. Stat. Ann. §761 ............... 8,11

42 Pa. Cons. Stat. Ann. §762 ............... 8

42 Pa. Cons. Stat. Ann. §763 ............... 8

Ge Ts ls OEE. oan vices ceesensceses 20

43 Pa. Come. Siet. Amm. G951 2... ccccscess 3,19

43 Pa. Cons. Stat. Ann. §956 ............... 7

43 Pa. Cons. Stat. Ann. §962(b)............. passim

New York Executive Law, Section 300 (Mc-

cei es cunbasdnecenteeeees 9

OTHER AUTHORITIES:

Restatement (Second) of Judgments §26..... 10

2 Almanac of the Judiciary, (Prentice Hall

Law & Business 1989) .........ccceeen ny an 3,4

ix

TABLE OF AUTHORITIES (Continued)

CONGRESSIONAL MATERIAL:

H.R.Rep. 914, 88th Cong., Ist Sess., 1964

- 5 8 | eee

LAW REVIEW:

Shreve, Preclusion and Federal Choice of Law,

: 64 Tex. L. Rev. 1209, 1255-56 (1986) ....

Burbank, Interjurisdictional Preclusion, Full

“aith and Credit and Federal Common Law,

A General Approach, 71 Cornell L. Rev. 733

Pesan hb baedennsived but ocr bte ts aoe:

Page

13

17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1264

CROWN CorK & SEAL Co., INC.,

Petitioner,

Vv.

ELIZABETH MCNASBY, CATHERINE BERES,

HENRIETTA ELLIOTT, MARGARET FELMEY,

ANN JACYSZYN, VIRGINIA KNOWLES,

LORRAINE MASON, ED!TH McGropy,

Betty (PONATH) MOYER, JOAN MurRPHY,

ELEANOR NEYER, MARIE PEKALA and

Doris Yocum, on behalf of themselves

and all others similarly situated;

Respondents.

RESPONDENTS’ BRIEF

IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

COUNTER STATEMENT OF THE CASE

1. The suggestion at page 4 of the Petition that Mrs.

McNasby had “private counsel” who participated in the

proceedings before the Pennsylvania Human Relations

Commission (““PHRC”), is not correct. Under the Penn-

sylvania Human Relations Act (“PHRA”), as it existed

before 1982 (see Act 1982-47 (approved December 9,

1982), Laws of Pennsylvania, Session of 1982, at 1053,

1054-55.) Mrs. McNasby could not have private counsel lit-

igate her claim before the PHRC. When, following the

PHRC’s issuance of its Proposed Findings of Fact and Con-

clusions of Law in 1981, Mrs. McNasby obtained counsel,

and requested reconsideration, the PHRC did not ever rule

on that request, nor respond to counsel’s request for an op-

portunity to brief and argue certain issues. Moreover, the

PHRC’s Supplementary decision did not even mention

Mrs. McNasby’s counsel’s request for reconsideration, or

any of the issues her counsel sought to raise. See McNasby

y. Crown Cork & Seal Co., Inc., 656 F. Supp. 206, 208

(E.D. Pa. 1987).

2. The district court first granted Mrs. McNasby’s mo-

tion for partial summary judgment and denied Petitioner's

motion for summary judgment. Jd. Petitioner appealed to

the Court of Appeals For The Third Circuit, which dis-

missed the appeal. McNasby v. Crown Cork & Seal Co.,

Inc., 832 F.2d 47 (3d Cir. 1987), cert. denied, Crown Cork

& Seal Co., Inc. v. McNasby, __— U.S. ——, 99 L.Ed.2d

273 (1988).

REASONS FOR DENYING THE WRIT

ARGUMENT

I. REVIEW OF THE DECISION OF THE COURT OF

APPEALS OF THE THIRD CIRCUIT INTERPRET-

ING PENNSYLVANIA LAW IS NOT WARRANTED

UNDER ANY PRINCIPLE PREVIOUSLY ENUNCI-

ATED BY THIS COURT.

A. Introduction

Petitioner’s efforts to persuade the court of appeals to

apply a special rule of preclusion to the Pennsylvania

Human Relations Act (43 Pa. Cons. Stat. Ann. §951,

§962(b) [“PHRA”)) different from that applied to other

causes of action by Pennsylvania courts, failed despite liber-

al marbling of its arguments in that court with personal at-

tacks on Respondent’s counsel. Now faced with the

historical reluctance of this Court to review interpretations

of local law by the courts of appeals, see Bishop v. Wood,

426 U.S. 341, 345-47 (1976), Petitioner chooses to cast as-

persions on the court of appeals, accusing it of “evading” its

duty (Petition at 9), “manufactur[ing]” and “creat[ing] leg-

islative intention,” (/d. at 12, 14) and “distort[ing]’’ and

“invent[ing] a jurisdictional competency exception to Penn-

sylvania claim preclusion law.’ (Jd. at 15). In truth, the

court of appeals’ interpretation of Pennsylvania preclusion

law is consistent with applicable statutory language, analo-

gous Pennsylvania common law decisions, the majority rule

among the states, the Restatement (Second) of Judgments,

logic and sound public policy.

The court of appeals’ opinion was authored by the

Honorable Edward R. Becker. Judge Becker has been a

Judge of the United States Court of Appeals for the Third

Circuit since 1981, following eleven (11) years on the

United States District Court for the Eastern District of

Pennsylvania, and a career as a practicing attorney in Phila-

delphia. 2 Almanac of The Federal Judiciary, 3d Circuit 3

(Prentice Hall Law & Business 1989). His colleagues on the

panel that heard the case and joined in his opinion were

Judge Walter K. Stapleton' and Senior Judge Max Rosenn.’

It is revealing that Petitioner sees fit to resort to an intem-

perate and unjustified attack on these judges, and by infer-

ence, on the other members of the court of appeals, who

voted without public dissent to deny the Petition For Re-

hearing and Rehearing En Banc. *As will be shown below,

the court of appeals was correct.

B. This Court should not review the decision below

because it rested on the sound application of Penn-

sylvania law derived from a reasonable reading of ex-

isting state appellate court decisions.

Preclusion under the Full Faith Credit Statute, 28

U.S.C. §1738, upon which Petitioner relied in its motion for

summary judgment, and in its briefs below, depends upon

the scope of the preclusive effect that would be given to the

judgment upon which preclusion is premised by the courts

1. Judge Stapleton was appointed to the United States Court of Ap-

peals for the Third Circuit in 1985, after serving fifteen (15) years on the

United States District Court for the District of Delaware. 2 Almanac of the

Federal Judiciary, 3d Circuit 6 (Prentice Hall Law & Business 1989)

2. Judge Rosenn has been a member of the United States Court of Ap-

peals for the Third Circuit since 1970. Previously, he was in private prac-

tice in Pennsylvania for more than thirty years and served as Chair of the

Pennsylvania Human Relations Commission. Id. at 3d Circuit 12.

3. Among the active Judges of the United States Court of Appeals for

the Third Circuit considering the motion were several judges with exten-

sive experience in applying Pennsylvania law even before being appointed

to the court of appeals. E.g., Judge A. Leon Higginbotham, Jr. served on

the United States District Court for the Eastern District of Pennsylvania

from 1964 until 1967; Judge Carol Los Mansmann served on the United

States District Court for the Western District of Pennsylvania from 1982 to

1988; Judge Anthony J. Scirica served on the United States District Court

for the Eastern District of Pennsylvania and the Court of Common Pleas of

Montgomery County, Pennsylvania; and Judge William D. Hutchinson,

served as Associate Justice, Pennsylvania Supreme Court from 1982 to

1987. Id. at passim.

of the state rendering that decision. Marrese v. American

Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985).

In reversing the district court’s opinion below, the court

of appeals carefully analyzed the preclusion law of Penn-

sylvania, which it has been called upon to consider fre-

quently in recent years. E.g, McCarter v. Mitcham, 883

F.2d 196, 199-201 (3d Cir. 1989) (claim preclusion); Kelley

v. TYK Refractories, Inc., 860 F.2d 1188, 1193-98 (3d Cir.

1988) (issue preclusion); Gregory v. Chehi, 843 F.2d 111,

117 (3d Cir. 1988) (claim preclusion); Davis v. U.S. Steel

Supply, 688 F.2d 166, 170 (3d Cir. 1982) (en banc), cert.

denied, 460 U.S. 1014 (1983) (claim preclusion). C.f,

Nanavati v. Burdette Tomlin Memorial Hospital, 857 F.2d

96 (3d Cir. 1988), cert. denied, ___ U.S. ___, 103 L.Ed.2d

834 (1989) (claim preclusion, applying New Jersey law).

Given the experience of the United States Court of Ap-

peals for the Third Circuit in analyzing the manner in which

the state courts within its circuit apply their own preclusion

law, and particularly the manner in which the Pennsylvania

law would be decided, its decision in this case on that issue

must be given great deference, and not re-examined unless

it is entirely untenable. Bishop, 426 U.S. at 345-47.

C. The court of appeals’ interpretation of section 962(b) of

the Pennsylvania Human Relations Act was correct.

1. Section 962(b) does not purport to preclude or other-

wise relate to actions arising under federal law.

In Lukus v. Westinghouse Electric Corp., 276 Pa.

Super. 232, 419 A.2d 431 (1980), a nearly unanimous,‘

en banc, decision of the Pennsylvania superior court,°

4. The only judge who did not join in the majority opinion, Judge Van

Der Voort, concurred in the result without filing a separate opinion.

5. The Pennsylvania superior court is an intermediate appellate court

of general, state-wide jurisdiction. 42 Pa. Cons. Stat. Ann. §742. Because

(footnote continued on next page)

defendant sought to preclude litigation of a claim under the

PHRA in state court, based upon the plaintiffs prior com-

mencement and voluntary dismissal of a Title VII claim in

federal court arising out of the same facts and circum-

stances. The superior court affirmed the dismissal of defen-

dant’s preliminary objections, holding that section 962(b) of

the PHRA was not intended to “‘address the relationship be-

tween the PHRA and federal discrimination laws... .” Id.

at 269, 419 A.2d at 451.

The court of appeals relied, in part, on this holding in

Lukus. Petitioner, on the other hand, deftly attempts to ig-

nore Lukus, preferring to fashion, without any citation of

authority, its own theory of the legislative purpose of section

962(b). (Petition at 12-13)

Petitioner’s arguments that section 962(b) is designed

to promote efficiency and expertise in the Pennsylvania

Human Relations Commission (““PHRC’’) (Petition at 12),

and to conserve state resources by requiring that a claimant

proceed in only one state forum (Petition at 13) are irrele-

vant. Assuming, without agreeing with Petitioner’s unsup-

ported hypothesis, that Petitioner is correct, neither policy is

undermined by the superior court’s interpretation of section

962(b) in Lukus, or by the decision of the court of appeals

below.°®

(footnote continued from preceding page)

the Pennsylvania Supreme Court’s appellate jurisdiction in civil cases is

very narrowly confined with respect to appeals as of right, Jd. at §722, the

remainder of its civil appellate jursidiction being subject to discretionary

review pursuant to Petition For Allowance of Appeal, Jd. at §724, the supe-

rior court is the highest court in which the vast majority of civil cases are

heard.

6. Equally probable, given the difference between Title VII’s require-

ment that victims of discrimination are entitled to “make whole relief”,

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), and the virtually un-

reviewable discretion vested by the PHRA in the PHRC to fashion a reme-

dy that best serves the public interest, Murphy v. Commonwealth of

(footnote continued on next page)

~~ - ~—“F

~ = << -

The PHRC’s jurisdiction is narrowly circumscribed by

its enabling legislation. Murphy v. Commonwealth of Penn-

sylvania Human Relations Commission, 506 Pa. 549, 556-

57, 486 A.2d 388, 392, appeal dismissed, 471 U.S. 1132

(1985); Pennsylvania Human Relations Commission vy. St.

Joe Mineral Corp., 476 Pa. 302, 310, 382 A.2d 731, 735-

36 (1978) (concerning the power of the PHRC: “A doubtful

power does not exist’). Under the PHRA, the Commission

is given jurisdiction only with respect to claims arising

under the PHRA — not those arising under Title VII. 43

Pa. Cons. Stat. Ann. §956. (Purdon Supp. 1989). Thus, per-

mitting a proceeding under Title VII of the Civil Rights Act

of 1964 after the PHRC has had an opportunity to investi-

gate, conciliate and adjudicate the complaint brought under

the PHRA will have no adverse impact on the evolution of

law under the PHRA, nor on the development or mainte-

nance of the Commission’s expertise. Indeed, Pennsylvania

courts have charted their own course in applying the

PHRA, reaching results different from those compelled by

Title VII. Compare Anderson v. Upper Bucks County Area

Vocational School, 30 Pa. Commw. 103, 373 A.2d 126

(1977) with General Electric Corp. v. Gilbert, 429 U.S. 125

(1976). Similarly, permitting a subsequent lawsuit in federal

court under federal law can have no impact upon the integ-

rity of state law, C.f, Thomas v. Washington Gas Light Co.,

448 U.S. 261, 281, 283-84 (1980), the expertise of the

PHRC or the burden on scarce state resources.

(footnote continued from preceding page)

Pennsylvania Human Relations Commission, 506 Pa. 549, 559, 486 A.2d

388, 393 (1985), is the inference that the Pennsylvania Legislature and the

superior court believed that the PHRC was not an appropriate forum in

which to assure that the policy of the federal law would be carried out. C.f,

Thomas v. Washington Gas Light Co., 448 U.S. 261, 281-82 (1980).

Conversely, the interpretation of section 962(b) sug-

gested by Petitioner would not effect any saving of scarce ju-

dicial resources, but at best merely alter the sequence in

which proceedings would be brought.

Because Section 962(b) does not preclude bringing a

claim arising under the PHRA after litigation of a claim

arising under Title VII, Lukus, 276 Pa. Super. at 269, 419

A.2d at 451, the result advocated by Petitioner would coun-

sel victims of discrimination to pursue their Title VII claims

before resorting to state law remedies. This is directly con-

trary to the structure laid out by Congress in Title VII.’ Of

course, 28 U.S.C. §1738 rather than the PHRA is the

source of whatever preclusive effect is required here. But,

because section 962(b) of the PHRA does not preclude sub-

sequent litigation of any federal claim based on the prior lit-

igation under the PHRA — as the superior court suggested

in Lukus * — then section 1738 will not preclude that claim.

Marrese v. American Academy of Orthopaedic Surgeons.

7. Moreover, even if state courts have concurrent jurisdiction over

suits arising under Title VII, the potential burden on state courts would be

greater. Complaints under the PHRA must be brought before the PHRC.

Clay v. Advanced Computer Applications, Inc., Pa. , 559 A.2d

917 (1989). Appeals from decisions of the PHRC, must go to the Com-

monwealth Court, whose jurisdiction is limited in such cases to review of

that which was actually before the PHRC. 42 Pa. Cons. Stat. Ann. §761-

763 (Purdon Supp. 1989). See also Kusnir v. Leach, 64 Pa. Commw. 65,

70, 439 A.2d 223, 226 (1982); Placid v. Unemployment Compensation

Board of Review, 58 Pa. Commw. 250, 255, 427 A.2d 748, 750 (1981).

Thus, if section 962(b) purported to impose claim preclusion on subse-

quent Title VII actions based upon a decision under the PHRA, a com-

plainant desiring to pursue both state and federal claims would have to

pursue them in separate proceedings, thereby increasing the burden on

state courts.

8. Section 962(b) precludes actions under the PHRA based on prior

actions in other courts, and precludes other actions based upon prior pro-

ceedings under the PHRA. The superior court, in Lukus, however, held

that a prior Title VII action does not preclude a subsequent action under

(footnote continued on next page)

2. Pennsylvania may, and does, interpret its Human

Relations Act differently from the interpretation

applied by other states to similar language in their

civil rights statutes.

The heart of Petitioner’s argument is its assumption

that, in Kremer v. Chemical Construction Corp., 456 U.S.

461 (1982), this Court held that the New York Executive

Law, Section 300 (McKinney 1972), whose language is sub-

stantially the same as that of section 962 of the PHRA, re-

quires claim preclusion. Petitioner, however, overreads

Kremer. It must also be noted that the question of whether

New York courts would interpret section 300 to require

claim preclusion or issue preclusion was not at issue in

Kremer. Rather, if either claim or issue preclusion applied

at all it would have precluded Kremer’s Title VII action.

456 US. at 280-281. The Court in Kremer was thus not

faced with the argument that the state statute at issue itself

differentiated in its preclusive effect between federal claims

and state claims.

Even if Petitioner’s assumption is correct, the court of

appeals below properly ruled that New York’s interpreta-

tion of its statute “does not bind us to conclude that Penn-

sylvania would interpret its similar statute similarly ....”

McNasby v. Crown Cork & Seal Co., Inc., 888 F.2d 270,

280 (3d Cir. 1989).

Petitioner acknowledges that “virtually identical lan-

guage might be construed differently by courts of different

states.”’ (Petition at 10). Indeed, Lukus’ holding to this effect

is not unique in Pennsylvania’s application of its Human

Relations Act. Pennsylvania has demonstrated its willing-

ness to disregard the interpretations by courts of other states

of language similar to that of the PHRA in the equal rights

(footnote continued from preceding page)

the PHRA because the other actions referred to in section 962 are only ac-

tions arising under Pennsylvania law, not federal law. Lukus, 276 Pa.

Super. at 269, 419 A.2d at 451.

10

statutes of those states. C.f, Zamantakis v. Pennsylvania

Human Relations Commission, 10 Pa. Commw. 107, 116-

117, 308 A.2d 612, aff'd, 478 Pa. 454, 307 A.2d 70 (1978)

(holding that compensatory damages are not available

under the PHRA, although they are available under the

New Jersey statute whose language is similar: ““Admittedly,

the New Jersey statute is similar to ours, and is silent on

damages. However, in the case of Zahorian v. Russell Fitt

Real Estate Agency, 62 N.J. 399, 301 A.2d 754 (1973) cited

by our Commission, the majority opinion refers to ‘minor

or incidental awards’ justified by the evidence. We find the

New Jersey result to be confusing and unacceptable under

the Pennsylvania statute’’).

3. Pennsylvania’s common law of preclusion would not

apply claim preclusicn to prevent litigation of Re-

spondent’s Title VII claim because no adjudicatory

body in Pennsylvania in which the Respondent liti-

gated her claims under the PHRA ever had jurisdic-

tion over her Title VII claim.

The court of appeals found that under the common law

of Pennsylvania, where the court first hearing a dispute does

not have subject matter jurisdiction over a claim raised in a

subsequent case, the former adjudication will not be given

claim preclusive effect over the latter. McNasby, 888 F.2d

at 276-77. Petitioner fails to cite a single Pennsylvania deci-

sion in support of its assertion that the court of appeals mis-

applied Pennsylvania’s common law of preclusion. (Petition

at 15-17). Far from engaging in “independent law making,”

(Petition at 15), the court of appeals determined that Penn-

sylvania follows what had been referred to as a rule of

“‘nearly universal” application. McCarter v. Mitcham, 883

F.2d 196, 199 (3d Cir. 1989). See also Eichman y. Fotomat

Corp., 759 F.2d 1434, 1437 (9th Cir. 1985). Cf, Marrese,

470 U.S. at 382; Nanavati, 857 F.2d at 112; Restatement

(Second) of Judgments §26.

11

Pennsylvania courts have consistently applied the very

rule applied by the court of appeals below. See, City of Phil-

adelphia v. Stradford Arms, Inc., | Pa. Commw. 190, 195,

274 A.2d 277, 280 (1971); Ostroff v. Yaslyk, 204 Pa. Super

66, 69, 203 A.2d 347 (1964), rev'd on other grounds, 419

Pa. 183, 213 A.2d 272 (1965). Cf, McCarter, 883 F.2d

196 (3d Cir. 1989); Kelley, 860 F.2d at 1196 n.14; BMY v.

Commonwealth of Pennsylvania Unemployment Compensa-

tion Board of Review, 94 Pa. Common. 579, 588, 504 A.2d

946, 951 (1986).

Proceedings in this case began before the PHRC which

only has subject matter jurisdiction over complaints arising

under the PHRA. Respondent’s appeal from the decision of

the PHRC went, as required, directly to the commonwealth

court. The commonwealth court’s jurisdiction was, and is,

limited to questions arising out of matters actually consid-

ered by the PHRC.’ See Kusnir, 64 Pa. Commw. at 70, 439

A.2d at 226; Placid, 58 Pa. Commw. at 255, 427 A.2d at

750. Thus, the commonwealth court did not have subject

matter jurisdiction over Respondent’s Title VII claims.

Similarly, the Pennsylvania Supreme Court never had juris-

diction over Respondent’s Title VII claims, either as a mat-

ter of its original or appellate jurisdiction. See 42 Pa. Cons.

Stat. Ann. §721-724 (Purdon 1981). Thus, as a matter of

state law, no state adjudicatory body that considered this

case ever had subject matter jurisdiction over Respondent’s

claims arising under Title VII. Therefore, Respondent’s Ti-

tle VII claims could not have been raised and adjudicated in

the prior state court proceedings. Consequently, the deci-

sions of the PHRC, the commonwealth court and the Penn-

sylvania Supreme Court in the prior action, would not have

9. The commonwealth court’s original jurisdiction would likewise not

have encompassed Respondent’s Title VII claims because they would not

have been brought by or against the Commonwealth of Pennsylvania.

42 Pa. Cons. Stat. Ann. §761 (Purdon 1981). See also Pennsylvania De-

partment of Aging v. Lindberg, 503 Pa. 423, 469 A.2d 1012 (1983).

12

been given claim preclusive effect by any other Penn-

sylvania court if Respondent’s Title VII claims were there-

after brought in state court."°

II. THIS CASE IS SINGULARLY INAPPROPRIATE

AS A VEHICLE TO ADVANCE THE NOVEL THE-

ORY THAT SECTION 1738 AND TITLE VII RE-

QUIRE BROADER PRECLUSION THAN THAT

PROVIDED BY THE LAW OF PENNSYLVANIA.

A. The language and purpose of section 1738 require that

the preclusive effect be the same as that applied by

state law.

Throughout this litigation, Petitioner has premised its

arguments upon its interpretation of state law. Only after

the court of appeals finally rejected Petitioner’s argument

did Petitioner change its tack and argue for the first time

that section 1738 or Title VII require rejection of Penn-

sylvania’s preclusion rules and the creation of a broader fed-

eral rule.'' Its new argument is as unpersuasive as was the

earlier one. Section 1738 is quite explicit that the full faith

and credit given to such prior state judicial precedings is to

be “‘the same .. . as they have by law or usage in the courts

of such state ....” 28 U.S.C. § 1738. This Court held in

10. A fortiori, if, as a matter of federal law, state courts do not have

subject matter jurisdiction of claims arising under Title VII, c.f Bradshaw

v. General Motors Corp., 805 F.2d 110 (3d Cir. 1986), Pennsylvania courts

would not apply claim preclusion here. But cf, Yellow Freight System,

Inc. v. Donnelly, No. 89-431, 1989 Oct. Term (argued February 28, 1990).

Petitioner’s argument that Mrs. McNasby must be claim precluded because

Title VII jurisdiction is concurrent and because she could have filed a Title

VII suit in the Court of Common Pleas, is absurd. That logic would lead to

the conclusion that states have virtually exclusive jurisdiction over Title

VII claims. Moreover, no provision of Title VII or of section 1738 requires

claimants to pursue remedies available to them in state courts. See Kremer,

456 U.S. at 469.

11. This argument was first raised by Petitioner in its Petition for Re-

hearing in the court of appeals.

13

Marrese that the language of section 1738 means just what

it says, “the same” — no more and no iess. Moreover, the

purpose of full faith and credit, to give proper respect and

deference to the judicial proceedings of the states, is best

served when the federal courts apply the “same” rules of

preclusion as would be applied by other state courts.

Title VII is a particularly inappropriate statute on

which to attempt to engraft a broader rule of preclusion

than that provided in section 1738. The legislative history

of Title VII makes abundantly clear that the members of

congress expected Title VII issues to be litigated in federal

courts before federal judges.'? This Court, of course, held in

Kremer, that that intent was subject to the mandate of sec-

tion 1738. Nevertheless, it would be anomalous, having

found that applying section 1738 to Pennsylvania preclu-

sion law does not result in precluding Respondent from

having her Title VII claims heard in federal courts before

12. See, e.g., Representative McCullouch on the question of whether

administrative agencies or courts should be responsible for enforcement:

“A substantial number of commiitee members . . . preferred that the ulti-

mate determination of discrimination rest with the Federal judiciary ....”

H.R. Rep. 914, 88th Cong, Ist Sess., reproduced in 1964 Leg. Hist. at

2150; Senator Cotton: “[T]he process will lead to one place — the door of

the Federal Court.”” Jd. at 3308. “[{O}rdinarily, a suit will be brought in a

Federal district court .... [TJhe party allegedly discriminated against

may ... bring his own suit in Federal court .... The suit against the re-

spondent, whether brought by the Commission or by the complaining par-

ty, would proceed in the usual manner for litigation in the Federal Courts.”

Interpretive Memorandum of Senators Clark and Case, Jd. at 3044. Simi-

larly, when Congress considered a series of amendments to Title VII in

1972, which became the Equal Employment Opportunity Act of 1972, the

members of both Houses assumed exclusive federal jurisdiction over Title

VII actions. E.g., Representative Erlenborn: “My bill would require any

case to be tried [in the Federal District Courts]”. Leg. Hist. at 249; Speaker

Albert: “[{T]he protection of the principles of justice requires that these

cases be heard only in Federal courts.”’ Jd. at 261; Senator Dominick: “In

the district courts where under the Dominick amendment [defeated, but

later revised and adopted], suits would have to be filed ....” Jd. at 905.

Cf, Alexander v. Gardner-Denver Co., 415 U.S. 36, 45, 47-49 (1974).

14

federal judges, to create, out of whole cloth, a broader rule

of preclusion just for Title VII claims."

Moreover, this case is a particularly inappropriate vehi-

cle for engaging in such an effort. It is clear, that on the key

issue of discrimination, after a lengthy hearing the PHRA

concluded that the Petitioner engaged in a blatant pattern

and practice of invidious discrimination which inured to the

great harm of plaintiffs.‘ Only because of the peculiarities

of state law, and the handling of the case by the staff of the

PHRC was Mrs. McNasby deprived of make whole relief,

13. When this Court did consider the question of the preclusive effect

of a prior state proceeding not covered by Section 1738, i.e. decisions of

state administrative agencies acting in a judicial capacity, it ruled that

“traditional principles” or “general rules” of preclusion would apply. In so

doing, the Court held that issue preclusion, not claim preclusion, properly

served both the interests of federalism and the need for finality. University

of Tennessee v. Elliott, 478 U.S. 288, 796-99 (1986). Cf, Thomas v.

Washington Gas Light Co., 488 U.S. 261 (1980); Alexander v. Gardner-

Denver Co., 415 U.S. 36 (1974). Thus, even if the Court were to accept

Petitioner’s invitation to reject the court of appeals’ application of Penn-

sylvania law, and hold that Pennsylvania law is not dispositive as to

whether claim or issue preclusion applies here, it is likely that the result

would be precisely that which flows from the decision of the court of ap-

peals — the application of issue preclusion, not claim preclusion based up-

on the prior state proceedings.

14. At the conclusion of its more than 130 Findings of Fact the PHRC

concluded that the record revealed that Petitioner was guilty of one of the

“most blatant patterns of discriminatory employment practices that has

ever been brought to this Commission’s attention .. . all operating to the

detriment of women employees.” The PHRC found specifically, that Peti-

tioner “engaged in a pattern and practice of discrimination based upon sex,

female, of applicants and employees in hiring, job assignment, job transfer,

compensation layoff and recall from layoff, on a continuing basis .. .” and

operated a sex-segreygated job-classification and seniority system. Interest-

ingly, Petitioner has never challenged the accuracy of these findings.

McNasby v. Crown Cork & Seal Co. Inc., 832 F.2d 47, 48 (3d Cir. 1987).

15

and were the remaining parties deprived of all relief.'* In-

deed, the application of a rule of preclusion broader than

that required by Section 1738 in this case would fly in the

face of this Court’s decision in New York Gaslight Club v.

Carey, 447 U.S. 54 (1980). In New York Gaslight Club this

Court acknowledged, inter alia, that Title VII was intended

as a supplement to state law, and held that in a subsequent

Title VII action in federal court, plaintiff could obtain a

remedy beyond the relief obtained in prior proceedings

under state law. C_f, Gardner-Denver, 415 U.S. at 47-49.

B. Petitioner’s contention that an aberrant preclusion rule

be imposed upon Title VII cases contradicts an unbro-

ken line of cases, including those of this Court, apply-

ing the full faith and credit Statute, 28 U.S.C. §1738, as

well as this Court’s Opinion in Kremer v. Chemical

Construction Corp.

This Court held in Kremer:

It has long been established that §1738 does not allow

federal courts to employ their own rules of res judicata

in determining the effect of state judgments. Rather, it

15. Mrs. McNasby was denied the full measure of back pay to which

she would be entitled under Title VII by the PHRC’s, essentially unreview-

able, discretionary decision to award back pay starting with the date on

which she filed her complaint of discrimination, rather than from the date

the discriminatory acts of Petitioner began to affect her pay adversely; and

by the PHRC’s staff's unilateral decision to reserve litigation of post-1975

damages until after the PHRC had decided the liability issues. The remain-

ing parties were denied relief because they were relying on the Commis-

sion’s staff to protect their rights; but the class action complaint filed by the

staff failed to comply with Pennsylvania pleading rules and was not

amended until after the statute of limitations had run on the claims. The

Pennsylvania Supreme Court held that the amendment did not relate back

to the filing of the original complaint. Murphy v. Commonwealth of Penn-

sylvania Human Relations Commission, 506 Pa. 549, 486 A.2d 388

(1985). See also, McNasby, 656 F. Supp. at 208.

16

goes beyond the common law and commands a feder-

al court to accept the rules chosen by the state from

which the judgment is taken.

456 US. at 481-82. In Marrese v. American Academy of

Orthopaedic Surgeons, 470 U.S. 373, 380 (1985), this Court

stated, “[sJection 1738 embodies concerns of comity and

federalism that allow the states to determine, subject to the

requirements of the statute and the due process clause, the

preclusive effect of judgments in their own courts.”’ See also,

Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75

(1984).

Petitioner asks this Court to create an exception to its

decisional law regarding section 1738, Elliott, supra; Par-

sons Steel, Inc. v. First Alabama Bank, 474 US. 518

(1986); Marrese, supra; Migra, supra; Haring v. Prosise,

462 U.S. 306 (1983); Kremer, supra; Allen v. McCurry, 449

U.S. 90 (1980); Thomas v. Washington Gas Light Co., 448

U.S. 261 (1980), and declare a special federal doctrine of

preclusion applicable to this Title VII action on the basis of

its assertion that Pennsylvania preclusion law is unclear. To

so hold, however would require throwing aside both the in-

struction in Marrese that “an exception to §1738 will not be

recognized unless a later statute contains an express or im-

plied repeal.” 470 U.S. at 381, quoting from Kremer 456

U.S. at 468; the holding of Kremer that “Title VII does not

repeal §1738, either expressly or impliedly,” 456 U.S. at

468; and the rule that federal courts may not give “greater

preclusive effect to a state court judgment then state court

would give to Petitioner.” Marrese, 470 U.S. at 388 (Burger

C.J., concurring) citing Migra v. Warren City School District

Board of Education, 465 U.S. 75 (1984).

Because no controlling precedent permits such an argu-

ment, Petitioner relies upon the concurring opinion of for-

mer Chief Justice Burger in Marrese for the proposition that

“when state law is indeterminate or ambiguous, a clear fed-

eral rule would promote substantive interests as well.” 470

17

U.S. at 390. In Marrese, however, no Illinois court had de-

cided whether a state antitrust claim would have preclusive

effect on a federal antitrust action arising out of the same

facts as did the state law claim. Therefore, the Illinois pre-

clusion law was, in fact, indeterminate, and Chief Justice

Burger expressly so noted. Jd. at 287.

The court of appeals in this case, however, found that

not only has Pennsylvania considered the express interrela-

tionship of section 962(b) of the PHRA and Title VII, see

Lukus v. Westinghouse Elec. Corp., 276 Pa. Super 232, 419

A.2d 431 (1980), but it has determined that the exclusivity

provisions of the PHRA have no bearing on parallel Title

VII proceedings. McNasby, 888 F.2d at 280-81. Moreover,

the court of appeals also found that there is a common law

of preclusion in Pennsylvania which is consistent with its in-

terpretation of section 962(b). Jd. at 276-78. The applicabil-

ity of Pennsylvania law is clear, and thus Chief Justice

Burger’s suggestion of what might be done where the law is

indeterminate is of no moment.

Finally, Petitioner argues that there “‘is a federal inter-

est in the uniform treatment of Title VII claims of different

states.” Its principal authority" for this proposition is a law

review article, Burbank, /nterjurisdictional Preclusion, Full

16. The reference to Shreve, Preclusion and Federal Choice of Law,

64 Tex. L. Rev. 1209, 1255-56 (1986), is certainly the triumph of hope

over reality. The legislative history of Title VII contains repeated com-

ments from Senators and Representatives of both parties recognizing the

importance of the right to a trial in federal court. Cf. Elliott, 478 U.S. at

795-96; Gardner-Denver, 415 U.S. at 45, 47-49. See, supra note 12 and ac-

companying text. There is, quite literally, no basis for suggesting a broader

rule of preclusion for Title VII cases than that mandated by Section 1738

and applicable state law. If any thing, the legislative history of Title VII

suggests the narrowest possible application of preclusion. 415 U.S. at 45,

47-49.

18

Faith and Credit and Federal Common Law, A General Ap-

proach, 71 Cornell Law Rev. 733 (1986).'’ Professor Bur-

bank theorizes that the decisions of this Court in Parsons

Steel, Marrese, Migra, Haring, Kremer and Allen are wrong

because no state court will ever be called upon to decide

whether claim preclusion arises from its parallel civil rights

acts to preclude subsequent Title VII actions and that there-

fore, a preclusion doctrine imposed by the federal courts

will support a general and allegedly more efficient, resolu-

tion of cases. Professor Burbank’s theory, however, fails to

recognize the fact that in addition to cases such as Lukus,

which do consider the applicability of the state’s preclusion

rules to employment discrimination cases arising under

both federal and a state law, Pennsylvania as well as other

states have general rules of preclusion which guide the

courts in this application to specific cases. Thus, there is no

justification for this Court to ignore all of its decisions ap-

plying section 1738, and superimpose onto this proceeding

a special federal preclusion law.

Ill. THE COURT OF APPEALS’ DECISION INTER-

PRETING SECTION 962(b) DOES NOT VIOLATE

THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT.

Petitioner’s “last resort’’"* is to urge that this Court

grant its petition, and consider, after full briefing and argu-

ment, whether section 962(b) of the PHRA, as interpreted

by the Superior Court of Pennsylvania in Lukus and the

17. Professor Burbank was counsel for Petitioner in the Court of

Appeals, and when Petitioner filed its prior Petition for a Writ of Certiora-

ri, Crown Cork & Seal Co., Inc. v. McNasby, No. 87-1198, 1987 Oct.

Term.

18. Petitioner's argument does call to mind, Mr. Justice Holmes’ ref-

erence to allegedly improper classification as “the usual last record of con-

stitutional arguments.”’ Buck v. Bell, 274 U.S. 200, 208 (1927).

19

court of appeals below, violates the Equal Protection Clause

of the Fourteenth Amendment.

Unless a statute provokes strict judicial scrutiny be-

cause it interferes with a ‘fundamental right’ or dis-

criminates against a ‘suspect class,’ it will ordinarily

survive an equal protection attack so long as the chal-

lenged classification is rationally related to a legitimate

governmental purpose.

Kadrmas vy. Dickinson Public Schools, __. U.S. ___, 101

L.Ed.2d 399, 409 (1988). Petitioner apparently concedes

that the classification allegedly created by section 962(b) of

the PHRA does not interfere with a “fundamental right”

nor discriminate against any “suspect class.” Petition at 24-

25. Thus, Petitioner must carry the heavy burden of dem-

onstrating that the statute, as interpreted “is both arbitrary

and irrational.” Jd. at ___, 101 L.Ed.2d at 422.

Nevertheless, Petitioner argues that the only legitimate

governmental interest would be preventing duplicative liti-

gation. Even if that were so, that interest is well served by

section 962(b)’s non-inclusion of federal claims.'? More-

over, the fact that the PHRC’s jurisdiction is limited to the

enforcement of the PHRA, the additional fact that the

PHRA (unlike Title VII) encompasses discrimination in,

e.g., housing and public accommodations, as well as em-

ployment 43 Pa. Cons. Stat. Ann. §951 et seg. (Purdons

Supp. 1989), and that its mandate is to serve the public in-

terest of Pennsylvania rather than represent individuals,

Murphy, 506 Pa. at 559, 486 A.2d at 393, it is equally

probable that in limiting section 962(b) Pennsylvania decid-

ed that the PHRA was not an appropriate vehicle to ensure

the protection of the congressional policies underlying fed-

eral civil rights claims. C.f, Lukus, 276 Pa. Super. at 269,

419 A.2d at 450-51.

19. See supra pages 5-8.

20

IV. CONCLUSION

The court of appeals, familiar with application of

Pennsylvania law, after careful review of applicable deci-

sions of Pennsylvania appellate courts held that under

Lukus v. Westinghouse Electric Corp., 276 Pa. Super. 232,

419 A.2d 431 (1980), the exclusivity provision of the Penn-

sylvania Human Relations Act, 43 Pa. Cons. Stat. Ann.

§962(b), does not preclude subsequent litigation of a claim

arising under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000 e, et seg. There is no reason to disturb that de-

termination. Similarly, there is no reason to use this case as

a vehicle for re-examining the continuous line of decisions

in this Court, and cases throughout the federal court system,

holding that the Full Faith and Credit Statute, 28 U.S.C.

§1738, requires that federal courts give the same preclusive

effect to a prior state court decision as would be accorded

that decision in another court of that state. Finally, Petition-

er has raised no issue or argument that would justify this

Court’s entertaining of a claim that section 962(b) of the

PHRA violates the Equal Protection Clause of the Four-

teenth Amendment.

Respectfully submitted,

ALAN M. LERNER

(Counsel of Record)

JEFFREY IVAN PASEK

STEPHEN V. YARNELL

JOHN F. LIicari

Cohen, Shapiro, Polisher,

Shiekman and Cohen

22nd Floor, PSFS Building

12 South 12th Street

Philadelphia, PA 19107

(215) 922-1300

and

Seth F. Kreimer

3400 Chestnut Street

Philadelphia, PA 19107

(215) 898-7447

Counsel for Respondents

in leat